Wednesday, September 12, 2012


Feds Closing 6 Courthouses in South; More Cuts Likely

The federal judiciary says it will close six courthouses in the South because of inadequate funding from Congress and the prospect of more cuts to come. Locations include Gadsen, Ala.; Pikeville, Ky.; Meridian, Miss.; Wilkesboro, N.C.; Beaufort, S.C.; and Amarillo, Texas, News Channel 5 reports. In addition to announcing the closings, the Judicial Conference asked all district courts to adopt shared administrative services and curb printing and mailing costs, according to the ABA Journal.

In related news, David Sentelle, chief judge of the U.S. Circuit Court of Appeals for the District of Columbia, this week warned that federal civil jury trials in the United States likely would have to be suspended if Congress fails to reach a budget deal next year. As reported by the Associated Press, he also said that the nation’s probation system and payment for defense lawyers could be thrown into disarray. If Congress does not reach a budget deal by year’s end, some $1.2 trillion in spending cuts and tax increases automatically will kick in. According to Sentelle, the federal judiciary's share of the cuts would be more than $500 million.

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
06 - TN Court of Appeals
07 - 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


Court: TN Court of Appeals


Lee Bussart Bowles, Lewisburg, Tennessee, for the Appellant, Niel R. Josephson.

John R. White, Shelbyville, Tennessee, for the Appellees, Tracy Lynn Davis and Fred Thomason McMillen, IV.


Husband and Wife executed wills in which each relinquished the right of survivorship in the marital residence and ordered that the property be sold and that $152,000 of the sale proceeds be distributed to Wife’s children. Following the death of Wife, her children brought action to compel Husband to dispose of the property in accordance with Wife’s will. Husband appeals the holding that the wills he and Wife executed created a valid, enforceable contract that required him to sell their residence upon her death. We affirm the judgment of the trial court.


Court: TN Court of Appeals


Charles F. Wysong, Jr., James Folkner, and Darrell Silvey, Chattanooga, Tennessee, pro se appellants.

Harold L. North, Jr., Frederick L. Hitchcock, and Tom Greenholtz, Chattanooga, Tennessee, for the appellee, Ron Littlefield.

J. Christopher Clem, Chattanooga, Tennessee, for the appellee, Hamilton County Election Commission.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, and Janet M. Kleinfelter, Deputy Attorney General, Nashville, Tennessee, for the third party appellee, State of Tennessee.

Michael A. McMahan and Melinda Foster, Chattanooga, Tennessee, for the intervening appellee, City of Chattanooga.


This is the second time the attempt to recall Chattanooga’s mayor has been before this court. In the initial appeal, we concluded the trial court acted prematurely and without jurisdiction when it enjoined the election commission from placing the recall issue on the ballot, because the election commission, at that point in time, had not formally decided whether or not to certify the recall petition. After we vacated the void judgment of the trial court, the election commission certified the recall petition and the mayor again filed suit seeking a declaratory judgment that the petition process was flawed and to enjoin the placement of the recall issue on the ballot. The trial court found that the petition seeking the recall of the mayor is invalid and illegal because it does not comply with all the requirements of Tennessee Code Annotated section 2-5-151. The leaders of the recall effort appeal. We affirm in part and reverse in part.


Court: TN Court of Appeals


Suzette Peyton, Brentwood, Tennessee, for the appellant, Paul F. Caruana.

Andrew Clark Rambo, Shelbyville, Tennessee, for the appellee, Dan J. Marcum.


The defendant in this action filed a motion for recusal with the trial judge alleging bias against both himself and his counsel. The trial judge denied the motion, and the defendant filed this interlocutory appeal as of right pursuant to Tenn. S. Ct. R. 10B. We affirm the trial court’s denial of the motion for recusal.


Court: TN Court of Appeals


Michael P. Mills, Brentwood, Tennessee, for the appellant, Robertson County Board of Education.

Jonathan A. Street, Nashville, Tennessee, for the appellee, Misty Phillips on behalf of her minor son, Jacob Gentry.


