Memphis Judge Warns Congress of Budget Cuts Impact

Judge Julia Gibbons of the U.S. Court of Appeals for the Sixth Circuit testified in Washington, D.C., Wednesday that the $350 million in sequestration funding cuts will have dire consequences for the federal courts, the ABA Journal reports. Gibbons, chair of the Judicial Conference Budget Committee, appeared before the House Appropriations Subcommittee on Financial Services and General Government along with Judge Thomas F. Hogan, director of the Administrative Office of the United States Courts. "I am not a fan of hyperbole and I avoid it," Gibbons said. "It is no hyperbole when I say we have deep concern about our ability to fulfill our constitutional mission." Read more in the court’s press release.

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.

01 - TN Supreme Court
01 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
06 - 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 Supreme Court

ARTIS WHITEHEAD v. STATE OF TENNESSEE
With dissenting opinion.

Court: TN Supreme Court

Attorneys:

Sean G. Hord, Memphis, Tennessee, for the appellant, Artis Whitehead.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Aaron E. Winter, and Cameron L. Hyder, Assistant Attorneys General; William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: KOCH

Tennessee prisoners whose convictions and sentences are upheld on appeal have one year to file a petition for post-conviction relief to challenge their convictions and sentences. This appeal involves the narrow circumstances in which fundamental fairness demands the tolling of this deadline. A prisoner filed his petition for post-conviction relief after the statutory deadline had passed because his former attorney provided him the wrong deadline date and failed to give the prisoner his legal files until after the actual deadline had passed. Following a hearing, the Criminal Court for Shelby County dismissed the petition as untimely. The Court of Criminal Appeals affirmed. Whitehead v. State, No. W2010-00784-CCA-R3-PC, 2011 WL 3912856 (Tenn. Crim. App. Sept. 7, 2011). We granted the prisoner’s application for permission to appeal. We find that the facts of this case reflect that the prisoner was effectively abandoned by his appellate attorney after his petition for writ of certiorari was filed in the United States Supreme Court. This abandonment impeded the prisoner’s otherwise diligent efforts to file a timely post-conviction petition. Therefore, the statute of limitations should be tolled. We reverse the judgment of the Court of Criminal Appeals, and remand the prisoner’s case to the trial court so the prisoner may pursue his petition for postconviction relief.


TN Workers Comp Appeals

ANTHONY W. WELCHER v. CENTRAL MUTUAL INSURANCE COMPANY

Court: TN Workers Comp Appeals

Attorneys:

Stuart F. James and Anthony M. Kestner, Chattanooga, Tennessee, for the appellant, Central Mutual Insurance Company.

Floyd Don Davis and Norris A. Kessler, III, Winchester, Tennessee, for the appellee, Anthony W. Welcher.

Judge: MCGINLEY

This workers’ compensation appeal arises from a petition for post-judgment medical care. The trial court initially found that the employee had sustained a compensable injury to his neck and awarded benefits, including future medical care. Shortly after the entry of a final judgment, which designated a treating physician, a dispute arose over employee’s medical treatment and a proposed surgical procedure. The employee petitioned the trial court to direct his employer to pay for his medical treatment. The employer requested an independent medical evaluation. The surgery took place while the petition was pending. Several days later, the employee suffered a brain hemorrhage. The trial court ruled that the surgical procedure was reasonably related to the work injury, but the hemorrhage was not; thus, it directed the employer to pay for the former but not the latter. After additional proceedings, the trial court awarded attorneys’ fees to the employee, but not the full amount requested. The employer has appealed, contending that the fee award is excessive. The employee contends that the trial court erred by finding that treatment of the hemorrhage was not related to his work injury and by not awarding the attorneys’ fees requested. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court declining to order the employer to provide treatment for the hemorrhage. Because the record is insufficient to allow for review, we vacate the trial court’s award of attorneys’ fees and remand for further proceedings consistent with this decision.


