Memphis Firm Merges With Wyatt

Williams McDaniel PC, a 45-year-old Memphis-based law firm, announced today that its nine attorneys will merge with Wyatt, Tarrant & Combs LLP. The merger brings to 27 the number of estate planning attorneys with Wyatt, one of whom will practice out of Wyatt’s Memphis office in East Memphis. Learn more from the firm

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









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TN Court of Appeals

CHARLES A. HARMON, ET AL. v. JAMES J. J. JONES, ET AL.

Court: TN Court of Appeals

Attorneys:

Herbert S. Moncier, Knoxville, Tennessee, for the appellants, Charles A. Harmon, Fonda Gross, Charlana Harmon, Betty Cummings, Joshua Brown, Clyde E. McCarty, III, and Jeremy Bowling.

Charles F. Sterchi, III, Deputy Law Director, Knoxville, Tennessee, for the appellees, James J. J. Jones, in his Official Capacity as Knox County Sheriff, Knox County Sheriff’s Department, and Knox County, Tennessee.

Judge: MCCLARTY

Property of the appellants was seized following a traffic stop. Requests for return of the property were denied by the Knox County Sheriff’s Department. The appellants, who were not facing any criminal charges, filed an action in criminal court seeking the return of all the seized property. The Sheriff’s Department subsequently filed drug forfeiture warrants and property receipts. The appellants argued that the Sheriff’s Department was attempting to initiate Department of Safety jurisdiction in disregard of their earlier filing in criminal court. The criminal court dismissed the action, asserting lack of jurisdiction. The appellants appeal. We affirm.


IN RE: LAYLA C.S.

Court: TN Court of Appeals

Attorneys:

Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Carolyn Ferguson.

Leslie B. McWilliams, Chattanooga, Tennessee, for the appellees, Brenda Carolyn Fleming and Michael Paris Fleming.

Judge: FRANKS

Petitioner filed a Rule 60.02 motion to set aside a parental termination and adoption decree. The motion asked relief from the Judgment on the ground set forth in Tenn. R. Civ. P. 62.02(1) and (2). The Trial Court held that petitioner did not establish a basis to set aside the Judgment on the grounds relied upon in the Rule 60.02 motion. On appeal we affirm the Judgment of the Trial Court.


PLANTS, INC. v. FIREMAN’S FUND INSURANCE COMPANY ET AL.

Court: TN Court of Appeals

Attorneys:

Mickey Hall, Winchester, Tennessee, for the appellant, Plants, Inc.

Jeffrey S. Dilley, Clarksdale, Mississippi, for the appellees, Fireman’s Fund Insurance Company, Rural Community Insurance Company, Rural Community Insurance Services, Wheeler Insurance Agency, Inc., and Louis M. Wheeler, individually, and as agent for other defendants.

Judge: CLEMENT

At issue is the scope of a binding arbitration clause in a federally-reinsured multiple peril crop insurance policy and the scope of federal preemption of common law claims. The insured, a nursery in Warren County, Tennessee, suffered a catastrophic loss of stock, primarily trees and shrubs, due to a tornado on April 7, 2006. The insured submitted a claim in excess of a million dollars. The adjuster determined, due to “under-reporting of inventory”, that the insured was only entitled to recover $195,225. The insured demanded arbitration; the arbitrator ruled that the insured was due no additional payment. Thereafter, the insured filed this action asserting common law claims against the insurer, its adjustment firm, and the independent insurance agency that solicited the policy, for breach of contract, negligence, breach of the duty of care, negligent misrepresentation, and statutory bad faith. The trial court summarily dismissed the claims against the insurer and its adjustment firm finding the claims were barred by collateral estoppel and res judicata because the issues were decided at arbitration and that the insured’s only remedy was judicial review of the arbitration decision. On appeal, the insured contends that its state law claims were not barred by the doctrines of collateral estoppel and res judicata. Appellees disagree and additionally assert that the insured’s common law claims are preempted by federal law. We have determined the claims for breach of contract, breach of duty of care, and statutory bad faith are preempted by federal law; however, the claims for negligence and negligent misrepresentation are not preempted by federal law and are not barred by the doctrines of collateral estoppel or res judicata. Therefore, we affirm in part, reverse in part, and remand this action for further proceedings in accordance with this decision.


PLANTS, INC. v. FIREMAN’S FUND INSURANCE COMPANY ET AL.

