New TBJ: Innovative Ways to Boost Access Justice

Lawyers in Tennessee are helping those who need it, not only through pro bono representation, but by working to change the structure and services available. The January Tennessee Bar Journal details efforts like new funding and rules for court interpreters and a new legal telephone hotline, 1-888-aLEGALz.

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
09 - TN Court of Appeals
03 - 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

DEWONE ALEXANDER v. TENNESSEE DEPARTMENT OF CORRECTION

Court: TN Court of Appeals

Attorneys:

Dewone Alexander, Henning, Tennessee, pro se

James I. Pentecost, Brittani C. Kendrick, Jackson, Tennessee, for the appellee, Gloria Lang

Judge: HIGHERS

A prison inmate filed a petition for writ of certiorari in the chancery court, seeking review of a prison disciplinary action. Numerous respondents were listed in the complaint, and one respondent filed a motion to dismiss. The trial court granted the respondent’s motion to dismiss because, among other things, the petition was not verified or sworn, and it did not state that it was the first application for the writ. The petitioner appeals. We dismiss the appeal for lack of a final judgment.


ARTIST BUILDING PARTNERS, ET AL. v. AUTO-OWNERS MUTUAL INSURANCE COMPANY

Court: TN Court of Appeals

Attorneys:

W. Timothy Harvey and Rebecca J. Garman, Clarksville, Tennessee, for the appellant, Auto- Owners Mutual Insurance Company.

Raymond Graham Prince, Nashville, Tennessee, for the appellees, Artist Building Partners and Howard Caughron.

Judge: FARMER

The orders of the trial court were designated as final pursuant to Rule 54.02 of the Tennessee Rules of Appellate Procedure. Because we find that certification of the judgment under Rule 54.02 was in error, we dismiss the appeal for lack of appellate jurisdiction.


IN RE AUSTIN L. A.

Court: TN Court of Appeals

Attorneys:

Joseph O. McAfee, Greeneville, Tennessee, for the appellant, Ashley A.

Whittney N. L. Good, Bulls Gap, Tennessee for the appellant, Jerry L. A.

Roger A. Woolsey, Greeneville, Tennessee, for the appellees, Carl D. S., Jr. and Vicky R. S.

Leslie E. Douthat, Greeneville, Tennessee, guardian ad litem for the minor, Austin L. A.

Judge: MCCLARTY

This appeal concerns a termination of parental rights. Custodial Parents filed a petition for adoption and termination of Mother and Father’s parental rights to the Child. The trial court terminated Mother and Father’s parental rights, finding that there was clear and convincing evidence to support several statutory grounds of termination and that the termination of parental rights was in the best interest of the Child. The Parents appeal the court’s best interest finding. We affirm the decision of the trial court.


JAMES BOSTIC v. STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

James Bostic, Mountain City, Tennessee, appellant, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; William E. Young, Solicitor General; and Stephanie A. Bergmeyer, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: SUSANO

James Bostic (“the Claimant”), an inmate in the custody of the Department of Correction, filed a claim against the State of Tennessee and others seeking money damages. The claim against the State was transferred from the Division of Claims Administration to the Claims Commission pursuant to the provisions of Tenn. Code Ann. § 9-8-402(c)(2012). The State filed (1) a motion to dismiss raising several defenses and (2) the affidavit of Brenda Boatman. Based upon the affidavit, the Claims Commission granted the State summary judgment and dismissed the Claimant’s claim. We affirm.


IN RE EILA L.G. ET AL.

Court: TN Court of Appeals

Attorneys:

Gerald T. Eidson, Rogersville, Tennessee, for the appellant, Tabitha W.

Robert E. Cooper, Jr., Attorney General and Reporter, and John H. Bledsoe, Senior Counsel, Office of the Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

Judge: SUSANO

This is a termination of parental rights case focusing on four minor children (“the Children”) of the defendant, Tabitha W. (“Mother”). The Department of Children’s Services (“DCS”) took the Children into custody in July 2010 because of Mother’s continuing drug use and the Children’s truancy problems. DCS filed a petition to terminate the parental rights of Mother in July 2011, alleging that numerous grounds for termination exist. Following a bench trial, the court granted the petition after finding, by clear and convincing evidence, that Mother was in substantial noncompliance with her permanency plan, and that the conditions originally leading to removal still persisted. The court also found, by clear and convincing evidence, that termination was in the Children’s best interest. Mother appeals. We affirm.


