Waller MLK Event Features Civil Rights Heroes

Leaders of the renowned Nashville Civil Rights Movement of the 1960s recalled their work and the lessons learned during a tribute to the Rev. Martin Luther King Jr. hosted today in Nashville by the Waller law firm. Speaking before a packed house of several hundred in downtown Nashville, journalist and civil rights activist John Seigenthaler helped bring out the stories from Diane Nash, Rip Patton and the Rev. James M. Lawson Jr., who were all key figures in the non-violent movement that led to the opening of Nashville's lunch counters to African Americans. The three were also later involved in the Freedom Rides throughout the South. Also at the event, Waller Chair John C. Tishler presented the 2012 Diversity Scholarship to University of Tennessee College of Law student Natalie Greene.

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.

02 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
02 - 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









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TN Supreme Court

DICK BROADCASTING COMPANY, INC. OF TENNESSEE v. OAK RIDGE FM, INC. ET AL.
With concurring opinion.

Court: TN Supreme Court

Attorneys:

Robert S. Stone, Knoxville, Tennessee, for the appellant, Oak Ridge FM, Inc., and ComCon Consultants.

John A. Lucas, Alcoa, Tennessee, for the appellant, John W. Pirkle.

John A. Day and Brandon E. Bass, Brentwood, Tennessee, for the appellee, Dick Broadcasting Company, Inc., of Tennessee.

Judge: LEE

The legal issues in this appeal revolve around the assignment of three agreements. The first is a Right-of-First-Refusal Agreement that allowed for an assignment with the consent of the non-assigning party. The agreement was silent as to the anticipated standard of conduct of the non-assigning party in withholding consent. The other two agreements—a Time Brokerage Agreement and a Consulting Agreement—were assignable without consent. The primary issue we address is whether the implied covenant of good faith and fair dealing applies to the non-assigning party’s conduct in refusing to consent to an assignment when the agreement does not specify a standard of conduct. Oak Ridge FM, Inc. (“Oak Ridge FM”) contractually agreed for Dick Broadcasting Company (“DBC”) to have a right of first refusal to purchase Oak Ridge FM’s WOKI-FM radio station assets. The agreement was assignable by DBC only with the written consent of Oak Ridge FM. When DBC requested Oak Ridge FM to consent to the assignment of the Right-of-First-Refusal agreement to a prospective buyer, Oak Ridge FM refused to consent. Oak Ridge FM also refused to consent to the assignment of the Consulting Agreement and Time Brokerage Agreement, neither of which contained a consent provision. DBC sued Oak Ridge FM and the other defendants, alleging breach of contract and violation of the implied covenant of good faith and fair dealing. The trial court granted the defendants a summary judgment. DBC appealed, and the Court of Appeals vacated the summary judgment. We hold that where the parties have contracted to allow assignment of an agreement with the consent of the non-assigning party, and the agreement is silent regarding the anticipated standard of conduct in withholding consent, an implied covenant of good faith and fair dealing applies and requires the nonassigning party to act with good faith and in a commercially reasonable manner in deciding whether to consent to the assignment. Because there are genuine issues of material fact in dispute, we affirm the judgment of the Court of Appeals and remand to the trial court.


READY MIX, USA, LLC v. JEFFERSON COUNTY, TENNESSEE
CORRECTION: On page 3, footnote 6, line 13: "closer that" is changed to "closer than" On page 15, line 2: "Hardin Valley Acad." is changed to "Harding Acad." On page 15, line 2: "Metro" is changed to "Metro." On page 17, line 11: "476 S.W.3d" is changed to "363 S.W.3d" On page 21, line 13: "and dozier onto the property and used the dozier to" is changed to "and dozer onto the property and used the dozer to"

Court: TN Supreme Court

Attorneys:

Arthur G. Seymour, Jr. and Benjamin C. Mullins, Knoxville, Tennessee, for the appellant, Ready Mix, USA, LLC.

