Breen Named Chief Judge of U.S. District Court

U.S. District Judge and former TBA President J. Daniel Breen assumed the position of chief judge of the U.S. District Court for the Western District of Tennessee this week. Judge Breen, who has served on the court since March 2003, began his judicial career in 1991 as a magistrate judge in the Western District. He served in that capacity until nominated to the district court by President George W. Bush. Judge Breen earned his law degree from the University of Tennessee College of Law in 1975. Read the announcement from the court.

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
11 - TN Court of Appeals
04 - 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

JAMES M. BOWLEY, ET AL. v. RICHARD LANE, ET AL.

Court: TN Court of Appeals

Attorneys:

John W. Cleveland, Sr., Sweetwater, Tennessee, for the appellants, Richard Lane, Alvin Butler, and Danny Nicholson.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellees, James M. Bowley and Barbara A. Bowley.

Judge: SWINEY

James M. Bowley and Barbara A. Bowley (“Plaintiffs”) sued Richard Lane, Alvin Butler, and Danny Nicholson (“Defendants”) alleging defective construction of a log home built by Defendants for Plaintiffs. After trial, the Trial Court entered judgment upon the jury’s verdict finding and holding, inter alia, that Defendants had breached the implied warranty of habitability, and that Plaintiffs had sustained $50,000 in damages as a result of this breach. Defendants appeal to this Court raising an issue regarding whether the Trial Court erred in approving the verdict and denying their motion for new trial or for remittitur. Plaintiffs also raise an issue alleging that the evidence does not support the verdict. We find and hold that material evidence supports the jury’s verdict, and further find no error in the Trial Court’s denial of Defendants’ motion for new trial or for remittitur, and the Trial Court’s denial of Plaintiffs’ motion for new trial or for additur. We affirm.


SHEILA DUNLAP v. LAUREL MANOR HEALTH CARE, INC.

Court: TN Court of Appeals

Attorneys:

Lyle H. Moe, Maryville, Tennessee, for the appellant, Sheila Dunlap, individually and as personal representative of the estate of Victoria Adkins.

Marc A. Sorin, Memphis, Tennessee, for the appellee, Laurel Manor Health Care, Inc.

Judge: SUSANO

Sheila Dunlap (“plaintiff”) brought this action alleging liability for the wrongful death of her daughter (“deceased”) on the part of the nursing home operated by Laurel Manor Health Care, Inc. (“defendant”) where deceased was living. Although the allegations of the complaint were couched in terms of ordinary negligence, the trial court determined that the cause of action was one for medical malpractice. The court dismissed the complaint for failure to comply with Tenn. Code Ann. § 29-26-122, which requires the filing a certificate of good faith with a medical malpractice complaint. We hold that the plaintiff’s claims that the nursing home failed to properly administer medication and a medical device prescribed by a physician, and failed to monitor the medical condition of the deceased at all times prior to her death, sound in medical malpractice. Consequently, we affirm the judgment of the trial court.


PATSY FREEMAN, PERSONAL REPRESENTATIVE & ADMINISTRATRIX OF THE ESTATE OF JOHN R. FREEMAN v. CSX TRANSPORTATION, INC. ET AL.

Court: TN Court of Appeals

Attorneys:

John W. Chandler, Jr., Pamela R. O’Dwyer, and Donald N. Capparella, Nashville, Tennessee, for the appellant, Patsy Freeman.

John W. Baker, Jr. and Emily L. Herman-Thompson, Knoxville, Tennessee; Evan M. Tager and Brian J. Wong, Washington, DC; James W. Purcell, Augusta, Georgia; and Robert M. Anspach, Toledo, Ohio, for the appellees, CSX Transportation, Inc. and Mike E. Martin.

Judge: BENNETT

After a lengthy trial, the trial court determined that the decedent was more than 50% at fault for the collision that resulted in his death. The evidence does not preponderate against the trial court’s findings and we therefore affirm.


IN THE MATTER OF LAKITA E. P. AND MICHAEL A. P.

Court: TN Court of Appeals

Attorneys:

Joshua Vernon Hoeppner, Livingston, Tennessee, for the appellant, Michael A. P., Sr.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie Curry, Assistant Attorney General, for the Tennessee Department of Children’s Services.

Judge: DINKINS

A father’s parental rights to his two children were terminated on the grounds of abandonment by engaging in conduct exhibiting a wanton disregard for the welfare of the children, noncompliance with the permanency plan, and severe child abuse against children who resided with Father. He appeals, contending that the Department of Children’s Services failed to expend reasonable efforts to reunite him with the children and that termination of his rights was not in the children’s best interest. Finding no error, we affirm the judgment of the trial court.