ALISA LEIGH ELDRIGE, ET AL. v. LEE SAVAGE

Court: TN Court of Appeals

Attorneys:

Michael R. Giaimo, Cookeville, Tennessee, for the appellant, Alisa Leigh Elidridge

Craig P. Fickling, Cookeville, Tennessee; John R. Officer, Livingston, Tennessee, for the appellee, Lee Savage

Judge: HIGHERS

This case involves the sale of a home in 1994. The purchaser and her husband filed a complaint against the seller, alleging that they discovered extensive fire damage to the home in 2010. The complaint alleged misrepresentation, mistake, and violation of the Tennessee Consumer Protection Act. The trial court granted the seller’s Rule 12 motion to dismiss on the basis that the claims were barred by various statutes of limitations, as the trial court found that the discovery rule was inapplicable. We find that the allegations in the complaint were sufficient to survive a Rule 12 motion to dismiss, as they implicate the discovery rule and the doctrine of fraudulent concealment. Therefore, we reverse in part the order of dismissal, to the extent that the purchaser’s claims were dismissed on the basis of the statutes of limitations, and we remand for further proceedings. We affirm in part the portion of the trial court’s order that addressed a separate issue, as that ruling was not challenged on appeal.


J-STAR HOLDINGS, LLC v. THE PANTRY, INC.

Court: TN Court of Appeals

Attorneys:

Carolyn W. Schott and Joshua A. Mullen, Nashville, Tennessee, for the appellant, The Pantry, Inc.

Andree S. Blumstein and John Lee Farringer, IV, Nashville, Tennessee, for the appellee, JStar Holdings, LLC.

Judge: BENNETT

This appeal turns on whether a commercial lease agreement requires the tenant to pay the landlord’s Tennessee excise tax. We agree with the conclusion reached by the trial court that the lease does require the tenant to pay the excise tax.


JAMES EDWARD PHELPS v. JACQUELINE ANN NEWMAN ET AL.

Court: TN Court of Appeals

Attorneys:

David B. Hamilton, Knoxville, Tennessee, for the appellant, James Edward Phelps.

Michael D. Fitzgerald, Knoxville, Tennessee, for the appellees, Jacqueline Ann Newman, Nick Coffee, Brenda Ford, David Elliott, and The University of Tennessee, Knoxville.

Judge: SUSANO

After he lost his job at the University of Tennessee, the plaintiff filed this action against UT and several of his coworkers. The complaint can be summarized thusly: the plaintiff had an intimate relationship with a female coworker and, after it ended, she and three of her friends, who were also coworkers of the plaintiff, set out to get him fired. He seeks to impose liability on the four individuals and UT under various theories. The defendants filed a motion to dismiss which the trial court granted. The plaintiff filed a motion to alter or amend which the trial court denied. The plaintiff appeals. We affirm in part and reverse in part.


SISCO AND CLOSE PROPERTIES v. C & E PARTNERSHIP

Court: TN Court of Appeals

Attorneys:

Russell B. Morgan and Frankie N. Spero, Nashville, Tennessee, for the appellant, Sisco And Close Properties.

David W. Lawrence, David Blake Lawrence and Thomas Irvin Bottorff, Lebanon, Tennessee, for the appellee, C & E Partnership.

Judge: FARMER

This is an action for breach of contract to purchase real property. The trial court found that a valid contract existed between the parties and that Buyer breached the contract. The trial court found that Seller failed to prove general damages, however, where Seller failed to prove the fair market value of the real property at the time of breach. The trial court further found that Buyer was entitled to a credit against special damages proven by Seller, and that Seller was not entitled to attorney’s fees as the prevailing party where the provision for attorney’s fees had been crossed out on the standard form contract. Seller appeals and Buyer cross-appeals. We affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. BRADLEY HAWKS

Court: TN Court of Criminal Appeals

Attorneys:

Jamie Kay Berkley, Trenton, Tennessee, for the appellant, Bradley Hawks.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Garry G. Brown, District Attorney General; and Hillary Lawler Parham, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Bradley Hawks, pled guilty in the Crockett County Circuit Court to possession of .5 grams or more of a Schedule II controlled substance, methamphetamine, with intent to sell and received an eight-year sentence to be served in confinement. As part of the plea agreement, the appellant reserved a certified question of law, namely whether exigent circumstances justified law enforcement’s searching his residence without a warrant. Based upon the record and the parties’ briefs, we conclude that evidence of exigent circumstances does not exist in this case. Therefore, the appellant’s conviction is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.


STATE OF TENNESSEE v. RAY NEIL THOMPSON

Court: TN Court of Criminal Appeals

Attorneys:

Jeffrey A. DeVasher, Assistant Public Defender, (on appeal), C. Dawn Deaner, Public Defender, and Jonathan F. Wing, Assistant Public Defender, (at trial), for appellant, Ray Neil Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Ray Neil Thompson, was convicted by a Davidson County jury of one count of aggravated robbery. He was sentenced to twenty-seven years in incarceration as a Range III, persistent offender. After the denial of a motion for new trial, Appellant initiated an appeal. On appeal, he argues: (1) that the trial judge improperly refused to recuse himself; (2) that the trial court improperly denied a motion to suppress Appellant’s statement; and (3) that the trial court improperly sentenced Appellant. After a review of the evidence and authorities, we conclude that the trial court did not abuse its discretion in denying the request for recusal or the motion to suppress and that the trial court properly sentenced Appellant. As a result, the judgment of the trial court is affirmed.


JIMMY LEE WHITMIRE v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Jimmy Lee Whitmire.

