Wednesday, September 25, 2013


Tennessee CASA Names 2013 Award Winners

Tennessee CASA today presented 13th Judicial District Attorney General Randy York with its 2013 Champion for Children Award. York, who serves Clay, Cumberland, DeKalb, Overton, Pickett, Putnam and White counties, was recognized for his use of a state law allowing the seizure of assets following conviction for a sex crime against minors. Funding from the seizures goes to child abuse prevention organizations, including CASA. It also presented its CASA Advocate of the Year Award to the TBA’s  Stacey Shrader Joslin for her work as director of the Young Lawyers Division and a contributing writer to the association’s daily newsletter TBA Today. The TBA YLD has long supported the work of CASA through a variety of initiatives, and each year recognizes an outstanding volunteer in the state. See photos from the event here.

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
07 - TN Court of Appeals
01 - 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


Court: TN Court of Appeals


Monroe E. Davis, Memphis, Tennessee, appellant, pro se.

Dennis R. Baer, Memphis, Tennessee, for the appellee, Pinnacle Apartments.


Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.


Court: TN Court of Appeals


Stephen D. Crawley and Anna V. Blair, Memphis, Tennessee for Defendant/Appellant South Parkway Associates, L.P.

W. Bryan Smith and Peter B. Gee, Jr., Memphis, Tennessee for Plaintiff/Appellee Jerald Farmer, Individually and on behalf of Marie Farmer and Beneficiaries


This appeal concerns the denial of a motion to compel arbitration. The sister of the decedent signed several admissions documents on the decedent’s behalf for purposes of admitting her to the defendant health care facility. At that time, the sister also signed an optional arbitration agreement. Several days later, the decedent passed away, and subsequently, the decedent’s beneficiaries brought a wrongful death action against the healthcare facility on her behalf. The healthcare facility moved to compel arbitration, arguing that the sister had authority to bind the decedent to the terms of the arbitration agreement based on several agency theories, as no power of attorney existed. After reviewing the depositions submitted in lieu of live testimony, the trial court determined the arbitration agreement was not enforceable because the sister lacked the legal authority to bind the decedent. Based on a careful review of the evidence, we affirm.


Court: TN Court of Appeals


Olen G. Haynes, Sr., Johnson City, Tennessee, for the appellants, Melissa Brooke Haley, personally and for the use and benefit of her daughter, Starla Brooke Joanne Haley.

Joshua R. Walker, Associate General Counsel, The University of Tennessee, Knoxville, Tennessee, for the appellee, State of Tennessee.


This is a medical malpractice case. The plaintiff filed a claim with the Division of Claims Administration, as the resident physician alleged to have engaged in negligence was purportedly connected to a University of Tennessee training program at Erlanger Hospital in Chattanooga, Tennessee. The State moved the Commissioner to dismiss the plaintiff’s action for failure to comply with the requirements set out in Tennessee Code Annotated section 29-26-121(a). The Commissioner reluctantly agreed with the State’s position. We hold that the plaintiff complied with section 121(a)’s notice requirement by complying with the claim notice requirements of Tennessee Code Annotated section 9-8-402. We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that the plaintiff’s failure to provide all the items denoted in section 121(a) does not warrant dismissal with prejudice under the facts of this case. We vacate the dismissal order and remand for further proceedings.


Court: TN Court of Appeals


Andrea Sipes Lester, Jackson, Tennessee, for the Defendant/Appellants, Chris Davis and/or CD Development, LLC

Lanis L. Karnes and Christopher G. Covellis, Jackson, Tennessee, for the Plaintiff/Appellees, Mark Hawks and Design Consultants, Inc.

Judge: KIRBY

This appeal involves the tolling of the statute of limitations for a breach of contract. The plaintiff architect rendered services to the defendant real estate developer, and the developer failed to pay for the architect’s services. Approximately four years later, the architect recorded a lien against the real property to secure the indebtedness. The developer then promised the architect he would pay the indebtedness if the architect released the lien. The architect released the lien but still was not paid. Approximately four years after that, the architect filed this lawsuit against the developer to collect the debt. The developer asserted that the architect’s claim was barred by the six-year statute of limitations. After a trial, the trial court held that the statute of limitations was tolled under the doctrine of equitable estoppel, so the architect’s lawsuit was timely filed. The trial court entered a judgment in favor of the architect. The developer appeals only on the issue of whether the claim was time-barred. Discerning no error, we affirm.


