LAET Launches New Online Program

Legal Aid of East Tennessee (LAET) has launched an innovative web-based system to improve access to applicants for civil legal services. The system allows persons seeking legal assistance to be able to apply for legal aid 24-hours a day, seven days a week. “Legal Aid of East Tennessee is very aware that eligible persons facing civil legal crisis cannot always contact us during normal business hours without risking loss of wages or even employment itself,” says David R. Yoder, LAET Executive Director. “Other personal conflicts they might have, as well as LAET’s constantly busy phones, can make it extremely difficult to apply for services.” To access the new system, users should visit www.laet.org

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
03 - TN Court of Appeals
03 - 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

MORGAN KEEGAN & COMPANY, INC. v. WILLIAM HAMILTON SMYTHE III ET AL.

Court: TN Supreme Court

Attorneys:

Jef Feibelman, David E. Goodman, Jr., and Mary C. Hamm; Christopher S. Campbell, and Laura S. Martin, Memphis, Tennessee; Dale Ledbetter, Fort Lauderdale, Florida, for the appellants, William Hamilton Smythe III, William H. Smythe IV Trust, and Smythe Children’s Trust.

John S. Golwen, William G. Whitman, and Annie T. Christoff, Memphis, Tennessee, for the appellee, Morgan Keegan & Company, Inc.

Judge: KOCH

This case requires us to decide whether Tennessee’s appellate courts possess subject matter jurisdiction to review a trial court’s order that vacates an arbitration award and remands the dispute to a new arbitration panel without expressly declining to confirm the award. An investor pursued a claim against an investment company over losses he incurred due to the failure of some of the company’s bond funds. After a Financial Industry Regulatory Authority arbitration panel ruled in the investor’s favor, the investment company petitioned the Chancery Court for Shelby County to vacate the award based on its belief that two members of the arbitration panel were biased. The trial court, without expressly declining to confirm the award, vacated the award and remanded the case for a second arbitration before a new panel. The investor appealed. The Court of Appeals, on its own motion, dismissed the appeal on the ground that it lacked subject matter jurisdiction. Morgan Keegan & Co. v. Smythe, No. W2010-01339-COA-R3-CV, 2011 WL 5517036, at *8 (Tenn. Ct. App. Nov. 14, 2011). We granted the investor’s application for permission to appeal and now reverse the judgment of the Court of Appeals because the trial court’s order is, in fact, an appealable order “denying confirmation of an award” under Tenn. Code Ann. § 29-5- 319(a)(3) (2012).


TN Workers Comp Appeals

JUDY KILBURN EX REL ESTATE OF CHARLES KILBURN v. GRANITE STATE INSURANCE COMPANY ET AL.
NOTE: It appears the attached opinion was not distributed by email at time of filing - 11-30-2011.

Court: TN Workers Comp Appeals

Attorneys:

Brian Dunigan, Goodlettsville, Tennessee, for the appellant, Judy Kilburn.

Desiree I. Hill and M. Neal Cope, Nashville, Tennessee, for the appellees, Granite State Insurance Company and Ryan T. Brown.

Judge: ANDERSON

This workers’ compensation 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. The employee was seriously injured in the course of his employment in an automobile accident in November 2008. He suffered fractures of his neck and back and underwent a surgical fusion of his neck. Over the course of the next year, he suffered severe pain and was eventually referred to a pain management physician, who prescribed oxycodone. He filed suit against his employer for workers’ compensation benefits. He died in January of 2010 of an accidental overdose of oxycodone over 14 months after his injuries. His widow was substituted as plaintiff in his workers’ compensation suit and filed a motion to amend the complaint to allege that his death was related to his work injury and that she was entitled to death benefits. The employer opposed the motion to amend, contending the death was not compensable because it was not the “direct and natural result of a compensable injury” but rather, the result of an intervening cause, i.e., the employee’s negligence in consuming an overdose of medicine. The trial court denied the motion to amend. The parties entered into a series of stipulations concerning the remaining issues in the case, and judgment was entered. The widow has appealed, contending that the trial court erred in denying her motion to amend the complaint. We agree, reverse the judgment, and remand the case to the trial court for further proceedings.


