Disciplinary Enforcement Rule Gets Overhaul

The Tennessee Supreme Court today issued its much-anticipated rewrite of Rule 9 on disciplinary enforcement. The overhaul is the first comprehensive reordering and revamp of the rule since the original rule was adopted in the 1970s. Many of the suggestions proffered by the TBA were adopted including new provisions that clarify a lawyer's obligations when the lawyer is no longer able to practice. Perhaps the most significant change urged by the TBA— a change to a standard of clear and convincing evidence to prove lawyer misconduct – was omitted. Read the rule here and watch TBA Today next week for more analysis of the court’s 64 page order, including new provisions for license revocation for student loan default.

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
04 - TN Court of Appeals
09 - TN Court of Criminal Appeals
05 - 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

AUNDREY MEALS EX REL. WILLIAM MEALS v. FORD MOTOR COMPANY

Court: TN Supreme Court

Attorneys:

J. Houston Gordon and Amber Nicole Griffin Shaw, Covington, Tennessee, for the appellant, Aundrey Meals, as Natural Parent, Guardian, and Next Friend of William Meals.

Lawrence C. Mann, Troy, Michigan (at trial); Sandra Giannone Ezell and Michelle B. Scarponi, Richmond, Virginia (at trial); John Randolph Bibb, Jr. and Ryan Nelson Clark, Nashville, Tennessee (at trial and on appeal); Robert Francis Chapski, Nashville, Tennessee (on appeal); and Christopher T. Handman and Sean M. Marotta, Washington, D.C. (on appeal), for the appellee, Ford Motor Company.

Judge: LEE

A six-year-old boy’s spine was fractured in a car wreck when the force of the impact caused him to jackknife over his lap seatbelt and pushed the seatbelt into his stomach and against his spine. The child’s mother filed suit on his behalf against Ford Motor Company (“Ford”), alleging that the defective design of the seatbelt and Ford’s failure to warn of a potential danger caused the child’s permanent paralysis and other enhanced injuries. A jury returned a $43.8 million verdict for compensatory damages, finding Ford to be 15% at fault and two non-parties 85% at fault. Ford’s share of the verdict, based on its degree of fault, was $6,570,000. The jury awarded no punitive damages. Ford moved for a new trial, arguing that the verdict was excessive. The trial court denied the motion for new trial and affirmed the verdict in its capacity as thirteenth juror. The Court of Appeals, in a divided opinion, ruled that the verdict was excessive and remanded to the trial court with a suggestion of remittitur from $43.8 million to $12.9 million, a 70.55% reduction. The suggested remittitur, if the plaintiff accepted it, would reduce Ford’s share of the verdict to $1,935,000. Meals ex rel. Meals v. Ford Motor Co., No. W2010-01493-COA-R3-CV, 2012 WL 1264454, at *18- 21 (Tenn. Ct. App. Apr. 13, 2012). We hold that the Court of Appeals had the authority to suggest a remittitur even though Ford did not request a remittitur. We further hold that the Court of Appeals erred in remitting the verdict to $12.9 million. Having taken the strongest legitimate view of all the material evidence in favor of the verdict, assuming the truth of all that supports it, allowing all reasonable inferences, and discarding any to the contrary, we hold that the jury’s verdict was supported by material evidence and was within the range of reasonableness. The judgment of the Court of Appeals is reversed and the jury’s verdict is reinstated.


TN Court of Appeals

IN RE AMELIA M.

Court: TN Court of Appeals

Attorneys:

Matthew A. Spivey, Kingsport, Tennessee, for the appellant, James M.

Stana M. Donnelly, Erwin, Tennessee, for the appellees, Bethany L. and William H.

Judge: FRIERSON

This is a termination of parental rights case focusing on Amelia M., the minor child (“Child”) of James M. (“Father”) and Bethany L. (“Mother”). On September 14, 2011, Mother filed a petition to terminate the parental rights of Father, which was subsequently joined by Mother’s new husband, William H. (“Stepfather”). Following a bench trial, the trial court granted the petition upon its finding, by clear and convincing evidence, that Father had abandoned the Child by willfully failing to visit her and willfully failing to provide financial support in the four months preceding the filing of the petition. The court further found, by clear and convincing evidence, that termination of Father’s parental rights was in the Child’s best interest. Father has appealed. We affirm.


