ABA Ethics Commission Issues Findings

The American Bar Association's Commission on Ethics 20/20 has made final recommendations about the impact of technology and globalization on the practice of law, as well as the structure for regulating U.S. lawyers. The ABA House of Delegates will consider a series of resolutions based on those recommendations when it meets in August. Discussion will center on lawyer mobility, legal process outsourcing and maintaining client confidences. Among the report’s main findings are that (1) lawyers must understand technology in order to provide clients with the competent and cost-effective services they deserve, and (2) globalization means that more clients are confronting legal problems that cross jurisdictional lines, requiring lawyers to cross real and virtual borders. The ABA Journal has more from the report

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.

00 - TN Supreme Court
03 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
09 - 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 Workers Comp Appeals

MELVIN HILL v. WHIRLPOOL CORPORATION ET AL.

Court: TN Workers Comp Appeals

Attorneys:

David T. Hooper, Brentwood, Tennessee, for the appellant, Whirlpool Corporation.

Steve C. Norris, Nashville, Tennessee, for the appellee, Melvin Hill.

Judge: KOCH

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tenn. Sup. Ct. R. 51. The employee filed a complaint in the Chancery Court for Coffee County seeking workers’ compensation benefits for his loss of hearing. Following a bench trial, the trial court concluded that the employee’s hearing loss was caused by his exposure to noise at the workplace. Accordingly, the trial court awarded the employee $68,759.73 in permanent partial disability benefits after concluding that the employee had a vocational disability of 78% to his hearing. The court also awarded the employee his reasonable and necessary medical expenses and discretionary costs. The employer raises two issues on this appeal: (1) whether the employee gave timely notice of his alleged injury; and (2) whether the employee failed to prove that his hearing loss was work-related. We hold that the trial court did not err in finding that the employee gave timely notice and that the employee proved his hearing loss was work-related. Accordingly, we affirm the trial court’s judgment.


KIEWIT-ACT, A JOINT VENTURE v. CHRIS JONES and CHRISTOPHER BRYON JONES v. KIEWIT-ACT, A JOINT VENTURE and ZURICH AMERICAN INSURANCE COMPANY

Court: TN Workers Comp Appeals

Attorneys:

Aubrey T. Givens, Nashville, Tennessee, for the appellant, Christopher Bryon Jones.

Mary Dee Allen, Cookeville, Tennessee, for the appellees, Kiewit-Act, A Joint Venture, and Zurich American Insurance Company.

Judge: DANIEL

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee has appealed the trial court’s denial of benefits for injuries to his right shoulder purportedly caused by a fall at work. The trial court denied the claim based on a finding that the employee’s testimony was not credible and that he failed to establish that his injury arose out of and in the course of his employment. The employee has also challenged the trial court’s award of $3,245.25 in discretionary costs to the employer. We affirm the trial court’s judgment.


LOJAC ENTERPRISES ET AL. v. LEONARD J. KANIPE

Court: TN Workers Comp Appeals

Attorneys:

Sarah H. Reisner and Michael L. Haynie, Nashville, Tennessee, for the appellants, Lojac Enterprises and Road Contractors Mutual Insurance Company.

Cynthia A. Wilson, Cookeville, Tennessee, for the appellee, Leonard J. Kanipe.

Robert E. Cooper, Jr., Attorney General & Reporter; William E. Young, Solicitor General; Alexander S. Rieger, Assistant Attorney General, for the appellee, Tennessee Department of Labor and Workforce Development.

Judge: DANIEL

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee was injured on the job and was able to return to his pre-injury position. His initial workers’ compensation claim was settled after a benefit review conference. As a part of his settlement he retained a right of reconsideration pursuant to Tennessee Code Annotated section 50-6-241(d)(1) (2008). Subsequently, he lost his employment. After an impasse at the benefit review conference, his employer filed this action to reconsider the employee’s benefits in the county where the injury occurred. The employee then filed a similar suit in the county of his residence. The employee filed a motion to dismiss the employer’s action, contending that Tennessee Code Annotated section 50-6-241(d)(1)(B)(iv) does not permit an employer to file a reconsideration action. The employer contended that the statute did permit filing of a reconsideration action by an employer or in the alternative, the statute was unconstitutional. The trial court in the employer’s case granted the motion to dismiss and found the statute constitutional. The employer has appealed. We affirm the judgment.


