8 Apply for Knox Circuit Court Seat

Eight Knoxville area lawyers have filed to fill the seat of Knox County Circuit Court Judge Wheeler A. Rosenbalm's when he retires at year's end. They are William T. Ailor, J. Elaine Burke, Kristi M. Davis, William A. Fox, Ray Jenkins, Mary E. Maddox, Glenna W. Overton and Deborah C. Stevens. A nominating committee, chaired by Nashville lawyer Thomas Lawless, will convene a public meeting Dec. 14 to hear from lawyers and members of the public about the applicants. The session will take place at 9 a.m. at the downtown Knoxville Hilton, 501 West Church Ave. Read more about the process at Knox News.

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
04 - TN Court of Appeals
01 - 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

Court: TN Supreme Court


BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE v. THOMAS EWING COWAN

Court: TN Supreme Court

Attorneys:

Thomas E. Cowan, Jr., Elizabethton, Tennessee, pro se.

Nancy S. Jones, Chief Disciplinary Counsel, and Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

Judge: CLARK

This appeal involves a determination of the proper final discipline for an attorney who pleaded guilty to willful tax evasion. We hold that because ABA Standard for Imposing Lawyer Sanctions 5.11(b) applies to criminal acts such as those admitted by the attorney here, the trial court’s order of disbarment is affirmed.


R. DOUGLAS HUGHES ET AL. v. NEW LIFE DEVELOPMENT CORPORATION ET AL.

Court: TN Supreme Court

Attorneys:

Joseph A. Woodruff and Alyssa M. Leffall, Nashville, Tennessee; and Douglas S. Hale, Franklin, Tennessee, for the appellants, New Life Development Corp., Robby McGee, Jeffrey M. Dunkle, and B.J. Cline.

Frederick L. Hitchcock and Willa B. Kalaidjian, Chattanooga, Tennessee, for the appellees, R. Douglas Hughes, M. Lynne Hughes, Louise Hubbs, and Guy Hubbs.

John P. Williams, Nashville, Tennessee, for the Amicus Curiae, The Home Builders Association of Middle Tennessee.

Judge: KOCH

This appeal involves the validity and effect of amendments to restrictive covenants for a residential development and amendments to the charter and bylaws for the homeowners’ association serving the development. After the death of the president of the original corporate developer, a successor developer purchased the original developer’s remaining property with the intent to continue to develop the property. Several homeowners filed suit in the Chancery Court for Franklin County, alleging that the successor developer’s new development plan violated restrictive covenants. The trial court granted the successor developer a judgment on the pleadings, and the homeowners appealed. The Court of Appeals remanded the case for further proceedings, principally on the question of whether a general plan of development, or the plat for the subdivision, gave rise to certain implied restrictive covenants. Hughes v. New Life Dev. Corp., No. M2008-00290-COA-R3-CV, 2009 WL 400635, at *9-10 (Tenn. Ct. App. Feb. 17, 2009). While the successor developer’s application for permission to appeal was pending, the homeowners’ association amended its charter and the restrictive covenants to address certain issues identified by the Court of Appeals. Thereafter, the homeowners filed a second suit, principally contesting the validity of the amendments. The trial court consolidated the two suits and granted the successor developer a summary judgment on all claims in both suits. However, the trial court also enjoined the successor developer from acting contrary to its corporate charter. The homeowners appealed a second time. On this occasion, the Court of Appeals concluded that the procedure used to amend the charter and restrictive covenants was valid but remanded the case with directions to determine whether these amendments were reasonable and to determine whether the plat supported the existence of implied restrictive covenants. Hughes v. New Life Dev. Corp., No. M2010-00579-COA-R3-CV, 2011 WL 1661605, at *9-11 (Tenn. Ct. App. Apr. 29, 2011). The successor developer filed an application for permission to appeal, asserting that Tennessee law did not support the Court of Appeals’ reasonableness inquiry and that the plat provided no basis for the existence of implied restrictive covenants. We have determined that the amendments were properly adopted and that there is no basis for implied restrictive covenants arising from a general plan of development or from the plat.


