Legislature Racing Toward Early Finish

With the General Assembly racing towards its earliest finish in more than a decade, several legislative issues affecting lawyers -- including the fate of the Judicial Nominating Commision and the Judicial Performance Evaluation Commission -- still remain to be resolved before the expected April 19 adjournment. The sunset extension of the Judicial Nominating Commission, which is in wind down mode and will go totally out of existence on June 30, has passed the House but still awaits Senate committee action. There will be no authority to fill vacancies on any trial or appellate bench after June 30 without legislative action. The Judicial Performance Evaluation Commission, which must make recommendations regarding retention of appellate judges in the run up to the August 2014 election, also faces sunset on June 30. It will then have a year to wind down its business before going out of existence in June 2014. See a roundup of other legislative issues under the General Assembly category at right.

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
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









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

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TN Supreme Court


TN Court of Appeals

ESTATE OF JOSEPH OWEN BOOTE, JR., HELEN BOOTE SHIVERS AND LINDA BOOTE, CO-EXECUTORS v. RICHARD H. ROBERTS, COMMISSIONER, TENNESSEE DEPARTMENT OF REVENUE

Court: TN Court of Appeals

Attorneys:

Andree S. Blumstein and Linda R. Koon, Nashville, Tennessee, for the Plaintiff/Appellant Estate of Joseph Owen Boote, Jr., Helen Boote Shivers and Linda Boote, Co-Executors.

Robert E. Cooper, Jr., Attorney General & Reporter; William E. Young, Solicitor General; and R. Mitchell Porcello, Assistant Attorney General, for the Defendant/Appellee Richard H. Roberts, Commissioner, Tennessee Department of Revenue.

Judge: KIRBY

This appeal involves a claim for interest on inheritance and estate tax refunds. In 2002, the decedent’s estate filed a Tennessee inheritance tax return and paid an estimated amount of taxes due. Over the next several years, the estate was embroiled in litigation; the litigation expenses diminished the size of the estate. Once the litigation concluded, the estate became entitled to more deductions on its inheritance tax return. To obtain the benefit of the deductions, the estate filed two amended Tennessee inheritance tax returns, one in 2009 and one in 2010, claiming that it was entitled to substantial tax refunds based on its overpayment of inheritance and estate taxes in 2002. The defendant Commissioner of the Tennessee Department of Revenue paid the refunds claimed in the estate’s amended returns, plus a pittance of interest on the refunds. The estate filed this lawsuit against the commissioner, claiming that it was entitled to additional interest on the inheritance and estate tax refunds under the applicable law. The parties filed cross-motions for summary judgment; each agreed that the facts are undisputed and each claimed that it was entitled to judgment as a matter of law. The trial court granted summary judgment in favor of the commissioner. The estate now appeals. We affirm the decision of the trial court.


JIM FERGUSON v. MIDDLE TENNESSEE STATE UNIVERSITY

Court: TN Court of Appeals

Attorneys:

Robert E. Cooper, Jr., William E. Young, William J. Marett, Jr., Leslie Ann Bridges, and Casey N. Miley, Nashville, Tennessee for Defendant/Appellant, Middle Tennessee State University.

Michelle M. Benjamin, Winchester, Tennessee for Plaintiff/Appellee, Jim Ferguson.

Judge: KIRBY

This appeal involves an employee’s claim of retaliation for engaging in protected activity. The plaintiff employee filed a lawsuit against his employer, the defendant university, asserting several claims of employment discrimination under state and federal statutes. Subsequently, in a second lawsuit against the university, the plaintiff employee asserted that he suffered adverse job actions after he filed his charge of discrimination with the federal Equal Employment Opportunity Commission and the first discrimination lawsuit. The alleged adverse job actions included making the employee perform tasks that resulted in physical injuries. The lawsuits were consolidated and, after an eight-day jury trial, the jury awarded the employee $3 million in compensatory damages on the retaliation claim only. The defendant university appeals. We hold that, to prove a claim of retaliation for engaging in protected activity, the plaintiff was required to present material evidence to the jury that the decisionmaker, his supervisor at the university, was aware of the plaintiff’s protected activity when she took the adverse job actions against the plaintiff. The plaintiff employee presented no material evidence at trial of such knowledge by his supervisor at the relevant time. Accordingly, we reverse the trial court’s judgment and remand for entry of an order dismissing the plaintiff employee’s complaint.


