Sept. 17 Offers Chance to Reflect on Constitution

Each year on Sept. 17, the nation observes Constitution Day to commemorate the creation and signing of its founding document, and celebrate the privileges and responsibilities of U.S. citizenship. This year marks the 225th anniversary of the ratification of the Constitution, which was signed on Sept. 17, 1787, at the Constitutional Convention in Philadelphia and ratified on June 21, 1788, when New Hampshire became the ninth state to approve it. Teachers, lawyers and judges are all encouraged to stress the importance of the nation's founding document, and the TBA Public Education Committee has developed a list of resources to help those interested in presenting to student or adult groups. Among events already planned, UT College of Law professor Karla McKanders will discuss immigration law on Constitution Day at Roane State Community College’s Oak Ridge Campus.

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









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

CRISTY IRENE FAIR v. STEPHEN LYNN COCHRAN
With concurring opinion.

Court: TN Supreme Court

Attorneys:

H. Anthony Duncan, Nashville, Tennessee, and Michael Stanley Farley, Clinton, Tennessee, for the appellant, Cristy Irene Fair.

Terrill Lee Adkins, Knoxville, Tennessee, for the appellee, Stephen Lynn Cochran.

Judge: CLARK

We granted this appeal to determine whether the return of proof of service of process 412 days after issuance of a summons precludes a plaintiff from relying upon the original commencement of the lawsuit to toll the running of the statute of limitations. We hold that the plain language of Tennessee Rules of Civil Procedure 3 and 4.03 does not condition the effectiveness of the original commencement to toll the statute of limitations upon the prompt return of proof of service. We reverse the judgment of the Court of Appeals affirming the trial court’s dismissal of the plaintiff’s lawsuit. We remand this case to the trial court to determine whether service of process occurred within ninety days of issuance of the summons. If so, the plaintiff may rely upon the original commencement of the lawsuit to toll the statute of limitations.


TN Court of Appeals

JEFFREY MATTHEW BROWN v. JENNIFER LINDSEY (WILLIAMS) BROWN
With dissenting opinion.

Court: TN Court of Appeals

Attorneys:

Dennis W. Plunk, Savannah, Tennessee, for the appellant, Jeffrey Matthew Brown

Mary Jo Middlebrooks, Jackson, Tennessee, for the appellee, Jennifer Lindsey (Williams) Brown

Judge: HIGHERS

Husband filed a petition pursuant to Rule 60.02 to set aside a provision of the parties’ divorce decree that required him to pay $80,000 to Wife in accordance with an antenuptial agreement. He sought relief under Rule 60.02(2) for fraud, misrepresentation, or other misconduct of an adverse party. The trial court denied Husband’s petition and “confirmed” the divorce decree. We find that the trial court applied an incorrect legal standard, and as a result, it did not properly exercise its discretion. We also find that Wife’s conduct constituted misrepresentation or other misconduct within the meaning of Rule 60.02(2). Accordingly, we reverse the trial court’s order denying Husband’s Rule 60 petition and we vacate the challenged portion of the divorce decree.


ESTATE OF CLYDE DEUEL v. THE SURGICAL CLINIC, PLLC

Court: TN Court of Appeals

Attorneys:

H. Anthony Duncan, Nashville, Tennessee, for the appellant, Lorraine Deuel, individually and as Adm’x of the Estate of Clyde Deuel

Clarence James Gideon, Heather Piper, Nashville, Tennessee, for the appellee, The Surgical Clinic, PLLC.

Judge: COTTRELL

A surgeon left a sponge in the abdomen of a patient, closing the incision after receiving assurances from two operating room nurses that all the surgical sponges used in the operation had been fully accounted for. A second surgery was required to remove the sponge from the patient’s body. The patient died of unrelated causes seven months later. The patient’s widow filed a medical malpractice complaint against the surgeon and argued that the evidence of negligence was so plain that she could be excused from the normal requirement of producing expert testimony to prove that medical malpractice had occurred. The defendant surgeon presented expert testimony during trial to prove that the surgical standard of care entitled him to rely on the accuracy of the sponge count provided by his nurses. The jury returned a verdict for the defendant surgeon. The plaintiff argues on appeal that the trial court committed reversible error by allowing the use of expert testimony in a case that is based on the common knowledge exception and res ipsa loquitur. We affirm the trial court.