TN Court of Appeals

DENNIS ALLEN, ET AL. v. CITY OF MEMPHIS, TENNESSEE, ET AL.

Court: TN Court of Appeals

Attorneys:

Richard L. Winchester, Jr., Memphis, Tennessee, for the appellants, Dennis Allen, et al.

Allan J. Wade and Brandy S. Parrish, Memphis, Tennessee, for the appellee, City of Memphis, Tennessee, et al.

Judge: HIGHERS

Plaintiffs attempted to challenge annexation Ordinance 4321 via a complaint for declaratory judgment based upon alleged violations of the Open Meetings Act. Summary judgment was granted to the City of Memphis, but this Court reversed the grant and remanded for further proceedings. On remand, a trial was held and judgment entered in favor of the City. Because Plaintiffs failed to file a timely quo warranto action, which was the proper vehicle for Plaintiffs’ challenge, we dismiss Plaintiffs’ claims against the City and thus, we affirm the trial court’s upholding of Ordinance 4321.


BRIAN DALE, single; BRIAN LAWHORN and wife, PAMELA LAWHORN; and WILLIAM JENKINS and wife, ELAINE JENKINS v. B & J ENTERPRISES, ET AL.

Court: TN Court of Appeals

Attorneys:

David T. Black, Maryville, Tennessee, for the appellants, Brian Dale, single; Brian Lawhorn and wife, Pamela Lawhorn; and William Jenkins and wife, Elaine Jenkins.

Stephen E. Yeager, Christopher C. Field, Knoxville, Tennessee, for the appellees, B & J Enterprises, et al.

Judge: HIGHERS

Homeowners filed this lawsuit against various individuals and entities shortly after purchasing their homes, when they discovered that their properties are affected by numerous sink holes. Original defendants identified a surveyor as a comparative tortfeasor, and the homeowners amended their complaint to add the surveyor as a defendant. The surveyor filed a motion to dismiss, arguing that the homeowners’ claims were barred by Tennessee Code Annotated section 28-3-114, which provides that all actions to recover damages against any person engaged in the practice of surveying for any deficiency, defect, omission, error or miscalculation shall be brought within four years from the date the survey is recorded on the plat, or else be forever barred. The trial court granted the motion to dismiss. Plaintiffs were subsequently granted permission by the trial court and this Court to pursue an interlocutory appeal. Finding that section 28-3-114 governs the homeowners’ claims, we affirm.


CARLTON J. DITTO, v. SHAPIRO and KIRSCH, LLP, et al.

Court: TN Court of Appeals

Attorneys:

Carlton J. Ditto, Chattanooga, Tennessee, pro se.

Kenneth O. Fritz, Chattanooga, Tennessee, for the appellee, City of Chattanooga.

James C. Davey, Chattanooga, Tennessee, for the appellee, Hamilton County.

Judge: PER CURIAM

In this action, a Show Cause Order was issued by the Court on April 13, 2012, directing the pro se appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Appellant responded to the Show Cause and acknowledged that the Notice of Appeal was filed late. Accordingly, this Court is without jurisdiction to entertain the appeal and the appeal is Ordered dismissed, with the cost of the appeal assessed to Carlton J. Ditto.


ASHLEY HERMAN v. DANIEL HERMAN

Court: TN Court of Appeals

Attorneys:

Mary B. Langford, Nashville, Tennessee, for the appellant, Ashley Herman.

Michael K. Smith, Nashville, Tennessee, for the appellee, Daniel Herman.

Judge: BENNETT

Two years after the divorce, Father sought to be named primary residential parent due to Mother’s alleged deteriorating mental health. Father sought discovery of Mother’s mental health records. Mother objected. The trial court ordered production of the records for in camera inspection. Mother filed an appeal pursuant to Tenn. R. App. P. 10, which this court granted. We reverse the trial court’s order.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. JAMES DREW FREEMAN, JR.

