Alexander Blocks Approval of Judicial Nominations

Knoxville lawyer Pamela Reeves’ nomination to become a federal judge for East Tennessee stalled Monday night after U.S. Sen. Lamar Alexander blocked a vote on dozens of appointments, Knoxnews reports. Alexander’s objection did not appear to be directed at Reeves or any particular nominee, but instead at Democrats’ decision to change Senate rules to prevent Republicans from filibustering certain court appointments. Reid had attempted to move the nominations as a group. Now he has begun scheduling votes on individual nominees. Today, that strategy worked with the Senate approving the nomination of Patricia Millett to the U.S. Court of Appeals for the District of Columbia Circuit. The Blog of Legal Times has that 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
01 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
02 - 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 Workers Comp Appeals

GEORGE WAYNE EDWARDS v. VELMA CHILDS ET AL.

Court: TN Workers Comp Appeals

Attorneys:

Kimberly Grueter, Chattanooga, Tennessee, for the appellants, Velma Childs, Childs Logging, Triple C Fiber and QBE Americas, Inc. d/b/a QBE Specialty Insurance.

Samuel F. Robinson, III, Chattanooga, Tennessee, for the appellee, George Wayne Edwards.

Judge: CHILDRESS

An employee worked as a skidder operator for the employer’s logging company. The employee’s face and eyelid were lacerated when the chainsaw that he was operating “kicked back.” The employee briefly returned to work within a few weeks after his accident, but he was unable to continue working due to eye pain. The employee subsequently underwent eight surgeries on his face and eye. Although the employer admitted that the employee’s injury was compensable, it argued that his award should be capped at one and one-half times his impairment rating and that the medical testimony concerning his impairment was not credible. The trial court found that the employee was permanently and totally disabled. The employer appealed, arguing that the evidence preponderates against the trial court’s findings. The employee, however, contends that the employer’s appeal is frivolous and seeks liquidated damages pursuant to Tennessee Code Annotated section 50-6-225(h). We affirm the judgment of the trial court.


TN Court of Appeals

IN RE DAVID L. R. ET AL.

Court: TN Court of Appeals

Attorneys:

Ronald G. Freemon, Columbia, Tennessee, for the appellant, Joshuia R.

Stacie Odeneal, Lawrenceburg, Tennessee, for the appellant, Melisha R.

Robert E. Cooper, Jr., Attorney General and Reporter, Leslie Curry, Assistant Attorney General, Mary Byrd Ferrara, and S. Craig Moore, Nashville, Tennessee, for the appellant, Tennessee Department of Children’s Services.

Michael Wallace Coleman, Jr., Lawrenceburg, Tennessee, for minor children, David L.R., Delayna J.R., Ashton B.R., Sara M.R., Ethan A.R., and Heather G.R.

Judge: CLEMENT

The parents of six children appeal the termination of their parental rights. The trial court terminated the parental rights of both parents on two grounds, substantial noncompliance with the permanency plans and persistence of conditions, and the determination that termination of both parents rights was in the best interests of the children. We affirm.


JONATHAN BURKE SKELTON v. FREESE CONSTRUCTION COMPANY, INC.

Court: TN Court of Appeals

Attorneys:

J. Timothy Crenshaw, Nashville, Tennessee, for the appellant, Freese Construction Company, Inc.

Timothy H. Nichols, Nashville, Tennessee, for the appellee, Jonathan Burke Skelton

Judge: HIGHERS

This appeal involves the enforceability of an arbitration agreement between the parties. The trial court found the agreement was not unconscionable, but that the defendant had waived its right to enforce the agreement. We reverse the decision of the chancery court and we remand for entry of an order compelling arbitration.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. TAVARIA MERRITT
With Dissenting Opinion

Court: TN Court of Criminal Appeals

Attorneys:

Comer L. Donnell, District Public Defender; and E. Marie Farley, Assistant Public Defender, for the appellant, Tavaria Merritt.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Thomas H. Swink, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Tavaria Merritt, pleaded guilty to nine counts of rape of a child, Class A felonies. See T.C.A. § 39-13-522 (2010). He was sentenced to nine consecutive terms of twenty-five years for an effective 225-year sentence to be served at 100%. The Defendant was seventeen years old when the offenses were committed and nineteen years old when he pleaded guilty. On appeal, the Defendant contends that his effective sentence is the equivalent of life imprisonment without the possibility of parole and is cruel and unusual punishment under the United States and Tennessee Constitutions. See Graham v. Florida, 560 U.S. 48 (2010). Although Graham does not apply to the Defendant’s effective 225-year sentence, we conclude that the sentence is excessive, reverse the judgments of the trial court, and remand for entry of judgments reflecting an effective fifty-year sentence.


