McNally Amendment Withdrawn

The appropriations amendment that threatened legal aid and funding for public defender and indigent representation was withdrawn by the sponsor Tuesday evening. Advocates credited swift, coordinated and effective response by the legal community in reaching many senators and representatives who argued against the proposal.

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
01 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
05 - 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 Workers Comp Appeals

RANDALL S. ROGERS v. THYSSENKRUPP WAUPACA, INC. ET AL.

Court: TN Workers Comp Appeals

Attorneys:

Catheryne L. Grant, Nashville, Tennessee, for the appellants, ThyssenKrupp Waupaca, Inc. and Sentry Insurance Company.

Bert Bates, Cleveland, Tennessee, for the appellee, Randall S. Rogers.

Judge: BLACKWOOD

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and report of findings of fact and conclusion of law. The Employee alleged that he sustained a gradual injury to his back in 2007 as a result of his work as a maintenance technician. His employer denied that a compensable injury had occurred and denied that employee had provided timely notice. The trial court found the Employee had sustained a compensable injury and that timely notice had been given. The trial court also found that the Employee had been terminated for cause and limited the award to one and one-half times the anatomical impairment. The Employer has appealed, asserting that the evidence preponderates against the trial court’s finding on compensability. We reverse the judgment of the trial court.


TN Court of Appeals

IN THE MATTER OF: DEON S.

Court: TN Court of Appeals

Attorneys:

Daniel P. Bryant, Clarksville, Tennessee, for the appellant, Ashley S.

Robert E. Cooper, Jr., Attorney General and Reporter; Mary Byrd Ferrara, Assistant Attorney General, for appellee, State of Tennessee, Department of Children’s Services.

Lanis L. Karnes, Jackson, Tennessee, Guardian ad Litem.

Judge: STAFFORD

This is a termination of parental rights case. Mother appeals the trial court’s termination of her parental rights on several grounds, including abandonment by willful failure to visit pursuant to Tennessee Code Annotated Sections 36-1-113(g)(1) and 36-1- 102(1)(A)(i). We conclude that the ground of abandonment by willful failure to visit is met by clear and convincing evidence in the record and that there is also clear and convincing evidence that termination of Mother’s parental rights is in the child’s best interest. Affirmed and remanded.


CHARLES WEBB and EVANGELINE WEBB, Individually and as Husband and Wife v. CHARLES ROBERSON, M.D., ET AL.

Court: TN Court of Appeals

Attorneys:

Louis P. Chiozza, Jr., Memphis, Tennessee; Steven R. Walker, Oakland, TN, for the appellants, Charles Webb and Evangeline Webb

Marty R. Phillips, John O. Alexander, Memphis, Tennessee, for the appellees, Charles Roberson, M.D. and Charles Roberson, M.D., P.C.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, Stephanie A. Bergmeyer, Assistant Attorney General, Nashville, TN, for the appellee, State of Tennessee

Jennifer S. Harrison, Memphis, TN, for the appellees, Sabrina Greer, R.N., Brandy Madden, R.N., Jerry Ray, R.N., Tina Cox, R.N., Michael Maharrey, R.N. and AMISUB (SFH), Inc., d/b/a St. Francis Hospital

Judge: HIGHERS

In this interlocutory appeal, Plaintiffs challenge the constitutionality of Tennessee Code Annotated section 29-26-121, which requires a medical malpractice claimant to provide certain notice sixty days prior to filing suit. We conclude that Tennessee Code Annotated section 29-26-121 is not an unconstitutional infringement upon the courts’ rule-making authority, that it is not preempted by HIPAA, and that it does not violate the equal protection and due process provisions of state and federal law. Affirmed and Remanded.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. ROBERT EARL BORNER

Court: TN Court of Criminal Appeals

Attorneys:

Ross Mitchell (at trial and on appeal) and Paul Simpson (at trial), Selmer, Tennessee, for the appellant, Robert Earl Borner.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Bob Gray, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A McNairy County Circuit Court Jury convicted the appellant, Robert Earl Borner, of the delivery of less than .5 grams of cocaine. The trial court sentenced the appellant to eight years in the Tennessee Department of Correction. On appeal, the appellant argues that the trial court erred in admitting the recording of the transaction; that the trial court erred by failing to enter a judgment of acquittal because the evidence was insufficient to sustain his conviction; that the indictment against him was defective; and that he was denied a jury of his peers. Upon review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. MARVIN LEE KEELING

Court: TN Court of Criminal Appeals

Attorneys:

William A. Kennedy, Assistant Public Defender, Blountville, Tennessee, for the appellant, Marvin Lee Keeling.

