Judicial Selection Deferred to Next Week

Legislative action this week on judicial selection issues ended in almost as big a muddle as it began.

Today, Sen. Brian Kelsey, R-Collierville, deferred action to Monday night on his constitutional amendment, SJR 710, which would remove merit panels from the process and replace it with Washington-style confirmation when selecting and retaining judges in Tennessee.

Meanwhile, the House seems set to pass only the House counterpart to the Kelsey plan and not move forward with the two resolution strategy that seemed to be emerging at the end of last week. The House counterpart to Sen. Mark Norris’s resolution (SJR 183), which was successful in the Senate on Monday night, will not see consideration in the House Finance Committee until Tuesday at the earliest.

Lost in all of the mêlée is any consideration of how the next election for all judges -- which the constitution requires to be held in August 2014 -- will be conducted. The TBA and allies in the business, civic and legal communities remain committed to stability and consistency, which the current process offers while the debate on the need for and the best outline of future changes takes place.

Contact with lawmakers -- and as importantly, feedback with the TBA on that contact -- are important ways each lawyer can contribute to the future of a fair and impartial court system.

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
03 - 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


Court: TN Supreme Court


James F. Logan, Jr., Cleveland, Tennessee, for the appellant, Betty Saint Rogers.

David F. Hensley, Chattanooga, Tennessee, for the appellees, Louisville Land Company and Joe V. Williams, III.

Judge: LEE

In this appeal, the defendants seek a review of the trial court’s decision to award the plaintiff compensatory and punitive damages based on the tort of intentional infliction of emotional distress arising out of inadequate maintenance of the cemetery where the plaintiff’s son was buried. To recover damages for intentional infliction of emotional distress, a plaintiff must prove that the defendant’s conduct was either intentional or reckless, was so outrageous that it is not tolerated by civilized society, and caused a serious mental injury to the plaintiff. The primary question presented is whether the plaintiff in this action proved the requisite serious mental injury to support the trial court’s award of compensatory and punitive damages. We hold that the plaintiff’s proof was deficient. The judgment of the Court of Appeals is affirmed.

TN Court of Appeals


Court: TN Court of Appeals


Phillip L. Davidson, Nashville, Tennessee, for the appellant, Sandi D. Jackson.

Dixie W. Cooper and Brian P. Manookian, Nashville, Tennessee, for the appellees, HCA Health Services of Tennessee, Inc., d/b/a Centennial Medical Center and d/b/a/ Hendersonville Medical Center.

Phillip North, J. Eric Miles and Lauren Smith, Nashville, Tennessee, for the appellees, Joseph Magoun, M.D., Claude L. Ferrell, L.D., Jonathan Grooms, CRNA, Anesthesia Medical Group, P.C., Louis Brusting, III, M.D., and the Heart and Vascular Team, P.L.L.C.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor General; and Stephanie A. Bergmeyer, Assistant Attorney General, for the intervenor, State of Tennessee.


This appeal arises from the dismissal of a medical malpractice action due to the plaintiff’s failure to provide a certificate of good faith. All defendants filed Tennessee Rule of Civil Procedure 12.02(6) motions to dismiss the medical malpractice action based upon Tennessee Code Annotated § 29-26-122(a), which provides: “If the certificate is not filed with the complaint, the complaint shall be dismissed, as provided in subsection (c), absent a showing that the failure was due to the failure of the provider to timely provide copies of the claimant’s records requested as provided in § 29-26-121 or demonstrated extraordinary cause.” Because the plaintiff failed to make a showing that the omission was due to the failure of any healthcare provider to provide records or demonstrate extraordinary cause, the trial court granted the motions and dismissed the case. The plaintiff asserts on appeal that the statutory requirement violates the separation of powers clause and that it violates the due process and equal protection guarantees of the constitution of Tennessee by treating plaintiffs in suits for medical negligence differently from plaintiffs in other civil litigation and by allegedly restricting access to the courts. Finding no constitutional infirmities, we affirm.


Court: TN Court of Appeals


R. Price Harris, Memphis, Tennessee, for the appellant, Nashville Entertainment, Inc.

William Michael Safley, Deputy Director of the Department of Law of the Metropolitan Government of Nashville and Davidson County, J. Brooks Fox, and Christopher M. Lackey, Assistant Metropolitan Attorneys, for the appellee, Metropolitan Sexually Oriented Business Licensing Board.