S. Douglas Drinnon and Larry Ray Churchwell, Dandridge, Tennessee, for the appellee, Jefferson County, Tennessee.

Judge: WADE

The plaintiff, a producer of construction aggregates, acquired property with proven reserves for mining and quarrying operations. Afterward, Jefferson County enacted a comprehensive zoning ordinance limiting the use of the property to agricultural purposes. Before the passage of the ordinance, the plaintiff undertook various activities designed to establish business operations. When the county issued a stop work order, the plaintiff, without first receiving a decision from the county’s board of zoning appeals, filed a declaratory judgment action arguing that the portion of the property not previously subject to zoning qualified as a pre-existing non-conforming use, protected by Tennessee Code Annotated section 13-7-208 (1992). After concluding that the plaintiff was not required to exhaust its administrative remedies, the trial court ruled that the business activities on the property were “in operation” at the effective date of the ordinance for purposes of grandfather protection under section 13- 7-208. Because the Court of Appeals held that the plaintiff had failed to exhaust its administrative remedies, the judgment was set aside. We hold that the trial court, under these circumstances, did not err by ruling that the plaintiff was not required to exhaust the administrative remedies. We further hold that the evidence does not preponderate against the trial court’s finding that the plaintiff had established operations sufficient to qualify for protection under Tennessee Code Annotated section 13-7-208.


TN Court of Appeals

AEGIS SCIENCES CORPORATION v. LOU ANN ZELENIK, ET AL.
With dissenting opinion.

Court: TN Court of Appeals

Attorneys:

Joel T. Galanter and Tricia T. Olson, Nashville, Tennessee, for the appellant, Aegis Sciences Corporation.

Richard E. Spicer and Brent S. Usery, Nashville, Tennessee, and Robert E. Lee Davies, Franklin, Tennessee, for the appellees, Lou Ann Zelenik, Lou Ann for Congress and Jay Heine.

Judge: FARMER

The trial court awarded summary judgment to Defendants in this action for defamation, civil conspiracy, and violation of the Tennessee Consumer Protection Act. Plaintiff appeals the award of summary judgment on its claims for defamation and civil conspiracy. We affirm.


ALBERTO DELEON V. STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

Albert DeLeon, Chattanooga, Tennessee, appellant, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter, and Dianne Stamey Dycus, Assistant Attorney General, Civil Rights and Claims Division, Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: PER CURIAM

Alberto DeLeon (“the Claimant”) filed a claim pursuant to the Criminal Injuries Compensation Act for permanent impairment benefits and moving expense benefits allegedly arising out of an incident that occurred on April 5, 2011, in which the Claimant apparently was shot by his landlord. The claim was assigned to the small claims docket of the Claims Commission. Because we have no jurisdiction to hear an appeal from an order denying a claim appearing on the small claims docket of the Claims Commission, this appeal is dismissed.


IN THE MATTER OF JACOB A. C. H.

Court: TN Court of Appeals

Attorneys:

Jonathan A. Garner, Springfield, Tennessee, for the appellant, Amber R. J.

Mary H. F.-H. and Stephen C. H., Springfield, Tennessee, Pro Se.

H. Garth Click, Springfield, Tennessee, for minor child, Jacob A. C. H.

Judge: DINKINS

The trial court terminated the parental rights of Mother to her child, finding that she wilfully failed to visit or support the child. Mother appeals, contending that she lacked the capacity to visit or pay support. Upon our de novo review we determine that the evidence does not preponderate against the trial court’s findings of fact and its conclusion that Mother abandoned the child and that termination of her rights is in the child’s best interest.


IN RE: JEREMIAH P.A.

Court: TN Court of Appeals

Attorneys:

William L. Gribble, II, Maryville, Tennessee, for the appellants, Donna J. P. and Jeremy A.

Ronald Jay Attanasio, Knoxville, Tennessee, for the appellee, Charles R.

Dennis B. Francis, Knoxville, Tennessee, Guardian Ad Litem.

