Federal Background Checks of Health Counselors on Hold

The Tennessee Department of Commerce and Insurance is backing off a requirement that health counselors be fingerprinted and undergo federal background checks before advising the public about health insurance options under the Affordable Care Act. The agency, which issued rules last week mandating federal background checks, now says there is not enough time to run checks through the federal system so basic background checks will have to do. It also clarified that anyone at a church or library can give advice without needing a background check so long as they are not handling confidential information. The Tennessee General Assembly previously passed legislation requiring background checks for those who handle sensitive information in the process of helping Tennesseans file for new health insurance coverage. Nashville Public Radio 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.

00 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
05 - 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 Court of Appeals

MARYAM GHORASHI-BAJESTANI v. MASOUD BAJESTANI

Court: TN Court of Appeals

Attorneys:

John P. Konvalinka and Jillyn M. O’Shaughnessy, Chattanooga, Tennessee, for the appellant, Maryam Ghorashi-Bajestani.

John R. Meldorf, III, Hixson, Tennessee, for the appellee, Masoud Bajestani.

Judge: FRIERSON

This is the second appeal in this post-divorce matter. Wife, Maryam Ghorashi-Bajestani (“Wife”), was granted a divorce from husband, Masoud Bajestani (“Husband”), on April 16, 2009. Following the first appeal to this Court, the case was remanded to the trial court. Various petitions and motions were filed by the parties, seeking modification of the trial court’s valuation of marital property, modification of child support, a lien on husband’s assets to secure his child support and alimony obligations, a finding of contempt, and an award of attorney’s fees. The trial court, inter alia, modified Husband’s child support obligation due to his reduced income, found Husband in contempt for his late payments of child support and alimony, and awarded Wife attorney’s fees. Both parties appeal the trial court’s order. We affirm in part, reverse in part, and remand for further proceedings.


KAY F. FRITZ v. CVS CORPORATION D/B/A CVS PHARMACY, INC.

Court: TN Court of Appeals

Attorneys:

Kay F. Fritz, Chattanooga, Tennessee, Pro se appellant.

G. Michael Luhowiak, Daniel M. Stefaniuk, and William J. Rieder, Chattanooga, Tennessee, for the appellee, CVS Corporation d/b/a CVS Pharmacy, Inc.

Judge: SWINEY

Kay F. Fritz (“Plaintiff”) sued CVS Corporation d/b/a CVS Pharmacy, Inc. (“Defendant”) alleging that Defendant had improperly filled a prescription for Plaintiff causing Plaintiff damages. Defendant filed a motion for involuntary dismissal or in the alternative for summary judgment. After a hearing, the Trial Court granted Defendant summary judgment after finding that Plaintiff was unable to prove an essential element of her claim, i.e., causation. Plaintiff appeals to this Court. We affirm.


IN RE JUSTIN T. H.

Court: TN Court of Appeals

Attorneys:

Jessica R. McAfee, Greeneville, Tennessee, for the appellant, Christopher S. H.

Linda T. Woolsey, Greeneville, Tennessee, for the appellees, Brandi N. W. and Jonathan B. W.

Leslie E. Douthat, Greeneville, Tennessee, guardian ad litem for the minor, Justin T. H.

Judge: MCCLARTY

This is a termination of parental rights case in which Mother and Stepfather filed a petition to terminate the parental rights of Father to the Child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of Father’s parental rights on the statutory ground of abandonment and that termination of his rights was in the Child’s best interest. Father appeals. We affirm the decision of the trial court.


LEVEL 3 COMMUNICATIONS, LLC v. RICHARD ROBERTS, COMMISSIONER OF REVENUE, STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, and Jonathan N. Wike, Assistant Attorney General, for the appellant, Richard H. Roberts, Commissioner of Revenue, State of Tennessee.

Brett R. Carter, Nashville, Tennessee, for the appellee, Level 3 Communications, LLC.

