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The U.S. Court of Appeals for the Sixth Circuit is soliciting applications from persons interested in appointment as bankruptcy judge for the Eastern District of Tennessee at Knoxville. The vacancy was created by the retirement of Judge Richard Stair Jr., effective Sept. 30, 2014. Applications must be received by Jan. 24, 2014. For more information on qualifications, download the court's notice.

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
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
06 - 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









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TN Court of Appeals

IN RE: A.W.

Court: TN Court of Appeals

Attorneys:

Dean Hill Rivkin, attorney and professor; Brenda McGee, attorney; and, Anna Swift, practicum student attorney, UT College of Law Education Law Practicum, for the appellant, A.W.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and, Jordan Scott, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SWINEY

This case arises from juvenile proceedings concerning the then minor child A.W. The Juvenile Court for Knox County (“the Juvenile Court”) found A.W. to be an unruly child. A.W. some time later filed a Petition to Vacate Orders and to Dismiss regarding the order finding A.W. to be an unruly child, citing constitutional, procedural, and jurisdictional defects. The Juvenile Court denied the petition to vacate. A.W. appealed to the Circuit Court for Knox County, Fourth Circuit (“the Circuit Court”). The State of Tennessee (“the State”) moved to dismiss the appeal, arguing the appeal was untimely. The Circuit Court granted the State’s motion to dismiss. We reversed the Circuit Court on appeal, and remanded for the Circuit Court to hear the appeal of the denial of the petition to vacate. A.W. filed an amended petition to vacate and later a motion for summary judgment. The State filed a cross-motion for summary judgment, arguing, among other things, that A.W.’s claims could not be redressed by a Tenn. R. Juv. P. 34 petition to vacate. The Circuit Court granted the State’s motion for summary judgment. A.W. appeals. We affirm.


IN RE: B.R.

Court: TN Court of Appeals

Attorneys:

Dean Hill Rivkin, attorney and professor; Brenda McGee, attorney; and, Anna Swift, practicum student attorney, UT College of Law Education Law Practicum, for the appellant, B.R.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and, Jordan Scott, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SWINEY

This case arises from juvenile proceedings concerning the then minor child B.R. The Juvenile Court for Knox County (“the Juvenile Court”) found B.R. to be an unruly child. B.R. some time later filed a Petition to Vacate Orders and to Dismiss regarding the order finding B.R. to be an unruly child, citing constitutional, procedural, and jurisdictional defects. The Juvenile Court denied the petition to vacate. B.R. appealed to the Circuit Court for Knox County, Fourth Circuit (“the Circuit Court”). The State of Tennessee (“the State”) moved to dismiss the appeal, arguing the appeal was untimely. The Circuit Court granted the State’s motion to dismiss. We reversed the Circuit Court on appeal, and remanded for the Circuit Court to hear the appeal of the denial of the petition to vacate. B.R. filed an amended petition to vacate and later a motion for summary judgment. The State filed a cross-motion for summary judgment, arguing, among other things, that B.R.’s claims could not be redressed by a Tenn. R. Juv. P. 34 petition to vacate. The Circuit Court granted the State’s motion for summary judgment. B.R. appeals. We affirm.


CHRISTINA LEIGH CZERNIAK V. ANTHONY KYLE CZERNIAK

Court: TN Court of Appeals

Attorneys:

Todd Godwin Cole, III, Brentwood, Tennessee, for the petitioner, Christina Leigh Czerniak.

Jessica Hooper, Nashville Tennessee, for the respondent, Anthony Kyle Czerniak.

Judge: DINKINS

Petitioner in a divorce proceeding filed a motion to disqualify the trial court alleging that the court made comments and exhibited conduct at a hearing which indicated that the court was biased against her and that she could not receive a fair trial. The trial judge denied the motion and the petitioner then filed this interlocutory appeal as of right pursuant to Tenn. Sup. Ct. R. 10B. We affirm the denial of the motion to disqualify.


