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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
01 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
10 - TN Court of Appeals
06 - 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

Court: TN Supreme Court


TN Workers Comp Appeals

SUE CROSS v. R & R LUMBER COMPANY, INC.

Court: TN Workers Comp Appeals

Attorneys:

Lee Anne Murray, Nashville, Tennessee, for the appellant, R & R Lumber Company, Inc.

Sam G. Smith, Jr., Knoxville, Tennessee, for the appellee, Sue Cross.

Judge: WADE

A lumber company employee with a history of heart bypass surgery died suddenly at a job site. After learning that the employee’s work activities could have triggered an arrhythmia or myocardial infarction, the widow filed suit for workers’ compensation benefits. The treating cardiologist of the employee concluded that his physical activities on the job contributed to his death, while a cardiologist who examined the medical records disagreed. The trial court awarded benefits, and the employer appealed. Pursuant to Tennessee Supreme Court Rule 51, the appeal has been referred to a special workers’ compensation appeals panel for a hearing and a report of findings of fact and conclusions of law. We affirm the judgment of the trial court.


TN Court of Appeals

AUDIO VISUAL ARTISTRY v. STEPHEN TANZER

Court: TN Court of Appeals

Attorneys:

Edward M. Bearman, Memphis, Tennessee, for the appellant, Stephen Tanzer.

Randall J. Fishman and Richard S. Townley, Memphis, Tennessee, for the appellee, Audio Video Artistry.

Judge: STAFFORD

This is a breach of contract case. Appellant/Homeowner contracted with Appellee for the installation of a “smart home” system. After myriad problems arose, Appellant fired Appellee, who filed the instant lawsuit to collect the unpaid balance for equipment and installation. The trial court determined that the primary purpose of the parties’ agreement was the sale of goods and applied Article 2 of the Uniform Commercial Code. The court granted judgment in favor of Appellee, but allowed certain offsets for items rejected by Appellant. Appellant appeals, arguing that the trial court erred in applying the UCC, and in its calculation of damages. Appellant also appeals the trial court’s determination that the Tennessee Consumer Protection Act does not apply. Discerning no error, we affirm.


STEVEN BARRICK, ET AL. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ET AL.

Court: TN Court of Appeals

Attorneys:

William D. Leader, Jr. And Paul J. Krog, Nashville, Tennessee, for the appellants, Steven Barrick and Janice Barrick.

Brigid M. Carpenter, Nashville, Tennessee, for the appellees, State Farm Mutual Automobile Insurance Company and Thomas Harry Jones.

Judge: FARMER

The trial court awarded summary judgment to Defendants, insurance company and its agent, on Plaintiffs’ claims for negligence on the basis of duty. We dismiss for failure to appeal a final judgment.


LATONY BAUGH, ET AL. v. UNITED PARCEL SERVICE, INC., ET AL.

Court: TN Court of Appeals

Attorneys:

James S. Higgins, Nashville, Tennessee, for the Appellants, James Denzmore.

Dana C. Holloway and David A. Chapman, Knoxville, Tennessee, for the Appellees, United Parcel Service, Inc. and Jason Sanders.

H. Anthony Duncan, Nashville, Tennessee, for the Appellee, Latony Baugh.

Judge: DINKINS

Shortly after the mother of four children was killed in an accident, her husband instituted an action to recover damages for her death; the father of the children moved to intervene in the action and for the court to hold a hearing on whether the husband had abandoned the mother, thereby waiving his right as surviving spouse to participate in the wrongful death action. The trial court did not hold a hearing; rather, it held that the husband was the proper party to pursue the action, allowed the Guardian of the children to represent the interest of the children in the action, and dismissed Father’s petition. The surviving spouse, Guardian and tortfeasor subsequently petitioned the court for approval of a settlement of the wrongful death claim; the court granted the petition. Father appeals, contending that the court erred in failing to hold a hearing on the issue of whether the husband was estranged from the mother, in approving the settlement, and in placing the settlement documents under seal. We remand the case for a hearing on whether the husband waived his right as surviving spouse to participate in the wrongful death action and reverse the court’s placement of the settlement documents under seal; in all other respects the judgment of the trial court is affirmed.