County appeals the trial court’s decision finding the County liable for injuries sustained by a student with Asperger’s syndrome in an altercation with another student. Finding that the evidence does not preponderate against the trial court’s determination, we affirm.


Court: TN Court of Appeals


Mark J. Downton, Nashville, Tennessee, for the appellants, James Michael Pylant and William Samuel Lewis.

Robert E. Cooper, Jr., Attorney General and Reporter; William Young, Solicitor General; and Pamela S. Lorch, Senior Counsel, for the appellee, Bill Haslam, Governor of the State of Tennessee.


Petitioners appeal from the dismissal of their complaint for declaratory relief, injunctive relief, and damages wherein they challenged the constitutionality of a now superseded section of the Tennessee Bail Reform Act, Tennessee Code Annotated § 40-11-118(a). Petitioners contended that the 2011 statute prohibited night court judges or magistrates from setting bail for persons charged with a second or higher driving under the influence violation, thus requiring they be confined until a general sessions court judge or criminal court judge was available. The trial court dismissed the claims for declaratory and injunctive relief on the grounds of res judicata and collateral estoppel and dismissed the claim for monetary damages against Governor Bill Haslam upon the ground of sovereign immunity. We find the challenge to the constitutionality of the 2011 version of subsection (a) moot as the challenged provisions of subsection (a) have been deleted and superseded. We also affirm the dismissal of the claims against Governor Haslam for monetary damages as he has sovereign immunity.


Court: TN Court of Appeals


Arthur G. Seymour, Jr. and Matthew A. Grossman, Knoxville, Tennessee, for the appellant, Regions Bank.

Rob Starnes, Kingsport, Tennessee, for the appellee, Ezra Williams, Deceased.


In January of 2011, Ezra Williams (“Plaintiff”) sued Stephen Leon Williams and Regions Bank . Plaintiff died in May of 2011. Regions Bank filed a Suggestion of Death. No motion for substitution of proper party was made within ninety days after Plaintiff’s death was suggested upon the record. In July of 2011, the attorney who had represented Plaintiff prior to Plaintiff’s death filed a Motion for Voluntary Dismissal. In October of 2011, Regions Bank filed a Motion for Summary Judgment. The Trial Court granted the Motion for Voluntary Dismissal without prejudice. Regions Bank appeals to this Court. We hold that the Trial Court should have dismissed the case pursuant to Tenn. R. Civ. P. 25.01 for failure to timely move for substitution of proper party. We, therefore, vacate the Trial Court’s judgment and dismiss this case pursuant to Tenn. R. Civ. P. 25.01.

TN Court of Criminal Appeals


Court: TN Court of Criminal Appeals


Roger Brent Banks, Pro Se, Whiteville, Tennessee.

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

Judge: SMITH

Petitioner, Roger Brent Banks, was indicted by the Davidson County Grand Jury for six counts of aggravated sexual battery and one count of solicitation of sexual exploitation of a minor. Petitioner pled guilty to three counts of aggravated sexual battery. The remaining counts were dismissed. As part of the plea agreement, Petitioner received an effective sentence of sixteen years at 100%, and was ordered to lifetime supervision after the service of the sentence. Petitioner sought post-conviction relief on the basis that his sentences were void and illegal. The petition was dismissed as untimely. Petitioner appeals. After a review of the record, we determine that the petition was properly dismissed as untimely as Petitioner failed to show any reason that the statute of limitations should be tolled. As a result, the judgment of the post-conviction court is affirmed.


Court: TN Court of Criminal Appeals


Cedric Davis, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Pamela Fleming, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Cedric Davis, appeals the summary denial of his petition for writ of error coram nobis. Following our review, we affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals.


Court: TN Court of Criminal Appeals


Fletcher Gordon, Only, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and Kim Helper, District Attorney General, for the appellant, State of Tennessee.


