TBA President: Tennessee Plan Helps Ensure Impartiality

Tennessee Bar Association President Jackie Dixon defends the current judicial merit selection process in an opinion piece for the Tennessean. In the article, Dixon says the merit selection system, known as the Tennessee Plan, helps ensure the impartiality of the judicial system by appointing “impartial and well-qualified judges who rule not based on popular public opinion or campaign contributions but rather on the fact and law as presented.” The contemplated change in judicial appointments would replace the merit-based selection and retention election system with legislative confirmation, further politicizing our justice system, Dixon wrote. With the House poised to consider the issue next week, the TBA president concludes the article by urging citizens to ask their legislations to vote to continue the Tennessee Plan.

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
05 - 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 Court of Appeals

METROPOLITAN GOVERNMENT OF NASHVILLE v. DERYL L. BAKER

Court: TN Court of Appeals

Attorneys:

Deryl Baker, Nashville, Tennessee, Pro Se.

Patrick John Bradley, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County.

Judge: PER CURIAM

This is an appeal from a judgment entered on January 2, 2013. Because the appellant did not file his notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.


KENNETH BROWN, SANDRA McCULLEY, AND SHAWN McCULLEY v. SAMIR SHTAYA
With dissenting opinion.

Court: TN Court of Appeals

Attorneys:

Gregory C. Krog, Jr., Memphis, Tennessee, for the Plaintiffs/Appellants Kenneth Brown, Sandra McCulley, and Shawn McCulley

S. Joshua Kahane, Memphis, Tennessee, for the Defendant/Appellee Samir Shtaya

Judge: KIRBY

In this case, we address the bond requirements for an appeal from General Sessions Court to Circuit Court. The plaintiff property owners were leasing commercial space to the defendant. The plaintiffs filed a forcible entry and detainer action against the defendant in General Sessions Court. During the pendency of the proceedings, the plaintiffs allegedly locked the defendant out of the property prematurely, causing property damage to the defendant. The defendant then filed a cross-claim in the original General Sessions Court lawsuit for unlawful ouster. The defendant also filed a separate action in the General Sessions Court based on the same allegations of unlawful ouster. The General Sessions Court consolidated the two cases for trial. Ultimately, the General Sessions Court held in favor of the plaintiffs on their forcible entry and detainer claim and awarded attorney fees under the lease. As to the defendant’s cross-claim and separate lawsuit based on unlawful ouster, the General Sessions Court found in favor of the defendant and awarded damages. The plaintiffs sought a de novo appeal to Circuit Court of the rulings in favor of the defendant on his cross-claim and separate claim; the defendant appealed the Circuit Court’s ruling in favor of the plaintiffs. In doing so, all of the appellants — the plaintiffs and the defendant — filed notices of appeal and paid $211.50 to the General Sessions Court clerk, pursuant to T.C.A. § 8-21-401(b)(1)(C)(i). None of the appellants filed any further bond at that time. The defendant filed a motion to dismiss the plaintiffs’ appeals, arguing that the Circuit Court lacked subject-matter jurisdiction because they had not complied with the appeal-bond requirement in T.C.A. § 27-5-103. The Circuit Court granted the motion and dismissed the plaintiffs’ appeals. The Circuit Court also dismissed the defendant’s appeal sua sponte based on the same reasoning. The plaintiffs now appeal to this Court. We reverse the Circuit Court’s dismissal of the plaintiffs’ appeals in light of our recent decision 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.

ISLAND PROPERTIES ASSOCIATES v. THE REAVES FIRM, INC., d/b/a REAVES, SWEENEY, AND MARCUM, ET AL.

Court: TN Court of Appeals

Attorneys:

William M. Jeter and Meredith A. Lucas, Memphis, Tennessee, for the appellant, The Reaves Firm.

Richard Glassman, and Lewis W. Lyons, Memphis, Tennessee, for the appellee, Island Properties Associates.

