TBA at Work on Emerging Judicial Election, Tort Bills

Another vehicle for addressing the manner of election for Supreme Court and appellate judges emerged this week when the Senate Judiciary Committee voted out its third conflicting proposal. The TBA remains deeply involved in the ongoing discussions to preserve the Tennessee Plan. Read more in TN Report

More Tort Changes – Bills which, as amended, require the loser to pay attorney’s fees when a motion to dismiss for failure to state a claim is granted (HB 3124) and limiting vicarious liability for punitive damages (HB 3125) advanced from a House Judiciary subcommittee today and could be voted on as early as next week in full committee. The TBA has worked to try to narrow and clarify these measures.

Conservatorship Law – The sponsor of a far-reaching restructuring of Tennessee's conservatorship law has agreed to a much more modest revision while the TBA undertakes a thorough review of the fiduciary and conservatorship statutes. Rep. Gary Odom, D-Nashville, publicly expressed his appreciation for the TBA's cooperation in this matter. The TBA applauded Odom's willingness to undertake a thoughtful examination of the issues involved. The bill, HB 2648/SB 2519, should now proceed through the legislative process with the modest changes proposed.

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.

01 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
04 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









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.


TN Supreme Court

MICHAEL LIND v. BEAMAN DODGE, INC., d/b/a BEAMAN DODGE CHRYSLER JEEP ET AL.
CORRECTION: On page 10 of the opinion, in the last paragraph of Footnote 9, the symbol "§" has been added before "Tenn. Code Ann. 29-28-103(a)"

Court: TN Supreme Court

Attorneys:

J. Britt Phillips and Joy B. Day, Franklin, Tennessee, for the appellant, Beaman Dodge, Inc.

Mark P. Chalos, Nashville, Tennessee, for the appellee, Michael Lind.

Judge: WADE

The plaintiff, who had purchased a truck from an automobile dealership, filed a products liability suit in 2007 against not only the manufacturer, but also the dealership, as seller. Later, the plaintiff entered a voluntary nonsuit as to the seller and proceeded only against the manufacturer. Over one year after the order granting nonsuit, the manufacturer declared bankruptcy, and, in 2009, the plaintiff again sued the seller, alleging both negligence and strict liability in tort. The seller filed a motion to dismiss, contending that the suit was barred by the statute of limitations. The trial court denied the motion but granted an interlocutory appeal. The Court of Appeals denied the appeal. This Court granted the seller’s application for permission to appeal to consider the application of the saving statute to these unique circumstances. We hold that the plaintiff may proceed under the strict liability claim because that cause of action did not accrue until the manufacturer was judicially declared insolvent. Because, however, the second suit alleged acts of negligence on the part of the seller, an exception to the statutory rule prohibiting products liability suits against sellers, and could have been brought in 2007, the statute of limitations is a bar to recovery under that theory. The judgment of the trial court is, therefore, affirmed in part and reversed in part, and the cause is remanded for trial.


TN Court of Appeals

KATHRYN M. CLAIBORNE V. LARRY W. GOLDSTON

Court: TN Court of Appeals

Attorneys:

Tracy Jackson Smith, Knoxville, Tennessee, for the appellant, Kathryn M. Claiborne.

Mark N. Foster, Rockwood, Tennessee, for the appellee, Larry W. Goldston.

Judge: MCCLARTY

In this case, Kathryn M. Claiborne sought to set aside a quitclaim deed relating to property given to Larry W. Goldston. The trial court set aside the deed but awarded damages to Larry W. Goldston based upon his counterclaim for unjust enrichment. Kathryn M. Claiborne appeals. We affirm the judgment of the trial court as modified.


IN RE: THE ADOPTION OF DESTINY R. D.

Court: TN Court of Appeals

Attorneys:

Leonard Robert Grefseng, Columbia, Tennessee, for the appellants, J. A. D. and L. N. D.

Ronald G. Freemon, Columbia, Tennessee, for the appellee, D. S. V.