Robert E. Cooper, Jr., Attorney General & Reporter; Lacy Wilber, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; William Harper and Teresa Nelson, Assistant District Attorneys, for the appellee, State of Tennessee.

Judge: BIVINS

Marvin Lee Keeling (“the Defendant”) was convicted by a jury of one count of kidnapping, two counts of aggravated burglary, one count of assault causing bodily injury, and one count of assault by offensive touching. After a hearing, the trial court denied judicial diversion and sentenced the Defendant as a Range I offender to five years for the kidnapping conviction, five years for each of the aggravated burglary convictions, eleven months and twenty-nine days for the assault causing bodily injury conviction, and six months for the assault by offensive touching conviction, all to be served concurrently, for an effective sentence of five years. The trial court ordered the Defendant to serve one year of his sentence confined in the county jail with five years of probation. In this direct appeal, the Defendant contends that (1) the evidence is not sufficient to support his kidnapping conviction; (2) the trial court erred in denying judicial diversion; and (3) the trial court erred in denying full probation. Upon our thorough review of the record and relevant authorities, we affirm the trial court’s judgments.


DERRICK SORRELL v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Paul K. Guibao (on appeal) and Ryan Wiley (at hearing), Memphis, Tennessee, for the appellant, Derrick Sorrell.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Muriel Malone, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Derrick Sorrell, appeals the post-conviction court’s denial of his petition for post-conviction relief from his first-degree murder conviction, arguing he received the ineffective assistance of counsel. After review, we affirm the denial of the petition.


STATE OF TENNESSEE v. MICHAEL GLEN WALSH

Court: TN Court of Criminal Appeals

Attorneys:

Edward Cantrell Miller, District Public Defender, and Amber Deaton Haas, Assistant District Public Defender, for the Defendant, Michael Glen Walsh.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; James B. (Jimmy) Dunn, District Attorney General; and Gregory C. Eshbaugh, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Michael Glen Walsh, appeals from his convictions by a Sevier County Circuit Court jury for driving under the influence (DUI), second offense, a Class A misdemeanor, violating the implied consent law while his driver’s license was revoked for a previous DUI conviction, a Class A misdemeanor, and driving with a revoked license, a Class B misdemeanor. See T.C.A. §§ 55-10-401, 55-10-406, and 55-50-504 (2012). He received an eleven-month, twenty-nine-day sentence with 150 days to serve for each of the DUI and the implied consent violation convictions and received a six-month sentence, suspended except for forty-eight hours, for the revoked license conviction, all to be served concurrently. On appeal, the Defendant contends (1) that the evidence is insufficient to support his DUI and implied consent violation convictions and (2) that the trial court erred in sentencing him to serve 150 days. We affirm the judgments of the trial court.


STATE OF TENNESSEE v. WADE ALLEN WILLIS

Court: TN Court of Criminal Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Mike Bottoms, District Attorney General; and Caleb Bayless, Assistant District Attorney General, for the appellant, State of Tennessee.

Gary Howell, Mt. Pleasant, Tennessee, (on appeal); and William C. Barnes, Columbia, Tennessee, (at trial), for the appellee, Wade Allen Willis.

Judge: WOODALL

Defendant, Wade Allen Willis, was indicted by the Maury County Grand Jury for the offenses of driving under the influence of intoxicants per se (DUI), violation of the registration law, violation of the financial responsibility law, and for failure to maintain control of his vehicle. The charges were the result of a traffic stop of Defendant by a state trooper of the Tennessee Highway Patrol. Defendant filed a motion to suppress evidence obtained as a result of his arrest, solely on the basis that his arrest “was without a warrant and without probable cause.” Defendant did not assert that the officer lacked reasonable suspicion to initiate a stop of Defendant. Following a hearing on the motion to suppress, the trial court took the matter under advisement. The trial court subsequently entered a written order granting Defendant’s motion to suppress all evidence obtained “following the initial detention and subsequent arrest.” The State has appealed, following a nolle prosequi of the indictment. Following a thorough review we reverse the judgment of the trial court, reinstate the charges, and remand for further proceedings.


Court Rejects No Warrant DUI Blood Tests

The Supreme Court ruled today that police must try to obtain a search warrant from a judge before ordering blood tests for drunken-driving suspects, WRCB reports. The justices sided with a Missouri man who was subjected to a blood test without a warrant. Although he was found to have nearly twice the legal limit of alcohol in his blood and failed several field sobriety tests, justices agreed with the Missouri high court that said the blood test violated the Constitution’s prohibition against unreasonable searches and seizures.


