Voting to Start Friday for TBA Leadership

Voting starts Friday to select Tennessee Bar Association leadership for the upcoming year. There are contested elections for one seat on the Board of Governors and the vice presidential position. The winner of that seat will automatically advance to president elect and then president during the following two years. Vying for vice president are Nashville attorneys James Crumlin of Bone McAllester Norton PLLC and William “Bill” Harbison of Sherrard & Roe PLC,  and Mount Juliet lawyer Robert "Bobby" Hibbett, who serves on the Tennessee Claims Commission.

There will also be a contested election for the 1st District Governor position between Erin McArdle of the Office of the District Attorney and Brent Young from Baker, Donelson, Bearman, Caldwell & Berkowitz PC. You can see a full chart of the candidates for TBA governing positions, including those who drew no opposition.

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
03 - TN Court of Appeals
04 - 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

KENNETH R. BABB, ET. AL. V. TRENT CROSS, ET. AL.

Court: TN Court of Appeals

Attorneys:

C. Patrick Sexton, Oneida, Tennessee, for the appellants, Trent Cross, Gary Cross, and Ruby Ann Cross.

David A. Stuart and Max E. Huff, Clinton, Tennessee, for the appellees, Kenneth R. Babb and Leland Babb.

Judge: MCCLARTY

In this case, Plaintiffs sought a permanent injunction and a declaratory judgment prohibiting Defendants from restricting the use of Marcum Creek Road. Defendants denied that Plaintiffs ever had a right of access to Marcum Creek Road and asserted that Plaintiffs had failed to state a claim upon which relief could be granted. Thereafter, Plaintiffs filed a separate motion for a temporary injunction. The trial court consolidated the hearing on the injunction motion with a trial on the merits and issued a declaratory judgment, providing that Marcum Creek Road was a public road and that the public should have uninterrupted use of the right-of-way. Defendants appeal, asserting that the trial court abused its discretion by consolidating the motion hearing with a trial on the merits. Defendants request remand of this case to the trial court for a trial on the merits. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. ALLEN KELLEY
CORRECTION: On page twelve (12) of the opinion, court cost assessment language has been changed to read as follows: "Because Mr. Kelley is a juvenile, costs of this appeal are assessed against the State of Tennessee for all of which execution may issue if necessary".

Court: TN Court of Appeals

Attorneys:

B. Jeffery Harmon, District Public Defender; and Robert G. Morgan, Assistant Public Defender; Jasper, Tennessee, for the appellant, Allen Kelley.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General, for appellee, State of Tennessee.

Judge: STAFFORD

This is an appeal from the dismissal of Appellant/juvenile’s appeal of the juvenile court’s determination of delinquency to the circuit court pursuant to Tennessee Code Annotated Section 37-1-159. While the appeal was pending, Appellant ran away from the group home, where he had been ordered to live. Appellee Department of Children’s Services filed a motion to dismiss the appeal. The circuit court determined that the appeal should be dismissed based upon application of the fugitive disentitlement doctrine. The court further determined that Appellant had capacity, under the Rule of Sevens, to be held responsible for his actions. Discerning no error, we affirm.


EDWIN LESTER SMITH V. WILMA NEYMAN SMITH

Court: TN Court of Appeals

Attorneys:

Frank E. Watkins, Jr., Smyrna, Georgia, and Steven C. R. Brown, Birmingham, Alabama, for the appellant, Edwin Lester Smith.

Robert B. Wilson, III, Cleveland, Tennessee, for the appellee, Wilma Neyman Smith.

Judge: MCCLARTY

This appeal involves a claim filed to recover real property and personalty that was allegedly misappropriated from Decedent prior to his death. Decedent died at the age of 89, leaving Wife and Son as his survivors. Prior to his death, Decedent transferred the majority of his monetary assets and real estate to Wife. Following his death, Son brought this action, alleging that Decedent did not have the mental capacity to execute the transfers and that the transfers were a result of undue influence exercised by Wife, who exploited her confidential relationship with Decedent and also committed fraud to complete the unlawful conversion of the entirety of the estate. The trial court dismissed Son’s claims and awarded any remaining personalty to Wife. Son appeals. We affirm the judgment of the trial court.


