TBA to Recognize 2013 Corporate Pro Bono Honorees

The Memphis law firm of Burch, Porter & Johnson and Chattanooga-based BlueCross BlueShield of Tennessee will be recognized for their commitment to providing free legal services at the 7th Annual Corporate Counsel Pro Bono Initiative Gala Saturday in Nashville. The event will feature remarks by Tennessee Supreme Court Chief Justice Gary Wade and Doug Blaze, dean of the University of Tennessee College of Law. The awards will be presented by TBA President Jackie Dixon along with Corporate Counsel Pro Bono Initiative Co-Chairs Jim Barry with International Paper and Andy Branham with Counsel On Call. The 2013 Law Firm Award will be presented to Burch, Porter & Johnson for a partnership with St. Jude Children's Research Hospital that helps low-income families establish conservatorships for children too neurologically impaired to consent to their own treatment. The Legal Department Award will be presented to BlueCross for its continuing partnership with Chambliss, Bahner & Stophel to present the Street Law program at Brainerd High School, as well as for a new community legal clinic it organized last year with the support of Legal Aid of East Tennessee and Miller & Martin PLLC.

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
07 - 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

JIMMY ANDREWS, JR. v. DEBORAH L. CLEMMER
With dissenting opinion.

Court: TN Court of Appeals

Attorneys:

Lewis K. Garrison, Memphis, Tennessee, for the Plaintiff/Appellant Jimmy Andrews, Jr.

Kevin W. Washburn, Memphis, Tennessee, for the Defendant/Appellee Deborah L. Clemmer

Dawn Davis Carson, Russell B. Jordan, Hal S. (Hank) Spragins, Jr., for State Farm Mutual Automobile Insurance Company

Judge: KIRBY

This case involves the bond requirements for an appeal from General Sessions Court to Circuit Court. The plaintiff sued the defendant for damages in General Sessions Court, and a judgment was entered in favor of the defendant. The plaintiff sought a de novo appeal to Circuit Court. Within ten days of the General Sessions Court judgment, the plaintiff filed a notice of appeal and paid $211.50 to the General Sessions Court clerk, pursuant to T.C.A. § 8-21-401(b)(1)(C)(i). The plaintiff did not file any further bond at that time. The plaintiff’s uninsured motorist insurance carrier filed a motion to dismiss, asserting that the Circuit Court lacked subject-matter jurisdiction over the case because the plaintiff had not complied with the appeal-bond requirement in T.C.A. § 27-5-103. The trial court granted the motion to dismiss on that basis. The plaintiff now appeals. We reverse the Circuit Court’s dismissal of the appeal from General Sessions Court in light of our recent decision in Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013), and remand for further proceedings.


IN RE JAYCEE W.

Court: TN Court of Appeals

Attorneys:

Larry Joe Hinson, Jr., Hohenwald, Tennessee, for the appellant, Ellie H.

Robert E. Cooper, Jr., Attorney General and Reporter, and Dianne Stamey Dycus, Deputy Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

Judge: SUSANO

This is a dependency and neglect case focusing on Jaycee W. (“the Child”), the minor daughter of Ellie H. (“Mother”) and Jerry W. (“Father”). At age five weeks, the Child suffered a suspicious broken leg. Further examination revealed multiple other broken bones. The Department of Children’s Services (“DCS”) immediately took the Child into protective custody and filed a dependency and neglect petition alleging that the Child was severely abused in the custody of her parents. Following an adjudicatory hearing, the juvenile court found that the Child was dependent and neglected and that both parents had committed severe child abuse. Both appealed to the trial court. Following a trial de novo, the trial court made the same findings. Mother appeals the trial court’s finding that she is guilty of severe child abuse. We affirm.


IN RE: KRISSA E. M. L.

Court: TN Court of Appeals

Attorneys:

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Lanesha L.

Robert E. Cooper, Jr., Attorney General and Reporter; and, Jordan Scott, Assistant Attorney General, for the appellee, State of Tennessee Department of Children’s Services.

Guardian Ad Litem, Robert L. Huddleston.

