CLE Blast on Tap for Thursday

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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.

02 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
10 - 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

DONNA CLARK v. SPUTNIKS, LLC ET AL. AND LEONARD GAMBLE v. SPUTNIKS, LLC ET AL.

Court: TN Supreme Court

Attorneys:

Russell E. Reviere and Jonathan D. Stewart, Jackson, Tennessee, for the appellant, QBE Insurance Company.

William B. Jakes, III, and Mary Martin Schaffner (at trial) Nashville, Tennessee; Joe Dalton, Jr., Hendersonville, Tennessee, for the appellees, Donna Clark and Leonard Gamble.

Judge: LEE

In these consolidated cases, the primary issue is whether there is liability insurance coverage for the plaintiffs’ injuries resulting from an altercation on the premises of the insured’s bar and restaurant. The insurer denied coverage and declined to defend the insured based on its determination that there was no coverage under the terms of the policy. We hold that based on the clear terms of the policy agreement, there is no liability coverage because the incident arose from an assault and battery, which was an excluded cause, and because there is no nonexcluded concurrent cause to provide coverage. We further hold that estoppel by judgment does not apply to collaterally estop the insurer from arguing the lack of coverage. The judgment of the trial court is reversed.


IN RE: ESTATE OF ARDELL HAMILTON TRIGG

Court: TN Supreme Court

Attorneys:

Henry D. Fincher, Cookeville, Tennessee, for the appellant, Estate of Ardell Hamilton Trigg.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and L. Vincent Williams, Deputy Attorney General, for the appellee, Tennessee Bureau of TennCare.

Judge: KOCH

In this case, we address the following two matters: (1) the proper procedure for obtaining appellate review of a judgment of a probate court created by private act upholding a claim filed by the Bureau of TennCare against the estate of a TennCare recipient and (2) the right of TennCare to obtain reimbursement for properly paid TennCare benefits from real property owned by the recipient at the time of her death. After the decedent’s will was admitted to probate in the Putnam County Probate Court, TennCare filed a claim against her estate seeking reimbursement for services provided through the TennCare program. The decedent’s personal representative filed an exception to this claim. After the probate court upheld TennCare’s claim, the estate appealed to the Circuit Court for Putnam County. The circuit court determined that the decedent’s real property was not subject to TennCare’s claim, and TennCare appealed to the Court of Appeals. The Court of Appeals held that the circuit court lacked subject matter jurisdiction over the appeal from the probate court and that the appeal should have been filed with the Court of Appeals. Accordingly, it vacated the circuit court’s judgment and affirmed the judgment of the probate court. In re Estate of Trigg, No. M2009- 02107-COA-R3-CV, 2011 WL 497459, at *3 (Tenn. Ct. App. Feb. 9, 2011). We granted the estate’s application for permission to appeal to determine whether the circuit court had subject matter jurisdiction over the estate’s appeal from the probate court’s order upholding TennCare’s claim and whether real property owned by the recipient at the time of her death is subject to TennCare’s claims. We have determined that the circuit court lacked jurisdiction over the estate’s appeal from the probate court’s judgment regarding TennCare’s disputed claim and that the real property owned by the decedent at the time of her death is subject to TennCare’s claims for reimbursement.


TN Court of Appeals

KENNETH E. DIGGS v. LASALLE NATIONAL BANK ASSOCIATION, ET AL.

Court: TN Court of Appeals

Attorneys:

Kenneth E. Diggs, Memphis, Tennessee, for the appellant, pro se.

Donna L. Roberts and Lauren Paxton Roberts, Nashville, Tennessee, for the appellees, Bank of America, N.A. and Bank of America Corporation.

Byron Norman Brown, IV, Memphis, TN, and James Campbell Bradshaw, Nashville, Tennessee, for the appellees, EMC Mortgage Corporations and JP Morgan & Chase Co.

Judge: STAFFORD

This is an appeal from the grant of a motion to dismiss for failure to state a claim upon which relief can be granted. The trial court found that the Appellant’s claim sounded in fraud. However, the trial court ruled that the Appellant failed to plead fraud with particularity and dismissed. Affirmed.


IN RE: EMILY N. I., ET. AL.

Court: TN Court of Appeals

Attorneys:

J. Michael Kerr, Jefferson City, Tennessee, for the appellant, Teresa O.

Rebecca C. Vernetti, Sevierville, Tennessee, for the appellant, Harrison O.

