New Laws, Awareness Bring Accountability to Conservatorships

In Nashville this past week, court-appointed conservator Paul Gontarek recommended a criminal investigation be undertaken of his predecessor, now-suspended attorney John E. Clemmons. Gontarek, who replaced Clemmons in four cases, has completed a review of the cases and reports that Clemmons routinely submitted accounting reports that omitted payments made to himself, including more than $370,000 in one case. A review by The Tennessean suggests that the total misappropriated could exceed $1 million. The district attorney's office said it was reviewing the report.

Meanwhile, the head of one of Chattanooga's most distinguished families admitted last week that he drained the accounts and mortgaged the home of his mentally ill sister. The event underscores statistics that exploitation of the elderly and disabled frequently occurs at the hands of those closest to them, The Times Free reports. The paper cites a 2009 study by the National Center on Elder Abuse, which found that family members commit 90 percent of all elder abuse and 34 percent of financial abuse. TBA Executive Director Allan Ramsaur, interviewed for the story, talks about the association’s success in updating state law and helping judges stay informed about conservator issues.

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
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
05 - 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









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TN Supreme Court

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TN Supreme Court


TN Court of Appeals

GREGORY ANDERSON d/b/a ABC PAINTING COMPANY v. THE METROPOLITAN DEVELOPMENT AND HOUSING AGENCY

Court: TN Court of Appeals

Attorneys:

Phillip Leon Davidson, Nashville, Tennessee, for the appellant, Gregory Anderson d/b/a ABC Painting Company.

Harold Frederick Humbracht, Jr., Nashville, Tennessee, for the appellee, The Metropolitan Development and Housing Agency.

Judge: COTTRELL

A painting contractor filed a complaint against Nashville’s Metropolitan Housing and Development Agency (MDHA) alleging that the agency had violated its own rules by failing to choose him as the lowest bidder on a painting contract. The trial court dismissed the complaint, holding that it lacked subject matter jurisdiction because an administrative decision, such as the award of a painting contract, can only be challenged through a petition for writ of certiorari, and the contractor had filed his complaint after the sixty day time limit for filing the writ had passed. See Tenn. Code Ann. § 27-9-102. We affirm.


JASON COOPER, ET AL. v. ROBERT LEDFORD FUNERAL HOME, INC., ET AL.

Court: TN Court of Appeals

Attorneys:

Richard M. Currie, Jr., Kingsport, Tennessee, for the appellant, Robert Ledford Funeral Home, Inc.

B. Andrew Glenn, Gate City, Virginia, for the appellees, Jason Cooper individually and on behalf of his daughter Brooke Cooper, and Sylvia Renfroe.

Judge: SWINEY

We granted Robert Ledford Funeral Home, Inc.’s (“the Funeral Home”) application for extraordinary appeal pursuant to Tenn. R. App. P. 10 to consider the issue of whether the Funeral Home was entitled to summary judgment as a matter of law if the undisputed material facts demonstrate that its “on call” employee, Johnny Tipton, was not acting within the course and scope of his employment with the Funeral Home when the vehicle accident causing injuries to the plaintiffs occurred. We find and hold that the undisputed material facts demonstrate that Mr. Tipton was not acting within the course and scope of his employment with the Funeral Home, and that the Funeral Home is entitled to summary judgment as a matter of law.


IN THE MATTER OF FAITH A. F.

Court: TN Court of Appeals

Attorneys:

Thomas H. Miller, Nashville, Tennessee, for the Appellant, Blaine A. F.

Debra L. Dishmon, Lebanon, Tennessee, for the Appellee, Amy F. P.

Elizabeth Lee Luongo Youmans, Lebanon, Tennessee, as guardian ad litem.

Judge: DINKINS

Father in child custody and support proceeding appeals the trial court’s findings: (1) that he was in criminal contempt of court; (2) that he was in civil contempt of court and setting the amount necessary to purge himself of contempt; (3) in suspending his parenting time; (4) modifying his child support obligation; and (5) ordering him to pay Mother’s attorney fees. We have determined that the finding of criminal contempt, the order modifying his child support obligation, and the order that Father pay Mother’s attorney fees should be vacated and the case remanded for further proceedings in connection therewith. In all other respects we affirm the trial court’s judgment.


JOSEPH H. JOHNSTON v. MARILYN SWING ET AL.

