Kirby Appointed to Tennessee Supreme Court

Court of Appeals Judge Holly Kirby of Memphis has been appointed to the Tennessee Supreme Court by Gov. Bill Haslam. Kirby will succeed Janice M. Holder, who earlier announced she would retire at the end of her term in 2014. Kirby, a native Memphian, has served on the Tennessee Court of Appeals, Western Section, since 1995. She was the first woman to serve on that court and has authored more than 1,000 opinions on appeals from trial courts across the state, The Memphis Business Journal reports. Prior to that appointment by former Gov. Don Sundquist, Kirby was a partner at the Memphis law firm Burch, Porter & Johnson.

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
01 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
03 - 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

E. RON PICKARD ET AL. v. TENNESSEE WATER QUALITY CONTROL BOARD ET AL.

Court: TN Supreme Court

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Elizabeth P. McCarter, Senior Counsel; Patrick N. Parker, Assistant General Counsel, for the appellants, Tennessee Water Quality Control Board and Tennessee Department of Environment and Conservation.

Elizabeth L. Murphy and W. David Bridgers, Nashville, Tennessee, for the appellees, E. Ron Pickard and Linda Pickard.

Judge: KOCH

This appeal involves the proper procedure for persons desiring to obtain administrative and judicial review of a decision by the Tennessee Department of Environment and Conservation (“TDEC”) regarding the issuance or denial of a waste water and storm water discharge permit. After TDEC issued a final permit allowing the operator of a limestone quarry to discharge water into Horse Creek, the owners and managers of a neighboring wildlife sanctuary filed a petition with the Tennessee Water Quality Control Board (“Board”) seeking to appeal TDEC’s decision to issue the permit and also requesting the Board to issue a declaratory order regarding the proper interpretation of the Antidegradation Rule, Tenn. Comp. R. & Regs. 1200-04-03-.06. After the Board scheduled a contested case hearing, an administrative law judge dismissed the request for a declaratory order on the ground that Tenn. Code Ann. § 69-3-105(i) (2012) provides the exclusive procedure to obtain administrative review of TDEC’s decision to issue the discharge permit. Rather than pursuing the permit appeal already pending before the Board, the wildlife sanctuary filed a petition in the Chancery Court for Davidson County seeking a declaratory judgment regarding the proper interpretation of the Antidegradation Rule. The trial court granted the wildlife sanctuary’s motion for summary judgment and issued a declaratory judgment regarding the interpretation and application of the Antidegradation Rule to the permit at issue in this case. TDEC and the Board appealed. The Court of Appeals reversed the summary judgment on the ground that the trial court had failed to give “any deference to TDEC’s interpretation of the Antidegradation rule” and remanded the case to the trial court to conduct a trial “to determine the proper interpretation of the Antidegradation rule.” Pickard v. Tennessee Dep’t of Env’t and Conservation, No. M2011-02600-COA-R3-CV, 2012 WL 3834777, at *24-25 (Tenn. Ct. App. Sept. 4, 2012). We granted the Board’s and TDEC’s joint application for permission to appeal. We conclude that Tenn. Code Ann. § 69-3-105(i) disallows parties challenging the issuance of a discharge permit from seeking a declaratory order from the Board regarding matters involved in the issuance of the permit and requires that parties desiring to seek judicial review of a decision to issue a discharge permit must first exhaust their administrative remedies before seeking judicial review of TDEC’s decision. Because the wildlife sanctuary’s appeal from TDEC’s issuance of the discharge permit was still pending before the Board, the trial court should have declined to adjudicate the wildlife sanctuary’s petition for a declaratory judgment. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to the trial court with directions to dismiss the petition because the wildlife sanctuary failed to exhaust its administrative remedies before the Board.


TN Workers Comp Appeals

TIMOTHY GILLIAM v. BRIDGESTONE NORTH AMERICAN TIRE, LLC

Court: TN Workers Comp Appeals

Attorneys:

B. Timothy Pirtle, McMinnville, Tennessee, for the appellant, Bridgestone North American Tire, LLC.

Roger J. Bean, Tullahoma, Tennessee, for the appellee, Timothy Gilliam.

Judge: KOCH

This appeal involves an employee’s eligibility to seek reconsideration of a workers’ compensation settlement. An employee who sustained a compensable shoulder injury returned to work and settled his workers’ compensation claim. He was later laid off after his physician modified the restrictions for an earlier unrelated injury to his foot. Thereafter, the employee filed suit in the Chancery Court for Coffee County seeking reconsideration of the settlement of his shoulder injury. While this suit was pending, the employee returned to work as the result of a confidential settlement between his employer and the EEOC. Following a bench trial, the trial court determined that the employee could seek reconsideration of the settlement for his injured shoulder and awarded the employee additional disability benefits. The employer appealed and asserted that the employee was not entitled to seek reconsideration because, despite the layoff, he had never been “subsequently no longer employed by the pre-injury employer” as required by Tenn. Code Ann. § 50-6- 241(d)(1)(B)(ii) (2008). The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.