IN RE: JOHNNY K. F.
With dissenting opinion.

Court: TN Court of Appeals

Attorneys:

Jennifer G. Lloyd, Chattanooga, Tennessee, for the appellant, Shawn L. F.

Cara C. Welsh, Chattanooga, Tennessee, for the appellant, Shauna L. F.

Justin G. Woodward, Chattanooga, Tennessee, for the appellees, Johnny F. and Sharon E. F.

Judge: SWINEY

Grandparents Johnny F. and Sharon E. F. (“the Petitioners”) filed a petition in the Chancery Court for Hamilton County (“the Trial Court”) seeking to terminate the parental rights of Shawn L. F. (“Father”) and Shauna L. F. (“Mother”) to the minor child Johnny K. F. (“the Child”). After trial, the Trial Court entered an order finding and holding, inter alia, that clear and convincing evidence existed to terminate Father’s and Mother’s parental rights under Tenn. Code Ann. § 36-1-102 (1)(A)(iv) with respect to Father and Tenn. Code Ann. § 37-1- 102 (b)(23) and Tenn. Code Ann. § 36-1-113 (g)(3) with respect to Mother, and that termination was in the best interests of the Child. Father and Mother appeal to this Court. We reverse, in part, and vacate, in part, the judgment of the Trial Court and remand for a new trial.


AUBREY OWENS & THE ESTATE OF LOUIS GERNT v. ALEETA TIPTON EVANS, TIMOTHY L. GOAD ET AL.

Court: TN Court of Appeals

Attorneys:

Onie Lee Winebarger, Byrdstown, Tennessee, for the appellant, Aleeta Tipton Evans.
Thomas E. Looney, Crossville, Tennessee, for the appellee, Estate of Lois Gernt.

Judge: PER CURIAM

This is an appeal from a judgment entered against one of four defendants. Because the judgment appealed does not resolve all the claims between all the parties, we dismiss the appeal for lack of a final judgment.


RALEIGH COURT CONDOMINIUMS, HOMEOWNERS’ ASSOCIATION, INC. v. E. DOYLE JOHNSON CONSTRUCTION CO., ET AL.

Court: TN Court of Appeals

Attorneys:

Arthur F. Knight, III, Knoxville, Tennessee, for the appellant, E. Doyle Johnson Construction Co.

Mark E. Brown, Knoxville, Tennessee, for the appellee, Raleigh Court Condominiums Homeowners’ Association, Inc.

Judge: MCCLARTY

Homeowners’ association filed suit against general contractor because of drainage issues alleging fraud, negligent misrepresentation, negligence, violations of the Tennessee Consumer Protection Act, and breach of the implied warranty of “good and workmanlike” construction. The trial court found in favor of homeowners’ association. The general contractor appeals. We affirm.


AMANDA MARIE SYKES v. JOSHUA NEAL SYKES
With dissenting opinion.

Court: TN Court of Appeals

Attorneys:

S. Jason Whatley, Columbia, Tennessee, for the Appellant, Amanda Marie Sykes.

J. Russell Parkes and Wesley Mack Bryant, Columbia, Tennessee, for the Appellee, Joshua Neal Sykes.

Judge: DINKINS

In this divorce proceeding, Mother and Father entered into a Marital Dissolution Agreement and Permanent Parenting Plan, which were incorporated into the final decree of divorce; the parties shared equal parenting time with their two children and neither party was obligated to pay child support. Mother subsequently filed a petition to set support, as well as a motion for relief from the final decree, both of which sought to have the court set support in accordance with the child support guidelines. The court denied the petition and the motion on the grounds that the parties had agreed in the parenting plan that child support would not be paid and that a significant variance did not exist. Finding that relief to Mother is appropriate under the circumstances, we reverse the judgment and remand the case for further proceedings.


RHONDA SUE WATKINS v. KENNETH DANNY WATKINS

Court: TN Court of Appeals

Attorneys:

Rhonda Sue Watkins, Pro se.

John D. Schwalb, Franklin, Tennessee, for the appellee, Kenneth Danny Watkins.

Judge: FARMER

The trial court granted Father’s petition to modify child custody and child support, and denied Mother’s petition to increase alimony. Mother appeals. We vacate the trial court’s judgment with respect to Mother’s petition to modify alimony, and remand for findings of fact and further proceedings, if necessary. The remainder of the judgment is affirmed.


KELLY WEED v. FIRST ACCEPTANCE INSURANCE COMPANY OF TENNESSEE, INC.

Court: TN Court of Appeals

Attorneys:

George R. Garrison, Sevierville, Tennessee, for the appellant, Kelly Weed.

