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TODAY'S OPINIONS: Monday, October 17, 2005
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
01 - TN Supreme Court - Rules
03 - TN Court of Appeals
01 - TN Court of Criminal Appeals
04 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

ABU-ALI ABDURāRAHMAN v. PHIL BREDESEN, ET AL.

Court: TSC

Attorneys:

Bradley A. MacLean and Cynthia W. MacLean, Nashville, Tennessee, and William P. Redick, Jr., Whites Creek, Tennessee, for the Appellant, Abu-Ali AbdurāRahman.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Joseph F. Whalen, Associate Solicitor General; and Stephanie R. Reevers, Associate Deputy Attorney General, for the Appellees, Phil Bredesen, Quenton White, Ricky Bell, Virginia Lewis, and Tennessee Department of Correction.

Stephen J. Zraleck and Melody Fowler-Green, Nashville, Tennessee, for Amici Curiae, American Civil Liberties Union of Tennessee and Sidelines Newspaper.

Peter D. Heil, Nashville, Tennessee, for Amicus Curiae, Tennessee Medical Professionals.

Judge: ANDERSON

We granted review to address several issues regarding the Tennessee Department of Correctionās protocol for executing inmates who have been sentenced to death by lethal injection. After our review of the record and applicable authority, we conclude that the lethal injection protocol in Tennessee, which includes intravenous injections of sodium Pentothal, pancuronium bromide, and potassium chloride, (1) does not violate the Eighth Amendment to the United States Constitution or article I, section 16 of the Tennessee Constitution, (2) does not violate due process provisions under the United States or Tennessee Constitutions, (3) does not deny access to the courts in violation of the United States or Tennessee Constitutions, (4) does not violate the Uniform Administrative Procedures Act, (5) does not violate the Nonlivestock Animal Humane Death Act, (6) does not violate provisions governing the practice of medicine and provision of healthcare services, and (7) does not violate the Drug Control Act or Pharmacy Practice Act. Accordingly, we affirm the judgment of the Court of Appeals.

http://www.tba.org/tba_files/TSC/2005/rahmana101705.pdf


SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court: TSC-Rules

http://www.tba.org/tba_files/TSC_Rules/2005/certlist101705.pdf

ANDRE MATTHEWS v. SHELBY COUNTY GOVERNMENT

Court: TCA

Attorneys:

Gerald S. Green of Memphis for Appellant, Andre Matthews

M. Dell Stiner, Assistant Shelby County Attorney, for Appellee, Shelby County Government

Judge: CRAWFORD

Appellant filed suit against the county alleging violations of the Tennessee Human RightsAct, and the case was dismissed for failure to prosecute. Approximately three years later, Appellant filed a Tenn. R. Civ. P. 60.02 motion for relief from the order of dismissal. The trialcourt denied the motion, and Appellant appeals. We affirm.

http://www.tba.org/tba_files/TCA/2005/matthewsa101705.pdf


JASON SIMMS v. INSURANCE COMPANY OF NORTH AMERICA

Court: TCA

Attorneys:

J. Arnold Fitzgerald and Andrew F. Tucker, Dayton, Tennessee, for the Appellant, Jason Simms.

Thomas E. LeQuire and Robert C. Denny, Chattanooga, Tennessee, for the Appellee, Insurance Company of North America.

Judge: LEE

The issue in this case is whether the trial court correctly granted the Defendant Insurance Company of North America (ćICNAä) summary judgment based on its finding that the claimant, Jason Simms, failed to follow the loss provisions of the insurance policy and that ICNAās agent did not possess authority to waive the loss provisions. We hold there exists a genuine issue of material fact regarding the apparent authority of ICNAās agent, and therefore vacate the summary judgment and remand for trial.

http://www.tba.org/tba_files/TCA/2005/simmsj101705.pdf


GARY JOHN WHITE, JR., ET AL. v. JERRY KELVIN FARLEY

Court: TCA

Attorneys:

Clark Lee Shaw, Marco Island, Florida, and Steven D. Qualls, Cookeville, Tennessee, for the Appellants, Gary John White, Jr. and Doreen Klimo White.

Allison M. Barker, Crossville, Tennessee, for the Appellee, Jerry Kevin Farley.

Judge: LEE

This appeal involves the parental rights of a father to his eight-year-old daughter. When the child was approximately 17 months old, the mother moved with the child to Ohio. The father did not know their whereabouts for many months. In the partiesā divorce, the mother was awarded custody of the child and the father was awarded specific visitation privileges. The father failed to exercise his visitation rights and failed to visit or support the child for more than four months. The mother, who had remarried, filed a petition to terminate the fatherās rights on the grounds of abandonment. Father presented proof at trial of his meager earnings due to a physical impairment, limited education and the loss of his job. Father also presented proof that he had tried to contact the child by telephone but was unable to do so. The trial court declined to terminate the fatherās parental rights because there had not been proof by clear and convincing evidence of abandonment or that termination of the fatherās parental rights was in the childās best interest. After a careful review of the record and the applicable law, we agree with the trial court that the fatherās lack of visitation and support was not willful and that termination of the fatherās parental rights was not in the childās best interest. Accordingly, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCA/2005/whiteg101705.pdf


STATE OF TENNESSEE v. MICHAEL LEBRON ANDERSON
CORRECTED OPINION - ORIGINALLY ISSUED 1-27-2005

Court: TCCA

Attorneys:

Ardena J. Garth, District Public Defender; Donna Robinson Miller and Lorrie Miller; AssistantDistrict Public Defenders, for the appellant, Michael Lebron Anderson.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;William Cox, District Attorney General; and Bob Patterson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Michael Lebron Anderson, was convicted of burglary of a building other than ahabitation, a Class D felony, and was sentenced to twelve years in the Department of Correction. On appeal, the defendant contends that the trial court erred by allowing hearsay statements ofeyewitnesses to be introduced through the testimony of a police officer as an excited utterance, thereby violating his right to confront witnesses against him. After careful review of the recordand the partiesā briefs, we affirm the judgment of the trial court.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/2005/andersonm101705.pdf


Public Records: Access to Recordings of 911 Calls and Law Enforcement Radio Transmissions

TN Attorney General Opinions

Date: 2005-10-13

Opinion Number: 05-155

http://www.tba.org/tba_files/AG/2005/op155.pdf

Delinquent Tax Sales Conducted by Clerk and Master

TN Attorney General Opinions

Date: 2005-10-13

Opinion Number: 05-156

http://www.tba.org/tba_files/AG/2005/op156.pdf

Conflict of Law - Mental Capacity

TN Attorney General Opinions

Date: 2005-10-14

Opinion Number: 05-157

http://www.tba.org/tba_files/AG/2005/op157.pdf

Tenn. Code Ann. ¤ 49-2-301(b)(GG)

TN Attorney General Opinions

Date: 2005-10-14

Opinion Number: 05-158

http://www.tba.org/tba_files/AG/2005/op158.pdf

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