BILLY W. HUFFMAN, ET UX. v. WHITNEY NICHOLE HUFFMAN

Court: TN Court of Appeals

Attorneys:

Kristi M. Davis, Knoxville, Tennessee, for the appellants, Billy W. Huffman and Lora D. Huffman.

Keith A. Pope and W. Michael Kilgore, Knoxville, Tennessee, for the appellee, Whitney Nichole Huffman Lewis.

Judge: SWINEY

This appeal arises from a dispute over grandparent visitation. Whitney Nichole Huffman Lewis (“Mother”) is the mother of the minor child Isaiah Huffman (“the 1 Child”). Billy W. Huffman and Lora D. Huffman (“the Grandparents,” collectively), father and stepmother of Mother, filed a petition in the Chancery Court for Loudon County (“the Trial Court”) to establish visitation rights with the Child. The Child had visited often with the Grandparents, but Mother ended the visits after a falling out with Mr. Huffman. Following a trial, the Trial Court denied the Grandparents’ petition after finding there was no significant relationship between the Grandparents and the Child and that there was no risk of substantial harm to the Child. The Grandparents appeal to this Court. We find and hold that while the Grandparents and the Child did have a significant existing relationship, the Grandparents failed to prove that cessation of this relationship would pose a danger of substantial harm to the Child. We affirm the judgment of the Trial Court as modified.


STACY CHRISTINA KNELLINGER v. MARK STEVEN KNELLINGER AND BECKI KNELLINGER

Court: TN Court of Appeals

Attorneys:

Robert E. Lee Davies, Joshua Lee Rogers, Franklin, Tennessee, for the appellant, Stacy Christina Knellinger.

Elizabeth A. Garrett, Jessica Hooper, Nashville, Tennessee, for the appellees, Mark Steven Knellinger and Becki Knellinger.

Judge: CLEMENT

In this post-divorce action, Father filed two petitions asserting several counts of criminal contempt against Mother based on alleged violations of the Parenting Plan. Father also petitioned the court to modify the Parenting Plan to name him the primary residential parent and grant him sole decision-making authority over the children’s educations, non-emergency healthcare, and extracurricular activities. Mother then filed a petition seeking to permanently enjoin Father’s new wife (“Step-mother”) from participating in certain activities with the children, such as signing their school report cards, volunteering at the school, and sending home notes in their lunch boxes. After a three-day hearing, the trial court found Mother guilty on three counts of criminal contempt, and assessed a $150 fine (fifty dollars per count), which the court required her to pay toward counseling with Father. The trial court denied Father’s Petition to Modify the Parenting Plan, finding there was no material change of circumstances affecting the children’s interest, a finding which Father does not appeal. The trial court also denied Mother’s petition for a permanent injunction against Step-mother, finding it was unnecessary. Both parties were required to pay their own attorney’s fees. We affirm the trial court’s decision to deny Mother’s request for a permanent restraining order against Step-mother. However, we have determined the trial court erred in finding Mother guilty of criminal contempt, and we reverse all three convictions. Finally, we find Mother is entitled to her reasonable and necessary attorney’s fees incurred in the trial court in defense of Father’s Petition to Modify the Parenting Plan, pursuant to Tennessee Code Annotated § 36-5-103(c), and remand for a determination and award thereof.


LASONYA MORROW v. RAY ANTHONY MCCLAIN

Court: TN Court of Appeals

Attorneys:

Edward Jordan Gross, Nashville, Tennessee, for the appellant, Ray Anthony McClain.

Mark Christopher Scruggs, Nashville, Tennessee, for the appellee, LaSonya Morrow.

Judge: COTTRELL

A man and woman lived together for six years and worked jointly on a number of business ventures during that period, but never married. After their relationship ended, the woman filed a complaint for a division of property, under the theory that the parties had entered into an implied partnership. The trial court heard conflicting testimony as to the respective contributions of each party to the acquisition, improvement and preservation of the properties at issue. The court declined to find that a partnership had existed between the parties, but ruled that the woman had an interest in all the real property acquired during the relationship. The court awarded her one parcel which the parties owned as cotenants in common and an additional $50,000 based on the value of her interest in the other properties. The man argues on appeal that the trial court overestimated the woman’s contributions during the relevant period and underestimated his own contributions. We affirm the trial court.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. COLBY TERRELL BLACK

Court: TN Court of Criminal Appeals

Attorneys:

Claudia S. Jack, District Public Defender; and Richard H. Dunavant, Assistant District Public Defender, for the appellant, Colby Terrell Black.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; T. Michel Bottoms, District Attorney General; and Larry Nickell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Colby Terrell Black, was serving an effective twelve-year suspended sentence imposed as a result of his 2007, 2008, and 2010 guilty pleas to aggravated assault, two counts of sale of cocaine, and a second aggravated assault, respectively. He was arrested in 2011 for aggravated domestic assault. The trial court held a revocation hearing, after which it revoked appellant’s probation and ordered execution of his sentences. He successfully appealed the trial court’s order on the basis that the trial court failed to set forth the evidence it relied upon in ordering revocation and did not address the allegation that appellant had committed a new offense. The trial court complied with this court’s directive and filed an extensive order detailing the reasons for revocation. Appellant again appeals, claiming that the trial court erred by not considering his mental state at the time of the offense and by failing to find that the preponderance of the evidence supported the trial court’s decision to revoke his probation. Upon our review, we discern no error and affirm the judgment of the trial court.


ERIC CATHEY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Scottie O. Wilkes, Memphis, Tennessee, for the appellant, Eric Cathey.

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

Judge: OGLE

The petitioner, Eric Cathey, filed in the Shelby County Criminal Court a petition for postconviction relief from his convictions of felony murder and aggravated child abuse, alleging that his trial counsel was ineffective. After an evidentiary hearing, the post-conviction court denied the petition, and the petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.


ADRIAN CURB v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Adrian Curb, Atlanta, Georgia, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; David S. Clark, District Attorney General; and Sandra N. C. Donaghy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Petitioner, Adrian Curb, filed a petition for post-conviction relief, or in the alternative, a petition for writ of error coram nobis, challenging the conviction resulting from his 1997 guilty plea to aggravated assault. As grounds for relief, he claimed that his attempted first degree murder indictment was improperly amended to aggravated assault, thus coercing him into involuntarily pleading guilty to the amended charge. The post-conviction court summarily dismissed the petition because petitioner failed to establish an exception to the one-year statute of limitation for petitions for post-conviction relief. The court also concluded that petitioner failed to demonstrate the requisite factors for newly discovered evidence as required for writ of error coram nobis relief. Following our review, we discern no error and affirm the judgment of the post-conviction court.


JERRY WHITESIDE DICKERSON v. DAVID SEXTON, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Jerry Whiteside Dickerson, Mountain City, Tennessee, Pro Se.

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

Judge: TIPTON

The Petitioner, Jerry Whiteside Dickerson, appeals the Johnson County Criminal Court’s summary dismissal of his petition for the writ of habeas corpus regarding his convictions for first degree felony murder and especially aggravated robbery, for which he is serving an effective life sentence. The Petitioner contends that the trial court erred in dismissing the petition. We affirm the judgment of the trial court.


STATE OF TENNESSEE v. STANLEY B. HILL

Court: TN Court of Criminal Appeals

Attorneys:

Richard L. Gaines, Knoxville, Tennessee (on appeal); Jeffrey Z. Daniel, Knoxville, Tennessee, and James R. Scroggins, Jefferson City, Tennessee (at trial), for the appellant, Stanley B. Hill.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Michael L. Flynn, District Attorney General; and Tammy M. Harrington and Robert L. Headrick, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Stanley B. Hill, was convicted by a Blount County jury of the first degree premeditated murder of his wife, Vickie Hill, and sentenced to life imprisonment. On appeal, he argues that the trial court committed reversible error by: (1) allowing the medical examiner to use demonstrative evidence that was inherently unreliable, unfairly prejudicial, cumulative, and not disclosed to defense counsel prior to trial and (2) excluding a piece of physical evidence as a sanction for his violation of the reciprocal discovery obligations under Rule 16 of the Tennessee Rules of Criminal Procedure. Following our review, we affirm the judgment of the trial court.


