Judge Rules Review Panel's Makeup Unconstitutional

The Judicial Performance Evaluation Commission is unconstitutional because its composition does not reflect the composition of the state, Davidson County Circuit Court Judge Hamilton “Kip” Gayden ruled today. State law says the panel’s composition shall "approximate the population of the state with respect to race and gender," but it currently consists of seven white men, one white woman and one black woman, the Tennessean reports. Gayden's office says the state attorney general's office plans to appeal the ruling.

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
04 - 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 Workers Comp Appeals

ARAMARK ET AL. v. JEREMY NIX

Court: TN Workers Comp Appeals

Attorneys:

Courtney R. Smith, Nashville, Tennessee, for the appellants, Aramark and Indemnity Insurance of North America.

Mandy Preston Parl, Nashville, Tennessee, for the appellee, Jeremy Nix.

Judge: ASH

An employee alleged he suffered a compensable injury to his lower back. His employer disputed a compensable injury occurred. In the alternative, the employer asserted any award of permanent disability benefits should be limited to one and onehalf times the medical impairment because the employee had been terminated for misconduct. The trial court found employee had sustained a compensable injury and did not have a meaningful return to work. It awarded 42% permanent partial disability (“PPD”), six times the medical impairment. The employer has appealed, asserting the evidence preponderates against the trial court’s findings. The employer also contends the award was excessive and the trial court erred by denying its motion to stay a portion of the judgment requiring payment of certain medical expenses. 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 pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.


TN Court of Appeals

SANDRA BUCKLER HALL, INDIVIDUALLY AND ON BEHALF OF HER MINOR SON, FELIX HALL v. PAUL D. RANDOLPH JR., M.D., PERSONAL REPRESENTATIVE AND NEXT OF KIN OF PAUL D. RANDOLPH, SR., M.D.

Court: TN Court of Appeals

Attorneys:

Emily Turner Landry and Jill M. Steinberg, Memphis, Tennessee, for the appellant, Paul D. Randolph, Jr., M.D., on behalf of Paul D. Randolph Sr., M.D.

Louis P. Chiozza, Jr., Memphis, Tennessee, for the appellee, Sandra Buckler Hall, individually and on behalf of her minor son Felix Hall.

Judge: FARMER

The trial court denied Defendant physician’s motion to recuse following the trial judge’s disclosure of an earlier patient-physician relationship with Defendant’s expert witness. Defendant filed an interlocutory appeal as of right pursuant to Rule 10B of the Tennessee Supreme Court Rules. Finding that the circumstances require recusal, we reverse.


IN RE: KIERRA B., ET AL.

Court: TN Court of Appeals

Attorneys:

Marsha M. Arnurius, Johnson City, Tennessee, for the appellant, Amber B.

Katherine L. Tranum, Kingsport, Tennessee, for the appellant, Miguel C.

Robert E. Cooper, Jr., Attorney General and Reporter, and, Alexander S. Rieger, Assistant Attorney General, for the appellee, the Tennessee Department of Children’s Services.

Polly A. Peterson, Guardian Ad Litem.

Judge: SWINEY

The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Sullivan County (“the Juvenile Court”) to terminate the parental rights of Amber B. (“Mother”) to the minor children Jayden B. and Kierra B. (“the Children,” collectively, or, “Jayden” and “Kierra” individually). DCS also sought to terminate the parental rights of Miguel C. (“Father”) to Kierra. After a trial, the Juvenile Court entered its order finding and holding, inter alia, that clear and convincing evidence was proven that grounds existed to terminate Mother’s parental rights to the Children pursuant to Tenn. Code Ann. §§ 36-1- 113 (g)(2) and (g)(3), and that clear and convincing evidence was proven that it was in the Children’s best interest for Mother’s parental rights to be terminated. The Juvenile Court also found and held that clear and convincing evidence was proven that grounds existed to terminate Father’s parental rights to Kierra pursuant to Tenn. Code Ann. § 36-1-113 (g)(1) and Tenn. Code Ann. § 36-1-102 (1)(A)(iv), and that clear and convincing evidence was proven that it was in Kierra’s best interest for Father’s parental rights to be terminated. Mother and Father appeal. Apart from certain grounds of abandonment pertaining to Father which we reverse for lack of adequate evidence, we affirm the judgment of the Juvenile Court terminating Mother’s parental rights to the Children and Father’s parental rights to Kierra.


