Wednesday, September 18, 2013


Supeme Court to Rule on Online Threat to Tenn. Judge

The U.S. Supreme Court has been asked to decide when an online threat becomes worthy of prosecution. The justices will meet Sept. 30 to decide whether to review the prosecution of an Iraq war veteran who was sentenced to 18 months in prison for posting a YouTube video in which he sang about killing a Tennessee judge. “We think it’s potentially quite a significant case. People say things in the online world that they don’t mean seriously,” said the veteran’s attorney, Chris Rothfeld. “Second, it’s difficult to tell in the online world how a statement is intended. People say things and write things and they are read in an entirely different context.” Wired magazine has the story.

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
03 - TN Court of Appeals
06 - 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

CORRECTION: On page five (5) the Appellate Judge has been corrected to Judge Chris Craft in the following case E2012-00495-SC-R11-CD - State of Tennessee v. Toni S. Davis. On page six (6) the Appellate Judge has been corrected to Judge Jerry Smith in the following case E2010-02446-SC-R11-CD - State of Tennessee v. Michael David Fields

Court: TN Supreme Court

TN Court of Appeals

CORRECTION: A correction was made to the footnote on the bottom of page 7.

Court: TN Court of Appeals


Arthur F. Knight, III, and Jonathan Swann Taylor, Knoxville, Tennessee, for the appellant, Rhea County, Tennessee.

Howard L. Upchurch, Pikeville, Tennessee, for the appellees, Margie R. Huskey and Norman Huskey.


In this negligence action, the trial court, following a bench trial, found the defendant 51% at fault and the plaintiff 49% at fault for a severe injury plaintiff, Margie R. Huskey, suffered to her left arm at the Rhea County Convenience Center. The trial court assessed total compensatory damages at $298,376.65, which it reduced by 49%, awarding $152,172.09 to Ms. Huskey. The court further assessed damages of $25,000.00 for loss of consortium in favor of plaintiff, Norman Huskey, which it likewise reduced by 49%, awarding $12,750.00. The County raises three issues on appeal: (1) whether the trial court erred by finding the County liable for negligence; (2) whether the injured plaintiff was at least 50% at fault and therefore barred from recovery; and (3) whether the damages awarded were excessive. Discerning no error, we affirm.


Court: TN Court of Appeals


Richard Glassman and Jonathan Stokes, Memphis, Tennessee, for the Plaintiff/Appellants, Julie and Kevin Speck

Marty R. Phillips and Michelle Greenway, Jackson, Tennessee, for the Defendant/Appellees, Woman’s Clinic, P.A., and Ryan Roy, M.D.

Judge: KIRBY

This appeal involves inquiry notice of the claimed injury for purposes of triggering the medical malpractice one-year statute of limitations. The plaintiffs, a married couple with four children, wanted to prevent the conception of another child. To that end, the plaintiff wife underwent a procedure to prevent pregnancy at the defendant medical clinic. About a year later, she became pregnant. The wife later gave birth to a healthy baby boy. The plaintiffs filed this medical malpractice lawsuit against the clinic and the treating physician, claiming the wife’s pregnancy as the injury. The defendants filed a motion for summary judgment, arguing that the plaintiffs’ claim was barred under the applicable one-year statute of limitations. The trial court held that the wife was put on notice of her pregnancy by, at the very latest, the day that she obtained a positive result on a home pregnancy test; it held that the claim was time-barred on that basis and granted the defendants’ motion for summary judgment. The plaintiffs’ subsequent motion to alter or amend was denied. The plaintiffs now appeal. Discerning no error, we affirm.

In re: Trevor M. K. W.

Court: TN Court of Appeals


Ross Mitchell, Selmer, Tennessee, for the appellant, Timothy L. Wells

Carma Dennis McGee, Savannah, Tennessee, for the appellees, Jason Darryl Young and wife, Felecia Lynn Young

Melissa G. Stewart, Selmer, TN, for the Guardian Ad Litem


The juvenile court terminated Father’s parental rights to Son on the grounds of abandonment and persistence of conditions, and upon its finding that termination is in Son’s best interest. We affirm the termination of Father’s parental rights to Son.