Judge: COTTRELL

The mother and stepfather of a three year old girl filed a petition to terminate the parental rights of the child’s father on the ground of abandonment so that the stepfather could adopt her. After hearing the proof, the trial court dismissed the petition, ruling that the petitioners had not met their burden of proving by clear and convincing evidence that the father’s failure to visit the child or his failure to provide child support in the four months preceding the filing of the petition were willful. We affirm.


LAUREN EPHGRAVE JARRELL v. EMMETT BLAKE JARRELL

Court: TN Court of Appeals

Attorneys:

Loys A. “Trey” Jordan, Joseph B. Baker, Memphis, Tennessee, for the appellant, Emmett Blake Jarrell.

Mitchel D. Moskovitz, Mary Morgan Whitfield, Memphis, Tennessee, for the appellee, Lauren Ephgrave Jarrell.

Judge: HIGHERS

The parties’ Parenting Plan required that major decisions regarding religious upbringing be made jointly, and if no consensus could be reached, that the dispute be submitted to a mediator. Mother had the parties’ children baptized without Father’s knowledge or consent, and Father filed a petition for civil and criminal contempt against Mother. The trial court found Mother in civil contempt, but it dismissed the criminal contempt petition, apparently for insufficient notice. We reverse the trial court’s finding that Mother was in civil contempt, and its award of attorney fees to Father based upon the civil contempt finding. We also reverse the trial court’s dismissal of Father’s criminal contempt petition, and we remand for further criminal contempt proceedings.


RICHARD LAUDE v. STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Richard Laude.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, and Dawn Jordan, Senior Counsel, for the appellee, State of Tennessee.

Judge: FARMER

The Tennessee Claims Commission dismissed Appellant’s claims upon concluding that the State was not negligent, and that in the alternative, Appellant was more than fifty percent (50%) at fault. After thoroughly reviewing the record, we conclude that the Claims Commission lacked subject matter jurisdiction to hear Appellant’s claims. Accordingly, we reverse the judgment of the Claims Commission and dismiss.


OSCAR H. VAUGHN v. JAMES D. MORTON

Court: TN Court of Appeals

Attorneys:

John C. Cavett, Jr., Chattanooga, Tennessee, for the appellant, Oscar H. Vaughn.

F. R. (Rick) Evans, Chattanooga, Tennessee, for the appellee, James D. Morton, Deceased.

Judge: SUSANO

This is a personal injury action filed by Oscar H. Vaughn (“the Plaintiff”) against James D. Morton (“the Deceased”) that arose out of an automobile accident. The Deceased died within a year of the accident. The Deceased’s insurer, acting pursuant to its rights under the policy to “defend” an action against its insured, filed a motion to dismiss asserting that the only proper defendant was the personal representative of the Deceased and that the statute of limitations had expired prior to any attempt to make the representative a party to this litigation. The trial court denied the Plaintiff’s motion to amend to add the personal representative as a defendant, which motion was filed after the expiration of the statute of limitations. The trial court granted the insurer’s motion to dismiss. The Plaintiff appeals. We affirm.


TN Court of Criminal Appeals

YDALE BANKS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Joseph S. Ozment, Memphis, Tennessee, for the appellant, Ydale Banks.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Rachel Newton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Ydale Banks, appeals the denial of his petition for post-conviction relief from his convictions for first degree felony murder, first degree premeditated murder, conspiracy to commit first degree premeditated murder, especially aggravated burglary, facilitation of especially aggravated robbery, three counts of especially aggravated kidnapping, and three counts of aggravated assault. He argues that: (1) the post-conviction court erred in finding that he was not prejudiced by the instructions submitted to the jury that contained the trial court’s handwritten corrections; (2) the post-conviction court erred in determining that he received the effective assistance of counsel at trial and on appeal; and (3) the post-conviction court erred in not granting a new trial due to cumulative error. After review, we affirm the denial of post-conviction relief.