Judge: PER CURIAM

This appeal is from an order of the trial court entered on August 14, 2012, which order terminated the parental rights of Jeremy A. to his son, Jeremiah P.A., based upon Jeremy A.’s joining in the petition for adoption filed by Donna J. P., the child’s biological maternal grandmother, on September 20, 2011. See Tenn. Code Ann. § 39-1-117(f). The order appealed from does not resolve all issues raised in the petition for adoption, or the petition to intervene and adopt filed by Charles R., the child’s biological maternal grandfather. As such, the order is not a final order and this appeal is dismissed for lack of jurisdiction.


TORRIE SCHNEIDER LONGANACRE v. MATTHEW ROBERT LONGANACRE
With concurring and dissenting opinions.

Court: TN Court of Appeals

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Matthew Robert Longanacre.

Donald N. Capparella and Jason Gichner, Nashville, Tennessee; and Elizabeth D. Rankin, Clarksville, Tennessee, for the Appellee, Torrie Schneider Longanacre.

Judge: DINKINS

Husband appeals the order granting Wife a legal separation and alimony in futuro. Finding no error, we affirm.

ROLANDO TOYOS v. AMANDA G. HAMMOCK

Court: TN Court of Appeals

Attorneys:

Kay Farese Turner, Emily L. Hamm, Memphis, Tennessee, for the appellant, Rolando Toyos

Christine W. Stephens, Memphis, Tennessee, for the appellee, Amanda G. Hammock

Judge: HIGHERS

After primary residential parent Mother notified Father of her intent to relocate, Father opposed relocation and he petitioned to be named the child’s primary residential parent. The trial court determined the Father had demonstrated a material change in circumstances, but it found the child’s best interests would be promoted by Mother remaining the primary residential parent, and it allowed Mother’s relocation with the child. We affirm in part and we reverse in part.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. CHARLES GEPHART

Court: TN Court of Criminal Appeals

Attorneys:

Terry D. Smart and N. Craig Brigtsen, III, Memphis, Tennessee, for the appellant, Charles Gephart.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy P. Weirich, District Attorney General; and Charles Bell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant pled guilty to one count of driving under the influence (first offense), a Class A misdemeanor, while reserving a certified question of law concerning the legality of the traffic stop that led to his arrest. The defendant was sentenced to eleven months and twenty-nine days, and permitted to serve all but two days of this sentence on probation. On appeal, the defendant claims that the trial court erred by denying his motion to suppress, claiming that the State failed to prove that the police officer initiating the traffic stop had a reasonable suspicion that the defendant had committed or was about to commit an offense. After carefully reviewing the record and the arguments of the parties, we conclude that the certified question reserved by the defendant did not clearly outline the scope and limits of the question presented as required by existing precedent. We dismiss the appeal accordingly.


STATE OF TENNESSEE v. JURICO READUS

Court: TN Court of Criminal Appeals

Attorneys:

Stephen Bush, District Public Defender; Clifford Abeles and Sanjeev Memula, Assistant District Public Defenders, at trial; and Phyllis Aluko, Assistant District Public Defender, on appeal, for the appellant, Jurico Readus.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Paul Goodman and Glenda Adams, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

A jury convicted the defendant, Jurico Readus, of one count of first degree (felony) murder of Luis Reyes Hernandez, and two counts of attempted especially aggravated robbery,class B felonies. The trial court merged the count of attempted especially aggravated robbery of Luis Reyes Hernandez with the first degree (felony) murder conviction, for which the defendant received a life sentence. The defendant was sentenced to serve ten years, concurrently with his life sentence, for the attempted especially aggravated robbery of Jary Reyes. On appeal, the defendant challenges the sufficiency of the evidence underlying his convictions and the voluntariness of his confession which was obtained while he was a juvenile. After a thorough review of the record, we conclude that there was no reversible error and affirm the judgments of the trial court.


Immigration Top Priority for Senate Judiciary Committee

The Senate Judiciary Committee will dedicate most of its time this spring to comprehensive immigration reform including changes for technology companies and agricultural businesses, committee chair Sen. Patrick Leahy, D-VT, said Wednesday. The Blog of the Legal Times reports that the committee will begin public hearings next month. Leahy also stated the committee will continue oversight of the nation's counterterrism efforts and protecting civil liberties, including the administration’s use of drones abroad as well as in the U.S.


