AG: Employees Violating Company Gun Laws May Be Fired

State Attorney General Robert Cooper has said in an advisory opinion that the new “guns-in-trunks” law does not forbid employers from firing employees who bring a gun onto company parking lots in violation of company policy, the Commercial Appeal reports. The law, which goes into affect July 1, “only decriminalizes the carrying and storage of firearms and firearm ammunition in a permit holder’s privately owned motor vehicles in public and private parking areas” under the circumstances defined in the law but it “does not address and thus has no impact on the employment relationship between an employer and an employee,” the opinion says.

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
05 - TN Court of Appeals
06 - TN Court of Criminal Appeals
01 - 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

BRINGLE FARMS PARTNERSHIP v. STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

Allan Wilson Wages, Millington, Tennessee, for the appellant, Bringle Farms Partnership.

Robert E. Cooper, Attorney General and Reporter, Melissa Ann Brodhag, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: COTTRELL

The claimant has filed a notice of appeal from an Order Denying Claimant’s Motion for En Banc Review entered by the Tennessee Claims Commission on February 26, 2013. Because the claimant did not file its notice of appeal with the clerk of the Claims Commission within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.


STATE OF TENNESSEE EX REL. TONYA DOTSON v. DONALD HOWARD

Court: TN Court of Appeals

Attorneys:

Paul A. Justice, III, Franklin, Tennessee, for the appellant, Donald Howard.

Robert E. Cooper, Jr., Attorney General and Reporter, Warren A. Jasper, Lead Counsel, and Jennifer L. Cole, Nashville, Tennessee, for the appellee, State of Tennessee ex rel. Tonya Dotson.

Judge: CLEMENT

The father of one child appeals the trial court’s finding of ten counts of criminal contempt for failing to pay ten weekly child support payments and the imposition of consecutive sentences of ten days for each count for a total sentence of 100 days in jail. Petitioner introduced little evidence other than proof that the father had not paid child support; the father defended the petition insisting he did not have the ability to pay support. Medical records introduced into evidence, along with the testimony of the father and his optometrist, established that the father suffered from an autoimmune medical condition that substantially impairs his vision and prevents him from working in bright light, including sunlight, and from working in a hot environment. Additionally, the father has a tenth grade education and is a convicted felon, facts which further impair his employability. Considering the evidence in the light most favorable to the prosecution, we are unable to conclude that a trier of fact could have found beyond a reasonable doubt that the father had the ability to pay and that his failure to pay support was willful. Accordingly, his conviction of ten counts of contempt for willfully failing to pay child support is reversed.


BERLINDA LANE, AND EDWARD L. MONTEDONICO, AS CHAPTER 7 TRUSTEE FOR THE ESTATE OF BERLINDA LANE v. JACOB L. DANIEL AND DANIEL J. LUND

Court: TN Court of Appeals

Attorneys:

James E. Bailey, III and R. Campbell Hillyer, Memphis, Tennessee, for the appellants, Edward L. Montedonico, as Chapter 7 Trustee for the Estate of Berlinda Lane.

Christopher L. Richardson, Nashville, Tennessee, for the appellee, Daniel J. Lund.

Dawn Davis Carson, Russell B. Jordan, and Hal S. Spragins, Jr., Memphis, Tennessee, for the appellee, State Farm Mutual Automobile Insurance Company.

Judge: STAFFORD

This case involves the application of the statute of limitations to an intervening personal injury complaint filed by a bankruptcy trustee after the defendants asserted that the original plaintiff, the debtor in the bankruptcy proceeding, lacked standing to bring the claim. Once the bankruptcy trustee became aware of the claim, he filed a motion for intervention, or in the alternative, for substitution pursuant to Rule 17.01 of the Tennessee Rules of Civil Procedure. The trial court granted the trustee’s motion and the trustee later filed an intervening complaint. The trial court, however, later dismissed the case, reasoning that because the first complaint was filed by a party without standing, the original complaint was a nullity. Under this theory, the trial court concluded that the action was commenced upon the filing of the trustee’s intervening complaint, which was undisputedly outside the applicable statute of limitations. Having determined that the plaintiff’s original complaint was not a nullity, we conclude that the trustee’s intervening complaint relates back to the original complaint and, thus, was filed within the applicable statute of limitations. Accordingly, we reverse and remand.


