Free Legal Assistance Helped 1,800 in October

Tennessee lawyers helped 1,800 state residents by providing free legal information and advice throughout the month of October as part of the Tennessee Bar Association’s Celebrate Pro Bono initiative. Now in its fifth year, the initiative brings together bar associations, law schools, law firms, legal services providers and individual lawyers to offer free services to those unable to afford a lawyer. This year, more than 330 volunteers – including lawyers, law students, paralegals, notaries and language interpreters – held more than 80 events and activities across the state. Read more or see photos from some of the events.

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
07 - TN Court of Appeals
02 - TN Court of Criminal Appeals
01 - 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

KENNETH E. KING v. ANDERSON COUNTY, TENNESSEE
With dissenting opinion.

Court: TN Supreme Court

Attorneys:

Jonathan Swann Taylor, Knoxville, Tennessee, for the appellant, Anderson County, Tennessee.

Bruce D. Fox, Clinton, Tennessee, and Ronald C. Koksal, Knoxville, Tennessee, for the appellee, Kenneth E. King.

Judge: CLARK

We granted permission to appeal in this case to decide whether, for the purpose of determining proximate cause, an assault on an inmate by another inmate is always reasonably foreseeable because penal institutions house dangerous individuals. The plaintiff sued for injuries allegedly suffered as a result of negligence on the part of the staff of the Anderson County Detention Facility in classifying and housing the plaintiff and in failing to release him in a timely manner. The County denied any negligence on its part. The trial court found that while the County was not negligent in its classification or housing of the plaintiff, it had a duty and breached that duty in failing to timely release him. The trial court awarded the plaintiff $170,000 in damages, excluding medical bills, and assessed 55% of the fault to the County and 45% to the plaintiff. The Court of Appeals affirmed the trial court’s actions, making an additional finding that proximate cause existed sufficient to link the plaintiff’s injuries to the County’s breach of its duty to timely release him. We reverse the Court of Appeals and trial court in part and hold that Anderson County is not liable for failing to release the plaintiff in a timely manner because the injuries Mr. King suffered as a result of the delay were not reasonably foreseeable. The award of damages is vacated, with the exception of the statutorily mandated payment of the plaintiff’s medical bills, and the case is reversed and remanded to the trial court for dismissal.


TN Court of Appeals

IN RE ATIRA S. M.

Court: TN Court of Appeals

Attorneys:

Robert L. Sands, Murfreesboro, Tennessee, for the appellant, James C. M.

Amy Broom Pollina and Mary Bonita Tucker, Murfreesboro, Tennessee, for the appellees, Atria L. D. and Doniva E. D., III.

Judge: CLEMENT

Mother and step-father filed a petition to terminate the parental rights of the child’s father on the ground of abandonment for failure to support and failure to visit the child pursuant to Tennessee Code Annotated § 36-1-102(1)(A) and § 36-1-113. The trial court found the petitioners proved both grounds for termination and that termination was in the child’s best interest. Father appealed. We affirm.


TAMARA J. HARNESS v. GERALD SCOTT HARNESS

Court: TN Court of Appeals

Attorneys:

David S. Byrd, Morristown, Tennessee, for the appellant, Gerald Scott Harness.

J. Eric Harrison, Morristown, Tennessee, for the appellee, Tamara Harness.

Judge: SWINEY

This appeal arises from a dispute over the finality of a judgment and notice in a child support matter. Tamara J. Harness (“Plaintiff”) and Gerald Scott Harness (“Defendant”) have a history of litigation related to their divorce. On November 18, 2009, Defendant simultaneously filed separate petitions to modify his spousal support and child support obligations. The Chancery Court for Hamblen County (“the Trial Court”) confirmed the findings and recommendations of the magistrate with respect to child support on April 29, 2011 . After a hearing, the Trial Court set aside its April 29, 2011 modification of Defendant’s child support. Defendant appeals, arguing, among other things, that the Trial Court erred in addressing for a second time his petition to modify child support when that issue allegedly had been resolved by the magistrate’s findings and recommendations as confirmed by the Trial Court. We hold, inter alia, that the Trial Court’s order of confirmation was interlocutory rather than final, and that the Trial Court did not err in revisiting the child support issue. We affirm the Trial Court.


1963 JACKSON, INC., ET AL. v. LLOYD DE VOS, ET AL.

Court: TN Court of Appeals

Attorneys:

Cannon F. Allen and J. Bennett Fox, Jr., Memphis, Tennessee, for the appellant, Lloyd De Vos, Co-Trustee of the Isaac Burton Tigrett, II Trust and August King Tigrett Trust.

