No Report Yet on Judicial Recommendations

The Judicial Performance Evaluation Commission (JPEC) was scheduled to consider a final recommendation today on whether Court of Appeals Judge Andy Bennett and Court of Criminal Appeals Judges Camille R. McMullen and Jerry L. Smith should be retained in the 2014 elections. At press time, the commission had concluded the public portion of its session without discussing the evaluations and was meeting in closed session.

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.

02 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
07 - 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









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TN Supreme Court

JEFFREY R. COOPER v. PHILLIP GLASSER ET AL.
CORRECTION: On page 1, Judge Binkley's middle initial is changed from B to P. The change does not affect the pagination.

Court: TN Supreme Court

Attorneys:

Andrew W. Coffman, Philip K. Lyon, and Richard S. Busch, Nashville, Tennessee, and Neville L. Johnson, Beverly Hills, California, for the appellant, Jeffrey R. Cooper.

Cheyenne K. Kinghorn, Nashville, Tennessee, for the appellees, Phillip Glasser and David Glasser.

Stephen Andrew Lund, Dallas, Texas, for the appellee, Richard Glasser.

Judge: HOLDER

The plaintiff filed a lawsuit against the defendants in California state court, alleging a number of business-related torts. After one of the defendants moved to dismiss based on a forum selection clause contained in the parties’ contract, the plaintiff voluntarily dismissed his California complaint and refiled his action in the United States District Court for the Middle District of Tennessee. In his federal court complaint, the plaintiff invoked federalquestion jurisdiction by pleading a number of federal securities law violations. In its discretion, the federal district court exercised supplemental jurisdiction over the plaintiff’s state-law claims. One of the defendants moved to dismiss the plaintiff’s complaint, arguing that the statute of limitations applicable to the plaintiff’s federal securities law claims had expired. Before the federal court could dispose of the motion, the plaintiff voluntarily dismissed his complaint without court approval pursuant to Federal Rule of Civil Procedure 41(a). The plaintiff later filed the present action in the Circuit Court for Davidson County, Tennessee, pleading only three of the state-law claims that formed the basis for his two previously dismissed lawsuits. The defendants moved for summary judgment, alleging that the plaintiff’s claims were barred by the plaintiff’s second voluntary dismissal in federal court. The trial court granted summary judgment, and the Court of Appeals affirmed. We granted the plaintiff permission to appeal. We conclude that a plaintiff’s second voluntary dismissal of supplemental state-law claims filed in federal court does not, under Tennessee law, preclude the plaintiff from later refiling an action based on the same claims in Tennessee state court. We therefore reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings.


KENNETH E. KING v. ANDERSON COUNTY, TENNESSEE
CORRECTION: On page 5, second line from top, Tennessee Code Annotated section 55-5-504 (2012) was corrected to be Tennessee Code Annotated section 55-50-504 (2012).

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: JACOBE M. J.

Court: TN Court of Appeals

Attorneys:

Jason F. Hicks, Cookeville, Tennessee, for the appellant, Jerry P. J.

Martelia T. Crawford, Cookeville, Tennessee, for the appellee, Yvette F. D.

Judge: STAFFORD

This is a termination of parental rights case. Father appeals the trial court's termination of his parental rights on the ground of abandonment by willful failure to visit and willful failure to support pursuant to Tennessee Code Annotated Sections 36-1-113(g)(1) and 36-1- 102(1)(A)(i). We conclude that the ground of abandonment by willful failure to visit and willful failure to support is met by clear and convincing evidence in the record, and that there is also clear and convincing evidence that termination of Father's parental rights is in the child's best interest. Affirmed and remanded.


IN RE: TRINITY M. H.

Court: TN Court of Appeals

Attorneys:

William M. Haywood, Lewisburg, Tennessee, for the appellant, S.B.H.

Megan A. Kingree, Shelbyville, Tennessee, for the appellees, S.J.F. and P.J.C.F.

Judge: COTTRELL

Grandparents were awarded custody of Child after a dependency and neglect finding. Grandparents later filed petition to terminate Mother’s parental rights and to adopt Child. The trial court terminated Mother’s rights after concluding Mother abandoned Child and that it was in Child’s best interest for Mother’s rights to be terminated. The evidence supports the trial court’s finding by clear and convincing evidence that Mother abandoned Child by failing to visit her in the four months leading up to Grandparents’ petition, but the evidence is not clear and convincing that it is in Child’s best interest that Mother’s rights be terminated.


TN Court of Criminal Appeals

BRANDY LEA BIRDWELL v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Trudy Bloodworth, Nashville, Tennessee, for the appellant, Brandy Lea Birdwell.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle Consiglio-Young, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General; for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Brandy Lea Birdwell, contends that she received the ineffective assistance of counsel at trial, citing the following bases: (1) failure to provide a copy of discovery; (2) failure to adequately prepare and advise the Petitioner prior to her testimony; (3) failure to request a jury out hearing before the State impeached the Petitioner with a pending criminal charge; (4) failure to conduct a proper investigation with a private detective; and (5) failure to subpoena a material witness at the Petitioner’s request. After reviewing the record and the applicable authorities, we affirm the judgment of the post-conviction court.