TN Court of Appeals

IN THE MATTER OF K. A. P.

Court: TN Court of Appeals

Attorneys:

Linda K. Garner, Memphis, Tennessee for Plaintiff/Appellant J.W.

No brief filed on behalf of Defendant/Appellee L.P.

Judge: KIRBY

This is a dependency and neglect appeal. The father of the child at issue filed a dependency and neglect petition in the juvenile court against the child’s mother. The juvenile court held that the parties’ son was dependent and neglected and designated the father as the primary residential parent. The mother appealed the juvenile court’s decision to the circuit court. The circuit court conducted a de novo trial on the father’s dependency and neglect petition. The circuit court noted the mother’s past drug use but also found that the mother had consistently had clean drug tests since the juvenile court proceeding. Nevertheless, the circuit court held that the child was dependent and neglected, so it left the father as the primary residential parent. The mother now appeals. Based on our review of the record, we hold that the facts as found by the circuit court do not amount to clear and convincing evidence that the son was dependent and neglected in the mother’s care. Therefore, we reverse and remand for further proceedings.


BARBARA A. LYNCH, deceased, by her sister and next of kin, CELINE HAYES, ET AL. v. LOUDON COUNTY, TENNESSEE, ET AL.

Court: TN Court of Appeals

Attorneys:

Joseph R. Ford and Ashley Harrison Shudan, Loudon, Tennessee, for the appellants, Barbara A. Lynch, deceased, by her sister and next of kin, Celine Hayes.

Arthur F. Knight, III, and Jonathan Swann Taylor, Knoxville, Tennessee, for the appellee,Loudon County, Tennessee.

Judge: MCCLARTY

In this wrongful death action, the plaintiffs alleged that after the deceased was involved in a single car accident, the investigating officer improperly allowed her to continue driving, resulting in her death when she had another wreck shortly thereafter. In the initial lawsuit, the defendants moved for summary judgment. The trial court found that the public duty doctrine applied and granted the motion. After the plaintiffs appealed, we held that under the public duty doctrine, disputed material evidence existed as to whether the officer assumed a specific duty to protect the deceased but then discontinued his aid and protection to her, thereby leaving her in a worse position than she was in before he intervened. We therefore reversed the summary judgment and remanded the case for further proceedings. Lynch v. Loudon Cnty., No. E2010-02231-COA-R3-CV, 2011 WL 4952778 (Tenn. Ct. App. Oct. 14, 2011). Upon remand the trial court found that the special duty exception did not apply and the public duty doctrine was a complete bar to the plaintiffs’ action. The court additionally concluded that Restatement (2nd) of Torts section 324 was not applicable and even if fault was compared, the fault of the deceased exceeded that of the officer by more than fifty percent. Accordingly, the trial court found that the claims of the plaintiffs must be denied. The plaintiffs again appeal. We affirm.


MICHAEL MILJENOVIC V. SHERRI E. MILJENOVIC

Court: TN Court of Appeals

Attorneys:

Sherri E. Miljenovic, Knoxville, Tennessee, Pro Se.

Lisa A. White, Knoxville, Tennessee, for the appellee, Michael Miljenovic.

Judge: MCCLARTY

This interlocutory appeal concerns an interstate custody dispute. Father attempted to register and modify the child custody provisions of a New Jersey judgment in Tennessee. Mother agreed to the registration but objected to the modification because she believed the trial court did not have subject matter jurisdiction to modify the judgment. The trial court disagreed and registered and modified the judgment. Mother pursued this extraordinary appeal pursuant to Rule 10 of the Rules of Appellate Procedure. Following our review, we hold that the trial court did not have subject matter jurisdiction to modify the judgment.


IN RE ESTATE OF MARVIN SUTTON

Court: TN Court of Appeals

Attorneys:

J. Derreck Whitson, Newport, Tennessee, for the appellant, Sky Sutton.

Judith A. DePrisco and Keith H. Burroughs, Knoxville, Tennessee, for the appellee, Pamela Sutton, Executrix of the Estate of Marvin Sutton.

