5 Apply for Supreme Court, 6 for Court of Appeals Opening

Eleven candidates have submitted their applications for appellate court openings in Tennessee. Christopher Bright Craft, William Lewis Jenkins Jr., Holly M. Kirby, John Brook Lathram and Steven J. Mulroy have applied for an opening on the Tennessee Supreme Court. Kenny W. Armstrong, Frank S. Cantrell, Brandon O. Gipson, Rhynette Northcross Hurd, Edward L. Martindale Jr. and Dorothy J. Pounders have applied for the Court of Appeals Western Section. The newly created Governor’s Commission on Judicial Appointments will meet Nov. 12 in Jackson and Nov. 13 in Nashville to interview and hear public comments regarding the applicants.

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
11 - TN Court of Appeals
05 - 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

APAC-ATLANTIC, INC., HARRISON CONSTRUCTION DIVISION v. STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

Michael D. Newton, Chattanooga, Tennessee, and M. Craig Hall, Pro Hac Vice, Atlanta, Georgia, for the appellant, APAC-Atlantic, Inc., Harrison Construction Division.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Melissa A. Brodhag, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: FRIERSON

This is a breach of contract claim brought by the appellant road paving contractor, APAC- Atlantic, Inc., Harrison Construction Division (“APAC”), after the defendant, the Tennessee Department of Transportation (“TDOT”), refused payment of $221,998.36 pursuant to a special “rideability,” or smoothness, provision of the parties’ written contract. The Claims Commission, William O. Shults, Commissioner, finding the special provision language to be unambiguous, denied the claim. APAC appeals. Discerning no error, we affirm.


JAMES F. DILL, JR. ET AL. v. CONTINENTAL CAR CLUB, INC. ET AL.

Court: TN Court of Appeals

Attorneys:

Edward H. Trent and Catherine E. Shuck, Knoxville, Tennessee, for the appellants, Continental Car Club, Inc. and Fortegra Financial Corporation.

R. Wayne Peters and Gary L. Henry, Chattanooga, Tennessee, for the appellees, James F. Dill, Jr. and James C. Thurman, Jr.

Judge: SUSANO

Two executive employees of Continental Car Club, Inc., resigned in order to start a business in competition with their former employer. The issues on appeal are (1) whether the employees resigned for “Good Reason” as that term is defined in their employment agreements; (2) whether the employees violated their employment agreements by copying all the data on their work computers to personal computers shortly before resigning; (3) whether the non-competition and non-solicitation provisions of their agreements are enforceable; (4) whether the trial court correctly found the employees liable for conversion; and (5) whether the employees violated the Tennessee or Florida Uniform Trade Secrets Act. We hold that the employees did not establish that they resigned for “Good Reason.” We further hold that they violated their employment agreements, and, accordingly, we reverse the trial court’s judgment awarding them severance pay and benefits. We affirm the trial court’s judgment on the conversion claim but modify the judgment to award the former employer the value of tickets to a football game that one of the employees converted by sending the tickets to business clients, then renting a bus and taking the clients to the game several months after the employee’s resignation. We hold that the trial court correctly determined that the covenants not to compete were valid and enforceable and that the agreements are reasonable in time and geographic limits but overbroad in scope. Therefore, we reverse the trial court’s judgment in part and modify it in part. With respect to the portion of the trial court’s judgment not reversed, we affirm, as modified.


SANDRA HILL v. COTTONWOOD ESTATES

Court: TN Court of Appeals

Attorneys:

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Sandra Hill.

William Allen Wooten, Covington, Tennessee, for the appellee, Cottonwood Estates.

Judge: FARMER

Plaintiff appeals judgment in favor of Defendant apartment complex. We affirm.


IN RE JAYLEN J. ET AL.

Court: TN Court of Appeals

Attorneys:

John M. Lawhorn and Matthew A. Grossman, Knoxville, Tennessee, for the appellant, Morristown Certified Properties General Partnership.

James W. Harrison, Morristown, Tennessee, for the appellee, William J., as parent of Jaylen J.