H.A.S. v. H.D.S.

Court: TN Court of Appeals

Attorneys:

Shelley S. Breeding, Knoxville, Tennessee, for the appellant, H.A.S.

Carl R. Ogle, Jr., Jefferson City, Tennessee, for the appellee, H.D.S.

Judge: SUSANO

Lillian (“the Child”) is the offspring of H.A.S. (“Father”) and H.D.S. (“Mother”). The parties were never married to each other. They entered into two mediated agreements regarding Father’s co-parenting time with the Child. The agreements were never presented to or approved by a court. The parties followed the agreements for a time but conflicts developed and Father filed a petition seeking review and modification of the agreements. He asserted that there had been a material change in circumstances and that he should be awarded primary custody of the Child. Following a bench trial, the court found and approved the mediated agreements as being in the Child’s best interest. The court further determined that there had been no change in circumstances warranting a change in custody; but the court did find and hold that Father’s co-parenting time should be revised. Father appeals. We affirm.


SHEMEKA IBRAHIM v. MURFREESBORO MEDICAL CLINIC SURGI CENTER ET AL.

Court: TN Court of Appeals

Attorneys:

Shemeka Ibrahim, Antioch, Tennessee, Pro Se.

Renee Levay Stewart and J. Eric Miles, Nashville, Tennessee, for the appellees, Murfreesboro Medical Clinic Surgi Center et al.

Judge: PER CURIAM

This is an appeal from an order of dismissal entered on January 23, 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.


IN RE: MARIA B. S. ET AL.

Court: TN Court of Appeals

Attorneys:

Robin Gunn, Knoxville, Tennessee, for the appellant, Lewis S.

N. David Roberts, Jr., Knoxville, Tennessee, for the appellees, Matthew V. and Carlene V.

Judge: SWINEY

Matthew V. and Carlene V. (“the Foster Parents”) filed a petition in the Circuit Court for Knox County (“the Trial Court”) seeking to terminate the parental rights of Lewis S. (“Father”), father to the minor twin children Maria B. S. and Anna J. S. (“the Children”). After a trial, the Trial Court terminated Father’s parental rights to the Children after finding that grounds for termination pursuant to Tenn. Code Ann. §§ 36-1-113 (g)(1), (g)(3), and (g)(9) had been proven by clear and convincing evidence, and that clear and convincing evidence had been shown that it was in the Children’s best interest for Father’s parental rights to be terminated. We affirm as modified.


TN Court of Criminal Appeals

JAMES RICHARD LENING v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Marie Stacey, Nashville, Tennessee, for the appellant, James Richard Lening.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Robert Elliott McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, James Richard Lening, appeals the denial of his petition for post-conviction relief from his 2008 Davidson County Criminal Court jury convictions of aggravated burglary, aggravated assault, felony vandalism, and aggravated criminal trespass, claiming that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.


JESSE L. ROGERS, III v. DAVID SEXTON, WARDEN
CORRECTION: The appellate court case number was changed from E2011 to E2012.

Court: TN Court of Criminal Appeals

Attorneys:

Jesse L. Rogers, III, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Joe Crumley, District Attorney General; for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Jesse L. Rogers, III, pro se, appeals the trial court’s dismissal of his petition for a writ of habeas corpus from his 1994 convictions for first degree murder and attempted first degree murder. He claims the judgment is void due to an invalid waiver of his constitutional rights during the entry of his guilty plea. The trial court denied relief without appointing counsel, concluding that the petitioner failed to state a cognizable claim for habeas corpus relief. Following our review, we affirm the judgment of the trial court.


New TBJ Explores the 'But I Didn't Read it Rule'

In the new Tennessee Bar Journal, out today, Donald Capparella and Candi Henry explore Morrison and Allstate and their implications for insurance agents' liability for what their clients sign. And in her monthly column, TBA President Jackie Dixon details the ways in which judicial merit selection is hanging in the balance -- and what you can do to help. Read this and more in the May TBJ


Important Issues Still at Play in Legislature

A number of bills of interest to lawyers may see action before the end of the session. They include:

Lawyer Regulation -- A bill (SB 779/HB 635) to impose criminal sanctions on Board of Professional Responsibility panel members, staff, lawyers subject to discipline, and their counsel for certain procedural violations could see action in committees in both chambers. The TBA has resisted this unwelcome intrusion in the Supreme Court’s disciplinary process.