The Petitioner, Fletcher Gordon, pled guilty to second degree murder. The trial court sentenced him to twenty-three years in the Tennessee Department of Correction, and it awarded him no jail credit. The Petitioner filed a petition for writ of habeas corpus, alleging that the trial court failed to award him pretrial jail credit. He asserted that he was incarcerated pending arraignment and trial from December 20, 2004, to August 24, 2006. The State filed a motion to dismiss the Petitioner’s motion based upon the Petitioner’s failure to provide documentation supporting his claim. The trial court granted the State’s motion to dismiss the Petitioner’s petition for writ of habeas corpus. On appeal, the Petitioner contends that the trial court improperly dismissed his petition. After a thorough review of the record and applicable authorities, we affirm the habeas corpus court’s judgment.


Court: TN Court of Criminal Appeals


Andrew Helton, Pro Se, Only Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter, and Brent C. Cherry, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the State’s motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Appellant, Andrew Helton, has appealed the Davidson County Criminal Court order dismissing his motion for new trial in which Appellant alleged that: (1) the trial court erred by denying Appellant the right to be present at his trial; (2) the trial court erred by failing to instruct the jury on all lesser included offenses; and (3) the trial court erred by failing to allow the jury to examine evidence during deliberation. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the motion for new trial as duplicitous and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.


Court: TN Court of Criminal Appeals


Nancy C. Meyer, Assistant District Public Defender, Clinton, Tennessee, for the appellant, Bethany Lorraine Kuykendall.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; David S. Clark, District Attorney General; and Ryan Spitzer, Assistant District Attorney General, for the appellee, State of Tennessee.


The Defendant, Bethany Lorraine Kuykendall, pleaded guilty to theft of property valued at more than $1000 but less than $10,000, for which she was granted judicial diversion with the requirements that she complete two years of probation and pay $150 per month toward restitution. On appeal, she contends that the trial court abused its discretion in setting the restitution amount. Because we lack jurisdiction to consider her appeal, we dismiss it.


Court: TN Court of Criminal Appeals


Miqwon Deon Leach, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel, for the appellees, Dwight Barbee, Warden, and the State of Tennessee.

Judge: PAGE

Petitioner, Miqwon Deon Leach, appeals the summary dismissal of his petition for a writ of habeas corpus. He challenges his 2001 conviction for felony murder, for which a jury sentenced him to life imprisonment without the possibility of parole. He also challenges his conviction for conspiracy to commit second degree murder that arose from the same case. As grounds for habeas corpus relief, petitioner argues that: (1) conspiracy to commit second degree murder is not a cognizable offense under Tennessee law, rendering his conviction void; and (2) the evidence at trial did not establish his intent to commit felony murder. The habeas corpus court summarily dismissed the petition, and we affirm the judgment of the court.


Court: TN Court of Criminal Appeals


Derwin Thomas, Mountain City, Tennessee, pro se.

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

Judge: OGLE

The petitioner, Derwin Thomas, filed in the Bledsoe County Circuit Court a petition for a writ of habeas corpus, alleging that the indictment charging him with especially aggravated kidnapping, especially aggravated robbery, and first degree murder was defective for failure to allege the theory of criminal responsibility. The habeas corpus court summarily dismissed the petition, finding that the petitioner failed to allege grounds upon which habeas corpus relief could be granted. On appeal, the petitioner challenges the habeas corpus court’s ruling. Upon review, we affirm the judgment of the habeas corpus court.

Nashville Attorney Petitions for Advertisement Regulation

Nashville attorney Matt Hardin has petitioned the Tennessee Supreme Court to regulate what he called “outrageous and deceptive advertising” by area law firms, the Nashville Business Journal reports. Hardin states that advertisements using paid actors purporting to be injured clients diminish public trust by misleading audiences. Blair Durham, whose firm Durham & Dread utilizes television advertising, said he plans to file a response to Hardin’s petition stating that the firm's commercials comply with all state rules and ethics. 

Adelman Law Merges with Mississippi Firm

Adelman Law Firm of Memphis has announced it will merge with Wilkins Tipton PA, based in Jackson, Miss., effective Jan. 1, 2013. The Adelman firm was founded by Rebecca Adelman in 2001. The merger will allow the firms to expand offices in Memphis and Nashville as well as Jackson and Greenville, Miss., Birmingham, Ala., and Charlotte, N.C. The firms have long-term plans also to expand to Arkansas. Learn more about the merger

New TLAW Director Named

Karol Lahrman has been named the new executive director of the Tennessee Lawyers Association for Women (TLAW). Lahrman, who has extensive experience in event planning, public relations, networking and public speaking, is also the owner of Reflection Model and Talent Agency in Franklin. She serves on the board of the O’More College of Design in Franklin and as an adjunct faculty member with Image Conservatory, which offers students insights into career advancement and strategies. Learn more about Lahrman. Contact her at or (615) 369-9777.

