Are Lawyers Health Insurance Navigators?

The Tennessee Department of Commerce and Insurance has issued emergency rules requiring registration for individuals counseling or advising the uninsured on how to sign up for health care coverage or facilitate enrollment by companies under the Affordable Care Act. The rules implement legislation adopted earlier this year. The Tennessean reports that critics say the rules are overly broad, will delay their work, and will not protect the public from fraud. Due to the broad nature of the rules, the TBA is investigating how they might affect attorneys advising individual and business clients on health care insurance matters.

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
02 - 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

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
CORRECTION: Page one (1) The Action section has been corrected to Denied: Application of State of Tennessee in the following case M2013-00912-SC-R11-CD - State of Tennessee v. Barry D. McCoy (Also please see Page eleven (11) Attached Order)

Court: TN Supreme Court


TN Court of Appeals

TENNESSEE ASPHALT COMPANY V. BRIAN FULTZ

Court: TN Court of Appeals

Attorneys:

Dale Bohannon, Cookeville, Tennessee, for the appellant, Tennessee Asphalt Company.

Edward J. Shultz, Knoxville, Tennessee, for the appellee, Brian Fultz.

Judge: MCCLARTY

This is a breach of contract case in which Company sought to hold Defendant personally liable for the amount remaining on a contract. During Company’s proof-in-chief, Defendant used parol evidence attempting to show that while he signed the contract, the parties understood that he was signing as a representative of his business. Following Company’s presentation of its proof, Defendant moved for involuntary dismissal pursuant to Rule 41 of the Tennessee Rules of Civil Procedure. The trial court granted Defendant’s motion, finding that Company failed to establish that Defendant was personally liable. Company appeals. We affirm the decision of the trial court.


EILEEN KING, AS NATURAL PARENT AND NEXT OF KIN OF HALEY KING v. KENNETH FOHT, ET AL.

Court: TN Court of Appeals

Attorneys:

Randall J. Fishman, Richard S. Townley, Samuel M. Fargotstein, Memphis, Tennessee, for the appellants, Eileen King, as natural parent and next of kin of Haley King

Meredith A. Lucas, Memphis, Tennessee, for the appellees, Kenneth Foht and Laurie Foht

Judge: HIGHERS

After her daughter was attacked by a tenant’s dog, the mother plaintiff sued the tenant and the property owners. The trial court granted summary judgment in favor of the property owners based upon a lack of knowledge/notice of the dog’s vicious propensities. For the following reasons, we reverse the grant of summary judgment and we remand for further proceedings.


TAMMY MILAM v. JAMES MILAM

Court: TN Court of Appeals

Attorneys:

Mark R. Olson, Clarksville, Tennessee, for the appellant, Tammy L. Milam.

Mark A. Rassas and Julia P. North, Clarksville, Tennessee, for the appellee, James P. Milam.

Judge: CLEMENT

Mother appeals from the trial court’s post-divorce modification decreasing Father’s child support obligation. Finding no error, we affirm. We have also determined that Father is entitled to recover the reasonable and necessary attorney’s fees he incurred in this appeal pursuant to Tennessee Code Annotated § 36-5-103(c).


LEE STEVENS & DENISE STEVENS, INDIVIDUALLY AND D/B/A TIMBER RIDGE HORSE CAMPGROUND ET AL. v. ROBERT H. LIVINGSTON AND RIDGE TOPPERS TRAIL ASSOCIATION, INC.

Court: TN Court of Appeals

Attorneys:

Lynda W. Simmons, Livingston, Tennessee, for the appellants, Denise Stevens, individually and d/b/a Timber Ridge Horse Campground, Joe Geisler, Diane Geisler John Foy, Mary Foy,

Michael Jackson, Jamie Jackson, Nancy Jastatt, Alan Sanders, Terri Sanders, Carl Juergens, Sandy Macy, Ted Macy, Jerry Cantrell, and Pat Cantrell.

Linda J. Hamilton Mowles and Katrina J. Atchley Arbogast, Knoxville, Tennessee, for the appellee, Ridge Toppers Trail Association, Inc.

Melanie Lane, Jamestown, Tennessee, for the appellee, Robert H. Livingston.