BERRY’S CHAPEL UTILITY, INC. v. TENNESSEE REGULATORY AUTHORITY

Court: TN Court of Appeals

Attorneys:

Henry M. Walker, Donald Lee Scholes, and Heather Howell Wright, Nashville, Tennessee, for the appellant, Berry’s Chapel Utility, Inc.

Jonathan N. Wike, Richard Collier, and Shiva K. Bozarth, Nashville, Tennessee, for the appellee, Tennessee Regulatory Authority.

Robert E. Cooper, Attorney General and Reporter, William E. Young, Solicitor General, and Vance L. Broemel, Senior Counsel, Nashville, Tennessee, for the appellee, the Consumer Advocate and Protection Division of the Office of the Attorney General of Tennessee.

Judge: CLEMENT

This is a direct appeal by newly incorporated Berry’s Chapel Utility, Inc., from a declaratory order by the Tennessee Regulatory Authority. The dispute hinges on whether the TRA had jurisdiction over Berry’s Chapel pursuant to Tennessee Code Annotated § 65-4-101(6)(E) (2010). The TRA held that Berry’s Chapel was a public utility as defined in Tennessee Code Annotated § 65-4-101(6)(E) (2010), thus, it was subject to the jurisdiction of the TRA. Berry’s Chapel asserts it was a non-profit and, thus, it was a non-utility by statutory definition and not subject to the TRA’s jurisdiction. We affirm the decision of the TRA.


BRIAN BOX v. DAVID GARDNER

Court: TN Court of Appeals

Attorneys:

Nancy Leonard Harvey, Somerville, Tennessee, for the appellant, David Gardner

David L. Douglas, Somerville, Tennessee, for the appellee, Brian Box

Judge: HIGHERS

Homeowner and Contractor filed competing suits against one another in the general sessions court. Homeowner was awarded $1,500.00 against Contractor; Contractor’s suit against Homeowner was dismissed. Contractor then appealed to the circuit court. The circuit court dismissed all actions filed by both parties, finding that the construction contracts required arbitration of disputes. Homeowner appeals and we affirm.


NORMAN HILL v. DANNY TAPIA, JR., ET AL.

Court: TN Court of Appeals

Attorneys:

James B. Johnson and Lauren Paxton Roberts, Nashville, Tennessee, for the appellant, Norman Hill.

C. Benton Patton, Nashville, Tennessee, for the appellees, Danny Tapia, Jr., and Tabet Enterprises.

David S. Zinn and Raney B. Cronin, Brentwood, Tennessee, for the appellee, Estate of Norma Aguila.

Judge: STAFFORD

This is a personal injur yc ase resulting from an automobile accident. After the accident, Plaintiff/Appellant learned that he suffered from a degenerative disc disease, which required surgery. Appellant sued the two drivers involved in the accident for damages, which included his medical expenses for the disc surgery . At trial, Appellant’s surgeon’s deposition testimony was read to the jury, in w hich the surgeon testified that while the accident “a ggravated” Appellant’s existing condition, the treatment he received was not “ca usall re lated” to the accident. Appellant offered another expert’s testimony, however, that di relate the treatment to the accid ent. At the close of proof, Appellant moved for a directed verdict on the issue of causation for his medical expenses, arguing that because the surgeon’s testimony was contradictory, it was subject to the cancellation rule. The trial court denied the motion and sent the issue to the jury. The jury retur ned a verdict for Appellant, but in an amount that did not include the medical expenses he incurred to treat the degenerative disc disease. Appellant was also awarded discretionary costs. After a careful review of the record, we affirm.


PATRICIA ANN GHO MASSEY v. GREGORY JOEL CASALS

Court: TN Court of Appeals

Attorneys:

Linda J. Casals, Las Vegas, Nevada, for the appellant, Gregory Joel Casals

Rachael Emily Putnam, Memphis, Tennessee, for the appellee, Patricia Ann Gho Massey

Judge: HIGHERS

Father’s individual retirement accounts (“IRAs”) were garnished to satisfy an award of attorney’s fees, and he filed a motion to quash the garnishment, claiming that the accounts were exempt from garnishment under Tennessee law. In a previous appeal, this Court concluded that the IRAs were exempt property, and we reversed the trial court’s order dismissing Father’s motion to quash the garnishment. On remand, the trial court vacated its previous order but again dismissed Father’s motion to quash. We reverse and remand with instructions for the trial court to grant Father’s motion to quash and to dissolve the writ of garnishment.