Court: TN Court of Appeals

Attorneys:

Joseph H. Johnston, Nashville, Tennessee, Pro Se.

Lora Barkenbus Fox and Emily Herring Lamb, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County.

Judge: CLEMENT

The plaintiff, an attorney representing himself, filed this action against the Metropolitan Government of Nashville and Davidson County, the Metro Clerk in her official capacity, and the Director of the Metro Department of Parks and Recreation Services in his official capacity. He asserts a 42 U.S.C. § 1983 claim that arises from him being prohibited from speaking on behalf of his clients at two separate meetings of the Board of the Metro Department of Parks and Recreation, because he failed to give timely notice to the Board. He alleges the defendants deprived him of his rights under the Fourteenth Amendment to the United States Constitution and Article I, section 8 of the Tennessee constitution and seeks nominal damages for the alleged deprivation of his rights. He also seeks a declaratory judgment that the Parks’ Board rule requiring fourteen days’ notice to be heard at a Board meeting is invalid. We have determined, as the trial court did, that the plaintiff’s claims related to the first Board meeting are time-barred. As for the claims related to the second Board meeting, we have determined that the plaintiff’s rights were not violated because the plaintiff had actual notice of the Board policy requiring fourteen days’ notice well in advance of the second meeting. Finally, we have determined the plaintiff is not entitled to a declaratory judgment because he failed to demonstrate that he is seeking to vindicate an existing right under presently existing facts. The trial court summarily dismissed the claims. We affirm.


ANDREW SPENCER v. NORFOLK SOUTHERN RAILWAY COMPANY

Court: TN Court of Appeals

Attorneys:

John A. Moss and John D. Steel, Admitted Pro Hac Vice, Atlanta, Georgia, and Michael E. Richardson, Chattanooga, Tennessee, for the appellant, Andrew Spencer.

Craig R. Allen and Benjamin T. Reese, Chattanooga, Tennessee, for the appellee, Norfolk Southern Railway Company.

Judge: SWINEY

Andrew Spencer (“Plaintiff”) sued Norfolk Southern Railway Company (“Railroad”) for negligence under the Federal Employers’ Liability Act. After a jury trial, the Trial Court entered judgment on the jury’s verdict finding and holding, inter alia, that the Railroad was not at fault for Plaintiff’s injury. Plaintiff appeals raising an issue regarding jury instructions concerning foreseeability and notice. We find that the jury instruction regarding foreseeability and notice was misleading, and we vacate and remand for a new trial.


TN Court of Criminal Appeals

MICHAEL GIBBS, JR. v. STATE OF TENNESSEE, ET AL.

Court: TN Court of Criminal Appeals

Attorneys:

Michael Gibbs, Jr., Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Attorney General and Reporter; John H. Bledsoe, Senior Counsel, for the appellee, State of Tennessee.

Judge: PAGE

Petitioner, Michael Gibbs, Jr., filed a petition for writ of habeas corpus in the Morgan County Circuit Court, claiming that his sentence was expired and that he was being illegally restrained. The State filed a motion to dismiss on the grounds that petitioner failed to comply with the statutory requirements governing petitions for writ of habeas corpus. The habeas corpus court granted the State’s motion and summarily dismissed the petition. Following our review, we affirm the judgment of the habeas corpus court.


STATE OF TENNESSEE v. JODY CANDACE SEAMAN

Court: TN Court of Criminal Appeals

Attorneys:

Gregory D. Gookin, Jackson, Tennessee, for the appellant, Jody Candace Seaman.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Anna Banks Cash, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Jody Candace Seaman, pleaded guilty to identity theft, a Class D felony, second offense driving under the influence (DUI), a Class A misdemeanor, and fifth offense driving on a revoked license, a Class A misdemeanor. See T.C.A. §§ 39-14-150 (2010), 55- 10-401 (2012), 55-50-504 (2012). The trial court sentenced her as a Range I, standard offender to four years for identity theft, eleven months, twenty-nine days for second offense DUI, and eleven months, twenty-nine days for fifth offense driving on a revoked license. The court ordered partial consecutive sentences, for an effective sentence of four years, eleven months, and twenty-nine days. On appeal, she contends that the trial court erred by ordering consecutive sentences. We affirm the judgments of the trial court.