Judge: CLEMENT

Plaintiffs/appellants, who are owners of real property in a residential community that was developed for horse riding enthusiasts, filed this action to enforce restrictive covenants that prohibit the use of motorized vehicles on trails in the residential community. At the hearing on the defendants’ motions to dismiss, all of the parties agreed to the entry of an order prohibiting the use of any motorized vehicles on horse trails within four specified sections that contained the restrictive covenants; at the same hearing, the parties also agreed with the trial court’s statement that all other claims would be dismissed. A Final Order was entered that was consistent with the parties’ agreement. Although the plaintiffs consented in open court to the order that was entered and they did not file a motion to alter or amend that order, plaintiffs now appeal from that order. On appeal, they contend they were deprived of the opportunity to put on evidence at the hearing on the motions to dismiss; they also contend the court erred in dismissing all other claims. Finding the plaintiffs expressly consented in open court to the entry of the order appealed from, that the plaintiffs made no request to introduce evidence, and that they agreed to the dismissal of all other claims, we have determined that the plaintiffs waived all issues raised in this appeal. Therefore, we affirm the trial court. Defendants contend this was a frivolous appeal and have requested damages. Exercising our discretion, we respectfully deny the defendants request for damages.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. MICHAEL ALAN BURLESON

Court: TN Court of Criminal Appeals

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee (on appeal), and Mack Garner, Maryville, Tennessee (at trial), for the appellant, Michael Alan Burleson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Betsy Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Michael Alan Burleson, pled guilty to three counts of aggravated burglary of a vehicle and was sentenced to a total of five years to be served on community corrections. Thereafter, the trial court revoked the sentences and ordered the appellant to serve the balance of his sentence in confinement. On appeal, the appellant contends the trial court abused its discretion by denying an alternative sentence. Upon review, we affirm the judgments of the trial court.


CHARLES EDWARD GRAHAM aka CHARLES EDWARD STEVENSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Charles Edward Graham aka Charles Edward Stevenson, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The pro se petitioner, Charles Edward Graham aka Charles Edward Stevenson, appeals as of right from the Knox County Criminal Court’s order denying his petition for writ of error coram nobis alleging that newly discovered evidence concerning the judicial misconduct of a trial judge affected the outcome of his 2005 jury trial and 2010 post-conviction evidentiary hearing. The State has filed a motion to affirm the trial court’s order pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Following our review, we conclude that the State’s motion is well-taken and affirm the order of the trial court.


JOHNNY L. McGOWAN v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Johnny L. McGowan, Pro se, on appeal, and Jon Wing, at trial, for the Defendant-Appellant, Johnny L. McGowan.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Amy Hunter, on appeal and James Douglas Sledge, at trial, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

Pro se petitioner, Johnny L. McGowan, appeals the Davidson County Criminal Court’s summary dismissal of his petition for post-conviction relief. On appeal, the Petitioner asserts that the statute of limitations should be tolled because his claim is based on a constitutional right that did not exist at the time of his plea, and further contends that the post-conviction court erred in failing to appoint counsel prior to dismissal. Upon review, we affirm the judgment of the post-conviction court.


CHARLES NASH v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Benjamin L. McGowan, Chattanooga, Tennessee, for the appellant, Charles Nash.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William H. Cox, District Attorney General; and Neal Pinkston, Executive Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Charles Nash (“the Petitioner”) filed a petition for post-conviction relief from his convictions for first degree murder and especially aggravated robbery. After an evidentiary hearing, the post-conviction court denied relief. The Petitioner appealed, claiming that he is entitled to relief because his lawyer provided ineffective assistance of counsel with regard to a motion to suppress, in failing to object to the State’s closing arguments, and in failing to present a defense of duress. Upon our thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. BRUCE ANTON PARKS, JR.

Court: TN Court of Criminal Appeals

Attorneys:

Barbara W. Clark (at trial and on appeal), Knoxville, Tennessee, and Richard Hughes (at trial), Cleveland, Tennessee, for the appellant, Bruce Anton Parks, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Robert Steven Bebb, District Attorney General; and Stephen Hatchett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Bradley County Criminal Court Jury convicted the appellant, Bruce Anton Parks, Jr., of aggravated rape and aggravated robbery, and the trial court sentenced him to twenty-five years and six years, respectively, to be served consecutively. On appeal, the appellant contends that the evidence is insufficient to support the convictions, that the trial court committed plain error by failing to declare a mistrial when the State questioned a police officer about whether anyone had provided an alibi for the appellant, and that his effective thirty-one-year sentence is excessive. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. JOSHUA LYNN PITTS

Court: TN Court of Criminal Appeals

Attorneys:

Gregory M. Reed, Murfreesboro, Tennessee, for the Appellant, Joshua Lynn Pitts.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Bradshaw, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; Tom Jackson, Assistant District Attorney General, Shawn Puckett, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

Following a bench trial, the trial court convicted the Defendant, Joshua Lynn Pitts, of driving under the influence (“DUI”). The trial court sentenced the Defendant to serve eleven months and twenty-nine days of probation after serving forty-eight hours in jail. On appeal, the Defendant contends that the trial court erred when it denied his motion to suppress the evidence obtained pursuant to an illegal stop of his vehicle. After thoroughly reviewing the record and applicable authorities, we conclude that the officer had reasonable suspicion to stop the Defendant’s vehicle. As such, we conclude that the trial court did not err when it denied the Defendant’s motion to suppress, and we affirm the trial court’s judgment.