A sexually oriented business appeals from the trial court’s denial of relief sought in a common law petition for writ of certiorari for review of the Metropolitan Sexually Oriented Business Licensing Board’s decision finding the business in violation of ordinances governing sexually oriented businesses and for which it imposed a 31-day suspension of its license. Finding that the Board did not act arbitrarily or capriciously, that the Board’s decision was supported by substantial and material evidence, and that the business’s due process rights were not violated, we affirm the trial court.


Court: TN Court of Appeals


William Kennerly Burger, Murfreesboro, Tennessee, for the appellant, Estate of Fred R. Hobbs.

John H. Baker III, Murfreesboro, Tennessee, for the appellee, Estate of Thomas R. Ralston.


The defendant appeals from an Order of Sale of real property, which was sold pursuant to Tennessee Rule of Civil Procedure 69.07 to satisfy a money judgment against the defendant. We have concluded that the defendant waived many of the issues raised and, as for its issue challenging the sufficiency of the notice of the sale, the sale may not be set aside on this ground because Rule 69.07(4) expressly provides that bona fide purchasers for value at the sale shall take free of any defects concerning notice. The purchaser here is a bona fide purchaser for value; thus, we affirm.

TN Court of Criminal Appeals


Court: TN Court of Criminal Appeals


Joseph A. McClusky (on appeal); and William Massey, Lorna McClusky, and Lauren Fuchs (at trial), Memphis, Tennessee, for the appellant, Michael Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Alanda Dwyer and Abby Wallace, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Michael Clark, was convicted by a Shelby County Criminal Court jury of voluntary manslaughter, a Class C felony, and sentenced to fifteen years in the Department of Correction, to be served consecutively to another sentence. On appeal, he argues that the evidence was insufficient to sustain his conviction, the trial court erred in allowing certain photographs into evidence, and the trial court imposed an excessive sentence. After review, we affirm the judgment of the trial court.


Court: TN Court of Criminal Appeals


Amber F. Sauber, Brownsville, Tennessee, for the appellant, Cornelius Phillips.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; D. Michael Dunavant, District Attorney General; and Julie Pillow, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Cornelius Phillips, pled guilty in the Circuit Court of Lauderdale County in two separate cases to two counts of aggravated burglary, two counts of theft of property over $1000, and one count of attempted aggravated burglary, for which he received an effective sentence of sixteen years in the Department of Correction. On appeal, he argues that the trial court erred by failing to consider applicable mitigating factors and the principles of sentencing in setting the lengths of the sentences and by inappropriately ordering consecutive sentencing. Following our review, we affirm the judgments of the trial court.


Court: TN Court of Criminal Appeals


Myers N. Massengill, II, Bristol, Tennessee, for the appellant, Jeffery Ratliff aka Jeffery Absher.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Deputy District Attorney General, for the appellee, State of Tennessee.


The petitioner, Jeffery Ratliff, appeals the Sullivan County Circuit Court’s denial of his petition for post-conviction relief. The petitioner stands convicted of six counts of rape of a child, six counts of incest, one count of especially aggravated sexual exploitation of a minor, and one count of aggravated sexual battery. He is currently serving an effective sentence of one hundred twelve years in the Department of Correction. On appeal, he contends that the post-conviction court erred in denying his petition because: (1) he was denied his right to the effective assistance of counsel; (2) his convictions violate the principle of double jeopardy; and (3) the State’s Notice of Intent to Seek Enhanced Punishment failed to comply with statutory requirements. Following review of the record, we conclude that there was no error in the post-conviction court’s decision and affirm the denial of relief.


Court: TN Court of Criminal Appeals


Stephen Bush, District Public Defender; Phyllis Aluko (on appeal) and Jane Sturdivant and Sanjeev Memula (at trial), Assistant Public Defenders, for the appellant, William Robinson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and David Zak and Marlinee Iverson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, William Robinson, was convicted by a Shelby County Criminal Court jury of voluntary manslaughter and was sentenced by the trial court to five years, suspended to nine months in the county workhouse with the remainder of the time on supervised probation. His sole issue on appeal is whether the evidence was sufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

Senate Committee Approves Fowlkes Nomination

The U.S. Senate Judiciary Committee this morning (Thursday) approved by voice vote the nomination of Memphis Criminal Court Judge John T. Fowlkes Jr. for the vacant federal judgeship in the Western District of Tennessee. The next step is a floor vote on the confirmation. The Senate leadership is working through a compromise plan that allows floor votes on several federal judges previously approved by the committee, but Fowlkes is not on that list. The Commercial Appeal has the story