JOHN SHELL and CONNIE SHELL v. SHERRI COLE WILLIAMS v. RICK SHELL

Court: TN Court of Appeals

Attorneys:

Brad W. Hornsby and Heather G. Parker, Murfreesboro, Tennessee, for the appellant, Sherri Cole Williams.

Mathew R. Zenner and Malcolm L. McCune, Brentwood, Tennessee, for the appellees, John Shell and Connie Shell.

Judge: STAFFORD

The issues in this case involve the proper use and alleged interference with an easement created by express grant. The trial court concluded that the holders of the easement could use the easement for recreational purposes and that the servient landowner had interfered with the use of the easement by planting trees and placing boulders within the easement. We reverse and remand.


ESTATE OF MINNIE BELL WOODARD V. JAMES W. FRANKLIN, ET AL.

Court: TN Court of Appeals

Attorneys:

Dean Robinson, Mount Juliet, Tennessee, for the appellant, James W. Franklin.

Jamie Douglas Winkler, Jack O. Bellar, Carthage, Tennessee, for the appellee, Diane Murray, Executrix of the Estate of Minnie Bell Woodard.

Judge: COTTRELL

A widow filed a complaint seeking a determination of the proper owner of a tract of real property held in her husband’s name. The widow lived on the property for over twenty years after her husband died. She believed she was the proper owner until she became interested in selling the property and learned her name was not on the deed. The trial court ruled the widow acquired the property by common law adverse possession, and one of the husband’s heirs-at-law appealed. The husband’s great nephew asserted the widow had permission to remain on the property, and, therefore, could not obtain title through adverse possession. We disagree and affirm the trial court’s judgment. The widow possessed and used the property openly and exclusively for over twenty years, thereby putting the world on notice that she claimed ownership of the property.


TN Court of Criminal Appeals

DAVID WAYNE BRITT v. JERRY LESTER, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

David Wayne Britt, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Petitioner, David Wayne Britt, appeals the Hardeman County Circuit Court’s denial of his petition for writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.


STATE OF TENNESSEE v. JENNIFER HANNAH

Court: TN Court of Criminal Appeals

Attorneys:

Patrick T. McNally, Nashville, Tennessee, for the appellant, Jennifer Hannah.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Jennifer Hannah, was indicted by the Davidson County Grand Jury for four counts of child neglect, one count of first degree felony murder during the perpetration or attempt to perpetrate aggravated child neglect, and two counts of delivering a controlled substance to a minor. At the conclusion of a jury trial, she was found guilty of all counts as charged. The trial court sentenced her to an effective sentence of life imprisonment. On appeal, Appellant argues: (1) the trial court erred in allowing the testimony of Michael Orman under the provisions of Rule 404(b) of the Tennessee Rules of Evidence; (2) the trial court erred in denying Appellant’s motion for continuance; (3) the trial court erred in denying her motion to suppress statements made to law enforcement officers; (4) the trial court erred in denying her request for an instruction regarding lost or destroyed evidence; (5) the trial court erred in instructing the jury on the elements of aggravated child neglect; and (6) the trial court erred in allowing the admission of an audio recording of a deceased witness. After a thorough review of the record, we affirm the judgments of the trial court.


STATE OF TENNESSEE V. DENNIS MURPHY

Court: TN Court of Criminal Appeals

Attorneys:

Brian E. Nichols, Loudon, Tennessee, for the appellant, Dennis Murphy.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Steven Bebb, District Attorney General; and Krista Oswalt, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Dennis Murphy (“the Defendant”) was convicted by a jury of attempted rape. Following a sentencing hearing, the trial court sentenced the Defendant to five years’ incarceration. On appeal, the Defendant asserts that the trial court erred in admitting testimony regarding pictures not provided in discovery. He also challenges the sufficiency of the evidence supporting his conviction. Finally, the Defendant contends that cumulative errors denied him a fair trial. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.


Legal Aid Receives Grant for Medical Legal Partnership

The Legal Aid Society of Middle Tennessee and the Cumberlands has received a $55,000 grant from Baptist Healing Trust to support its Middle Tennessee Medical Legal Partnership. The partnership -- a joint effort between Legal Aid and Vanderbilt University -- integrates legal advocacy into the health care system at two Nashville clinics. The funds, according to Gary Housepian, executive director of the Legal Aid Society, will allow the agency to continue providing free, direct legal services to low-income patients and their families receiving treatment at the United Neighborhood Health Services clinic and the Shade Tree Clinic. Funds also will be used to train health care professionals on how to recognize a patient’s need for legal assistance as it relates to their illness.