CHRISTOPHER JOHNSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Donna Robinson Miller, Chattanooga, Tennessee, for the appellant, Christopher Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Robert Steve Bebb, District Attorney General; and A. Wayne Carter, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Christopher Johnson, appeals as of right from the Bradley County Criminal Court’s summary dismissal of his petition for post-conviction relief. The Petitioner contends that the post-conviction court erred by summarily dismissing his petition because it relied upon “unconstitutional” case law in determining that the petition failed to present a colorable claim for post-conviction relief. Following our review, we affirm the judgment of the postconviction court.


DONNA LEIGH PEARSON v. STATE OF TENNESSEE
CORRECTION: Concurring opinion from Judge Thomas Woodall has been added

Court: TN Court of Criminal Appeals

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Donna Leigh Pearson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

In two separate cases, the Petitioner, Donna Leigh Pearson, pled guilty to burglary and theft of over $1000. The trial court sentenced her to ten years on each count, to be served in the Tennessee Department of Correction at 45%, and, because the Petitioner committed one offense while released on bond for the other offense, the trial court ordered consecutive sentences. The Petitioner filed a petition for post-conviction relief, and the post-conviction court dismissed the petition but granted the Petitioner the opportunity to seek a delayed appeal of her sentence. On appeal, the Petitioner contends that: (1) she received the ineffective assistance of counsel; (2) her guilty pleas were not knowingly and voluntarily entered; and (3) the trial court erred when it sentenced her. After a thorough review of the record and applicable authorities, we affirm the post-conviction court’s dismissal of her petition and we affirm her sentence.


STATE OF TENNESSEE V. ANTONIO SELLERS

Court: TN Court of Criminal Appeals

Attorneys:

Stephen C. Bush, Shelby County Public Defender, and Barry W. Kuhn, Assistant Shelby County Public Defender (on appeal); Jennifer Case and Nicholas Cloud, Assistant Shelby County Public Defenders (at trial), Memphis, Tennessee, for the appellant, Antonio Sellers.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Senior Counsel; Amy Weirich, District Attorney General; and Stacy McEndree, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: BIVINS

A jury convicted Antonio Sellers (“the Defendant”) of second degree murder. The trial court subsequently sentenced the Defendant to twenty-three years of incarceration. In this appeal, the Defendant challenges (1) the trial court’s ruling on an evidentiary issue regarding leading questions on redirect examination and (2) the sufficiency of the evidence. Upon our thorough review of the record, we have determined that the Defendant is entitled to no relief on the issues raised. Accordingly, we affirm the judgment of the trial court.


Court Wraps Up Healthcare Arguments

On the third day of oral arguments on legal challenges to the 2010 Affordable Care Act, the justices first tackled the question of what would happen if they ruled that the heart of the law, the individual mandate, is unconstitutional. A second session this afternoon looked at whether states would be "coerced" by the federal government to expand their share of Medicaid costs or risk losing federal funding. Wednesday's session also gave Solicitor General Donald Verrilli a chance to regain the rhetorical offensive many said he lost on Tuesday. The questioning of his performance was so widespread that the White House issued a statement today defending him. Read more from the day at WCYB.com and get access to transcripts and legal analysis on SCOTUSblog


Jackson Federal Buildings Not Closing

After reports surfaced that the federal government is considering closing court facilities in four Tennessee cities, lawyers in Jackson became concerned about the future of two federal buildings and their occupants. To set the record straight, the Administrative Office of the U.S. Courts has confirmed that it is not considering closing the Ed Jones Federal Building or the U.S District Courthouse. What is under consideration is closure of a historic courtroom on the second floor of the Ed Jones building as well as the attached chambers, a jury room, probation office and pre-trial services. If closed, 15 people would be affected but none would lose their jobs. Other offices within the building, including the Bureau of Alcohol, Tobacco, Firearms and Explosives, Drug Enforcement Administration, IRS and U.S. Attorney's Office, would remain intact. The Jackson Sun has the story