TN Court of Appeals

ANNA RUTH COLLINS (EISENBERG) v. THE ESTATE OF HARVEY L. COLLINS

Court: TN Court of Appeals

Attorneys:

Scott B. Hahn and Judith A. DePrisco, Knoxville, Tennessee, for the appellant, Anna Ruth Collins (Eisenberg).

Larry C. Vaughan, Knoxville, Tennessee, for the appellee, the Estate of Harvey L. Collins.

Judge: SWINEY

This is an action to collect child support ordered in the parties’ 1965 divorce decree. The Trial Court held that the ten year statute of limitations contained in Tenn. Code Ann. § 28-3- 110(2) acted as a bar to this action and dismissed the case. Anna Ruth Collins (Eisenberg) appeals to this Court. We affirm.


SHIRLEEN NEVELS v. JOSEPH CONTARINO, M.D. ET AL.

Court: TN Court of Appeals

Attorneys:

Eileen M. Parrish, Nashville, Tennessee, for the appellant, Shirleen Nevels.

Robert M. Burns and C. Mark Harrod, Nashville, Tennessee, for the appellee, Joseph Contarino, M.D.

Brian Essary, Darrell Gene Townsend, and Alan Stuart Bean, Nashville, Tennessee, for the appellee, Hillside Hospital, LLC.

Judge: BENNETT

The trial court dismissed this medical malpractice claim on the defendants’ motion for summary judgment and motion to dismiss, after excluding the testimony of the plaintiff’s expert witness. Because the trial court erred in its application of the locality rule and Rule 702 of the Rules of Evidence, we reverse.


SHERMAN LANE PIERCE, ET AL. v. JAMES H. DELASHMITT, ET AL.

Court: TN Court of Appeals

Attorneys:

Rebecca L. Hicks, Dayton, Tennessee, for the appellants, Sherman Lane Pierce and Cathryn Pierce.

Barrett T. Painter, Cleveland, Tennessee, for the appellees, James H. Delashmitt and Minnie C. Delashmitt.

Judge: SWINEY

Sherman Lane Pierce and Cathryn Pierce (“the Pierces”) own real property in Meigs County, Tennessee. James H. Delashmitt and Minnie C. Delashmitt (“the Delashmitts”) own real property that adjoins the Pierces’ property. The Pierces sued the Delashmitts alleging, among other things, that the Delashmitts had trespassed upon the Pierces’ property and attempted to fence off a portion of the Pierces’ driveway. The Delashmitts answered the complaint and filed a counterclaim asserting that the Pierces had trespassed on the Delashmitt’s property. After a trial, the Trial Court entered its order finding and holding, inter alia, that the Pierces had adversely possessed a portion of the disputed property. The Pierces appeal to this Court raising issues regarding whether the Trial Court erred in finding and holding that the Pierces failed to prove adverse possession as to the entire disputed area. The Delashmitts raise an issue regarding whether the Trial Court erred in finding and holding that the Pierces adversely possessed any portion of the disputed property. We affirm.


PUBLIX SUPER MARKETS, INC. v. TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, LABOR STANDARDS DIVISION
With concurring opinion

Court: TN Court of Appeals

Attorneys:

William S. Rutchow and Wendy V. Miller, Nashville, Tennessee, for the appellant, Publix Super Markets, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Alex Rieger and Lindsey O. Appiah, Assistant Attorney Generals, for the appellee, Tennessee Department of Labor and Workforce Development, Labor Standards Division.