Judge: SWINEY

The guardian ad litem for the minor child Krissa E. M. L. (“the Child”) filed a petition in the Juvenile Court for Sevier County (“the Juvenile Court”) seeking to terminate the parental rights of Lanesha L. (“Mother”) to the Child. The State of Tennessee Department of Children’s Services (“DCS”), which already had been involved with the Child’s case through dependency and neglect proceedings, was named in the petition and supported the prosecution of the petition. After a trial, the Juvenile Court terminated Mother’s parental rights to the Child after finding that grounds for termination pursuant to Tenn. Code Ann. §§ 36-1-113 (g)(1), (g)(2), and (g)(3), had been proven by clear and convincing evidence, and that clear and convincing evidence had been shown that it was in the Child’s best interest for Mother’s parental rights to be terminated. We affirm.


MARY KRUGER, ET AL. v. THE STATE OF TENNESSEE, ET AL.
With dissenting opinion.

Court: TN Court of Appeals

Attorneys:

Robert A. McLean, Allison Kay Moody, Memphis, Tennessee, for the appellants, Mary Kruger, Kurt Kruger, and Diane Benson

Robert E. Cooper, Jr. Attorney General and Reporter, William E.Young, Solicitor General, Adam Futrell, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee

J. Michael Gauldin, Dyersburg,TN, for appellee, Dyer County Board of Zoning Appeals

Gregory G. Fletcher, Matthew G. White, Memphis, TN, for appellee, The Northwest Tennessee Shooting Sports Association

Judge: HIGHERS

Diane Benson and the Northwest Tennessee Shooting Sports Association filed requests for variances to devote property to a Use Permitted on Appeal within a Forestry-Agricultural- Residential-District in Dyersburg. Mrs. Benson’s request was tabled, but the NTSSA’s request was ultimately granted. Mrs. Benson, along with two others, filed a petition for writ of certiorari and for declaratory judgment. Appellees filed motions to dismiss, which the trial court granted. We affirm the trial court’s dismissal of the declaratory judgment action and we affirm the trial court’s dismissal of Mary Kruger and Kurt Kruger’s petition for writ of certiorari. However, we reverse the trial court’s grant of summary judgment as to Mrs. Benson’s claim that the BZA acted illegally, arbitrarily or capriciously, and the case is remanded for further proceedings consistent with this opinion.


IN RE NATASHA A.

Court: TN Court of Appeals

Attorneys:

Nicholas Perenich, Jr., Nashville, Tennessee, for the appellant, Stephanie K. A.

Leslie Curry-Johnson, Lead Counsel, Martha A. Campbell, Douglas Earl Dimond, Matthew R. Muenzen, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children Services.

Judge: CLEMENT

The mother of the minor child at issue appeals the termination of her parental rights. The juvenile court found several grounds for terminating the mother’s parental rights and that termination was in the best interest of the child. We affirm the termination of the mother’s parental rights.


SULLIVAN ELECTRIC, INC. v. ROBINS & MORTON CORPORATION

Court: TN Court of Appeals

Attorneys:

Richard McCallister Smith, Nashville, Tennessee, for the appellant, Sullivan Electric, Inc.

L. Wearen Hughes and Cecil Woods VanDevender for the appellee, Robins & Morton Corporation.

Judge: COTTRELL

A subcontractor on a large project in Texas sued the general contractor claiming the general contractor breached an agreement the parties made regarding claims both had against the owner of the Texas project. The parties agreed the subcontractor would be entitled to a pro rata share of the settlement or judgment amount if the subcontractor’s claims were not itemized. The settlement agreement between the general contractor and the owner did not include an itemization of the subcontractor’s claims. The subcontractor had been given a prepayment of its claim against the owner in the amount of $300,000, and applying this to the subcontractor’s pro rata share, the general contractor determined the subcontractor was not entitled to anything more. The trial court deducted the $300,000 from the subcontractor’s claim and awarded the subcontractor its pro rata share of the difference. Both the subcontractor and general contractor appealed, the subcontractor claiming it was not awarded enough and the general contractor claiming the subcontractor was awarded too much. We reverse the trial court’s award and hold the $300,000 the subcontractor received as a prepayment was more than it was entitled to pursuant to the terms of the parties’ agreement. Accordingly, the contractor did not breach its agreement, and the subcontractor was not entitled to any damages.


