New Judicial Conduct Rules Effective July 1

The Tennessee Supreme Court today reissued the comprehensive rewrite of its Code of Judicial Conduct, adopted on Jan. 4, making a few minor changes in campaign activity provisions. Most of the rules changes came as the result of a two-year effort by the Tennessee Bar Association to revise the rules for the first time since 1990. New recusal standards and procedure were a major focus of the TBA effort. The new Code of Judicial Conduct, which is Tennessee Supreme Court Rule 10, will take effect on July 1. Learn more from the Administrative Office of the Courts

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

SHANETTE COLLIER CHANDLER v. KYLAN CHANDLER

Court: TN Court of Appeals

Attorneys:

Shanette Collier Chandler, Memphis, Tennessee for Plaintiff/Appellant, self-represented.

Christopher S. Campbell and Margaret R. Johnson, Memphis, Tennessee for Defendant/Appellee Kylan Chandler.

Judge: KIRBY

This post-divorce appeal involves parenting issues. The parties had one child; they divorced in 2005. Initially, the mother was designated as the primary residential parent. The father filed a petition for modification, seeking to be designated as primary residential parent. The modification petition cited, inter alia, the mother’s attempts to frustrate the father’s visitation and alleged physical assaults by the mother. The trial court entered an order temporarily designating the father as primary residential parent and requiring that the mother’s visitation be supervised. The mother’s attorney was to supervise her client’s visitation, but was disqualified after it was alleged that the attorney failed to supervise the visitation. After a three-day hearing, the trial court granted the father’s petition to modify and held the mother in contempt for the unsupervised parenting time. The mother now appeals, representing herself. The trial court declined to approve the mother’s proposed statement of the evidence because a court reporter was present at the trial, citing the provision in Rule 24 of the Tennessee Rules of Appellate Procedure indicating that an appellant is to have a transcript prepared where a stenographic report is available. The mother proceeded with the appeal with neither a transcript nor a statement of the evidence. We vacate the finding of criminal contempt because the record does not show that the mother was advised of her right to appointed counsel on the contempt. We also vacate the award of attorney fees and expenses insofar as it relates to the vacated contempt finding, and affirm as to the remainder of the trial court’s ruling.


GEORGE CLAY, III., v. FIRST HORIZON HOME LOAN CORPORATION

Court: TN Court of Appeals

Attorneys:

Kristine L. Roberts, and Robert F. Tom, Memphis, Tennessee, and John A. Barney, Brentwood, Tennessee, for the appellant, First Horizon Home Loan Corporation.

Peter C. Ensign, Chattanooga, Tennessee, for the appellee, George Clay, III.

Judge: FRANKS

Plaintiff sued defendant mortgage company that held a mortgage on his home, on which defendant foreclosed. Plaintiff's alleged cause of action was that defendant had received money from the U.S. Treasury pursuant to the Troubled Asset Relief Program, and that defendant failed to properly consider him for a home loan modification pursuant to the federal acts and regulations. Defendant moved to dismiss for failure to state a cause of action and the Trial Court dismissed part of plaintiff's complaint, but denied defendant's motion as to plaintiff's third party beneficiary claim, the negligent implementation of the HAMP claim and the wrongful foreclosure claim. Defendant sought a Tenn. R. App. P. 9 appeal, which was granted by the Trial Court and this Court and we hold that under the federal acts and regulations, there was no provision for a private right of action claim, and reverse so much of the Trial Court's judgment that holds otherwise.


THERESA GREEN v. WILLIAM PHILLIP GREEN

Court: TN Court of Appeals

Attorneys:

John E. Herbison, Clarksville, Tennessee, for the Appellant, Theresa Green.

Donald Capparella and Amy J. Farrar, Nashville, Tennessee, for the Appellee, William Phillip Green.

Judge: DINKINS

Wife appeals the final decree of divorce, asserting that the trial court erred in failing to make findings as to what property constituted separate property and what constituted marital property; Wife also appeals the amount of alimony awarded to her. We conclude that the trial court erred in failing to classify the property and, accordingly, vacate the division of marital property and remand the case for the court to classify the parties’ property and debt and to modify the division of marital property if necessary. We affirm the trial court’s holding that an award of alimony to Wife is appropriate, but vacate the award of alimony in futuro and remand for the court to reconsider the nature and amount of alimony.