BRADFORD STAHR FAKES v. PATRICIA NICOLE ZAHORIK

Court: TN Court of Appeals

Attorneys:

Joshua G. Strickland, David Scott Parsley, Michael K. Parsley, Nashville, Tennessee, for the appellant, Patricia Nicole Zahorik.

Andrea Hagan, Anthony Ensley Hagan, Jr., Susan M. Merry, Lebanon, Tennessee, for the appellee, Bradford Stahr Fakes.

Judge: COTTRELL

Unmarried parents who had been involved in extensive litigation over custody of their two children finally entered into an agreed order that gave custody of their six year old son to the father and custody of their two year old daughter to the mother. Two years later, the father filed a petition for modification of custody, alleging improper conduct by the Mother. After a hearing, the trial court found that there had been a material change of circumstances and awarded the father primary custody of the little girl. The mother argues on appeal that the trial court’s final order was deficient because it did not specifically identify the material change of circumstance that justified reopening the question of custody and because the court did not apply the statutory factors found at Tenn. Code Ann. § 36-6-106(a) to the question of the children’s best interest. We affirm the trial court.


JOHN WESLEY GREEN, INDIVIDUALLY AND AS SHAREHOLDER OF CHAMPS-ELYSEES, INC. v. CHAMPS-ELYSEES, INC. ET AL.

Court: TN Court of Appeals

Attorneys:

James D. R. Roberts, Jr. and Janet L. Layman, Nashville, Tennessee, for the appellant, John Wesley Green, Individually and as a shareholder of Champs-Elysees, Inc.

Mark A. Baugh and Nancy Vincent, Nashville, Tennessee, for the appellees, Champs- Elysees, Inc. and Ellen Green, the Personal Representative of the Estate of Mark Green.

Will Parsons, Nashville, Tennessee, for the appellee, Edna L. Green.

Arthur Fourier, Individually and as the Board of Directors and Shareholders of Champ- Elysee, Inc., Auburn, Alabaman, Pro Se.

Judge: CLEMENT

Plaintiff raises a plethora of issues on appeal from an action that began as a declaratory judgment action seeking to enforce a sales contract and turned into complex litigation involving numerous claims. On appeal, Plaintiff challenges, inter alia, the trial court’s decisions regarding the exclusion of evidence pursuant to the Dead Man’s Statute, the denial of a motion to amend to add an additional party, issues related to discovery, the trial court’s grant of directed verdict on numerous claims to the Defendants, and several other rulings by the trial court. We affirm the trial court in all respects.


JORGE A. RUBIO V. GENEVA VAUGHN, ET AL.

Court: TN Court of Appeals

Attorneys:

Jorge A. Rubio, Whiteville, Tennessee, appellant, pro se.

Phylinda Lorene Ramsey, Jackson, Tennessee for appellees Geneva Vaughn and Corrections Corporation of America.

Judge: PER CURIAM

Appellant’s failure to timely file a notice of appeal deprives this court of jurisdiction to hear the matter and this appeal must be dismissed.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. DUSTY ROSS BINKLEY

Court: TN Court of Criminal Appeals

Attorneys:

Karen McDonald (on appeal) and Rhett C. Chandler (at trial), Nashville, Tennessee, for the appellant, Dusty Ross Binkley.

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

Judge: WEDEMEYER

The Petitioner, Dusty Ross Binkley, pled guilty to manufacture of methamphetamine and possession of a weapon in the commission of a dangerous felony. The trial court sentenced the Petitioner to an eight-year sentence to be served on community corrections. The Petitioner’s community corrections officer filed a violation warrant, and, after a hearing, the trial court revoked the Petitioner’s community corrections sentence, finding that he had violated the terms of his sentence, and ordered him to serve the remainder of his sentence in confinement, to run consecutively with his sentence in another county on an unrelated charge. The Petitioner filed a pro se petition for a writ of habeas corpus, which the habeas court summarily dismissed. On appeal, the Petitioner contends that the habeas court erred by summarily dismissing his petition. After a thorough review of the record and applicable law, we affirm the habeas corpus court’s judgment.