DONNA M. WILLIAMS v. METROPOLITAN GOVERNMENT OF NASHVILLE/DAVIDSON COUNTY

Court: TN Court of Appeals

Attorneys:

Michael K. Smith, Nashville, Tennessee, for the appellant, Donna M. Williams.

Jeff Campbell, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County.

Judge: DINKINS

Plaintiff appeals the dismissal of her complaint to recover for personal injuries sustained in a fall at the Davidson County Correctional Development Center. Finding no error, we affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. WILLIAM RAY BOATWRIGHT

Court: TN Court of Criminal Appeals

Attorneys:

John M. Boucher, Jr., Knoxville, Tennessee, for the appellant, William Ray Boatwright.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, William Ray Boatwright, was convicted by a Knox County jury of especially aggravated robbery, a Class A felony, aggravated robbery, a Class B felony, especially aggravated burglary, a Class B felony, and two counts of aggravated assault, a Class C felony. The trial court merged the aggravated assault counts into the especially aggravated robbery conviction and sentenced the defendant as a Range I offender to twenty-five years at 100 percent for the especially aggravated robbery conviction, twelve years at thirty percent for the aggravated robbery conviction, and twelve years at thirty percent for the aggravated burglary conviction. The court ordered that the sentences be served consecutively, for a total effective sentence of forty-nine years in the Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence establishing his identity as a perpetrator and argues that the trial court erred by failing to give a jury instruction on accomplice testimony and by enhancing his sentences within his range and ordering consecutive sentencing. Based on our review, we conclude that the evidence is sufficient to establish the defendant’s identity, that the defendant has waived the issue regarding the jury instruction, and that the trial court did not abuse its discretion in sentencing the defendant to the maximum sentences within his range and ordering that they be served consecutively. However, we note under plain error review that Tennessee Code Annotated section 39-13- 404(d) prohibits the defendant’s dual convictions for both especially aggravated burglary and especially aggravated robbery. Accordingly, we modify the defendant’s Class B especially aggravated burglary conviction to aggravated burglary, a Class C felony, and his sentence to ten years as a Range II, multiple offender for this offense. In all other respects, we affirm the judgments of the trial court.


EDWARD PAVWOSKI v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Edward Pavwoski, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Edward Pavwoski, appeals the summary dismissal of his petition for writ of habeas corpus, wherein he challenged his 2009 Maury County Circuit Court guilty-pleaded convictions of two counts of rape and six counts of incest. Because the petitioner has failed to state a cognizable ground for habeas corpus relief, we affirm.


STATE OF TENNESSEE v. JACKIE D. SEYMORE

Court: TN Court of Criminal Appeals

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Jackie D. Seymore.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; John W. Carney, District Attorney General; and Art Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Jackie D. Seymore, appeals his Montgomery County Circuit Court convictions of rape of a child, claiming that the evidence was insufficient to support the convictions. Discerning no error, we affirm.


TIRRONE AKILLIA SIMPKINS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Tirrone Akillia Simpkins.

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

Judge: BIVINS

Tirrone Akillia Simpkins (“the Petitioner”) pleaded guilty to one count of aggravated robbery and four counts of especially aggravated kidnapping. Pursuant to his plea agreement, the trial court sentenced the Petitioner as a Range II offender to an effective sentence of fifteen years to be served at 100%. The Petitioner subsequently filed for post-conviction relief, which the post-conviction court denied following an evidentiary hearing. The Petitioner now appeals, arguing that his plea was constitutionally invalid and that he received ineffective assistance of counsel in conjunction with the plea submission hearing. Upon our thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.


