Foundation Awards $548K Through IOLTA Grants

The Tennessee Bar Foundation has awarded $548,030 to 25 organizations across the state as part of its 2014 Interest On Lawyers' Trust Accounts (IOLTA) grants. Gifts range in size from $3,000 for Catholic Charities’ Immigrant Services to $122,153 for the Legal Aid Society of Middle Tennessee and the Cumberlands. Legal aid agencies in Jackson, Knoxville and Memphis also received funding. Download the full list at the link above.

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
05 - 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

JOLYN CULLUM ET AL. v. JAN MCCOOL ET AL.
With Concurring & Dissenting Opinion

Court: TN Supreme Court

Attorneys:

G. Andrew Rowlett and Behnaz Sulkowski, Nashville, Tennessee, for the appellant, Wal- Mart Stores East, LP.

Amelia C. Roberts, Chattanooga, Tennessee, for the appellees, Jolyn Cullum and Andrew Cullum.

Lynda Motes Hill, Nashville, Tennessee, for the Amicus Curiae, National Federation of Independent Business Small Business Legal Center.

Judge: LEE

The issue presented in this premises liability case is whether a store owes a duty to protect its customer from a visibly intoxicated customer who was ordered to leave the store by store employees. A store patron sued a store for negligence after she was struck and injured in the store’s parking lot by a vehicle driven by another store patron. Store employees had refused to fill the other patron’s medical prescriptions because they believed she was intoxicated; she became belligerent, and store employees ordered her to leave the store knowing that she was alone and would be driving her vehicle. In response to the lawsuit, the store filed a motion to dismiss, contending that it did not have a legal duty to control the intoxicated patron after she left the store. The trial judge granted the store’s motion to dismiss. The Court of Appeals reversed, finding that the store owed the injured patron a duty of care to protect her from the intoxicated patron. Taking the plaintiffs’ allegations as true and drawing all reasonable inferences in her favor, we hold that the foreseeability of harm and the gravity of harm to the injured patron outweighed the burden placed on the store to protect the patron against that harm. Therefore, the store patron’s complaint contains sufficient allegations which, taken as true, establish that the store owed a duty of care to the injured patron. The trial court erred by granting the motion to dismiss.


TN Court of Appeals

WILLIAM LANE LANIER v. CORIE J. DIZOL (F/K/A LANIER)

Court: TN Court of Appeals

Attorneys:

Michael T. Fort and William P. Holloway, Franklin, Tennessee, for the appellant, Corie J. Dizol.

M. Quinn Brandon Stewart, Lewisburg, Tennessee, for the appellee, William Lane Lanier.

Judge: DINKINS

Court in post-divorce modification of custody action dismissed Mother’s motion to alter or amend the order adopting parenting plan proposed by Father, holding that the motion was unsigned and not promptly corrected as allowed by Tenn. R. Civ. P. 11.01. Having determined that the motion was properly signed, we reverse the trial court’s decision and remand the case for consideration of the motion.


IN RE ESTATE OF CHARLES W. MCGINNIS

Court: TN Court of Appeals

Attorneys:

Suzette Peyton, Brentwood, Tennessee, appellant, Pro Se.

George E. Copple, Jr., Nashville, Tennessee, appellant, Pro Se.

David C. Higney, Chattanooga, Tennessee, for the appellee, Merrill Lynch, Pierce, Fenner & Smith, Inc.

Judge: CLEMENT

George E. Copple, Jr., and Suzette Peyton, attorneys who represented the administrator of the decedent’s probate estate, appeal from an order of the trial court holding them personally liable for expenses incurred by a non-party in responding to a subpoena duces tecum. One year after the subpoena was issued and the expenses were incurred by non-party Merrill Lynch, Pierce, Fenner & Smith, Inc., to comply with the subpoena, the attorneys for the administrator of the estate filed a motion to withdraw. Merrill Lynch did not object to the motion to withdraw, but did file a response requesting that its expenses to comply with the subpoena be assessed against the attorneys personally. The trial court granted leave to withdraw; however, the court did not relieve the attorneys as sureties for “costs to date including and limited to $776.00 incurred by Merrill Lynch in the reproduction of materials produced by Merrill Lynch to counsel for the Administrator.” In its order, the trial court stated that its ruling was based upon the record as a whole, including, but not limited to, Tennessee Rule of Civil Procedure 45. No other authority was cited in the order. The attorneys appeal. Being unable to identify any authority upon which to hold the attorneys personally liable for the expense of a non-party to comply with a subpoena duces tecum, we reverse.