Robert E. Cooper, Jr., Attorney General and Reporter, and Marcie E. Greene, Assistant Attorney General, General Civil Division, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

Charles Scott Justice, Jefferson City, Tennessee, guardian ad litem for the minors, Emily N. I., Preston R. P. O., and Jeffery J. R. O.

Judge: MCCLARTY

This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate the parental rights of Teresa O. and Harrison O.1 Teresa O. was the mother of three children, while Harrison O. was the father of two of those children. The trial court terminated Teresa O.’s parental rights to all three children and terminated Harrison O.’s parental rights to his two children. Teresa O. and Harrison O. appeal. We affirm the decision of the trial court.


JONATHAN LAWRENCE v. STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

Brian T. Jackson, Nashville, Tennessee, for appellant, Jonathan Lawrence.

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

Judge: OGLE

The Petitioner, Jonathan Lawrence, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his convictions of two counts of especially aggravated kidnapping, one count of aggravated kidnapping, three counts of aggravated robbery, and resulting effective sentence of twenty-five years in confinement. On appeal, the Petitioner contends that he did not plead guilty knowingly, intelligently, and voluntarily. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the post-conviction court.


FRANKLYN NATHANIEL MORGAN v. KANDI TONYELLE MORGAN

Court: TN Court of Appeals

Attorneys:

Sandra Lee Stanbery-Foster, Greeneville, Tennessee, for the appellant, Kandi Tonyelle Morgan.

Brent Hensley, Greeneville, Tennessee, for the appellee, Franklyn Nathaniel Morgan.

Judge: SUSANO

Franklyn Nathaniel Morgan (“Father”) filed this divorce action after his spouse, Kandi Tonyelle Morgan (“Mother”), was hospitalized because she had ingested an overdose of medication. Father was given temporary custody of the parties’ daughter who was four years old when the parties separated. Mother then obtained temporary custody based on proof that the Father allowed the marital residence to become filthy and dangerous. After a hearing, the court entered a temporary parenting plan based on “week-about” parenting. After a trial, the court made Mother the primary residential parent during the school year and Father the primary residential parent during the summer. The court also awarded Father parenting time during the spring break and two-thirds of the Christmas break. The court further ordered that Father would pick up the child after school and exercise parenting time from then until he went to work at 6:00 p.m. on his workdays, or until 7:00 p.m., when Mother got off from work on her workdays. Mother had 252 parenting days and Father had 113. The court set Father’s child support according to the Child Support Guidelines (“the Guidelines”), but allowed Father a downward deviation of $30 per month based on the extra parenting time after school, which the court found was not taken into account by the Guidelines. Mother appeals. We modify the judgment to designate Mother the sole primary residential parent. In all other respects, the judgment is affirmed.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. BRYAN KEITH BRADFORD

Court: TN Court of Criminal Appeals

Attorneys:

Clifford K. McGown (on appeal), Waverly, Tennessee; and Tom W. Crider (at trial and of counsel on appeal), Trenton, Tennessee, for the appellant, Bryan Keith Bradford.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Garry Brown, District Attorney General; and Stephanie Hale and Larry Hardister, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Bryan Keith Bradford, appeals from his conviction upon his guilty plea for robbery, a Class C felony. See T.C.A. § 39-13-401 (2010). The trial court sentenced the Defendant to three years’ incarceration as a Range I, standard offender. On appeal, he contends that the trial court erred in denying him a community corrections sentence. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. RACHEL LEIGH JESSIE

Court: TN Court of Criminal Appeals

Attorneys:

Mike Mosier, Jackson, Tennessee, for the appellant, Rachel Leigh Jessie.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Hansel Jay McCadams, District Attorney General; and R. Adam Jowers, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Rachel Leigh Jessie, was indicted by the Carroll County Grand Jury in a sevencount indictment for two counts of selling Methylendioxymethamphetamine (MDMA or “Ecstasy”), a Schedule 1 controlled substance; one count of selling 13.5 grams of marijuana; and four counts of selling counterfeit MDMA. Defendant pleaded guilty to two counts of selling MDMA, both Class B felonies, and one count of selling marijuana, a Class E felony, with the manner and length of her sentence to be determined by the trial court. The remaining charges were dismissed. Following a sentencing hearing, the trial court sentenced Defendant as a standard offender to eight years in community corrections after serving one year incarcerated for each of the two counts of selling MDMA, and two years in community corrections after serving 180 days incarcerated for selling marijuana. Defendant’s sentences were ordered to be served concurrently with each other. Defendant appeals her sentences and asserts that the trial court erred by denying a sentence of full probation. Finding no error, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. MAURICE JOHNSON

Court: TN Court of Criminal Appeals

Attorneys:

Harry E. Sayle, III, Memphis, Tennessee; Stephen C. Bush, District Public Defender; and Jim N. Hale, Jr., Assistant Public Defender, for the appellant, Maurice Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy P. Weirich, District Attorney General; and Alanda H. Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Maurice Johnson, was convicted by a Shelby County jury of rape, a Class B felony. He was subsequently sentenced, as a Range II offender, to twenty years in the Department of Correction, to be served at 100%. On appeal, he raises the single issue of sufficiency of the evidence. Following review of the record before us, we find no error and affirm the conviction.