Judge: SUSANO

This appeal focuses on a public request for juvenile court records. Morristown Certified Properties General Partnership (“Petitioner”) was sued in a civil action by the victim of an assault that took place on its property. In preparing for its defense, Petitioner filed a motion in the Juvenile Court for Hamblen County seeking access to the juvenile court records of Jaylen J. and Adrian H (“the juveniles”), the two individuals who allegedly perpetrated the subject assault. Following a hearing, the juvenile court granted Petitioner access to a portion of the records, but refused to release the remaining records based upon its finding that they were not relevant to the civil suit. On further review, the trial court adopted the juvenile court’s ruling and denied further inspection of the records. Petitioner appeals. During the pendency of the appeal, the issue of whether Petitioner is entitled to access the court records has become moot. Accordingly, we dismiss the appeal.


IN RE KAYLA N.A. ET AL.

Court: TN Court of Appeals

Attorneys:

Joshua Hedrick, Knoxville, Tennessee, for the appellant, Megan A. A.

Wayne D. Wykoff, Knoxville, Tennessee, for the appellee, Teresa W.

Judge: SUSANO

Megan A.A. (“Mother”) appeals the termination of her rights to her children, Kayla N.A. and Haylei M.A. (“the Children”).1 The Department of Children’s Services filed a petition alleging that the Children were dependent and neglected as a result of both parents’ drug abuse. On the same day, the juvenile court entered an ex parte order awarding temporary custody of the Children to Teresa W., the Children’s paternal grandmother (“Grandmother”). After later entering an agreed order that adjudicated the Children as dependent and neglected, the court awarded temporary legal and physical custody to Grandmother. More than a year after the Children came into her custody, Grandmother filed a petition in the trial court to terminate Mother’s parental rights. Following a bench trial, the court granted the petition based on its finding that Mother abandoned the Children by willfully failing to visit and support them. The court further found that termination of Mother’s rights is in the Children’s best interest. The court stated that it made both findings by clear and convincing evidence. Mother appeals. We affirm.


IN RE LAVANIE L. L.1

Court: TN Court of Appeals

Attorneys:

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Bernadin L.

Robert E. Cooper, Jr., Attorney General and Reporter, and Martha A. Campbell, Deputy Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children’s Services.

Mary L. Ward, Knoxville, Tennessee, guardian ad litem for the minor, Lavanie L. L.

Judge: MCCLARTY

This is a termination of parental rights case in which the Tennessee Department of Children’s Services 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 grounds of abandonment and severe child abuse and that termination of his rights was in the Child’s best interest. Father appeals. We affirm the decision of the trial court.


DAVID LENOIR, as COUNTY TRUSTEE, ET AL. v. HARDIN’S-SYSCO FOOD SERVICES, LLC

Court: TN Court of Appeals

Attorneys:

Robert B. Rowling, Memphis, Tennessee, for the appellants, David Lenoir, as County Trustee and Shelby County, Tennessee.

Fred M. Ridolphi, Jr., Memphis, Tennessee, for the appellee, Hardin’s-Sysco Food Services, LLC.

Judge: FARMER

This appeal arises from the trial court’s determination that Defendant Taxpayer was entitled to a refund in the amount of $323,596.14. We affirm the trial court’s determination that Taxpayer is entitled to a refund, but vacate the judgment with respect to the amount of refund due Taxpayer. We remand for further proceedings consistent with this Opinion.


DR. LARRY RAWDON v. TENNESSEE BOARD OF MEDICAL EXAMINERS

Court: TN Court of Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Sara E. Sedgwick, Senior Counsel, for the appellant, the Tennessee Board of Medical Examiners.

Frank Scanlon and Samuel P. Helmbrecht, Nashville, Tennessee, for the appellee, Dr. Larry Rawdon.

Judge: DINKINS

This appeal involves and Administrative Procedures Act proceeding in which the Tennessee Board of Medical Examiners appeals an order of the trial court which vacated a civil penalty imposed by the Board on a licensed pharmacist when the Board found that the pharmacist illegally practiced naturopathy and practiced medicine without a license. We affirm the judgment of the trial court vacating the penalty and remand the case with instructions for the court to remand the case to the Board of Medical Examiners for reconsideration of the penalty.


JOHN RIAD V. ERIE INSURANCE EXCHANGE

Court: TN Court of Appeals

Attorneys:

Suzanne S. Cook, Johnson City, Tennessee, and S. Morris Hadden, Kingsport, Tennessee, for the appellant, Erie Insurance Exchange.