KRISTINA MORRIS v. JIMMY PHILLIPS, ET AL.

Court: TN Court of Appeals

Attorneys:

Daniel A. Gagliano, Nashville, Tennessee, for the appellant, Rachel Mitchell.

Allen Woods, Nashville, Tennessee, for the appellee, Kristina Morris.

Judge: COTTRELL

A multi-vehicle accident occurred in August 2010. The plaintiff initially named only one of the drivers involved in the accident along with the record owner of the driver’s vehicle. The record owner filed an answer identifying three other drivers/tortfeasors involved in the accident in December 2011, and the driver identified the same three individuals as tortfeasors in his answer that was filed seven months later, in July 2012. The plaintiff did not file an amended complaint adding the individuals identified as defendants until August 2012, which was more than 90 days after the first answer was filed. One of the individuals named as a defendant filed a motion to dismiss, arguing the plaintiff waited too late to add her as a defendant. The trial court denied the motion. The late-added defendant appealed, and we reverse the trial court’s judgment.


WAL-MART STORES EAST, L.P. V. NORTH EDGEFIELD ORGANIZED NEIGHBORS, INC.

Court: TN Court of Appeals

Attorneys:

Joseph Howell Johnston, Nashville, Tennessee, for the appellant, North Edgefield Organized Neighbors, Inc.

J. Graham Matherne, Nashville, Tennessee, for the appellee, Wal-Mart Stores East, L.P.

Judge: CLEMENT

This appeal arises from a Complaint to Quiet Title and for Declaratory Relief filed by Wal- Mart Stores East, L.P. Pursuant to a 2008 Quitclaim Deed, Wal-Mart conveyed, subject to a reversion clause, a one-quarter acre parcel to the defendant upon which stood a 1930’s era Fire Hall. The reversion clause states, in pertinent part, that fee-simple ownership of the property shall revert to Wal-Mart in the event the improvements are subject to any casualty. “Casualty” is defined in the deed to include a fire that results in damage to all or substantially all of the Fire Hall or damage that is not repaired within 180 days after the occurrence of such casualty. It is undisputed that substantially all of the Fire Hall was damaged following a fire that occurred on December 1, 2011. This action ensued, and Wal-Mart subsequently filed a motion for summary judgement contending fee-simple title reverted to Wal-Mart due to the December 2011 casualty. The defendant did not dispute the fact that substantially all of the Fire Hall was damaged by the fire; nevertheless, the defendant opposed the motion on the basis that the term “casualty,” as defined in the deed, is ambiguous. The trial court concluded as a matter of law that the term “casualty” was clear and unambiguous, that the damage resulting from the December 2011 fire constituted a casualty, and that the property reverted back to Wal-Mart. Therefore, the court granted summary judgment in favor of the petitioner. The defendant appeals. We affirm.


REBECCA WEBB v. MARK THOMAS WEBB

Court: TN Court of Appeals

Attorneys:

Mark Thomas Webb, Wartrace, Tennessee, Pro Se.

Randall W. Morrison, Tullahoma, Tennessee, for the appellee, Rebecca Webb.

Judge: BENNETT

Father appeals the trial court’s amended judgment in this divorce action. Discerning no error, we affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. JARED SCOTT AGUILAR

Court: TN Court of Criminal Appeals

Attorneys:

Roger E. Nell, District Public Defender; and Crystal L. Myers, Assistant District Public Defender, for the appellant, Jared Scott Aguilar.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; John W. Carney, District Attorney General; and Dan Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Jared Scott Aguilar, appeals from his Montgomery County Circuit Court jury convictions of six counts of sexual exploitation of a minor, see T.C.A. § 39-17-1003(a)(1), claiming that the trial court erred by denying his motion to suppress evidence seized pursuant to a search warrant, that the evidence was insufficient to sustain two of the convictions, that the counts of the indictment are multiplicitous, and that the 10-year effective sentence is excessive. Discerning no error, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. JODY KYLE BANKS

Court: TN Court of Criminal Appeals

Attorneys:

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Jody Kyle Banks.