Louis Andrew McElroy, II, and Rachel E. Sanders, Knoxville, Tennessee, for the appellee, First Acceptance Insurance Company of Tennessee, Inc.

Judge: SUSANO

This appeal involves the interpretation of an exclusionary clause in an automobile casualty insurance policy. The policy excluded coverage for a loss resulting from an accident occurring while the vehicle was being driven by an unlisted driver who “is a regular or frequent operator of” an insured vehicle. Caleb Jenkins, who was not listed in the policy as a “driver,” was involved in an accident while driving the vehicle of Kelly Weed (“Insured”). Insured brought suit after First Acceptance Insurance Company of Tennessee, Inc., (“Insurer”) denied her claim. Insurer moved for summary judgment, alleging that Jenkins was a regular and frequent operator of Insured’s vehicle. Based on Insured’s statement that Jenkins was a “fairly regular” driver of her vehicle who had been driving it once or twice a week for six months, the trial court denied coverage and granted Insurer summary judgment. We affirm the trial court’s judgment that the policy excluded coverage because Insured’s admission establishes that Jenkins was a “regular or frequent operator” of her vehicle.


TIMOTHY L. WILSON v. HANK E. SLEDGE, JR., ET AL.

Court: TN Court of Appeals

Attorneys:

Timothy L. Wilson, Pro se.

Kimberly A. Coffey, Knoxville, Tennessee, for the appellees, Hank E. Sledge, Jr., George Z. Goldberg, Russell A. Dohan, and Goldberg & Dohan, LLC.

Judge: FARMER

The trial court dismissed this action for professional malpractice based upon the running of the statute of limitations. We affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. STANLEYABERNATHY JAMES

Court: TN Court of Criminal Appeals

Attorneys:

Joseph Liddell Kirk (on appeal) and Bruce E. Poston (at trial), Knoxville, Tennessee, for the appellant, Stanley Abernathy James.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Randall Eugene Nichols, District Attorney General; and Kevin James Allen, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Stanley Abernathy James, was convicted by a Knox County Criminal Court jury of second degree murder, a Class A felony, for which he is serving a twenty-five-year sentence. In this appeal, the Defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. JOSH L. BOWMAN
With dissenting opinion.

Court: TN Court of Criminal Appeals

Attorneys:

Mike Whalen, Knoxville, Tennessee, for the appellant, Josh L. Bowman.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; and TaKisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Knox County Criminal Court Jury convicted the appellant, Josh L. Bowman, of three counts of first degree felony murder, one count of especially aggravated kidnapping, one count of especially aggravated robbery, two counts of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony. After the jury announced its verdicts, the appellant pled guilty to one count of employing a firearm during the commission of a dangerous felony when, at the time of the offense, the appellant had a prior felony conviction. The trial court merged the murder convictions, merged the burglary convictions, merged the employing a firearm convictions, and sentenced the appellant to an effective sentence of life plus sixty years in confinement. On appeal, the appellant contends that the trial court erred by failing to suppress his statement to police, by allowing the State to show a transcript of his statement simultaneously with his video-recorded statement, and by failing to instruct the jury as provided by State v. White, 362 S.W.3d 559 (Tenn. 2012). Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court’s failing to instruct the jury properly pursuant to White constitutes reversible error. Therefore, the appellant’s conviction for especially aggravated kidnapping must be reversed and the case remanded to the trial court for a new trial as to that offense.


STATE OF TENNESSEE v. LAMAR PARRISH CARTER
With concurring opinion.

Court: TN Court of Criminal Appeals

Attorneys:

Joy S. Kimbrough, Nashville, Tennessee, for the appellant, Lamar Parrish Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Shannon Poindexter, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

This is an interlocutory appeal, pursuant to Tennessee Rule of Appellate Procedure 9, from the trial court’s grant of a mistrial based upon a “manifest necessity.” The Defendant, Lamar Parrish Carter, appeals the trial court’s ruling, arguing that his attorney’s cross-examination of a co-defendant about her range of punishment, which was also the range of punishment for the Defendant, was not improper and did not warrant a mistrial. After a thorough review of the record and the relevant law, we affirm the trial court’s judgment.


