Deadline Near on Public Service Awards

Nominations are now being accepted for the Tennessee Bar Association's annual Public Service Awards. Lawyers may be nominated for any of three awards: the Ashley T. Wiltshire Public Service Attorney of the Year, the Harris Gilbert Pro Bono Volunteer of the Year Award and the Law Student Volunteer Award. Nominations are due by Sept. 4. Award winners will be honored at the TBA's Public Service Luncheon Jan. 19 in Nashville.

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
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









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

ELLIOT H. HIMMELFARB, M.D., ET AL. v. TRACY R. ALLAIN

Court: TN Supreme Court

Attorneys:

Christopher Kim Thompson, Nashville, Tennessee, for the appellant, Tracy R. Allain

M. Todd Sandahl, Franklin, Tennessee, for the appellees, Elliot H. Himmelfarb, M.D., Elliot H. Himmelfarb, M.D., P.A., and Douglas C. York, M.D.

Judge: HOLDER

A patient discovered that a guide wire had been left in her vein during a prior medical procedure. She filed a medical malpractice action against the doctors who performed the procedure and the hospital where the procedure was performed. The patient voluntarily dismissed the medical malpractice suit pursuant to Tennessee Rule of Civil Procedure 41 when she was informed that another party was responsible for the presence of the guide wire. The doctors named in the original suit filed a malicious prosecution action against the patient. The patient filed a motion for summary judgment alleging that the doctors could not prove that the prior suit had been terminated in their favor. The trial court denied the motion for summary judgment, and the Court of Appeals affirmed the trial court’s denial. We hold that a voluntary nonsuit taken pursuant to Tennessee Rule of Civil Procedure 41 is not a favorable termination on the merits for purposes of a malicious prosecution claim. We reverse the Court of Appeals and remand to the trial court for entry of summary judgment in favor of the patient and for further proceedings consistent with this opinion.


STATE OF TENNESSEE v. CHARLES E. LOWE-KELLEY

Court: TN Supreme Court

Attorneys:

Mark K. Green (at trial) and Robert C. Richardson, Jr. (at motion for new trial and on appeal), Columbia, Tennessee, and Patrick Timothy McNally (on appeal), Nashville, Tennessee, for the appellant, Charles E. Lowe-Kelley

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Mark A. Fulks, Senior Counsel; and Benjamin A. Ball, Assistant Attorney General, for the appellee, State of Tennessee

Judge: HOLDER

A defendant was sentenced following his conviction on two counts of first degree murder and nine counts of attempted first degree murder. Eighteen days later, his attorney filed a motion requesting a new trial and withdrew as counsel. The motion contained no specific grounds for relief. The trial court appointed replacement counsel. Several months later, replacement counsel amended the motion for new trial to allege specific grounds for relief. The trial court denied the amended motion for new trial. The Court of Criminal Appeals held that the original motion for new trial was a nullity because it contained no grounds for relief and that the trial court therefore did not have jurisdiction to permit the amendment of the motion for new trial. The Court of Criminal Appeals therefore considered the defendant’s specific grounds for relief as waived. We hold that the original motion for new trial met the requirements of Tennessee Rule of Criminal Procedure 33 despite its failure to allege specific grounds for relief and that the trial court retained jurisdiction to permit the amendment of the motion. The cause is remanded to the Court of Criminal Appeals to consider the defendant’s appeal of the denial of his amended motion for new trial.


TN Court of Appeals

MILLARD BURRIS ET AL. v. DEXTER WATSON ET AL.

Court: TN Court of Appeals

Attorneys:

J. Lewis Kinnard, Madisonville, Tennessee, for the appellants, Dexter Watson, Dewey Watson, Jr., Ruth Marie Millsaps and Earl McKinley Watson.

Dwaine B. Thomas, Madisonville, Tennessee, for the appellee, Thomas Pannell.

Judge: SUSANO

This case began when the original plaintiffs filed a complaint to quiet title seeking a declaration of the boundary line separating their land from the defendants’ neighboring property. The disputed line is the northern boundary of the plaintiffs and the southern boundary of the defendants. The defendants asserted in their answer that they had adversely possessed the disputed property. Shortly after this action was filed, the plaintiffs’ property was sold to a third party in a court-ordered sale. The purchaser was substituted as the sole plaintiff in place and instead of the original plaintiffs. The defendants moved that the case be dismissed on the ground that the sale to the new owner was champertous. The court denied the motion and conducted a trial on the merits after which it entered judgment in favor of the remaining plaintiff. The defendants appeal. We affirm.