STACY HARRIS v. THOMAS HALL

Court: TN Court of Appeals

Attorneys:

Stacy E. Harris, Nashville, Tennessee, for the appellant, Pro Se.

Stephen Doug Thurman, Roger Tyler May, Nashville, Tennessee, for the appellee, Thomas Hall.

Judge: COTTRELL

The plaintiff from a case that was dismissed in 2002 by agreed order filed a motion nine years after the dismissal to “extend the judgment” from that case and for injunctive relief. The trial court denied the motion on the grounds that the court lacked jurisdiction to entertain it. The plaintiff appealed, and we affirm the trial court’s judgment denying the motion.


IN THE MATTER OF: JAI’SHAUNDRIA D.L.R.
CORRECTION: On front page of the opinion, trial court judge has been changed from "Judge Betty K. Adams Green" to "Julie L. Ottman, Substitute Judge".

Court: TN Court of Appeals

Attorneys:

Laura A. Stewart, Nashville, Tennessee, for the appellant, Faith R.

Robert E. Cooper, Jr., Attorney General and Reporter, and Joshua Davis Baker, Assistant Attorney General, for the appellee, the Tennessee Department of Children’s Services.

Kelli Barr Summers, Brentwood, Tennessee, Guardian ad litem.

Judge: CLEMENT

A mother appeals the termination of her parental rights to one child. The trial court found two grounds for termination, abandonment and persistence of conditions leading to the child’s removal from the mother’s home. The finding of abandonment was based on the mother’s incarceration at the time of the filing of the petition to terminate and because the mother engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child, as provided in Tennessee Code Annotated § 36-1-102(1)(A)(iv). The trial court also found termination was in the child’s best interest due to the fact that the mother lacked a meaningful relationship with the child, that the mother failed to make adjustments to her home and lifestyle to make it safe for a child, and that the child was happy and healthy in her foster home of over two years such that removal would have a detrimental impact on the child’s emotional and psychological condition. We affirm.


IN RE JOSEPH L.

Court: TN Court of Appeals

Attorneys:

Lydle Willis Jones, Nashville, Tennessee, for the appellant, Samantha L.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Douglas Earl Dimond and Joshua Davis Baker, for the appellee, State of Tennessee, Department of Children’s Services.

Judge: BENNETT

Mother challenges the trial court’s termination of her parental rights. She asserts that the Department of Children’s Services failed to make reasonable efforts to find a suitable relative placement. We find no merit in Mother’s arguments and affirm the decision of the trial court.


IN RE: KAYLEIGH N.R.

Court: TN Court of Appeals

Attorneys:

C. Michael Cardwell, Nashville, Tennessee, for the appellant, Tonya L. R.

Robert E. Cooper, Jr., Attorney General and Reporter, and Martha A. Campbell, Deputy Attorney General, for the Tennessee Department of Children’s Services.

Susie Piper McGowan, Nunnelly, Tennessee, Guardian Ad Litem.

Judge: CLEMENT

Mother appeals the termination of her parental rights. The trial court found four statutory grounds for termination of Mother’s parental rights, persistence of conditions, mental incompetence, substantial noncompliance with the provisions of the permanency plan, and abandonment by failure to maintain a suitable home. The trial court also found that termination of her rights was in the best interest of the child. Mother appeals. We affirm.


HONG SAMOUTH (SAM) RAJVONGS v. DR. ANTHONY WRIGHT
CORRECTION: On page 5 of the opinion, in the 4th paragraph at line 1, the word "within" has been changed to "without".

Court: TN Court of Appeals

Attorneys:

John F. Floyd and Jeremy A. Oliver, Nashville, Tennessee, for the appellant, Dr. Mark Anthony Wright.

William Kennerly Burger, Murfreesboro, Tennessee, for the appellee, Hong Samouth (Sam) Rajvongs.