Tort -- Codification of comparative fault with limitations of joint and several liability in several types of cases that the courts have carved out by common law -- including products liability and cases with combined intentional and negligent actors -- still awaits House committee action (SB 56/HB 1099).

Collateral Source Rule -- The effort to limit the effect of the collateral source rule (SB 1184/HB 978) will be studied for now but could return next year.

Workers Compensation Overhaul -- The Workers Compensation overhaul (SB 200/HB 194) continues its march towards expected passage. According to the Associated Press, the plan is scheduled for a full Senate vote on Monday night with the House Finance Committee taking it up on Tuesday.

Conservatorship -- The work of the TBA’s Special Committee on Conservatorship Practice and Procedure has been adopted by the Senate (SB 555/HB 692) and should see action in the House Civil Justice Committee this week.

Trust Law -- A bill (SB 713/HB 873) to rewrite Tennessee trust law and a 52-page amendment debuted 10 days ago will see action in the House Civil Justice Committee.

Criminal -- The Senate Judiciary Committee will hear about legislation (SB 1362/HB 1293) permitting prosecution of an alleged repeat child abuser in any county where an act of of abuse allegedly occurred, and permitting evidence of all prior child abuse by declaring past offenses to be a "continuing offense.”


Gomes Selected for Shelby Court Post

Kathleen Gomes has been selected as interim probate judge by the Shelby County Commission, the Administrative Office of Courts reported today. Gomes replaces retiring Probate Court Judge Robert Benham, who has served in that role since 1997. The interim judge will serve until the county election in August 2014.


Support Building for Blount Youth Court

Members of the Leadership Blount Class of 2013 are creating a youth court program in the county as their class service project. Under the youth court model, nonviolent, first-time offenders who admit guilt are able to avoid court costs and keep offenses off their records by submitting to peer sentencing. Class members, including Knoxville attorney Lynn Peterson with Lewis, King, Krieg & Waldrop, who is spearheading the project, hope it will be up and running by the start of the next school year. Blount County Juvenile Judge Terry Denton has signed off on the program and an editorial in the Daily Times calls on county residents to “jump at this opportunity” to “steer wayward young people back on path before compiling a record of misbehavior that follows them into adulthood.”


County Urged to Develop Computer Use Guidelines

Roane County Courthouse employees have been cleared of any criminal conduct, but a grand jury has recommended that the county adopt guidelines regarding computer use after an employee was taped viewing pornography on a county computer while working overtime at night. The Tennessee Bureau of Investigation (TBI) was brought in after coworkers – who had set up the taping with their own laptops -- alleged they were threatened by a supervisor to keep the matter quiet. Knoxnews has the story.


Retiring Judge Reflects on 24 Year Career

First Judicial District Criminal Court Judge Lynn Brown last week closed out his long career by signing his last legal order. The Johnson City Press reports that it was a “a peaceful conclusion to a 24-year career in which he had presided over some of the most newsworthy trials in Upper East Tennessee…” In an interview with the paper, Brown talks about his inspiration for a career in the law, why he took the hardest courses he could in law school and which of the many cases he handled as a prosecutor are the most memorable.


New Documents Show Withers Photographed MLK Staff

New records released under a settlement of The Commercial Appeal’s lawsuit against the FBI show the extent to which civil rights movement photographer Ernest Withers provided information to the bureau. Among the 785 pages of documents released, according to the Associated Press, are photographs of Dr. Martin Luther King Jr.'s staff, including a top aid and a Southern Christian Leadership Conference field organizer. Also included are photographs of King supporters reacting to his death and one of King’s widow speaking after the assassination. Although Withers did little direct informing on King, his reports to the agency on others are indicative of what one historian calls a "vacuum cleaner approach" to FBI surveillance: collecting everything possible for possible later use.


New CLE Covers Zoning, Planning, Land Use

A new CLE course scheduled for Thursday will cover a broad range of municipal land use issues, including zoning, planning and boards of zoning appeal. The course, presented by private and government lawyers, emphasizes the importance of understanding Tennessee case law and statutes that govern the frequently difficult and lengthy development process. In many cases, politics also plays a role in this practice area as clients, communities and various levels of government are involved or impacted. Speakers will offer perspectives from both sides of the fence. Learn more or register online.


 
 

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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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