MARY ANN CAUDLE, NEXT OF KIN AND CO-EXECUTOR OF ESTATE OF LOUISE K. FITE, DECEASED, AND ON BEHALF OF WRONGFUL DEATH BENEFICIARIES OF LOUISE K. FITE v. COLUMBIA OPERATIONS, LLC D/B/A LIFE CARE CENTERS OF COLUMBIA AND LIFE CARE CENTERS OF AMERICA, INC.

Court: TN Court of Appeals

Attorneys:

Cameron C. Jehl, Carey L. Acerra, and Deborah Truby Riordan, Memphis, Tennessee for Plaintiff/Appellant Mary Ann Caudle, next of kin and co-executor of estate of Louise K. Fite, deceased, and on behalf of the wrongful death beneficiaries of Louise K. Fite

John Barry Burgess and Marc A. Sorin, Memphis, Tennessee for Defendant/Appellees Columbia Operations, LLC d/b/a Life Care Center of Columbia and Life Care Centers of America, Inc.

Judge: KIRBY

This is an interlocutory appeal from a trial court’s grant of a motion to compel arbitration. The mother executed a power of attorney in favor of the plaintiff daughter. Subsequently, the daughter signed documents on her mother’s behalf for admission into the defendant nursing home. The documents included an agreement to arbitrate any disputes with the nursing home. After the mother died, the daughter filed this wrongful death lawsuit against the nursing home. The nursing home filed a motion to stay the lawsuit and compel arbitration; this motion was granted. The daughter was then granted permission for this interlocutory appeal, on the issue of whether the power of attorney gave the daughter authority to sign the arbitration agreement and waive her mother’s right to a jury trial. Interpreting the language in the power of attorney document, we find that the daughter had authority to execute the nursing home admission documents, including the arbitration agreement, only if, in the opinion of her physician, the mother was “incompetent or incapable of action” for herself. Therefore, we reverse and remand for further proceedings.


HAAS & WILKERSON, INC. v. GEREN RIDES, INC., A/K/A MEGA MIDWAYS v. AZALEA CITY AMUSEMENTS, INC.

Court: TN Court of Appeals

Attorneys:

Jeremy W. Parham, Manchester, Tennessee, for the Appellant, Azalea City Amusements, Inc.

John B. Ingleson, Murfreesboro, Tennessee, for the Appellee, Haas & Wilkerson, Inc.

Judge: DINKINS

Intervenor in a suit to domesticate a foreign judgment and to levy on property of the judgment debtor appeals the failure of the trial court to grant its Tenn. R. Civ. P. 60.02 motion and set aside an order dismissing its claim. Finding that Intervenor should have been granted relief, we reverse the judgment and remand the case for further proceedings.


TERESA HOLT, ET AL. v. THE DOLLYWOOD COMPANY

Court: TN Court of Appeals

Attorneys:

John D. Agee and Bradley D. Williams, Clinton, Tennessee, for the appellants, Teresa Holt and Archie J. Holt.

Daniel M. Gass, Knoxville, Tennessee, for the appellee, The Dollywood Company, a joint venture between Dolly Parton Productions, Inc. and Herschend Family Entertainment Corp.

Judge: SWINEY

Teresa Holt and Archie J. Holt (“Plaintiffs”) sued The Dollywood Company, a joint venture between Dolly Parton Productions, Inc. and Herschend Family Entertainment Corp. (“Defendant”) with regard to injuries Ms. Holt received as a result of her fall on a Dollywood tram. Defendant filed a motion for summary judgment. After a hearing, the Trial Court granted Defendant summary judgment finding and holding, inter alia, that Ms. Holt’s own negligence was the primary cause of her fall and that Ms. Holt was at least 50% at fault. Plaintiffs appeal to this Court. We find and hold that a reasonable jury could find that Ms. Holt was less than 50% at fault. We, therefore, reverse the Trial Court’s judgment and remand for further proceedings.


NORMA SIMPSON, individually and next of kin of J.W. Simpson v. FAYE FOWLER, ET AL.

Court: TN Court of Appeals

Attorneys:

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Faye Fowler.

Bruce S. Conley, Union City, Tennessee, for the appellee, Norma Simpson.

Judge: STAFFORD

This is an appeal from the trial court’s order, setting aside certain transfers by decedent to Appellant. Decedent and Appellee were married, but had been separated for over twenty years. Before his death, Decedent transferred certain property to his paramour, the Appellant herein. When Decedent died, Appellee, his surviving, but estranged spouse petitioned the court to set aside the transfers to Appellant under Tennessee Code Annotated Section 31-1- 105. The trial court made certain findings from the bench, but the trial court did not incorporate these oral findings into its order as required under Tennessee Rule of Civil Procedure 52.01, and specifically made no finding that Decedent acted fraudulently or with intent to deprive Appellee of her share of the estate as required for application of Tennessee Code Annotated Section 31-1-105. Accordingly, we vacate and remand to the trial court for further proceedings.