Judge: COTTRELL

Company providing dial-up and broadband Internet services to Internet Service Providers that in turn provided these services to end-users sought refund of sales taxes it had paid to the State from January 2001 through March 2004 on the ground that its services did not constitute “telecommunications” or “telecommunication services” as those terms are defined in Tenn. Code Ann. § 67-6-102(a)(32). Both the Company and the State filed motions for summary judgment and the trial court granted the Company’s motion. The trial court found the Company provided Internet access services, the services were “enhanced” rather than “basic” services, and the true object of the services was not telecommunications. We affirm the trial court’s judgment.


IN RE: SAHARA W.

Court: TN Court of Appeals

Attorneys:

Robin Gunn, Knoxville, Tennessee, for the appellant, Jasmine W.

Robert E. Cooper, Jr., Attorney General and Reporter; and, Alexander S. Rieger, Assistant Attorney General, for the appellee, State of Tennessee Department of Children’s Services.

Judge: SWINEY

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Knox County (“the Juvenile Court”) seeking to terminate the parental rights of Jasmine W. (“Mother”) to the minor child Sahara W. (“the Child”). A new permanency plan was approved following the filing of the petition. After a trial, the Juvenile Court entered an order finding and holding, inter alia, that clear and convincing evidence had been proven that grounds existed to terminate Mother’s parental rights under Tenn. Code Ann. § 36-1-113 (g)(2) and (g)(3), and that termination of Mother’s parental rights was in the Child’s best interest. Mother appeals the termination of her parental rights, arguing that she was not properly notified of being at risk of losing her parental rights because the new permanency plan was approved after the filing of the petition. We hold that Mother sufficiently was put on notice that her parental rights were subject to being terminated at trial. We affirm the judgment of the Juvenile Court in its entirety.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. VERNICA SHABREE CALLOWAY

Court: TN Court of Criminal Appeals

Attorneys:

C. Dawn Deaner, District Public Defender (on appeal and at trial); and James P. McNamara, Assistant Public Defender (at trial), for the appellant, Vernica Shabree Calloway.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren and Katrin Miller, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Vernica Shabree Calloway, was convicted of aggravated child neglect, a Class A felony, and reckless aggravated assault, a Class D felony. The trial court merged the assault conviction with the neglect conviction and sentenced the defendant as a violent offender to twenty-five years in the Department of Correction. On appeal, the defendant argues that: (1) the evidence is insufficient to support her convictions; (2) the trial court erred by not requiring the State to make an election of offenses; (3) the trial court erred in not instructing the jury that it could convict her of either Count 1 or Count 2 of the indictment, but not both; (4) her convictions violate double jeopardy; (5) the trial court erred in admitting expert opinion testimony after the State violated the trial court’s order with respect to the information that could be provided to the expert; (6) the trial court erred in admitting as an exhibit a “learned treatise”; (7) the trial court erred in admitting unfairly prejudicial and irrelevant evidence; (8) the trial court erred by denying her motion to redact portions of her interviews with the police and the Department of Children’s Services (“DCS”); (9) the trial court erred in admitting testimony from the victim’s foster mother; and (10) the trial court imposed an excessive sentence. Following our review, we conclude, as we will explain, that the defendant’s issues are without merit. Accordingly, we affirm the judgment of the trial court but remand for entry of an amended judgment setting the defendant’s release eligibility at 30%.


AUBREY TREMAINE EISOM v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

W. Taylor Hughes, Jackson, Tennessee (on appeal), and Danny Goodman, Jr., Tiptonville, Tennessee (at post-conviction hearing), for the appellant, Aubrey Tremaine Eisom.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Aubrey Tremaine Eisom (“the Petitioner”) was convicted by a jury of two counts of first degree felony murder and one count of especially aggravated robbery. The trial court sentenced the Petitioner to life imprisonment for each felony murder conviction and to forty years’ incarceration for the especially aggravated robbery conviction, all to run consecutively. The Petitioner subsequently filed for post-conviction relief, which the postconviction court denied following an evidentiary hearing. The Petitioner now appeals, arguing that he received ineffective assistance of counsel at trial and on appeal. Upon our thorough review of the record and the applicable law, we conclude that the Petitioner is not entitled to post-conviction relief. Accordingly, we affirm the post-conviction court’s decision denying relief.