Judge: CLEMENT

This is an administrative appeal in which an employer challenges the decision of the Tennessee Department of Labor & Workforce Development finding the employer in violation of the Tennessee Child Labor Act for failing to furnish, within one hour of demand, personnel files of each of its minor employees. The trial court affirmed the decision of the Department and this appeal followed. Tennessee Code Annotated § 50-5-111(1) & (4) require employers to “make, keep and preserve a separate and independent file record for each minor employed, which shall be kept at the location of the minor’s employment” and to “furnish” the records relative to the minor employees. On appeal, the employer contends it maintained the records on site as required, thus it did not violate Subsection (1) of the statute. The employer also asserts that it has a Fourth Amendment right to object to a warrantless search by the Department and it may not be penalized for asserting its constitutional right. We have determined the Department’s decision to assess penalties for violating Subsection (1) of Tennessee Code Annotated § 50-5-111 is not supported by substantial and material evidence and the inference drawn by the Department that the records were not maintained on site based upon a mere inference drawn from the fact they were not produced within one hour of demand is insufficient. Therefore, the assessments for allegedly failing to maintain personnel records of minor employees on site is reversed. As for the requirement under Subsection (4) of Tennessee Code Annotated § 50-5-111 that employers of minor employees furnish and allow inspection of the separate and independent file records for each minor employed upon request by the Department, the Act expressly provides that if the Department is denied permission to make an inspection, Tennessee Code Annotated § 50-4-101 provides that the Department employee or official may obtain an administrative inspection warrant in accordance with the procedures outlined in the statute; the Department did not seek to obtain a warrant in this case. As for refusing the Department’s request to inspect the records without an administrative warrant, in order for a warrantless search or inspection to be constitutionally permissible under the Fourth Amendment, the Department must establish that the employer was part of a pervasively regulated industry or that the employer had weakened or reduced privacy expectations that are significantly overshadowed by the Department’s interests in regulating the employer’s industry. We have determined the Department failed to establish either; accordingly, the Department cannot assess a penalty against an employer for asserting its constitutional rights under the Fourth Amendment. Thus, the penalty assessed for allegedly violating Subsection (4) of the statute is reversed. Pursuant to the foregoing, we remand with instructions for the trial court to order the Department to vacate the citations and penalties against the employer.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. CARL E. PRESLEY
CORRECTION: The original version of this opinion, issued on Sept. 27, 2012, has been withdrawn. This version dated Nov. 15, 2012, replaces it in its entirety. entirety.

Court: TN Court of Criminal Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Robert S. Bebb, District Attorney General; and Steven Morgan, Assistant District Attorney General, for the appellant, State of Tennessee.

Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellee, Carl E. Presley.

Judge: GLENN

In its appeal, the State argues that the trial court abused its discretion when it dismissed a misdemeanor vandalism charge against the defendant, Carl E. Presley, and also in ruling that it could not charge the jury on the lesser included offense of misdemeanor vandalism on the two remaining felony vandalism charges, because the statute had run as to the misdemeanor. After review, we affirm the judgment of the trial court as to the dismissal of the vandalism charge and, as to the issue regarding the lesser included offense of misdemeanor vandalism, deny the State’s Rule 10 appeal as improvidently granted.


Vines: Candidates Lining up for U.S. District Judge Post

Writing in the Knoxville News Sentinel today, columnist Georgiana Vines speculates on the list of lawyers interested in an appointment to the U.S. District Court for the Eastern District of Tennessee if Judge Thomas Phillips retires as expected next year. Among those mentioned are past TBA president and Knoxville lawyer Pamela Reeves; TBA president-elect and Sevierville lawyer Cynthia Richardson Wyrick; Suzanne Bauknight, chief of the civil division of the U.S. attorney's office in East Tennessee; and Knoxville lawyer Dawn Coppock.


Campbell Sworn in as New Criminal Judge

Longtime prosecutor John Wheeler Campbell was sworn in as a Shelby County criminal court judge on Friday. He was to take the bench for the first time today. Campbell -- who replaces Judge John Fowlkes, who resigned in July to become a federal district court judge -- has worked in the Shelby County District Attorney General’s office since 1985, most recently serving as deputy district attorney general. Prior to joining the DA’s office, he was an assistant public defender. Read about his new post in the Commercial Appeal


Municipal Judges Meet, Name New Leader

The Tennessee Municipal Judges Conference gathered for their annual meeting earlier this month at which Nolensville Municipal Judge James D. Petersen ended his two-year term as president of the conference and handed the reins to Millersville Municipal Judge John H. Lowe of Sumner County. See photos from the event on the AOC website


Judge Franks Honored for Service to Judiciary

Members of the judiciary and legal profession honored Tennessee Court of Appeals Presiding Judge Herschel P. Franks for his years of service to the state judiciary during a recognition ceremony last Friday. Among the many tributes, Supreme Court Justice Sharon G. Lee presented a plaque to Franks, who is retiring at the end of the year after 42 years of service. See photos from the event on the AOC site

In related news, a portrait unveiling in Franks' honor will be held in the courtroom of the Tennessee Supreme Court in Knoxville on Dec. 3 at 10:30 a.m. A reception will follow.


