Court Denies Advertising Rules Changes

A petition proposing several rules changes restricting lawyer advertising was denied today in a per curiam order issued by the Tennessee Supreme Court. In taking the action, the court said, "We have determined that the continued enforcement of the existing rules is preferable to any of the changes sought by the petitioners."

The petition, which was filed last spring, would have required that lawyers have a "bona fide" office in Tennessee, prohibited actors from portraying clients, banned commenting on results and imposed requirements for pre-submission of ads to the Board of Professional Responsibility.

The petition drew comments from a wide array of organizations and individuals including the Tennessee Bar Association, Knoxville Bar Association, two law school professors from the University of Tennessee, the Tennessee Association of Broadcasters, the Federal Trade Commission and others. TBA Ethics and Professionalism Committee Chair Brian Faughnan authored the TBA comment.

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
08 - TN Court of Appeals
01 - 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

IN RE BRITANY P. D.

Court: TN Court of Appeals

Attorneys:

Gary W. Wicks, Sr., Franklin, Tennessee, for the appellant, Jeri L. M.

Joseph Hornick, Dickson, Tennessee, for the appellee, Corbitt A. D.

Melanie Totty Cagle, Centerville, Tennessee, for the appellee, Britany P. D.

Judge: CANTRELL

The dispositive jurisdictional issue in this case is whether the underlying juvenile court proceeding was merely a custody action or a part of a dependency and neglect proceeding wherein custody was also at issue. The pleading that was tried in the juvenile court was Father’s Amended Petition for Custody and to Determine Parenting Plan and, in the Alternative, Petition for Dependent and Neglect. Following the trial on the amended petition, the juvenile court judge found the evidence insufficient to prove dependency and neglect; however, the juvenile court awarded custody of the parties’ child to Father on a best interest determination. Mother appealed the judgment of the juvenile court to the circuit court. The circuit court dismissed the appeal on the motion of Father, finding it lacked jurisdiction because the juvenile court did not find the child dependent and neglected. The appeal was then transferred to this court. Although the juvenile court did not find the child dependent and neglected, the juvenile court awarded custody to Father following a trial which was part of a dependency and neglect proceeding. Therefore, as In re D.Y.H., 226 S.W.3d 327 (Tenn. 2007), instructs, the circuit court has jurisdiction to hear Mother’s appeal because the juvenile court’s custody decision arose from and was part of a dependency and neglect proceeding. Accordingly, we reverse and remand this appeal to the circuit court for a de novo hearing.


DUFF L. BRUMLEY v. CITY OF CLEVELAND, TENNESSEE

Court: TN Court of Appeals

Attorneys:

W. Gerald Tidwell, Jr., Chattanooga, Tennessee, for the appellant, Duff L. Brumley.

Emily A. Cleveland and Robert H. Watson, Jr., Knoxville, Tennessee, for the appellee, City of Cleveland, Tennessee.

Judge: FRIERSON

A detective with the City of Cleveland filed a petition for common-law writ of certiorari with the Circuit Court, seeking review of the City Manager’s ruling affirming the City’s decision to terminate his employment. At the hearing before the trial court, the petitioner proffered new and additional evidence that was not presented to the City Manager. The trial court sustained the City’s relevancy objection and allowed the petitioner to make an extensive offer of proof. We hold that the trial court did not abuse its discretion in excluding the new and additional evidence, that there is material evidence supporting the City Manager’s decision, and that the City Manager did not act arbitrarily or capriciously in deciding to uphold the City’s decision to fire the petitioner. We therefore affirm the judgment of the trial court.


ALTON FLATT v. STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, Lyndsay F. Sanders, Senior Counsel, and Benjamin A. Whitehouse, Nashville, Tennessee, for the appellant, State of Tennessee.

Alton Flatt, Gainesboro, Tennessee, the appellee.

Judge: CLEMENT

The Department of Safety, acting pursuant to Tennessee Code Annotated § 39-17-1352(a)(1), revoked Petitioner’s handgun carry permit based upon the Department’s independent determination that Petitioner had been convicted of “a misdemeanor crime of domestic violence” as defined by 18 U.S.C. § 921(a)(33). The revocation arises out of an incident in which Petitioner was charged with two counts of aggravated assault, one count that pertained to his ex-wife and one count that pertained to her male companion. Petitioner subsequently pled guilty to one count of simple assault under Tennessee Code Annotated § 39-13-101. When Petitioner received notice that his handgun permit had been administratively revoked, he filed an appeal in the general sessions court, which reversed the Department’s decision and ordered reinstatement of Petitioner’s permit. The Department then appealed to the circuit court, which also ordered reinstatement of the handgun permit. This appeal followed. A “misdemeanor crime of domestic violence,” for purposes of 18 U.S.C. § 922(g)(9), requires a use of force and a domestic relationship. In the underlying criminal case, Petitioner was charged with assaulting two people, Petitioner’s ex-wife and her male friend. Petitioner pled guilty to only one count of misdemeanor assault and the record does not establish whether Petitioner pled guilty to assaulting his ex-wife or her male companion. A “misdemeanor crime of domestic violence” includes an offense “committed by” a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime and, pursuant to United States v. Hayes, 555 U.S. 415 (2009), the victim’s domestic relationship with the defendant must be established beyond a reasonable doubt for the offense to constitute a crime of domestic violence under 18 U.S.C. § 922(g)(9). The record in this case does not establish that the victim of the count of simple assault to which Petitioner pled guilty was his ex-wife. Therefore, the record does not support the Department’s determination that Petitioner was convicted of a misdemeanor crime of domestic violence for purposes of 18 U.S.C. § 922(g)(9). Accordingly, we affirm.