STATE OF TENNESSEE v. ROBERT GLENN HASAFLOOK

Court: TN Court of Criminal Appeals

Attorneys:

Michael Richard Meise, Ashland City, Tennessee, for the Appellant, Robert Glenn Hasaflook.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Dan M. Alsobrooks, District Attorney General; Kelly Jackson-Smith, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Robert Glenn Hasaflook, was indicted for one count of promotion of the manufacture of methamphetamine, and filed a pretrial motion to suppress all his statements made to the police. The trial court denied the Defendant’s motion, and the Defendant pleaded guilty to the indicted offense reserving a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) about whether the stop of the Defendant’s vehicle by law enforcement was lawful. After review, we conclude that the Defendant has failed to comply with the strict requirements of Tennessee Rule of Criminal Procedure 37(b)(2). Accordingly, the appeal is dismissed.


STATE OF TENNESSEE v. GEORGE ANDREW STANHOPE

Court: TN Court of Criminal Appeals

Attorneys:

Gary W. Wicks, Sr., and Robert L. Booker, Franklin, Tennessee, for the appellant, George Andrew Stanhope.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Kim R. Helper, District Attorney General; Michael Joseph Fahey, II, and Kate Yeager, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, George Andrew Stanhope, was indicted for first degree premeditated murder, three counts of first degree felony murder, theft of property valued at $1,000 or more but less than $10,000, aggravated burglary, and aggravated rape. See Tenn. Code Ann. §§ 39-13- 202, -13-502, -14-103, -14-105(a)(3), -14-403. Following a jury trial, the Defendant was convicted of first degree premeditated murder, two counts of first degree felony murder, theft of property valued at $1,000 or more but less than $10,000, and aggravated burglary. The jury acquitted the Defendant of the charge of aggravated rape and one count of first degree felony murder. The trial court merged the two first degree felony murder convictions with the first degree premeditated murder conviction. The jury imposed a sentence of life without the possibility of parole for the first degree premeditated murder conviction. The trial court held a sentencing hearing on the remaining convictions and imposed a sentence of six years for the aggravated burglary conviction and a sentence of four years for the theft conviction. The trial court ordered the sentences to be served consecutive to each other and to the sentence for the first degree premeditated murder conviction, for an effective sentence of life without the possibility of parole plus ten years. In this appeal as of right, the Defendant contends (1) that the trial court erred in denying the Defendant’s motion to suppress statements he made to the police; (2) that the trial court erred by not allowing defense counsel to review the personnel file of a former police detective; (3) that the in-court security around the Defendant was excessive and gave the jury the impression that he was in custody; (4) that the evidence was insufficient to sustain the Defendant’s convictions; (5) that the trial court erred by not merging the Defendant’s convictions for theft and aggravated burglary; (6) that the statutory aggravating circumstance of the victim’s age was unconstitutional; (7) that a new trial was warranted because one of the jurors failed to disclose her relationship with the court clerk during voir dire; and (8) that the Defendant was entitled to a new trial due to cumulative error. Discerning no error, we affirm the judgments of the trial court.


Public Service Loan Forgiveness Program Underused

The Consumer Financial Protection Bureau has created a new tool kit for employers to increase awareness about the Public Service Loan Forgiveness program, the ABA Journal reports. The program forgives unpaid balances on federal direct student loans after 10 years of work for the government or nonprofits. In an interview with the New York Times, attorney Raha Wala, who works for an international human rights organization and has $200,000 in law school debt, said the program is “enabling me to do the work that I love.”


Environmental Law Writing Competition Underway

The TBA Environmental Law Section has announced the seventh annual Jon E. Hastings Memorial Award writing competition for law students enrolled in a Tennessee law school in 2013 or 2014. The competition is held in memory of one of the section's most outstanding founding members and has a cash prize pool of $1,200. It is a juried competition for the best legal writing on a topic of Tennessee or federal environmental law. Entries are due April 1, 2014. The competition rules and announcement are available here in downloadable format.


Walker County Courthouse Closed due to Furlough

The Walker County Courthouse will be closed next Monday due to a county wide furlough day. The courthouse will also be closed on Oct. 14, Nov. 27, Dec. 6 and Dec. 31 for  furlough. The Chattanoogan advises the public to make plans to work around this schedule change.