GARY THOMAS REED v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Jeffrey A. Vires, Crossville, Tennessee, for the Appellant, Gary Thomas Reed.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Randall A. York, District Attorney General; and Amanda M. Hunter, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Cumberland County jury convicted the Petitioner, Gary Thomas Reed, of initiating the process of manufacturing methamphetamine. This Court affirmed the Petitioner’s conviction and sentence on appeal. State v. Gary Thomas Reed, No. E2009-02238-CCA-R3-CD, 2011 WL 1842711 (Tenn. Crim. App., at Knoxville, Aug. 24, 2011), perm. app. denied (Tenn. Aug. 24, 2011). The Petitioner timely filed a petition for post-conviction relief claiming that he had received the ineffective assistance of counsel. The post-conviction court denied relief after a hearing. On appeal, the Petitioner claims that his attorney failed to call an exculpatory witness at trial and failed to object to a violation of the sequestration rule. After a thorough review of the record, the briefs, and relevant authorities, we affirm the post-conviction court’s judgment.


STATE OF TENNESSEE v. TROY REYNOLDS

Court: TN Court of Criminal Appeals

Attorneys:

J. Liddell Kirk (on appeal), Knoxville, Tennessee; Mack Garner (at hearing), District Public Defender, Maryville, Tennessee, for the appellant, Troy Reynolds.

Robert E. Cooper, Jr., Attorney General & Reporter; Deshea Dulany Faughn, Assistant Attorney General; Mike Flynn, District Attorney General; Matthew Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Troy Reynolds (“the Defendant”) pleaded guilty in February 2012 to evading arrest by vehicle, theft of property valued at over $1,000, and burglary. Pursuant to a plea agreement, he was sentenced as a Range I standard offender to an effective sentence of three years to be suspended and served on supervised probation, consecutive to an earlier suspended sentence. The State later filed a violation of probation warrant. The Defendant was taken into custody, and a probation revocation hearing was held. At the conclusion of the hearing, the trial court revoked the Defendant’s probation and ordered him to serve the remainder of his sentence in confinement. The Defendant appealed the trial court’s ruling. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgment.


STATE OF TENNESSEE v. CARLOS SMITH

Court: TN Court of Criminal Appeals

Attorneys:

Brett B. Stein, Memphis, Tennessee, for the appellant, Carlos Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Pamela Fleming and Jose Leon, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Carlos Smith, appeals his Shelby County Criminal Court jury convictions of two counts of attempted second degree murder, two counts of aggravated assault, and one count each of aggravated robbery, especially aggravated burglary, employing a firearm during a dangerous offense, and being a convicted felon in possession of a handgun, claiming that the trial court erred by denying his motion to sever offenses and that the State violated the tenets of Brady v. Maryland, 373 U.S. 83 (1963). Discerning no error, we affirm.


STATE OF TENNESSEE v. CLIFFORD DELEON THOMAS

Court: TN Court of Criminal Appeals

Attorneys:

Mark Stephens, District Public Defender; Julia Auer Gautreau, Assistant Public Defender, for the appellant, Clifford Deleon Thomas.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Randall Nichols, District Attorney General; and Kenneth F. Irvine, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

Defendant pled guilty to one count of possession of more than 0.5 grams of cocaine with intent to sell, a Class B felony, and one count of driving with a suspended license, a Class B misdemeanor, while reserving a certified question of law concerning the constitutionality of a city ordinance requiring vehicles operating within the municipality to have a “tag light” illuminating the vehicle’s license plate after dark. The defendant was sentenced to eight years probation on the possession charge and to a concurrent six months probation for driving with a suspended license. Upon review, we conclude that the certified question reserved by the defendant is not dispositive of the constitutionality of the traffic stop at issue. The defendant’s appeal is dismissed accordingly.


TN Attorney General Opinions

Requirement for Local Governments to Seek Competitive Bids for Liability Insurance

Court: TN Attorney General Opinions

Opinion Number: 65


Local Government Prohibition of the Discharge of Firearms

Court: TN Attorney General Opinions

Opinion Number: 66


Use of Funds by County Records Commission

Court: TN Attorney General Opinions

Opinion Number: 67


Requirement that Drivers Exercise Due Care under Tenn. Code Ann. § 55-8-136

Court: TN Attorney General Opinions

Opinion Number: 68


Local Education Agency’s Dedicated Education Fund Balance

Court: TN Attorney General Opinions

Opinion Number: 69


TBA Urges Full Funding for Federal Judiciary

The TBA today urged the Tennessee congressional delegation to back full funding for the federal judiciary when appropriations measures are taken up this fall. In letters authored by TBA President Cindy Wyrick and sent to each individual member of the delegation, the association points out that the effect of continued funding cuts at the “sequester” level will include slower processing of civil and bankruptcy cases, and diminished attention to constitutionally mandated representation of the criminally accused.