Judge: STAFFORD

This is a surveyor negligence case. Appellee developer filed suit against Appellant surveyor, claiming two distinct acts of negligence on surveyor’s part. The first claim of negligence involved an error allegedly made by surveyor in a 1993 survey. The second claim of negligence involved Appellee’s claim that, upon discovering the 1993 survey error in a subsequent survey that it performed in 2002, surveyor had a duty to inform Appellee of the error. We conclude that any negligence arising from the 1993 survey claim is barred by the statute of repose, Tennessee Code Annotated Section 28-3-114(a). Despite Appellant’s numerous motions to exclude this cause of action as time barred, the trial court ultimately allowed the 1993 negligent survey claim to be tried to the jury. The jury was then instructed as to both claims of negligence and the jury returned a verdict, wherein it found Appellant surveyor to be forty percent at fault and awarded damages in favor of Appellee. Appellant surveyor appeals. Because the jury was improperly instructed and was allowed to consider the time-barred claim of negligence, we conclude that the jury was mislead by the instructions. Accordingly, we vacate the judgment on the jury verdict and remand for a new trial. Vacated and remanded.


WENDY LEVERETTE, ET AL. v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY
CORRECTION: With dissenting opinion.

Court: TN Court of Appeals

Attorneys:

Michael Ross Campbell, Lauren Michelle Rutherford, Chattanooga, Tennessee; Patrick Arnold Flynn, Seth Michael Lasater, Columbia, Tennessee, for the appellant, Tennessee Farmers Mutual Insurance Company.

Richard Thomas Matthews, Columbia, Tennessee, for the appellee, Wendy Leverette, et al.

Judge: COTTRELL

A woman who was severely injured in a collision with an automobile driven by an unlicensed minor filed suit against the minor. The minor’s parents’ insurance company denied coverage and refused to defend the suit on the basis of an exclusion in the insurance policy for damages caused by a party driving without permission of the owner or a person “in lawful possession” of the vehicle. No defense was offered, and the injured party obtained a $1 million default judgment against the minor driver. The injured party and the minor’s parents then jointly filed suit against the insurance company, alleging that the insurance company was liable for breach of contract, bad faith, violation of the Tennessee Consumer Protection Act, and violation of the Unfair Claims Practices Act based upon its denial of coverage. The trial court ruled that, as a matter of law, the minor was entitled to insurance coverage under her parents’ policy at the time of the accident. The remainder of the case was tried, and the plaintiffs were awarded compensatory and punitive damages on the bad faith claim. The jury also found the insurance company had violated the Tennessee Consumer Protection Act, and the trial court trebled the compensatory damages and awarded attorney fees under the Act. The insurance company has raised a number of issues in this appeal, inter alia, the grant of partial summary judgment to the plaintiffs on the question of coverage; the finding of liability for bad faith, the liability and enhanced penalty under the TCPA, and the requirement that plaintiffs should make an election between the punitive damages and the enhanced damages. We affirm the breach of contract holding, including the conclusion that the policy terms provided coverage. We reverse and vacate the holding of liability for bad faith, including the award of punitive damages thereunder, since the statutory cause of action was not plead. We also reverse the award of treble damages under the TCPA, but affirm the finding of a violation of the Act. We affirm as modified the award of attorneys’ fees.


IN RE SPENCER P. ET AL.

Court: TN Court of Appeals

Attorneys:

Dustin P. Click, Clarksville, Tennessee, for the appellant, Windie P.

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

Judge: BENNETT

Mother’s and Father’s parental rights to four children were terminated based on findings that they committed severe child abuse upon a sibling and that the best interests of the remaining four children (the parents’ rights to the two severely abused children having been previously surrendered) required termination of their rights. Parents appealed, challenging only the best interest finding. We affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. FREDRICK JOHN DEEN CLARK

Court: TN Court of Criminal Appeals

Attorneys:

Paul D. Cross, Monteagle, Tennessee, for the appellant, Fredrick John Deen Clark.

Robert E. Cooper, Jr., Attorney General and Reporter, Rachel Harmon, Assistant Attorney General; James Michael Taylor, District Attorney General; and David Shinn and David O. McGovern, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Fredrick John Deen Clark, pled guilty in the Grundy County Circuit Court to vehicular assault, a Class D felony. Pursuant to the plea agreement, the appellant received a six-year sentence with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered that the appellant serve his sentence in confinement. On appeal, the appellant contends that the trial court erred by denying his request for alternative sentencing. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. CODY GARRIS

Court: TN Court of Criminal Appeals

Attorneys:

Marilyn J. Holt (on appeal) and Richard H. Dunavant (at trial), Assistant District Public Defenders, for the appellant, Cody Garris.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney General; Mike Bottoms, District Attorney General; and Beverly J. White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Cody Garris, appeals from his Giles County Circuit Court guilty-pleaded conviction of child abuse, claiming that the trial court erred by imposing a fully-incarcerative sentence. Because the record supports the sentence imposed by the trial court, we affirm.