STATE OF TENNESSEE v. ROBERT HURST AND DESTINY HURST

Court: TN Court of Criminal Appeals

Attorneys:

Bruce E. Poston, Knoxville, Tennessee, for the appellant, Robert Hurst.

John M. Boucher, Jr., Knoxville, Tennessee, for the appellant, Destiny Hurst.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Ta Kisha M. Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

A Knox County jury found appellants Robert Hurst and Destiny Hurst guilty of four counts of felony murder; one count of second degree murder as a lesser-included offense of felony murder; one count of first degree premeditated murder; and two counts of especially aggravated robbery. They were found not guilty of two counts of especially aggravated kidnapping and not guilty of all counts of employing a firearm during a dangerous felony. The trial court imposed life sentences upon both appellants for the murder conviction,a concurrent eighteen-year sentence for appellant Robert Hurst’s especially aggravated robbery conviction, and a consecutive thirty-five-year sentence for appellant Destiny Hurst’s especially aggravated robbery conviction. In this appeal, appellants jointly challenge the sufficiency of the convicting evidence underlying the felony murder convictions and the trial court’s failure to poll the jury as to a witness’s status as an accomplice. Appellant Robert Hurst argues that there was a conflict surrounding the manner in which authorities matched his fingerprint to the bloody fingerprint found at the scene. Appellant Destiny Hurst claims that the State committed a Brady2 violation; that the trial court erred in permitting the State to present evidence of her other crimes, wrongs, or acts pursuant to Tennessee Rule of Evidence 404(b); and that the trial court erred in characterizing her as a professional criminal, sentencing her at the top of her range, and imposing consecutive sentences. Based on our review of the record as a whole, we affirm both appellants’ convictions and sentences. However, for each appellant, we remand this cause for entry of a single judgment form reflecting merger of all counts of murder and a single judgment form reflecting merger of both counts of especially aggravated robbery. Appellant Destiny Hurst’s judgment for especially aggravated robbery should note consecutive sentence alignment of her thirty-fiveyear sentence with her life sentence for murder. We also note, with respect to appellant Destiny Hurst, that the record does not contain a judgment form for Count 12, knowingly employing a firearm during the commission of a dangerous felony after having been previously convicted of the same. Thus, we order the criminal court to supplement the record with a judgment form reflecting the jury’s verdict of not guilty on this count of the indictment.


STATE OF TENNESSEE v. JOSHUA D. JONES

Court: TN Court of Criminal Appeals

Attorneys:

Leonard G. Belmares, II, for the Defendant-Appellant, Joshua D. Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Dan M. Alsobrooks, District Attorney General; and Carey J. Thompson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Joshua D. Jones, appeals from the Dickson County Circuit Court’s order revoking his probation. The Appellant previously entered a guilty plea to initiation of a process intended to result in the manufacture of methamphetamine in violation of Tennessee Code Annotated section 39-17-435 and was sentenced to six years in the Department of Correction. The sentence was suspended, and the Appellant was placed on Community Corrections and then transferred to the drug court program. The Appellant was terminated from the drug court program, and the trial court subsequently revoked the Appellant’s probation and ordered that he serve his original six-year sentence. Upon review, we affirm the judgment of the trial court.


STATE OF TENNESSEE V. JEFFREY KRISTOPHER KING and KASEY LYNN KING

Court: TN Court of Criminal Appeals

Attorneys:

Kimberly S. Hodde, Nashville, Tennessee, for the appellant, Jeffrey Kristopher King.

