Jackson Lawyer Appointed to Court of Appeals

Jackson lawyer and Alamo native Brandon O. Gibson has been appointed to the Tennessee Court of Appeals by Gov. Bill Haslam. She will replace Judge David R. Farmer when his term expires in August 2014. Gibson, 38, has been in private practice at the Pentecost & Glenn law firm in Jackson since 2003. “Brandon Gibson will be an excellent judge on the Court of Appeals,” Haslam said. “She has vast experience in private practice, and I know she will serve the citizens of the Western Section well in this role.”

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
03 - 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









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 Court of Appeals

RENE ANNETTE FIELDS v. JIMMY GLENN FIELDS
With Dissenting Opinion

Court: TN Court of Appeals

Attorneys:

C. Christopher Raines, III, Kingsport, Tennessee, for the appellant, Jimmy Glenn Fields.

Gregory W. Francisco, Kingsport, Tennessee, for the appellee, Rene Annette Fields.

Judge: SUSANO

This is a post-divorce case. Jimmy Glenn Fields (“Husband”) appeals the trial court’s order (1) denying his motion for a reduction in alimony and (2) granting the counter-motion of Rene Annette Fields (“Wife”) for an increase in alimony. Following a bench trial, the court held that Husband had failed to demonstrate his inability to return to work as a material change in circumstances justifying a decrease in his court-ordered alimony obligation of $1,100 a month. Rather, the court found that the proof demonstrated that Husband had the ability to pay, and that Wife had a need for, increased support. The court increased Husband’s obligation to $2,000 per month. We affirm.


EARLENE GREGORY v. MICHAEL MELHORN ET AL.

Court: TN Court of Appeals

Attorneys:

Mark N. Foster, Rockwood, Tennessee, for the appellants, Earlene Singleton Gregory, David L. Singleton, William E. Singleton, and John A. Singleton.

Sharon L. Reynolds, Kingston, Tennessee, for the appellees, Michael Melhorn and Cynthia Melhorn.

Judge: SUSANO

Earlene Gregory brought this action against Michael Melhorn and his wife, Cynthia Melhorn, sellers of a house and real estate, alleging that the defendants falsely stated in their Tennessee Residential Property Disclosure statement that they were unaware of any defects in the exterior walls or basement or any flooding or drainage problems. The contract for sale of the property, executed and signed by plaintiff and defendants, provided that the warranty deed was to be made in the name of Earlene Singleton Gregory.1 During discovery, the parties discovered that the deed actually listed the plaintiff’s three sons as grantees. After defendants moved for summary judgment on the ground that plaintiff lacked standing because she did not own the property, plaintiff moved to amend the complaint to include a claim for reformation of the deed to reflect her intention at the time of sale, i.e., to retain a life estate in the property with a remainder interest in her sons. Plaintiff also filed a motion to allow her sons to intervene as plaintiffs on the ground that they held legal title to the property. The trial court denied plaintiff’s motions and granted defendants summary judgment, holding that plaintiff lacked standing because she did not own the property. The court further held that the proposed intervening plaintiffs, even if allowed to intervene, would lack standing because they were not parties to the contract. We vacate the trial court’s summary judgment. We hold that the trial court abused its discretion in refusing to allow plaintiff to amend her complaint under Tenn. R. Civ. P. 15.01, and by refusing to allow the plaintiff’s sons to intervene, as was their right under Tenn. R. Civ. P. 24.01.


ANNE PAYNE v. CSX TRANSPORTATION, INC.

Court: TN Court of Appeals

Attorneys:

Richard N. Shapiro, Virginia Beach, Virginia; Sidney W. Gilreath and Cary L. Bauer, Knoxville, Tennessee, for the appellant, Anne Payne.

Randall A. Jordan, Karen Jenkins Young, and Christopher R. Jordan, St. Simons Island, Georgia; Evan M. Tager and Carl J. Summers, Washington, D.C.; John W. Baker, Jr. and Emily L. Herman-Thompson, Knoxville, Tennessee, for the appellee, CSX Transportation, Inc.

