Editorial: Legislature Must Fix Mess it Made

The surprise announcement that Court of Criminal Appeals Judge Joseph M. Tipton and Court of Appeals Judge Patricia J. Cottrell will step down next year highlights the legislature’s failure to extend the life of the Judicial Nominating Commission beyond June 30, leaving commissioners scrambling to nominate replacements. In an editorial detailing the problems now facing the judicial branch, the Knoxville News Sentinel editorial board tasks the legislature next year with fixing the mess it made.

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.

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00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
08 - TN Court of Appeals
09 - 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

JALAL BACHOUR v. DEVIN MASON, ET AL.

Court: TN Court of Appeals

Attorneys:

Angello Lin Huong, Lebanon, Tennessee, for the appellant, Jalal Bachour.

Jay Jackson, Murfreesboro, Tennessee; Johnathon Clyde Hershman, Woodbury, Tennessee, for the appellees, Devin Mason, Craig Mears and Mason & Mears Properties.

Judge: COTTRELL

This case arose from two contracts between the same parties for the sale of commercial property. A provision in the second contract that was not included in the first provided that the buyer would retain $75,000 of the contract price if an access road to the property was not completed by a certain date. Completion was defined as occurring “upon the dedication and turning the streets over to the town of Woodbury and/or Cannon County, Tennessee.” The buyer subsequently filed a petition for declaratory judgment, asking the court to find that completion had not occurred and that he was therefore entitled to keep the $75,000. The trial court ruled against the buyer, holding that he was obligated to pay the full contract price to the sellers. We affirm the result reached by the trial court because we find that the $75,000 clause was not a valid liquidated clause provision, but rather a penalty.


IN RE COURTNEY N.

Court: TN Court of Appeals

Attorneys:

Charles J. London, Johnson City, Tennessee, for the appellant, Tina K.

Janie Lindamood, Johnson City, Tennessee, Guardian ad Litem for Courtney N.

Judge: SUSANO

Tina K. (“Mother”) appeals an order terminating her parental rights to her daughter, Courtney N. (“the Child”), now age 12. The Child and her older sister, Tiffany N. (“Sister”) (collectively “the Children”) were placed in the protective custody of petitioners, Raymond and Charlene W., (“Uncle and Aunt”). They were subsequently adjudicated dependent and neglected in Mother’s care. In January 2012, Uncle and Aunt, together with Janie Lindamood, the Child’s court-appointed guardian ad litem, (collectively “Petitioners”), filed a petition seeking to terminate Mother’s parental rights. Following a bench trial, the court granted the petition after finding that multiple grounds for termination exist and that termination is in the Child’s best interest. The court stated that it made both findings by clear and convincing evidence. Mother appeals each of these determinations. We vacate the finding of abandonment based on conduct exhibiting a wanton disregard for the Child’s welfare as such ground is not implicated by the facts of this case. In all other respects, the judgment is affirmed.

STEVE E. DOWLEN v. LUANA A. DOWLEN

Court: TN Court of Appeals

Attorneys:

Kimberly Lane Reed Bracey, Goodlettsville, Tennessee, for the appellant, Steve E. Dowlen.

Gregory D. Smith, Clarksville, Tennessee; Charlotte Ann Fleming, Springfield, Tennessee, for the appellee, Luana A. Dowlen.

Judge: COTTRELL

Mother and Father were divorced in 2010, and Father filed a petition for modification of the parenting plan seven months later in an effort to reduce Mother’s parenting time. The trial court determined Father did not show a material change of circumstances and denied Father’s petition. Father appealed, alleging the trial court erred in four different ways: (1) concluding Father had not proved a material change of circumstances; (2) precluding Father from introducing evidence of Mother’s mental health prior to the divorce; (3) allowing the parenting plan to stay intact such that Mother is able to return to court to prove her mental stability and seek an increase in her parenting time; and (4) not awarding Father his attorney’s fees. We affirm the trial court’s judgment in all respects.


PAULA JEAN HOLLEY v. JAMES FRANKLIN HOLLEY, III

Court: TN Court of Appeals

Attorneys:

Laura Jane Webb, Maryville, Tennessee, for the appellant, James Franklin Holley, III.

Margaret Beebe Held, Knoxville, Tennessee, for the appellee, Paula Jean Holley.

