End is Near ... for 2012 Ethics Roadshow

The annual TBA Ethics Roadshow completes its tour of Tennessee this week with stops in Cookeville on Wednesday, Nashville on Thursday and Memphis on Friday. After that, it's all over. So even if you haven't bought in to the whole Mayan calendar forecast of impending doom theory, it is clear that the end is near for completing your 2012 CLE requirements.

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
11 - 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

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TN Supreme Court


TN Court of Appeals

CADLEROCK, LLC v. SHEILA R. WEBER

Court: TN Court of Appeals

Attorneys:

Scott D. Hall, Sevierville, Tennessee, for the appellant, Sheila R. Weber.

Oliver D. Adams and Alicia Cottrell, Knoxville, Tennessee, for the appellee, Cadlerock, LLC.

Judge: MCCLARTY

This is the second appeal of this case in which Cadlerock, LLC attempted to domesticate a foreign judgment that it had purportedly received by assignment. The judgment had been entered against Sheila R. Weber. The trial court refused to enroll the judgment and dismissed the case because Cadlerock, LLC was merely an assignee of the judgment. Cadlerock, LLC appealed, and this court directed the trial court to enroll the judgment. On remand, the trial court enrolled the judgment as directed. Sheila R. Weber appeals. We affirm the decision of the trial court.


IN THE MATTER OF CHRISTOPHER P., KOBEY P., BLAKE H. AND MYLES H.

Court: TN Court of Appeals

Attorneys:

R. Lance Miller, Clarksville, Tennessee, for the Appellant, Christopher R. P.

Robert E. Cooper, Jr., Attorney General and Reporter, and Rebekah A. Baker, Assistant Attorney General, for the Appellee, Tennessee Department of Children’s Services.

Judge: DINKINS

Father’s parental rights to two children were terminated as a result of his confinement in a correctional facility for more than ten years; he appeals, contending that there was insufficient evidence to support the holding that termination of his parental rights would serve the best interest of the children. We disagree and affirm the decision terminating his rights.


GREENBANK v. STERLING VENTURES, L.L.C., ET AL.

Court: TN Court of Appeals

Attorneys:

Robert J. Notestine, III, and W. H. Stephenson, II, Nashville, Tennessee, for the appellants, Sterling Ventures, L.L.C., Charles F. Caudell, III, and James C. Woodard, II.

David M. Anthony, C. Tucker Herndon, and Sean C. Kirk, Nashville, Tennessee, for the appellee, Capital Bank, N.A., Successor by Merger to GreenBank.

Judge: STAFFORD

After the property at issue was sold at a foreclosure sale, Appellee Bank filed the instant action seeking a deficiency judgment against Appellants. The Bank subsequently moved for summary judgment on the basis of the statutory presumption that the foreclosure sale price was the fair market value of the property at the time of purchase. Tenn. Code Ann. §35-5- 118(b). Appellants objected, asserting that, because the foreclosure sale price was less than the appraised value of the property, the sale was commercially unreasonable. The trial court granted the Bank’s motion, finding that Appellants failed to meet their burden to show, by a preponderance of the evidence, that the foreclosure sale price was “materially less” than the fair market value of the property at the time of foreclosure. Tenn. Code Ann. §35-5- 118(c). Discerning no error, we affirm.


AMY RUDD HALLIDAY v. TODD ERIC HALLIDAY

Court: TN Court of Appeals

Attorneys:

Donald N. Capparella, Nashville, Tennessee, and Larry B. Watson, Clarksville, Tennessee, for the Appellant, Todd Eric Halliday.

Helen Sfikas Rogers and Lawrence James Kamm, Nashville, Tennessee, for the Appellee, Amy Rudd Halliday.

Judge: DINKINS

This is a divorce appeal. Husband appeals the court’s award of alimony in solido, alimony in futuro, upward deviations in the calculation of child support to provide for education trust funds and private school expenses for the parties’ two children, and the award of discretionary costs; Wife appeals the court’s award of attorney’s fees. We affirm the award of alimony in solido, alimony in futuro, and attorneys’ fees and remand the case for additional findings with respect to the upward deviations for educational expenses and discretionary costs.