Court Seeks Comments on Rules Amendment

The Tennessee Supreme Court on Monday issued an order soliciting comments on a proposed amendment to Rule 10B of the Rules of the Supreme Court, which sets out the procedures for seeking disqualification or recusal of a judge. Under the current rule, a party seeking disqualification or recusal must file a written motion and the judge must act promptly on it. The rule also sets out procedures for appealing a denial to the intermediate appellate court. However, it does not state whether, and if so how, a party may seek Supreme Court review of the appeals court decision. The proposed amendment would add a new section to provide for discretionary appeal to the Supreme Court. Comments on the amendment should be filed by May 15.


TALS Names New Executive Director

The Tennessee Alliance for Legal Services (TALS) named Ann Pruitt as the agency’s new executive director. Pruitt earned her undergraduate degree from Clemon University and law degree from University of Tennessee. After working several years in private practice, she joined Dell, Inc. as senior managing counsel in 1999 and worked her way to become executive director of ethics investigations and operations. While at Dell, Pruitt served on the TALS Board of Director for several years and organized pro bono events. “Because TALS is the voice and public face of the equal justice community in Tennessee, this is a critical position for Tennessee families and the advocates who represent them," TALS board chair Frank Cantrell said in a press release. "We are pleased to have found someone with Ann’s skills, experience and commitment to lead us in the coming years.” 


Judge Rules DCS Must Release Child Death Information

Davidson County Chancellor Carol McCoy ruled today that the state Department of Children’s Services must turn over to the media at no cost records from the case files of 50 children who died or nearly died after the agency became involved with them. DCS must bear the cost of redacting identifying information from the records, while the media organizations will pay the cost of making copies, Knoxnews reports.


TBJ: Learn the Details Behind Rule 6.1

Why should you do at least 50 hours of pro bono every year? In the current Tennessee Bar Journal, John T. Blankenship and Alexandra T. MacKay explore the origins and evolution of Tennessee Supreme Court Rule. 6.1. Also, this month marks the 148th anniversary of the explosion of the steamboat "Sultana," which caused more deaths than the Titanic. Jerry O. Potter and Donald F. Paine look into the legal aftermath.


Haslam Still in Talks with Feds Over Medicaid Expansion

Gov. Bill Haslam continues to talk with President Barack Obama’s administration since his decision last month not to accept federal funding at this time for an expansion of the state’s Medicaid program. He was in Washington, D.C., last week to meet with federal health officials about a possible compromise, the Memphis Daily News reports. Haslam is not putting any kind of timeline on the talks saying, “I’m working hard to get it done as soon as we can. I honestly don’t know if that’s a month or a year. The new plan comes into play in January 2014. Whether we could have something by then, I honestly don’t know.”


Nashville Law Firm Opens New Office

The Nashville law firm of McInteer & O’Rear has opened offices in the city’s 12th South neighborhood. The firm will focus on general business and civil litigation, including copyright, entertainment, real estate and health care litigation, the Tennessean reports. Seth McInteer will focus on commercial contracts, real estate and construction financing, parent company liability, non-competition agreements and employment law matters. Howell O’Rear’s focus will center on litigating copyright, trademark and music-industry matters.


Shelby PD Aids National Project to Help Indigent with Mental Health Issues

Shelby County Chief Public Defender Stephen Bush has been selected to participate in a new initiative of the Vera Institute of Justice, a nonprofit that works closely with governments to improve services related to safety and justice. The institute recently launched a national project to study the role of indigent defense in helping people with mental health disorders. The effort will examine how resource constraints, ethical dilemmas and practical challenges affect the ability of indigent defense attorneys to meet client needs.


Knoxville Lawyer Censured

On April 16, Knoxville lawyer Ta Kisha Fitzgerald received a public censure for failing in her capacity as assistant district attorney to make a timely disclosure to the defense of letters written by the defendant and of phone calls by the defendant. Download the BPR notice.


Bill to Change AG Selection Clears Senate

The state Senate today passed a proposed constitutional amendment to give lawmakers in both chambers the power to select the state attorney general. Currently, attorney generals are selected by state Supreme Court justices. WBIR has the story.


Legislature Approves Municipal Schools Bill

After much speculation about resistance to lifting the statewide ban on special school districts, a bill to do just that sailed through the Tennessee House and Senate on Monday, the Memphis Daily News reports. The legislation was approved 70-24 in the House before winning approval in the Senate on a 24-5 vote. If signed by the governor, the bill will permit municipal school districts in 29 cities, including the six suburban towns and cities in Shelby County that have been seeking authority to establish their own school districts rather than merge with the Memphis city schools.


 
 

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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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