Judge: FRIERSON

The plaintiff, who is the decedent’s daughter, filed this will contest action regarding the estate of the decedent on April 24, 2012. A previous will contest proceeding brought by another daughter of the decedent had been dismissed by the trial court through an order entered February 7, 2012. The trial court dismissed the instant will contest as barred by the final judgment in the previous in rem proceeding. The plaintiff appeals. Discerning no error, we affirm.


JAMES EVERETT FERRELL v. STATE OF TENNESSEE
CORRECTION: On page 1 the middle name of James Everett Ferrell and the last name of Commissioner Robert Hibbett have been corrected in the body of the Memorandum Opinion.

Court: TN Court of Appeals

Attorneys:

James Everett Ferrell, Morrison, Tennessee, Pro Se.

Robert E. Cooper, Attorney General and Reporter, Michael Lee Delisle, Mark Alexis Hudson, Assistant Attorney General for the appellee, State of Tennessee.

Judge: COTTRELL

This is an appeal from a decision of the Tennessee Claims Commission dismissing a claim filed by James Ferrell alleging that his pickup truck was unlawfully taken from him. The State of Tennessee has filed a motion to dismiss the appeal for failure to file a timely notice of appeal. Claims Commissioner Hibbett entered an order dismissing Mr. Ferrell’s claim on September 24, 2012. Mr. Ferrell filed a Motion to Reconsider that was denied on November 21, 2012. On December 3, 2013, Mr. Ferrell filed a Petition for En Banc Hearing. The Claims Commission denied the Petition for En Banc Hearing on February 26, 2013. Mr. Ferrell then filed a Motion to Reconsider En Banc Denial. The Claims Commission denied the Motion to Reconsider En Banc Denial on March 26, 2013. Mr. Ferrell filed his notice of appeal on April 24, 2013.


TN Court of Criminal Appeals

JAMELLE M. FELTS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Joe R. Johnson, for the Petitioner-Appellant, Jamelle M. Felts.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel; John W. Carney, Jr., District Attorney General; and Jason C. White, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, Jamelle M. Felts, appeals the denial of post-conviction relief, arguing that he received ineffective assistance of counsel. He also appeals the denial of coram nobis relief, arguing that an eyewitness’s affidavit recanting his trial testimony is newly discovered evidence entitling him to a new trial. Upon review, we affirm the denial of post-conviction relief and the denial of coram nobis relief.


STATE OF TENNESSEE v. WESLEY CLAYTON NIGHTWINE and RUBY MICHELLE BUSH

Court: TN Court of Criminal Appeals

Attorneys:

Jacob W. Fendley and Debra A. Wall, for the Defendants-Appellees, Wesley Clayton Nightwine and Ruby Michelle Bush.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; John W. Carney, District Attorney General; and John Finklea, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendants, Wesley Clayton Nightwine and Ruby Michelle Bush, were indicted by the Montgomery County Grand Jury for various drug and firearms offenses following the execution of a search warrant at Mr. Nightwine’s residence. The Defendants filed a motion to suppress the evidence seized, and the trial court granted that motion and dismissed the case as to each defendant. The State appeals, asserting that the search warrant was valid and the evidence was admissible. Upon review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. HOLLACE DONTE RICHARDS

Court: TN Court of Criminal Appeals

Attorneys:

Gerald L. Melton, District Public Defender; Jeffrey S. Burton, Assistant Public Defender, Murfreesboro, Tennessee, for the Defendant-Appellant, Hollace Donte Richards.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William Whitesell, District Attorney General; and Shawn Puckett, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Hollace Donte Richards, appeals from the Rutherford County Circuit Court’s order revoking his probation. He previously entered guilty pleas to one count of theft of property valued over $500 but less than $1,000 and one count of sale of marijuana, a Schedule VI controlled substance. Subsequently, Richards entered guilty pleas to one count of aggravated burglary and one count of failure to appear. He was ordered to serve his four sentences consecutively for a total effective sentence of ten years in the Department of Correction. The trial court ordered Richards to serve his two-year sentence for theft in confinement and suspended the other three sentences to be served on supervised probation. On appeal, Richards argues that the trial court abused its discretion by revoking his probation and ordering him to serve his entire sentence in confinement. Upon our review, we affirm the judgment of the trial court.


Tenn. Law Schools Report Growth; National Numbers Down

National law school enrollment figures reported today by the American Bar Association show an 11 percent drop in first year students – a trend not reflected at law schools across Tennessee. By contrast, the state's six law schools show a combined 3 percent increase in first-year enrollment from 2012 to 2013, though the trend varied at individual schools.