SHERRY SULFRIDGE V. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Sherry Sulfridge, Nashville, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Lori Phillips-Jones, District Attorney General; and Jared Effler, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Sherry Sulfridge, appeals the summary dismissal of her petition for post-conviction relief as untimely. The petitioner pled guilty to aggravated child neglect and reckless homicide, and she is currently serving an effective eighteen-year sentence in the Department of Correction. Almost four years after the judgments were entered, the petitioner filed a pro se petition for post-conviction relief. The post-conviction court summarily dismissed the petition as untimely. Following review, we affirm the dismissal.


Administrative Error Could Offer Offenders a Break

An unknown number of misdemeanor offenders in Williamson County may get a break on court-mandated penalties due to a mistake with their paperwork. Officials told Nashville's News 2 that the problem stems from someone other than a general sessions judge signing the warrants in question. Franklin defense attorney David Veile first noticed the discrepancy in one of his client's cases. Because the warrant was signed by a judge’s administrative assistant, it will not be enforced. District Attorney General Kim Helper said the impact of the error should not be too severe since, for the majority of defendants, new warrants will be signed by a judge and cases will continue as normal.


Two More Pilot Executives Plead Guilty to Fraud

Michael Fenwick and Janet Welch, former sales executives with Pilot Flying J, have pleaded guilty to criminal charges related to a scheme to defraud trucking firms of promised fuel rebates. That brings to seven the total number of Pilot Flying J employees who have pleaded guilty to fraud charges. According to The Tennessean, Fenwick worked as a regional sales executive in Utah while Welch worked at the company’s Knoxville headquarters.


DCS Commissioner Praises Youth Court

Jim Henry, newly installed head of the state Department of Children's Services, was in Jackson last week to learn more about programs offered through the local juvenile court. After a presentation about the Madison County Youth Court, Henry praised the program saying he would like to see it expanded. To learn more about youth courts, visit the TBA’s youth court site or contact Youth Court Coordinator Denise Bentley, who helps communities establish alternative sentencing programs for non-violent youth offenders across the state. Henry’s comments were covered by WBBJ TV.


Opinion: Tennessee System Yields Best Judges

Writing in The Tennessean over the weekend, crime victims advocate Verna Wyatt says the state’s system for nominating and appointing judges is the best system for selecting wise judges. Wyatt, a citizen member of the Judicial Nominating Commission, used the column to explain the important work done by commissioners, highlight the dedication of those who serve on the panel and expound on the role voters play in the process. Wyatt is executive director of Tennessee Voices For Victims. Read her opinion piece here.


Northeast CASA Plans Golf Tournament

CASA of Northeast Tennessee will hold its 8th Annual Golf Tournament Aug. 19 at the Johnson City Country Club. Registration will begin at 11 a.m. with a shotgun start at noon. The event, a four-person scramble, includes lunch and a number of door prizes. Participants are encouraged to raise $400, which will support a child for one year, or pay the $100 players fee. Sponsorship opportunities include cart sponsorship for $100, hole sponsorship for $250 and tournament sponsorship for $1,000. For more information or to register call (423) 461-3500, email Executive Director Leslie Dalton or visit the agency’s website.


Lawyer’s Suspension Overturned by Judge

Tennessee Senior Judge Paul A. Summers last week dismissed a decision by the Board of Professional Responsibility to impose a 60-day suspension on Memphis lawyer Sadler Bailey, The Commercial Appeal reports. The suspension had been imposed for "disrespect and sarcasm" before Circuit Court Judge Karen Williams during a medical malpractice trial in 2008. Calling the suspension “arbitrary or capricious and characterized by abuse of discretion,” Summers instead ordered Bailey to be publically reprimanded. Summers based his decision in part on the fact that the comments in question were not witnessed by a jury or members of the public thus not harming the judicial system.


Memphis Lawmaker Dies from Cancer

Lois DeBerry, the longest serving member of the Tennessee House of Representatives died Sunday (July 28) from pancreatic cancer. DeBerry, 68, was the first black woman from Memphis to be elected to the House and climbed the ladder higher than any other African American woman in the chamber, earning the title of Speaker Pro Tempore. She served for more than 40 years. The Commercial Appeal and the Memphis Flyer have more on her life. Donations in DeBerry's honor may be made to the Pancreatic Cancer Action Network at www.pancan.org. Funeral arrangements were pending at press time.


 
 

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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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