ATHENA H. MELFI, v. JOSEPH THOMAS MELFI

Court: TN Court of Appeals

Attorneys:

Russ Heldman, Franklin, Tennessee, for the appellant, Joseph Thomas Melfi.

C. Edward Fowlkes, Nashville, Tennessee, for the appellee, Athena H. Melfi.

Judge: FRANKS

The parties to this action were divorced by Decree on December 15, 2009. The former husband filed a Motion asking the Court to reopen the case on June 28, 2011. The Motion was styled as a Rule 59 and/or 60 Motion, Tenn. R. Civ. P. At a hearing before the Trial Court, the Trial Judge dismissed the Motions on the grounds that the Court no longer had jurisdiction to entertain these Motions. On appeal, we affirm.


CHRIS ERIC STRICKLAND v. PENNYE DANIELLE STRICKLAND

Court: TN Court of Appeals

Attorneys:

Henry D. Fincher, Cookeville, Tennessee, for the appellant, Pennye Danielle Strickland.

Charlene Robin Vance, Watertown, Tennessee, for the appellee, Chris Eric Strickland

Judge: CLEMENT

Divorce action in which Mother raises numerous issues, including the designation of Father as the primary residential parent, the parenting plan in which Mother’s parenting time was limited to 120 days a year, child support, and the classification and division of marital property. Mother also challenges the trial court’s decisions to admit the testimony of two witnesses and to exclude the testimony of two other witnesses. We have concluded that the trial court erred in excluding two of Mother’s expert witnesses and in admitting testimony regarding child abuse allegations that should have been excluded based upon Tennessee Code Annotated § 37-1-409. Having considered the record, including the testimony of Mother’s two experts and excluding the testimony that must be excluded pursuant to Tennessee Code Annotated § 37-1-409, we find the evidence does not preponderate against the trial court’s designation of Father as the primary residential parent; however, the evidence does preponderate against the parenting schedule which greatly limits Mother’s parenting time. We affirm the trial court’s classification and division of the marital estate in all respects. Because we have concluded that the evidence preponderates against the parenting schedule, we remand this issue to the trial court to adopt a parenting schedule that affords Mother additional parenting time, although not equal parenting time, and to modify the child support award to comport with Mother’s income and the new parenting schedule.


CAROLYN WHITESELL v. KAYLENE MILLER AND PATRICIA MOORE

Court: TN Court of Appeals

Attorneys:

Robert T. Carter, Tullahoma, Tennessee, for Defendant/Appellant, Patricia Moore.

Carolyn Whitesell, Plaintiff/Appellee.

Judge: KIRBY

The appeal concerns a dispute over personal property. The appellant landlord refused to permit the appellee tenant to renew her lease, and the tenant was forced to leave the premises. Several items of personal property belonging to the tenant were apparently left behind. The tenant sued the landlord for reimbursement for the value of the property. After a bench trial, the trial court ordered the landlord to reimburse the tenant. The landlord now appeals. As the appellate record contains neither a transcript of the proceedings nor a statement of evidence, we affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. THOMAS L. AGNEW

Court: TN Court of Criminal Appeals

Attorneys:

Stephen M. Wallace, District Public Defender; and Leslie S. Hale, Assistant Public Defender, for the appellant, Thomas L. Agnew.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; Barry P. Staubus, District Attorney General; and Teresa Ann Nelson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Thomas L. Agnew, appeals from his Sullivan County Criminal Court conviction for third offense driving on a revoked or suspended license, a Class A misdemeanor. See T.C.A. § 55-50-504(a)(1), (2) (Supp. 2009) (amended 2010). The Defendant was sentenced to eleven months and twenty-nine days, with six months to be served in jail at 75%. On appeal, he contends that the trial court erred in imposing six months of confinement. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. ANDREA NICHOLE BEAN

Court: TN Court of Criminal Appeals

Attorneys:

Donna Orr Hargrove, District Public Defender, and Andrew Jackson Dearing, III, Assistant Public Defender, for the appellant, Andrea Nichole Bean.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; Robert Carter, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Andrea Nichole Bean, pled guilty to the sale and the delivery of .5 grams or more of cocaine. At the sentencing hearing, the trial court merged the two convictions and imposed a sentence of sixteen years as a Range II, multiple offender to be served in the Department of Correction (“DOC”). In this direct appeal, the Defendant contends that the trial court erred in denying her an alternative sentence. After our review, we affirm the judgment of the trial court.