TN Court of Criminal Appeals


Court: TN Court of Criminal Appeals


Jeffrey A. Vires (on appeal and at trial) and James P. Smith, Jr. (at trial), Crossville, Tennessee, for the appellant, Donald West Allen, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Randall A. York, District Attorney General; Gary McKenzie, Deputy District Attorney General; and Amanda M. Hunter, Assistant District Attorney General, for the appellee, State of Tennessee.


Donald West Allen, Jr. (“the Defendant”) was charged with three counts of rape of a child, and a jury convicted the Defendant of three counts of aggravated sexual battery. After a sentencing hearing, the trial court sentenced the Defendant to nine years on each count, with the sentences for counts one and two to run consecutively and the sentence for count three to run concurrently, for an effective term of eighteen years’ incarceration, to be served at 100%. In this direct appeal, the Defendant raises four issues: (1) the trial court erred in allowing the State to reference uncharged conduct during its opening statement and then to adduce testimony about the uncharged conduct during trial; (2) the evidence is not sufficient to support his convictions; (3) the trial court erred in singling out a juror for questioning after the close of proof; and (4) his sentence is excessive. Upon our thorough review of the record and applicable law, we discern no reversible error. Accordingly, we affirm the trial court’s judgments.


Court: TN Court of Criminal Appeals


David Lawrence Holt, Manchester, Kentucky, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The pro se petitioner, David Lawrence Holt, appeals the Sullivan County Criminal Court’s summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the dismissal on the grounds that the petitioner failed to state a cognizable claim for habeas corpus relief.


Court: TN Court of Criminal Appeals


Kenneth D. Quillen and Dale M. Quillen, Nashville, Tennessee, for the appellant, Johnny Lynn.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Kim R. Helper, District Attorney General; and Stacey B. Edmonson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Johnny Lynn, appeals the Perry County Circuit Court’s denial of his petition for post-conviction relief from his convictions for two counts of rape of a child and two counts of aggravated sexual battery and resulting effective sentence of fifty-four years to be served at 100%. On appeal, the Petitioner contends that he received the ineffective assistance of counsel because trial counsel failed to advise him of his right to waive ex post facto protections and be sentenced pursuant to the 2005 amendments to the Tennessee Sentencing Reform Act of 1989. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.


Court: TN Court of Criminal Appeals


David M. Discenza and Kyle Mothershead, Nashville, Tennessee, for the appellant, Curtis Lee Majors.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rob McGuire and Brett Gunn, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Curtis Lee Majors, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his convictions of tampering with evidence and simple possession and resulting effective fifteen-year sentence. On appeal, the Petitioner contends that he received the ineffective assistance of counsel. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.


Court: TN Court of Criminal Appeals


Jeffry S. Grimes, Clarksville, Tennessee, for the appellant, Brian Patrick Pierce.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Robert Nash, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Brian Patrick Pierce, pled guilty in the Montgomery County Circuit Court to aggravated kidnapping and aggravated robbery. The trial court sentenced the appellant to concurrent sentences of ten years for each offense. On appeal, the appellant challenges the sentences imposed by the trial court. Upon review, we affirm the judgments of the trial court.


Court: TN Court of Criminal Appeals


David K. Calfee, Cleveland, Tennessee, for the appellant, Alex Stevino Porter.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; Steven Bebb, District Attorney General; and James H. Stutts, Assistant District Attorney General, for the appellee, the State of Tennessee.


Petitioner, Alex Porter, appeals from the post-conviction court’s denial of his petition for post-conviction relief following an evidentiary hearing. Petitioner was convicted of first degree murder and sentenced to life in prison with the possibility of parole. On appeal, Petitioner contends that the post-conviction court erred in denying the petition because both trial counsel and appellate counsel rendered ineffective assistance of counsel. More specifically, Petitioner contends that trial counsel was ineffective at trial by (1) failing to adequately investigate, develop, or present a theory of self-defense; (2) allowing a witness to improperly assert Fifth Amendment protection after a prior admonition from the trial court; (3) failing to properly advise the petitioner of his right to testify on his own behalf and failing to preserve Petitioner’s right to appeal Momon defects in the trial court proceedings; (4) announcing to the jury that Petitioner was incarcerated at the time of trial; and (5) failing to challenge the expert witness testimony of the State’s firearms examiner or presenting rebuttal evidence to her testimony. Petitioner contends that trial counsel was ineffective on appeal by failing to adequately communicate with him during the appellate process. Petitioner further contends that he was denied due process during the post-conviction proceedings. Following our review of the record, we affirm the denial of relief.