IN RE: EIMILE A.M.

Court: TN Court of Appeals

Attorneys:

Richard L. Elliston, Cleveland, Tennessee, for the appellant, Christopher M.

Philip M. Jacobs, Cleveland, Tennessee, for the appellees, Lisa Ann C. and Michael C.

Judge: SWINEY

This case is before us once again after remand to the Trial Court for specific findings relative to the Trial Court’s termination of the parental rights of Christopher M. (“Father”) to the minor child Eimile A.M. (“the Child”). Upon remand the Trial Court entered its findings of fact. Father appeals the termination of his parental rights to the Child. We find and hold that clear and convincing evidence was not proven of grounds to terminate Father’s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102 for willful failure to visit or willful failure to support. We, therefore, reverse the Trial Court’s order terminating Father’s parental rights to the Child.


IN RE: M.R.

Court: TN Court of Appeals

Attorneys:

Dean Hill Rivkin, attorney and professor; Brenda McGee, attorney; and, Anna Swift, practicum student attorney, UT College of Law Education Law Practicum, for the appellant, M.R.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and, Jordan Scott, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SWINEY

This case arises from juvenile proceedings concerning the minor child M.R. The Juvenile Court for Knox County (“the Juvenile Court”) found M.R. to be an unruly child. M.R. some time later filed a Petition to Vacate Orders and to Dismiss regarding the order finding M.R. to be an unruly child, citing constitutional, procedural, and jurisdictional defects. The Juvenile Court denied the petition to vacate. M.R. appealed to the Circuit Court for Knox County, Fourth Circuit (“the Circuit Court”). The State of Tennessee (“the State”) moved to dismiss the appeal, arguing the appeal was untimely. The Circuit Court granted the State’s motion to dismiss. We reversed the Circuit Court on appeal, and remanded for the Circuit Court to hear the appeal of the denial of the petition to vacate. M.R. filed an amended petition to vacate and later a motion for summary judgment. The State filed a cross-motion for summary judgment, arguing, among other things, that M.R.’s claims could not be redressed by a Tenn. R. Juv. P. 34 petition to vacate. The Circuit Court granted the State’s motion for summary judgment. M.R. appeals. We affirm.


IN RE: T.W.

Court: TN Court of Appeals

Attorneys:

Dean Hill Rivkin, attorney and professor; Brenda McGee, attorney; and, Anna Swift, practicum student attorney, UT College of Law Education Law Practicum, for the appellant, T.W.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and, Jordan Scott, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SWINEY

This case arises from juvenile proceedings concerning the then minor child T.W. The Juvenile Court for Knox County (“the Juvenile Court”) found T.W. to be an unruly child. T.W. some time later filed a Petition to Vacate Orders and to Dismiss regarding the order finding T.W. to be an unruly child, citing constitutional, procedural, and jurisdictional defects. The Juvenile Court denied the petition to vacate. T.W. appealed to the Circuit Court for Knox County, Fourth Circuit (“the Circuit Court”). The State of Tennessee (“the State”) moved to dismiss the appeal, arguing the appeal was untimely. The Circuit Court granted the State’s motion to dismiss. We reversed the Circuit Court on appeal, and remanded for the Circuit Court to hear the appeal of the denial of the petition to vacate. T.W. filed an amended petition to vacate and later a motion for summary judgment. The State filed a cross-motion for summary judgment, arguing, among other things, that T.W.’s claims could not be redressed by a Tenn. R. Juv. P. 34 petition to vacate. The Circuit Court granted the State’s motion for summary judgment. T.W. appeals. We affirm.


TN Court of Criminal Appeals

GREGORY TYRONE GREER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Joseph T. Howell, Jackson, Tennessee, for the appellant, Gregory Tyrone Greer.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Gregory Tyrone Greer (“the Petitioner”) was convicted of reckless aggravated assault by a Madison County jury. The Petitioner subsequently filed for post-conviction relief, alleging ineffective assistance of counsel. Following a hearing, the post-conviction court denied relief. The Petitioner now appeals. Upon our thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.