The Duncan School of Law in Knoxville saw a more than doubling of first-year students, with 28 new enrollees versus 13 last year. Neither Duncan or the Nashville School of Law – which saw first-year enrollment slip by 7 percent to 158 -- are accredited by the ABA, so their numbers would not have been included in the national picture. The University of Tennessee’s College of Law saw enrollment increase by just over 30 percent to 158, while Vanderbilt and the University of Memphis law schools were nearly flat at 174 and 113, respectively. The Belmont College of Law, which has provisional accreditation from the ABA, reported first-year enrollment down by 20 percent to 82 students.


New NBA President Discusses Judicial Selection

Charles Grant, the new president of the Nashville Bar Association, tells the Nashville Business Journal that while the proposed constitutional amendment to change the way judges are selected is not perfect, it is better than popular elections for filling appellate and Supreme Courts posts. "Our view is that the direct election of appellate judges is not in the best interest of Tennesseans," Grant said. An attorney at Baker Donelson Bearman Caldwell & Berkowitz and the first African American president in the association's 182-year history added, "While the constitutional amendment is not the ideal solution, it is much better than the popular election of them, where candidates run and [are] elected due to powerful interests," The Nashville Business Journal reports.


Ashworth to Join Access to Justice Commission

Former TBA President Gail Ashworth has been appointed by the Supreme Court to serve the remainder of Bill Young’s term on the Tennessee Access to Justice Commission. Ashworth will be eligible for reappointment in April 2014.


UT Medical Group to Appeal $33.5 Million Verdict

UT Medical Group Inc. says it plans to appeal a Memphis jury’s $33.5 million malpractice verdict against the organization that has its leadership considering bankruptcy protection. The Memphis Business Journal reports that case records from Shelby County Circuit Court show that after the verdict, UTMG called for a new trial and requested the $33.5 million verdict be reduced. Circuit Court Judge Robert Childers denied the motion for a new trial but agreed to reduce the award by $1 million.


Haslam Appears Poised for Re-election

Gov. Bill Haslam appears to be coasting easily to a second term. Less than a year before Tennesseans take to the polls next November, Haslam does not face a serious challenge from the left or the right, the Tennessean reports. A poll released last week by Vanderbilt University shows Haslam has a 61 percent approval rating, and campaign finances show he has at least $2 million in the bank. But the Republican governor appears to be taking little for granted, the newspaper notes. The Haslam campaign is preparing a major fundraiser in Nashville early next year with a top donor’s circle of $100,000, an escalation in the money battle even as Democrats struggle to find a credible challenger.


Gibson Seeks Millions From Tech Developer

Nashville-based Gibson Brands Inc. has filed a multimillion-dollar federal lawsuit against technology company Ceton Corp., claiming a breach of contract over a wireless home-entertainment system that Gibson was paying Ceton to develop. In the suit, filed the suit in U.S. District Court in Nashville, Gibson alleges it contracted with Kirkland, Wash.-based Ceton to design and produce a system that Gibson conceived and intended to launch at the Consumer Electronics Show in Las Vegas next month. Gibson claims that Ceton has stopped working for the Nashville company and plans to produce and market the system on its own, the Tennessean reports.


Judge’s Word on NSA Program Likely Not the Last

U.S. District Court Judge Richard Leon says that the National Security Agency’s bulk collection of millions of Americans' telephone records is likely unconstitutional, the Associated Press reports on WATE. Leon has put his decision to grant an injunction against the NSA on hold, however, predicting a government appeal would take at least six months. He said he was staying the ruling pending appeal "in light of the significant national security interests at stake in this case and the novelty of the constitutional issues."


Hamilton County Election Commission Attorney Steps Down

Chris Clem says he is stepping down as the Hamilton County Election Commission’s attorney at the end of the month. He has served six years, the Chattanoogan reports. Clem told the panel he is leaving because he wants to get back involved in politics, however, one commission member suggested Clem had been forced out of the position.


Clinton Lawyer Running for Anderson County Juvenile Court Judge

Clinton lawyer J. Michael Clement is running for Anderson County Juvenile Court judge in the May 2014 Democratic primary, Knoxnews reports. Clement is seeking the post now held by Brandon Fisher, who is running for the Anderson County chancellor seat vacated by the retiring Chancellor Bill Lantrip. Clement said he has represented clients in Juvenile Court since he began practicing law and brings “a wealth of knowledge and a depth of feeling for the Juvenile Court system.”


TBA Offers CLE Your Way

Remember to use the three hours of free CLE programming that comes with your TBA membership. Members can use this credit to cover all or part of the cost of live programs across the state, weekly webcasts or any of the 300-plus online courses offered in both video and text formats. Find a course now.


 
 

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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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