Judge Rejects Racketeering Claims in Pilot Lawsuit

A federal judge in Alabama has dismissed several claims, including racketeering allegations, filed by Wright Transportation against Pilot Flying J, Knoxnews reports. The suit alleged that a federal affidavit released by prosecutors in April was a sufficient basis for the allegations. U.S. District Judge William Steele rejected that argument, saying the affidavit failed to meet a legal threshold that requires plaintiffs to present detailed allegations about misrepresentations that were made and who was responsible for them. The judge also dismissed claims of deceptive trade practices, fraudulent misrepresentation, negligent misrepresentation and suppression. A breach of contract charge, however, was allowed to stand.


AOC Updates Commission, Board Rosters

The Tennessee Administrative Office of the Courts (AOC) has released revised rosters for the Advisory Commission on the Rules of Practice and Procedure and the Board of Professional Responsibility to update member contact information and to add a term limit imposed as a result of a recent rule change.


Second State Considers Skipping Bar Exam

The Iowa Supreme Court will consider a proposal this summer that would allow law school graduates to skip the bar exam if they practice law in the state. The graduates still would have to pass an ethics exam, take a class on Iowa law and procedure and submit to screening, the Des Moines Register reports. The idea, backed by the Iowa State Bar Association, is intended to shorten the period between graduation and practice, saving the money needed for living expenses and bar review during that period. Currently, Wisconsin is the only state that allows its law school graduates to practice law without taking the bar exam -- a system known as in-state diploma privilege. The ABA Journal has more.


KBA Unveils Judicial Campaign Site

The Knoxville Bar Association has launched a voter guide called “Get to Know Your Judicial Candidate” on its website. The site offers information about the Knoxville courts, how judges are elected in the county and links to other resources. It also includes a section for those running for office, which offers information about election laws, ethical rules and campaign procedures. KBA Executive Director Marsha Wilson said the site will add candidate profiles following the Feb. 20 filing deadline.


Wamp’s Son Tries Second Congressional Run

Weston Wamp, son of former congressman Zach Wamp, announced Monday that he will make another run for the U.S. Congress, Nooga.com reports. Wamp came in third in the 2012 Republican primary and again will face Rep. Chuck Fleischmann of Ooltewah.


Pharmacist-Turned-Lawyer Running for Circuit Judge

Nashville attorney Jon Peeler announced his candidacy for Davidson County Circuit Court judge yesterday, The Tennessean reports. Peeler, who worked as pharmacist while he attended law school, earned his law degree from the Nashville School of Law. He now practices in state and federal courts and is president elect of the Tennessee Association for Justice. He is seeking the seat currently held by Judge Carol Soloman in Division VIII. Soloman, first elected in 1998, picked up a qualifying petition in November but has not filed it.


Candidates Line up for Nashville Races

The Tennessean reports that Circuit Court Judge Phil Smith has announced he will seek re-election in Division IV, while attorney Joy Smith Kimbrough held a kickoff event for her campaign for the Criminal Court Division I position, and attorney Allegra Walker announced she will run for General Sessions Court, Division IV. In addition, attorneys Adam Dread, Blake Freeman, Jay Norman and Edward Ryan are each seeking one of 11 General Sessions Court seats on the ballot.  Read more from the paper.


Volunteers Needed for Juvenile Court Clinic

Legal Aid of East Tennessee (LAET) is organizing and staffing a pro bono legal advice clinic at the Hamilton County Juvenile Court on the second Thursday of each month. The next event will be Feb. 13 from 1 to 4 p.m. The clinic focuses on helping families with child support issues and other matters that come before the Juvenile Court. The agency is seeking three to five lawyers to volunteer at the clinic. For those who do not have a background in juvenile law, the court has offered to hold training sessions. Email LAET to learn more or to help out.


Anderson County Lawyer Censured

Anderson County lawyer Raymond Andrew Shirley Jr. was censured on Jan. 6 for practicing law while suspended and failing to inform a client that he was suspended. Download the BPR notice.


Sevier County Lawyer Censured for Failing to Communicate

Sevier County lawyer William Lee Wheatley was censured on Jan. 6 for failing to maintain reasonable communication with a client he was appointed to represent in a dependency and neglect matter. The Tennessee Supreme Court found that Wheatley did not communicate with the client until after a disciplinary complaint was filed. Download the BPR notice.


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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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