LESLIE RAYDELL JONES v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Andrew Jackson Dearing, III, Assistant Public Defender, for the appellant, Leslie Raydell Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Leslie Raydell Jones, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing he received the ineffective assistance of counsel. After review, we affirm the denial of the petition.


STATE OF TENNESSEE v. BARRY D. MCCOY

Court: TN Court of Criminal Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; John Carney, District Attorney General; and Kimberly Lund, Assistant District Attorney General, for the appellant, State of Tennessee.

Greg Smith (on appeal); and Edward Dewerff (at hearing), Clarksville, Tennessee, for the appellee, Barry D. McCoy.

Judge: WITT

In this interlocutory appeal by the State, the State challenges the trial court’s ruling denying the State’s request to admit into evidence at trial the video-recorded interview of the minor victim pursuant to newly-enacted Tennessee Code Annotated section 24-7-123. Because the trial court erred by reaching the constitutional question before it was ripe for review, the ruling of the trial court is vacated, and the case is remanded for further proceedings.


STATE OF TENNESSEE v. BRANDI NICHOLE MILLER

Court: TN Court of Criminal Appeals

Attorneys:

Richard H. Dunavant, Assistant Public Defender, for the appellant, Brandi Nichole Miller.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Beverly J. White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Brandi Nichole Miller, appeals the revocation of her probation and reinstatement of her original twelve-year sentence, arguing: (1) that the trial court abused its discretion by revoking her probation; (2) that her due process rights were violated by the fact that the trial court relied on grounds that had formed the bases for her prior probation revocations and were not alleged in the instant revocation warrant; and (3) that the trial court erred by ordering her to serve sentences that had already expired. Following our review, we affirm the judgment of the trial court revoking the defendant’s probation and reinstating her twelve-year sentence in the Department of Correction.


STATE OF TENNESSEE v. BRUCE TURNER

Court: TN Court of Criminal Appeals

Attorneys:

Stephen C. Bush, District Public Defender; and Barry W. Kuhn (on appeal), Sanjeev Memula (at trial), and James Green (at trial), Assistant District Public Defenders, Memphis, Tennessee, for the appellant, Bruce Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton and Brooks Yelverton, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Bruce Turner, was convicted by a Shelby County Criminal Court jury of rape of a child, a Class A felony. See T.C.A. § 39-13-522 (2010). He was sentenced to twentyfive years’ confinement and community supervision for life. On appeal, he contends (1) that he did not receive a unanimous jury verdict and that the evidence is insufficient to support his conviction; (2) that the trial court erred by allowing the victim to testify about a sexual assault that occurred in Louisiana; (3) that the trial court erred by allowing the victim’s mother to testify that she saw a handgun in the Defendant’s bedroom; and (4) that the trial court erred by allowing the victim’s mother to refer to herself as a hostage. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. ROBERT WIGGINS

Court: TN Court of Criminal Appeals

Attorneys:

Stephen C. Bush, Tony N. Brayton (on appeal), Nigel Lewis and William Yonkowski (at trial), Memphis, Tennessee, for the appellant, Robert Wiggins.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; Thomas Henderson, David Zak, Betsy Weintraub, and Anita Spinetta, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Shelby County Criminal Court jury convicted the appellant, Robert Wiggins, of aggravated robbery, and the trial court imposed a sentence of eighteen years and six months in the Tennessee Department of Correction. On appeal, the appellant contends that the evidence is insufficient to sustain his conviction and that the trial court erred by allowing hearsay testimony regarding the perpetrator’s cellular telephone number. Upon review, we affirm the judgment of the trial court.


