Conservatorship Hearing Draws Substantial Interest

A public hearing to gather information about how current conservatorship law is working or could be improved drew about 70 people to the Tennessee Bar Center today, including more than a dozen who spoke of problems they or their family members have had with conservatorships. The hearing was the first of four scheduled across the state to provide an opportunity for lawyers, community leaders and citizens to discuss what works with the present conservatorship law and how practice and procedure could be improved. The Associated Press provided coverage to the Knoxnews.com and others. See photos from today's hearing or find out more about the upcoming hearings.

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.

01 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
04 - 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

TROY MITCHELL v. FAYETTEVILLE PUBLIC UTILITIES
CORRECTED OPINION: (1) On page 7, 6th line from the bottom, "Coleman v. Coker, 321 S.W.2d" is changed to "Coleman, 321 S.W.2d"; (2) On page 7, in Footnote 3, " . . . " is changed to " . . . . "; (3) On page 8, line 12, "321 S.W.2d 542-43" is changed to "321 S.W.2d at 542-43"; (4) On page 9, in the last line of the last paragraph, "1964" is changed to "1965"; and (5) On page 11, in line 4 of the paragraph following the quotation, "Employer" is changed to "employer"

Court: TN Supreme Court

Attorneys:

B. Duane Willis, Jr., Nashville, Tennessee, for the appellant, Fayetteville Public Utilities.

Sonya W. Henderson, Murfreesboro, Tennessee, for the appellee, Troy Mitchell.

Judge: WADE

The trial court awarded workers’ compensation benefits to an injured lineman who had violated a rule requiring the use of protective gloves while in a bucket lift. The employer appealed, contending that the statutory defenses of willful misconduct and, more particularly, the willful failure or refusal to use a safety appliance or device precluded recovery. The appeal was referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Code Annotated section 50-6-225(e)(3) (2008). After oral argument before the Panel, but before the Panel filed its opinion, the case was transferred to the full Court. Because the evidence establishes that the employee admitted his knowledge of a regularly enforced safety rule, understood the rationale for the rule, and willfully (rather than negligently or recklessly) failed to comply, the injuries he suffered because of the rule violation are not compensable. The judgment of the trial court is, therefore, reversed and the case is dismissed.


TN Court of Appeals

PAM BARNETT v. TENNESSEE ORTHOPAEDIC ALLIANCE ET AL.

Court: TN Court of Appeals

Attorneys:

Pamela Ann Barnett, Brentwood, Tennessee, Pro Se.

Noel F. Stahl and David L. Johnson, Nashville, Tennessee, for the appellee, Tennessee Orthopaedic Alliance, P.A., and Edward Mackey, M.D.

Judge: CLEMENT

This medical malpractice action, which had been pending for several years, was summarily dismissed because the plaintiff did not file a response to the defendants’ motion for summary judgment, the plaintiff’s only expert witness admitted she was not qualified to opine concerning the standard of care at issue, and the statute of limitations had run. Upon motion of the defendants pursuant to Tennessee Rule of Civil Procedure 54.04(2), the trial court awarded the defendants $9,000 in discretionary costs. This appeal followed. We affirm. We have also determined that this appeal is frivolous and remand to the trial court to determine the proper amount of damages pursuant to Tennessee Code Annotated § 27-1-122.


IN RE: CONSERVATORSHIP OF ALFONSO B. PATTON
CORRECTED OPINION: On the first page, the judge panel has been corrected by removing "Richard H. Dinkins" and adding "Jeffrey S. Bivins, Sp. J.".

Court: TN Court of Appeals

Attorneys:

Patricia D. Richmond and Ronnie Richmond, Nashville, Tennessee, pro se.

David J. Callahan, III and Peggy Duncan Mathes, Nashville, Tennessee, for the appellee, Conservatorship of Alfonso B. Patton.

Judge: CLEMENT

This is an interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B from the trial court’s denial of a motion for recusal. Having reviewed the appellant’s petition for recusal appeal pursuant to the de novo standard as required under Rule 10B, § 2.06, we affirm the trial court’s decision to deny the petitioner’s motion for recusal.


CASS RYE & ASSOCIATES, INC. v. EDWARD COLEMAN, ET AL.
CORRECTED OPINION: On the front page, the last name of the appellant's attorney has been changed from "Thompson" to "Thomason"

Court: TN Court of Appeals

Attorneys:

Robert Isaiah Thomason, Jr., Waverly, Tennessee, for the Appellant, Cass Rye & Associates, Inc.

Mark Allen Rassas and Julia Palasek North, Clarksville, Tennessee, for the Appellees, Edward Coleman, Margaret Mann, Joyce Coleman, Tim Coleman, and Vickie Reedy.

