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The Tennessee Bar Association and Fastcase are offering a webinar tomorrow, Nov. 27, to help you boost your online legal research skills. It is free and accredited for one-hour of E&P CLE credit. The webinar will give you an overview of how Fastcase works and how you can use it more effectively in your practice. All TBA members have free access to Fastcase and can use it to research court opinions from all 50 states, the U.S. Supreme Court and all Federal Courts of Appeal, as well as statutes, regulations, constitutions, and court rules from all 50 states and from federal sources. The course begins at noon central/1 p.m. eastern.

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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) 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. 2) 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.

EVELYN NADINE BRICENO v. JEWEL FAYE BRICENO, ET AL.

Court: TCA

Attorneys:

Tracy W. Moore, Columbia, Tennessee, for the appellant, Evelyn Nadine Briceno.

Beverly K. Rayburn, Columbia, Tennessee, for the appellees, Jewel Faye Briceno and The Estate of Nicholas Briceno.

Judge: FARMER

In this appeal from a consolidated action, plaintiff ex-wife seeks to enforce two provisions of a divorce decree. She filed suit to impose a constructive trust on life insurance proceeds held by her deceased ex-husband's surviving spouse and to recover alimony arrearage from his estate. The trial court applied the doctrine of laches to limit the alimony award and imposed a constructive trust upon the insurance proceeds only for that limited amount. We reverse and remand.

http://www.tba2.org/tba_files/TCA/2007/bricenoe_112607.pdf


GORDON C. COLLINS v. BARRY L. ARNOLD, ET AL.

Court: TCA

Attorneys:

J. Randolph Bibb, Jr., Brigid M. Carpenter, G. Douglas Tackett, Jr., Nashville, Tennessee, for the appellants Barry L. Arnold, et al.

William D. Leader, Jr., Joseph G. DeGaetano, Nashville, Tennessee, for the appellee, Gordon C. Collins.

Judge: COTTRELL

The plaintiff was severely injured when the automobile he was driving was struck by a car driven by an impaired driver who was killed in the collision. The plaintiff's suit named as defendants the estate of the deceased driver, the nightclub from which the driver departed immediately before the accident, and the company which provided security services to the bar. The jury declined to find the nightclub liable for serving alcoholic beverages, thereby making the only available basis for liability negligence in controlling the conduct of the deceased driver so as to prevent harm to others. The jury heard evidence that employees of the club and the security company had made efforts, albeit unsuccessful, to prevent the driver from leaving the premises in an intoxicated state. The jury found the plaintiff's damages resulted from negligence and amounted to over $1,162,000. They allocated 30% of the fault to the deceased driver, 30% to the security company, and 40% to the club's owner. The jury also awarded punitive damages of $1.5 million against the club's owner and $500,000 against the security company. The club owner appealed. Because the jury was not instructed as to the conditions for liability under an assumed, rather than imposed, duty of care as established in Section 324A of the Restatement of Torts, we must reverse the verdict and judgment thereon. For separate and independent reasons, we reverse the award of punitive damages, because the conduct of the bar's personnel in attempting to prevent its adult customer from driving while impaired did not reach the level of recklessness necessary to sustain a punitive award. Additionally, we find no error in evidentiary rulings or other procedures in the trial court that justify reversal.

http://www.tba2.org/tba_files/TCA/2007/collinsg_112607.pdf


TRENT WATROUS, Individually, and as the surviving spouse and next of kin of VALERIE WATROUS v. JACK L. JOHNSON, ET AL.

Court: TCA

Attorneys:

Dale Conder, Jr. And Todd D. Siroky, Jackson, Tennessee, for the appellant, Trent Watrous.

John A. Peebles, Memphis, Tennessee, for the appellees, Leon Johnson and wife, Betty Johnson.