BERT NEWBY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Andrea D. Sipes, Jackson, Tennessee (on appeal); and Sais Phillips, Atlanta, Georgia (at trial), for the appellant, Bert Newby.

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

Judge: WOODALL

Petitioner, Bert Newby, appeals from the trial court’s dismissal of Petitioner’s postconviction petition after an evidentiary hearing. Petitioner asserts his trial counsel at the trial where Petitioner was convicted of first degree murder and aggravated assault rendered ineffective assistance of counsel. After a thorough review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. CHARLES PENNINGTON

Court: TN Court of Criminal Appeals

Attorneys:

Stephen C. Bush, District Public Defender; Tony N. Drayton, Assistant Public Defender; Tim Albers, Assistant Public Defender; and Constance Barnes, Assistant Public Defender; Memphis, Tennessee, for the appellant, Charles Pennington.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin E. Doty, Assistant Attorney General; Amy P. Weirich, District Attorney General; Tracey Jones, Assistant District Attorney General; and Neal Oldham, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

A Shelby County Grand Jury returned an indictment against Defendant, Charles Pennington, charging him with first degree felony murder, attempted especially aggravated robbery, and employing a firearm in the commission of a felony. Following a jury trial, Defendant was convicted of first degree felony murder and attempted especially aggravated robbery. Defendant was found not guilty of employing a firearm in the commission of a felony. Defendant was sentenced to life for the murder conviction, and by agreement with the State, to a concurrent sentence of twelve years for attempted especially aggravated robbery. On appeal, Defendant argues that the evidence was insufficient to support his convictions. After a thorough review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. EVERETT RUSS

Court: TN Court of Criminal Appeals

Attorneys:

Paul K. Guibao (on appeal); and Eran E. Julian and Mark A. Saripkin (at trial), Memphis, Tennessee, for the appellant, Everett Russ.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Gregory Thomas Carman and Carrie Shelton, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Everett Russ, was convicted by a Shelby County Criminal Court jury of two counts of aggravated sexual battery, Class B felonies, and was sentenced as a Range I, violent offender to consecutive terms of nine years for each conviction. See T.C.A. § 39-13- 504 (2010). On appeal, he contends that (1) the State’s failure to respond properly to his request for a bill of particulars should have resulted in a mistrial and (2) the trial court erred in imposing consecutive sentencing. We affirm the Defendant’s convictions, but because of inappropriate sentencing, we reverse the judgments and remand the case for entry of judgments reflecting concurrent sentences.


STATE OF TENNESSEE v. KIMBERLY WILSON WENTZEL

Court: TN Court of Criminal Appeals

Attorneys:

Robert Dalton (at trial), Lewisburg, Tennessee, and Hershell D. Koger (at sentencing and on appeal), Pulaski, Tennessee, for the Appellant, Kimberly Wilson Wentzel.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; Robert Carter, District Attorney General; Weakley E. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Marshall County jury convicted the Defendant, Kimberly Wilson Wentzel, of six counts of prescription fraud and two counts of identity theft. After a sentencing hearing, the trial court sentenced the Defendant as a persistent offender and imposed concurrent eleven-year sentences for each of the Defendant’s eight felony convictions. The trial court ordered the Defendant to serve her entire sentence in the Tennessee Department of Correction. The Defendant now appeals, contending that the trial court erred when it denied her request for alternative sentencing. After a thorough review of the record and applicable law, we conclude that the trial court properly denied alternative sentencing.


Nashville PD: One More Capital Case is Too Much

As Tennessee pushes to carry out more executions, Nashville’s public defenders say they can’t take on any more capital punishment cases, and that includes the case of Lorenzo Jenkins who is accused of murdering three people in October, The Tennessean reports. Assistant Public Defender Mike Engle told Criminal Court Judge Randall Wyatt Jr. on Monday that the state should hire Jenkins a private attorney. Deputy District Attorney General Tom Thurman, who is prosecuting the case, disagreed. He said the public defender’s office should reassign cases to free up one of five attorneys qualified to handle death penalty cases. Besides, he said, he’s handling three cases. But Nashville’s elected public defender Dawn Deaner said it is unfair to compare the workload of her office with that of local prosecutors who have police officers, detectives, forensic experts and witnesses at their disposal.


AG: Local Pseudoephedrine Rules Violate State Law

Cities and counties passing local ordinances to require a prescription for medications containing pseudoephedrine run afoul of existing state law, according to state Attorney General Bob Cooper, Humphrey on the Hill reports. In an opinion released Monday, Cooper said any local ordinance requiring a prescription would violate the “Meth-Free Tennessee Act of 2005” codified at Tenn. Code Ann. § 39-17-431. Several local governments have enacted such ordinances, though bills to require prescriptions have failed in the legislature. Read more from Knoxnews or download the opinion.