TINA L. MILAM, ET AL. V. TITLEMAX OF MEMPHIS AND DEALER'S AUTOMOBILE AUCTION OF THE SOUTH, LLC

Court: TN Court of Appeals

Attorneys:

Tina L. Milam, Appellant/Plaintiff, self-represented.

Paul Neil Royal, Memphis, Tennessee, for Appellee/Defendant, Titlemax of Tennessee, Inc.

Roger Alden Stone, Memphis, Tennessee, for Appellee/Defendant, Dealer's Automobile Auction of the South, LLC.

Judge: PER CURIAM

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.


THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY v. MICHAEL MYERS ET AL.

Court: TN Court of Appeals

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellants, Michael Myers and Diane Lewis d/b/a Champion Towing (a/k/a City Towing & Transport) and d/b/a All Around Towing.

Kathryn S. Evans, Cynthia E. Gross, and Jason P. Bobo, Nashville, Tennessee, for the appellee, The Metropolitan Government of Nashville and Davidson County.

Judge: CLEMENT

Defendants appeal from an order of the trial court enjoining them from operating a wrecker service in Davidson County without a license. The trial court found that the ordinances at issue applied to Defendants’ wrecker services and that Defendants violated the provisions of the Metropolitan Code of Laws by their operation of a wrecker service without a license in Davidson County. The trial court also rejected Defendants’ arguments that the ordinances were preempted by federal law and violated the equal protection guarantees of the United States and Tennessee Constitutions. The trial court then enjoined Defendants from operating a wrecker service in Davidson County. We affirm the trial court in all respects.


SHANTHA GRACE PANDIAN v. JUAN FRANCISCO RODRIGUEZ

Court: TN Court of Appeals

Attorneys:

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Juan Francisco Rodriguez.

Mark D. Slagle, Johnson City, Tennessee, for the appellee, Shantha Grace Pandian.

Judge: SWINEY

This appeal arises from a dispute over a parenting plan. Shantha Grace Pandian (“Mother”) sued Juan Francisco Rodriguez (“Father”) for divorce in the Circuit Court for Washington County (“the Trial Court”). The Trial Court granted the parties a divorce. The case then proceeded to focus on a parenting plan for the parties’ two children, Christopher and Ethan (collectively, “the Children”), both boys with different special needs. Father requested equal time with the Children on a weekly alternating basis. Mother, on the other hand, wanted to have the Children most of the time, and argued that Father’s plan would be too disruptive for the Children. The Trial Court entered a parenting plan designating Mother as the primary residential parent and granting her most of the time with the Children. Father appeals, arguing that the Trial Court should have adopted his proposal for equal custodial time with the Children. We affirm the judgment of the Trial Court.


STEPHANIE D. TURNER V. KEVIN TURNER

Court: TN Court of Appeals

Attorneys:

Harriet Thompson, Bolivar, Tennessee, for the appellant, Kevin Turner.

Charles Wendell McGhee, Memphis, Tennessee, for the appellee, Stephanie D. Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; and Alexander S. Rieger, Assistant Attorney General for the appellee, Intervenor State of Tennessee, Office of the Attorney General.

Judge: PER CURIAM

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.


FRANDA WEBB, ET AL. v. FIRST TENNESSEE BROKERAGE, INC., ET AL.

Court: TN Court of Appeals

Attorneys:

Mark D. Griffin, Kristine L. Roberts, and William E. Routt, III, Memphis, Tennessee, for the appellants, First Tennessee Brokerage, Inc., and Michael Conaty.

John A. Lucas and Lane E. McCarty, Alcoa, Tennessee, for the appellees, Franda Webb, and D.P., a minor, by and through his legal custodian, Franda Webb, citizens and Residents of Knox County, Tennessee.

Judge: MCCLARTY

In this appeal, we are asked to determine whether the trial court properly denied the defendants’ motion to compel arbitration and to stay proceedings. The defendants assert that Ms. Webb signed an agreement to arbitrate “all controversies” when she opened the brokerage account with them. The trial court determined, inter alia, that the arbitration agreement was not enforceable under state law, that Ms. Webb did not agree to arbitration, and that the account representative fraudulently induced Ms. Webb to enter into the agreement. We affirm the decision of the trial court.