TN Court of Appeals

IN RE AUTUMN R.W., ET AL.

Court: TN Court of Appeals

Attorneys:

Robin Gunn, Knoxville, Tennessee, for the appellant, Tiffany L. W.

Robert E. Cooper, Attorney General & Reporter, and Mary Byrd Ferrara, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

Angela Blevins, Knoxville, Tennessee, Guardian ad Litem.

Judge: MCCLARTY

This appeal concerns a termination of parental rights. The trial court, upon finding clear and convincing evidence of two grounds on which to base termination and concluding that termination was in the children’s best interest, revoked the mother’s parental rights to three of her minor children. The mother appeals. We affirm.


IN RE: ESTATE OF DANNY KEITH ELLIS

Court: TN Court of Appeals

Attorneys:

Mark J. Downton, Nashville, Tennessee, for the appellant, Janet Kenyon.

Blaine Holt Smith, Ashley Nation Bassel, Nashville, Tennessee; Robert S. Burns, Sewanee, Tennessee, for the appellees, Barry L. Ellis and Shelia Pugh.

Judge: COTTRELL

This case involves a dispute between the administrators of the estate of a man who died intestate and the decedent’s’s former wife over the legal ownership of funds that were held in jointly titled accounts at two banking institutions. After the man’s death, his former wife withdrew almost all the funds from the accounts. The administrators asked for a declaratory judgment that the funds belonged to the estate on the basis that the husband and wife had entered into a Marital Dissolution Agreement (MDA) before their divorce which designated those funds as belonging solely to the husband. However, the husband never changed the titles on those accounts, and the ex-wife insisted that the unaltered designation of joint ownership conclusively established her right to the funds after her ex-husband’s death. After a hearing, the trial court ruled that the bank accounts were the sole property of the estate, and the former wife was obligated to return the funds. The trial court reasoned that because the MDA was approved by the court and was binding on the parties, it amounted to an amendment to the contract that the parties had created when the accounts were established. We affirm.


JAMES LYLE GRAHAM V. BARBIE PHYLISSA GRAHAM

Court: TN Court of Appeals

Attorneys:

Robert L. Jackson and Elizabeth A. Garrett, Nashville, Tennessee, for the appellant, James Lyle Graham.

Barbie Phylissa Graham, Greeneville, Tennessee, pro se.

Judge: MCCLARTY

This post-divorce appeal concerns an agreed-upon parenting plan, which designated Father as the primary residential parent and denied Mother any form of visitation with the Child. Years after the plan was entered, Mother filed a petition to modify the plan, alleging that a material change in circumstances had occurred. The trial court agreed and provided Mother with liberal visitation. Father appeals. We affirm the decision of the trial court.


MARY JO EARL HEADRICK v. WILLIAM H. HEADRICK, JR.

Court: TN Court of Appeals

Attorneys:

Brett D. Stokes, Knoxville, Tennessee, for the appellant.

Terry G. Vann, Lenoir City, Tennessee, for the appellee.

Judge: PER CURIAM

This is a post-divorce matter. The trial court found the appellant, William H. Headrick, Jr. (“Husband”), in contempt and set forth what Husband was required to do to purge himself of contempt. All of this was accomplished in an order entered on March 21, 2012. Husband filed a timely motion to alter or amend that was denied by the trial court in an order entered on June 13, 2012. Husband filed a notice of appeal on August 2, 2012. The appellee, Mary Jo Earl Headrick (“Wife”), filed a motion to dismiss in this Court predicated on her argument that the notice of appeal was not timely filed. We dismiss Husband’s appeal as untimely filed.


BARRY RUSSELL, ET AL. v. HENDERSONVILLE UTILITY DISTRICT

Court: TN Court of Appeals

Attorneys:

Devon Jeffrey Sutherland, Hendersonville, Tennessee, for the appellants, Barry Russell and Theda F. Russell.