Court: TN Court of Criminal Appeals

Attorneys:

William F. Roberson, Cookeville, Tennessee, for the appellant, James Drew Freeman, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Randall A. York, District Attorney General; and Gary McKenzie, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, James Drew Freeman, Jr., appeals from his White County Circuit Court jury conviction of second degree murder, claiming that the admission of the autopsy report via a witness who did not perform the autopsy violated his constitutional right to confront the witnesses against him, that the State engaged in improper and inflammatory closing argument, and that the evidence was insufficient to support his conviction. Discerning no error, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. RALEIGH KRISTOPHER FRYE

Court: TN Court of Criminal Appeals

Attorneys:

Doug Aaron (at trial and on appeal); and C. Brent Keeton (on appeal), Manchester, Tennessee, for the appellant, Raleigh Kristopher Frye.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; C. Michael Layne, District Attorney General; and Marla Holloway, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Coffee County Circuit Court jury convicted the defendant, Raleigh Kristopher Frye, of one count of third offense driving under the influence (“DUI”), and the trial court found the defendant guilty of violating the implied consent law. In this appeal, the defendant challenges the trial court’s denial of his motion to suppress evidence obtained following the stop of his vehicle and the sufficiency of the convicting evidence, claims that the trial court committed reversible error by permitting the State to exercise four peremptory challenges and by permitting the indictment for the implied consent violation to be taken to the jury room, and contends that the cumulative effect of the errors at trial entitles him to a new trial. Discerning no reversible error, we affirm.


RICKY THOMAS HUGHES v. DAVID SEXTON, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Ricky Thomas Hughes, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Ricky Thomas Hughes, appeals the Davidson County Criminal Court’s summary dismissal of his petition for writ of habeas corpus, arguing that he is entitled to habeas corpus relief from his especially aggravated robbery conviction because the victim died instantly rather than suffering a serious bodily injury. Following our review, we affirm the summary dismissal of the petition.


STATE OF TENNESSEE v. LASHAWN JOHNSON

Court: TN Court of Criminal Appeals

Attorneys:

Nathan Moore, Nashville, Tennessee, for the appellant, LaShawn Johnson.

Robert E. Cooper, Jr., Attorney General & Reporter; Meredith Devault, Senior Counsel; Victor S. Johnson, III, District Attorney General; Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

A jury convicted LaShawn Johnson (“the Defendant”) of aggravated burglary and attempted theft of property valued at $1,000 or more but less than $10,000. On appeal, he raises two issues: (1) whether the evidence was sufficient to support his convictions; and (2) whether the trial court erred in ruling that the Defendant’s prior theft convictions would be admissible should he testify. After a careful review of the record, we affirm the judgments of the trial court.


JOSEPH S. LUCAS, JR. v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Ernest W. Williams, Franklin, Tennessee, for the appellant, Joseph S. Lucas, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Kim Helper, District Attorney General; and Mary K. White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Joseph S. Lucas, Jr., appeals the Williamson County Circuit Court’s denial of post-conviction relief from his guilty plea to rape of a child and resulting twenty-five year sentence. On appeal, he contends that (1) his guilty plea was not voluntarily and knowingly entered, (2) trial counsel rendered ineffective assistance by failing to preserve a suppression issue for appeal, failing to address waiver of the Petitioner’s ex post facto rights during sentencing, and failing to prepare witnesses for the sentencing hearing, and (3) appellate counsel rendered ineffective assistance by failing to include transcripts of the suppression hearing and the guilty plea hearing in the record on direct appeal, failing to request a rehearing, and failing to argue that the Petitioner’s sentence constituted cruel and unusual punishment in violation of the Eighth Amendment. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. JEFFREY WADE OSBORNE

Court: TN Court of Criminal Appeals

Attorneys:

William P. Holloway (on appeal); and Sandra Wells (at trial), Franklin, Tennessee, for the appellant, Jeffrey Wade Osborne.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Kim R. Helper, District Attorney General; and Laura Kate Yaeger, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Jeffrey Wade Osborne, appeals his Williamson County Circuit Court bench trial conviction of felony failure to appear, see T.C.A. § 39-16-609, arguing that his trial should not have occurred while competency proceedings were still pending and that the trial court erroneously denied a motion for judgment of acquittal made at the close of the State’s proof. Discerning no error, we affirm the judgment of the trial court.