Clinic Seeks Dismissal of Meningitis Claims

In a move that could affect dozens of other cases, lawyers for the Nashville clinic where patients were injected with tainted steroids have filed a motion to dismiss suits filed on behalf of 14 Kentucky residents, The Tennessean reports. The motions, filed Monday in U.S. District Court in Boston, charge that the suits filed on behalf of the Kentucky residents do not meet the pre-notice requirements of Tennessee’s health care liability law. The motion also seeks to dismiss product liability and civil conspiracy charges under the same argument.


Washington County Bar Names New President

Amber Floyd Lee, an attorney with Cox and Lee in Johnson City, is the new president of the Washington County Bar Association. Other officers are Vice President McKenna Cox, Secretary Kris Hatcher, Treasurer Robert Bates and Communications Officer Suzanne Cook.


Haslam: No Medicaid Expansion without Policy Waivers

Tennessee Gov. Bill Haslam has put a top Obama administration official on notice that if the state’s plan to expand Medicaid is not approved, an estimated 181,000 Tennesseans won't get coverage under the federal health care law, the Times Free Press reports. Haslam, who has been in negotiations with the government for months, wants to keep costs associated with any Medicaid expansion down by charging enrollees higher co-payments when they unnecessarily use expensive services or indulge in unhealthy habits. He also wants to reform provider reimbursements and modify services now required for "medically fragile" enrollees. Absent federal approval for those policy changes, Haslam warned he does not "see a path forward in the current environment that will allow us to extend coverage.”


KBA Annual Meeting This Friday

The Knoxville Bar Association will hold its Annual Membership Meeting Friday at 8:30 a.m. at the Main Assembly Room of the City County Building. Wade V. Davies is set to assume the presidency of the association. Other officers poised to be elected are President-elect Tasha C. Blakney, Treasurer Wayne R. Kramer and Secretary Amanda M. Busby. Members also will select three members for the Board of Governors and one member to serve as the Government/Public Sector representative on the board. Those nominated to date are Joshua M. Ball, Wynne du Mariau Caffey, Robert R. Carl II, S. Dawn Coppock, Timothy M. McLemore and Keith D. Stewart. Charles E. Atchley Jr. is the only candidate thus far for the government position but nominations for all of these seats may be made during the meeting.


Reminder: Scalia Speaks at Memphis Law Next Monday

U.S. Supreme Court Justice Antonin Scalia will visit the University of Memphis Cecil C. Humphreys School of Law to speak with law school students, faculty, staff, alumni and the local community next Monday. Scalia will speak at a luncheon at the Peabody Hotel from noon to 1 p.m., followed by a private program for law students. The Peabody luncheon is open to the public. Individual tickets are available for $75. Individuals or organizations interested in purchasing tickets contact Paula Bethge at (901) 678-4922 or pcbethge@memphis.edu.


Pickett Named NBJ Contributor of the Year

A news item in yesterday’s issue of TBA Today included a summary of the Nashville Bar Association’s Annual Meeting. One award that was accidently omitted from the story was the presentation of the Nashville Bar Journal's (NBJ) Contributor of the Year Award to Bart Pickett.


Hooker Hits Evaluation Commission on Gender Makeup

Nashville attorney John Jay Hooker has asked a Nashville court to halt the Judicial Performance Evaluation Commission’s review of judges, arguing that the gender makeup of the panel violates a state law requiring equal representation of women. Hooker and two other opponents of the review system, Walter Brumit and Anthony Gottlieb, argue that state law requires the commission to represent the “approximate the population of the state with respect to race and gender.” They point out that the current panel of nine includes just two women and thus does not represent the state’s population. They have asked the circuit court to prohibit commission meetings and discussions until the gender imbalance is rectified, The Tennessean reports.


Services Thursday for Former Federal Prosecutor

Former district attorney and federal prosecutor Carl K. Kirkpatrick died Nov. 26. He was 77. A 1962 graduate of Vanderbilt University Law School, Kirkpatrick attended the FBI’s National Law Institute at Quantico, Va., and was a graduate of the Executive Prosecutor Course at the Bates School of Law at the University of Houston. Kirkpatrick was the district attorney general in Tennessee’s Second Judicial District for 28 years and served as president of the Tennessee District Attorneys General Conference. In 1993, Kirkpatrick was appointed by then-President Bill Clinton to be U.S. Attorney for the Eastern District of Tennessee. He served in that capacity until 2000. A Celebration of Life will be held Dec. 12 at 11:30 a.m. at Christ Covenant Presbyterian Church, 12915 Kingston Pike, Knoxville 37934. The family will receive friends immediately following the service. In lieu of flowers, memorials may be made to the church or to the Wounded Warrior Project, P.O. Box 758517, Topeka, KS 66675. Knoxnews has more on Kirkpatrick’s life.


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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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