TN Court of Criminal Appeals

LAURA JUNE BOWLING v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Sally A. Goade (on appeal) and Wesley D. Stone (at hearing), Knoxville, Tennessee, for the appellant, Laura June Bowling.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William Paul Phillips, District Attorney General; and Thomas E. Barclay, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Laura June Bowling, filed a timely pro se petition for post-conviction relief challenging her guilty-pleaded conviction of second degree murder for which she received a sentence of 15 years’ incarceration. Following the appointment of counsel and the exhaustion of the one-year limitations period, the petitioner entered into an agreed order with the State withdrawing her petition. The post-conviction court then dismissed the petition with prejudice. The petitioner now appeals the dismissal order, alleging that her withdrawal of the petition was unknowingly and involuntarily entered. Discerning no error in the postconviction court’s dismissal, we affirm the order of the post-conviction court.


CHRISTOPHER A. DAVIS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Matthew J. Sweeney, Gary C. Shockley and John S. Hicks, Nashville, Tennessee, for the Petitioner, Christopher A. Davis

Robert E. Cooper, Jr., Attorney General and Reporter, and Rachel West Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney General and Thomas B. Thurman and Katrin N. Miller, Assistant District Attorneys General, for the Respondent, State of Tennessee

Judge: THOMAS

The Davidson County Criminal Court denied the Petitioner, Christopher A. Davis, postconviction relief from his convictions on two counts of first degree murder, two counts of especially aggravated kidnapping, and two counts of especially aggravated robbery, but granted relief from his sentence of death and ordered a new capital sentencing hearing. The Petitioner appeals the denial of a new trial and the State appeals the granting of a new sentencing hearing. Having discerned no error, we affirm the order of the trial court.


STATE OF TENNESSEE v. MITCHELL JAROD FORD

Court: TN Court of Criminal Appeals

Attorneys:

Donna Orr Hargrove, District Public Defender; and William Harold (on appeal and at trial) and Michael J. Collins (at trial), Assistant District Public Defenders, Shelbyville, Tennessee, for the appellant, Mitchell Jarod Ford.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard and Chris Collins, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Mitchell Jarod Ford, was convicted by a Marshall County Circuit Court jury of arson and aggravated burglary, Class C felonies. See T.C.A. §§ 39-14-301, 39-14-403 (2010). He was sentenced as a Range III, persistent offender to two concurrent fifteen-year terms. The trial court ordered the sentences to be served consecutively to three previous sentences. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions and (2) the trial court erred by imposing fifteen years’ confinement for each conviction. We affirm the judgments of the trial court.


STATE OF TENNESSEE v. JAMES KENNETH WOMBLE

Court: TN Court of Criminal Appeals

Attorneys:

J. Daniel Freemon, Lawrenceburg, Tennessee; and Chelsea Nicholson, Nashville, Tennessee, for the appellant, James Kenneth Womble.

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

Judge: WOODALL

Defendant, James Kenneth Womble, pled guilty to driving under the influence of intoxicants (DUI), first offense, pursuant to a negotiated plea agreement. He properly reserved a certified question of law for appeal. The question of the law is dispositive of the case. After a thorough review we affirm the judgment of the trial court.


Prosecutors: Baumgartner Distributing Drugs, Too

Assistant U.S. attorneys Zachary Bolitho and David Lewen allege that former Knox County Criminal Court Judge Richard Baumgartner lied not only to cover up his mistress' misdeeds but to protect a network of drug pushers, of which he was a part, the News Sentinel reports. Defense attorney Donald A. Bosch said the claims presented at a hearing yesterday in U.S. District Court were outrageous.


Craft is Chair of Judicial Conduct Board

At the first official meeting last week of the Board of Judicial Conduct, Judge Chris Craft was selected as chair. Other officers are Judge Timothy Easter, vice-chair; Tom Lawless, secretary; and Judge Jeffrey Bivins, General Assembly liaison. All their terms terminate in August 2013. Download the list of members


Court Will Consider Juror-to-Witness Facebook Message

The Tennessee Supreme Court will soon address the hazards that the internet age has created in the justice system, specifically concerning a juror who sent a witness a Facebook message during a trial. The juror wrote that the witness "did a great job today” and “really explained things so great!” Another case the court will hear considers a remittitur where the jury awarded $43.8 million in damages and assessed 15 percent fault against Ford Motor Company. But the Court of Appeals remanded with a suggestion of remittitur to a total amount of $12.9 million (of which Ford remains only 15 percent liable). In another case, the court will revisit the corpus delicti rule to determine if this rule survived the new criminal code and how it should be interpreted. Read more about these cases and others coming before the court in the Raybin-Perky Hot List.