STATE OF TENNESSEE v. CHRISTOPHER LEE SHAW

Court: TN Court of Criminal Appeals

Attorneys:

James (Jay) O. Martin, III (on appeal) and Jeremy Parham (at trial), Nashville, Tennessee, for the Defendant-Appellant, Christopher Lee Shaw.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Victor (Torry) S. Johnson, III, District Attorney General; and Jeff Burks, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

A Davidson County jury convicted the Defendant-Appellant, Christopher Lee Shaw, of possession of more than twenty-six grams of cocaine with the intent to sell or deliver within 1,000 feet of a child care agency, a Class B felony; evading arrest while operating a motor vehicle, a Class E felony; and possession of drug paraphernalia, a Class A misdemeanor. Shaw received an effective sentence of fifteen years in the Tennessee Department of Correction. The sole issue presented for our review is whether the evidence supporting Shaw’s drug-related convictions was sufficient to establish constructive possession. Upon review, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. GINGER ILENE HUDSON STUMP

Court: TN Court of Criminal Appeals

Attorneys:

District Public Defender, Donna Orr Hargrove, Lewisburg, Tennessee; Assistant Public Defender, Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the Defendant- Appellant, Ginger Ilene Hudson Stump.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; Charles Frank Crawford, Jr., District Attorney General; and Richard A. Cawley, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Ginger Ilene Hudson Stump, was indicted by a Bedford County Grand Jury for twenty-six counts of forgery. See T.C.A. § 39-14-114 (Supp. 2011). Pursuant to her plea agreement, Stump entered guilty pleas to six Class E felonies (counts 3, 7, 11, 13, 17, 19) involving more than $500 but less than $1,000 and one Class D felony (count 25) involving $1,000 or more but less than $10,000, with the trial court to determine the length and manner of service of the sentences. As a part of this agreement, the State dismissed the remaining nineteen forgery counts. Following a sentencing hearing, the trial court sentenced Stump as a career offender to twenty-four years in the Tennessee Department of Correction. On appeal, Stump argues that the trial court abused its discretion in denying her an alternative sentence and in denying her a community corrections sentence. Upon review, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. PIERRETTE L. WESSELS

Court: TN Court of Criminal Appeals

Attorneys:

Venus Niner, Franklin, Tennessee, for the appellant, Pierrette L. Wessels.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Kim R. Helper, District Attorney General; and Kelly Lawrence and Carlin C. Hess, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

After a bench trial, the Williamson County Circuit Court convicted the appellant, Pierrette L. Wessels, of driving under the influence (DUI), DUI per se, and failing to obey a traffic control device. The trial court merged the DUI per se conviction into the DUI conviction and sentenced the appellant to eleven months, twenty-nine days to be served as forty-eight hours in jail and the remainder on supervised probation. For failing to obey a traffic control device, the trial court sentenced the appellant to thirty days on probation to be served concurrently with the DUI sentence. On appeal, the appellant contends that the trial court erred by failing to grant her motion to suppress evidence. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.


TN Attorney General Opinions

Hours for Sale of Alcoholic Beverages

Court: TN Attorney General Opinions

Date: 2013-09-19

Opinion Number: 73


Funding of School Resource Officers

Court: TN Attorney General Opinions

Date: 2013-09-19

Opinion Number: 74


Vanderbilt Sued Over Summer Job Cuts

Attorneys with Barrett Johnston LLC, including civil rights lawyer George Barrett and former U.S. Attorney Jerry Martin, have filed a lawsuit against Vanderbilt University Medical Center, claiming the hospital violated the WARN Act when it terminated up to 300 workers in July without the federally mandated 60 days notice, the Tennessean reports. The lawsuit says, “Although the letters provided to the July 2013 group of terminated employees referenced ‘performance’ as part of the basis for the terminations, this was merely a ruse designed by the defendant to intentionally avoid the WARN Act's obligation and requirements.” The 275 workers let go yesterday were given 60 days notice, the newspaper reports.


ABA Issues Draft Report on Law School Overhaul

The ABA Task Force on Legal Education has recommended sweeping changes to how law students prepare to become lawyers, MLive reports. In a draft report issued today, the task force calls for serious re-engineering of how law schools are priced and financed. The concept of decreasing law school from three years to two in order to reduce student loan debt is currently a hot-button topic of discussion among the legal education sector, but the report does not engage the idea or suggest specific changes to the law school funding model. A final report will be issued after additional discussion about the draft recommendations.


