Fast Track CLE Friday in Memphis, Knoxville

Need a quick update in the areas of law you deal with every day? The TBA’s General Practice Fast Track program will be held in both Memphis and Knoxville this Friday, with sessions on child parentage, child support, divorce, medical malpractice, wills and estates, intellectual property basics, labor and employment law, DUI law and more. Find out how you can get all 15 hours of needed CLE this Friday.

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.

03 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
05 - 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

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
CORRECTION: In the Aug. 20, 2012 Grants & Denials List, on page 13, in the description of the case of Bourland, Heflin, Alvarez, Monor & Matthews, PLC v. Rodney Heaton, Et Al., the appellate judge has been changed to Judge Highers

Court: TN Supreme Court


STATE OF TENNESSEE v. MICHAEL FARMER AND ANTHONY CLARK
With Concurring Opinion

Court: TN Supreme Court

Attorneys:

Marty B. McAfee and Gregory Allen, Memphis, Tennessee (on appeal); and Patrick E. Stegall, Memphis, Tennessee (at trial), for the appellant, Michael Farmer.

Tony N. Brayton, Memphis, Tennessee (on appeal); and Diane Thackery, Memphis, Tennessee (at trial), for the appellant, Anthony Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Clarence E. Lutz, Assistant Attorney General; and Theresa McCusker, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: LEE

During a robbery, one of the defendants shot the victim in the leg. Although the bullet passed through the victim’s leg, the wound required minimal medical treatment and did not cause the victim to suffer a loss of consciousness, extreme pain, disfigurement, or impairment. The defendants were convicted of especially aggravated robbery and aggravated robbery. The Court of Criminal Appeals affirmed the convictions. We modify the convictions for especially aggravated robbery to convictions for aggravated robbery because the victim did not suffer a serious bodily injury as required by Tennessee Code Annotated section 39-13-403 (2010) and remand to the trial court for resentencing.


JERRY GARRISON ET AL. v. RITA BICKFORD ET AL.

Court: TN Supreme Court

Attorneys:

Joseph H. Crabtree, Jr., Athens, Tennessee, for the appellants, Jerry Garrison and Martha Garrison.

Joseph B. Klockenkemper, II, Nashville, Tennessee, for the appellee, State Farm Mutual Automobile Insurance Company.

Judge: CLARK

Following an accident which claimed the life of their teenage son, the deceased’s parents filed claims for wrongful death and negligent infliction of emotional distress against the driver and owner of the car that struck their son. The parents also sought to recover from their own insurance company under the uninsured motorist provisions of their policy. The driver of the car settled, paying the deceased’s parents $25,000 for their wrongful death claim and $25,000 for their negligent infliction of emotional distress claim. The parents’ insurer paid them an additional $75,000 for the wrongful death claim but refused to pay any damages for their emotional injuries. The insurer contended that (1) emotional distress did not constitute “bodily injury” as defined in the policy, and (2) the “Each Person” limit in the policy had been met, thereby exhausting any available coverage. The parents maintained that recovery for emotional harm was not precluded under the policy definition of “bodily injury” and that the “Each Person” limit had not been met. The trial court agreed with the parents and ruled in favor of coverage. The Court of Appeals reversed. We granted the parents’ application for permission to appeal to decide whether “bodily injury” as defined in the policy includes mental injuries standing alone. It does not. The judgment of the Court of Appeals is affirmed.


TN Court of Appeals

KIM BROWN v. MAPCO EXPRESS, INC.

Court: TN Court of Appeals

Attorneys:

Plaintiff/Appellant Kim Brown, Memphis, Tennessee, self-represented.

Kevin D. Bernstein, Memphis, Tennessee, for Defendant/Appellee Mapco Express, Inc.

Judge: KIRBY

This appeal involves claims arising from a verbal exchange at a gas station. The plaintiff customer gave cash to a clerk employed at the defendant gas station to pay for gas. After a verbal exchange between the clerk and the customer, the customer left the gas station. The customer promptly filed this lawsuit, alleging a variety of tort claims, including defamation, false light in the public eye, and infliction of emotional distress. The complaint sought damages in excess of a billion – with a “b”– dollars. The trial court granted summary judgment in favor of the defendant gas station. The customer appeals. We affirm.


IN THE MATTER OF: CAYDENCE B. (d.o.b. 06/22/04) AND KIMBERLY B. (d.o.b. 10/14/07)

Court: TN Court of Appeals

Attorneys:

C. Michael Cardwell, Nashville, Tennessee, for the appellant, Carmenita C.

Kelli Barr Summers, Brentwood, Tennessee, for the appellees, Christopher Prince, Leann Prince, Brian Smith and Amanda Smith.

Lisa M. Fiehweg, Nashville, Tennessee, Guardian ad Litem.