Court: TN Court of Appeals


Michael Dudley Sontag, Stephen John Jasper, and Ashley Nation Bassel, Nashville, Tennessee, for the appellant, IBM Corporation.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, and Jonathan N. Wike, Assistant Attorney General, for the appellee, Reagan Farr, Commissioner of Revenue, State of Tennessee.


Commissioner of Revenue assessed Company a sales and use tax for its sale of a wide area network (“WAN”) service during the period 1998 through 2003 on the basis that the service was a “telecommunication service” as that term is defined in Tenn. Code Ann. § 67-6- 102(a)(32) (2003). Company denied its WAN constituted a taxable telecommunication service because users were limited to accessing information on geographically remote computers; the WAN did not allow its users to communicate with one another. Following motions for summary judgment, the trial court concluded the WAN service was a taxable telecommunication service. Company appealed, and we reverse the trial court’s judgment. The primary purpose of the WAN was to enable a company’s authorized users to access information related to the company’s business, not to provide communication between users. The fact that Company itself did not provide information does not alter the result.


Court: TN Court of Appeals


Dean Robinson, Mt. Juliet, Tennessee, for the appellant, Angela Denise Jones.

John Lyons Meadows, Lebanon, Tennessee, for the appellee, Mark Allen Jones.


Wife signed a marital dissolution agreement that was incorporated into a final divorce decree. After the final decree was entered, wife sought relief from the decree based on assertions that she was entitled to a greater portion of a settlement received by her husband prior to the divorce and that, contrary to the parties’ agreement, there was equity in the marital home. The trial court denied wife’s motion to alter or amend, and we find no abuse of discretion in the trial court’s decision.


Court: TN Court of Appeals


Gerald. L. Ewell, Jr., Tullahoma, Tennessee, for the appellant, G. Wayne Vandagriff.

D. Andrew Saulters, Nashville, Tennessee, for the appellee, James L. Massingille.


In this malicious prosecution action, the jury awarded the plaintiff compensatory damages and punitive damages. The trial court affirmed the punitive damages award; the court suggested a remittitur of the compensatory damages award, which the plaintiff accepted under protest. The defendant appeals the finding of liability, the award of damages, the admission of evidence, and the procedure followed by the court in affirming the punitive damages award; the plaintiff appeals the remittitur of the compensatory damages award. Finding that the court erred when it failed to follow the appropriate procedures in affirming the punitive damages award, we vacate the award and remand the case for further proceedings; in all other respects the judgment of the trial court is affirmed.

TN Court of Criminal Appeals


Court: TN Court of Criminal Appeals


Roger E. Nell, District Public Defender (on appeal); and Charles S. Bloodworth, Assistant District Public Defender (at hearing), for the appellant, Shanice L. Dycus.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle Consiglio-Young, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Kimberly Lund, Assistant District Attorney General, for the appellee, State of Tennessee.


The Defendant, Shanice L. Dycus, challenges the trial court’s denial of judicial diversion for her multiple convictions for various drug-related offenses, including possession of marijuana in excess of one half of a gram with intent to sell or deliver within 1,000 feet of a school zone. See Tenn. Code Ann. §§ 39-17-417, -432. She contends that the trial court erred by failing to consider all of the required factors in deciding her suitability for judicial diversion and by failing to state on the record how it weighed the relevant factors. The State counters that possession of marijuana in excess of one half of a gram with intent to sell or deliver in a school zone is a non-divertable offense and, regardless, that the trial court properly denied diversion under the standard announced in State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Following our review, we conclude that the offense for which the Defendant stands convicted is eligible for diversion but that the trial court failed to consider and weigh all of the factors relevant in its decision denying diversion. Therefore, we reverse the trial court’s denial of judicial diversion and remand this case for a resentencing hearing.

Hamilton County Circuit Judge Not Seeking Re-Election

Hamilton County Circuit Court Judge Jacqueline Schulten Bolton announced today that she will not seek re-election next year, the Chattanooga Times Free Press reports. "I leave the bench with profound appreciation and respect for my colleagues on the bench and my fellow lawyers," she wrote in a letter to the newspaper.

Mayor Dean Recommends Major Push Against Domestic Violence

Mayor Karl Dean yesterday released the results of a wide-ranging report on how Nashville responds to domestic violence, recommending dozens of changes to tackle the problem. The report — which Dean ordered more than two years ago — offers nine central recommendations designed to improve how the city responds to domestic violence, protects and provides justice for victims and holds abusers accountable. The Tennessean has more.