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

Judge: SMITH

Petitioner, Jimmy Lee Whitmire, was convicted of one count each of especially aggravated kidnapping, aggravated assault, and aggravated burglary. He received an effective sentence of eighteen years. State v. Jimmy Lee Whitmire, No. M2007-01389-CCA-R3-CD, 2009 WL 2486178, at *7 (Tenn. Crim. App., at Nashville, Aug. 13, 2009). He subsequently filed a petition for post-conviction relief arguing that he was afforded ineffective assistance of counsel. After conducting a hearing on the matter, the post-conviction court denied the petition. On appeal, Petitioner argues that he was denied effective assistance of counsel because trial counsel failed to properly advise him regarding testifying at trial. After a thorough review of the record, we conclude that Petitioner has not shown that trial counsel was ineffective or that if trial counsel was ineffective that he suffered prejudice from such. Therefore, we affirm the denial of the petition for post-conviction relief.


State Searches for New Death Penalty Drug

The federal government has confiscated Tennessee’s entire stock of sodium thiopental, a key drug for lethal injection, amid questions of whether it was legally obtained overseas during a 2010 shortage in America. Department of Correction Commissioner Derrick Schofield said the state is pursing alternative drugs in order to maintain its lethal injection protocol. Eighty-four inmates currently sit on Tennessee’s death row, 67 of whom have been there for more than 10 years. While death penalty opponents view the sodium thiopental shortage as a godsend, advocates think the state’s delay in finding an alternative drug is preventing justice from being carried out. The Tennessean has the story.


Dickinson Wright Expands in Phoenix

Detroit-based law firm Dickinson Wright PLLC is merging with the law practice of Mariscal, Weeks, McIntyre & Friedlander PA in Arizona, and will operate under the name Dickinson Wright/Mariscal Weeks. In addition to Michigan and Arizona, the firm has offices in Tennessee, Nevada, Ohio, Washington, DC, Toronto, and Ontario.


Law Salaries to Rise in 2013

A new Robert Half Legal Salary Guide anticipates that lawyers across the country will receive a salary increase in 2013, the Birmingham Business Journal reports. The average salary for attorneys with four to nine years of experience is expected to increase 4.55 percent, while attorneys with 10-12 years experience will see an average 3.68 percent raise. Lawyers with one to three years experience and first-year associates are projected to receive a 2.6 percent and 1.9 percent increase, respectively.


Kansas Sues Sperm Donor for Child Support

The Kansas Department of Children and Families (DCF) is suing a sperm donor for child support despite his written agreement with a lesbian couple to relinquish parental rights, the ABA Journal reports. Although the Kansas Supreme Court refused to allow a sperm donor to assert parental rights in a case five years ago, the DCF says the written agreement is void and the law doesn’t apply since a physician did not perform the artificial insemination. The nonbiological mother of the child who supports her has been unable to work reportedly due to health problems.


Judge Kurtz to Retire After Christian-Newsom Case

Knox County Senior Judge Walter Kurtz says he will retire after presiding over the trials of Christian-Newsom murder defendants Lemaricus Davidson, Letalvis Cobbins and George Thomas. His retirement will be retroactive to Dec. 31, 2012,  WATE Knoxville News Channel 6 reports.


Obama Renominates 33 to Federal Bench

President Barack Obama renominated 33 people for federal judgeships today, including seven to the federal appeals courts, 24 to federal district courts, and two to the Court of International Trade. The Legal Times reports that he chastised Congress for failing to act on nominations before they expired at the end of 2012. Obama said in a statement that several candidates had been awaiting a vote for more than six months despite having bipartisan support. View the full list of renominated candidates.


Passages: Notable Legal Losses in 2012

With a new year under way, American Law Daily offers a review of notable members of the legal community who passed away in 2012.


House Re-elects Boehner Speaker

Republican John Boehner was re-elected House Speaker yesterday at the convening of the 113th Congress, the Chattanooga Times Free Press reports. While there were grumblings amongst GOP ranks about the embattled Boehner, only 10 Republicans did not vote for him.


CBA to Host Annual Meeting

The Chattanooga Bar Association will host its 115th Annual Meeting at the Sheraton Read House Silver Ballroom on Jan. 23. Lunch will be provided to CBA Members.


Student Loan Expert to Speak At Memphis Law

National student loan expert Heather Jarvis will speak to students at the University of Memphis Cecil C. Humphreys School of Law as part of a comprehensive workshop for rising first and second year students. Jarvis has contributed to student debt relief policy for the House Education Committee and others in Congress, as well as advancing public service loan forgiveness. The event will be held next Tuesday at 9 p.m. in the law school’s Wade Auditorium.


GOP Supermajority Divided on Some Issues

As the opening of 108th General Assembly nears, many see the Legislature’s new Republican “supermajority” as divided, with one faction leaning towards moderate views and business interests and the other more conservative. Hot button issues that may cause division this year will include worker’s compensation, Medicaid expansion, and the sale of wine in grocery stores. The Knoxville News Sentinel has more.


 
 

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.


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