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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.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
07 - 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

IN RE KELSIE M.P., ET AL.

Court: TN Court of Appeals

Attorneys:

Ben H. Houston, II, Knoxville, Tennessee, for the appellant, Carrie M. P.

Robert E. Cooper, Jr., Attorney General and Reporter, and Alexander S. Rieger, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

Dorothy Cooley, Maryville, Tennessee, Guardian ad Litem.

Judge: MCCLARTY

This case involves the termination of a mother’s parental rights to three children who had been placed in the custody of the Tennessee Department of Children’s Services. The mother had made some progress in complying with the permanency plan developed by the Department, but was still experiencing “instability.” Nearly two years after the mother relinquished control of the children, the Department petitioned to terminate the mother’s parental rights. The trial court granted the petition, terminating the mother’s parental rights on the ground that the conditions that led to the children’s removal continued with little likelihood of remedy. The mother appeals. We affirm.


PAM LOWERY AND DEBBIE NELSON v. ROBERT MCVEY

Court: TN Court of Appeals

Attorneys:

Jerry B. Bible, Jasper, Tennessee for Petitioner/Appellants Pam Lowery and Debbie Nelson

L. Thomas Austin, Dunlap, Tennessee for Respondent/Appellee Robert McVey

Judge: KIRBY

This case involves monetary damages for contempt of court. The respondent owned a parcel of land as tenants in common with his brother. When the brother died, the deceased brother’s children inherited his interest in the property. The deceased brother’s daughters filed this petition against the respondent to partition the property. The trial court entered an order equitably dividing the property between the respondent and the two petitioner sisters and requiring the respondent to remove personal property, junk, and debris he had placed on the parcel awarded to the sisters. The respondent was found in contempt for failing to remove the debris, and again ordered to do so. Apparently unhappy with this order, the respondent proceeded to remove, damage, or destroy fixtures and structures on the property awarded to the sisters, including a pole barn, several sheds, and a garage with an apartment. He also failed to remove the junk and debris as specified in the trial court’s order. The petitioner sisters filed a second petition for contempt and sought contempt damages for the harm done to the buildings, fixtures, and structures. The trial court found the respondent in contempt a second time, based on his continued failure to remove the junk and debris. However, the trial court declined to award contempt damages to the petitioner sisters under T. C. A. § 29-9- 105 for the destruction of the structural improvements on the property, finding that it was not within the parameters of the trial court’s initial order. The petitioner sisters appeal. Discerning no error, we affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. TERRENCE HILL

Court: TN Court of Criminal Appeals

Attorneys:

Leslie I. Ballin and Richard S. Townley, Memphis, Tennessee, for the appellant, Terrence Hill.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Stephen Crossnoe and Marques Young, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Shelby County jury convicted the Defendant, Terrence Hill, of second degree murder. The trial court imposed an eighteen-year and six-month sentence in the Tennessee Department of Correction, to be served at 100%. On appeal, the Defendant argues that: (1) the evidence is insufficient to support his conviction; and (2) the trial court erred when it discharged a prospective juror based upon her inability to be impartial. After thoroughly reviewing the record and applicable authorities, we find that the evidence is sufficient to sustain the Defendant’s conviction and that the trial court did not err in discharging the prospective juror. Accordingly, we affirm the trial court’s judgment.


FLOYD RODRIQUEZ JOHNSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Floyd Rodriquez Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; John W. Carney, Jr., District Attorney General; and John E. Finklea, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Floyd Rodriquez Johnson, appeals the Montgomery County Circuit Court’s denial of his petition for post-conviction relief. The petitioner is currently serving an effective twenty-five year sentence in the Department of Correction following his guilty pleas to multiple drug charges. On appeal, the petitioner contends that his guilty pleas were not knowingly and voluntarily entered due to the ineffective assistance of counsel. Specifically, he contends trial counsel was ineffective by failing to ensure that the petitioner understood the terms of the plea agreement and the resulting sentencing consequences if the petitioner failed to complete a drug rehabilitation furlough. Following review, we conclude that the post-conviction court properly determined that the petitioner was not denied his right to the effective assistance of counsel and that the pleas were entered knowingly and voluntarily. The denial of post-conviction relief is affirmed.


STATE OF TENNESSEE v. MAHLON JOHNSON

Court: TN Court of Criminal Appeals

Attorneys:

R. Todd Mosley, Memphis, Tennessee (on appeal) and James Thomas and Mark Saripkin, Memphis, Tennessee (at trial) for the appellant, Mahlon Johnson.