ESTATE OF JOE BOYD MARTIN

Court: TN Court of Appeals

Attorneys:

Michael Ray Jennings, Lebanon, Tennessee, for the appellants, Robert Luther Pettit, Leonard Haven Pettit, David Blaine Pettit, Estate of Joe Boyd Martin.

Michael W. Ferrell, Mt. Juliet, Tennessee, for the appellees, Steven B. Martin, Joseph M. Martin.

Judge: COTTRELL

This case involves a claim first asserted against a decedent’s estate by the decedent’s longtime companion, and then pursued after her death by her heirs The claim was transferred from the probate court to the chancery court and then, by agreed order, to the circuit court for a jury trial. The jury upheld the validity of the claim, and the court entered a judgment on the verdict. The decedent’s heirs then filed post-trial motions contending that the circuit court lacked jurisdiction over the claim. After extensive briefing, the circuit court agreed with those arguments and vacated its own judgment. We reverse the trial court and reinstate its original judgment.


IN RE VICTORIA G. ET AL.

Court: TN Court of Appeals

Attorneys:

Joseph M. Viglione, Knoxville, Tennessee, for the appellant, David G.

Margaret Beebe Held, Knoxville, Tennessee, for the appellee, Paul M.

Michael J. Stanuszek, Knoxville, Tennessee, Guardian ad Litem.

Judge: FRIERSON

This is a termination of parental rights case involving two minor children, Victoria G. and Ethan G. (“the Children”). The Children were born during the marriage of David G. (“Father”) and Rachel M. (“Mother”). When Father and Mother divorced in 2004, Mother was awarded primary custody of the Children. In 2005, Mother suffered a recurrence of cancer. She and the Children subsequently moved in with her sister, Amanda M., and her sister’s husband, Paul M. When Mother died on October 6, 2005, Amanda M. obtained custody of the Children the following day. Father did not seek custody of the Children until April 2006. The parties engaged in protracted litigation, during which Father was allowed varying types of visitation. In September 2010, Father was granted progressively expanding visitation with the Children, designed toward increasing co-parenting in frequency and consistency over time. The visits did not go well, however, and the Children eventually refused to go with Father. The last attempted exchange, occurring on September 9, 2011, resulted in an incident wherein Father was arrested for assault. Father did not seek visitation with the Children after that date. Paul M. filed a petition seeking to terminate Father’s parental rights on January 26, 2012, based upon the statutory ground of abandonment by willful failure to visit and support. Following a bench trial, the trial court granted the petition after finding clear and convincing evidence that Father had willfully failed to visit the Children for at least four months preceding the filing of the petition, and upon determining that termination was in the Children’s best interest. Father appeals. We affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. TYRONE BOHANNA

Court: TN Court of Criminal Appeals

Attorneys:

Joseph S. Ozment, Memphis, Tennessee, for the appellant, Tyrone Bohanna.