Shelton Hatcher, Hendersonville, Tennessee, and Donald Lee Scholes, Nashville, Tennessee, for the appellee, Hendersonville Utility District.

Judge: COTTRELL

Property owners sued utility district for damages and an injunction as a result of the excessive use of an easement across the property owners’ land by the district’s assignees. The utility district denied any wrongdoing and moved the trial court to dismiss the complaint. The trial court dismissed the complaint for failing to state a cause of action for which relief can be granted. The property owners appealed. We conclude the trial court erred in dismissing the property owners’ complaint because the property owners have stated a cause of action for which relief can be granted. We therefore reverse the trial court’s judgment and remand the case for further proceedings.


DEBBIE WEST, Individually and as the Surviving Spouse of WILLIAM P. WEST, Deceased v. AMISUB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL, ET AL
With partially dissenting opinion.

Court: TN Court of Appeals

Attorneys:

Barry J. McWhirter, Memphis, Tennessee, for the appellant, Debbie West.

Joseph M. Clark and Erika D. Roberts, Memphis, Tennessee, for the appellee, Imran Mirza, M.D.

Darrell E. Baker, Jr., Deborah Whitt, and M. Jason Martin, Memphis, Tennessee, for the appellee, Mark Mills, M.D.

W. Timothy Hayes, Jr. and Virginia P. Bozeman, Memphis, Tennessee, for the appellee, AMISUB (SFH), Inc.

Amanda Waddell, Memphis, Tennessee, for the appellee, Phillip D. Waldrup, M.D.,

J. Kimbrough Johnson, Memphis, Tennessee, for the appellee, Douglas Linville, M.D.

Tabitha F. McNabb, Memphis, Tennessee, for the appellee, Shoaib Qureshi, M.D.

Judge: FARMER

This is a medical malpractice case. The General Sessions Court granted the Defendants’ motions to dismiss based on Plaintiff’s failure to comply with the pre-suit notice and certificate of good faith requirements under the Tennessee Medical Malpractice Act (“TMMA”). Plaintiff timely sought a de novo appeal to Circuit Court, paid $211.50 to the General Sessions Court clerk, and paid an additional cash bound in the amount of $250.00. On appeal in Circuit Court, the Defendants filed motions for summary judgment based on Plaintiff’s failure to comply with the TMMA. After raising the issue sua sponte, the Circuit Court concluded that it lacked subject matter jurisdiction to consider the appeal from the General Sessions Court because Plaintiff failed to file a surety bond as required under Tennessee Code Annotated section 27-5-103. Alternatively, the Circuit Court further concluded that, even if it had jurisdiction, the Defendants were entitled to summary judgment because Plaintiff failed to comply with the TMMA. Plaintiff appeals. Although we conclude that the Circuit Court erred in dismissing the appeal from General Sessions Court for lack of subject matter jurisdiction, we affirm the Circuit Court’s grant of summary judgment in favor of the Defendants.


TN Court of Criminal Appeals

JONATHAN ADAMS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Keith E. Lowe, Knoxville, Tennessee, for the appellant, Jonathan Adams.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Jonathan Adams, appeals as of right from the Knox County Criminal Court’s denial of his petition for post-conviction relief. Following his direct appeal, the Petitioner, with the assistance of counsel, filed an untimely petition for post-conviction relief challenging the performance of trial counsel. Although the issue of timeliness was raised by the parties, the post-conviction court addressed the petition on the merits and denied relief. On appeal, the Petitioner contends that his petition was timely filed, alleging two alternative dates as supplying the requisite final action of this court for purposes of the post-conviction one-year statute of limitations: (1) the date the corrected judgments were filed in accordance with this court’s order on remand; or (2) the date this court’s mandate was filed. Having reviewed the record, the briefs of the parties, and the applicable law, we hold that the final action of this court was the filing date of its opinion on direct appeal, and therefore, the post-conviction petition was filed outside of the applicable one-year limitations period. The appeal is dismissed.