Joshua H. Jenne, Cleveland, Tennessee, for the appellee, John Riad.

Judge: MCCLARTY

This case concerns Erie’s refusal to pay insurance proceeds to Plaintiff, who filed suit, alleging claims of breach of contract, bad faith refusal to pay, and violations of the Tennessee Consumer Protection Act, codified at Tennessee Code Annotated section 47-18-101, et. seq. The case proceeded to jury trial. After denying a myriad of motions and reopening the proof to admit the insurance policy into evidence, the trial court submitted the case to the jury. The jury awarded Plaintiff compensatory and punitive damages and found that Erie’s failure to pay was in bad faith and in violation of the Tennessee Consumer Protection Act. The court assessed the statutory bad faith penalty and awarded treble damages and attorney fees. Erie appeals. We affirm the decision of the trial court.


SHANNON RALEY, INDIVIDUALLY AND AS NEXT OF KIN OF TIFFANY RALEY, DECEASED v. CITY OF KNOXVILLE

Court: TN Court of Appeals

Attorneys:

James K. Scott, Knoxville, Tennessee, for the appellant, Shannon Raley.

Ronald E. Mills, Deputy Law Director, Knoxville, Tennessee, for the appellee, City of Knoxville.

Judge: FRIERSON

This action presents the question of whether a claim properly may be brought against the City of Knoxville (“the City”) pursuant to the Governmental Tort Liability Act (“GTLA”) under circumstances where a tree located on the real property of a private landowner fell and caused the death of a motorist traveling on a city street. The trial court dismissed the claim, finding that the City maintained immunity pursuant to the GTLA and the public duty doctrine. Plaintiff appeals. We affirm the trial court’s dismissal of the claim.


IN RE TAURIAN L C-G, ET AL.

Court: TN Court of Appeals

Attorneys:

Brandon Michael Booten, Murfreesboro, Tennessee, for the appellant, John Warren G.

Aaron C. Hall, Murfreesboro, Tennessee, Guardian Ad Litem.

Robert E. Cooper, Jr., Attorney General and Reporter and Paul Jordan Scott, for the appellee, State of Tennessee, Department of Children’s Services.

Judge: COTTRELL

This is an appeal from an order of terminating a biological father's parental rights. Because the father did not file his notice of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4, we dismiss the appeal.


TN Court of Criminal Appeals

RAYMOND AMAYA v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Rosalind E. Brown, Memphis, Tennessee, for the appellant, Raymond Amaya.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Charles Summers, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Petitioner appeals from the denial of his petition for post-conviction relief from his conviction for possession with intent to sell over 300 grams of cocaine and resulting sentence of 13.5 years as a mitigated offender. On appeal, Petitioner contends that he received ineffective assistance of counsel and that his guilty plea was rendered involuntary by the ineffective assistance of counsel. Based upon our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. RYAN NEAL DICKENS

Court: TN Court of Criminal Appeals

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Ryan Neal Dickens.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle Consiglio-Young, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Robert Wilson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Ryan Neal Dickens, pled guilty in the Cheatham County Circuit Court to voluntary manslaughter. The trial court imposed a sentence of three years, with one year to be served in confinement and the remainder on probation. On appeal, the appellant challenges the trial court’s refusal to grant a sentence of full probation. Upon review, we affirm the judgment of the trial court.


STATE OF TENNESSEE V. WILLIAM ANTHONY MCDANIEL

Court: TN Court of Criminal Appeals

Attorneys:

Bill Speek, Chattanooga, Tennessee, for the appellant, William Anthony McDaniel.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; William H. Cox, III, District Attorney General; and Yolanda Mitchell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, William Anthony McDaniel, appeals the denial of his “Motion to Correct Judgment/Sentence or in the Alternative Motion to Withdraw Guilty Plea.” The petitioner pled guilty in 2002 to three counts of rape of a child, Class A felonies, and was sentenced as a Range I offender to concurrent terms of twenty-five years for each offense to be served at 100%. On appeal, the petitioner contends that his sentence should be reduced to reflect service of the sentence at 30%, as a standard Range I offender, or in the alternative that his plea was not knowingly and voluntarily entered because the 100% service requirement for child rape was never explained to him. Following review of the record, we affirm the denial of the motion.