Court: TN Court of Appeals

Attorneys:

Mickey Hall, Winchester, Tennessee, for the appellant, Plants, Inc.

Jeffrey S. Dilley, Clarksdale, Mississippi, for the appellees, Fireman’s Fund Insurance Company, Rural Community Insurance Company, Rural Community Insurance Services, Wheeler Insurance Agency, Inc., and Louis M. Wheeler, individually, and as agent for other defendants.

Judge: CLEMENT

This is the second of two similar but separate civil actions and appeals among the same parties. At issue is the scope of a binding arbitration clause in a federally-reinsured multiple peril crop insurance policy and the scope of federal preemption of common law claims. The insured, a nursery in Warren County, Tennessee, suffered a catastrophic loss of stock, primarily trees and shrubs, due to a severe freeze in April of 2007. The insured submitted a claim for indemnity. The adjuster determined, due to “under-reporting of inventory”, that the insured was only entitled to recover $115,822. Instead of pursuing arbitration pursuant to the policy of insurance, the insured filed this action asserting common law claims against the insurer, its adjustment firm, and the independent insurance agency that solicited the policy, for negligent misrepresentation, breach of duty of care, negligence, breach of contract, and statutory bad faith. The trial court summarily dismissed the claims against the insurer and its adjustment firm finding there were no issues of material fact and the insurers were entitled to summary judgment as a matter of law because the policy mandated arbitration. On appeal, the insured contends that its state law claims are not barred by the policy. The insurer and its adjustment firm disagree contending that all claims related to the insurance policy must be submitted to arbitration and additionally assert that the insured’s common law claims are preempted by federal law. We have determined the claims for breach of contract, breach of duty of care, and statutory bad faith are preempted by federal law; however, the claims for negligence and negligent misrepresentation are not preempted by federal law and these two claims do not fall within the scope of the arbitration provision. Therefore, we affirm in part, reverse in part, and remand for further proceedings in accordance with this decision.


TENNESSEE DEPARTMENT OF SAFETY EX REL. CHARLES A. HARMON, ET AL. v. CARLTON E. BRYANT, IV, ET AL.

Court: TN Court of Appeals

Attorneys:

Herbert S. Moncier, Knoxville, Tennessee, for the appellants, Charles A. Harmon, Clyde McCarty, III, Fonda Gross, and Charlana H. Wooley.

Charles F. Sterchi, III, Knoxville, Tennessee, for the appellees, Carlton E. Bryant, IV, J. Duran, A. Mitchell, Chris Bryant, and James J.J. Jones.

Robert E. Cooper, Jr., Attorney General & Reporter, William E. Young, Solicitor General, and Benjamin A. Whitehouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, Nina Harris.

Judge: MCCLARTY

This is an appeal from an order denying a petition to have the appellees held in criminal contempt based upon their failure to comply with various subpoenas commanding them to appear at depositions and produce documents to be used by the appellants in the context of an administrative asset forfeiture proceeding on the docket of the Tennessee Department of Safety. The petition was filed in the Criminal Court for Knox County, Tennessee. It was denied on grounds that the court in which the petition was filed had no jurisdiction to grant the relief requested. The appellants appeal. We affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. FRANCISCO JAVIER ANCONA

Court: TN Court of Criminal Appeals

Attorneys:

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher (on appeal) and J. Michael Engle (at trial), Assistant District Public Defenders, Nashville, Tennessee, for the appellant, Francisco Javier Ancona.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Robert Elliot McGuire and Janice Norman, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Francisco Javier Ancona, was convicted by a Davidson County Criminal Court jury of first degree felony murder, attempt to commit especially aggravated robbery, a Class B felony, aggravated burglary, a Class C felony, aggravated assault, a Class C felony, and employing a handgun during the commission of a dangerous felony, a Class C felony. See T.C.A. §§ 39-13-202, 39-13-403, 39-14-403, 39-13-102, 39-17-1324(b) (2010). He was sentenced to life imprisonment for the first degree felony murder conviction, fifteen years for the attempted especially aggravated robbery conviction to be served concurrently with the first degree murder conviction, nine years for the aggravated burglary conviction to be served consecutively to the first degree murder conviction but concurrently with the aggravated assault conviction, nine years for the aggravated assault conviction to be served consecutively to the first degree murder conviction but concurrently with the aggravated burglary conviction, and nine years for employing a handgun during the commission of a dangerous felony conviction to be served consecutively to the aggravated burglary conviction, resulting in an effective sentence of life imprisonment plus eighteen years. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction for attempted especially aggravated robbery; (2) the trial court erred by admitting hearsay statements of the Defendant’s co-defendants into evidence at the trial; (3) the trial court erred by failing to redact a statement made by a co-defendant to the police from a telephone recording played at the trial; (4) the trial court erred by allowing the State to amend the indictment to include a greater offense than originally charged; (5) the trial court erred by allowing separate convictions for attempted especially aggravated robbery and aggravated burglary; and (6) the trial court erred by imposing partial consecutive sentencing. We affirm the judgments of the trial court.