Judge: DINKINS

Plaintiff in suit seeking to have court declare boundaries of fifteen acre tract of land appeals the declaration of boundaries and award of the tract to Defendants, adjoining landowners. Defendants appeal finding that Plaintiff adversely possessed a portion of the fifteen acre tract. Finding no error, we affirm.


AMANDA SMITH v. WILLIAM R. WALKER ET AL.

Court: TN Court of Appeals

Attorneys:

Floyd Don Davis and Norris Arthur Kessler, III, Winchester, Tennessee, for the appellant, Amanda Smith.

S. Todd Bobo, Shelbyville, Tennessee, for the appellee, William R. Walker.

Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the appellee, Jimmy F. Maloy.

Judge: BENNETT

In this negligence action, the jury awarded the plaintiff a verdict against one of the two defendants. We find no error in the judgment regarding liability, but we must vacate and remand as to damages because the trial court erred in excluding testimony and evidence regarding the plaintiff’s medical expenses.


TN Court of Criminal Appeals

ROGER HATHAWAY, JR. v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Roger Hathaway.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Roger Hathaway, Jr., pleaded guilty to attempted aggravated arson, attempted second degree murder, and possession of a firearm during the commission of a felony and received a total effective sentence of 12 years to be served at 30 percent. Petitioner appeals the trial court’s denial of his petition for post-conviction relief, in which he alleged that he received the ineffective assistance of counsel and that his plea was not voluntarily and knowingly entered. After a careful review of the record, we affirm the judgment of the postconviction court.


ALEJANDRO RIVERA v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Jeffery S. Greene, Newport, Tennessee, for the appellant, Alejandro Rivera.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; James B. Dunn, District Attorney General; and W. Brownlow Marsh, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Alejandro Rivera, appeals the dismissal of his petition for post-conviction relief in which he alleged that he received ineffective assistance of trial counsel because: (1) counsel failed to “formulate a defense and to present testimony from all essential witnesses;” and (2) counsel failed to file an appeal to the Tennessee Supreme Court. After a review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. BILLY JOE SMITH

Court: TN Court of Criminal Appeals

Attorneys:

Mark D. Harris, Kingsport, Tennessee, for the appellant, Billy Joe Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; H. Greeley Welles, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Pursuant to a negotiated plea agreement, Defendant, Billy Joe Smith, pled guilty to: (1) possession of more than one-half ounce of marijuana, a Class E felony; (2) maintaining a dwelling where controlled substances were used or sold, a Class D felony; and (3) two separate counts of possession of drug paraphernalia, a Class A misdemeanor. Due to his prior criminal convictions, Defendant was designated as a Range II multiple offender for each felony conviction, and agreed to a sentence length of four years for each felony. The plea agreement provided for sentences of 11 months and 29 days for each misdemeanor conviction, and for all of the sentences to run concurrently with each other for an effective sentence of four years as a Range II offender. There was no agreement as to the manner of service of the sentence. Following a sentencing hearing, the trial court ordered that Defendant would serve the sentence in the Department of Correction. Defendant has appealed and argues that the trial court should have granted him full probation or split confinement, or ordered the sentences to be served in the community corrections program. Following a thorough review we affirm the judgments of the trial court.


JIMMY L. SMITH v. HENRY STEWARD, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Jimmy L. Smith, Tiptonville, Tennessee, Pro Se.

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

Judge: BIVINS

Jimmy L. Smith (“the Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus, alleging that counts one through four of the indictment underlying his convictions are defective, and, therefore, his judgments of conviction are void. The habeas corpus court denied relief without a hearing. The Petitioner then filed this appeal. After a thorough review of the record and the applicable law, we affirm the judgment of the habeas corpus court.


Judge Asks for Final Arguments in School Districts Case

The courtroom portion of the trial over proposed municipal schools districts in Shelby County concluded just before noon today with all parties agreeing to allow new evidence to be submitted by Oct. 4. According to the Commercial Appeal, federal District Judge Samuel "Hardy" Mays directed attorneys involved to submit final findings of fact and conclusions about the constitutionality of laws allowing municipal school districts by the same date. He also announced that a separate trial on civil rights challenges to the districts, scheduled for Nov. 6, likely would be postponed and may not be needed, depending on how he rules on the current case.


Judge Orders Legal Fees in Shackling Case

U.S. District Judge William Haynes Jr. issued an order today demanding that the Nashville government pay $1.1 million in fees and other expenses to Juana Villegas, who, in 2008, was shackled to a hospital bed hours before giving birth. Last August, a jury awarded Villegas $200,000 for having her rights violated. Metro government appealed the award and there is a hearing on the case next month. The order today is limited to legal fees and expenses. Haynes also certified Villegas' application for a special visa created to protect undocumented residents who are crime victims. The Tennessean has more.