STATE OF TENNESSEE v. CALVIN PERSON AND MAURICO GRANDBERRY

Court: TN Court of Criminal Appeals

Attorneys:

Joseph A. McClusky (on appeal) and Michael Working (at trial), Memphis, Tennessee, for the appellant, Maurico Grandberry; and Lauren Pasley-Ward, Memphis, Tennessee, for the appellant, Calvin Person.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Reginald Henderson and Kate Edmands, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: BIVINS

Calvin Person (“Defendant Person”) and Maurico Grandberry (“Defendant Grandberry”) (collectively “the Defendants”) were convicted by a jury of first degree felony murder. The trial court sentenced the Defendants to life imprisonment. On appeal, Defendant Grandberry asserts that the trial court erred in not severing the Defendants. Defendant Person argues that the trial court erred in: excluding evidence of Defendant Grandberry’s involvement in a separate robbery on the day the victim in this case was killed; admitting Defendant Person’s statement to police; including the natural and probable consequences rule in its jury instruction on felony murder; and denying Defendant Person’s request to provide a special jury instruction on the requisite mens rea necessary for criminal responsibility. Additionally, both of the Defendants contend that the evidence presented at trial was insufficient to support their convictions. After a thorough review of the record and the applicable law, we affirm the Defendants’ convictions.


JEFFERY BOYD TRUSTY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Kimberly S. Hodde, Nashville, Tennessee, for the appellant, Jeffery Boyd Trusty.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Katrin Novak Miller, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Petitioner, Jeffrey Boyd Trusty, was convicted of first degree premeditated murder, first degree felony murder, especially aggravated kidnapping, and theft over $1,000 by a Smith County jury. The trial court merged the murder convictions and sentenced Petitioner to an effective sentence of life imprisonment. Petitioner’s sentence and convictions were affirmed on appeal. State v. Trusty, 326 S.W.3d 582, 585 (Tenn. Crim. App. 2010). Petitioner filed a petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel at trial and various violations of due process. After an evidentiary hearing, the post-conviction court denied post-conviction relief. Petitioner appeals. After a review of the record and applicable authorities, we affirm the judgment of the post-conviction court denying post-conviction relief.


Poll: Vast Majority Thinks Spending Influences Judges’ Decisions

A new poll shows that 87 percent of voters believes campaign and special interest spending on judicial elections have an influence on a judge’s decision. “As this poll makes clear, Americans are worried that our fair courts are at risk,” said Alicia Bannon, counsel in the Democracy Program at the Brennan Center for Justice. “We need stricter rules for when judges have to step aside from cases, so that judges aren’t hearing cases involving donors who spent large sums getting them elected. We also need stronger disclosure laws so the public knows who is spending money trying to shape our courts.” Gavel Grab has more.


Abortion Referendum Campaign Starting to Heat Up

A Supreme Court ruling 13 years ago that threw out 48-hour mandatory waiting periods for abortions and requirements that all but first-term abortions be performed in hospitals is back in the spotlight in Tennessee. According to Fox News 17, anti-abortion rights activists like state Senate Speaker Ron Ramsey are already planning high-dollar fundraisers one year before a constitutional amendment will be presented next fall. The amendment would give lawmakers more power to restrict access to abortions.


Haunted House Litigation is a Ghost Area of Law

If someone suffers a heart attack or other health problem while visiting a haunted house, is the company liable for their medical bills? According to the Law Blog of the Wall Street Journal (subscription required), this area of law is still unclear. America Haunts reports that there are more than 1,500 haunted attractions and amusement facilities that have Halloween-specific attractions and none of them has ever been embroiled in any sort of major litigation. “They all come of their own free will,” Stephen Hummel of America Haunts told the Law Blog. “And they want to be scared, so complaining wouldn’t make sense.”