Judge: SUSANO

Winston Payne brought this action against his former employer, CSX Transportation, Inc., under the Federal Employers’ Liability Act (“FELA”), alleging that CSX negligently exposed him to asbestos, diesel fumes, and radioactive materials in the workplace causing his injuries.1 The jury returned a verdict finding (1) that CSX negligently caused Payne’s injuries; (2) that CSX violated the Locomotive Inspection Act or safety regulations regarding exposure to asbestos, diesel fumes, and radioactive materials; and (3) that Payne’s contributory negligence caused 62% of the harm he suffered. The jury found that “adequate compensation” for Payne’s injuries was $8.6 million. After the jury returned its verdict, the trial court, sua sponte, instructed the jury, for the first time, that, under FELA, its finding that CSX violated a statute or regulation enacted for the safety of its employees meant that plaintiff would recover 100% of the damages found by the jury. The court sent the jury back for further deliberations. It shortly returned with an amended verdict of “$3.2 million @ 100%.” Six months after the court entered judgment on the $3.2 million verdict, it granted CSX’s motion for a new trial, citing “instructional and evidentiary errors.” The case was then assigned to another trial judge, who thereafter granted CSX’s motion for summary judgment as to the entirety of the plaintiff’s complaint. The second judge ruled that the causation testimony of all of plaintiff’s expert witnesses was inadmissible. We hold that the trial court erred in instructing the jury, sua sponte, on a purely legal issue, i.e., that the jury’s finding of negligence per se under FELA precluded apportionment of any fault to the plaintiff based upon contributory negligence, an instruction given after the jury had returned a verdict that was complete, consistent, and based on the instructions earlier provided to it by the trial court. We further hold that, contrary to the trial court’s statements, the court did not make any prejudicial evidentiary rulings in conducting the trial, and that its jury instructions, read as a whole, were clear, correct, and complete. Consequently, the trial court erred in granting a new trial. We remand to the trial court. We direct the first trial judge to review the evidence as thirteenth juror and determine whether the jury verdict in the amount of $8.6 million is against the clear weight of the evidence. If it is not, the trial judge is directed to enter judgment on that verdict. If, on the other hand, the trial judge finds that the larger verdict is against the clear weight of the evidence, the court is directed to enter a final judgment on the jury’s verdict of $3.2 million. The trial court’s grant of summary judgment is rendered moot by our judgment. However, in the event the Supreme Court determines that our judgment is in error, we hold that the grant of summary judgment was not appropriate.


TN Court of Criminal Appeals

TOM PERRY BELL v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Brandy Spurgin, Chattanooga, Tennessee, for the appellant, Tom Perry Bell.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William H. Cox, III, District Attorney General; and Jason Demastus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Tom Perry Bell, filed a petition for post-conviction relief attacking his guilty- pleaded conviction for burglary and resulting eight-year sentence. The post-conviction court denied relief following an evidentiary hearing, finding that the Petitioner had failed to prove his allegations by clear and convincing evidence. In this appeal as of right, the Petitioner contends that trial counsel was ineffective at sentencing principally by failing to discover or challenge several errors in the presentence investigation report regarding his criminal history. After our review, we affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. CASSIE KRISTIN CHAPMAN

Court: TN Court of Criminal Appeals

Attorneys:

Terry L. Jordan, Blountville, Tennessee, for the appellant, Cassie Kristin Chapman.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Barry P. Staubus, District Attorney General; and James F. Goodwin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Cassie Chapman, was indicted by the Sullivan County Grand Jury for two counts of theft over $1,000 and one count of aggravated burglary. She pled guilty to the charges and agreed to a three-year sentence for one count of theft, a two-year sentence for the second count of theft, and a three-year sentence for aggravated burglary. The plea agreement specified that one two-year sentence for theft and the sentence for aggravated burglary would run concurrently with each other but consecutively to the three-year sentence for aggravated burglary would run consecutively to the theft sentences. After a sentencing hearing, the trial court denied alternative sentencing on the theft sentences. Appellant appeals. After a review of the record, we determine that the trial court did not abuse its discretion in sentencing Appellant to incarceration. Accordingly, the judgments of the trial court are affirmed.


STATE OF TENNESSEE v. JAMES JOHNSON A.K.A. GUY BONNER

Court: TN Court of Criminal Appeals

Attorneys:

Stephen C. Bush, District Public Defender; Tony N. Brayton, Assistant Public Defender; and Rusty White, Assistant Public Defender; Memphis, Tennessee, for the appellant, James Johnson.

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

Judge: WOODALL

A Shelby County Grand Jury returned an indictment against Defendant, James Johnson a.k.a. Guy Bonner, charging him with aggravated burglary, theft of property more than $500 but less than $1,000, and resisting arrest. Following a jury trial, Defendant was convicted of aggravated burglary, theft of property less than $500, and resisting arrest. The trial court imposed a sentence of 11 months, 29 days each for the theft conviction and the resisting arrest conviction and fifteen years as a persistent offender for aggravated burglary. The trial court ordered the sentences to be served concurrently to each other but consecutively to the sentences in unrelated cases. On appeal, Defendant argues that the evidence was insufficient to support his convictions and that the State failed to give proper notice of its intent to seek enhanced punishment. After a thorough review of the record, we affirm defendant’s convictions for aggravated burglary, theft over $500, and resisting arrest. However, we remand the case for entry of a corrected judgment showing a sentence of six months, concurrent with the sentences for aggravated burglary and theft over $500, for the Class B misdemeanor of resisting arrest.