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

Judge: SMITH

Appellant, Tyrone Bohanna, was indicted by the Shelby County Grand Jury in a multi-count indictment with co-defendant Brandon Harris in March of 2010. Appellant was indicted for especially aggravated robbery, attempted second degree murder, two counts of employing a firearm during a felony, aggravated burglary, and three counts of aggravated assault. Following a lengthy jury trial, Appellant was convicted of especially aggravated robbery, reckless endangerment as a lesser included offense of attempted second degree murder, one count of employing a firearm during the commission of a felony, and three counts of aggravated assault. Appellant was acquitted of one of the firearms charges. At a separate sentencing hearing, the trial court determined that Appellant was a career offender. As a result, the trial court imposed the maximum sentence for each offense and ordered consecutive sentencing after finding that Appellant had an extensive criminal history and was a dangerous offender. Appellant received a total effective sentence of 120 years, eleven months, and twenty-nine days. Appellant filed a timely motion for new trial which the trial court denied. On appeal, Appellant seeks resolution of the following issues: (1) the sufficiency of the evidence; (2) the admission of evidence pursuant to the forfeiture by wrongdoing provision of Tennessee Rule of Evidence 804(b)(6); (3) the admission of recordings of telephone calls made by Appellant from jail; (4) the determination by the trial court to hold court on Sunday; (5) the denial of Appellant’s motions for mistrial; (6) the admission of the testimony of Donovan Hensley; and (7) the imposition of consecutive sentencing. After a thorough review of the record, we conclude: (1) the evidence was sufficient to support the convictions; (2) the trial court did not abuse its discretion in admitting evidence including Appellant’s telephone calls, hearsay statements of Antonio Hawkins, and testimony from Donovan Hensley; (3) the trial court did not abuse its discretion in denying a mistrial; and (4) the trial court did not abuse its discretion in sentencing Appellant. Accordingly, the judgments of the trial court are affirmed.


JEFFREY BOOTH v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Warren P. Campbell, Memphis, Tennessee, for the appellant, Jeffrey Booth.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy Weirich, District Attorney General; and Lessie Rainey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Jeffrey Booth (“the Petitioner”) was convicted by a jury of two counts of especially aggravated kidnapping, one count of aggravated robbery, and one count of aggravated assault. Pursuant to a sentencing agreement, the trial court sentenced the Petitioner to an effective sentence of twenty years’ incarceration. On appeal, this Court merged the two especially aggravated kidnapping convictions. The Petitioner subsequently filed for postconviction relief, which the post-conviction court denied following an evidentiary hearing. The Petitioner now appeals, arguing that the post-conviction court should have applied State v. White, 362 S.W.3d 559 (Tenn. 2012), retroactively. He also contends that he received ineffective assistance of counsel. Upon our thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.


BOBBY GLEN CROCKER v. STATE OF TENNESSEE
With concurring opinion.

Court: TN Court of Criminal Appeals

Attorneys:

J. Neil Thompson, Huntingdon, Tennessee, for the appellant, Bobby Glen Crocker.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Hansel Jay McCadams, District Attorney General; and R. Adam Jowers, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner challenges the Carroll County Circuit Court’s dismissal of his petition for post-conviction relief from his conviction of second degree murder and resulting thirty-year sentence. On appeal, the Petitioner contends that the post-conviction court erred by dismissing the petition as time-barred because his mental incompetence tolled the one-year statute of limitations for filing the petition. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. NATHANAEL LITTLE
With dissenting opinion.

Court: TN Court of Criminal Appeals

Attorneys:

Ryan B. Feeney, Selmer, Tennessee, for the appellant, Nathanael Little.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

A Chester County jury convicted appellant, Nathanael Little, on count 1 for selling more than one-half ounce of marijuana, a Class E felony; on count 2 for delivering more than one-half ounce of marijuana, a Class E felony; on count 3 for possession of more than one-half ounce of marijuana with intent to sell, a Class E felony; on count 4 for possession of more than onehalf ounce of marijuana with intent to deliver, a Class E felony; and on count 5 for possession of drug paraphernalia with intent to use, a Class A misdemeanor. After appropriately merging some of the counts, the trial court sentenced appellant to an effective sentence of two years, eleven months, and twenty-nine days for two Class E felonies and one Class A misdemeanor. On appeal, appellant argues that the trial court erred by failing to rule on his motion to suppress and by improperly sentencing him. Upon review, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. ANDREW REGINALD MACKINNON

Court: TN Court of Criminal Appeals

Attorneys:

Bryan E. Delius (on appeal) and Bryce W. McKenzie (at trial and remand hearing), Sevierville, Tennessee, for the Appellant, Andrew Reginald Mackinnon.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; James Bruce Dunn, District Attorney General; and Greg Eshbaugh, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