Judge Rules Companies Can’t Sue Feds over 2010 Flood

U.S. District Judge Todd Campbell dismissed three lawsuits that accused federal agencies of negligence during the 2010 Nashville flood, ruling that the government has legal immunity under a 1928 federal flood control law. The Tennessean reports that Gaylord Entertainment Co. (now Ryman Hospitality Properties), Gibson Guitar, Nissan North America and several other companies sued the U.S. Army Corps of Engineers and the National Weather Service last year for acting negligently and inadequately communicating with each other before and during the storm. The government sought to have the suits dismissed, asserting that federal agencies are legally protected when they make discretionary decisions based on public policy considerations.


Report Claims ABA Biased on Race, Gender in Judicial Recommendations

A new working paper by political scientist Maya Sen from the University of Rochester finds that the American Bar Association has for the past 50 years been systematically less likely to recommend the judicial confirmations of women or racial minorities than that of white men, the Washington Post reports. Sen focuses on nominations to the District Courts, the lowest level of federal courts, in part because the sheer number of seats means that there’s more information to mine than there is for appeals court or Supreme Court nominations.


Boutique Law Firm Finds New Home

Memphis attorney Jenny Kiesewetter recently signed the lease for a new 3,500 square foot office space at the Forum III building at 1770 Kirby Parkway. She started her boutique firm Kieswetter Law Firm PLLC one year ago and focuses on employee benefits, health care regulatory compliance and corporate law. She has already expanded to include seven staff members -- four attorneys including Keiswetter, two paralegals and one receptionist. Formerly a partner at Evans Petree PC, Keiswetter told the Memphis Daily News she decided to start her own practice for many reasons, including the challenge of staying on top of regulatory changes that need to be conveyed to clients.


Violence Against Women Act Renewed

Renewal of the Violence Against Women Act passed the U.S. House of Representatives 286-138 today, the Chattanooga Times Free Press reports. All seven Tennessean Republicans in the House voted against the legislation which reauthorizes various dating and domestic abuse initiatives including rape prevention programs, HIV/AIDs counseling and specialized training for law enforcement officials handling sexual assault cases. The bill now heads to the Oval Office.


Applications Accepted for Juvenile Judge

The Hamilton County Commission is taking applications to fill the Juvenile Court judge vacancy created by the retirement of Judge Suzanne Bailey. The commission will hold public interviews on April 3 at 1 p.m., with additional interviews scheduled for April 4 if necessary. So far, Juvenile Magistrate Troy McDougal and attorneys Curtis Bowe, Rob Filyaw and Ron Powers have expressed interest the Chattanoogan reports.


Haslam's Workers' Comp Proposal Causes Concern

Gov. Bill Haslam’s reform proposal to take workers' compensation cases almost entirely out of the court system has set off alarms across the state. Under Haslam’s plan, a new state agency would handle all claim disputes. The Tennessee Bar Association recently published a letter by attorney Dave Dunaway arguing the reforms will cost taxpayers thousands of dollars, not contain premium costs and game the system in favor of the insurance industry. “It’s going to become a lot more formulaic, and there’s no consideration for pain," TBA Executive Director Allan Ramsaur told the Tennessean. "The whole process will be more cut and dried. Their goal seems to be to reduce litigation, but what it really means is fewer opportunities for clients to have individual circumstances brought to bear.”


Guns in Trunk Bill Passes House

House Bill 118 passed the Tennessee House of Representatives on a 72-22 vote this morning. The bill would allow the nearly 400,000 Tennesseans with handgun carry permits to carry their weapons in their cars anywhere they go, including employer’s parking lots. The legislation, sponsored by state Rep. Jeremy Faison, R-Cosby, now heads to Gov. Bill Haslam’s desk. The Tennessean has the story. 


Memphis Attorney Dies at 91

Memphis attorney Ralph Hold died Sunday (Feb. 24) at the age of 91. He served in the U.S. Navy during World War II and was a practicing attorney in Memphis for over 40 years. Funeral services were held Tuesday. The family requests any memorials be sent to St. Jude Children's Research Hospital. Holt was a member of the Tennessee and Memphis Bar Associations. The family requests that any memorials be sent to St. Jude Children's Research Hospital.


 
 

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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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