Charles H. Barnett, III and Sara E. Barnett, Jackson, Tennessee, for the appellees, 1963 Jackson, Inc., and Morgan Group, Inc.

Judge: FARMER

This appeal arises from Lessee’s rental and operation of a hotel owned by Lessor. Lessee sought Lessor’s consent to an assignment of the lease to a third party. Not only did Lessor withhold consent to the assignment, Lessor terminated the lease based on conditions at the hotel that he deemed to violate the lease. Lessee sued alleging that Lessor wrongfully terminated the lease and unreasonably withheld consent to the assignment. The trial court determined that Lessee had not breached the lease and that Lessor unreasonably withheld consent to the assignment. The trial court awarded Lessee $150,000 in damages for Lessor’s unreasonable withholding of consent to the assignment. Lessor appeals. We affirm in part and reverse in part.


IN RE JACOB H. C.

Court: TN Court of Appeals

Attorneys:

Jeffrey Spark, Nashville, Tennessee, for the appellant, Blake C.

Phillip R. Newman and Alisha Guertin Warner, Franklin, Tennessee, for the appellee, Stephanie B. C.

Judge: DINKINS

Father of child born out of wedlock appeals the parenting time and child support provisions of the parenting plan and the denial of his request that the child’s surname be changed from the Mother’s to the Father’s. We affirm the trial court’s denial of Father’s request that the child’s surname be changed, vacate the parenting time and child support provisions of the parenting plan, and remand the case for the court to make findings relative to those provisions of the plan.


LE-JO ENTERPRISES, INC. V. CRACKER BARREL OLD COUNTRY STORE, INC. ET AL.

Court: TN Court of Appeals

Attorneys:

J. Lewis Wardlaw, Memphis, Tennessee, for the appellant, Le-Jo Enterprises, Inc.

E. Steele Clayton, IV, and John W. Dawson, IV, Nashville, Tennessee, for the appellees, Cracker Barrel Old Country Store, Inc., and CBOCS Distribution, Inc.

Judge: CLEMENT

Plaintiff, a supplier of customized lamps that were used exclusively in Cracker Barrel restaurants, filed this action for breach of express contract and breach of contract implied in fact and at law against Cracker Barrel Old Country Store, Inc. (“Cracker Barrel”), and its subsidiary CBOCS Distribution, Inc. (“CBOCS”). The plaintiff alleged in the complaint that both defendants were bound by the Supply Agreement entered into between the plaintiff and CBOCS, and that both defendants breached the contract by failing to purchase 120 days of floor-stock inventory after cancellation of the Supply Agreement or discontinued use of the “Approved Products” identified in the agreement. Defendants filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted on the basis that the Supply Agreement expired on July 31, 2011, and that, thereafter, the parties conducted at-will transactions not governed by the Supply Agreement. The trial court granted the motion dismissing all claims against both defendants finding, inter alia: 1) there was no contract between the plaintiff and Cracker Barrel; 2) the Supply Agreement between the plaintiff and CBOCS terminated by its own terms on July 31, 2011, and there was no written extension; 3) there was no contract implied in fact; and 4) there was no contract implied at law. We affirm the dismissal of all claims against Cracker Barrel because Cracker Barrel was never a party to the contract and the complaint failed to state a claim against Cracker Barrel upon which relief could be granted. As for the claims against CBOCS, we have determined that the factual allegations in the complaint are sufficient to state claims against CBOCS for breach of express contract, contract implied in fact and contract implied at law. Therefore, we reverse the dismissal of the claims against CBOCS and remand the claims against CBOCS for further proceedings.


ALEXANDER A. STRATIENKO, M.D. v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY, ET AL.

Court: TN Court of Appeals

Attorneys:

John P. Konvalinka, Mathew D. Brownfield, and Thomas M. Gautreaux, Chattanooga, Tennessee, for the appellant, Alexander A. Stratienko, M.D.

Fred H. Moore, Joseph R. White, and James H. Payne, Chattanooga, Tennessee, for the appellee, Chattanooga-Hamilton County Hospital Authority.

Judge: SWINEY

Over nine years of litigation in both state and federal courts has stemmed from a 2004 incident (“the Incident”) wherein Alexander A. Stratienko, M.D. (“Plaintiff”) pushed Van Stephen Monroe, Jr., M.D. while in a staff break room at Erlanger Hospital (“the Hospital”) in Hamilton County, Tennessee. In this appeal, Plaintiff raises issues regarding whether the Trial Court erred in granting partial summary judgment to Chattanooga-Hamilton County Hospital Authority, in not allowing another amendment to the complaint and additional discovery, in excluding claims at trial relative to an administrative hearing, and in holding that Plaintiff failed to prove at trial intentional interference with business relations. We find no error in the Trial Court’s judgments and, we affirm.