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

Judge: WEDEMEYER

A Shelby County jury convicted the Defendant, Mahlon Johnson, of one count of aggravated assault and two counts of sexual battery, and the trial court sentenced him to an effective sentence of twenty-seven years in the Tennessee Department of Correction. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his convictions for sexual battery; (2) the trial court erred when it failed to merge the sexual battery convictions; (3) the Defendant’s convictions for sexual battery and aggravated assault violate double jeopardy protections; and (4) the trial court improperly sentenced him. The State agrees that there is insufficient evidence to support the Defendant’s sexual battery convictions, and it asks us to reverse those convictions and dismiss the indictments. After a thorough review of the record and applicable authorities, we conclude there exists in the record sufficient evidence to support the Defendant’s convictions and that the trial court did not err when it did not merge those convictions. We further conclude that the trial court did not err when it sentenced the Defendant. We, therefore, affirm the Defendant’s convictions and sentence.


LARRY PAYNE v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

R. Todd Mosley, Memphis, Tennessee, at trial and on appeal; and Eran E. Julian, Memphis, Tennessee, at trial, for the appellant, Larry Payne.

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

Judge: WILLIAMS

The petitioner, Larry Payne, was convicted by a jury of four counts of aggravated robbery, Class B felonies, against two victims. On direct appeal, the Court of Criminal Appeals merged the four convictions into two, one for each victim, and otherwise affirmed the judgments. The Tennessee Supreme Court declined discretionary review. The petitioner then brought this timely post-conviction petition, asserting various claims of ineffective assistance of counsel. The petitioner’s sole issue on appeal is whether he was denied the effective assistance of counsel due to his trial counsel’s failure to request a jury instruction on the lesser included offense of theft. After a thorough review of the record, we conclude that the petitioner has not established any prejudice resulting from his counsel’s failure to request a jury charge on the lesser included offense of theft. The petitioner’s failure to establish prejudice is fatal to his ineffective assistance claim. The judgment of the court below is affirmed.


STATE OF TENNESSEE v. JEFFREY SCOTT PETTY

Court: TN Court of Criminal Appeals

Attorneys:

Robert Brooks, Memphis, Tennessee (on appeal); William (Jake) Bradley Lockert, III, District Public Defender; Dawn S. Kavanagh, Assistant Public Defender; and Rhonda R. Crabtree, Ashland City, Tennessee (at trial), for the Defendant-Appellant, Jeffrey Scott Petty.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; Dan Mitchum Alsobrooks, District Attorney General; Carey J. Thompson and W. Ray Crouch, Jr., Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Jeffrey Scott Petty, was convicted by a Dickson County Circuit Court jury of first degree felony murder and arson and was sentenced to consecutive sentences of life imprisonment and five years, respectively. On appeal, Petty argues that the trial court committed plain error by instructing the jury that his statement to law enforcement was a confession rather than an admission against interest. Upon review, we affirm the judgments of the trial court.


DERRICK SAWYERS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Derrick Sawyers, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Amy Hunter, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Petitioner, Derrick Sawyers, filed a “Motion for Relief from Judgment Pursuant to T[enn.] R. Civ. P. Rule 60.02” in the Criminal Court for Davidson County, alleging that (1) his sentences were illegal and (2) the trial court violated his due process rights. The trial court treated the motion as a petition for writ of habeas corpus, it denied relief, and this appeal followed. This case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.


MARLOS SHIELDS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Zipporah C. Williams, Memphis, Tennessee, for the appellant, Marlos Shields.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Katherine Berendt Ratton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

A Shelby County jury convicted petitioner, Marlos Shields, of aggravated robbery and aggravated burglary. The trial court sentenced him to an effective eighteen-year sentence. Following his direct appeal, petitioner filed a petition for post-conviction relief alleging that he received ineffective assistance of counsel. The post-conviction court denied relief, and petitioner now appeals. Following our review of the record, the parties’ briefs, and applicable case law, we affirm the judgment of the post-conviction court.


Friday is Deadline to File for TBA Offices

TBA members interested in holding elected leadership positions have until Friday (Feb. 15) to file the necessary petitions or declarations of candidacy. A number of candidates already have filed for positions on the TBA Board of Governors or House of Delegates, however, there are still positions open. You can find a list of positions up for election in 2013 on the TBA website. More information about the election process also is available online or by contacting  Jenny Jones at jjones@tnbar.org or (615) 383-7421.