DELAWRENCE WILLIAMS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Danny H. Goodman, Jr., Tiptonville, Tennessee, for the appellant, Delawrence Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Delawrence Williams, appeals the post-conviction court’s denial of his petition alleging ineffective assistance of counsel on the grounds that: (1) prior to trial, his counsel did not inform him of the possibility of consecutive sentencing and (2) his counsel failed to research and sufficiently argue against the imposition of consecutive sentences at his sentencing hearing. Because the petitioner has not shown deficiency by clear and convincing evidence, we affirm the denial of the post-conviction petition.


JAMIEL D. WILLIAMS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Christina Ferrell Daugherty, Franklin, Tennessee, for the appellant, Jamiel D. Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Kim R. Helper, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Jamiel D. Williams, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of counsel. Following our review, we affirm the denial of the petition.


Fire Forces Nashville PD Office to Temporary Quarters

Fire damage to the Public Defender’s Office in Nashville has forced a temporary move to a satellite location inside the Justice A.A. Birch Building. Metropolitan Public Defender Dawn Deaner said the Adult Services Division is working out of the satellite office until the Parkway Towers building where it is housed is again open to the public. The building was damaged by fire late Monday night. The Public Defender is continuing to staff all criminal dockets in Nashville courts. Individuals can also reach the office during this time at 615-862-5692. Download the full statement


Honored Mothers Showed Strength, Perseverance

The Tennessee Justice Center recently named seven women as its 2012 Mothers of the Year. Two of those women reside in Rutherford County, and an article in The Tennessean looked at their lives this week. The first award recipient, Felicia Burk, is the adoptive mom of three children who all have been diagnosed with autism as well as developmental disabilities, ADHD, bipolar disorder and sleep disorder. The TJC says it honored her for fighting tirelessly to ensure those children have access to the services they need to grow and function to their fullest capacity. A second mom, Deborah Balthrop, was recognized for persevering through 20 denials of coverage for her own prenatal care.


Questions Surface about Shelby Co. Voting Records

Questions have been raised about the voting records of some 500 Shelby County voters after a blogger accused the election commission of altering the records to make it look like those individuals had not voted in recent elections. According to WMCTV, among those allegedly affected is a state representative and former city councilman. U.S. Rep. Steve Cohen, who represents Memphis, weighed in on the issue, saying there have been problems with record keeping at the county election commission since December 2011. According to WREG.com, he has asked the U.S. Justice Department to investigate. Commission officials deny any alteration to the records and have opened their database to Memphis-area media for review.


CASA Fundraiser a Success

The Jackson-Madison County Bar Association Young Lawyers Division raised money for the local CASA agency with a wine tasting event last week. The event drew about 100 people to support CASA, which advocates for neglected and abused children in the court system. The Jackson Sun covered the event, which sponsors hoped would raise $3,000 for the agency.


Auction Fights MALS Funding Shortage

To combat a sharp decline in federal funding for legal aid programs, the Memphis legal community is hoping to raise money via an online silent auction for Memphis Area Legal Services (MALS). Alpha Reporting Corp. is leading the effort to raise money for and awareness of what MALS does for the community. The auction will run for two weeks, from June 4 to June 18. Donors are asked to contribute anything of value, with suggested items including auto services, oil paintings, theater tickets and pottery. Additional auctions are planned for July and August. The Memphis Daily News reports


Murfreesboro Mosque Issues Remain

Though a local judge voided approval for construction of a new mosque in Murfreesboro this week, mosque officials said they would continue construction unless and until county officials order work to stop, according to the Nashville Business Journal. Attorney Joe Brandon, who represented mosque opponents, responded saying there would be additional litigation if the work doesn't stop. Meanwhile, the national Council on American-Islamic Relations (CAIR) has called on the U.S. Justice Department to protect the religious rights of Tennessee Muslims in the wake of the ruling. Read more on that in the Daily News Journal.


Court Explores Improvements to Interpreter Service

Court officials looked at how best to provide spoken language interpreter services for court hearings during an Interpreters Issues Summit hosted by the  Administrative Office of the Courts and the National Center for State Courts. Tennessee Supreme Court Chief Justice Cornelia A. Clark opened the summit noting the importance of interpretive services to the judicial system and thanking the governor and legislature for recognizing that. Of particular focus was how best to spend an additional $2 million included in the state's 2012-2013 budget.


Spanish Language Clinic Planned in Knoxville

The McKellar Law Firm is hosting a Spanish-language pro bono legal clinic in Knoxville on June 6. The event will run from 5 to 9 p.m. at Holy Ghost Church, 1041 N. Central Street, Knoxville 37917. For more information call (865) 637-0484 ext. 1524, or visit the firm’s Facebook page or Twitter page for details.


 
 

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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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