DARREN BROWN v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Darren Brown, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Kevin Rardin, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Darren Brown, appeals from the trial court’s dismissal of Petitioner’s postconviction relief petition without an evidentiary hearing, based upon a finding that the petition was filed in violation of the statute of limitations. After a thorough review of the record and the briefs, we affirm the judgment of the trial court.


JUSTIN B. CONRAD v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

H. Garth Click, Springfield, Tennessee, for the appellant, Justin B. Conrad.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel; John W. Carney, District Attorney General; and Art Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Justin B. Conrad (“the Petitioner”) was convicted of first degree premeditated murder, first degree felony murder, and theft of property of $1,000 or more. The trial court merged the felony murder conviction with the premeditated murder conviction and sentenced the Petitioner to life imprisonment. On direct appeal, this Court affirmed the Petitioner’s convictions. See State v. Justin Brian Conrad, No. M2008-01342-CCA-R3-CD, 2009 WL 3103776, at *10 (Tenn. Crim. App. Sept. 29, 2009), perm. app. denied (Tenn. Feb. 22, 2010). The Petitioner subsequently filed for post-conviction relief, which the post-conviction court denied following an evidentiary hearing. The Petitioner now appeals, arguing that he received ineffective assistance of counsel at trial. Upon our thorough review of the record and the applicable law, we affirm the post-conviction court’s decision denying relief.


GREGORY EIDSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Gregory Eidson.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Lawrence Ray Whitley, District Attorney General; and C. Ronald Blanton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Gregory Eidson, appeals as of right from the Sumner County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends that his guilty pleas were not knowingly and voluntarily entered and that his trial counsel was ineffective. Discerning no error, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. GLENN LYDELL McCRAY
With Dissenting Opinion

Court: TN Court of Criminal Appeals

Attorneys:

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher (on appeal), Kristin Neff (at trial), and Joseph Michael Engle (at trial), Assistant District Public Defenders, for the appellant, Glenn Lydell McCray.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Hugh T. Ammerman, III, and Michelle Delgato, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Tennessee Supreme Court has remanded this case for reconsideration in light of State v. Terrance Antonio Cecil, No. M2011-01210-SC-R3-CD, 409 S.W.3d 599 (Tenn. 2013). See State v. Glenn Lydell McCray, No. M2011-02411-CCA-R3-CD (Tenn. Crim. App. May 2, 2013), perm. app. granted, case remanded (Tenn. Oct. 16, 2013). Relevant to the current remand, this court concluded in the previous appeal that although the jury was not properly instructed pursuant to State v. White, 362 S.W.3d 559 (Tenn. 2012), regarding the especially aggravated kidnapping conviction, the error was harmless beyond a reasonable doubt and affirmed the judgments of the trial court. Upon further review, we conclude that the omission of the White instruction was not harmless beyond a reasonable doubt and that the conviction for especially aggravated kidnapping is reversed, and the case is remanded for a new trial. The remaining judgments of the trial court are affirmed.


JOHNNY L. MCGOWAN, JR. v. JERRY LESTER, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Johnny L. McGowan, Jr., pro se, Henning, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; and D. Michael Dunavant, District Attorney General; for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Johnny L. McGowan, Jr., appeals the habeas corpus court’s summary dismissal of his petition for habeas corpus relief. He contends that the habeas corpus court committed a “misdemeanor in office” by denying his petition for relief, that he was illegally sentenced as a repeat violent offender, and that he did not have the requisite prior convictions to be sentenced to serve eight years in the Department of Correction (DOC). After a review of the record and the applicable authorities, we affirm the judgment of the habeas corpus court.


JONATHAN TEARS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Robert Dalton, Lewisburg, Tennessee, for the appellant, Jonathan Tears.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Robert Carter, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Jonathan Tears, appeals from the trial court’s denial of his petition for postconviction relief following an evidentiary hearing. On appeal, Petitioner contends that the trial court erred in denying the petition because the State violated his constitutional rights by withholding material exculpatory information, and trial counsel rendered ineffective assistance of counsel. More specifically, Petitioner contends that the State (1) failed to disclose a statement made by the victim; (2) failed to disclose the statement of Ashton Davis; (3) failed to disclose the statement of Felice O’Neal; (4) failed to disclose the statement of Tangelia Alexander; and (5) failed to disclose payment from the Criminal Injuries Compensation Fund. Petitioner argues that trial counsel rendered ineffective assistance of counsel by (1) failing to “investigate, interview, subpoena, and call to the stand” Shelby Harris, Darron Little, Alexander Harris, Jarrod Robinson, Zeldra Swaggerty, and Adriana Cross; (2) failing to request Jenck’s material and cross-examine the victim concerning his statement to Detective Oliver; (3) failing to request a ballistics expert to testify at trial; and (4) failing to investigate and assert the defense of self-defense. Petitioner also argues that trial counsel was ineffective on direct appeal for failing to raise Brady issues. Following our review of the record, we reverse the judgment of the trial court denying post-conviction relief and remand this cause for a new trial.