UCC Filings to Move Online

The Tennessee Secretary of State’s office will soon allow Uniform Commercial Code (UCC) filings to be handled online as part of an effort to make it more convenient and efficient for business to send required documents to the state. Secretary Tre Hargett said a new filing system, which will launch July 1, will make it possible for UCC filings to be handled through an automated process. “In these technology-oriented times in which we are living, it makes sense to automate as much of our department’s filing management systems as we can,” Secretary Hargett said. “Allowing our customers – who are the citizens of Tennessee - to file documents online is one way that we can provide them with better and faster service.”


Memphis Tops List of Most Transparent Law Schools

The University of Memphis Cecil C. Humphreys School of Law was listed as one of the most transparent law schools in the nation by Law School Transparency, an organization that reviews law school websites in order to analyze the employment information that schools use to market their programs. Only 23 percent of ABA accredited law schools have been rated fully transparent by the organization, with Memphis being the only Tennessee school to make the list.


Law Students Plan Alternative Spring Break

For the fourth year in a row, the University of Memphis School of Law and its Public Action Law Society are sponsoring an alternative spring break, the Memphis Daily News reports. This year’s spring break will focus on civil rights and include a civil rights educational series next week along with community legal service projects. The events will involve 48 law students from seven law schools including Vermont Law School and Charlotte School of Law, among others. “As law students, we see the law from the vantage point of the classroom, but alternative spring break allows us to reach out to the community and help individuals who most need legal help,” said Andrew Solarski, alternative spring break coordinator for the Public Action Law Society.


Woman Embezzles $300,000+ from Law Office

Former law office comptroller Lisa Potter was sentenced to a year in jail and 30 years on probation for allegedly embezzling more than $300,000 from attorney Tony Seaton to support a cocaine habit. Potter had pleaded guilty to the crime last year. Washington County Criminal Court Judge Robert Cupp ruled Monday that if Potter repays the remaining $157,000 owed to Seaton, her probation would end after the original sentence. She will report to jail to begin serving her sentence May 3. The Johnson City Press has the story.


Murfreesboro Attorney Recognized for Pro Bono Work

Barbara E. Futter was recently awarded the Rutherford and Cannon Counties Pro Bono Attorney of the Year Award for her outstanding service to the community in 2012. Before entering private practice in 2011, Futter served for 10 years as the managing attorney of the Murfreesboro office of the Legal Aid Society of Middle Tennessee. In 2005, she was awarded Public Service Attorney of the Year Award from the Tennessee Bar Association Access to Justice Committee. That award recognized her for having gone above and beyond the call of duty in representing indigent clients.


Napier-Looby Bar Foundation Elects New President

Joseph K. McKinney has been elected President of the Napier-Looby Bar Foundation. An associate in the Nashville office of Dickinson Wright, McKinney focuses his practice in the areas of commercial and business litigation, civil litigation, labor and employment litigation, and minority business enterprises. He earned his bachelors degree from Rhodes College and his law degree from the University of Memphis.


Judge Visits Elementary School for Read Me Week

Tennessee Court of Appeals Judge Frank G. Clement participated in Read Me Week 2013 by visiting Shwab Elementary School in Nashville, the Administrative Office of the Courts report. Judge Clement read to third graders in the Reading Room. "It was a marvelous experience for me and for the students, they were so courteous and impressive in so many ways," Judge Clement said. Read Me Week was started 1986 by a teacher in Lyles, as a way to celebrate the importance of reading.


Ginsburg to Remain on Supreme Court Another Year

Justice Ruth Bader Ginsburg announced her plans to remain on the U.S. Supreme Court at least through next year, the ABA Journal reports. Gingsburg, who is 79 years old, told the New Yorker, “It’s not this year. You can never tell when you’re my age,” Ginsburg said. “But, as long as I think I have the candlepower, I will do it. And I figure next year for certain. After that, who knows?”


Bill to Allow Voting With Student ID Advances

A bill allowing student identification cards issued by state higher education institutions to be used for voting unanimously passed the Senate State and Local Government Committee 8-0, and now advances to the Senate. The proposal, sponsored by Sen. Bill Ketron, R-Murfreesboro, does not allow library cards issued by local governments to be used for voting however. That issue has been debated in the courts for about a year, the Memphis Daily News reports.


 
 

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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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