Work to Start on New Pillsbury Office

The city of Nashville has issued a $2.7 million rehab permit to make way for law firm Pillsbury Winthrop Shaw Pittman’s new office in the downtown AT&T building, according to the Nashville Business Journal. Harvest Construction Co. is leading the work. The 42,000-plus-square-foot, 150-employee office will house the firm's non-legal services.


IG Issues Scathing Report on ‘Fast and Furious’

In a scathing report made public yesterday about the botched gun trafficking investigation known as “Operation Fast and Furious,” the U.S. Justice Department’s inspector general called for disciplinary reviews of 14 current and former employees. The IG put primary blame on what he said was a dysfunctional, poorly supervised Arizona-based group of federal prosecutors and agents at the Bureau of Alcohol, Tobacco, Firearms and Explosives. Among those targeted is former acting Deputy Attorney General Gary Grindler and Assistant Attorney General Lanny Breuer, an Obama appointee who heads the department’s criminal division. The ABA Journal links to multiple news stories.


MTSU Announces Federal Court Reporting Program

Middle Tennessee State University (MTSU) announced a new project in collaboration with the Tennessean in which students will report on the federal judicial system and federal law enforcement operations in Nashville. Named after journalism icon and former Tennessean CEO John Seigenthaler, the Seigenthaler News Service selected seven seniors as the first program scholars. Read the full story at the Daily News Journal.


First Year Salaries Down at Big Firms, NALP Reports

The median salary for first-year associates at large law firms has decreased steadily within the past three years, The ABA Journal reports. Major markets such as New York and Chicago are still offering the standard BigLaw salaries, but the prevalence of such offers is declining according to research by the Association for Legal Career Professionals (NALP). The median first-year salary at firms of all sizes, however, has increased in the last year, based on a survey of 570 law firms.


Lawyers Comprise Large Number of Mortgage Fraud Cases

Lawyers make up a surprisingly large number of the defendants in civil and criminal mortgage-related fraud cases, according to the ABA Journal. Within a national database of 25,000 complaints about suspected mortgage fraud, more than 6,000 are against attorneys and law firms. The executive director of the State Bar of California called the involvement of lawyers a “huge” problem.


New York Law Requires Pro Bono

The state of New York will require applicants to the state bar to complete 50 hours of pro bono work in order to practice law starting in 2015, the Wall Street Journal reports. Although 21 law schools have pro bono requirements for graduation, the law will be the first of its kind among the states.


Teachers Indicted in Test Scam

Ten teachers have been indicted on allegations they hired others to take their certification tests, according to the Commercial Appeal. Former Memphis City School employee Clarence Mumford was charged with operating a test-taking scam dating back to 1995. Federal authorities say more than 50 teachers and paid test-takers throughout West Tennessee, Arkansas and Mississippi have been involved. 


Post Shareholder Lawsuit, Fidelity Acquires J. Alexander’s

After settling a class-action lawsuit with shareholders two days ago, Fidelity National Financial has successfully acquired Nashville-based J. Alexander’s, the Tennessean reports. Nearly 74 percent of shareholders tendered their shares to Fidelity, giving the insurance holding company control of the dining chain which operates 33 restaurants located in 13 states.


Ginsburg Predicts Gay Marriage Before High Court

U.S. Supreme Court Justice Ruth Bader Ginsburg said yesterday that the Defense of Marriage Act (DOMA) likely would come before the U.S. Supreme Court within the next year. Her comments came during a question and answer session with students at the University of Colorado in Boulder. The 1996 DOMA law has been declared unconstitutional by a federal judge in New York and is awaiting arguments before the Second U.S. Circuit Court of Appeals. WRCB TV reports on her remarks


Baker Donelson Recognized for Project Management System

Baker, Donelson, Bearman, Caldwell & Berkowitz has been recognized by the International Legal Technology Association with a Project of the Year Award for development of a patent pending legal project management system. The firm also was recognized for being one of the first in the United States to create and implement a Legal Project Management Office. A spokesperson said the system would help attorneys be more efficient and make the practice of law more transparent for clients. Read more


Memphis Legal Community Celebrates Red Mass

The Annual Red Mass will be celebrated at St. Peter Church, 190 Adams Ave., tomorrow, Friday, at noon. The mass is celebrated to invoke blessings on public officials, judges and lawyers at the commencement of the judicial year. The mass is sponsored by the St. Thomas More Catholic Lawyer's Guild of West Tennessee. Call the church at (901) 527-8282 for more information.


 
 

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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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