JOHN SCOTT TERRY v. TINA LYNN TERRY

Court: TN Court of Appeals

Attorneys:

Alan R. Beard, Chattanooga, Tennessee, for the appellant, Tina Lynn Terry.

M. Kieth Davis, Dunlap, Tennessee, for the appellee, John Scott Terry.

Judge: BENNETT

This is a divorce case in which Wife asserts the trial court erred in failing to award her alimony. Having concluded that the trial court did not abuse its discretion in declining to award spousal support, we affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. KEVIN CLARK

Court: TN Court of Criminal Appeals

Attorneys:

Michael R. Giaimo, Cookeville, Tennessee, for the appellant, Kevin Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall A. York; District Attorney General; and Mark Gore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Kevin Clark, appeals his Overton County Criminal Court jury convictions of two counts of first degree murder, aggravated arson, abuse of a corpse, reckless endangerment, and two counts of aggravated assault. In this appeal, the defendant contends that the trial court erred by admitting into evidence the videotaped deposition of a State’s witness in lieu of live testimony, that the trial court erred by admitting evidence of forensic testing conducted on the defendant’s shoes and clothing, and that the evidence was insufficient to support his convictions of first degree murder. Discerning no error, we affirm.


DEXTER F. JOHNSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Dexter F. Johnson, Clifton, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

In 1994, the Petitioner, Dexter F. Johnson, was convicted of two counts of first degree murder, one count of attempted first degree murder, and one count of attempted aggravated burglary. The Petitioner pled guilty in an agreement that provided that he would receive a life sentence for the two first degree murder convictions, twenty-five years for the attempted first degree murder conviction, and six years for the attempted aggravated burglary conviction. Thereafter, the Petitioner filed four unsuccessful petitions for habeas corpus relief. See Dexter F. Johnson v. Carlton, Warden, E2008-02032-CCA-R3-HC, 2010 WL 323126 (Tenn. Crim. App., at Knoxville, Jan. 27, 2010), perm. app. denied (Tenn. June 30, 2010). The Petitioner then filed a fifth petition for habeas corpus relief, which the habeas corpus court summarily dismissed. The Petitioner appeals, contending that the habeas corpus court erred when it dismissed his petition because the State’s motion to dismiss did not comply with Tennessee Code Annotated section 29-21-116, as the State did not attach a judgment form or indictment to the motion to dismiss. Upon a review of the record in this case, we conclude that the habeas corpus court properly denied the petition for habeas corpus relief. Accordingly, we affirm the judgment of the habeas corpus court.


TN Attorney General Opinions

Authority of the Tennessee Board of Regents and the University of Memphis

Court: TN Attorney General Opinions

Date: 2013-11-20

Opinion Number: 91


Senate Rewrites Filibuster Rules to Move Judicial Nominees

The Democratic-controlled Senate today voted 52-48 to eliminate the use of the filibuster against most presidential nominees, the New York Times reports. Democrat leaders moved forward with this option over frustration that Republicans were blocking President Barack Obama's nominees. The most recent incident, according to Business Week, was the filibuster earlier this week that blocked a third nominee to the D.C. Circuit Court of Appeals. The new rule will apply only to executive and lower court judicial nominees. Consideration of Supreme Court nominees will still require a 60-vote threshold to break a filibuster.


Chattanooga Bar Event Honors Tennessee Supreme Court

The Chattanooga Bar Association recently hosted the Tennessee Supreme Court at a reception following admission ceremonies for new lawyers. Chief Justice Gary R. Wade led the ceremonies in the Hamilton County Courthouse, where more than two dozen took the oath to practice law in Tennessee. See photos from the reception at the Hunter Museum of American Art.


Memphis Bar Moving to New Office Tonight

The Memphis Bar Association reports that it is moving its offices tonight. The association now will be located on the third floor of the BankTennessee building at 145 Court Ave., Suite 301, Memphis, TN 38103. Phone and fax numbers will remain the same though the association says telephone, email and Internet access will be down for part or all of the day on Friday due to the move.


Former Circuit Court Clerk Arrested for Theft

The TBI has arrested a former deputy clerk accused of stealing money from the Hardin County Circuit Court Clerk’s Office, the Jackson Sun reports. Amber Renee Terry, 32, of Savannah was indicted by a Hardin County grand jury Monday on one count of theft of property over $10,000 and one count of official misconduct. Terry admitted to taking between $13,500 and $14,000 from the clerk’s office. She surrendered to authorities and was booked on a $5,000 bond.