Judge: FARMER

This is a termination of parental rights case. The trial court terminated Mother’s parental rights upon its finding, by clear and convincing evidence, of abandonment, persistence of conditions, and that termination is in the best interests of the children. We conclude that the trial court erred in finding persistence of conditions. However, we affirm the trial court’s finding of abandonment and that termination of Mother’s parental rights was in the best interests of the children.


DAVID G. ROGERS, EX. REL. KAREN WRIGHT v. AUTOZONE STORES, INC.

Court: TN Court of Appeals

Attorneys:

Aubrey T. Givens and John Jay Clark, Nashville, Tennessee, for the appellant, David G. Rogers, ex. rel. Karen Wright.

Stephen B. Morton and Joseph C. Johnsen, Nashville, Tennessee, for the appellee, Autozone Stores, Inc.

Judge: MCCLARTY

This is a premises liability case in which Karen Wright alleged that she slipped in a puddle of water and fell on the floor while exiting an Autozone store. She filed suit against Autozone Stores, Inc., claiming negligence. Autozone Stores, Inc. filed a motion for summary judgment, asserting that Karen Wright could not prove that it caused the condition which led to her fall or that it had actual or constructive notice of the condition prior to her fall. Autozone Stores, Inc. also alleged that Karen Wright could not recover because she was 50 percent or more at fault for her injuries. Following a hearing, the trial court granted the motion for summary judgment and dismissed the case. Karen Wright appeals. We affirm the decision of the trial court.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. KEVIN ANTHONY GRAHAM

Court: TN Court of Criminal Appeals

Attorneys:

Richard A. Spivey, Kingsport, Tennessee, for the Defendant-Appellant, Kevin Anthony Graham.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilber, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Alex Pearson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Kevin Anthony Graham, entered a guilty plea in the Hawkins County Criminal Court to the charged offense of theft of property valued at $10,000 or more but less than $60,000, a Class C felony, and requested that the trial court grant him judicial diversion or an alternative sentence. At that time, the State informed the court that the parties agreed Graham would be sentenced as a Range I, standard offender to a sentence of three years with the manner of service of the sentence to be determined by the court, in the event that the court denied judicial diversion. Graham was subsequently sentenced to three years’ incarceration. On appeal, Graham contends that the trial court erred in denying: (1) judicial diversion and (2) an alternative sentence. Upon review, we conclude that the trial court erred in denying a sentence of split confinement. Although the trial court properly denied judicial diversion, full probation, and a community corrections sentence, we reverse the judgment and remand the case with instructions to the trial court to enter an order sentencing Graham to serve 90 days’ confinement in the Hawkins County Jail before serving the remainder of his three-year sentence on supervised probation.


STATE OF TENNESSEE v. DONALD JONES

Court: TN Court of Criminal Appeals

Attorneys:

Stephen C. Bush, Shelby County Public Defender; Barry W. Kuhn, Assistant Public Defender, for the Defendant-Appellant, Donald Jones.

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

Judge: MCMULLEN

The Defendant-Appellant, Donald Jones, was convicted by a Shelby County jury of first degree felony murder and especially aggravated burglary and was sentenced to consecutive sentences of life imprisonment and thirty years, respectively. On appeal, Jones argues: (1) the evidence was insufficient to sustain his convictions, and (2) the trial court erred in instructing the jury on flight. Upon review, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. JONATHAN RADFORD

Court: TN Court of Criminal Appeals

Attorneys:

Richard Kenneth Mabee (on appeal) and Anna Protano-Biggs (at trial), Chattanooga, Tennessee, for the appellant, Jonathan Radford.

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

Judge: WEDEMEYER

The Defendant, Jonathan Radford, pled guilty to two counts of facilitation of aggravated robbery. Pursuant to the plea agreement, the trial court sentenced the Defendant, as a Range I offender, to two concurrent five-year sentences and ordered him to serve eleven months and twenty-nine days in confinement, with the remainder to be served on supervised probation. The Defendant’s probation officer filed a probation violation report, the second such report filed against the Defendant. After a hearing, the trial court revoked the Defendant’s probation for a second time and ordered that he serve the balance of his sentences in confinement. On appeal, the Defendant contends that the trial court erred when it revoked his probation. After reviewing the record, we affirm the trial court’s judgment.


WILLIAM A. STAFFORD v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, William A. Stafford.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General, and Leon Franks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, William A. Stafford, pled guilty to facilitation of aggravated kidnapping and was sentenced to nineteen years in incarceration. Petitioner filed a petition for writ of habeas corpus relief that was dismissed by the habeas corpus court. After a thorough review of the record and briefs on appeal, we conclude that Petitioner has not shown that his sentence was void or that his confinement was illegal. Therefore, we affirm the habeas corpus court’s dismissal of his petition.


TIMOTHY DEWAYNE WILLIAMS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

George D. Norton, Jr., Ripley, Tennessee, for the appellant, Timothy Dewayne Williams.

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

Judge: THOMAS

The Petitioner, Timothy Dewayne Williams, appeals as of right from the Tipton County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance of counsel from the attorneys representing him at trial because they failed to call an eyewitness to the crime. Following our review, we affirm the judgment of the post-conviction court.