TN Court of Criminal Appeals

STATE OF TENNESSEE V. ARTHUR T. ROGERS

Court: TN Court of Criminal Appeals

Attorneys:

Lauren Zechman-Denney (on appeal), McMinnville, Tennessee, and Trenena Wilcher (on appeal and at trial), McMinnville, Tennessee, for the appellant, Arthur T. Rogers.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel Harmon, Assistant Attorney General; Lisa S. Zavogiannis, District Attorney General; and Tom Miner, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: BIVINS

Arthur T. Rogers (“the Defendant”) was convicted by a jury of two counts of aggravated sexual battery. The trial court subsequently sentenced the Defendant to two concurrent terms of nine years in the Tennessee Department of Correction. In this delayed direct appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions. After a thorough review of the record and the applicable law, we affirm the judgments of the trial court.


Vanderbilt Law Student Wins 2013 Hastings Competition

Wyatt Sassman, a third-year student at Vanderbilt University Law School, has won first place in the TBA Environmental Law Section’s 2013 Jon E. Hastings Memorial Award Writing Competition. His article “Administrative Compliance Orders and Due Process after Sackett” looks at the 2012 U.S. Supreme Court decision in Sackett v. U.S. Environmental Protection Agency, which allowed an Idaho couple to challenge an EPA order requiring restoration of a wetland before the agency enforced the order with penalties. Sassman argues three points: that the court disregarded precedent and legislative history in finding for the Sacketts, that administrative orders do not violate due process rights, and that federal agencies should be free to use such orders without judicial interference. He will collect a cash award and his article will be published in an upcoming section newsletter.


Pilot Puts Workers on Leave, Ramps up Audit and Compliance Functions

A week after federal agents raided the headquarters of Pilot Flying J, company CEO Jimmy Haslam is taking steps to address charges that Pilot withheld millions of dollars in rebates from its trucking customers. Actions announced yesterday include placing several sales employees on leave, eliminating the manual rebate system that appears to be at the center of the investigation, using the company's field audit team to review all 3,300 trucking contracts, creating the new position of chief compliance officer, and tasking a nationally-recognized individual to conduct an independent investigation. Knoxnews has the latest in this developing story.


Court Lets Judicial COLA Decision Stand

The U.S. Supreme Court yesterday declined to review a decision approving cost-of-living increases (COLAs) for six federal judges who sued for back pay. The move lets stand an order by the U.S. Court of Appeals for the Federal Circuit that Congress pay the COLA for the six years when it had been denied. While the case does not automatically raise salaries for all judges, another group is trying to get a class-action lawsuit approved so more than 1,000 current and former federal judges can sue for lost pay. WRCB TV3 has an Associated Press story on the issue.


Senate Moves Closer to Requiring Online Sales Tax

The U.S. Senate easily cleared a procedural hurdle yesterday to allow final consideration of a bill that requires most online retailers to collect state sales taxes. Under current law, online merchants only have to collect taxes in states where they have a physical presence. A vote on final passage is expected later this week. Observers note, however, that prospects for the bill are a bit more complicated in the House, where conservatives are likely to oppose any measure viewed as a tax increase. The Washington bureau chief for The Business Journals explores the dynamics.


MBA Memorial Service Set for May 1

The Memphis Bar Association’s Annual Memorial Service will be held May 1 at noon at Calvary Episcopal Church in downtown Memphis. The church is located at 102 North Second St., Memphis 38103. This year's service will honor 24 lawyers who died in the past year. For details about the event or to write a memorial statement about any of the honorees, contact Mary Lynes at mlynes@memphisbar.org or (901) 527-3573.


Justices to Honor Pro Bono Volunteers in Johnson City

Tennessee Supreme Court Chief Justice Gary R. Wade and three other justices will be in Johnson City next month to honor pro bono volunteer attorneys at a “Dinner with the Tennessee Supreme Court” hosted by Legal Aid of East Tennessee. The event, scheduled for May 1, will take place at the Carnegie Hotel and is open to the public. Tickets are $50. Funds raised will benefit Legal Aid’s Pro Bono Project. A reception with justices Cornelia Clark, Janice Holder, Sharon Lee and Wade begins at 6:30 p.m. with dinner to follow. Guest emcee for the evening is Nate Morabito, a reporter with WJHL-TV in Johnson City. For reservations or more information call Christy Harris with Legal Aid at (423) 928-8311 or (800) 821-1312.


Henderson County Lawyer Censured

Henderson County lawyer Bradley Glenn Kirk received a public censure from the Board of Professional Responsibility on April 18 after the board found he abandoned a client’s case and failed to return a client’s file. In 2010, a client retained Kirk to represent him in a personal injury case. After several months, the client contacted the court clerk’s office and learned that apart from filing the complaint, Kirk had taken no additional action in the case. The client attempted to contact Kirk, but his calls went unreturned. The board determined that these actions violated Rules of Professional Conduct 1.3, 1.4, 1.5, 1.16 and 8.4. Download the BPR notice.


CLE Explores Typical Criminal Docket

A new program from the TBA's TennBarU is designed to help lawyers who want to pick up criminal cases through appointments or referrals. The "Docket Call" course will walk participants through a typical criminal docket and address the most common cases in General Sessions Court. It also will cover how to manage client expectations and communication in criminal cases. A final segment will involve a panel discussion about what to do and not do at preliminary hearings. The four-hour course will be held April 30 in Nashville.


 
 

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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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