STATE OF TENNESSEE V. MICHAEL L. POWELL and RANDALL S. HORNE

Court: TN Court of Criminal Appeals

Attorneys:

J. Liddell Kirk (on appeal) and Mary Ward (at trial), Knoxville, Tennessee, for the appellant, Michael L. Powell.

Robert L. Vogel (on appeal) and Vanessa Lemons (at trial), Knoxville, Tennessee, for the appellant, Randall S. Horne.

Robert E. Cooper, Jr., Attorney General & Reporter; Cameron L. Hyder, Assistant Attorney General; Randall E. Nichols, District Attorney General; and TaKisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

A jury convicted Michael L. Powell and Randall S. Horne (“the Defendants”) each of one count of aggravated burglary; six counts of aggravated robbery; four counts of especially aggravated kidnapping; two counts of aggravated assault; one count of employing a firearm during the commission of a dangerous felony; and one count of possession of a firearm with intent to go armed during the commission of a dangerous felony. The trial court subsequently merged several convictions of each Defendant and, after a hearing, sentenced each Defendant to an effective term of twenty-four years. In this consolidated appeal, both Defendants challenge the validity of their convictions of especially aggravated kidnapping. Horne also challenges the sufficiency of the evidence on all of his convictions, and Powell also challenges the trial court’s imposition of partial consecutive sentencing. Upon our careful review of the record and the recent Tennessee Supreme Court decision in State v. White, __ S.W.3d __, 2012 WL 758916 (Tenn. 2012), we hold that the Defendants’ convictions of especially aggravated kidnapping must be reversed and remanded for a new trial. We also are constrained to find plain error with respect to the trial court’s instructions to the jury on the firearms offenses, and we must reverse those convictions and remand them for a new trial. Therefore, Powell’s challenge to his consecutive sentence is rendered moot. The Defendants’ remaining convictions and sentences are affirmed.


STATE OF TENNESSEE v. CHRISTOPHER SCHURMAN

Court: TN Court of Criminal Appeals

Attorneys:

Aaron C. Hall (on appeal); Gerald L. Melton, District Public Defender; Jeffrey S. Burton and Sean Williams, Assistant District Public Defenders (at hearing), Murfreesboro, Tennessee, for the appellant, Christopher Schurman.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; Trevor Lynch and Thomas Parkerson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Christopher Schurman, appeals the trial court’s revocation of his probation, arguing that he is entitled to credit for time served on probation under the supervision of community corrections and that the underlying probation revocation agreement violated his right to due process. Finding no error, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. KEESHA P. WASHINGTON

Court: TN Court of Criminal Appeals

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal), and Lynda F. Jones, Nashville, Tennessee (at trial), for the appellant, Keesha P. Washington.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Kim Helper, District Attorney General; and Mary Katharine White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Keesha P. Washington, was found guilty by a Williamson County Circuit Court jury of aggravated arson, a Class A felony. See T.C.A. § 39-14-302 (2010). She was sentenced as a Range I, violent offender to eighteen years’ confinement. On appeal, the Defendant contends that the trial court committed plain error by not holding a hearing to ensure that she knowingly and voluntarily waived her right not to testify and that her sentence is excessive. We affirm the judgment of the trial court.


Memphis Courts Propose E-Filing Rules

The 30th Judicial District Circuit Court and Chancery Court have proposed amendments to their local rules to allow for e-filing. Comments are due by May 18 at 4:30 p.m. Central. The proposals will take effect June 25 unless the court amends, modifies or withdraws them. Lawyers may submit comments on the chancery court rules to Clerk & Master Donna Russell at donna.russell@shelbycountytn.gov or in writing to Russell at the Chancery Court of Shelby County, 140 Adams Ave., Room 308, Memphis 38103. Comments on the circuit court rules should be submitted to Van Sturdivant at van.sturdivant@shelbycountytn.gov or in writing to Clerk Jimmy Moore, Circuit Court of Shelby County, 140 Adams Ave., Room 320, Memphis 38103.