Group Seeks Input on Local Rules

The Bench Bar Committee of the Tennessee Judicial Conference is conducting a survey on the use of local rules and is seeking input from lawyers across the state. Responses will remain anonymous and will assist the committee as it begins the process of examining the realities and practicalities with regard to the use of Local Rules of Practice. For more information contact Aaron J. Conklin with the Administrative Office of the Courts at aaron.conklin@tncourts.gov or (615) 741-2687 ext. 1620. Access the survey here


Shelby County Courts Go Paperless

The Shelby County Circuit and Chancery Court clerks’ offices will go to electronic filing of all court records in June. Attorneys will still be able to file a paper version of proceedings but clerks will scan the documents, and the court will go completely to e-filing at some point. Until then, the court will phase in use of the technology with the goal of a two-hour turnaround in approving filings during business hours. Attorneys will be able to file after business hours and will receive an email confirmation later after the office has reviewed the filing. Provided there are no errors in the e-filing, the court record will show the document was filed when it was sent in, instead of when it was reviewed. The Memphis Daily News has more


Free Legal Hotline, Disaster Resources Available Tomorrow

A toll-free legal assistance line will be available starting tomorrow (Thursday) at 8:30 a.m. for victims of recent storms and flooding in 10 counties that have been designated as federal disaster areas. The service, which allows callers to request the assistance of a lawyer, is a partnership between the Tennessee Bar Association, the Tennessee Alliance for Legal Services, the American Bar Association Young Lawyers Division and the Federal Emergency Management Agency. Victims in Bradley, Claiborne, Cumberland, DeKalb, Hamilton, Jackson, McMinn, Monroe, Overton and Polk counties may call (888) 395-9297 between 8:30 a.m. and 4:30 p.m. central time Monday through Friday to request free legal assistance. Messages can be left at any time.

In related news, FEMA has opened 10 disaster recovery centers in East Tennessee to help storm victims, and the state Department of Human Services  will begin making emergency food stamps available for victims tomorrow.


Judge Blocks Importation of Execution Drug

U.S. District Judge Richard Leon yesterday blocked the importation of a drug used in executions on grounds that the Food and Drug Administration ignored the law in allowing it into this country. Leon sided with lawyers for death row inmates in Tennessee, Arizona and California who want to keep out sodium thiopental because it is an unapproved drug manufactured overseas. The Obama Administration argued it had discretion to allow unapproved drugs into the United States. Read more from the AP in the News Sentinel


Track Legislation of Interest to Tennessee Attorneys

The 107th Tennessee General Assembly is now in session and the TBA has a number of tools to help you track the status of legislation. Watch TBA Today for regular news updates and follow the TBA Action List to track bills in the General Assembly that the TBA has a direct interest in -- those it has  initiated, taken a position on, or has a policy on. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community. Find complete TBA legislative resources


Additional Lawyers Suspended for Fee and IOLTA Violations

The Tennessee Supreme Court this week issued two new orders suspending Tennessee-licensed attorneys who did not pay their 2012 registration fee to the Board of Professional Responsibility and/or did not file a mandatory compliance statement that eligible client funds are held in accounts participating in the Interest on Lawyers' Trust Accounts (IOLTA) program. The lists reflect lawyers not in compliance as of their February birthdate. The orders entered earlier this month covered lawyers with January birthdates. See the updated lists


'West Memphis Three' Defendant, Attorney to Speak on Friday

Jason Baldwin, one of the so-called "West Memphis Three" has been a free man for about seven months. And to underscore how dramatically his life has changed since then, Baldwin says he plans to finish college and go to law school. He will get a jump-start on that plan Friday when he will be on campus at the University of Memphis School of Law to talk on the topic "Satanic Panic and the Defending of the West Memphis Three." Baldwin will appear with District Court Judge Dan Stidham of Greene County, Ark., (who was a defense attorney for one of the other boys in the case) for a presentation beginning at 3:50 p.m. in the school’s Wade Auditorium. Read more in the Memphis Daily News


 
 

Questions, comments: Email us at TBAToday@tnbar.org

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.


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