Court Upholds Jury’s $6M Judgment Against Ford

The Tennessee Supreme Court today reinstated a $6.6 million judgment against Ford Motor Company that had been imposed by a Shelby County jury after a six-year-old boy sustained significant injuries when his seatbelt malfunctioned during an accident. The Court of Appeals found the award was excessive and based on jury sympathy. It recommended reducing the amount to $1.9 million. The Supreme Court unanimously rejected the appeals court’s reasoning, finding that the jury’s verdict was supported by evidence and was within the range of reasonableness. Read more on the AOC website.


Airline Merger Trial to Start Nov. 25

A federal judge ruled today that the Department of Justice’s lawsuit to block the proposed merger of American Airlines and US Airways will start Nov. 25, WKRN News 2 reports. The timetable is favored by the airlines, which said a long delay would threaten their merger. The Justice Department had wanted the trial to start in March, saying it needed more time to prepare for the complex case.


Law Scholars Debate Legality of Syria Attack

Two constitutional scholars debated whether President Barack Obama must first get approval from Congress to legally launch a military attack against Syria during a conference call organized by the Federalist Society. John Yoo, a professor at the University of California Berkeley School of Law and prominent conservative, argued that the idea that lawmakers must preapprove any attack is “a misinterpretation of the Constitution.” Yoo pointed out that the United States has used force abroad at least 130 times, but Congress has only formally declared war five times in American history. “If President Obama wants to use force in Syria, constitutionally I think he can,” he told the National Law Journal. Yoo faced off against University of Virginia School of Law Professor Saikrishna Prakash, who took the opposite position, arguing that the “declare war clause takes away any implicit grant of executive power that the president would otherwise have.”


Reports: 'Lawyer' Not Such a Dream Job, Though Contentment Surges

According to U.S. News, being a lawyer is ranked fourth among dream jobs that are not so dreamy: lawyers have to make it through three years of law school and a “daunting” bar exam and then face a market that "is not expected to boom over the next decade.” Ironically, the Wall Street Journal Law Blog reports that survey results from the American Lawyer magazine show a surge in contentment among junior lawyers. The magazine polled third-, fourth- and fifth-year associates at major firms on issues such as job satisfaction. The study found that junior lawyers gave their firms “the highest composite scores...in almost 10 years,” the magazine said. The ABA Journal links to other stories on the issue.


Former U.S. Senator, Judge Speak Out on Merit Selection

Former Republican U.S. Sen. Nancy Kassebaum Baker and former federal appeals court Judge Deanell Reece Tacha, a Republican appointee, are speaking out in support of merit selection in their home state of Kansas. The pair authored an opinion piece published in the Kans Hays Daily News arguing that Kansas “should not abandon” a merit-based process for choosing top judges. The Republican-controlled Kansas legislature earlier this year dismantled that state's nonpartisan judicial screening commission. “One has only to look at events around the world right now to know that one of the cornerstones of the rule of law upon which public trust depends is the open and transparent selection of judges who will model unbiased, impartial, ethical, and informed decision making,” Baker and Tacha write. Gavel Grab has the story. 


11 File for Seat in Special House Election

The line up of candidates seeking to fill the state House seat held by the late Lois DeBerry now includes 10 Democrats and one Libertarian, the Memphis Daily News reports. After DeBerry’s death in July, Gov. Bill Haslam ordered a special general election for District 91. The Shelby County Election Commission has set Oct. 8 for a primary and Nov. 21 for the special general election.


Donations Needed by Sept. 1 for MALS Auction

Memphis Area Legal Services is accepting donations through Sept. 1 for its “WE’RE ALL IN” online auction benefiting its work. All donations are tax-deductible and will be listed on a nationally viewed website thanking donors. Click here for more information or download a donor form. For more information contact MALSauction@alphareporting.com.


Services Today for Knoxville Attorney

Claude Orion Ramer II died Monday (Aug. 26) at his home in Knoxville. He was 69. A graduate of the University of Tennessee and Vanderbilt University Law School, Ramer served in the U.S. Air National Guard as a pilot and enjoyed a long career in private and corporate law. Services were held today at 12:30 p.m. with a private graveside service at Highland Memorial Park. In lieu of flowers, donations may be made to Alzheimer's Tennessee Inc., 5801 Kingston Pike, Knoxville, TN 37919. Knoxnews has more on his life.


 
 

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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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