STATE OF TENNESSEE v. YONI SALES BARAHONA

Court: TN Court of Criminal Appeals

Attorneys:

Willis Jones, Nashville, Tennessee, for the appellant, Yoni Sales Barahona.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Robert Homlar, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

Aggrieved of his conviction of aggravated assault and accompanying 10-year sentence of incarceration, the defendant, Yoni Sales Barahona, appeals, alleging some 21 assignments of error. Some of the issues have been waived, and others are redundant. The defendant’s reviewable challenges are these: (1) the trial court erred by denying the motion to suppress, (2) the trial court erred by admitting into evidence the preliminary hearing testimony of the victim, (3) the trial court erred by admitting the identification of the defendant by both the victim and a witness, (4) the trial court erred by admitting into evidence a knife recovered from the scene, (5) the evidence was insufficient to support his conviction, and (6) the sentence is excessive. Discerning no error in either the conviction or the sentence, we affirm the judgment.


ANDREW D. HARVILLE v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Taylor Forrester, Covington, Tennessee, (on appeal) and Gary F. Antrican, District Public Defender; David S. Stockton, Assistant Public Defender; and Jeff Lee, Assistant Public Defender, (at trial) for the appellant, Andrew D. Harville.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; and D. Michael Dunavant, District Attorney General, Jason Poyner, Assistant District Attorney General, James Walter Freeland, Jr., Assistant District Attorney General, and P. Neal Oldham, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Petitioner, Andrew D. Harville, was convicted by a jury of first degree premeditated murder and felony evading arrest. Petitioner was sentenced by the trial court to life imprisonment for his murder conviction and two years for evading arrest, and his sentences were ordered to be served consecutively. This Court affirmed Petitioner’s convictions on direct appeal. A summary of the facts underlying Petitioner’s convictions can be found in this Court’s opinion in State v. Andrew Deon Harville, No. W2008-02375-CCA-R3-CD, 2010 WL 571786 (Tenn. Crim. App. at Jackson, filed Feb. 19, 2010), perm. app. denied (Tenn. June 16, 2010). Petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel at trial. The post-conviction court denied Petitioner’s request for relief following an evidentiary hearing. Petitioner appeals. Finding no error, we affirm the judgment of the post-conviction court.


CRAIG O. MAJORS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Craig O. Majors, Pro Se, Wartburg, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; John W. Carney, District Attorney General; and Steve Garrett, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: DANIEL

Petitioner, Craig O. Majors, was convicted of especially aggravated kidnapping, attempted aggravated robbery, and aggravated burglary in Montgomery County. See Craig O. Majors v. State, No. M2009-00483-R3-CD, 2010 WL 2483512 (Tenn. Crim. App., at Nashville, Jun. 21, 2010), perm. app. denied, (Tenn. Dec. 8, 2010). Petitioner’s convictions were affirmed on appeal. Id. at *1. Petitioner sought post-conviction relief on various grounds, including ineffective assistance of counsel. The post-conviction court denied relief. Petitioner now appeals. After a thorough review of the record and applicable authorities, we affirm the postconviction court’s denial of post-conviction relief as Petitioner has failed to show clear and convincing evidence that he is entitled to post-conviction relief. Accordingly, the judgment of the post-conviction court is affirmed.