Judge Allows Copyright Suit Against Country Duet

Nashville-based U.S. District Court Judge Aleta Trauger ruled this week that a copyright lawsuit against country superstars Brad Paisley and Carrie Underwood over their duet “Remind Me” could move forward. The ruling found that songwriter Amy Bowen, who performs as Lizza Connor, established a plausible claim of copyright infringement by Paisley and Underwood and songwriters John Kelley Lovelace and Charles DuBois. However, Trauger was clear that she was not ruling as a matter of law that the defendants infringed the copyright. Bowen claims she performed her song “Remind Me” at a songwriting workshop where Lovelace and DuBois were advisers three years before they penned a song with the same name. The defendants argue their song has a different melody, hook and lyrics. The Tennessean has more on the story.


Hamilton Juvenile Court Recognizes Volunteers

Judge Rob Philyaw and the Hamilton County Juvenile Court recently recognized volunteers who serve as court appointed special advocates and Foster Care Review Board (FCRB) members as well as organizations that provide work and living skills for youth. Valerie While was named CASA of the Year; Nancy Pagano was named FCRB Member of the Year; and Goodwill Industries Inc., was named Community Worksite of the Year. See a photo of the award recipients on Chattanoogan.com.


Judge: State Met Conditions of Development Center Suit

A decades-old lawsuit over conditions at a Memphis institution for people with intellectual disabilities has been dismissed after a federal judge found the state met court-ordered improvements, The Tennessean reports. The 1992 lawsuit over conditions at the Arlington Development Center -- originally filed by the Department of Justice and later joined by People First of Tennessee -- was brought after investigators found the facility failed to protect residents from abuse and neglect, provide adequate medical care and properly train staff. After the court found that the problems were so bad they violated the constitutional rights of the residents, the state entered into an agreement with more than 105 requirements and 103 deadlines. This week, U.S. District Judge Jon McCalla ruled the state had complied with all conditions and dismissed the suit.


Wade Talks About Lethal Injection Situation

Tennessee Supreme Court Chief Justice Gary Wade visited Murfreesboro on Thursday and sat down for an interview with radio station WGNS. He talked about his background, the work of the Supreme Court and recent changes made to the way the state administers lethal injection. Listen to the interview on the station's website.


Email May Not Be Private, Paine Column About Perry March

Email communications -- even between attorney and client -- may be admissible. Find out how to protect electronic client communications in a Tennessee Bar Journal article by Nashville lawyers Kimberly Stagg and John E. Anderson Sr.  Also in the December Journal, read about the Perry March murder trial in a column by the late Don Paine, who died in November. Paine wrote several of his "Paine on Procedure" columns ahead of time, so readers will enjoy his writing for several more months.


House Targets ‘Patent Trolls’ but Small Businesses Concerned

Many business groups praised the U.S. House of Representative’s passage of legislation aimed at lawsuits by so-called "patent trolls." But some fear the legitimate rights of small businesses could be trampled on as Congress rushes to protect companies from bad actors. In recent years, companies across the industry spectrum have found themselves settling patent claims simply because they cannot afford the litigation to fight them, says the sponsor of the legislation. But the National Small Business Association is concerned the bill could put undue burdens on individual inventors, technology startups and innovative small companies. Read more about the issue in the Memphis Business Journal.


Fuller to Run for Criminal Court Judge

Wilson County Assistant District Attorney Brian Fuller will be a candidate for 15th Judicial District Criminal Court judge, the Hartsville Vidette reports. The post -- which covers Trousdale, Macon, Smith, Jackson and Wilson counties -- is being vacated by Judge David Durham, who is retiring. Fuller has been an assistant district attorney for 17 years, first in the 28th Judicial District and then in the 15th Judicial District. He also has served as the criminal court docket manager for cases in Smith County from 2002 to 2005, and for cases in Wilson County from 2005 to the present. Fuller is a 1996 graduate of the University of Tennessee College of Law.


Hughes Seeks 2nd Term As PD

Richard Hughes has announced he will run for a second term as 10th Judicial District public defender, Chattanoogan.com reports. Hughes, a Republican, has served in the position since 2005. Prior to being elected public defender, he served as an assistant public defender in the office for 15 years. The district covers Bradley, McMinn, Monroe and Polk counties. Hughes touts his efforts to beef up investigative functions of the office by hiring lawyers for those roles and for opening a second office in Madisonville. He also cites his involvement in the creation of a district-wide drug court, his work adding juvenile court dockets in two counties and his interest in creating a workhouse program in Bradley County as examples of his leadership.


Nashville Firm Sponsors Snowflake Run

The Nashville law firm of Kinnard, Clayton & Beveridge is sponsoring the Snowflake 5K Tacky Sweater Run again this year to benefit Prevent Child Abuse Tennessee. The run/walk will be held Dec. 14 at 9 a.m. at Shelby Bottoms Park, 1900 Davidson St., Nashville 37206. Register here and use the promo code FRIEND to receive $5 off the registration fee.


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.


 
 

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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