IN RE: HANNAH V. S.

Court: TN Court of Appeals

Attorneys:

Luke Austin Evans, James Thomas Pinson, Murfreesboro, Tennessee, for the appellant, Shannon L. G.

Daryl Miller South, Brandon Michael Booten, Murfreesboro, Tennessee, for the appellees, J. M. G. And T. W. G.

Judge: COTTRELL

The mother of a sixteen month-old girl left the child in the care of the child’s grandparents. The grandparents subsequently filed a dependency and neglect petition, and the court found that the child was dependent and neglected and granted temporary custody to the grandparents. They continued to raise the little girl without any assistance from the mother. Almost eight years later, the mother petitioned the court to restore custody of the child to her. Proceedings in the Juvenile Court followed, with an appeal to the Circuit Court, which determined that the child was dependent and neglected because changing custody to the mother would expose her to a risk of substantial harm. It also found that it was in Hannah’s best interest that custody remain with the grandparents. The appropriate standard for the mother’s request for modification of the order giving temporary custody to non-parents is whether the non-parents demonstrated by clear and convincing evidence the existence of a substantial risk of harm to the child if custody were granted to the parent. Based upon our review of the record, we affirm the trial court.


WALTER HIMES v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

Court: TN Court of Appeals

Attorneys:

Walter Himes, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Bill Young, Solicitor General and Jennifer L. Brenner, Assistant Attorney General, for the appellees, Tennessee Department of Correction, et al.

Judge: FARMER

This appeal involves a petition for writ of certiorari filed by a state prisoner. The prisoner was found guilty of a disciplinary offense while in the custody of the Tennessee Department of Correction. After exhausting his administrative remedies, the prisoner filed a petition for writ of certiorari in the trial court. The trial court granted the petition. After reviewing the record, the trial court found that the prisoner was not entitled to relief and dismissed the petition. Discerning no error, we affirm.


IN RE THE CONSERVATORSHIP OF ALFONSO B. PATTON

Court: TN Court of Appeals

Attorneys:

James D. R. Roberts, Jr. and Janet L. Layman, Nashville, Tennessee, for the appellant, Patricia Richmond.

Peggy D. Mathes, Nashville, Tennessee, for the appellee, Guardianship and Trust, Corporation.

Paula Whitson Reed, Nashville, Tennessee, attorney ad litem for the appellee, Alfonso B. Patton.

Judge: MCCLARTY

In this conservatorship case, Gloria and John Walker filed a petition in which they sought to be appointed as the conservator of Alfonso B. Patton. Patricia Richmond protested, alleging that she would be an appropriate conservator. Prior to a full hearing on the petition, the trial court appointed the Walkers as temporary conservators of the estate and Patricia Richmond as a temporary conservator of the person. Following approximately one year of protracted litigation, the court confirmed that Alfonso B. Patton was in need of a conservator of his estate and of his person. The court subsequently appointed a neutral, third-party as permanent conservator of the estate and of the person. Patricia Richmond appeals. We affirm the decision of the trial court.


ERIC PAYNE v. STATE OF TENNESSEE DEPARTMENT OF HUMAN SERVICES, ET AL.

Court: TN Court of Appeals

Attorneys:

Eric D. Payne, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Warren A. Jasper, Senior Counsel, for appellee, State of Tennessee, Department of Human Services, and Michael L. Adams.

Judge: STAFFORD

Appellant appeals from an order dismissing his claims for monetary damages against the State of Tennessee, the Tennessee Department of Human Services, and the Assistant Commissioner of the Child Support Services Division of the Tennessee Department of Human Services. Having determined that sovereign immunity bars the lawsuit, we affirm.