Judge: FARMER

The trial court awarded summary judgment in favor of Defendants on Plaintiff's claim of negligent entrustment. We reverse and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2007/watroust_112607.pdf


MARCUS TERRY AKA MARCUS BENSON AKA TORIAN BENSON v. TOMMY MILLS, WARDEN

Court: TCCA

Attorneys:

Torian Benson, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: HAYES

The Petitioner, Torian Benson, appeals the lower court's denial of his petition for habeas corpus. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. As we conclude that the Petitioner has failed to allege a claim upon which habeas corpus relief may be granted, we affirm the trial court's dismissal.

http://www.tba2.org/tba_files/TCCA/2007/bensont_112607.pdf


TERRY LYNN BYINGTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Michael F. McClellan Carrico, Gate City, Virginia, for the appellant, Terry Lynn Byington.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and William B. Harper, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Terry Lynn Byington, appeals the post-conviction court's denial of his petition for post- conviction relief in which he alleged the ineffective assistance of counsel on appeal. After a thorough review of the record, we reverse the judgment of the post-conviction court and remand this case to allow Petitioner a delayed appeal, provided he files a motion for new trial within thirty days of the issuance of the mandate in the case. Counsel in this appeal is appointed to represent Petitioner in the delayed appeal.

http://www.tba2.org/tba_files/TCCA/2007/byingtontOPN2_112607.pdf


STATE OF TENNESSEE v. TERRY LYNN BYINGTON

Court: TCCA

Attorneys:

Michael F. McClellan Carrico, Gate City, Virginia, for the appellant, Terry Lynn Byington.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and William B. Harper, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Terry Lynn Byington, was convicted by a Sullivan County jury of DUI, fourth offense, and received a Range II, multiple offender, sentence of three years in the Department of Correction. In his initial direct appeal, a panel of this court affirmed, addressing issues relating to the sufficiency of the evidence and sentencing. However, this Court held that two other issues were waived because Defendant's motion for new trial was untimely filed. See State v. Terry Lynn Byington, No. E2003- 02316-CCA-R3-CD, 2004 WL 1606993 (Tenn. Crim. App., at Knoxville, July 19, 2004) perm. to app. denied (Tenn., Dec. 28, 2004). Defendant filed a petition for post-conviction relief, and the trial court granted the petition insofar as ordering a delayed appeal after giving Defendant the opportunity to present a timely motion for new trial. T.C.A. SECTIONS 40-30-111(a) and 40-30-113(a). See Wallace v. State, 121 S.W.3d 652 (Tenn. 2003). Defendant has now again appealed from his conviction raising two issues: (1) the trial judge erred by declining to recuse herself from Defendant's trial, and (2) the trial court erred by permitting the State to impeach Defendant's testimony with his prior perjury conviction. Because there is no order in the record that the motion for new trial was denied, we are without jurisdiction to hear this appeal. Accordingly, the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2007/byingtont_112607.pdf


JERRY LYNN HOPSON v. JACK MORGAN, WARDEN, and the STATE OF TENNESSEE

Court: TCCA

Attorneys:

Walter B. Johnson, II, Assistant Public Defender, for the appellant.

Robert E. Cooper, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Jerry Lynn Hopson, through counsel, appeals from the trial court's order denying his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petition fails to establish a cognizable claim for habeas corpus relief. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/hopsonj_112607.pdf


MARVIN ANTHONY MATTHEWS v. STATE OF TENNESSEE (TONY PARKER, WARDEN)

Court: TCCA

Attorneys:

Marvin Anthony Matthews, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Alice B. Lustre, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The Petitioner, Marvin Anthony Matthews, appeals the lower court's denial of his petition for habeas corpus. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. As we conclude that the Petitioner has failed to allege a claim upon which habeas corpus relief may be granted, we affirm the trial court's dismissal.

http://www.tba2.org/tba_files/TCCA/2007/matthewsmyhab_112607.pdf


MARVIN ANTHONY MATTHEWS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Marvin Anthony Matthews, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Lacy Elaine Wilbur, Assistant Attorney General; William L. Gibbons, District Attorney General; and Kirby May, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The Petitioner, Marvin Anthony Matthews, appeals the lower court's denial of his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. As we conclude that the petition for post-conviction relief was time-barred, we affirm the trial court's dismissal.

http://www.tba2.org/tba_files/TCCA/2007/matthewsm_112607.pdf


MICHAEL W. SMITH v. DELPHUS HICKS, SHERIFF

Court: TCCA

Attorneys:

Michael W. Smith, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Lacy Elaine Wilber, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: HAYES

The Petitioner, Michael W. Smith, appeals the lower court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court's dismissal.

http://www.tba2.org/tba_files/TCCA/2007/smithm_112607.pdf


MICHAEL WARE v. TOMMY MILLS, WARDEN

Court: TCCA

Attorneys:

Michael Ware, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Elizabeth Bingham Marney, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The Petitioner, Michael Ware, appeals the lower court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court's dismissal.

http://www.tba2.org/tba_files/TCCA/2007/warem_112607.pdf


TODAY'S NEWS

Passages
Legal News
TBA Member Services

Passages
Services today for Memphis lawyer Frank Glankler Jr.
Memphis attorney Frank Glankler Jr. was buried today in Memorial Park in Memphis after a service at Immaculate Conception. He was 81.