TN Court of Criminal Appeals

STATE OF TENNESSEE V. BILLY JOE CARTER

Court: TN Court of Criminal Appeals

Attorneys:

J. Derreck Whitson, Newport, Tennessee for the appellant, Billie Joe Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; James B. Dunn, District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Cocke County jury convicted the Petitioner, Billy Joe Carter, of first degree murder, first degree felony murder, and especially aggravated robbery. The jury sentenced him to life in the Department of Correction without the possibility of parole for the two first degree murder convictions, and the trial court sentenced him to 40 years in the Department of Correction as a Range II, multiple offender for the especially aggravated robbery conviction. On direct appeal, this Court ordered the trial court to merge the two first degree murder convictions, and we affirmed the Petitioner’s convictions in all other respects. State v. Billy Joe Carter, No. E2005-01282-CCA-R3-CD, 2007 WL 1515010 (Tenn. Crim. App. May 24, 2007), perm. app. denied (Tenn. Aug. 13, 2007). The Petitioner filed a petition for post-conviction relief claiming that he received the ineffective assistance of counsel because his trial counsel failed to request a pre-trial mental evaluation of him. After a thorough review of the record and applicable authorities, we affirm the post-conviction court’s dismissal of his petition.


STATE OF TENNESSEE v. ANTWAIN GREEN

Court: TN Court of Criminal Appeals

Attorneys:

David A. Collins, Nashville, Tennessee, for the appellant, Antwain Green.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Ben Ford and Brian Ewald, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Antwain Green, was convicted of two counts of attempted second degree murder of Anthony Fizer and Carrie Searcy, Class B felonies, and three counts of aggravated assaults on, Fizer, Searcy and Laura Dykes, Class C felonies. The aggravated assault convictions of Fizer and Searcy merged with the two attempted second degree murder convictions. The defendant was sentenced as a Range II offender to eighteen- year terms for each attempted murder conviction and a nine- year term for the aggravated assault conviction of Dykes, to be served consecutively to each other for an effective sentence of forty-five years. The defendant appeals his convictions and sentences, asserting that the evidence introduced at trial was insufficient to sustain the convictions, that a witness was improperly permitted to testify regarding one victim’s identification of the defendant, and that his sentences are improper and excessive. Having reviewed the record, we conclude that the evidence was sufficient to sustain the convictions, that the error in admitting the testimony regarding identification was harmless, and that the trial court did not abuse its discretion in sentencing. Accordingly, we affirm the judgments of convictions and sentences of the trial court.


STATE OF TENNESSEE v. BOBBY LEE JOHNSON

Court: TN Court of Criminal Appeals

Attorneys:

Dawn Deanor, District Public Defendant; Aisha McWeay, Assistant Public Defendant (at guilty plea and sentencing hearing); and Emma Rae Tennant, Assistant Public Defender (on appeal), Nashville, Tennessee, for the Defendant-appellant, Bobby Lee Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Victor S. Johnson, III, District Attorney; Jeffrey D. Zentner, Assistant Attorney General; and Rob McGuire, Assistant District Attorney General for the appellee, State of Tennessee.

Judge: SUMMERS

The appellant, Bobby Lee Johnson, pled guilty to one count of possession of morphine with intent to sell, a Class B felony; one count of driving under the influence, a Class A misdemeanor; and one count of aggravated burglary, a Class C felony. See Tenn. Code Ann. §§ 39-17-417, 55-10-401, 39-14-403. Following a sentencing hearing, appellant was sentenced to an effective sentence of eight years to be served in confinement. In this appeal as of right, appellant contends that the trial court erred by denying his request for alternative sentencing. We affirm the trial court’s sentence.


ANTONIO D. VAUGHN v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

William H. Stover (on appeal) and Jason Chaffin (at hearing), Nashville, Tennessee, for the appellant, Antonio D. Vaughn.

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

Judge: GLENN

The petitioner, Antonio D. Vaughn, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel due to counsel’s failure to adequately communicate with him. After review, we affirm the denial of the petition.