Robert E. Cooper, Jr., Attorney General & Reporter; Clark B. Thornton, Senior Counsel; Lisa Zavogiannis, District Attorney General; and Darrell R. Julian, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Jody Kyle Banks, pled guilty to driving under the influence of an intoxicant (second offense), a Class A misdemeanor, in violation of Tennessee Code Annotated section 55-10-401(a)(1) (2010). He was sentenced to eleven months and twenty-nine days imprisonment, with fifty days to be served in jail and the remainder of the sentence to be served on probation. In entering his guilty plea, the defendant reserved, pursuant to Tennessee Rule of Criminal Procedure 37(b)(2), a certified question of law challenging the initial stop of his vehicle based on a broken taillight. After a thorough review of the record, we conclude that this case is governed by the Tennessee Supreme Court’s decision in State v. Brotherton, 323 S.W.3d 866 (Tenn. 2010), and we accordingly affirm the judgment of the trial court.


STATE OF TENNESSEE v. MARK DUNLAP

Court: TN Court of Criminal Appeals

Attorneys:

P. Richard Talley, for the Defendant-Appellant, Mark Dunlap.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; James Dunn, District Attorney General; and Ashley D. McDermott, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Mark Dunlap, appeals from the Sevier County Circuit Court’s order revoking his community corrections sentence. The Defendant previously entered guilty pleas to kidnapping, aggravated assault, attempted aggravated burglary, and vandalism. Pursuant to the plea agreement, the trial court sentenced the Defendant to an effective sentence of six years, which was suspended to time served with the balance of his sentence to be served in the community corrections program. On appeal, the Defendant argues that the trial court erred in ordering the Defendant to serve his sentences in confinement after revoking his community corrections and erred in imposing consecutive sentencing. Upon review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. NASIR HAKEEM

Court: TN Court of Criminal Appeals

Attorneys:

Stephanie D. Ritchie, Clarksville, Tennessee, for the appellant, Nasir Hakeem.

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

Judge: WILLIAMS

The defendant, Nasir Hakeem, was convicted after a bench trial of two counts of sexual battery, a Class E felony, in violation of Tennessee Code Annotated section 39-13-505 (2010). On appeal, he challenges the sufficiency of the convicting evidence, pointing to inconsistencies in the testimony of the State’s witnesses. After a thorough review of the record, we conclude that the evidence was sufficient to support the convictions and we accordingly affirm the judgment of the trial court.


STATE OF TENNESSEE v. WILLIAM ROGER HENDERSON, III

Court: TN Court of Criminal Appeals

Attorneys:

David A. Collins, Nashville, Tennessee, for the appellant, William Roger Henderson, III.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel Harmon, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Amy Hunter, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, William Roger Henderson, III, pled guilty to two counts of attempted aggravated robbery, Class C felonies. The trial court sentenced him as a multiple offender to serve nine years in the Department of Correction on each count, with the counts to run concurrently. The trial court refused to give the defendant an alternative sentence, and the defendant appeals. Having reviewed the record, we conclude that the trial court did not abuse its discretion in ordering the defendant’s confinement to prison, and we affirm the judgment of the trial court.


STATE OF TENNESSEE v. DOUGLAS RAY MURRELL

Court: TN Court of Criminal Appeals

Attorneys:

Dale M. Quillen, Nashville, Tennessee, for the appellant, Douglas R. Murrell.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Senior Counsel; Kim Helper, District Attorney General; and Kate Yeager, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Douglas Ray Murrell, pled guilty to one count of driving a vehicle under the influence of an intoxicant in violation of Tennessee Code Annotated section 55-10-401(a)(1) (2010), a Class A misdemeanor; pled nolo contendere to one count of failure to maintain lane in violation of Tennessee Code Annotated section 55-8-123, a Class C misdemeanor; and pled guilty to one count of driving a vehicle with a blood alcohol concentration greater than 0.08 percent in violation of Tennessee Code Annotated section 55-10-401(a)(2), a Class A misdemeanor. The trial court merged the two DUI convictions. In pleading guilty to the DUI charges, the defendant reserved a certified question pursuant to Tennessee Rule of Criminal Procedure 37, challenging the trial court’s conclusion that the initial stop of his vehicle was supported by reasonable suspicion. After reviewing the record, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. JAMES ALLEN NIX

Court: TN Court of Criminal Appeals

Attorneys:

Terry S. Frizzell, Hendersonville, Tennessee (on appeal); and Jon J. Tucci, Nashville, Tennessee (at trial), for the appellant, James Allen Nix.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Bradshaw, Assistant Attorney General; Lawrence R. Whitley, District Attorney General; and Lytle Anthony James, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, James Allen Nix, was convicted by a Sumner County Criminal Court jury of burglary of a building other than a habitation and theft of property valued at $1000 to $10,000, both Class D felonies, and was sentenced by the trial court as a Range III, multiple offender to concurrent terms of eight years in the Department of Correction. On appeal, he raises three issues relating to the trial court’s denial of his motion to suppress evidence obtained from his home pursuant to a search warrant. The State argues that the defendant has waived consideration of these issues by his failure to include them in his motion for new trial. We agree with the State. Accordingly, we affirm the judgments of the trial court.


AOC Makes Appointments for 2014

The Administrative Office of the Courts (AOC) recently released updated rosters for a variety of boards and commissions that fall under the jurisdiction of the Tennessee Supreme Court. New appointments will take effect Jan. 1, 2014. New members named to the Alternative Dispute Resolution Commission are Mary Ann Zaha and Virginia Story, who replace Glenna Ramer and Edward Silva. At the Board of Law Examiners, the court appointed Rhynette Hurd and Jeffrey Ward to replace Jimmie Carpenter Miller and Ricky Wilkins. New members named to the CLE Commission are Cynthia Hall and Sarah Creekmore Woodall, who replace Thomas Clifton Greenholtz and John Stanley Rogers. The court also named Ed Lancaster as chair. At the Board of Professional Responsibility, the court appointed Odell Horton to replace Clarence Halmon and named Russell Parkes as chair and Michael King as vice chair. New members named to the Tennessee Lawyers’ Fund For Client Protection are Rep. Vance Dennis, Jonathan Guthrie and Spencer Chinery, who replace Laura Keeton, Katherine Wilson Singleton and Mary Ann Zaha. Fund leaders include Chair Dawn Deaner, Vice Chair Marty McAfee and Secretary/Treasurer Kim Helper.


ABA President: Tuition, Debt Discouraging Law School Enrollment

In an interview with National Public Radio today, ABA President James Silkenat says that one reason first-year law school enrollment is down is “student loan debt in the six figures.” He thinks some students have decided that law school is no longer “worth it” since jobs remain scarce and the amount of debt affects career options. “The level of debt, frankly, affects the kinds of careers that law graduates can pursue. It's very difficult becoming a legal services lawyer working in environmental issues or something where the pay is not…at Wall Street levels,” he said. Silkenat says the enrollment numbers point to a larger issue: law school tuition needs to come down.


JAS Director Reflects on State of the Courts

As 2013 comes to a close, Justice at Stake Executive Director Bert Brandenburg reflects on what he says was a “pretty challenging year” for state and federal courts. He also predicts that 2014 will present new challenges as many states are scheduled to hold judicial elections. On the federal level, Brandenburg says there were historic gains for diversity on the bench in 2013, but that the courts continue to suffer from a long-term funding crisis exacerbated by the sequestration budget cuts. On the state level, Brandenburg praised West Virginia for adopting public financing of judicial races but lamented efforts to dismantle merit selection for Kansas judges. Finally, Brandenburg says he expects to see a renewed effort in the states to do away with or politicize merit selection of judges over the next year. Watch his remarks in a video from Justice at Stake.


Ramsey Calls on State to Restart Executions

In an opinion piece published in The Tennessean Tuesday, Lt. Gov. and Senate Speaker Ronald Ramsey says it “is time to have the moral courage to give taxpayers and victims the justice they demand and deserve” by getting “serious about the death penalty.” Ramsey argues the time is right to restart executions because the state has a workable and “as humane as possible” method for administering lethal injections, and that with advances in DNA technology we can be “more positive than ever that those convicted of capital crimes are guilty.” He notes that 79 people await execution on Tennessee’s death row and that on average, they spend 20 years waiting for their final punishment.


Additional Rutherford Candidates File to Run

Six additional candidates have qualified to run in Rutherford County in 2014 races, The Daily News Journal reports. They include Eric Hennessee, who is running for General Sessions Judge, Part II; Juvenile Court Judge Donna Scott Davenport, who is seeking re-election; Charles G. Ward, who is running for district attorney general; and three who are running for circuit court clerk: incumbent Laura Bohling, Melissa Harrell and Lance Jenkins. Read more about the candidates in the paper.


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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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