Report: Waller Again Nashville's Biggest Firm

The Nashville Business Journal ranked Nashville’s law firms by their number of local attorneys, including the number of partners, associates, and non-lawyer employees. Waller again this year edges out Bass, Berry & Sims for the top spot. Information about the number of attorneys of counsel, paralegals and each firm’s top three areas of practice can be found in this week’s print edition of the Journal.


Medical Center to Pay $883K Settlement over False Claims Charges

Wayne Medical Center, a hospital under the Maury Regional Medical Center umbrella, has agreed to pay $883,451 to the U.S. government to settle False Claims Act allegations self-reported by the hospital regarding the billing for ambulance transport as part of its emergency medical services. By reporting the allegations, Wayne Medical Center potentially saved itself thousands of dollars in fines, in addition to a costly investigation. The Nashville Business Journal has the story.


Hamilton Attorney Finds Niche in Railroad Work

Chattanooga attorney Pamela O’Dwyer knew since the age of five that she wanted to follow in her mother’s footsteps and become a lawyer. She attended the University of Tennessee College of Law and was sworn in to the Supreme Court of Tennessee at the age of 21. In a bid to find an area of law on which her mother hadn’t already made her mark, O’Dwyer turned to railroad work when a case fell into her lap regarding a family who wanted lights and gates put up at a crossing in order to save lives. The owner of the private crossing refused, so O’Dwyer argued the case to the Supreme Court. Read more of the story in the Hamilton County Herald.


Prosecutor Nominated for Top ATF Position

Minnesotta prosecutor Todd B. Jones will be nominated by President Barack Obama as the next director of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), WKRN News Channel 2 reports. Jones has been serving as the agency’s acting head for more than a year. Obama said yesterday that Congress should approve Jones for the job since they haven’t confirmed a director in six years. Jones has not issued a response, as he was instructed not to speak with reporters until he is formally confirmed.


Justices Pay Tribute to Former Longtime Supreme Court Official

Legendary deputy clerk of the Supreme Court Francis Lorson was buried this morning at the Catholic Church for the Immaculate Conception in Washington D.C. He died on Friday at 69. Five justices, dozens of court staff members and practitioners attended the service. Lorson retired in 2002 after more than three decades of service.


Court Rules Good Faith Implied in Assignment Consent Agreements

The Tennessee Supreme Court ruled that where contracting parties have agreed to allow assignment of a contract with the consent of the non-assigning party, and the agreement is silent regarding the anticipated standard of conduct in withholding consent, an implied covenant of good faith and fair dealing requires the non-assigning party to act with good faith and in a commercially reasonable manner in deciding whether to consent to the assignment. In the case of Dick Broadcasting Company, Inc. v. Oak Ridge FM, Inc., the Court overturned the trial court’s opinion and ruled in favor of DBC that the duty of good faith and fair dealing applied to the right of first refusal agreement. A separate concurring opinion was filed by Justice William Koch.


New Bill Aims to Prevent Federal Gun Law Enforcement

In response to President Barack Obama’s 23 executive orders regarding gun violence prevention, Congressional hopeful and State Rep. Joe Carr is introducing a bill that would ensure any new gun restrictions handed down from Washington, D.C would not be enforceable in Tennessee, the Nashville City Paper reports. Carr’s proposal, House Bill 42, would slap federal officials with a Class A misdemeanor for enforcing the new federal gun laws, executive orders, rules or regulations. Under the bill, state troopers would have the authority to arrest federal officers.


Organizer of Defunct GOP Presidential Forum Charged with Theft

Fabian Farrall Story, executive director of Conservatives on the Move, was indicted by a Washington County grand jury on one count of theft over $10,000 for raising approximately $30,000 for a 2011 Republican presidential campaign forum that never occurred, the Johnson City Press reports. According to Tennessee Bureau of Investigation, Story withdrew the money from the a Washington County bank but never held the event or refunded the donors.


 
 

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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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