TBA to Survey on Benefits, Programs, Initiatives

Tennessee attorneys should receive an email survey from Yacoubian Research in the next few days requesting participation in the 2013 Tennessee Bar Association Attorney Survey. It will take about 15 minutes to complete. Please take the time to participate. Results from the survey will be analyzed and used to influence TBA benefits, programs and initiatives.


Supreme Court Refuses to Hear Tim McGraw-Curb Case

The Tennessee Supreme Court has refused to hear Curb Record’s appeal of a lower court’s ruling that Tim McGraw was free to record with whomever he wished while his legal fight with his longtime label continued through the court system, the Tennessean's music blog reports. McGraw recently released “Two Lanes of Freedom” with Big Machine Records, the first album of his career not to be released on Curb.


3rd District Judge Lawson to Retire

Third Judicial District Circuit Court Judge Kindall T. Lawson will retire effective June 1, the Administrative Office of the Courts has announced. Lawson has been on the bench since 1996, after serving Hawkins County as General Sessions judge from 1974 to 1993. The 3rd Judicial District serves Greene, Hamblen, Hancock, and Hawkins counties.


Captured Oil in BP Spill Not Part of Penalties

BP and the federal government have agreed that 34 million gallons of oil captured before it could enter Gulf waters during the massive 2010 spill will not count toward the oil giant’s civil penalties. While the Justice Department settled criminal charges in November, the first phase of the trial regarding the government’s civil claims will begin Feb. 25 to determine the cause of the well blowout and assign percentage fault to the companies involved in the drilling project that went wrong. WMC News Channel 5 has the story.


Memphis Official Placed on Diversion in Misconduct Case

Former General Sessions Court Clerk Otis Jackson chose not to go to trial on official misconduct charges and instead agreed to pretrial diversion. The Commercial Appeal reports that under the diversion agreement, state prosecutors will put the four felony counts on hold for one year and then move for their dismissal if Jackson has no new brushes with the law. He must also pay a $30 monthly supervision fee to Pretrial Services, perform 50 hours of community service and pay $100 to Memphis Crime Stoppers.


Council Chair to Take on Dispute Between Mayor, Judges

City Council Chair Pam Ladd said she is willing to step in and referee the latest dispute between Chattanooga Mayor Ron Littlefield and City Judges Sherry Paty and Russell Bean, the Chattanoogan reports. Mayor Littlefield and the judges have clashed over a number of issues since Paty accused Littlefield of trying to interfere in her handling of a case. The most recent dispute stems from an email Paty sent to the council members saying the administration was moving ahead with a plan to convert the city court clerk’s office to a paperless system, despite the judges’ request that the process not start until a new mayor can appoint a new city court clerk.


Funeral Arrangements Announced for Judge Higgs

Funeral arrangements have been announced for former Criminal Court Judge W. Otis Higgs, who died last week at the age of 75. Visitation will be held on Friday 11 a.m. to 3 p.m.  at Mississippi Boulevard Christian Church,  70 North Bellevue Blvd., Memphis. The funeral service will follow.


Health Care Compact Fails in House Committee

A measure that would allow Tennessee to approach Congress about forming the state’s own health care system has failed a second consecutive year, the Memphis Daily News reports. The proposal, sponsored by Rep. Mark Pody, R-Lebanon, failed 9-9 in the House Insurance and Banking Committee. The bill would have allowed Tennessee to join an interstate health care compact in seeking other options. Opponents said it is unnecessary and could hurt the state’s other health initiatives such as Tennessee’s federal match for TennCare and the expanded Medicaid program


Firearm Bill Delayed, Online School Enrollment Cap Passed

Senate Judiciary Committee Chairman Brian Kelsey delayed a vote on legislation that declares Tennessee has a right to nullify federal gun laws and charge federal agents who enforces them with committing a felony. The bill, sponsored by Sen. Mae Beavers, R-Mount Juliet, is presented as an amendment to the Tennessee Firearms Freedom Act of 2009. In a wrap-up of recent legislative news, Knoxnews also reported on a proposal to tighten enrollment requirements for online-only schools, which was approved in the House Education Committee. The proposal would allow online schools to start with an enrollment of 1,500 and expand so long as they meet performance requirements.


 
 

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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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