House GOP Pushing Med Mal as Budget Fix

Republican leaders in the U.S. House of Representatives have revived a medical malpractice bill that caps non-economic damages at $250,000 and limits contingency fees as a way to reduce the federal budget and avoid cuts in defense spending. The House passed the bill in March, even though President Barack Obama said he would veto it and House Democrats say it will be dead on arrival in the Senate. But the bill was revisited during budget discussions this week after the Congressional Budget Office estimated it would reduce federal healthcare costs. The Blog of Legal Times reports

House Subcommittee Approves $328M for LSC

The U.S. House of Representatives Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies approved $328 million for the Legal Services Corporation (LSC) in Fiscal Year 2013. Earlier this week, the subcommittee’s counterpart in the Senate approved $402 million for the agency. Read more from the LSC

Bill Directs AOC to Study Special Vet Courts

Tennessee veterans suffering post-traumatic stress disorder and other psychological problems stemming from military service could soon have their own special courts should they find themselves facing prosecution in the state’s criminal justice system. The state House unanimously passed a bill today, HB 3394/SB 3222, which directs the Administrative Office of the Courts to study whether it is feasible for the state to establish specialized courts for veterans. The bill passed the Senate unanimously on April 12. TN Report has more

Prosecutor: Cost was Factor in West Memphis 3 Deal

Speaking at the University of Arkansas at Little Rock’s Bowen School of Law, Scott Ellington – the former prosecuting attorney of the West Memphis Three – said that future legal costs of a retrial factored into his decision to agree to a plea deal with Damien Echols, Jason Baldwin and Jessie Miskelley. Ellington also said he was worried what an acquittal could cost the state, including potential damages the men could seek for false imprisonment. Ellington appeared at the school as part of a daylong symposium on the case. Read more in the Memphis Business Journal

Organizations Can't Be Sued For Torture

The U.S. Supreme Court has ruled unanimously that organizations cannot be sued for torture under the Torture Victim Protection Act. The decision came in the case of Azzam Mohamad Rahim, who allegedly died at the hands of the Palestinian Authority and the PLO. His family argued that the law, which authorizes suits against "individuals" who commit acts of torture, also applied to organizations. The court disagreed, saying there was no indication Congress intended such an interpretation. NPR has the story

Judges May Consider New Patent Evidence

The U.S. Supreme Court ruled unanimously yesterday that federal judges may consider previously unsubmitted evidence when inventors challenge rejection of their patent application by the Patent and Trademark Office (PTO). The case arose when an inventor challenged a rejection with evidence that he had not provided previously to the PTO. The agency had sought dismissal of the case. Writing for the court, Justice Clarence Thomas said there were no additional evidentiary restrictions to be placed on patent application challenges. Read more from Business Week

Nashville Lawyer Suspended

The Tennessee Supreme Court on April 18 suspended Nashville lawyer Matthew Fort Mayo for one year, retroactive to January 31, 2011. However, Mayo remains suspended for noncompliance with CLE requirements and for failure to file certification that funds are held in an IOLTA account. The court found that Mayo failed to respond to a complaint of misconduct, failed to timely file documents, failed to timely file or properly serve a brief, and failed to appear for a client’s sentencing hearings. Download the BPR notice

Litigation Associate Needed in Nashville

A small Nashville law firm is seeking a full time associate attorney for a litigation position. Experience in family law, workers compensation or personal injury is required. Please send resume to P.O. Box 128498, Nashville, TN 37212. Compensation is salary plus bonus and benefits. Learn more on JobLink

Summer Intern Positions in Nashville

The Tennessee Department of Treasury has two paid summer intern positions available in its legal division in Nashville. Candidates must be high school graduates or hold a GED. Current enrollment in law school or an accredited paralegal studies program is preferred. Interested applicants should email their resumes to Treasury.Resumes@tn.gov by April 27. Download the job description

Law Career Event Planned at UM

Students from area high schools, colleges and youth organizations will get an opportunity to learn about the legal profession April 24 at “Legal Careers Forum: The ABCs – Advocates, Barristers and Counselors.” The event, part of The Memphis Challenge Inc.’s expanding series of career exploration events, will be held at 4 p.m. in the University of Memphis School of Law’s Wade Auditorium. The event will include a tour of the law school, a panel discussion and a Q&A session. Confirmed speakers include Charles Blatteis, managing attorney of Blatteis Law Firm; Shelby County Circuit Court Judge Gina Higgins; Tennessee Bureau of Investigation Assistant Director Richard Moore; and law school Dean Kevin Smith. The event is free, but online registration is required.


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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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