Quinn Elected Secretary of Nominating Commission

J. Bartlett Quinn, a labor and employment lawyer with Chambliss, Bahner & Stophel PC in Chattanooga, has been elected secretary of the Tennessee Judicial Nominating Commission. The 17-member commission reviews applications and makes recommendations to the governor for judicial vacancies on the state trial and appellate courts. Quinn was appointed to the commission by Lt. Governor Ron Ramsey.


Fayette County Agrees to Desegregation Order

The Fayette County school district must close two elementary schools and build a new one in Somerville under a consent order approved by the U.S. District Court for the Western District of Tennessee. The agreement was negotiated by the U.S. Department of Justice with the Fayette County Board of Education and the NAACP. Among other requirements, the order directs the district to implement a program at three other elementary schools to help them achieve desegregated enrollments. News Channel 5 in Nashville reports.


Man Allegedly Sneaks Weapon into Nashville Jail

Police say a drunken suspect smuggled a loaded weapon into Nashville’s Criminal Justice Center Monday night. But whether he intended to use it or not is unknown. Eric Brooks was arrested for public intoxication, brought to the jail and subjected to a routine search. While in a holding area, he began acting suspiciously and the alleged gun fell out of his pant leg. Supervisors have opened a full review of why the search failed to reveal the firearm. News Channel 5 reports


County, Suburbs Spar in School Referendum Briefs

Trial briefs were filed this week by parties battling the legal validity of referendums in which six Memphis suburban communities voted to create their own school systems. Both sides reminded U.S. District Judge Samuel "Hardy" Mays of comments he already has made. The Shelby County Commission, which is challenging the referendum and its results, used the argument that Mays already has said he "would not hesitate to invalidate any votes" if he found the referendums were unconstitutional. The six suburban municipalities repeatedly cite a 2011 ruling by Mays that the law authorizing the referendums could pass constitutional muster. They say this new suit should be thrown out. Read more about the arguments on each side in the Commercial Appeal.


Justices Let Lethal Injection Ruling Stand

The Tennessee Supreme Court has decided not to hear an appeal by two death row inmates who claim that changes to the state's lethal injection procedure are unconstitutional. The high court on Monday declined to hear the case brought by Stephen Michael West and Billy Ray Irick. Their attorneys argued that the state's protocol does not contain sufficient safeguards to ensure that condemned inmates don't suffocate while fully conscious, which could violate the constitutional ban on cruel and unusual punishment. WATE.com has this AP story.


Court Hands Down 2 ‘Bodily Injury’ Rulings

The Tennessee Supreme Court today clarified that motor vehicle insurance policies need not cover mental injuries when the insured has suffered no physical injuries. Parents of an 18-year old who was struck by a car sued for wrongful death and negligent infliction of emotional distress. They sought to recover money damages for their alleged mental injuries under the uninsured motorist provision of their insurance policy. The high court unanimously rejected that claim. Read more or download the court’s opinion. In a second opinion, the court ruled that when considering whether a victim has suffered a serious bodily injury, a jury should consider the injury that occurred rather than the injury that could have occurred or the manner in which it occurred. Read more or download the opinion and a separate concurring opinion in the case.


2012 EJU Speakers Named

The 2012 Equal Justice University will feature a host of stellar speakers and more than 40 educational sessions Sept. 26-29 at Paris Landing State Park. Judge Bernice Donald, recently appointed to the U.S. Sixth Circuit Court of Appeals, will give the keynote speech at the welcome lunch on Sept. 26. That evening, former Nashville mayor Bill Purcell will speak at the annual Awards Dinner, and on Thursday, the Leadership Luncheon will feature Memphis lawyer Buck Lewis, chair of the Tennessee Supreme Court’s Access to Justice Commission and former TBA president. In all, attendees can earn 15 hours of CLE.


Department of Treasury Seeks Compliance Officer

The Tennessee Department of Treasury is seeking a compliance officer for legal, compliance and internal audit. The position will be responsible for the regulatory and other compliance needs of the department's Investment Division. The compliance officer function includes reviewing investment contracts, identifying financial and non-market risks, handling legal, regulatory and ethics compliance, and coordinating external legal and procurement functions. Interested applicants should submit a resume to treasury.resumes@tn.gov by Aug. 31. Get details about the position


Two Lawyers Placed on Disability Inactive Status

The Tennessee Supreme Court placed two lawyers on disability inactive status yesterday (Aug. 21). They are Williamson County lawyer Charles C. Morrow and Orlando, Fla., lawyer Michael Peters. Neither may practice law while on inactive status. Either may petition the court to return to active status upon showing by clear and convincing evidence that the disability has been removed and that he is fit to resume the practice of law.


 
 

Questions, comments: Email us at TBAToday@tnbar.org

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.


© Copyright 2012 Tennessee Bar Association