DAVID IVY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Paul Kellison Guibao, Larry E. Copeland, Jr., and Matthew Stephen Lyons, Memphis, Tennessee, for the appellant, David Ivy.

Robert E. Cooper, Jr., Attorney General & Reporter; Jeffrey Dean Zenter, Assistant Attorney General; Amy P. Weirich, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, David Ivy, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief. A Shelby County jury convicted the Petitioner of premeditated first degree murder and sentenced him to death. The Tennessee Supreme Court affirmed the Petitioner’s conviction and sentence on direct appeal. See State v. Ivy, 188 S.W.3d 132 (Tenn. 2006). On appeal, the Petitioner asserts that (1) he is actually innocent of the offense; (2) counsel were ineffective in both phases of the trial and on appeal; (3) the State committed prosecutorial misconduct during closing arguments in both phases of the trial; (4) the application of the prior violent felony aggravating circumstance in Tennessee Code Annotated section 39-13-204(i)(2) was improper; (5) the Capital Defense Team of the Shelby County Public Defender’s Office is “constitutionally ineffective”; and (6) the death penalty is unconstitutional. We affirm the judgment of the trial court denying the Petitioner post-conviction relief.


MATTHEW JACKSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Matthew Jackson, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Lawrence Ray Whitley, District Attorney General; and Ronald Blanton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Matthew Jackson, was convicted of four counts of aggravated robbery pursuant to a plea agreement and was sentenced to an effective ten years of incarceration. The petitioner filed a prior application for the writ of error coram nobis, the denial of which was affirmed on appeal. The petitioner brings this subsequent petition for the writ of error coram nobis, asserting various grounds for relief. The trial court denied the writ, noting that the claim was time-barred and that the petitioner failed to allege facts which would negate the knowing and voluntary nature of his pleas. After a review of the record, we affirm.


STATE OF TENNESSEE v. CHRISTOPHER BRANDON PRESLEY

Court: TN Court of Criminal Appeals

Attorneys:

David A. Doyle, District Public Defender, (On Appeal); Kenneth Phillips (Probation Violation Hearing) for the appellant, Christopher Brandon Presley.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Tara Wyllie, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Christopher Brandon Presley, appeals the revocation of his probation. In August 2010, the defendant pled guilty to one count of aggravated burglary, a Class C felony, and one count of aggravated assault, a Class C felony. He received an effective ten-year sentence. The trial court suspended the defendant’s sentence and placed him on probation. One year later, a probation violation warrant was issued (and subsequently amended). Following a hearing, the trial court revoked the defendant’s probation and imposed his sentence. On appeal, the defendant claims that the trial court abused its discretion by revoking his probation. Following our review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. ROBERT ALLEN ZALOBA

Court: TN Court of Criminal Appeals

Attorneys:

Kimberly S. Hodde, Peter J. Strianse, and David L. Raybin, Nashville, Tennessee, for the appellant, Robert Allen Zaloba.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Kim R. Helper, District Attorney General; and Mary Katharine White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

A Williamson County Grand Jury indicted appellant, Robert Allen Zaloba, for eight counts of rape of a child, one count of rape, and one count of aggravated sexual battery. The first five counts of rape of a child (counts 1-5) pertained to one victim, and the remaining three counts of rape of a child, one count of rape, and one count of aggravated sexual battery involved a second victim. The trial court severed counts six through ten for trial.1 The jury returned verdicts of guilty on all counts, for which the trial court sentenced appellant to serve an effective forty-eight-year sentence. Appellant raises the following issues: (1) whether the trial court properly admitted a reference that appellant had engaged in sexual relations with another individual; (2) whether the trial court properly denied appellant’s request to admit the victim’s prior inconsistent statement as substantive evidence; (3) whether the trial court properly denied appellant’s request for a jury instruction that it could consider the victim’s prior inconsistent statement as substantive evidence; (4) whether the trial court properly instructed the jury that “recklessly” was a proper mens rea for rape of a child; (5) whether the trial court properly instructed the jury by using the disjunctive “or” to connect the requisite mental states; (6) whether the trial court erred in rejecting appellant’s mitigation proof at sentencing; (7) whether the trial court erred in imposing consecutive sentences; (8) whether the evidence is sufficient to sustain appellant’s convictions; and (9) whether the circumstantial nature of the case rendered any errors by the trial court not harmless. Discerning no reversible error in the proceedings, we affirm the judgments of the trial court.