Judges, Lawyers Raise Funds for Chattanooga Food Bank

Members of the Chattanooga Chapter of the American Inns of Court presented $14,400 in donations to the Chattanooga Area Food Bank. Over $11,000 of the donation was raised at an auction held during the group's annual holiday party, the Hamilton County Herald reports. The remainder came from private donations made by Inns of Court members. "This donation will allow us to provide 56,400 meals,” said food bank president Maeghan Jones, who also is a lawyer. “I’m amazed each year by the generosity the Inns of Court and our local legal community exhibit through their annual donation to help feed the hungry," she said.


Opinion: A Few New Year’s Legal Resolutions for 2014

In his latest opinion piece for the Millington Star, attorney David Peel offers five New Year’s legal resolutions that can help families. Peel suggests making a video of all household goods for insurance purposes in case of loss due to tornado, fire, theft or other disaster. He also suggests buying more uninsured and under-insured motorist coverage as well as life insurance. And he encourages families to keep an eye on their credit and finally, to safeguard their houses and land from liability hazards.


Gilmore Elected State Director for Women in Government

State Rep. Brenda Gilmore, D-Nashville, has been elected a state director within Women in Government, a group advocating for women serving in state legislatures. WDEF News 12 reports that Gilmore was elected by her female colleagues in the Tennessee General Assembly to identify key issues, policies and priorities on which the national group should focus. Gilmore said yesterday in a press release that she is humbled to have been chosen, and that she wants to work to ensure more women are elected to public office in Tennessee.


Report: Education Bills to Return in New Session

Proponents of revamping state education laws cite a recent report by the National Assessment of Education Progress, which shows Tennessee students rank highest in the nation in academic improvement, as proof that recent reforms are working and more should be considered. According to the Memphis Daily News, when the legislative session begins in January, lawmakers are expected to re-introduce several measures, including (1) a so-called "parent trigger" bill that lets parents decide the fate of a struggling school; (2) a proposal to allow the state to authorize charter schools in counties where there are failing schools; and (3) dueling plans to create a school voucher program.


Gun Group Slams Top Republicans for Lack of Enthusiasm

The Tennessee Firearms Association (TFA) is slamming top Republican leaders for displaying insufficient enthusiasm for changing the “guns in parking lots” law enacted earlier this year to address the state attorney general's opinion that the bill does not protect employees from being fired for having guns in their cars. The Chattanooga Times Free Press reports that House Speaker Beth Harwell, R-Nashville, and Senate Speaker Ron Ramsey, R-Blountville, said they expect the issue to come up but do not intend to take the lead in introducing legislation. In a letter to members, TFA Executive Director John Harris called it “shameful” that Republican leaders “continue ignoring the constitutionally protected rights of law-abiding gun owners."


Poll: Americans Think This Congress is 'Worst Ever'

According to a new CNN poll, two-thirds of Americans believe the 113th Congress is the worst ever, with 73 percent of respondents saying it has been a “do-nothing” body. Fewer than 60 bills have been signed into law during the first year of the 113th Congress’s two-year term, making it the least-productive Congress in at least 40 years, CNN predicts. Tennessee Republicans Rep. Chuck Fleischmann, Rep. Scott DesJarlais and Sen. Lamar Alexander weigh in on the story in the Chattanooga Times Free Press.


Davidson County Attorney Dies

Nashville attorney Aaron Wyckoff died Tuesday. He was 71. A memorial service is set for Jan. 3, 2014, at 11:30 a.m. at Westminster Presbyterian Church. The Tennessean reports that additional details will be published over the weekend.


Putnam County Election Officials Prepare for 2014

The Putnam County Election Commission has been preparing over the last year for a busy 2014 election year, the Herald Citizen reports. In May, commissioners were briefed by Election Administrator Debbie Steidl on updates to Tennessee’s photo ID law. In November, a new voting precinct was added. And the county’s 88 voting machines recently received software and screen upgrades thanks to a Help America Vote Act grant. The upgrades will improve how officials keep track of votes. County offices up for election include county executive, sheriff, trustee, county clerk, all county commissioners, circuit court clerk and general sessions court judges parts I and II. Also up for election for the first time in eight years are all 13th Judicial District offices — circuit and criminal court judges parts I and II, chancellor, district attorney general and public defender.


Davidson County Lawyer Suspended

On Dec. 26, Nashville lawyer Edward Kindall was suspended from the practice of law for one year retroactive to May 12, the date he was transferred from disability inactive status to active status. The Tennessee Supreme Court found that Kindall failed to establish internal policies and procedures designed to provide reasonable assurance that his non-lawyer assistant acted in a way compatible with the Rules of Professional Conduct. The court also found that he failed to properly supervise the assistant. Download the BPR notice.


Memphis Lawyer Censured

Memphis lawyer Linda Kaye Kendall Garner was publicly censured on Dec. 26 for entering into a contingent fee agreement without putting it in writing and failing to diligently pursue her client's case. Download the BPR notice.


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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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