After graduating in 1952 from Southern Law University, he joined his father in practice, then went on to co-found the firm known today as Glankler Brown PLLC. Glankler was a fellow of the Tennessee Bar Foundation. Memorials may be made to Double Dog Rescue, 17 Harmony Hill Rd., Harwinton, CT 06791 or Kentucky Lab Rescue, 1101 Sugar Ridge Rd., Winchester, KY 40391.
Read a detailed tribute in the Commercial Appeal
Legal News
Proposed legislation looks to revise jury service law
The Tennessee Judicial Council will meet Tuesday to decide whether to recommend changes to the General Assembly that would eliminate most jury service exemptions. The changes are part of proposed legislation that would overhaul state laws detailing how jurors are selected in Tennessee.
Find out more from the Administrative Office of the Courts
Hooker's mission: undermine public confidence in court
Nashville lawyer John J. Hooker has a hearing set for Friday with the Board of Professional Responsibility, in which disciplinary sanctions -- possibly including disbarment -- may be imposed, NashvillePost.com reports today. Tennessee Attorney General Bob Cooper has asked Davidson County Chancery Court to quash subpoenas Hooker obtained to force testimony from TSC Chief Justice William Barker, former Justice A.A. Birch, Davidson County Circuit Court Judge Walter Kurtz, Davidson County Chancellor Ellen Hobbs Lyle and former Attorney General Paul Summers. In the interview Hooker says that his "mission is to undermine the public's confidence in the Supreme Court."
Read more at NashvillePost.com [subscription required]
'State secrets' doctrine under fire
In federal courts and on Capitol Hill more challenges are surfacing to President Bush's legal defense known as the "state secrets" doctrine -- a claim that the president has inherent and unchecked power to shield national security information from disclosure, either to plaintiffs in court or to congressional overseers.
MSNBC.com carries this Associated Press analysis
Judge should resign, Romney says
Mitt Romney has called on a Superior Court judge he appointed to resign after she released a convicted killer without bail, and the man allegedly killed a newlywed couple in Washington state, reported WCVB-TV in Boston.
WSMV-TV has more
Pro se litigants on the rise
Kathleen Sampson, who tracks pro se cases for the American Judicature Society, says there is a trend toward more people representing themselves in court: "It's like the do-it-yourself movement -- the Home Depot approach," she said.
WATE-TV has this AP story
DA team goes to New Orleans to help
Shelby County District Attorney Bill Gibbons traveled with a team of DAs from across the country to assess the status of the Orleans Parish district attorney's office in the wake of Hurricane Katrina. Gibbons kept a journal and recounts what he found there, in the
Tennessean
Bedford officials consider judicial space needs
Bedford County considers more space for judicial work, better security and, importantly, where it all could happen.
The Shelbyville Times-Gazette has details
Legal Aid helps with 'do-it-yourself' divorces
In Clarksville, Legal Aid Society lawyers work alongside low-income clients to help them draft the paperwork for divorces at no cost, under a program funded by grants. "I really believe there has to be some minimal amount of attorney involvement, but we've had some success with minimal contact," Legal Aid Society attorney Kevin Fowler said.
The Leaf-Chronicle has the story
Gonzales heckled by students
Former Attorney General Alberto Gonzales was booed, heckled and called a criminal and a liar by students while giving a speech last week at the University of Florida. During the speech, Gonzales defended the Bush administration's treatment of terror suspects and did not engage the rowdy crowd, which included supporters as well. "No one is perfect," he said. "What is important is that we identify our mistakes and correct them."
The Commercial Appeal carried this AP story
Who are the lawyers behind the candidates?
Although this writer for Slate.com was unable to get the LSAT scores for the major presidential candidates who are lawyers, Emily Bazelon did learn who advises them about policy matters that are legal in nature.
See what she found out on Slate.com
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