Court Launches Pro Bono Recognition Program

The Tennessee Supreme Court is launching a volunteer recognition program to honor lawyers who provide at least 50 hours of pro bono service annually. The program is entirely voluntary and based on self-reporting. Attorneys are encouraged to begin tracking their work this year. Those who meet the goal will be named “Attorneys for Justice” by the court and will be honored at regional events across the state. Those meeting the criteria also will receive a certificate signed by the justices, be listed in an Honor Roll published by the court, and be authorized to use a seal of their accomplishment on websites and marketing materials. The program was recommended by the court’s Access to Justice Commission.


Frierson to be Sworn in Thursday

Chancellor Thomas R. “Skip” Frierson will be sworn in as the newest judge on the Tennessee Court of Appeals Thursday at 2 p.m. Tennessee Supreme Court Chief Justice Gary Wade will administer the oath of office. Frierson was appointed to the court last week by Gov. Bill Haslam. He replaces Judge Herschel P. Franks, who retired at the end of 2012. The ceremony will take place at the Supreme Court Building in Knoxville. The Administrative Office of the Courts reported the news.


Judge Rescinds Order Blocking Release of Records

The public’s access to warrants and other papers from the Carter County General Sessions Court appeared to be back to normal on Monday after three days of confusion over a policy for releasing public records. The Johnson City Press reported Monday that Judge John Walton had rescinded an order that instructed the sheriff to route all paperwork for the courts to the bench clerk and to no one else. Carter County Attorney Keith Bowers helped resolve the issue.


ABA House Adopts Range of Resolutions

The ABA House of Delegates approved a range of resolutions today at its winter meeting in Dallas, the ABA Journal reports. Proposals garnering support included those urging lawmakers to provide adequate funding for federal courts and the Legal Services Corp.; creating a new national entity to help public defenders dealing with excessive caseloads; providing guidance for an amicus brief in a case on the patenting of isolated human genes; giving foreign lawyers limited authority to serve as in-house counsel in the United States; encouraging lawyers to provide unbundled legal services; clarifying a model rule dealing with conflicts of interest in multi jurisdictional cases; and urging federal courts to instruct grand jury members that they are not bound to indict just because a conviction can be obtained. The body also approved a series of resolutions addressing human trafficking, a key issue for ABA President Laurel G. Bellows.


Courthouse Shooting Leave 3 Dead in Delaware

A shooting at the New Castle County Courthouse on Monday morning has left two women dead. The gunman, who authorities say “spent years in court battles over custody disputes,” also exchanged gunfire with police before being fatally shot. After the shooting, police searched the courthouse and area streets remained closed Monday night. Officials said the courthouse would be closed Tuesday while repairs are made and authorities continue their investigation, WRCB in Chattanooga reports. In its story about the incident, the ABA Journal reported that the women, one of whom was the shooter's estranged ex-wife, were at the courthouse for a custody hearing.


NLBF Banquet to Honor Haynes, Garrett, Grant

The Napier-Looby Bar Foundation (NLBF) will hold its 9th Annual Barristers' Banquet and Awards Program Feb. 28 at the Sheraton in downtown Nashville. Money raised from the event enables the NLBF to award scholarships and to fund charitable efforts throughout the year. This year, NLBF is honoring U.S. District Judge William J. Haynes Jr.; Bone McAllester Norton attorney Stacey A. Garrett; and Baker, Donelson, Bearman, Caldwell & Berkowitz attorney Charles Grant.


Reception Honors MBA President Seely

The Memphis Bar Association (MBA), University of Memphis School of Law and Counsel On Call are sponsoring a reception Feb. 28 to honor new MBA President Linda Warren Seely. The event will take place from 5 to 7 p.m. in the 4th Floor Gordon Ball Scenic Reading Room of the University of Memphis Cecil C. Humphreys School of Law, 1 N. Front St., Memphis. Please RSVP by Feb. 25 to (901) 432-4720. View the invitation on the MBA website.


Show Your Practice A Little Love This Valentines

Loving your law practice means accepting all its different sides. This CLE on Thursday will help you tackle a number of practice management challenges. Topics include how to protect yourself when moving from one firm to another, making the decision to retire, how to make a move to an in-house position, keeping up with current technology, and using social media for marketing and winning cases. The program will run from 9 a.m. to 12:15 p.m. Central time on Valentines Day. Choose between the live program at the Tennessee Bar Center or a live webcast of the seminar.


 
 

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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