In 2007, a Sevier County jury convicted the Defendant, Andrew Reginald Mackinnon, of violating the implied consent law. The Defendant appealed, and this Court vacated the judgment, remanding the case for the trial court to determine whether the Defendant violated the implied consent law. State v. Andrew Reginald MacKinnon, No. E2009-00093-CCA-R3- CD, 2011 WL 1460167 (Tenn. Crim. App., at Knoxville, Mar. 30, 2011), no Tenn. R. App. P. 11 application filed. On remand, the Defendant filed a motion to dismiss and a motion to suppress, both of which the trial court denied after a hearing. After a non-jury trial, the trial court determined that the Defendant had violated the implied consent law. The trial court ordered the Defendant’s license be revoked for a period of one year. On appeal, the Defendant contends that the trial court erred when it: (1) denied his motion to dismiss; and (2) denied his motion to suppress. After a thorough review of the record, the briefs, and relevant authorities, we affirm the trial court’s judgment.


ROBERT OTIS SIMERLY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

C. Brad Sproles, Kingsport, Tennesssee, for the Appellant, Robert Otis Simerly.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Tony Clark, District Attorney General; and Ken Baldwin, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

In 2004, a Johnson County jury convicted the Petitioner, Robert Otis Simerly, of first degree felony murder, and the jury sentenced him to life in prison with the possibility of parole. This Court affirmed his conviction on appeal. State v. Robert Simerly, No. E2002-02626- CCA-R3-CD, 2004 WL 443294, at *1 (Tenn. Crim. App., at Knoxville, Mar 11, 2004), perm. app. denied (Tenn. Oct. 4, 2004). The Petitioner filed a petition for post-conviction relief and a motion for recusal, which the post-conviction court denied after a hearing. On appeal, the Petitioner contends that the post-conviction court erred when it denied the Petitioner’s motion for recusal because, during the trial, the judge improperly reminded the prosecutor to establish venue. The State counters first that the appeal was untimely filed. The State further avers that the Petitioner is not entitled to relief based upon the trial court’s failure to recuse itself. After a thorough review of the record and applicable authorities, we conclude that, pursuant to the circumstances of this case, the Petitioner’s petition should not be dismissed based on his failure to timely file a notice of appeal. We further conclude that he is not entitled to post-conviction relief based upon the merits of his claim. The postconviction court’s judgment is, therefore, affirmed.


TN Attorney General Opinions

Employee’s Possession of Firearms and Firearm Ammunition on Employer Property

Court: TN Attorney General Opinions

Date: 2013-05-28

Opinion Number: 41


Baumgartner Reports to Federal Prison

Former Knox County Criminal Court judge Richard Baumgartner is now in federal custody to begin serving his six month sentence at a medium-security prison in West Virginia, WATE reports. His lawyer has filed an appeal of the ruling.


Pilot Flying J Execs Enter Guilty Plea

Two Pilot Flying J executives -- Arnold Ralenkotter, and Ashley Smith Judd -- have pleaded guilty to engaging in a scheme to reduce promised rebates to truckers across the country, the Tennessean reports. Employed by Pilot for more than 10 years, Ralenkotter admitted in the plea agreement to reducing promised rebates to truckers and attending training for staffers on how to do the same to other Pilot customers. Judd also participated in the scheme, which ran from 2008 to 2013, “so that Pilot could create and maintain the materially false pretense that those customers were in fact receiving their agreed upon diesel price discount,” according to the seven-page court document outlining the charges. Pilot CEO James A. Haslam has publicly denied any knowledge of the rebate scheme and has promised to repay trucker with 10 percent interest for any money owed.


Federal Public Defenders Facing More Furlough Days

The Executive Committee of the Judicial Conference announced in mid-April that federal defenders wouldn’t face more than 15 furlough days under mandatory budget cuts. Now, less than one month later, public defenders have been notified that the maximum furlough time has increased to 20 days. According to a May 10 memorandum sent by Chief Judge William Traxler Jr., chairman of the Executive Committee of the Judicial Conference of the United States, the committee reconsidered its April decision after getting new information on how defender offices were coping with the cuts, also known as sequestration. The Blog of the Legal Times has the story. 