DONNA SHEDD, INDIVIDUALLY & AS MOTHER & NEXT OF KIN OF JODIE WOODS v. LARRY DWAYNE WOODS v. COMMUNITY HEALTH SYSTEMS, COMMUNITY HEALTH SERVICES PROFESSIONAL CORP., VOLUNTEER COMMUNITY HOSPITAL, DAVID ORUMA, M.D., FIRSTCARE MEDICAL CENTER & SHAM EDGE, RN

Court: TN Court of Appeals

Attorneys:

Perry A. Craft, Brentwood, Tennessee, for the Appellant, Donna Shedd.

Paul A. Bates, Columbia, Tennessee, for the Appellee, Larry Dewayne Woods.

Judge: PER CURIAM

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.


STATE OF TENNESSEE EX REL., DONNA THORN v. CLAY GENTRY

Court: TN Court of Appeals

Attorneys:

Brad W. Hornsby and Heather G. Parker, Murfreesboro, Tennessee, for the appellant, Donna Thorn.

Robert E. Cooper, Jr. Attorney General and Reporter, William E. Young, Solicitor General, and Warren Jasper, Senior Counsel, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Human Resources.

Judge: CLEMENT

This is a proceeding to establish the arrearage for child support owed by the father to the mother of their minor child. The genesis of this matter was in 1993, when Mother filed a petition to establish paternity and set support. The Department of Human Services, Child Support Services intervened on behalf of Mother, paternity was established and child support was set. Over the next two decades Father was habitually delinquent in paying child support and Mother obtained judgements from time to time for arrearages. The most recent petition to establish the arrearage was assigned to a Child Support Magistrate in Dickson County. Following a hearing in March 2012, the magistrate ruled that Father’s child support arrearage principal was $17,894.26, and that the interest on the principal, some of which had been accruing since the entry of a 1994 judgment, totaled $54,726.64. Judgment in favor of Mother was awarded by the magistrate in the gross amount of $72,620.90. Although Mother had independent counsel representing her before the magistrate, the Department appealed the magistrate’s order, purportedly on behalf of Mother but over Mother’s objection and despite the fact none of the proceeds were owed to the Department. The juvenile court reduced the total award to $26,937.36. Mother filed this appeal. We have determined that Mother was not aggrieved by the magistrate’s decision; thus, the Department could not appeal, on behalf of Mother, a wholly favorable decision. Because the case was never properly before the juvenile court, we vacate the judgment of the juvenile court and remand with instructions to reinstate the $72,620.90 judgment awarded by the magistrate.


IN RE TIMOTHY W. H. ET AL.

Court: TN Court of Appeals

Attorneys:

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant, Timothy W. H., Jr.

Robert E. Cooper, Jr., Attorney General and Reporter, and Martha A. Campbell, Deputy Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

Judge: CLEMENT

The father of two minor children appeals the termination of his parental rights. The trial court found three grounds for termination: abandonment for failure to pay child support; failure to comply with the permanency plan; and failure to remedy persistent conditions. The court also found that termination of Father’s parental rights was in the best interests of the children. Finding no error, we affirm.


TN Court of Criminal Appeals

IN RE: THE APPLICATION OF KIMYATA IZEVBIZUAIYAMU (Seeking to Qualify as Owner of Number One Bonding Company) v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Michael J. Gatlin, Memphis, Tennessee, for the appellant, Kimyata Izevbizuaiyamu.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Amy P. Weirich, District Attorney General; and Thomas Henderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Petitioner, Kimyata Izevbizuaiyamu, appeals the Shelby County Criminal Court’s order denying her application to write bail bonds as the owner of Number One Bonding Company. On appeal, petitioner argues that the evidence did not support the court’s denial. Upon review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. NOURA JACKSON
With Concurring Opinion

Court: TN Court of Criminal Appeals

Attorneys:

Valerie T. Corder (on appeal and at trial); Arthur Quinn (at trial), Memphis, Tennessee, for the appellant, Noura Jackson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and Amy P. Weirich and Stephen P. Jones, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Noura Jackson, was convicted of second degree murder for the death of her mother, Jennifer Jackson, and sentenced to twenty years and nine months in the Department of Correction. On appeal, she argues that the trial court erred in the following rulings: (1) concluding that her conversation at the scene with a family friend, who is an attorney, was not subject to the attorney-client privilege; (2) concluding that the searches of the residence she shared with the victim and of a vehicle parked in the driveway were lawful; (3) allowing testimony of lay witnesses as to her use of “drugs”; (4) allowing testimony of her having sexual relations at a time after the murder, as to her eviction from an apartment after the murder, and as to her hospitalization at Lakeside Hospital after the murder; (5) allowing the victim’s brother and sisters to testify as to arguments between the defendant and the victim prior to the murder; and (6) allowing certain photographs of the crime scene and the victim’s body. Additionally, the defendant argues that she is entitled to a new trial because of (7) prosecutorial conduct consisting of references to the post-arrest silence of the defendant; suppression of the third statement of a State’s witness; loudly beginning its opening statement by saying, “Give me the f*cking money”; using a misleading PowerPoint presentation during its closing argument; commenting on her right to remain silent; references to the Deity during closing arguments; commenting in closing argument on the length of the trial; treating as established facts which were not proven at trial; making personal attacks during closing statements upon her; and making additional improper statements during closing argument. Further, the defendant argues on appeal that (8) the evidence is insufficient to support her conviction for second degree murder and that (9) the court erred in imposing more than a minimum sentence. We have carefully reviewed the record and conclude that the arguments of the defendant are without merit. Accordingly, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. ANDRIANNE KISER

Court: TN Court of Criminal Appeals

Attorneys:

Joseph A. McClusky (on appeal) and Dianne Thackery (at trial), Memphis, Tennessee, for the appellant, Andrianne Kiser.

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

Judge: OGLE

A Shelby County Criminal Court Jury convicted the appellant, Andrianne Kiser, of two counts of attempted voluntary manslaughter, one count of employing a firearm during the commission of a dangerous felony, and one count of reckless endangerment. After a sentencing hearing, the appellant received an effective sentence of sixteen years in confinement. On appeal, the appellant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court erred by allowing a State witness to testify about telephone calls she received before trial, and (3) his effective sentence is excessive. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the evidence is insufficient to support the appellant’s reckless endangerment conviction. Therefore, that conviction is reversed. The appellant’s remaining convictions and sentences are affirmed. However, the case is remanded to the trial court for correction of the judgment for employing a firearm during the commission of a dangerous felony.


STATE OF TENNESSEE v. STEVEN D. PIPPIN

Court: TN Court of Criminal Appeals

Attorneys:

William A. Kennedy, Blountville, Tennessee, for the appellant, Steven D. Pippin.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Barry Staubus, District Attorney General; and Teresa Nelson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Sullivan County jury convicted the Defendant, Steven D. Pippin, of aggravated sexual battery and incest. The trial court imposed a sentence of twenty years for the aggravated sexual battery conviction and a consecutive ten-year sentence for the incest conviction. On appeal, the Defendant argues that: (1) the evidence is insufficient to support his convictions; and (2) the trial court’s sentence was excessive. After thoroughly reviewing the record and applicable authorities, we hold that the evidence is sufficient to sustain the Defendant’s convictions and that the trial court properly sentenced the Defendant. Accordingly, we affirm the trial court’s judgments.


Tennessee Turns to Feds for Health Exchange

Gov. Bill Haslam said today he will let the federal government set up a health insurance exchange in the state, rather than establish a separate state-run system. Haslam made his remarks during a meeting of the Nashville Rotary Club. In explaining his decision, Haslam said there is still a lot of uncertainty about how a state exchange would work and that draft regulations he has seen led him to conclude there would be little flexibility or autonomy for the state-run systems. The Nashville Business Journal has details.


Judge: No Court for Forest Hills

Davidson County Chancellor Claudia Bonnyman ruled Friday that Forest Hills does not have legal authority to launch its own court system, The Tennessean reports. The affluent satellite city had created a new municipal court to enforce its own ordinances, most of which deal with zoning issues. Nashville officials fought the move, arguing that consolidation of surrounding municipalities’ functions into one metro government precluded Forest Hills from forming “duplicative services.” The municipality countered that it has the authority under state law and that the work is not duplicative since Nashville courts do not have jurisdiction to hear cases stemming from local ordinances.