TN Court of Appeals

BEVERLY LYNN DURHAM (HESS) COOK v. JAMES PRESTON HESS, III

Court: TN Court of Appeals

Attorneys:

Stanley Allen Kweller, Nashville, Tennessee, for the appellant, James Preston Hess.

Lawrence James Kamm and Helen Sfikas Rogers, Nashville, Tennessee, for the appellee, Beverly Lynn Durham (Hess) Cook.

Judge: BENNETT

Father of adult child with spina bifida and other impairments challenges the trial court’s order requiring him to continue to pay child support. We have concluded that the trial court had subject matter jurisdiction in this case. We further find no error in the trial court’s determination that the adult child is severely disabled, in its calculation of child support, or in its determination of the amount owed by Father for past uncovered medical expenses.


IN RE ERIC J. P. ET AL.

Court: TN Court of Appeals

Attorneys:

Norris Arthur Kessler, III, Winchester, Tennessee, for the appellant, Charles E. H.

Jonathan C. Brown, Fayetteville, Tennessee, for the appellant, Amanda M. P.

Robert E. Cooper, Jr., Attorney General and Reporter, Leslie Curry, Assistant Attorney General, Douglas E. Dimond, and Wilson Harpe, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

Judge: CLEMENT

The parents of three minor children appeal the termination of their parental rights. The trial court found the Department of Children’s Services established two grounds for termination: 1) severe child abuse pursuant to Tennessee Code Annotated § 36-1-113(g)(4); and 2) persistence of conditions pursuant to Tennessee Code Annotated § 36-1-113(g)(3). In a previous dependency and neglect proceeding, the Franklin County Circuit Court found that Father severely abused the children’s half-sister and that Mother knew of the abuse but did nothing to protect her child. Neither parent appealed that judgment; as a consequence, the severe abuse findings are res judicata. Pursuant to Tennessee Code Annotated § 36-1- 113(g)(4), a court may terminate parental rights when the parent is found to have committed severe child abuse under any prior order of a court against any sibling or half-sibling. The trial court also found that termination of both parents’ rights was in the children’s best interests. We therefore affirm.


EDWARD JOSEPH WARWICK, SR. v. JENKINS, HABENICHT & WOODS, PLLC, ET AL.

Court: TN Court of Appeals

Attorneys:

James D. R. Roberts, Jr. and Janet L. Layman, Nashville, Tennessee, for the appellant, Edward Joseph Warwick, Sr.

David L. Johnson, Nashville, Tennessee, for the appellees, Jenkins, Habenicht & Woods, PLLC, Daniel K. Habenicht, and Rebecca S. Woods.

Judge: SWINEY

Edward Joseph Warwick, Sr. (“Plaintiff”) sued Jenkins, Habenicht & Woods, PLLC, Daniel K. Habenicht, and Rebecca S. Woods (“Defendants”) alleging legal malpractice, among other things. Defendants filed a motion for summary judgment. After a hearing, the Trial Court granted Defendants summary judgment after finding and holding, inter alia, that several of Plaintiff’s claims were completely unsupported by expert testimony and that for the remaining three claims Plaintiff had suffered no harm. Plaintiff appeals to this Court raising an issue about whether the Trial Court erred in granting summary judgment and an issue regarding whether the Trial Court erred in granting Rule 11 sanctions against Plaintiff and his counsel. We find that there are genuine disputed issues of material fact as to one of Plaintiff’s malpractice claims, a claim relative to a stipulation. We reverse the grant of summary judgment as to this claim. We affirm the grant of summary judgment with regard to Plaintiff’s other claims and Defendants’ counterclaim for attorney’s fees. Because we are unable to determine at this stage whether Plaintiff’s complaint completely lacked merit, we vacate the award of Rule 11 sanctions. We also vacate the award of discretionary costs. This case is remanded to the Trial Court for further proceedings.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. EDY CHAVEZ PANTALEON