ALEJANDRO GUANA v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Lyle A. Jones, Covington, Tennessee, for the appellant, Alejandro Guana.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Michael Dunavant, District Attorney General; and Jason Poyner, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Alejandro Guana,1 appeals the Tipton County Circuit Court’s denial of his petition for post-conviction relief challenging his conviction for first degree murder which resulted in a life sentence. On appeal, the Petitioner contends that the post-conviction court erred in denying relief alleging ineffective assistance of both trial and appellate counsel and trial court errors. Specifically, he submits that trial counsel was ineffective in the following ways: (1) failing to investigate and interview the State’s witnesses, leaving him unprepared for cross-examination; (2) conceding that the Petitioner’s actions were intentional, abandoning any viable defense; (3) failing to call an expert witness on his intoxication at the time of the shooting and failing to present a defense of diminished capacity; (4) failing to preserve his request for a mistrial and offer proof regarding a memorial service for the victim which took place during the sentencing phase of the Petitioner’s trial; and (5) failing to ask for individual voir dire of any particular juror. As for appellate counsel, the Petitioner argues that he received ineffective assistance by counsel’s failure to pursue the memorial service issue and the omission of a jury instruction on accomplice testimony on appeal. Finally, he alleges trial court error regarding the trial court’s failure to give the instruction on accomplice testimony and the failure to declare a mistrial based upon the memorial service. Following our review, we affirm the denial of relief.


STATE OF TENNESSEE V. BENJAMIN GUNN

Court: TN Court of Criminal Appeals

Attorneys:

Claiborne H. Ferguson and Andrew R. E. Plunk, Memphis, Tennessee, for the appellant, Benjamin Gunn.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin E.D. Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Meghan Fowler and Josh Corman, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: BIVINS

Benjamin Gunn (“the Defendant”) was convicted by a jury of two counts of possession of cocaine, one count of possession with intent to sell 14.175 grams or more of marijuana, one count of possession with intent to deliver 14.175 grams or more of marijuana, and one count of tampering with evidence. The trial court merged the two convictions for possession of cocaine. The trial court also merged the conviction for possession with intent to deliver 14.175 grams or more of marijuana into the conviction for possession with intent to sell 14.175 grams or more of marijuana. The trial court sentenced the Defendant to an effective sentence of eight years, eleven months, and twenty-nine days’ incarceration. On appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions for possession with intent to sell and deliver 14.175 grams or more of marijuana. After a thorough review of the record and the applicable law, we affirm the judgments of the trial court.


LARRY WAYNE WEBB v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

James O. Martin, III, Nashville, Tennessee, for the appellant, Larry Wayne Webb.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Brian Ewald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Larry Wayne Webb, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his 2010 convictions for forgery and identity theft, for which he is serving an effective twelve-year sentence as a Range III, career offender. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the trial court.


JIMMY YARBRO v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

George D. Norton, Jr., Selmer, Tennessee, for the appellant, Jimmy Yarbro.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Mike Dunavant, District Attorney General; and Bob Gray, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Jimmy Yarbro (“the Petitioner”) pleaded guilty to theft of property of $10,000 or more and burglary. Pursuant to the plea agreement, the trial court sentenced the Petitioner to an effective sentence of eight years, with restitution and manner of service to be determined by the trial court. Following a sentencing hearing, the trial court denied alternative sentencing and ordered that the Petitioner serve his sentence in confinement. The court also ordered restitution of $17,000 in increments of $200 per month beginning sixty days after the Petitioner’s release. 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 in conjunction with his plea. Upon our thorough review of the record and the applicable law, we affirm the judgment of the post- conviction court.