JAMES ANTHONY BURGESS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Rebecca Brady, Cookeville, TN, for the petitioner-appellant, James Anthony Burgess.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Anthony Craighead, Deputy District Attorney General; and Beth Willis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SUMMERS

This is a post-conviction appeal of the trial court’s order denying appellant relief from his jury convictions of felony murder (two counts); second degree murder (two counts); aggravated burglary; and reckless endangerment. The trial court, which heard the post-conviction petition, sentenced appellant to two consecutive life sentences plus thirteen years. We affirm the trial court’s denial of post-conviction relief.


STATE OF TENNESSEE v. EDWARD WILLIAM CRANDALL

Court: TN Court of Criminal Appeals

Attorneys:

Kent L. Booher, Harriman, Tennessee, for the appellant, Edward William Crandall.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Russell Johnson, District Attorney General; and Frank Harvey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Edward William Crandall, challenges his conviction for aggravated rape of a child, a Class A felony, alleging (1) that the evidence supporting his conviction was insufficient to prove penetration of the victim and to identify him as the perpetrator and (2) that the trial court erred when denying his motion for judgment of acquittal at the end of the State’s case-in-chief because the State had failed to prove the victim’s age. After reviewing the record and the applicable authorities, we discern no error and affirm the judgments of the trial court. The case is remanded to the Loudon County Criminal Court for correction of the judgments to reflect that service of Count 3 is consecutive to Count 1 and that service of Count 2 is concurrent to Count 1.


MILBURN L. EDWARDS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Milburn L. Edwards, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Clark B. Thornton, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Appellant, Milburn L. Edwards, appeals the trial court's summary dismissal of his petition for habeas corpus relief. The judgment of the trial court is affirmed.


PHILLIP DOUGLAS SEALS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Leslie Richard Hunt, Clinton, Tennessee, for the appellant, Phillip Douglas Seals.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; David S. Clark, District Attorney General; and Sandra N. C. Donaghy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Phillip Douglas Seals, appeals the post-conviction court’s denial of his petition for post-conviction relief from his two first degree murder convictions. On appeal, he argues that: (1) he received the ineffective assistance of counsel and (2) the postconviction court erred in denying his request for transcripts of the opening and closing statements so he could determine whether the original prosecutor engaged in prosecutorial misconduct. After review, we affirm the denial of post-conviction relief.


STATE OF TENNESSEE v. WILLIAM WALKER

Court: TN Court of Criminal Appeals

Attorneys:

Richard C. Richardson, Columbia, Tennessee, for the Defendant-Appellant, William W. Walker.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; T. Michael Bottoms, District Attorney General; Kyle E. Dodd, Assistant District Attorney General for the Appellee, State of Tennessee.

Judge: SUMMERS

Appellant, William Walker, was convicted by a Maury County Circuit Court jury of possession of cocaine over 0.5 grams with intent to sell, a Class B felony, and possession of drug paraphernalia, a Class A misdemeanor. See Tenn. Code Ann. §§ 39-17-417; 39- 17-425. Appellant received a sentence of 12 years for possession of cocaine for sale and 11 months, 29 days for possession of drug paraphernalia, to be served concurrently. On appeal, appellant contends that the evidence at trial was insufficient to support his convictions. We affirm appellant’s convictions and the court’s judgment.


Appeals Court Questions TJC Award in TennCare Case

A federal appeals court on Wednesday questioned the $2.5 million in legal fees a district court awarded attorneys from the Tennessee Justice Center for representing TennCare patients in a costly and protracted legal battle over how patients are treated in the state’s Medicaid program. According to the Tennessean, attorneys representing the state called the award excessive and appealed, contending that the court “abused its discretion” by considering some work billable that the state claims was irrelevant to the TennCare case. Judge John Nixon, who issued the award, will re-examine a number of line items the state contends should not be compensated.