Public Policy Added to UT Master's Degree

The University of Tennessee this fall began offering a new master of public policy and administration through a partnership between the Howard H. Baker Jr. Center for Public Policy and the College of Arts and Science’s political science department. The new degree replaces the existing master of public administration degree that has been offered for more than 40 years. The degree will "equip students with the knowledge and skills needed to be effective managers, responsible executives and ethical public servants,” program director Professor David Folz said.


Robertson Judge Recuses Self in Sexual-Abuse Custody Case

Robertson County Circuit Judge Ross Hicks recused himself today in a matter involving a mother who defied his court order, going on the run with her son instead of turning him over into the custody of his father, who she believed was sexually abusing the boy. At the time, an 11-person state investigative team had decided that William Cone, the boys' father, was doing just that but in Hicks' court, Georgia Dunn lost primary custody. Cone was arrested and charged with rape of a child last week, and now Dunn has surrendered to police. Tomorrow she will be back in court to determine whether the felony she is charged with will stand. WSMV reports


Conviction Upheld on Threatening YouTube Video

The U.S. Court of Appeals for the 6th Circuit on Monday upheld the conviction of Franklin Delano Jeffries II for transmitting an interstate threat. He appeared in a YouTube video singing a menacing song about Knox County Chancellor Michael Moyers, who was handling Jeffries child custody case at the time. The Jackson Sun has more


Survey: Not Many Love 'Alternative Fees'

Only 26 percent of legal departments and 11 percent of law firms reported they were "very satisfied" with alternative fees or flat-fee system, according to a recent survey. ABAJournal.com reports


South Carolina Voter ID Law Trial Underway

The federal trial over South Carolina's voter identification law began Monday. During testimony, state Sen. George "Chip" Campsen III cited examples of fraud that he took into consideration while drafting early versions of South Carolina's law. But under questioning from Justice Department attorney Anna Baldwin, Campsen said the examples he gave did not involve the type of fraud that requiring photo identification would address. The Justice Department rejected South Carolina's law, passed last year, which requires specific photo identification be shown in order to vote. The department decided the law violates Section 5 of the federal Voting Rights Act, which protects minority voters. South Carolina's voter photo ID law was subject to approval from the Justice Department because of its history of racial discrimination. WRCB has this AP story


Chief Justice to Swear-in Hamblin Officials

Tennessee Chief Justice Gary Wade on Thursday will swear in Hamblen County officials. The ceremony will take place at 5 p.m. in the chancery court room at the Hamblen County Courthouse and will be open to the public. General Sessions Judge Doug Collins will be sworn-in, as well as board of education members, commissioners and other officials. The Citizen Tribune reports


Romney Lawyer Faces Criticism Over Rules Change

The Romney campaign's top lawyer, Benjamin Ginsberg, is facing a growing storm of criticism from Republican delegates who say he pushed through a rules change that would help Mitt Romney if the presumptive GOP nominee ousts President Barack Obama and seeks reelection. Ginsberg led the effort to insert language into a rules committee report that would allow presidential candidates to select their own delegates in states they carry, stripping away a power that the state Republican parties hold, according to members of the rules panel. The Blog of Legal Times reports


Carr Says Akin Should Stay, But Denies Agreement on Rape

State Rep. Joe Carr, R-Lascassas, denied telling a reporter today that he agreed with U.S. Rep. Todd Akin’s theory that victims of “legitimate rape” seldom carry pregnancies to term, but he stood by his position that Akin should not be pressured to leave the Missouri Senate race. Carr confirmed to the Tennessean that he does not think Akin should be forced to drop out, but that view does not constitute proof that he agrees with Akin on the subject of rape.


TBA Adds New Coordinator for Leadership Program

Brittany Sims will join the Tennessee Bar Association next week as coordinator for the TBA Leadership Law program. A Nashville native, Sims graduated from Hampton University in Hampton, Va., then returned to Nashville to work as a VISTA volunteer with AmeriCorp. While pursuing a graduate degree at Tennessee State University, Sims worked with the TSU Center for Service Learning and Civic Engagement and then moved on to become a program coordinator there. In addition, she serves as assistant volleyball coach at Fisk University. Her degree is in public administration, with a certificate in nonprofit management. At the TBA, Sims also will join the team that gathers news for the daily TBAToday newsletter and TBA website.


 
 

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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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