Judge: HOLLEY

The issue in this appeal is whether the circuit court that had granted the divorce lost subject matter jurisdiction to hear a later petition for change of custody. James Franklin Holley, III (“Father”) and Paula Jean Holley (“Mother”) were divorced in the Fourth Circuit Court for Knox County (“the Trial Court”). Mother was given primary custody of the parties’ two minor children (“the Children”), with Father having co-parenting time. Later, Father filed a petition (“the Petition”) to change custody based on Mother’s alleged neglect of the Children’s psychological and educational issues. The Trial Court held that it lacked jurisdiction to hear the Petition as juvenile court has exclusive jurisdiction to hear petitions alleging dependency and neglect. Father appeals. We hold that the Petition did not allege under the relevant statutes that the Children were dependent and neglected and, therefore, the Trial Court did have jurisdiction to hear the Petition. We reverse the judgment of the Trial Court.


GINGER JACKSON v. GURSHEEL S. DHILLON ET AL.

Court: TN Court of Appeals

Attorneys:

Ginger Jackson, Manchester, Tennessee, Pro Se.

Gursheel S. Dhillon, Estill Springs, Tennessee, Pro Se.

Judge: BENNETT

The plaintiff appeals arguing that the trial court erred in setting aside a default judgment and dismissing all claims under the doctrine of res judicata. Based upon the record on appeal, we find no error and affirm the decision of the trial court.


MOUNTAIN COMMERCE BANK V. FIRST STATE FINANCIAL, INC.

Court: TN Court of Appeals

Attorneys:

D. Michael Tranum, Johnson City, Tennessee, for the appellant, Mountain Commerce Bank.

J. Thomas Jones, Knoxville, Tennessee, for the appellee, First State Financial, Incorporated.

Judge: MCCLARTY

This appeal involves two letters of credit issued by First State to Commerce Bank for the benefit of Debtor, who subsequently defaulted on two loans that were secured by the letters. Commerce Bank issued a sight draft requesting full payment, but First State submitted partial payment. Commerce Bank filed suit. Following a hearing, the trial court held that First State was obligated to fulfill each letter of credit in its entirety. The court granted Commerce Bank’s request for attorney fees but denied the request for pre-judgment interest. First State and Commerce Bank appeal. We affirm the decision of the trial court.


GEORGE SMITH v. GENERAL TIRE AND EMILY ALEXANDER

Court: TN Court of Appeals

Attorneys:

Herbert Schaltegger, Thomas R. Lewis, Nashville, Tennessee, for the appellant, George Smith.

W. Bryan Brooks, Alisha M. Toll, Benjamin J. Miller, Nashville, Tennessee, for the appellees, General Tire and Emily Alexander.

Judge: COTTRELL

A man who was injured in a head-on collision filed suit against the woman driving the car that hit him and the company that owned the car. The defendants filed a motion for summary judgment, accompanied by affidavits indicating that the woman unexpectedly blacked out just prior to the collision, probably as a result of her diabetic condition. After examining the affidavits of medical experts for both the plaintiff and the defendants, the trial court granted summary judgment to the defendants, holding that the driver’s loss of consciousness was unforeseeable. The plaintiff appeals the summary judgment. We affirm the trial court.


SUSAN MOORE TAYLOR v. JOHN THOMAS TAYLOR

Court: TN Court of Appeals

Attorneys:

Patricia A. Rust, Clarksville, Tennessee, for the appellant, John Thomas Taylor.

Susan Moore Taylor, Clarksville, Tennessee, Pro Se.

Judge: CLEMENT

Husband appeals the trial court’s determination that the parties’ residence was marital property; he also appeals the division of the marital property. Finding no error, we affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. MANSOUR BIN EL AMIN

Court: TN Court of Criminal Appeals

Attorneys:

James Roberts Potter, Clarksville, Tennessee, for the Defendant, Mansour Bin El Amin.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Owsley Young, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Mansour Bin El Amin, appeals from his conviction by a Montgomery County Circuit Court jury for theft of property valued at more than $1000, a Class D felony. See T.C.A. § 39-14-103 (2010). The trial court sentenced the Defendant as a Range II, multiple offender to seven years, six months’ confinement. The Defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. FRANK GRAHAM

Court: TN Court of Criminal Appeals

Attorneys:

Paul J. Springer and Edward Bronsten, Memphis, Tennessee, for the appellant, Frank Graham.

Robert E. Cooper, Jr., Attorney General & Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Jennifer Nichols and Patience Branham, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

A jury convicted the defendant, Frank Graham, of the first degree premeditated murder of his ex-fiancee, Taffi Crawford. The defendant received a life sentence. On appeal, the defendant contests the sufficiency of the evidence establishing premeditation. He also asserts that the trial court erred in refusing to suppress the statement he gave police, in which he acknowledged having accidentally shot the victim. The defendant asserts that he was arrested without probable cause and that his waiver of rights was not valid because police did not inform him about the presence of an attorney who had been contacted by his family to represent him. The defendant also appeals on the ground that the trial court erred in allowing certain testimony regarding prior bad acts. After a thorough review of the record, we conclude that the trial court did not err, and we affirm the judgments of the trial court.