Newly Formed Law Firm Finds New Space

The newly merged law firm Hagler Bruce Turner Law PLC has signed a six-year lease for a 4,500 square-foot space at Thousand Oaks Business Park in Memphis. The firm is comprised of attorneys Monica Hagler, a former city attorney and operator of the Law Office of Monica Hagler; Kevin Bruce, previously with Farris Bobango and the Bruce-Turner Law Firm; and Van Turner, formerly a Butler Snow attorney. The Memphis Business Journal has more.


State Loses Federal Funds over Weak Texting Law

Tennessee is missing out on hundreds of thousands of dollars from the National Highway Traffic Safety Administration because the state law banning texting while driving is not strong enough, the Tennessean reports. Tennessee’s law falls short because of its narrow definition of texting while driving and because its penalty for violating the law does not escalate if someone does it repeatedly. State Rep. Jon Lundberg, R-Bristol, who spearheaded the passage of the original law, said he planned to introduce legislation next year to beef up the fines.


Hamilton County Commission Accepting Magistrate Applications

The Hamilton County Commission is taking applications for two magistrate (judicial commissioner) positions that will be open on Oct. 31 when the terms of Larry Ables and Jeffrey Davis expire, the Chattanoogan reports. The deadline to apply is Sept. 23 and appointments will be made on Oct. 16. The magistrates set bonds and sign warrants from an office at the County Jail. They provide coverage on nights and weekends when judges are not at the courthouse.


Senate Committee OKs Measure Defining a Journalist

The Senate Judiciary Committee today approved legislation designed to protect reporters and the news media from having to reveal their confidential sources after narrowing the definition of a journalist while establishing which formats -- traditional and online -- provide news to people. The vote cleared the way for the full Senate to consider the media shield measure, WTCBTV reports. The vote came just months after the disclosure that the Justice Department had secretly subpoenaed almost two months' worth of telephone records for 21 phone lines used by reporters and editors for The Associated Press and secretly used a search warrant to obtain some emails of a Fox News journalist.


Judge: Fellow Republicans to Blame for Politicizing Judiciary

Circuit Court Judge Rex Henry Ogle told a Newport civic club that his fellow Republicans are to blame for the politicization of Tennessee’s independent judicial branch of government, to the detriment of its citizens. Speaking at a Kiwanis Club luncheon Tuesday, Ogle criticized the Republican-led General Assembly’s decision to pass workers’ compensation legislation that “entirely” removes the court system from looking at cases, adding that he disagreed with the governor's assessment that the previous plan was keeping business from coming to Tennessee, the Newport Plain Talk reports.


Former Vandy Law Dean to Lead Syracuse

Former Vanderbilt Law School Dean Kent D. Syverud has been selected as the 12th chancellor and president of Syracuse University, Syracuse.com reports today. Syverud, who currently serves as dean of Washington University's School of Law in St. Louis, has also served as a clerk for Supreme Court Justice Sandra Day O'Connor and as a trustee of the Deepwater Horizon Oil Spill Trust, a $20 billion fund created by BP to pay claims arising from the Gulf of Mexico oil spill.


Belmont Hosts Sophia's Heart Legal Clinic Sept. 26

Belmont College of Law Legal Aid Society will host a free legal clinic Sept. 26 at 6:00 p.m. for residents of Sophia’s Heart, a transitional shelter for families in crisis that helps them get back on their feet, secure housing and resolve personal, financial, and employment impediments. The clinic will offer free legal advice to assist families in resolving various civil and criminal issues. It will be held at 1034 Eastland Ave in Nashville. To learn how you can help, contact director Katie Blankenship at (615) 796-9027.


Health Insurance Exchange Now Available Through TBA

Fast and easy health insurance enrollment is now available through the TBA Health Insurance Exchange operated by JLBG Health. Affordable health insurance coverage is important, but getting it can be complicated, frustrating and expensive. The TBA Health Insurance Exchange can help make the whole process simpler and easier to navigate.


 
 

Questions, comments: Email us at TBAToday@tnbar.org

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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