Jeremy Parham, Nashville, Tennessee, for the appellant, Kasey Lynn King.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney General; William Whitesell (Rutherford County), Victor S. Johnson III (Davidson County), and Tom P. Thompson (Sumner County), District Attorneys General; and John C. Zimmermann, Senior Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: BIVINS

Jeffrey King (“Defendant J. King”) entered conditional guilty pleas in Rutherford County to one count of conspiracy to sell over seventy pounds of marijuana and one count of possessing over seventy pounds of marijuana; to several counts of felony marijuana offenses and several counts of money-laundering offenses in Davidson County; and to several counts of felony marijuana offenses, several counts of money-laundering offenses, and one count of a felony firearm offense in Sumner County. Kasey King (“Defendant K. King”) (collectively “the Defendants”) entered conditional guilty pleas in Davidson County to two counts of felony marijuana offenses and two counts of money-laundering offenses; and to one count of a felony firearm offense and two counts of felony marijuana offenses in Sumner County. These conditional guilty pleas were entered after the trial courts denied the Defendants’ motions to suppress evidence gleaned from wiretaps on several telephones. Each of the Defendants reserved certified questions of law regarding the legality of the wiretaps and timely appealed. This Court ordered that the appeals be consolidated. We now consider the Defendants’ certified questions of law and hold that the trial courts did not err in denying the Defendants’ motions to suppress. Accordingly, the Defendants are entitled to no relief from their pleas of guilt. Therefore, we affirm the trial courts’ judgments and the Defendants’ convictions.


CHRISTY D. NAILLON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Dennis C. Campbell, Sevierville, Tennessee, for the appellant, Christy D. Naillon.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; James B. Dunn, District Attorney General; and George Ioannides, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Christy D. Naillon (“the Petitioner”) pleaded guilty to one count of aggravated child abuse. As part of her plea agreement with the State, the trial court sentenced her to fifteen years’ incarceration. The Petitioner subsequently filed for post-conviction relief, which the postconviction court denied following an evidentiary hearing. The Petitioner now appeals, arguing that her indictment was deficient, that she received ineffective assistance of counsel, and that her guilty plea was not entered knowingly, intelligently, and voluntarily. After reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.


Panel Meets to Evaluate DCS, Juvenile Processes

A panel of seven state agency commissioners, eight elected representatives and seven judges — known as the Three Branches Institute — will meet Thursday to discuss ways to improve the state’s child protective services and juvenile justice system. The members of the group, which also includes first lady Crissy Haslam, have met quarterly since August 2012 to align services among the branches of government. A Department of Children’s Services news release said the members are seeking to develop standardized assessments to be used by the courts and guide DCS in data collection. The group also is investigating alternatives to juvenile incarceration. The meeting will be its last one for the year, The Tennessean reports.


Vanderbilt Accused of ‘Patient Dumping’

Already facing lawsuits on its recent decision to lay off thousands of workers, Vanderbilt Medical Center is now being accused of discharging patients prematurely – a practice known as “patient dumping.” A suit working its way through circuit court in Nashville claims that the early discharge of a motorcycle accident victim is part of a broader practice the hospital uses when people are not able to pay for care they need. In response to the suit, lawyers for Vanderbilt deny that the care was deficient or that the patient was “dumped.” They have asked that the case be dismissed. In another story, The Tennessean reports that the hospital was fined $80,000 in 2008 for refusing to accept a patient with an “unstable emergency medical condition.”


Caller Claims to be Judge in Phone Scam

Nashville area residents have been receiving calls saying they are about to be arrested but can avoid jail by sending money. One recipient of a call said he had a message from someone with a “strange sounding, heavily accented, and almost robotic voice.” The caller, who identified himself as Judge Kevin Mason, claimed the resident had been convicted and found guilty but his case had been continued to the next day. He went on to say that failure to return the call would lead the “high court” to send legal officers to take the recipient into custody. NewsChannel 5 investigated the claim and spoke to the “judge” who insisted $485 needed to be paid. However he hung up as soon as the reporter started asking questions. Experts recommend that recipients of such calls immediately hang up and file a complaint with the Federal Trade Commission.