Court: TN Court of Criminal Appeals

Attorneys:

Emma Rae Tennent (on appeal); and Mary Kathryn Harcombe and Chad Hindman (at trial), Nashville, Tennessee, for the appellant, Edy Chavez Pantaleon.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Kristen Menke and Sharon Reddick, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Edy Chavez Pantaleon, appeals his Davidson County Criminal Court jury convictions of rape of a child and aggravated sexual battery, claiming that the evidence was insufficient to support the convictions. In addition, the defendant argues that the trial court erred by instructing the jury on flight and that the sentence imposed by the trial court is excessive. Upon our review, we affirm the trial court’s judgments.


CHRISTOPHER EVONNE RODRIGUEZ v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Trisha A. Bohlen, Shelbyville, Tennessee, for the Petitioner-Appellant, Christopher Evonne Rodriguez.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Robert Carter, District Attorney General; and Richard A. Cawley, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Christopher Evonne Rodriguez, appeals the Bedford County Circuit Court’s denial of his petition for post-conviction relief from an aggravated burglary conviction. On appeal, the Petitioner contends that trial counsel was ineffective by failing “to raise any defense . . . of a crime spree.” Upon review, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. DANIELLE WHITE

Court: TN Court of Criminal Appeals

Attorneys:

Scott Justice (at motion for a new trial and on appeal); Carl R. Ogle, Jr. (at sentencing hearing, motion for a new trial, and on appeal), Jefferson City, Tennessee; and Greg Eichelman (advisory counsel at trial), District Public Defender, for the Defendant, Danielle White.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and David R. Baker, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Danielle White, was convicted of two counts of aggravated assault, a Class C felony. See T.C.A. § 39-13-102 (2006) (amended 2009, 2010, 2011). She received sentences for each conviction of three years and six months, with four months to be served in jail. The sentences are to be served concurrently. On appeal, she contends that (1) the trial court erred in failing to appoint counsel and in allowing her to represent herself; (2) the trial judge erred in failing to recuse himself, and denying her a fair trial; (3) the grand jury foreman was not selected constitutionally because there was a systematic exclusion based upon gender, race, and ethnicity; (4) the indictment was invalid because no grand jury foreman was appointed; (5) the trial court erred in using a jury selection process that was not in accord with the relevant statute; (6) the trial court erred in denying the motion to suppress; and (7) there was prosecutorial misconduct when the assistant district attorney referred to the Defendant’s invoking her right to counsel. We affirm the judgments of the trial court.


Law Week Begins with Launch Party

Law Week activities kick off tomorrow with the 6th Annual Law Week Launch Party in Memphis' Court Square, from 5 p.m. to 7p.m. Attendees will enjoy free drinks, food by Central BBQ, Lickity Split Ice Cream and music by WALRUS. Attendees are also encouraged to bring a canned good item for the Mid-South Food Bank.


Judge Tests Video Arraignments

Knox County Criminal Court Judge Steven Sword is testing a new video teleconferencing system for suspect arraignments, WBIR reports. In the past, he says it could take weeks just to get the initial hearing with the courts if a suspect is being held in a jail across the state. The new system, which cost about $10,00 in equipment, wiring, and technology upgrades, has been showing benefits, Judge Sword said. "The time that it saves is one thing. But on top of that, if you're not transporting prisoners across the state, think about all the gas money that you're saving," he added. "This is going to save, at a minimum, tens of thousands of dollars."


LMU Considering New Joint Degree Programs with Law School

The new Lincoln Memorial University Center for Leadership and Community Advocacy will focus on conflict resolution and mediation, and was modeled after a similar facility at Pepperdine University in California, LMU president B. James Dawson said Tuesday. The center will offer an educational doctorate in executive leadership, a master’s in education in community agency counseling, a master’s of business administration and a bachelor’s degree in criminal justice. According to Knoxnews, officials hope the new center will bolster its John J. Duncan Law School by offering the joint MBA-law program, attracting more students and boosting job placement for graduates. The law school also is making a second effort to win accreditation from the American Bar Association after being denied approval in 2011.