Former Circuit Judge Ben Wexler Dies

Retired Circuit Court Judge Benjamin King Wexler died Aug. 11 at the age of 90.  For his service in World War II, he was awarded the Purple Heart, the Bronze Star, three air medals and two battle stars. He graduated from the University of Tennessee College of Law in 1960, then worked for the Tennessee Valley Authority before moving to Greeneville to practice law. While in Greeneville he was an assistant district attorney general, city judge, and Greene County attorney. In 1986, he was elected Circuit Court judge for the Third Judicial District of Tennessee from which he retired in 2006. A memorial service will be at 10 a.m. Wednesday at Asbury United Methodist Church, with entombment following in the Chapel Mausoleum at GreeneLawn Memory Gardens with military honors. In lieu of flowers, contributions may be made to the Boys & Girls Club of Greeneville & Greene County and the Greeneville/Greene County Humane Society. Read his obituary in the Greeneville Sun


Editorial: Good Change for Shelby Juveniles

In an editorial, the Commercial Appeal praises Memphis-Shelby County Juvenile Court for taking "another step to ensure that children are provided with adequate legal counsel when they wind up in the juvenile justice system." Court officials have made the decision to move the juvenile defense system from Juvenile Court oversight and place it under the county Public Defender's Office.


Man Sues County After Death Sentence Set Aside

A McMinn County man who was on death row for 19 years and scheduled to die in the electric chair on five dates before being granted a new trial, has filed a $20 million lawsuit against McMinn County government. Senior Judge Donald Harris in 2009 set aside Gussie Willie Vann's conviction and death penalty sentence based on ineffective assistance of counsel. The Chattanoogan has more


Louisiana Supreme Court Justice Sues Court Over Top Spot

Justice Bernette Johnson is at the center of a racially charged legal battle over whether she will be the next chief justice -- the first African-American -- of the Louisiana Supreme Court. Lawyers are seeking to reopen an old voting rights case that gave the Deep South state its first black Supreme Court justice. Johnson joined the court in 1994, elected to a special seat created to remedy racial disparities in Louisiana's justice system. In Louisiana, the chief justice position is awarded based on seniority, and Johnson thought she was next. But some of her colleagues say that's not the case. Johnson has sued, asking a federal court to affirm that she was a full Supreme Court justice even though her original seat was created by settlement of a federal voting rights lawsuit. The case will be heard in a New Orleans federal court hearing Thursday. NPR looks into it


Bragg to Preside in Rutherford Drug Court

Judge David Bragg will become the new presiding judge for the Rutherford County Drug Court and DUI Court Programs beginning Sept. 6. Bragg has often been a substitute in the programs for Judge Don Ash, who has taken senior status, the Cannon County Courier reports.


Courthouse Room Named for Former House Speaker

John T. Cunningham was honored Sunday when a Community Room in the Montgomery County Court House was dedicated to him. Cunningham served as Speaker of the House and, subsequently, county judge for Montgomery County.  Read more in the Leaf Chronicle


Grand Jurors Say Votes Influenced in Sheriff's Case

Two members of the McMinn County grand jury say now that they complained to an investigator in 2010 that the foreman and an assistant district attorney tried to influence their votes in a case involving a candidate for sheriff. The jury had voted not to indict candidate Joe Guy for campaign finance violations; he then went on to win the election and is now McMinn County sheriff. No action was taken regarding the accusations, but both grand jurors told the Times Free Press they still believe foreman Joel Riley and Assistant D.A. Paul Rush tried to influence their votes.


Law Office Trend is Toward Open, Flexible Spaces

Inside several major Nashville law firms, dark wood panels, oriental rugs, chandeliers and leather-bound books have given way to brighter finishes, more light and glass windows rather than walls. In some cases, individual offices are now smaller, leaving extra space to create more meeting and collaboration rooms for lawyers and clients. It’s all part of a push to increase productivity, appeal to younger lawyers and adjust to new technology, designers say. The Tennessean looks at several firms and their offices.


Lawyers Reinstated After Administrative Suspension

Seven Tennessee-licensed lawyers have been reinstated after being administratively suspended for CLE noncompliance in 2011, CLE noncompliance in 2009, failure to file the 2010 registration fee and 2011 registration fee, and failure to file the 2012 registration fee and/or required IOLTA report. See updated lists at the links above.


Three Lawyers' Licenses Reactivated

Three out-of-state lawyers had their Tennessee law licenses reactivated on Aug. 8. They are Kimberly J. Dobbs, Montgomery, Ala.; Jeffrey L. Ingram, Birmingham, Ala.; and Jane Hyatt Thorpe, Alexandria, Va.


 
 

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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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