New Pilot Suit Filed Days Before Settlement Hearing

A Knox County trucking firm has filed suit against Pilot Flying J and a former sales executive of the company who already has pleaded guilty to charges stemming from a federal rebate fraud probe, The Tennessean reports. The suit comes just days before a federal judge is scheduled to hold a hearing on a proposed $72 million settlement of rebate fraud charges against Pilot. The so-called fairness hearing on that proposal will take place Monday in Little Rock, Ark. The new suit, brought by Moore Freight Services of Mascot, outlines the company’s complaint and why it decided to opt out of the settlement.


Judge Donna Fields Receives MBA Award

Shelby County Circuit Court Judge Donna Fields is the 2013 recipient of the Chancellor Charles A. Rond Memorial Award for Outstanding Judge of the Year. The award, given annually by the Memphis Bar Association Young Lawyers Division (MBA YLD), honors the memory of Chancellor Rond, who was known for his intelligence, fairness, wise decisions, integrity and great wit. All Shelby County judges are eligible to receive the award, which was first given in 1976. YLD members vote on each year’s recipient based on ability, demeanor, integrity and diligence.


Lawmakers Consider Drug Testing for Judges

Parents of a young couple killed in a brutal Knoxville murder are meeting with lawmakers to push for drug screening for judges, WATE reports. They have found a champion in state Sen. Randy McNally, R-Oak Ridge, who is sponsoring a bill with Rep. Ryan Haynes, R-Knoxville, to call for drug testing of all Tennessee judges. But Knox County Circuit Court Judge Dale Workman says drug testing may be a waste of taxpayer dollars. He argues that the actions of ex-judge Richard Baumgartner, which resulted in retrials in the Christian-Newsom murders, was the first case of a judge's personal behavior affecting the outcome of a Knox County court case. He also does not think drug testing will achieve the intended result. In Baumgartner’s case, for example, he was misusing prescription drugs. All a judge would have to say is “Yeah, I have the prescription,” and then what are you going to do, he asks.


Lawmakers Look at Reforming Drug Task Forces

At a hearing Tuesday in Nashville, members of a Senate Judiciary subcommittee learned more about the history and governance of the state's drug task forces. After hearing testimony from a district attorney, a drug task force director and the state comptroller's office, several subcommittee members said it was clear that current statutory authority, governance and oversight of the task forces is insufficient. Others said they expect to file legislation in January to impose tighter controls on the offices, the Times Free Press reports.


Judge Swann Comments Raise ‘Cliffhanger’ Questions

Knox County Circuit Court Judge Bill Swann, who has announced he would not run for re-election when his term expires, reflects on his career in Knoxnews today and thanks those who supported him through four consecutive eight-year terms. He also puts in a plug for lawyers, asking readers to be kind to them because they are “underpaid and overstressed.” But the most intriguing comment is that his decision to retire “came unbidden in an amazing moment” and that perhaps he “will have the courage to write about it in detail someday.” Swann continues: “It was not as world changing as that for Saul on the road to Tarsus, but every bit as sudden and clear. It was time for your judge to do something radically different. And I don’t mean golf. Stay tuned.”


Davis Joins Growing Field for Workman Seat

Knoxville attorney Kristi Davis has joined the race to replace Circuit Judge Dale Workman, Metropulse reports. Davis, a partner at Hodges, Doughty & Carson, made a name for herself recently when she successfully appealed the decision of a Cocke County judge to forbid parents naming their child “Messiah.” Davis, a graduate of the University of Tennessee College of Law, has been practicing for 15 years. She joins attorneys Ray Jenkins and Billy Stokes, who also have announced for the race.


Judge Philyaw to Seek Re-election

Hamilton County Juvenile Court Judge Rob Philyaw has announced he is seeking re-election. He will be on the ballot in the Republican primary to be held May 6, Chattanoogan.com reports. Philyaw was named to the post by the Hamilton County Commission after Judge Suzanne Bailey stepped down earlier this year.


Tickets Still Available for Judiciary Museum Event

The Tennessee Supreme Court Historical Society reports that a limited number of tickets are still available for its event on Dec. 4 in Nashville. The evening kicks off with a cocktail reception at the Hermitage Hotel followed by a short program and a tour of the Tennessee Judiciary Museum’s new Phase II. Continuous shuttle service will be provided throughout the evening so guests can tour the museum at their leisure. Individual tickets are $100 and include the reception with heavy hors-d’oeuvres, shuttle service and tour. Contact Linda W. Knight at lknight@gsrm.com or (615) 244-4994 for more information.


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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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