Consumer Statute May Be Key in Tenn. Meningitis Lawsuits

As victims of the fungal meningitis outbreak file lawsuits in advance of the Oct. 1 cutoff, many are counting on a consumer protection law passed by the state legislature in the 1970s to aid their cases, Nashville Public Radio reports. The statute says if a manufacturer is insolvent, then someone hurt by a product can go after the seller instead. The now-bankrupt New England Compounding Center produced and shipped the moldy steroids to pain clinics around the country -- including Nashville’s Saint Thomas Outpatient Neurosurgical Center, which administered more doses than anyone else in the state. Injury lawyer Mark Chalos says the clinic essentially acted as a seller under consumer statutes. The clinic’s lawyer – C.J. Gideon – contends that his client doesn’t sell anything; it provides services.  As many as 150 lawsuits are expected in Tennessee; more than three dozen were filed just yesterday, the Tennessean reports.

Belmont Law Grads Face Tight Market

As the charter class of Belmont University’s College of Law prepares to graduate in May, its members face a tight legal job market. The Tennessean highlights Ed Leonard and his 120 fellow students as they prepare to enter a saturated legal market, and looks at Belmont's efforts to connect law students with local firms. “We have worked closely with many practitioners in Nashville and elsewhere to help identify opportunities for our students to engage in appropriate legal work as part of their education,” said Jeff Kinsler, founding dean. “We are one of a few law schools, if not the only law school, to require students to complete a practical skills course each semester.”

8 Lawyers Suspended for Fee, IOLTA Violations

The Tennessee Supreme Court yesterday (Sept. 17) suspended eight lawyers who did not pay their annual registration fee to the Board of Professional Responsibility and/or did not file a mandatory compliance statement that eligible client funds are held in accounts participating in the Interest on Lawyers’ Trust Accounts (IOLTA) program. Those who have complied with the rules since the orders were issued, and for whom notification of a status change has been received from the Board of Professional Responsibility, are noted as reinstated. Download the order.

Waverly Lawyer Reinstated

Waverly lawyer James Phillips Bradley was reinstated to the practice of law on Aug. 4 after completing his suspension and satisfying conditions that were to be completed prior to reinstatement. Download the BPR notice.

Kingsport Bar, LAET Hosts Free Legal Clinics

The Kingsport Bar Association, Legal Aid of East Tennessee and the TBA Young Lawyers Division will host free legal advice clinics to assist low-income individuals every third Thursday of the month. The first clinic will be held tomorrow in downtown Kingsport, 243 East Charlemont Ave., at 4:30 p.m. Read the press release for more information. 

Citizenship Assistance Workshop Sept. 21

In collaboration with legal and community volunteers, the Legal Aid Society will host a free citizenship assistance workshop Saturday in Nashville. The workshops provide an opportunity for local immigrant families to receive free assistance in applying for naturalization, opening the doors for increased civic participation and integration. Appointments are available from 9:30 a.m. to 11:30 a.m.

Casey Anthony Prosecutor Jeff Ashton to speak at UT

In June 2011, Casey Anthony was accused of murdering her two-year-old daughter, Caylee Anthony, whose remains were found close to the Anthony home. The case was highly sensationalized and covered in the news media for months. Jeff Ashton, the prosecutor in this trial, sought the death penalty. Anthony was found not guilty. Ashton will be speaking about his experiences in this case as well as his book “Imperfect Justice: Prosecuting Casey Anthony” on Tuesday at 7 p.m. in the UTK University Center Auditorium. This event is free and open to the public.

ABA Offers Retirement Benefits for the Legal Sector

Looking for a retirement plan for yourself or your employees? The ABA Retirement Fund provides unique, full service 401(k) plans specifically for the legal community. By leveraging the assets of its 3,800 client firms, the ABA plan offers packages typically available only to large corporations. For more information contact a regional representative at (800) 826-8901 or visit


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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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