Stephens Appointed ADA

Matthew P. Stephens has been appointed as an assistant district attorney general for the 23rd Judicial District, the Tennessean reports. He was sworn in Monday by Judge Robert E. Burch and will take on the prosecution of Drug Task Force cases in Cheatham, Dickson, Houston, Humphreys and Stewart counties in his new role. A graduate of the University of Tennessee and the Cumberland School of Law at Samford University, Stephens has prior experience in private practice and with the Davidson County District Attorney’s office.


MTSU Hires Attorney, Former USA Today Editor

Attorney Ken Paulson has been hired to be the new dean for the College of Mass Communications at Middle Tennessee State University, the Daily News Journal reports. Paulson served as USA Today’s top editor from 2004 to 2009, as well as having served as president and chief executive officer of the First Amendment Center at Vanderbilt University and the Newseum in Washington, D.C. “We were impressed by the breadth of Ken’s experience,” MTSU president Sidney McPhee said. “He has led a national news organization, traveled the country with a rock ’n’ roll band to tout the First Amendment and hosted a national television program. His career has touched all of our college’s disciplines.”


Libel Case Against Campfield Dismissed

Circuit Judge John McAfee has dismissed a $750,00 libel lawsuit against Republican Sen. Stacey Campfield for publishing false information online about state House Democratic candidate Roger Byrge in 2008. Campfield wrote that Byrge, who later lost the race to Republican Chad Faulkner by fewer than 400 votes, had multiple drug arrests. Although McAfee acknowledged that Campfield had gotten information wrong on his blog, he agreed with defense attorneys that the lawmaker did not know the information was false when he posted it. "Sometimes you just get beat, and that's just the plain simple truth of the matter," McAfee said. He added: "Politics are politics, and it's a big boys and big girls game. That's just the way it is." Knoxnews has the story.


Review Finds Elections Marred by Mistakes, Violations

Elections in Davidson County in 2012 were “marred by a series of avoidable errors and violations of law” that undermined the credibility of the voting process, according to a draft of a state review obtained by the Tennessean. The mistakes ranged from failing to open up early voting on a Saturday -- a mistake that cost two county election chiefs their jobs in 2010 -- to recruiting a partisan poll watcher from Maury County to operate voting machines at an understaffed polling place on election day. A recent Metro audit of the Davidson County Election Commission’s operations was more positive than the state review, generally giving the commission and its administrator Albert Tieche good marks for both election procedures and financial management.


Lawyer Advertising Comments Reposted

A story in Tuesday's issue of TBA Today reported on the Tennessee Supreme Court's order denying a petition to make changes to rules governing lawyer advertising. The story included a link to comments on the petition, but the listing did not contain all comments. A complete compilation of comments is now available and may be downloaded here.


Beat the Deadline; Make Convention Hotel Reservations Now

The cutoff date to reserve your room at the TBA Convention host hotel Sheraton Nashville Downtown is May 19. Booking a room within the TBA block ensures you will receive the special discounted Tennessee Bar Association rate of $155 when making your room reservations. Booking now also is an important way to support the event and keep overall meeting costs as low as possible.


9 Lawyers Suspended for Fee and IOLTA Violations

The Tennessee Supreme Court this week issued two orders suspending nine Tennessee-licensed attorneys who did not pay their registration fee to the Board of Professional Responsibility and/or did not file a mandatory compliance statement that eligible client funds are held in accounts participating in the Interest on Lawyers' Trust Accounts (IOLTA) program. Lawyers who since have complied with the requirements are noted as reinstated.


11 Reinstated After Administrative Suspension

The Tennessee Supreme Court has reinstated 11 Tennessee-licensed lawyers after they were administratively suspended for failure to meet their 2000, 2011 and 2012 CLE requirements, pay the 2012 professional privilege tax, pay the 2012 inactive licensing fee and file their 2012 annual fee and/or IOLTA report. See the updated lists at the links above.


 
 

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.


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