Senate Judiciary Has Eventful Early Day

The Tennessee Senate Judiciary Committee today recommended for action three significant measures. The constitutional amendment to create a new method of selecting Supreme Court and appellate judges through gubernatorial nomination, legislative confirmation and retention elections (SJR 2) cleared by a vote of 8 to 1. Legislation to codify comparative fault and limit joint and several liability (SB 56) was adopted by a 5 to 4 vote. Finally, the bill sponsored by Lt. Governor Ron Ramsey to require employers to permit employees to have guns locked in their vehicles (SB 142) moved out by a vote of 8 to 0 with one abstention, despite business opposition.

The Associated Press reported this afternoon that Lt. Governor Ramsey and Republican members of the committee met with Gov. Bill Haslam for nearly an hour on the gun issue before taking up the bill.

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
04 - 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

GWENDOLYN JEFFREY v. CITY OF MEMPHIS

Court: TN Court of Appeals

Attorneys:

Gerald S. Green, Memphis, Tennessee, for the appellant, Gwendolyn Jeffrey

John H. Dotson, Casey Shannon, Memphis, Tennessee, for the appellee, City of Memphis

Judge: HIGHERS

Decedent’s spouse brought an action to recover HHL benefits for the death of her firefighter husband. The City of Memphis denied her claim and decedent’s spouse appealed to an ALJ. The ALJ, likewise, denied the claim for benefits finding that the City of Memphis had rebutted the statutory presumption of causation and that decedent’s spouse had then failed to prove, by a preponderance of the evidence, that decedent’s cardiac condition was caused by his employment. The chancery court affirmed the decision of the ALJ, and we affirm the decision of the chancery court.


IN RE KEISHEAL N. E. ET AL.

Court: TN Court of Appeals

Attorneys:

Jeffrey C. Gruber, Murfreesboro, Tennessee, for the appellant, Keith E.

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

Judge: CLEMENT

This is the second appeal by the father of three minor children challenging the termination of his parental rights. Mother’s parental rights were terminated in 2009 and are not at issue. In the first appeal, this Court found the Department of Children’s Services failed to make reasonable efforts to reunite the children with the father and therefore reversed the termination of Father’s parental rights. In re Keisheal, N.E., No. M2009-02527-COA-R3-PT, 2010 WL 2176104, at *1 (Tenn. Ct. App. May 28, 2010). Following the first appeal, a new petition was filed. After the second trial, the trial court found the petitioners established the ground listed in Tennessee Code Annotated § 36-1-113(g)(8)(B)(i) that: “[t]he parent . . . is incompetent to adequately provide for the further care and supervision of the child because the parent’s . . . mental condition is presently so impaired and is so likely to remain so that it is unlikely that the parent . . . will be able to assume the care and responsibility for the child in the near future. . . .” The trial court further found the Department of Children’s Services made reasonable efforts to reunite the children with the father, and that termination was in the children’s best interest. We affirm.


CHEYNEY MCCARTER, d/b/a USA SPORTS GRILL, LLC v. CITY OF MT. JULIET, ET AL.

Court: TN Court of Appeals

Attorneys:

Brandt M. McMillan, Nashville, Tennessee, for the appellants, City of Mt. Juliet, City of Mt. Juliet Beer Board, and the following Individuals Serving in their capacity as members of the Beer Board: Mike Wheeler, Gwen Sherman, Winston “Ted” Floyd, Mike Gallion, and Mark Brewer.

G. Jeff Cherry, Lebanon, Tennessee; David Henry Veile, Franklin, Tennessee; James B. Lewis, Nashville, Tennessee, for the appellee, Cheyney McCarter, d/b/a USA Sports Grill, LLC.

Judge: COTTRELL

The Mt. Juliet Beer Board suspended the beer permit of a restaurant, and the restaurant owner appealed the suspension to the chancery court by filing a petition for writ of certiorari. The City did not file an answer within the requisite time period because it did not believe Tenn. Code Ann. § 57-5-108, which governs appeals of beer board decisions, required this. The City actively participated in the case in other ways by filing a motion to set the case for trial, filing a comprehensive pre-trial brief, and responding to discovery requests. The restaurant owner moved for default judgment based on the City’s failure to answer the petition, after which the City filed an answer. On the day set for trial, the trial court awarded the restaurant owner a default judgment based on the City’s failure to file an answer in a timely fashion and its failure to seek leave to file a late answer. We reverse and remand to the trial court for further proceedings.