Huff Featured on ADR Magazine Cover

Nashville lawyer and mediator Marnie Huff is featured on the cover of the Spring 2012 issue of the ABA’s Dispute Resolution Magazine, which focuses on women in ADR. Huff serves as an elected member of the ABA Section of Dispute Resolution Council and is past chair of the TBA Dispute Resolution Section. (ABA membership is required to access the magazine.)


Memphis Lawyer Finds Unique Path to the Law

After spending three years in Washington, D.C., as a writer and editor focused on the pharmaceutical industry, Memphis native Adam Eckstein realized that "lawyers could accomplish a lot in their day-to-day activity" and decided to pursue a career in the law. He earned a degree from the University of Cincinnati College of Law and returned to Memphis to clerk for Tennessee Supreme Court Justice Janice Holder. After his clerkship he accepted an offer to join Martin, Tate, Morrow & Marston because firm lawyers seemed "thrilled" to be there and "genuinely excited" about their work. He hopes it will be a place to grow personally and professionally. Read more about his journey in the Memphis Daily News


Waller Lansden Names New Leaders

Waller Lansden Dortch & Davis recently announced that partner Miranda K. Kelley has been named chair of "Women of Waller," an internal initiative that provides female attorneys with opportunities for mentoring, community service, work-life balance and leadership development, while MaryEllen Sullivan Pickrell has been named Professional Development Partner. In this new position, she will oversee a firm-wide leadership training program. Read more on the firm's website


TBALL Takes Civics to Schools

Members of the TBA’s Leadership Law class today took civics lessons to six Nashville area high schools as part of a program on Issues in Community Leadership. The class used materials provided by the Memphis Bar Association’s Law Rules program, a campaign to teach the importance of the American legal system to schools, businesses and civic groups. MBA President Gary Smith spoke on the campaign before the group split up to visit the schools.


House Passes Funding for LSC

The U.S. House of Representatives today approved $328 million in FY 2013 for the Legal Services Corporation (LSC) after turning back two amendments that would have further cut or eliminated funding for the agency. One of those amendments, offered by Rep. Austin Scott, R-Ga., would have eliminated all funding. See how Tennessee lawmakers voted on the amendment


House Passes Rep. Black's Plan to Block Immigration Law Challenges

The U.S. House of Representatives passed an amendment offered by Rep. Diane Black, R-Tenn., yesterday that would prevent the Obama administration from using funding in the FY 2013 budget to challenge state immigration laws in court. Opponents of the amendment said it violates separation of powers because it dictates which positions the executive branch is allowed to argue in court. Two weeks ago, Arizona’s controversial immigration law made its way to the U.S. Supreme Court. The Justice Department said that law conflicts with federal immigration policy. Five other states have passed similar laws, and the Justice Department has filed suit against three of them: Alabama, South Carolina and Utah. The Tennessean has more


Law Day Event Set for Cookeville

The Upper Cumberland Young Lawyers Association will celebrate Law Day with a dinner in Cookeville on May 15 at 6 p.m. The event will take place at John’s Place at 11 Gibson Ave. The featured speaker will be Dr. Michael Birdwell, a history professor at Tennessee Tech University. He will discuss how John’s Place became instrumental in building race relations in Cookeville. John McClellan, the late owner of John’s Place, was the first African American elected to a public office in Putnam County. To RSVP to the dinner, contact Rachel Moses at rmoses@las.org or (931) 528-7436.


NBA Plans Memorial Service

The Nashville Bar Association will hold its spring memorial service May 24 at 11 a.m. in the Downtown Presbyterian Church. Chancellor Russell Perkins will preside and a reception at the church will follow. Attorneys to be memorialized are: Judge Elmer Davies, Marilyn Devine, James (Jim) Hill, Hugh Howser, Alfred Knight III, Harold Levinson, James Meyer, John Roberts, Judge Leon Ruben, Robert (Bob) Sullivan and Sonny West. Beginning this year, the NBA will hold two memorial services per year – one in May and one in November. The services honor the memory of Nashville lawyers and judges who have passed away during the preceding period.


 
 

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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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