Baumgartner Loses Evidence Motion

U.S. Magistrate Judge Clifford Shirley has ruled that former Knox County Criminal Court Judge Richard Baumgartner will not get access to a list of evidence that prosecutors intend to use at trial. Baumgartner is facing federal charges he covered up a pill distribution conspiracy. While documents and materials that could be used at trial have been turned over, Shirley found that the prosecutors are not required to pinpoint exactly what materials they will use or to outline their trial strategy. Read more in the News Sentinel

DA’s Office Evacuated After Suspicious Letter Found

The downtown office of Nashville District Attorney General Torry Johnson was evacuated yesterday, The Tennessean reports, after a suspicious package was delivered. Spokeswoman Susan Niland said the office received a threatening letter that included white powder in the envelope. Law enforcement evacuated the office and closed part of Second Avenue near the county courthouse. Keith Moses, with the FBI’s Nashville office, said the package was taken to a state laboratory for analysis.

Obama Breaks Records for Female, Diverse Judges

According to the Blog of Legal Times, Barack Obama has surpassed any other president in history in placing women judges on the federal bench during a single term. Other milestones include appointing six women to districts where no female has ever served, and appointing as many women to the federal bench in his first term as George W. Bush did during his two terms. Obama’s 72 female judicial appointments mean that three out of 10 federal judges are now women. The paper also reports that the current administration has appointed more African American, Asian Pacific American and Hispanic judges than the previous administration.

School Board Defies State Order, Lawyer’s Advice

The Nashville Metro School Board has again defied a state order and the advice of its own legal counsel, voting Tuesday to deny the charter school application of Great Hearts Academies. According to the City Paper, the board voted 5-4 to deny the school's application. On Wednesday, the Arizona-based school told WPLN that  it is suspending efforts to locate a school in Nashville. 

Judge Acree to Step Down After Current Term

Circuit Judge William B. “Bill” Acree Jr. announced this week that he will not seek re-election when he finishes his current term on the bench in two years. Acree, who serves the 27th Judicial District counties of Obion and Weakley, will leave the bench on Aug. 31, 2014, after 20 years of service. Though he is retiring from the bench, Acree says he plans to continue working as a civil mediator two to three days a week. NWTN Today looks back at his career.

Proposal to Expand Discrimination Ban in Question

The Tennessee Equality Project wants the Memphis City Council to include sexual orientation and gender identity discrimination in a non-discrimination city ordinance now before the council, the Commercial Appeal reports. The ordinance, sponsored by councilman Lee Harris, bans discrimination in city employment based on age, ethnicity, national origin and disability. Harris has not decided whether or not to expand the ordinance, which is scheduled for final vote on Tuesday.

Gibbons: Tennessee Needs to Streamline DUI Laws

Tennessee Safety Commissioner Bill Gibbons says the state needs to look into streamlining the DUI laws, according to the Memphis Commercial Appeal. “Right now our DUI law is 58 pages long. That's compared to an 18-page first-degree murder death-penalty statute. So it's very complicated,” he says. Gibbons believes an updated, revamped DUI law will be easier for prosecutors, defense attorneys and citizens to understand. The department plans to submit a proposal to the state legislature in January 2013.

West Memphis Murder Documentary Premieres Tonight

Free, advanced screenings of Peter Jackson’s documentary “West of Memphis” begin tonight in Memphis and will continue over the next several weeks throughout the Memphis area and Arkansas. The documentary covers the well-publicized case of the "West Memphis Three" who were released in 2011 after being wrongly imprisoned for murder for almost 20 years. The documentary is set for national release on Dec. 25. Read more in the Commercial Appeal.


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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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