Judge: CANTRELL

A patient who alleged that he had been negligently injured by his podiatrist filed a complaint against him for malpractice, and then voluntary dismissed the complaint without prejudice. Less than a year later, he furnished the defendant podiatrist with the sixty day notice of potential claim required by a recently enacted statute, Tenn. Code Ann. § 29-26- 121(a). He subsequently refiled his complaint in reliance on his rights under the saving statute, Tenn. Code Ann. § 28-1-105. The defendant filed a motion for summary judgment, arguing that the complaint was time-barred under the saving statute because it was filed more than one year after the dismissal of the original complaint. The plaintiff contended, however, that he was entitled to the benefit of Tenn. Code Ann. § 29-26-121(c), which extends the statute of limitations on medical malpractice claims by 120 days if the plaintiff has complied with the sixty day notice requirement. The defendant responded by arguing that Tenn. Code Ann. § 29-26-121(c) does not apply to complaints filed under the saving statute. The trial court dismissed the defendant’s motion for summary judgment, but allowed him to file an application for interlocutory appeal because of the novelty of the legal question involved. After careful consideration of the relevant statutes, we hold that Tenn. Code Ann. § 29-26- 121(c) does apply to the saving statute, and we affirm.


SEVIER COUNTY BANK v. EILEEN M. DIMECO, ET AL.

Court: TN Court of Appeals

Attorneys:

Eileen M. DiMeco, Sevierville, Tennessee, Pro Se appellant.

Richard T. Wallace, Sevierville, Tennessee, for the appellee, Sevier County Bank.

Judge: SWINEY

Sevier County Bank (“the Bank”) sued Eileen M. DiMeco, CitiMortgage, Inc., and First American Title Company seeking specific performance with regard to a Grant of Right of Way and Agreement to Dedicate (“the Agreement”) concerning a right of way to be used as a public road. The Bank filed a motion for summary judgment and after a hearing the Trial Court granted the Bank summary judgment. Ms. DiMeco appeals to this Court. We find and hold that there are no genuine issues of material fact and that the Bank is entitled to summary judgment as a matter of law, and we affirm. We further find this appeal frivolous and award the Bank attorney’s fees on appeal.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. ANTYWON MONTRACE BEASLEY

Court: TN Court of Criminal Appeals

Attorneys:

Ardena J. Garth, District Public Defender, and Richard Kenneth Mabee and Alan Dunn, Assistant Public Defenders, for the appellant, Antywon Montrace Beasley.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; William H. Cox, III, District Attorney General; and Leslie A. Longshore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Antywon Montrace Beasley, appeals the Hamilton County Criminal Court’s denial of his request for probation. The defendant pled guilty to one count of attempted aggravated child abuse, a Class B felony, and received a sentence of ten years, with the manner of service to be determined by the trial court. Following a hearing, the court determined that the sentence was best served in confinement. On appeal, the defendant contends that this determination was error. Following review of the record, we find no error and affirm the sentence as imposed.


STEPHEN L. BEASLEY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Stephen L. Beasley, Pro Se, Henning, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; and Mike Dunavant, District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

In 1994, a Hamilton County jury convicted the Petitioner, Stephen L. Beasley, of first degree premeditated murder and sentenced him to life imprisonment without the possibility of parole. This Court affirmed the Petitioner’s conviction on appeal. State v. Stephen Lujan Beasley, No. 03C01-9509-CR-00268, 1996 WL 591203, at *1 (Tenn. Crim. App., at Knoxville, Oct. 10, 1996), perm. app. denied (Tenn. Apr. 27, 1998). After a somewhat lengthy procedural history, the Petitioner filed a second petition for habeas corpus relief, alleging that the trial court lacked jurisdiction to “instruct trial jury and argue murder in perpetration of felony reckless.” The habeas corpus court summarily dismissed the petition. On appeal, the Petitioner contends that he has been subjected to multiple punishments for the same crime, arguing that the jury violated his constitutional rights when it applied the felonymurder aggravating circumstance to his conviction for first degree premeditated murder. He does not contest his sentence for life in prison but contests the jury’s decision that he not have the possibility of parole. The Petitioner states that because he was convicted of premeditated murder, the jury improperly applied the felony murder aggravator as a basis for imposing his “without parole” sentence. Upon a review of the record in this case, we conclude that the habeas corpus court properly dismissed the petition for habeas corpus relief. Accordingly, the judgment of the habeas corpus court is affirmed.