Former Knoxville Lawyer Convicted of Tax Evasion

Former Knoxville lawyer John Threadgill, 69, was convicted of income tax evasion in federal court last week. A jury returned the verdict after a five-day trial. Threadgill now faces up to five years in prison and up to $250,000 in fines. He will be sentenced on March 14, 2013. Several months ago, Threadgill was disbarred and ordered to pay $24,578 in restitution to four former clients. Read more in Knox News


Memphis Attorney Sentenced in Wire Fraud Case

Longtime Memphis real estate attorney David J. Johnson, 72, has been sentenced to four years in federal prison for wire fraud. He also must pay $1.8 million in restitution to clients. Johnson pleaded guilty to stealing client funds from trust accounts and using the money to make loans or investments in businesses in which he had a personal interest. The criminal penalties are in addition to disbarment from the practice of law by the Tennessee Supreme Court. The Commercial Appeal reports


Memphis Lawyer Dies

Memphis lawyer Herbert Wayne Vaiden Jr. died Nov. 11 from pancreatic cancer. He was 76. Vaiden earned his law degree from Memphis State University, where he was on the Law Review. He entered the private practice of law and also attained the rank of colonel as a reservist in the Army Judge Advocate General’s Corps. In lieu of flowers, the family requests that donations be made to The Salvation Army, 696 Jackson Ave., Memphis TN 38105 or Methodist Hospice Residence Center, 6416 Quince Rd., Memphis, TN 38119. Read the full obituary in the Commercial Appeal


Court Upholds Disbarment of Carter Co. Lawyer

In a unanimous ruling released today, the Tennessee Supreme Court found that the Carter County Chancery Court properly disbarred Thomas Ewing Cowan from the practice of law. The court noted that in 2009, Cowan pleaded guilty to willful attempt to evade the payment of taxes and was sentenced to one year in prison and assessed $270,000 in restitution. It also found that Cowan had not acknowledged the seriousness of his misconduct and had a history of ethical violations, including two suspensions, three public reprimands and 15 private admonishments. Download the decision


Disbarment of Knoxville Lawyer Upheld

In a unanimous opinion released on Nov. 16, the Tennessee Supreme Court upheld the disbarment of Knoxville attorney M. Josiah Hoover III after determining he had caused serious injury to his clients and to the legal system. The court found that in five separate cases, Hoover was negligent in the representation of clients, including failing to ascertain the status of a proceeding prior to filing a proof of claim; failing to file a brief, resulting in dismissal of an appeal; failing to communicate; failing to prepare for a key deposition; failing to abide by court orders and procedural rules; failing to pay monetary sanctions imposed by a court; and filing a frivolous claim on his own behalf. Download the court order


Hawkins County Lawyer Disbarred

Hawkins County attorney John Douglas Godbee was disbarred by the Tennessee Supreme Court on Nov. 15. The Board of Professional Responsibility filed a petition for discipline against Godbee, charging him with official misconduct. It found that while acting as an assistant district attorney, he solicited and/or received sexual favors from female defendants in exchange for consideration in their cases. Download the BPR notice


Chattanooga Lawyer Censured

Hamilton County lawyer James W. Clements was publicly censured by the Board of Professional Responsibility of the Tennessee Supreme Court on Nov. 5. In an incident involving a possible claim against a nursing home for neglect of the client’s relative, the board found that Clements violated Rules of Professional Conduct 1.1 (competence), 1.3 (diligence), 1.4 (communication) and 8.4 (misconduct). Download the BPR release


License of Georgia Attorney Reactivated

The Board of Professional Responsibility reported on Nov. 13 that the law license of C. Allen Yates was reactivated on Nov. 8. He is an attorney in Lawrenceville, Ga. Download the BPR notice


 
 

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