Fellowship Funds Graduate's Work at Legal Aid

As part of a law school fellowship program at American University’s Washington College of Law, recent graduate Malika Noel is serving in the Knoxville office of Legal Aid of East Tennessee for one year. “When I heard about the fellowship opportunity, I immediately knew that I wanted to do legal aid work,” Noel said. “It takes only one day in court to see that lower-income Americans are grossly under-represented in our legal system…Everyone deserves to be treated with dignity, and everyone deserves a meaningful chance at justice. Legal aid attorneys are on the front lines of making sure that happens, and I’m thrilled to be a part of that.” Read more about Noel’s background in this release from Legal Aid.


23 Apply For 2 Magistrate Posts in Hamilton County

The Chattanoogan.com reports that 23 individuals have applied for two vacancies as Hamilton County magistrates or judicial commissioners. The applicants include incumbents Larry Ables and Jeffrey Davis. The County Commission will select two candidates, who will set bonds and sign warrants at the county jail. See the list of candidates on the paper’s website.


Sumner Schools Exonerated of Child Abuse

A special judge has ruled that a Sumner County teacher may have treated six special-needs children in a “rough and inappropriate’’ manner, but her actions did not rise to the level of abuse, and the school system is not responsible for what happened. The case, heard by Judge Jane Wheatcraft, alleged that the children had been subject to abuse by a teacher who used unconventional methods to achieve behavior modification. Wheatcraft was appointed by the Tennessee Supreme Court to preside over the case after Sumner County Circuit Court Judge Buck Rogers recused himself citing his wife’s work at Hendersonville High School. The Tennessean has more on the story.


Sen. Norris Elected Chair of National Government Group

Tennessee state Sen. Mark Norris, R-Collierville, was elected chair of the Council of State Governments at the group’s annual meeting held recently in Kansas City. Norris, the Senate Republican majority leader, is the first Tennessean to chair the group, The Commercial Appeal reports. The council is a national bipartisan professional association composed of members of the legislative, executive and judicial branches of state governments. “It is an honor to lead this organization and continue the tremendous work that it has done throughout the United States and North America,” Norris said. He will ascend to the position in December.


Hamilton D.A. to Retire

Hamilton County District Attorney Bill Cox announced yesterday he will not seek re-election in next year's voting, Chattanoogan.com reports. "I love this job," he said, but cited his age as the primary factor in the decision. Cox has nearly 40 years experience in the criminal justice system. In 1972, he joined the Chattanooga Police Department and obtained his undergraduate and law degrees while working there. He then joined the district attorney’s office after graduating from the Nashville School of Law. Cox cited his office's success in reducing crime as a great achievement, but also advocated for two reforms: requiring equal discovery rules for both the prosecution and defense, and allowing prosecutors to show a photo of the victim to the jury, which he said some courts have ruled against.


Barristers Breakfast Happening Oct. 4

Memphis attorneys will be flipping pancakes and serving guests at the 14th Annual Barristers' Pancake Breakfast on Oct. 4 from 7:30 to 9 a.m. The event, held each year by the Memphis office of Baker, Donelson, Bearman, Caldwell & Berkowitz, will take place at Calvary Episcopal Church, 102 N. Second St. 38103. All proceeds will benefit the Susan G. Komen for the Cure. Contact longtime organizer Judy Birchler at (901) 577-2243 or jbirchler@bakerdonelson.com for more information.


Sen. Chambliss to Speak at UT Law Next Week

U.S. Sen. Saxby Chambliss of Georgia, a 1968 graduate of the University of Tennessee College of Law, will speak at the school Oct. 4 at noon in the Baker Donelson Classroom (Room 132). Presented as part of the Joel A. Katz-Sun Trust Lecture Series, Chambliss will reflect on his 18 years on Capitol Hill, which included eight years in the U.S. House of Representatives and 10 years in the U.S. Senate where he has focused on homeland security, intelligence and agriculture issues. The event is free and open to the university community. Read more about the event and Chambliss’ background on the law school’s website.


Show Your Professional Pride with the TBA Visa

TBA members can now show their professional pride and get rewarded for doing so. The Tennessee Bar Association Visa® Platinum Rewards Card is now available to all members. Apply now and earn points at hundreds of online retailers. Redeem your points for name-brand merchandise, event tickets, gift cards, travel rewards options and more. Apply now!


 
 

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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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