Haslam Appoints Interim Finance Commissioner

Gov. Bill Haslam announced yesterday Larry Martin will become the interim commissioner of the state Department of Finance and Administration when Commissioner Mark Emkes retires effective May 31. Martin "has been critically important in helping us establish the systems and organizational structure to begin recruiting, attracting and retaining the best and brightest to serve in state government," Haslam said, "and I look forward to continuing to work with him as interim commissioner of F&A.” The Chattanoogan has the story.


County Ramps up Collection of Unpaid Fines

The Obion County Budget Committee approved Circuit Court Clerk Harry Johnson’s request for the addition of a collection person to the court’s staff for a trial period of one year, NWTN Today reports. The increased focus comes on the heels of what Circuit Judge William B. Acree called an “unfortunate” situation -- the alleged misappropriation of funds and subsequent dismissal of a Westate probation officer who worked part-time with Drug Court.


Chattanooga and Atlanta Firms Merge

Chattanooga-based law firm Hazlett, Lewis & Bieter PLLC will merge with Mauldin and Jenkins LLC in Atlanta, managing partner Donnie Luker announced. The Chattanoogan has the story.


Senate Confirms Obama’s 1st Nominee to D.C. Appeals Court

The U.S. Senate last week voted unanimously to confirm Sri Srinivasan to the U.S. Court of Appeals for the District of Columbia Circuit, WRCB reports. Srinivasan is the first nominee on a key appeals court appointed by President Barack Obama to be approved in five years. In a statement, Obama praised the Senate's approval of Srinivasan, whom he called a "trailblazer who personifies the best of America." But like Senate Democrats, he also poked Republicans for what he said was the slow approval of his judicial nominations.


DesJarlais Fined for Inappropriate Interaction with Patients

U.S. Rep. Scott DesJarlais has been fined $500 by the state’s top medical disciplinary panel for sexual relationships with two female patients, the Chattanooga Times Free Press reports. The congressman must pay the $500 fine -- $250 per patient, according to the order -- within 60 days. Documents also show he's responsible for up to $1,000 in costs for the state's investigation. In an interview with the Tennessean, DesJarlais stated, "I take responsibility for past mistakes and am happy to get this resolved."


Key Court Decisions Expected in Next Month

Between now until the end of June, the U.S. Supreme Court is expected to rule on hot button issues including affirmative action in college admissions, same sex marriage, and gene patenting. View the video at WCYB.


Saltsman Joins Carr Campaign

Chip Saltsman, a former Tennessee Republican Party chairman and manager of former Arkansas Gov. Mike Huckabee’s presidential campaign, has joined state Rep. Joe Carr’s congressional bid as its campaign director, the Tennessean reports. Saltsman, who also managed U.S. Rep. Chuck Fleischmann’s campaigns in 2010 and 2012, will “manage all facets” of the Lascassas Republican’s 4th Congressional District campaign, a spokesman said.


AWA Golf Tournament June 7

The Association of Women Attorneys will host its second annual golf tournament benefiting the AWA Scholarship Fund on June 7 with a shotgun start at 1 p.m. at Mirimichi Championship Course in Millington. Registration is $150 per player, which includes scramble entry, prizes and lunch. For non-golfers, environmental tours will provide a unique opportunity to learn about the course’s Audubon International Classic Sanctuary and Golf Environmental Organization certifications. Tours are $20 per person. For more information and registration, contact Jennifer Himes at (901) 529-3009 or jennifer.himes@huschblackwell.com. Download the event flyer


Contribution Information for Memphis Lawyer

In lieu of flowers, tax deductible contributions may be made to the Camp DeSoto Scholarship Fund in memory of Memphis lawyer Elizabeth Collins, who died last Thursday (May 23) at the age of 50. Checks should be made out to "ACA Camper Scholarship Program" with "Camp DeSoto-Collins" written on the lower left corner of the check. Mail to Camp DeSoto, P.O. Box 432, Mentone, AL 35984.


 
 

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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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