65 Immigrants Naturalized at 'Become a Citizen Now'

More than 60 immigrants were assisted by 12 lawyers in filing naturalization petitions Saturday during “Become a Citizen Now” workshops sponsored by the Tennessee Immigrant and Refugee Rights Coalition, Legal Aid Society and the mayor’s New Americans Advisory Council. Forty volunteers — including a dozen law students from Vanderbilt University Law School — assisted applicants in completing forms, with experienced attorneys responsible for the screening of applicants for their eligibility for naturalization and for final review of the completed forms. Mayor Karl Dean attended the event and spoke to participants filing for citizenship, saying: “You make our city a better place, a richer place. The city is proud of you.”

Judiciary, DOJ Brace for Government Shutdown

As Congress nears a showdown on government spending and the Obama administration's health care law, the federal judiciary and Department of Justice are preparing for a possible government shutdown, the Blog of the Legal Times reports. If Congress and the White House don't continue government funding by Oct. 1, federal courts could face widespread furloughs that will worsen an already "grave judicial crisis" caused by $350 million in budget cuts earlier this year, according to a memo the Administrative Office of the U.S. Courts sent Tuesday.

AG Cracks Down on E-Cigarettes

Tennessee Attorney General Bob Cooper and 39 other state attorney generals have asked the Food and Drug Administration to regulate electronic cigarettes like tobacco. In a letter to the FDA, the attorney generals outlined a need for more oversight on the advertising of such products, potential sales to minors and ingredients used. Knoxnew has the story.

Group Charges Bank of America With Discrimination in Memphis

A complaint from the National Fair Housing Alliance  alleges Bank of America discriminated against minority neighborhoods and property owners in Memphis in the way it handled bank-owned properties. The complaint, filed with the Department of Housing and Urban Development, charges that Bank of America failed to maintain and market properties in minority neighborhoods, while giving special treatment to its homes in predominantly white neighborhoods. Bank of America has denied the allegations, the Memphis Daily News reports.

Airlines Request Names of DOJ Interviewees

In a filing yesterday, American Airlines and US Airways have asked a federal court to order the Department of Justice to divulge the names of the people the government interviewed before it sued to block the airlines merger and what they revealed. According to Memphis Daily News, the airlines claim that turning over the names would reveal the thinking of antitrust lawyers who filed the lawsuit against the merger. The DOJ declined to comment. The case is schedule to go to trial Nov. 25.

Two Vying for Rhea County General Sessions Court Judgeship

Attorneys Shannon Garrison and Carol Ann Barron say they plan to run for Rhea County General Sessions Court Judge, hoping to replace Judge James W. McKenzie, who is not seeking re-election. Candidates have until February to submit qualifying paperwork for the August 2014 general election. The Chattanooga Times Free Press has the story.

Former Clinton Special Assistant, LGBT Advocate to Speak at TSU

Attorney Keith Boykins will speak at Tennessee State University as part of the Distinguished Lecture Series on Oct. 9 at 1 p.m. in Kean Hall. Boykins is a CNBC contributor, MSNBC commentator and New York Times bestselling author. He was the highest-ranking openly gay person in the Clinton White House and participated in the nation’s first meeting between a sitting president and leaders of the LGBT community. For more information, contact the Office of Student Affairs at (615) 963-5621.

Happy Hour Set to Mark Supreme Court’s New Term

The Memphis/Mid-South Chapter of the Federal Bar Association and Counsel on Call will hold a Happy Hour to kick off the start of the U.S. Supreme Court Calendar on Oct. 7. The event will run from 5 to 7 p.m. at the Cavern at the Brass Door, 152 Madison Ave. 38103. All are welcome to attend and enjoy free drinks until the tab runs out.

TDOC, Nonprofit 5K Walk Set For Saturday

The Tennessee Department of Correction and the nonprofit victim advocacy organization You Have the Power will host the “Walk Off Crime for No More Victims,”a 5K walk this Saturday to celebrate 20 years of serving the community. Founded in 1993 by former Tennessee First Lady Andrea Conte, the organization's mission is to advocate, educate and empower victims and communities impacted by violent crime. The event will begin at 10 a.m. at the Metro Courthouse steps in downtown Nashville. For more information, contact Melissa Cross at (615) 292-7027.

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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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