DCS to Release Child Fatality Records at No Cost

The Department of Children’s Services will release at no cost all records from July 2012 going forward of children who died or nearly died while in its custody, the Tennessean reports. During an ongoing legal battle with the Tennessean and other news organizations to release the files, DCS originally said it would charge the news organizations over $30,000 to make copies of more than 200 records from January 2009 to June 2012. In response to a second request from The Tennessean and other media groups for more recent records spanning the period from July 1, 2012, to May 31, 2013, the agency again set a high price tag. This week however, an attorney for the agency said DCS Commissioner Jim Henry now views releasing the records as part of the agency’s day-to-day responsibilities.


AG Suing to Remove Lewis County Trustee

Tennessee Attorney General Bob Cooper is suing to remove Lewis County trustee Clark Carroll after state comptroller’s office auditors found $45,000 missing. According to the Chattanooga Times Free Press, the audit found that Carroll failed to deposit property tax payments on numerous occasions, wrote checks to himself from the county’s bank account and fabricated information on check memos, check stubs and receipts for deposits. Cooper is asking the court to suspend Carroll while the case is pending.


Rep. Hawk Convicted of Reckless Endangerment

Rep. David Hawk was convicted of reckless endangerment by an East Tennessee jury yesterday, the Johnson City Press reports. The case stems from an incident in which his ex-wife alleged he had struck her. Judge Paul Summers earlier dismissed a felony charge of aggravated assault against Hawk, saying that prosecutors hadn't proved that his ex-wife suffered serious bodily injuries.


Youth Recognized for Constitution Week Essays

Eleven Jackson-Madison County School students were named Constitution Week essay winners by the Jackson-Madison chapter of Daughters of the American Revolution during a ceremony held yesterday, the Jackson Sun reports. Students were asked to answer several questions in the essay, including “how does our government establish justice and ensure domestic tranquility?” and “how does the government promote general welfare among the people?” “Constitutional literacy is in a bad state among young adults once they reach college,” said Micah Watson, an associate professor of political science at Union University. “Seeing young people learning early is a bright spot. I’m glad to see the DAR and the community doing more to educate our youth.”


New App puts Constitution at Your Fingertips

The 2,860 page annotated Constitution is now available for free in an app released Tuesday in honor of Constitution Day, the ABA Journal reports. The app was released by the Senate Committee on Rules and Administration, the Library of Congress, and the Government Printing Office and is available from iTunes.


Program Connects Diverse Attorneys, Law Students with Mentors

As the Leadership Council for Legal Diversity approaches its fifth year, leaders of the initiative are reviewing what they've accomplished in their efforts to give women, minority attorneys and law students opportunities to network with industry decision-makers and develop leadership skills. Each year, member law firms and legal departments select one or two diverse attorneys who have displayed leadership potential to join the LCLC Fellows and spend the next year being mentored by top attorneys, attending leadership and networking functions and going on “ learning experiences.” Learn more abou the program from the National Law Journal.


Professor Guides Law Firm Incubator Movement

Fred Rooney is director of the Touro College law schools’ International Center for Post-Graduate Development and Justice, a New York-based national clearinghouse for the law firm incubator and legal residency movement. Rooney works to support recent graduates developing small and solo firms. Much like the incubator recently established in Memphis, lawyers pay rent for shared office space and training in business skills and professional development. The ABA Journal has more.


Event Marks 30 Years for Coalition to End Domestic and Sexual Violence

The Tennessee Coalition to End Domestic & Sexual Violence will host "Pearls & Pinstripes," a gala evening with silent auction on Oct. 10 at 6 p.m. at the Loews Vanderbilt Hotel in Nashville. The nonprofit works to end violence in the lives of Tennesseans through public policy, advocacy, education and activities that increase the capacity of programs and communities to address violence. News anchor Demetria Kalodimos is honorary chair of the event celebrating the Coalition's 30th year. For tickets and sponsorship information, visit www.tncoalition.org/pearls or call 615-386-9406.


CASA Holds Information Session Monday in Jonesborough

Court Appointed Special Advocates (CASA) of Northeast Tennessee is looking for additional volunteers to represent children in the judicial system as well as community leaders to serve on its board of directors. The agency will hold an information session for prospective volunteers on Monday from 6 to 7 p.m. at the Hutson & Howell Mediation Office, 132 Boone St., Ste 6, Jonesborough 37659. The Johnson City Press reports on the unmet needs in the region.


TBA Members Now Save with UPS

As a TBA member you now can save up to 36 percent on UPS Next Day Air and up to 18 percent on UPS Ground Shipping! Visit UPS online to learn how this new member benefit can deliver greater efficiencies for your firm. Already a UPS customer? You also are eligible for this discount once you register your account on the UPS' TBA discount site.


 
 

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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