STATE OF TENNESSEE v. DEREK COLEMAN

Court: TN Court of Criminal Appeals

Attorneys:

William C. Gosnell (on appeal) and Coleman Garrett (at trial), Memphis, Tennessee, for the appellant, Derek Coleman.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Anita Spinetta and Michael McCusker, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Derek Coleman, was convicted by a Shelby County jury of voluntary manslaughter, employing a firearm during the commission of a felony, and aggravated assault, all Class C felonies. He was subsequently sentenced to six years for the voluntary manslaughter conviction, six years for the firearm conviction, and five years for the aggravated assault. On appeal, he raises the single issue of sufficiency of the convicting evidence. Following review of the record, we conclude the evidence is sufficient and affirm the convictions.


CHARLTON GARNER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

R. Todd Mosley, Memphis, Tennessee, for the appellant, Charlton Garner.

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

Judge: PAGE

A Shelby County jury convicted petitioner, Charlton Garner, of second degree murder, attempted second degree murder, and reckless endangerment. The trial court sentenced him to an effective twenty-eight years in the Tennessee Department of Correction. After an unsuccessful direct appeal to this court, he petitioned the Shelby County Criminal Court for post-conviction relief, alleging ineffective assistance of counsel for failure to present a witness suggested by petitioner and failure to impeach a State’s witness with prior convictions. Following an evidentiary hearing, the post-conviction court denied relief. Discerning no error in the proceedings, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. ROY DALE HARRELL

Court: TN Court of Criminal Appeals

Attorneys:

Robert S. Peters, Winchester, Tennessee, for the appellant, Roy Dale Harrell.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; J. Michael Taylor, District Attorney General; and William B. Copeland, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Roy Dale Harrell, pled guilty in the Franklin County Circuit Court to one count of statutory rape, a Class E felony. After a sentencing hearing, he was sentenced to two years split confinement, to serve eleven months and twenty-nine days in jail and the remainder on probation. On appeal, he challenges the trial court’s imposition of a sentence of split confinement that required service of eleven months and twenty-nine days. After review, we affirm the trial court’s imposition of a split confinement sentence. However, we modify the judgment of the trial court to the extent it imposed an eleven-month-andtwenty- nine-day period of incarceration and remand for entry of an amended judgment showing the defendant's period of incarceration at 7.2 months.


STATE OF TENNESSEE v. JEREMY KEETON

Court: TN Court of Criminal Appeals

Attorneys:

William M. Harris (on appeal), Lawrenceburg, Tennessee and J. Daniel Freemon (at trial), Lawrenceburg, Tennessee for the appellant, Jeremy Keeton.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; T. Michel Bottoms, District Attorney General, and Douglas Dicus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Wayne County jury convicted the Defendant, Jeremy Keeton, of manufacturing marijuana by growing or cultivating not less than 100 nor more than 499 marijuana plants, and the trial court sentenced him to twelve years in the Tennessee Department of Correction. On appeal, the Defendant contends: (1) that he is being denied an “effective appeal” because the record on appeal does not include an official transcript of his cross-examination of a material prosecution witness; (2) the trial court erred when it denied his motion to suppress; (3) the evidence is insufficient to sustain his conviction; and (4) the trial court erred when it sentenced him by not considering a relevant mitigating factor. After a thorough review of the record and applicable authorities, we conclude there exists no reversible error in the judgment of the trial court. We, therefore, affirm the trial court’s judgment.


STATE OF TENNESSEE v. LARRY E. RATHBONE

Court: TN Court of Criminal Appeals

Attorneys:

Robert W. Scott, Jacksboro, Tennessee, for the appellant, Larry E. Rathbone.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; William Paul Phillips, District Attorney General; and Scarlett Wynne Ellis, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: OGLE

The appellant, Larry E. Rathbone, was convicted of two counts of rape of a child, one count of aggravated sexual battery, and one count of attempted rape of a child. He received a total effective sentence of fifty-six years. On appeal, the appellant challenges the imposition of consecutive sentencing. Upon review, we affirm the judgments of the trial court.


BARRY SMELLEY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

David Christensen, Brentwood, Tennessee, for the appellant, Barry Smelley.