HILDA PORTER, Administratix of the Estate of LOUELLA MAY SPARKS v. LARRY MELTON

Court: TN Court of Appeals

Attorneys:

Larry Melton, Lexington, Tennessee, pro se

Vincent K. Seiler, Jackson, Tennessee, for the appellee, Hilda Porter, Administratrix of the Estate of Louella May Sparks

Judge: HIGHERS

Plaintiff was awarded a $100,000 judgment against Defendant in the trial court. In a prior appeal, this Court reversed the damage award, and remanded for a new trial. On remand, the parties entered into an Agreed Order for a $100,000 judgment in favor of Plaintiff. Ten years after entry of the Agreed Order, Plaintiff moved to renew the unsatisfied judgment, and Defendant claimed that the renewal motion was untimely. The trial court granted the motion to renew the judgment, and we affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. APRIL NICOLE CROMWELL

Court: TN Court of Criminal Appeals

Attorneys:

Joe Lee Brown, Savannah, Tennessee, for the appellant, April Nicole Cromwell.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Hansel Jay McCadams, District Attorney General; and Eddie N. McDaniel, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON


STATE OF TENNESSEE V. TIMOTHY B. LENARDUZZI

Court: TN Court of Criminal Appeals

Attorneys:

Brent Horst, Nashville, Tennessee, for the appellant, Timothy B. Lenarduzzi.

Robert E. Cooper, Jr., Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General; L. Ray Whitley, District Attorney General; and Jayson Criddle, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: BIVINS

Timothy B. Lenarduzzi (“the Defendant”) pleaded guilty to two counts of aggravated sexual exploitation of a minor and three counts of sexual exploitation of a minor. In his plea agreement, he agreed to a sentencing range of “[e]ight to [t]welve years at one hundred percent on each count to run concurrent,” leaving the length of the sentence to be determined by the trial court. After a hearing, the trial court sentenced the Defendant as a Range I offender to eleven years for each aggravated sexual exploitation of a minor conviction and eleven years for each sexual exploitation of a minor conviction, all to be served concurrently. On appeal, the Defendant argues that the length of his sentence is improper. After a thorough review of the record and the applicable law, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. CANDICE STINSON

Court: TN Court of Criminal Appeals

Attorneys:

Linda Kendall Garner, Memphis, Tennessee, for the appellant, Candice Stinson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Betsy Weintraub, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Candice Stinson, was convicted by a Shelby County Criminal Court jury of fourteen counts of cruelty to animals, a Class A misdemeanor. See T.C.A. § 39-14-202 (2010). For each count, the trial court imposed a sentence of eleven months and twenty-nine days, with six months to be served in jail, and a $200 fine, all to be served concurrently. The court also ordered her to pay $4824 in restitution to the City of Memphis Animal Services and prohibited her from owning animals for ten years and from owning animals for commercial purposes for life. On appeal, the Defendant contends that the trial court erred by denying her full probation and requiring her to serve seventy-five percent of her sentence before becoming eligible for release. We affirm the judgments of the trial court.


Court Initiative Connects Pro Bono Lawyers, Faith Communities

The Tennessee Supreme Court’s Access to Justice Commission has formed a faith-based initiative to encourage lawyers to provide pro bono services within their places of worship, and to support faith-based groups that commit to provide legal resources to their congregations and communities. The Tennessee Faith and Justice Alliance (TFJA) is designed to connect with people in need in a place they already go to seek help with a problem. “Faith communities are a natural fit with our efforts to help those in need find access to legal advice,” said Tennessee Supreme Court Justice Cornelia A. Clark. “And with our goal of helping more lawyers find more occasions to provide pro bono services, this is the ideal opportunity for attorneys to put faith in action in their own worship communities." For more information contact Palmer Williams at (615) 741-2687 ext. 1414 or palmer.williams@tncourts.gov.


DCS Head Resigns; Interim Commissioner Named

Department of Children’s Services (DCS) Commissioner Kate O’Day resigned today, leaving behind a child welfare department struggling with numerous issues, reports The Tennessean. O’Day’s departure comes a day before a legislative hearing at which she had been scheduled to speak and a day after the department said it would cost at least $55,585 to gather and release child deaths records being sought in a lawsuit. Over the past year, DCS has faced scrutiny over a series of problems, including the death of children in state care, inaccurate data about the deaths, a child abuse hotline that left calls unanswered, a spike in violence at juvenile detention centers, a computer system that doled out improper payments and a high level of executive staff turnover. Gov. Bill Haslam named Jim Henry, who currently heads up the Department of Intellectual and Developmental Disabilities, to replace O’Day as interim commissioner.


Hamilton County Juvenile Judge Retiring in April

After nearly 30 years working with Hamilton County children through the juvenile court, Judge Suzanne Bailey will step down in April. The Times Free Press reports that the Hamilton County Commission will have the duty to appoint her replacement and that individual will hold the position until elections in August 2014. Commission Chairman Larry Henry said he has already heard from five people interested in the position. The commission will advertise the opening in coming weeks, Henry said.