Marvin Gaye’s Family Accuses Thicke of Copyright Infringement

The family of music legend Marvin Gaye has filed a lawsuit against singer Robin Thicke and music publisher EMI for copyright infringement, the Tennessean reports. The family, represented by Nashville entertainment attorney Richard Busch, claimed in a federal lawsuit filed in California yesterday that Thicke has a pattern of unlawfully borrowing from Gaye, who died in 1984. The family accuses Thicke of stealing from Gaye’s “Got to Give It Up” and “After the Dance” for his chart–topping songs “Blurred Lines” and “Love After War.” Thicke denies the allegations and had filed a preemptive suit in August stating, “Being reminiscent of a sound is not copyright infringement … The intent in producing ‘Blurred Lines’ was to evoke an era. In reality, the Gaye defendants are claiming ownership of an entire genre.”



Airlines Aim to Settle Merger Lawsuit

Anonymous sources have told the Wall Street Journal that American Airlines and US Airways will propose giving up some takeoff and landing rights at Washington's Reagan National Airport in hopes of settling a government lawsuit blocking their merger. The offer could be rejected, however, and the airlines are still planning on the case going to trial Nov. 25. WDEF News 12 has more.


Jackson Lawyer to Lead Tennessee Railroads Group

Tausha Carmack Alexander has been named the new executive director for Tennessee Railroads, the lobbying group for the state’s top railroad companies. She previously was a civil defense lawyer in Kingsport, the vice president and deputy general counsel for the Tennessee Bankers Association and the owner of her own government relations practice in Jackson. The Nashville Business Journal has the story.


Clarksville Students Learn About Legal Careers

More than 60 freshmen students from the Criminal Justice and Homeland Security Academy at West Creek High School in Clarksville are learning the laws, the justice system and the various fields they offer, the Leaf Chronicle reports. The academy supports and prepares students for post secondary endeavors in the fields of criminal justice and homeland security. Many say they aspire to become lawyers, police officers, forensic investigators or judges.


TBA Mentoring Program for New Lawyers

The TBA Mentoring Program is geared to helping the growing number of newly admitted lawyers opening solo practices. Beginning now, and running through Jan. 3, 2014, TBA members in their first three years of law practice may apply to be matched with a mentor. Those participating in the program will commit to a formal mentoring relationship for one year -- beginning in February -- with a requirement that mentors and mentees meet face-to-face at least once a month. Participants will be able to choose one of two tracks: a track that offers up to seven hours of CLE credit or one that will not include CLE. Participants will choose from a variety of curriculum topics, materials for which will be available on the TBA website. In addition to seeking mentees, the TBA is recruiting attorneys with at least eight years of legal practice experience to serve as mentors. Whether you are a new lawyer in need of a mentor or a seasoned lawyer with wisdom to share, visit the TBA's mentoring webpage to learn more about this exciting opportunity.


Knox County Commissioner Announces Bid for Trustee

Knox County Commissioner Ed Shouse says he plans to run for county trustee in 2014, Knoxnews reports. Shouse, who has more than 35 years of experience in banking and finance, said he believes that experience would help him as tax collector. “There’s one job at the courthouse in county government that I always thought I’d be good at, and that’s the trustee,” Shouse told the News Sentinel yesterday. Craig Leuthhold, who was appointed in July to finish trustee John J. Duncan’ term after he resigned amid charges of misappropriating funds, may also run in 2014.


Sumner County Judge Not Seeking Re-election

Sumner County Chancellor Tom E. Gray will not seek re-election in 2014, the Tennessean reports. In a statement yesterday, Gray, 71, said he considered many factors in making the decision. “The term is for eight years, and I cannot keep the pace that I set in 1982,” he said. “Another factor is that I would like to be available to do things with my family, travel a bit and do genealogy research.” Three Gallatin attorneys — Jim Hawkins, Mark Smith and Joe Thompson — have already indicated an interest in the position but have not made an official announcement.


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 www.abaretirement.com.


Alexander Bill Would Repeal Federal Inheritance Tax

Tennessee Sen. Lamar Alexander is cosponsoring a bill to repeal the federal estate tax, the Nashville Business Journal reports. The legislation, introduced by Sen. John Thune (R- South Dakota) in June, is like one passed by the Tennessee General Assembly in April 2012 that will eliminate Tennessee's inheritance tax after 2015. "Nobody should be forced to sell the farm or family-owned small business they've just inherited in order to pay the tax bill," Alexander said in a news release.


 
 

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.


© Copyright 2013 Tennessee Bar Association