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

Judge: GLENN

The petitioner, Barry Smelley, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing that the post-conviction court should be reversed for failing to make findings on his specific claims and that counsel’s unilateral decision to release a witness from a subpoena violated his rights to compulsory process and to present a defense. After review, we affirm the denial of the petition.


STATE OF TENNESSEE V. JOSEPH WELLS

Court: TN Court of Criminal Appeals

Attorneys:

Joseph A. McClusky, Lorna S. McClusky, Massey McClusky (on appeal), and Arch Boyd (at trial), Memphis, Tennessee, for the appellant, Joseph Wells.

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

Judge: BIVINS

Joseph Wells (“the Defendant”) pled guilty to one count of possession of one-half ounce or more of marijuana with intent to sell, a Class E felony. After a hearing, the trial court denied judicial diversion and ordered the Defendant to serve thirty days of periodic confinement followed by two years of probation. The Defendant has appealed, claiming that the trial court erred in denying judicial diversion, erred in denying full probation, and erred in relying on hearsay statements in imposing sentence. After a thorough review of the record, we conclude that the trial court committed no reversible error. Therefore, we affirm the judgment of the trial court.


Immigration Enforcement Ruling Will Have Little Impact in Tennessee

Arizona's police chiefs and county sheriffs hoped a U.S. Supreme Court ruling would settle their long-running debate on what role, if any, they should play in immigration enforcement. Instead, the justices' decision to uphold the state's "show me your papers" statute has left them with more questions than answers, the Associated Press reports.  In Tennessee, there will not be much impact from the changes, since the state's law is much more limited. The change would have immediate impact on five states that enacted similar legislation: Alabama, Georgia, Indiana, South Carolina and Utah. Although Tennessee lawmakers debated a similar comprehensive bill, it never won final approval. Tennessee has no "show me your papers" provision that allows law enforcement officers to stop and demand documentation of anyone. The Commercial Appeal has more


Clement Named Appellate Judge of Year

The Tennessee Chapter of the American Board of Trial Advocates (ABOTA) recently recognized Judge Frank Clement as Appellate Judge of the Year. Clement currently serves on the Tennessee Court of Appeals. Learn more from the Administrative Office of the Courts


Restructured DUI Law Takes Effect Next Week

When new DUI laws take effect next week, a driver’s refusal to submit to a blood test when an officer has valid suspicion of intoxication will be virtually meaningless, the Johnson City Press reports. Tennessee’s DUI law now allows forced blood draws for blood alcohol tests in any situation if a search warrant is obtained. It also increases punishment for those convicted of a DUI if a child under age 18 is in the vehicle at the time of the offense.


Request Denied, File Remains Sealed in Witherspoon Case

Nashville Circuit Court Judge Randy Kennedy Monday dismissed Reese Witherspoon’s request for an emergency conservatorship for her father and ordered that the court file remain sealed from the public. The Tennessean and WSMV-Channel 4 had sued to unseal the proceedings and records. “Should the First Amendment … be used as a battering ram to embarrass and humiliate, or to cause harm and discomfort to a private citizen when no public good will come of it?” Kennedy asked. In arguing to open the case, attorney Robb Harvey, who is representing the two media outlets, said there was no compelling reason presented by any of the parties to keep the hearings secret. Both media companies are deciding whether to appeal the decision, the Tennessean reports.


Firm Sued in Decades-Old Property Sale

Nashville attorney Cecil Sims Irvin has sued the Bass Berry & Sims law firm as well as attorney Wilson “Woody” Sims for malpractice, fraud, negligent misrepresentation and breach of fiduciary duty -- all tied to a 1985 Williamson County land sale. Irvin alleges the transaction occurred without proper family permission and without professional land evaluation. Bass, Berry is represented by Darrell Townsend, a partner at Howell & Fisher. The Nashville Post has more


Judge Reprimanded for Inappropriate Comments

The Court of the Judiciary has issued a public reprimand against Red Bank City Judge Johnny D. Houston, in response to a complaint filed against him. The reprimand relates to a complaint arising from a comment made by Houston following an October 2011 judicial hearing. According to the reprimand, Houston "told a group of men accused of robbing and beating a Red Bank man to death that he wished he could 'pull a trap door' and send them 'straight to hell right now' before sending their cases to a grand jury." Houston also has General Sessions jurisdiction in Hamilton County.


 
 

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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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