Meet CLE Deadline with TBA Blast

Need CLE hours fast? The TBA is offering its annual Year End CLE Blast on Dec. 27, 30 and 31. Programs will run from 7 a.m. to 7 p.m. There is no need to pre-register; the registration desk will be open all day. Learn more at TennBarU.


Nashville Post Lists Top Legal Stories from 2013

As part of its 2013 Top Reads feature, the Nashville Post looks back at the year’s most popular litigation and lawyer-on-the-move stories. The top 20 legal articles of 2013 included coverage of some of the nation's largest corporate brands including Vanderbilt, Bridgestone and American Idol.


Shelby Mayor Names Interim County Attorney

Deputy Shelby County Attorney Marcy Ingram has been appointed interim Shelby County attorney by Mayor Mark Luttrell, the Memphis Business Journal reports. The post was vacated by Kelly Rayne, who left effective Dec. 31 to become vice president of public policy at the Greater Memphis Chamber. Ingram has served has Rayne’s top legal assistant for the past two years.


Lawsuits Piling up over Target Data Breach

Days after acknowledging a massive hacking of customer credit card data, Target is facing at least two dozen lawsuits, CNN Money reports. Customers from California, Oregon and Washington to Louisiana, Massachusetts and Rhode Island have filed would-be class actions in federal courts, alleging Target was negligent and did not protect their card information. The retailer announced Monday that the Department of Justice is investigating the security breach of about 40 million credit and debit card accounts, the Associate Press reports on WATE. Security experts say it is the second largest theft of card accounts in U.S. history.


Meningitis Suit Agreement Exceeds $100 Million

Lawyers representing victims of the fungal meningitis outbreak announced Monday a preliminary settlement of more than $100 million with the owners of New England Compounding Center (NECC) and its insurers, the Tennessean reports. The agreement was negotiated as part of bankruptcy court proceedings and is only for claims against the NECC, not for the dozens of suits filed against health care providers such as St. Thomas Outpatient Neurosurgical Clinic, which injected patients with the contaminated steroid.


Lawyer in Vanderbilt Rape Case Seeks Hearing for Colleague

Attorney John Herbison filed a 26-page motion charging Davidson County Assistant District Attorney Tom Thurman with making “reckless allegations” about defense attorney Albert Perez Jr., a member of the team defending former Vanderbilt University football player Brandon Vanderburg who is accused of rape. Thurman asked a judge to remove Perez, charging that he was involved in destroying evidence, the Tennessean reports.


Law Prof: Law Libraries are 'Doomed'

As law schools are forced to tighten their belts, law libraries are getting squeezed especially hard, the Wall Street Journal Law Blog reports. In fact, according to SUNY Buffalo Law School professor James G. Milles they are "doomed." “Law schools will not simply shut down or hand off their libraries—or few will. Rather, law libraries will be chipped away notch by notch, by attrition of personnel and services,” he writes in a new working research paper about the legal education crisis. Miles also notes that the problem isn’t just about money, but also about demand. Legal historians are “still attached to traditional law libraries” he writes, but most faculty now are doing most of their legal research electronically.


Legislator Calls for Tougher Rape Kit Testing Procedures

State Rep. Antonio Parkinson says he plans to introduce legislation making it mandatory to test all rape kits. Coming weeks after Memphis police admitted that 12,000 rape kits -- dating back to the early 1980s -- have not been tested, the bill requires that evidence be submitted within 10 days of collection to the Tennessee Bureau of Investigation (TBI) or to a TBI-authorized lab for testing, Parkinson said. Once those kits are submitted, whoever is testing them would then have six months to make sure they are processed. WREG News Channel 3 has more.


Health Insurance Exchange Now Available Through TBA

Fast and easy health insurance enrollment is now available through the TBA Health Insurance Exchange operated by JLBG Health. Affordable health insurance coverage is important, but getting it can be complicated, frustrating and expensive. The TBA Health Insurance Exchange can help make the whole process simpler and easier to navigate.


 
 

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.


© Copyright 2013 Tennessee Bar Association