STATE OF TENNESSEE v. AMBER R. GALEMORE

Court: TN Court of Criminal Appeals

Attorneys:

Chase T. Smith, Clarksville, Tennessee, for the Appellant, Amber R. Galemore.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel, Criminal Justice Division; John W. Carney, Jr., District Attorney General; and Arthur Bieber, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

In two separate cases, the Defendant, Amber R. Galemore, pled guilty to possession with intent to sell or deliver cocaine and to theft of property. She was sentenced to an effective sentence of eight years on probation. As part of the Defendant’s plea agreement, she reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The question is articulated in the record as, “Whether the search warrant issued by a General Sessions Judge for Montgomery County, Tennessee, which was based on statements of an unknown person outside the defendant’s residence and computer keystroke software results[,] provided a sufficient nexus to make a probable cause determination.” After reviewing the record and applicable law, we conclude that the trial court did not err when it denied the Defendant’s motion to suppress. Accordingly, we affirm the Defendant’s convictions.


Memphis Mayor Joins Presidental Session on Youth Violence

Memphis Mayor A.C. Wharton and 17 other mayors met with President Barack Obama and Attorney General Eric Holder Jr. on Tuesday to discuss strategies to reduce youth violence. In 2012, Wharton’s office reported 904 people 24 and younger were arrested for gun violence in Memphis. “This was one of the most in-depth, meaningful meetings I’ve ever attended at the White House,” Wharton told the Commercial Appeal. “It was probably over an hour with the president asking the questions. It’s clear that he gets it. This is not something he’s received a briefing paper on. He wanted specifics on some of the things we’re doing, such as Operation Safeways in Memphis. We’ll be working to beef up that program and expand it.”


AG Remains Tight-Lipped on Same Sex Marriage Issue

State Attorney General Robert Cooper is being cautious in his response to a conservative Christian group that is calling for him to nullify Collegedale’s decision to pay health benefits to same-sex spouses of city employees. According to the Nashville Scene, Cooper’s office told the group, “We will continue to watch events around the state and take steps when appropriate in light of the fact that the Supreme Court’s DOMA decision did not invalidate state laws regarding marriage.”


DOJ Wins 'Zero Dark Thirty' Freedom of Information Suit

U.S. District Judge Rudolph Contreras ruled in favor of the Department of Justice yesterday, saying it does not have to disclose the full names of the Navy SEALs and CIA officers who were key in the raid that would end in the death of Osama bin Laden. Allowing the filmmakers behind “Zero Dark Thirty” inside access to interview key players did not render the names of those officers public record, the judge ruled. The Blog of the Legal Times has the story.


Federal Judge Blasts DOJ Over Drug Sentence Disparity

In an Aug. 16 opinion, U.S. District Judge Mark Bennett criticized the U.S. Department of Justice for creating massive drug sentencing disparities by not having a policy advising prosecutors on when to double the prison time for repeat offenders. The Iowa judge blasted the "deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application" of sentencing enhancements for repeat offenders. News Channel 5 has the story.


Opinion: Value of Jury Duty

In a letter to the editor of the Jackson Sun, long-time Jackson-Madison County resident Dr. Nancy Oberg discusses how completing her first jury duty service opened her eyes to a new appreciation for those in the legal professions. “I saw first-hand the judicial system at work: The meticulous attention to detail and organization of judges and staff, the vast cross section of fellow Madison County residents in the jury pool, and the commitment of law enforcement officials," Oberg writes. She concludes with thanking the “hardworking, dedicated men and women” who serve in the legal professions for their service.


Court Strikes Down Body Cavity Search

A federal appeals court has struck down an invasive body cavity search that was central to the conviction of a drug suspect in Anderson County, News Channel 5 reports. With two sheriff's deputies looking on, a doctor at Oak Ridge Methodist Medical Center probed Felix Booker's rectum to find a bag containing crack cocaine. Judges for the U.S. 6th Circuit Court of Appeals in Cincinnati on Monday called the medically induced paralysis under which Felix Booker was searched a "shock to the conscience."


2-Year Law Degree Debate Dates Back a Century

The idea of shortening law school to two years is getting a fresh look after President Barack Obama casually endorsed the idea at an event in upstate New York last week. The Wall Street Journal Law Blog chronicles the debate on the proposal, which dates back to the late 19th century. (subscription required).


Services Held for Former Chattanooga Lawyer, Businessman

Saul “TWOM” Mallen died Saturday (Aug. 24) at the age of 98. A member of the bar in Chattanooga and a businessman, Mallen served as president of Sportswear Mills for more than 40 years. He also served on several boards of directors for non-profit and other organizations. Services were held Tuesday at Mizpah Cemetery with Rabbi Bill Tepper officiating. 


State Rep. to Make Mayoral Run

State Rep. Kent Williams, I-Elizabethton, announced today he will not seek a fifth term to instead run for Carter County Mayor next year, the Memphis Daily News reports. Williams, who unsuccessfully lobbied to have his right to run as a Republican restored by the state party after his contentious election to the House speaker post in 2009, said he will challenge the GOP nominee for mayor in next year's general election.


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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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