Task Force Working to Improve Child Protection Efforts

A task force on child protection wants more consistency in how reports of abuse are investigated and how decisions about criminal charges are made in the state. The group, comprised of Department of Children's Services (DCS) officials, doctors, law enforcement, attorneys and child advocates, is set to release a draft of its findings next month, Knoxnews.com says. In its report, the task force is expected to recommend that investigative teams train together; that communication be improved between DCS, law enforcement and community service agencies; and that additional funding be provided to hire more caseworkers and increase current caseworkers’ salaries.


Memphis FBI Office May Be Moving

Neither FBI nor General Services Administration officials in Memphis will confirm it, but The Commercial Appeal reports that all indications point to a move for the bureau from its East Memphis offices. According to a notice recently issued, the federal government is seeking a long-term lease for nearly 96,000 square feet in a building that is "professional and prestigious in appearance" or in an office park that is "modern in design with a campuslike atmosphere."


Open Record Law Applies to Athletic Association

A Davidson County chancellor ruled on Friday that the Tennessee Secondary Athletic Association (TSSAA) is a public entity and subject to open record laws, The Tennessean reports. The group had been sued by the Nashville City Paper, which is seeking access to records about financial aid and sports eligibility requirements at Montgomery Bell Academy. The paper was working on a story about possible violations of recruiting rules. TSSAA says it will appeal the ruling.


Court Grants Review in 2 Cases

The Tennessee Supreme Court recently granted review in two cases. The first case is one of first impression and addresses whether criminal contempt in a civil domestic relations case is subject to collateral attack in a post-conviction proceeding. The second concerns jury instructions where two offenses are committed during a common criminal episode. Read more about the issues and predictions as to how the new cases may be decided in the Raybin Perky Hotlist


Visitation Thursday for Nashville Lawyer

Nashville lawyer Mary Martin Schaffner, 73, died Dec. 5 of complications from cancer. Schaffner earned her law degree from Vanderbilt University Law School in 1977 and spent her entire legal career at the firm of Howell & Fisher, where she earned a reputation as a tenacious litigator. Among her many accomplishments, Schaffner was a founding member of the Tennessee Bar Journal Editorial Board, which began in 1989, and was a member of the Court of the Judiciary. Visitation will be held at her home, 3702 Granny White Pike, on Thursday from 3 to 7 p.m. Read the full obituary in The Tennessean


KBA Membership Meeting on Tap for Friday

The Knoxville Bar Association (KBA) will hold its annual meeting and elections on Friday at 8:30 a.m. in the main assembly room of the City County Building, following a continental breakfast at 8 a.m. The following candidates have been nominated: President-Elect Wade V. Davies, Treasurer Tasha C. Blakney and Secretary Wayne R. Kramer. Four board members also will be selected. The following been nominated for three-year terms: Douglas A. Blaze, Steven D. Lipsey, Chris W. McCarty, Wynne du Mariau Caffey, William A. Mynatt Jr. and Hanson R. Tipton. The fourth position, which is for one year, is designated as a government/public sector position. Chancellor John F. Weaver has been nominated for that role.


Hamilton Courthouse Hosts Open House

The Hamilton County Courthouse will host an open house concert Tuesday from 6-7:30 p.m. with performances by the Chattanooga Girls Choir and the Chattanooga Boys Choir. In addition, on Dec. 13, the courthouse will host "Stories with Mrs. Claus" from 6-7:30 p.m. Children ages 2 to 10 are invited to decorate sugar cookies and gather around the tree for Christmas stories. No registration is required. Learn more on Chattanoogan.com


12 Lawyers Reinstated After Administrative Suspension

Twelve Tennessee-licensed lawyers have been reinstated after being administratively suspended for failure to meet CLE requirements in 2011 or 2012, failing to file the annual registration fee or IOLTA form in 2012, or failing to pay professional taxes in the last two years. See the updated lists at the links above.


 
 

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