STATE OF TENNESSEE v. MARQUON LANORRIS GREEN

Court: TN Court of Criminal Appeals

Attorneys:

George Morton Googe, District Public Defender; Jeremy B. Epperson (on appeal) and Susan D. Korsnes (at trial), Assistant Public Defenders, for the appellant, Marquon Lanorris Green.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; James G. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Marquon Lanorris Green, was convicted by a Madison County Circuit Court jury of aggravated kidnapping, a Class B felony; aggravated rape, a Class A felony; and aggravated robbery, a Class B felony. He was sentenced to twenty years on the aggravated kidnapping and aggravated rape convictions and ten years on the aggravated robbery conviction, to be served consecutively to each other and a prior ten-year sentence. On appeal, the defendant challenges the sufficiency of the convicting evidence and the trial court’s imposition of consecutive sentences. After review, we affirm the judgments of the trial court.


BOBBY JACKSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

James A. Greene, Memphis, Tennessee, for the appellant, Bobby Jackson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy P. Weirich, District Attorney General; and Lessie Rainey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Bobby Jackson, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of trial counsel at trial. Following our review, we affirm the post-conviction court’s denial of the petition.


STATE OF TENNESSEE v. LAMONT JOHNSON

Court: TN Court of Criminal Appeals

Attorneys:

Tom W. Crider, District Public Defender, and Linda Moore, Assistant Public Defender, for the appellant, Lamont Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Gary Brown, District Attorney General; and Hillary Lawler Barham and Jason Scott, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

After a trial by jury, the defendant was found guilty of the first degree felony murder of his girlfriend’s five-month-old daughter. On appeal, the defendant claims that the trial court’s decision to exclude the testimony of four potential witnesses concerning the defendant’s son’s propensity toward violence violated his constitutional right to present a defense. After reviewing the record, we conclude that the defendant has failed to establish that the testimony of these four witnesses was critical to the defense. In addition, strong societal interests support the exclusion of this type of character evidence when nothing in the record might suggest that the defendant’s son actually committed the crime. Consequently, the trial court’s decision to exclude the testimony of these witnesses did not violate the defendant’s constitutional right to present a defense. The judgment of the trial court is affirmed.


CARLOS KENNEDY V. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

G.W. Sherrod, III, Henderson, Tennessee, for the appellant, Carlos Kennedy.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; James G. Woodall, District Attorney General; and Brian M. Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Carlos Kennedy, appeals the denial of his petition for post-conviction relief. The petitioner is currently serving an effective sentence of thirty-five years in the Department of Correction following his convictions for rape of a child, attempted rape of a child, assault, and coercion of a witness. On appeal, he contends that the post-conviction court erred in denying him relief because he was denied his right to the effective assistance of counsel at trial. Specifically, he contends that trial counsels were ineffective by: (1) failing to consider moving for a change of venue; (2) failing to interview all fact witnesses; (3) failing to file important pre-trial motions; and (4) failing to utilize an expert witness. Following review of the record, we discern no error and affirm the denial of the petition.


STATE OF TENNESSEE v. SEAN M. LEIFER

Court: TN Court of Criminal Appeals

Attorneys:

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Sean M. Leifer.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; D. Michael Dunavant, District Attorney General; and Walt Freeland and Lisa Borden, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Sean M. Leifer, was indicted for first degree felony murder and aggravated child abuse. A jury convicted him of reckless homicide and aggravated child abuse, and the trial court imposed concurrent sentences of four years and sixteen years, respectively. Appellant now challenges the sufficiency of the convicting evidence and the trial court’s rulings with regard to the State’s expert witness. Following our review, we affirm the judgments of the trial court.


STATE OF TENNESSEE V. KEITH ALLEN POWELL

Court: TN Court of Criminal Appeals

Attorneys:

Roger E. Nell, District Public Defender; and Timothy J. Richter, Assistant Public Defender, Springfield, Tennessee, for the appellant, Keith Allen Powell.

Robert E. Cooper, Jr., Attorney General & Reporter; Meredith DeVault, Senior Counsel; John W. Carney, District Attorney General; and Jason White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Keith Allen Powell (“the Defendant”) pleaded guilty to two counts of theft of property over $1,000, Class D felonies, and one count of simple possession of Lortab and Soma pills, a Class A misdemeanor. The plea agreement provided that the Defendant would serve concurrent sentences for the two theft convictions but otherwise left sentencing for all the convictions open to the trial court. At the time of sentencing, the Defendant also had a community corrections violation for an additional conviction of theft of property over $1,000. Following the sentencing hearing, the trial court sentenced the Defendant to an effective sentence of four years’ incarceration. The Defendant has appealed the trial court’s sentence, asserting that the trial court erred in requiring the Defendant to serve his sentence in confinement. Upon a thorough review of the record, we affirm the trial court’s judgments.