Senate Confirms New Judges; More Votes Likely

The U.S. Senate has confirmed five more district court judges, for a total of 13 confirmations so far this month, the Legal Times reports, and more votes are possible when lawmakers return to Washington, D.C. tomorrow. That makes December the second most active month for filling the federal bench during this session of Congress, behind the 15 confirmations made in October 2011.


'Fiscal Cliff' Creates Flood of Work for Attorneys

The uncertainty of the ongoing “fiscal cliff” negotiations has resulted in a flood of work for attorneys as their clients try to plan for the future, the National Law Journal reports. Due to the potential for changes in tax rates, Medicare taxes and capital gains taxes, businesses are looking to accelerate income before the year ends to avoid uncertainty in 2013. Attorneys are presenting their clients with different year-end scenarios to prepare them better for the future.


Former FedEx Workers Indicted for Mail Theft

The U.S. Department of Justice (DOJ) has indicted 15 former employees of FedEx's worldwide hub facility in Memphis for allegedly stealing items from the U.S. Mail ranging from marijuana to gift cards, the Memphis Business Journal reports. The cases are being investigated by the U.S. Postal Inspection Service, with the assistance of FedEx Security, and are being prosecuted by Assistant U.S. Attorneys Justin Bailey, Leetra Harris and Deb Ireland on behalf of the government.


Environmental Groups Prepare to Sue TVA

According to the Tennessean, several environmental advocacy groups are preparing a federal lawsuit against the Tennessee Valley Authority (TVA) for planning to replace an endangered fish nursery at the Gallatin Fossil Plant with a pollution control facility. The TVA last month announced its plan to remove the Cumberland River Aquatic Center from the Gallatin site to make room for a 15-story coal-ash dump as part of a $1 billion plan to overhaul the plant’s pollution equipment. The Sierra Club, Tennessee Environmental Council and other groups allege the move will harm endangered fish and mussels, violating the Endangered Species Act. 


Portraits of Bradley County Judges Displayed

The portraits of Bradley County’s first two judges -- Judge Charles Fleming Keith and Judge Daniel Coffee Trewhitt -- were recently placed on display in the courtroom of Circuit Court Judge Lawrence Puckett in downtown Cleveland. Puckett said he believes it is important to remember the two men who helped lay the foundation for Bradley County's beginnings. “These two portraits will hang on permanent display in this courtroom,” he told the Cleveland Banner.


Iowa Court Backs Boss Who Fired "Irresistible" Worker

An all-male high court in Iowa ruled in favor of a dentist who fired his female assistant because he found her attractive, and he and his wife viewed the woman as a threat to their marriage. The woman filed a lawsuit alleging gender discrimination, but the court ruled unanimously that an employer can legally fire a worker seen as an “irresistible attraction” since they were motivated by feelings and emotions, not gender. The Chattanooga Times Free Press has the story.


Russia Passes Ban on U.S. Adoptions

Lawmakers in Moscow effectively banned Americans from adopting Russian children by passing a bill that imposes a series of sanctions on U.S. interests, WCYB News reports. The move is widely seen as retaliation against the Magnitsky Act, which President Obama signed on Dec. 14. That law imposes U.S. travel and financial restrictions on human rights abusers in Russia. Russia is one of the top countries of origin for international adoptions in the United States, behind only China, with more than 60,000 Russian children joining American families in the past 20 years.


Court: Memphis Teacher Improperly Terminated

The Tennessee Supreme Court reversed a Court of Appeals decision and unanimously ruled to reinstate the trial court’s judgment awarding tenured Memphis City Schools teacher Saundra Thomas back pay and damages after the board of education improperly terminated her. Thompson’s suit alleged violation of the Tenure Act and right to due process guaranteed by the 14th Amendment after the board did not provide written charges or an opportunity for a hearing prior to the termination.


 
 

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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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