ABA Panel Endorses Continued Use of LSAT

The American Bar Association’s Council of Legal Education and Admissions to the Bar preliminarily endorsed retaining the LSAT requirement for law school admissions, the National Law Journal reports. In 2011, some members of the ABA Standard’s Review Committee advocated dropping the requirement during an evaluation of the law school accreditation standards. Support for the change waned over time and the council now seeks public comment on the LSAT endorsement and other aspects of Chapters 2 and 5 of the accreditation standards.


Belmont Law Student to be Part of ABA Reporting Team

Belmont University College of Law student Franklin Graves is one of 12 law students selected for the 3rd Annual Law Student Reporters Program during the American Bar Association Intellectual Property Law Conference next month in Washington D.C. The students will be live reporting via social networks and blogs at each conference event on behalf of the ABA’s Law Student Action Group. Use the Twitter hashtag #IPLSpring to follow the action.


Hearsay Exceptions: What's the Difference?

Knoxville lawyer Donald F. Paine details the differences between Tennessee and federal hearsay exceptions in the current Tennessee Bar Journal.


Waste Company Sues Lawyers over Failed Appeal

Allied Waste North America and its BFI Waste Services subsidiary are suing their attorneys Linda Mowles and Deborah Stevens of Lewis, King, Krieg & Waldrop for negligence and breach of contract. According to the Nashville Post, the companies had to pay Metro Nashville $7.2 million following a fire that destroyed a downtown thermal plant. The attorneys helped file an appeal, which was denied on all counts by the Tennessee Supreme Court. The lawsuit now alleges Mowles and Stevens did not communicate with the companies about a strategy before filling the appeal, specifically stating that the attorneys' exclusion of expert testimony related to the value of the thermal plant was detrimental to the case. An attorney representing Lewis King said the firm disputes the allegations and plans to defend itself in court.


Amendment Removes Court From Role in Determining Governor’s Capacity to Serve

An amendment approved by the Senate Judiciary Committee removes any mention of the Supreme Court from the process for determining whether the governor is incapacitated or disabled to the point that he or she would be removed on a temporary basis. Now, a majority vote of five officers — Speaker of the House of Representatives, Speaker of the Senate, Secretary of State, Treasurer, and Comptroller of the Treasury — would make the decision. Gavel to Gavel reports.


House Passes Youth Concussion Bill

The state House of Representatives passed a bill today to increase safety measures in youth sports and reduce the number of concussions children receive during practice and play. The Tennessean reports that the law requires mandatory education for parents, coaches and young athletes about the dangers of concussions and that children who have had a concussion to refrain from playing again until cleared by a doctor. Spurred by the story of a middle school football player in Washington state who suffered a serious brain injury after returning to play too quickly after a concussion, Tennessee will become the 44th state to pass such a law should Gov. Bill Haslam sign the bill as expected.


Senate OKs Bill Requiring Mental Health Professionals to Report Threats

Tennessee mental health professionals would be required to report any patient who makes a credible threat of serious bodily harm or death against “reasonably identifiable victims” or local law enforcement under a bill unanimously approved today by the Senate. The Chattanooga Times Free Press reports that the bill is viewed as a response to mass shootings in states like Connecticut and Colorado. Information obtained would be entered into a state law enforcement information network and checked when people purchase guns or seek to maintain handgun-carry permits. Therapists’ decision to inform law enforcement would be solely based on their professional opinion however.


Fleischmann and DeJarlais Back GOP House Budget

The U.S. House of Representatives passed the Path to Prosperity today, its 2014 budget resolution, the Chattanoogan reports. The budget will ensure an additional $1,500 in household income and create 500,000 jobs, its supporters say. Upon passage, Tennessee Congressmen Chuck Fleischmann and Scott DeJarlais released statements in support of the budget, with Fleischmann calling the budget “a step in the right direction."


 
 

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.


© Copyright 2013 Tennessee Bar Association