JONATHAN PULLEY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

A. Russell Larson, Jackson, Tennessee, for the appellant, Jonathan Pulley.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Mike Bottoms, District Attorney General; and Doug Dicus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Jonathan Pulley, appeals the denial of his petition for post-conviction relief from his Wayne County Circuit Court convictions of aggravated sexual battery and assault, claiming that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm the order of the Circuit Court.


'Guns in Trunks' Article Updated After AG Opinion Issued

In the new Tennessee Bar Journal, Edward G. Philips and Brandon L. Morrow write about the recent "guns in trunks" law. However, after the article went to print, Tennessee Attorney General Bob Cooper issued an opinion on what limitations, if any, 2013 Tenn. Pub. Acts, Chapter 16, places on employers’ rights to terminate an employee who brings a firearm or firearm ammunition onto the employer’s property. In the opinion, Cooper says the law does not impact the employer/employee relationship ”and does not prohibit an employer from terminating an employee for possession of a firearm or ammunition on the employer’s property. This opinion, Phillips and Morrow say, would have significantly, but not completely, altered the article. "Our advice to employers," they write in an updated electronic version of the article, "would be to tread lightly in this area, or risk being a test case for a terminated permit carrier. In the end, the Tennessee appellate courts will have to decide."


Appeals Court Rules Notice OK for Mosque Project

An appeals court ruled this week that the Rutherford County Regional Planning Commission provided proper public notice before approving construction plans for the Islamic Center of Murfreesboro mosque in 2010, the Tennessean reports. The appeals court reversed Chancellor Robert Corlew III’s decision that the county’s public notice in The Murfreesboro Post about the meeting time, date and location without an agenda, didn’t reach enough people before planning commissioners approved the mosque plans. The plaintiffs’ attorney Joe Brandon said Thursday that the Tennessee Supreme Court will be asked to reverse the ruling.


Western District Proposes Local Rules Revision

The U.S. District Court for the Western District of Tennessee has revised the local court rules and local patent rules. This revision has been drafted for adoption by the court. The proposed changes are available for review and public comment for a 30-day period beginning June 1. View the rule amendments here


UT Near Top of Most Efficient Law School List

The U.S. News and Word Reports data team complied a list ranking American law schools only by efficiency, the JD Journal reports. According to the team, the less a law school spends per student relative to their own ranking determines their efficiency. The University of Tennessee, ranked 61 on the overall U.S News law schools list, cracks the top 10 at number eight.


Survey Finds Paralegal Pay Increasing

The recently released ALM/PMA Annual Compensation Survey for Paralegals and Managers finds that pay for paralegals has increased by three percent even as law firms' charge for paralegal services dropped five percent. Of the nearly 300 law firms and legal departments surveyed, about 86 percent reported pay increases. The ABA Journal has the story.


Opinion: Lawyers Do Good Work

In an opinion piece for the Millington Star, injury lawyer David Peel states that despite the besmirched images of lawyers in unseemly television ads, lawyers have done -- and still do -- good work. In particular, Peel (a self-professed “dog-lover”) recalls attorney and politician George Graham Vest, who is best known for his “a man’s best friend” closing arguments during a trial in which he represented a family that owned a dog who was killed. Vest won his case and Peel concludes that the verdict still resonates some 144 years later. 


Court Honors Retiring Budget Office Director

All five members of the Tennessee Supreme Court and Administrative Office of the Courts staff held a luncheon in honor of retiring state Budget Office director Bill Bradley. Bradley headed the division for 14 years and has worked for the state for 39 years.


Nashville School of Law to Host Recognition Dinner

The Nashville School of Law will host the 20th Annual Recognition Dinner to pay tribute to three local leaders who share a commitment to justice, dedication to legal education and a lifelong passion for service. The event will be held next Friday, June 7, at the Renaissance Hotel in Nashville. Cocktails will be served at 5:30 p.m. with dinner and remarks following at 7 p.m. Tickets are $125 per person.


Free Legal Clinics Held in Murfreesboro

The Rutherford/Cannon County Bar Association hosts a free legal clinic at Greenhouse Ministries in Murfreesboro every Thursday at 3:30 p.m. The clinic is open to the public. The Legal Aid Society, in partnership with Higher Ground Worship Center, also offers clinics on every third Saturday of the month (excluding July and December). For more information about these clinics, contact Andrae Crismon at (615) 890-0905 acrismon@las.org.


 
 

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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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