Legal Aid Receives Grant to Help Low-Income Women

Legal Aid of East Tennessee has received a $10,000 grant to represent low-income women in Washington County through its Access to Civil Justice Project for Women. The money, according to the Kingsport Times News, comes from the Harris Fund for Washington County. The agency said the funds would provide representation to 25 women facing legal crises such as domestic violence, homelessness due to unlawful eviction or foreclosure, and wrongful denial of unemployment compensation benefits.


Murfreesboro Lawyer Receives Threatening Email

Police are trying to figure out why a suspect using his personal e-mail address would contact a Murfreesboro lawyer and claim he had been hired to kill the man. A police officer investigating the case said, “The e-mail detailed how (the man) was hired to assassinate (the lawyer) and that his ‘boys are getting more information to track him down.’” In addition to the e-mail, the lawyer said he is afraid due to “possible language references from a social media account,” the officer reported. Given the fact the alleged assassin did not try to conceal his identity, detectives are trying to determine whether the e-mail was a hoax, the Murfreesboro Post reports. A related story in the ABA Journal suggests the incident may be part of a scam that that has been around for several years in which an email written by a "hit man" attempts to extort money from the recipient in return for sparing their life.


Court Asked to Review Presidential Appointments

The issue of President Barack Obama’s appointments to the National Labor Relations Board is now before the U.S. Supreme Court, as a nursing home company on Monday asked the court to block a board order. Though Justice Ruth Bader Ginsburg denied the company’s application late yesterday, the company has now filed its petition with Justice Antonin Scalia, The Blog of Legal Times reports. If the court hears the challenge it will be the first opportunity to consider the constitutionality of the appointments, which were invalidated last month by a lower court. That decision found that the appointments – defended by the administration as traditional recess appointments – were an unconstitutional use of executive power because the Senate was in session when the new members were named.


Services Thursday for Powell Lawyer

Don W. Ownby, age 82 of Powell, died Feb. 3. Ownby was a University of Tennessee College of Law graduate and spent most of his career at the Municipal Technical Advisory Service at the university. He retired in 1991. The family will receive friends Thursday from 5:30 to 7:30 p.m. at Cumberland Baptist Church, 5600 Western Ave., Knoxville, TN 37921. A memorial service will follow at 7:30 p.m. On Friday morning at 11:30 a.m., Ownby will be laid to rest with full military honors at East Tennessee State Veterans Cemetery. In lieu of flowers memorials may be made to Cumberland Baptist Church.


Chattanooga Lawyer Dies

William R. Barnes of Chattanooga died Feb. 1. After graduating from the Nashville YMCA Night Law School (now the Nashville School of Law), Barnes began a 37-year career with State Farm Insurance. Graveside services were held yesterday at Hamilton Memorial Gardens in Hixson. In lieu of flowers, donations may be made to Hospice of Chattanooga, 4411 Oakwood Dr., Chattanooga, TN 37421, or American Cancer Society, 6221 Shallowford Rd., Chattanooga, TN 37416. Chattanoogan.com has more on his life.


Brentwood Lawyer Dies After Long Illness

Brentwood lawyer Timothy C. Phillips, 51, died Jan. 30 after an extended illness. A graduate of the University of Tennessee College of Law, Phillips spent a brief time in private practice and then joined the office of the State Attorney General. For 10 years he worked as a consumer advocate and senior counselor. A service was held today at 4:30 p.m. at Brentwood United Methodist Church in the suburbs of Nashville. In lieu of flowers, the family requests that donations be made to the Center for Youth Ministry Training, c/o Brentwood United Methodist Church, 309 Franklin Road, Brentwood, TN 37027. The Tennessean has more on his life.


Emancipation Proclamation on View Next Week

The Emancipation Proclamation will be on view at the Tennessee State Museum Feb. 12-18, reports the Chattanoogan. The document, which is making its only southeastern U.S. stop in Nashville, will be available for 72 hours over the course of the week. After that, a facsimile of the document will be in the exhibit. The viewing is in conjunction with the Discovering the Civil War exhibition from Washington D.C.’s National Archives. Museum officials estimate that 300 people will be able to see the document each hour.


Memphis Lawyer Suspended for 5 Years

The Tennessee Supreme Court on Feb. 4 suspended Memphis lawyer Michael R. Tucker for five years and ordered him to pay restitution in the amount of $66,667.67 and pay the board's expenses within 90 days. The court found that Tucker failed to disburse settlement funds to a client, converted funds for his personal use, made misrepresentations to the client about repayment of the money, and failed to communicate with the client in a reasonable manner. Tucker entered a conditional guilty plea admitting to the misconduct. Download the BPR notice


 
 

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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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