Senate Approves Wine-in-Grocery Stores Bill

The Senate voted 23-8 today to approve a bill to allow grocery stores, big-box retailers and convenience stores to sell wine, the Tennessean reports. After seven years of debate, senators agreed to legislation that would let voters in 49 counties decide as soon as this November to determine whether to allow wine on their grocery store aisles. The Senate vote does not send the legislation to Gov. Bill Haslam’s desk, however. The House still must approve a companion measure, and there are subtle differences between the two plans.

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
05 - TN Court of Appeals
02 - 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

ACUFF INTERNATIONAL, INC. v. SANYO MANUFACTURING CORPORATION

Court: TN Court of Appeals

Attorneys:

Lawrence M. Magdovitz, II, Cordova, Tennessee, for the appellant, Acuff International , Inc

William R. Bradley, Memphis, Tennessee, for the appellee, Sanyo Manufacturing Corporation.

Judge: STAFFORD

This case involves issues of breach of contract and negligence. After a bench trial, the trial court found in favor of the Defendant/Appellee manufacturer. Because the trial court’s order does not contain sufficient findings of fact and conclusions of law to satisfy the requirements of Rule 52.01 of the Tennessee Rules of Civil Procedure, we vacate the judgment of the trial court and remand for the entry of an order with appropriate findings of fact and conclusions of law.


BOBBY J. BYRGE, ET AL. v. PARKWEST MEDICAL CENTER, ET AL.

Court: TN Court of Appeals

Attorneys:

Dail R. Cantrell, Clinton, Tennessee, for the appellants, Bobby J. Byrge, individually and as next of kin for the decedent Julia Kay Byrge, and the Estate of Julia Kay Byrge.

F. Michael Fitzpatrick and Rachel Park Hurt, Knoxville, Tennessee, for the appellee, Parkwest Medical Center.

Judge: SWINEY

After taking a non-suit, Bobby J. Byrge, individually and as next of kin for the decedent Julia Kay Byrge, and the Estate of Julia Kay Byrge (“Plaintiff”) filed a second healthcare liability suit against Parkwest Medical Center (“Parkwest”) and Dr. John C. Showalter, M.D.1 Parkwest filed a motion to dismiss, and after a hearing, the Trial Court granted Parkwest’s motion finding and holding that Plaintiff’s suit was barred by the statute of limitations. Plaintiff appeals to this Court asserting that his suit was not barred as he was entitled to rely upon Tenn. Code Ann. § 28-1-105, the saving statute. We affirm finding and holding, as did the Trial Court, that Plaintiff’s first suit was not timely filed because Plaintiff did not comply with Tenn. Code Ann. § 29-26-121, and, therefore, Plaintiff could not rely upon Tenn. Code Ann. § 28-1-105 to save his second suit.


IN RE JONATHAN S. C-B.

Court: TN Court of Appeals

Attorneys:

Paul Bruno, Nashville, Tennessee, Luke Evans and Heather Graves Parker, Murfreesboro, Tennessee, for the appellant, Ok Y.C.

Jacqueline B. Dixon, Nashville, Tennessee, for the appellee, Stephen B.

Cynthia Chappell, Nashville, Tennessee, guardian ad litem for the minor, Jonathan S.C-B.

Judge: CLEMENT

This is the second appeal in an ongoing custody dispute. Mother was initially designated primary residential parent of the child. Later, Father filed a petition alleging Mother was interfering with his parenting time and trying to turn the child against him. Mother then alleged Father was abusing their child, which allegations were determined to be unfounded. During that litigation, Father successfully demonstrated a material change in circumstances and became the primary residential parent; following that award, Mother filed the first appeal and this court affirmed the trial court’s ruling. The present appeal arises from Father’s petition requesting a modification of the parenting plan and to, inter alia, suspend Mother’s parenting time; subsequently, Mother filed her counter-petition requesting, inter alia, change of custody, along with renewed allegations that Father was physically and sexually abusing their child. The trial court dismissed Mother’s counter-petition and granted in part and denied in part Father’s petition. Mother appeals contending the trial court erred in dismissing her counter-petition; she also contends the trial court erred in excluding rebuttal testimony from her expert witnesses. Father appeals contending the award of attorney’s fees and expenses was inadequate; he also contends this appeal is frivolous and that he should be awarded damages. We affirm the trial court in all aspects and, although we do not find Mother’s appeal frivolous, we find Father is entitled to recover, pursuant to Tennessee Code Annotated § 36-5-103(c), his reasonable and necessary attorney’s fees and expenses incurred on appeal because this action involves custody of the parties’ child.


BILLY A. MATHES v. DR. EDMOND LANE ET AL.

Court: TN Court of Appeals

Attorneys:

Billy A. Mathes, Nashville, Tennessee, Pro Se.

John C. McCauley and Carol Davis Crow, Nashville, Tennessee, for the appellee, Dr. Edmond Lane.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor General; and Lee Pope, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tony Howerton.

Judge: FRIERSON

The plaintiff, a state prison inmate, appeals the trial court’s dismissal of his health care liability action against the defendant doctor and his complaint against the warden of the facility where he was treated by the doctor. The trial court granted the defendant doctor’s motion to dismiss based upon the plaintiff’s failure to comply with the requirements of the Tennessee Medical Malpractice Act (“TMMA”). See Tenn. Code Ann. §§ 29-26-115 to -122 (Supp. 2013). The trial court also granted the warden’s motion to dismiss upon finding that the plaintiff’s complaint contained no factual allegations against the warden. Discerning no error, we affirm.


IN THE MATTER OF THE ESTATE OF DENNIS R. WOOLVERTON

Court: TN Court of Appeals

Attorneys:

Plaintiff/Appellant Pamela Jo Woolverton Jones, Dyersburg, Tennessee, self-represented

Harold R. Gunn, Humboldt, Tennessee for Defendant/Appellee Rosie Annette Woolverton

Judge: KIRBY

This is a will contest. The alleged will was signed by three witnesses. At the hearing on the will contest, two of the three witnesses and a notary public testified about the signatures on the purported will. The trial court held that the document was the decedent’s validly executed will and admitted it to probate. On appeal, the contestant of the will argues that the will proponent failed to satisfy the statutory requirement of proof from all living witnesses, if to be found, because the third witness to the will did not appear or testify. We hold that the proponent of the purported will was required to either submit the testimony of all living witnesses or show that a living witness whose testimony was not proffered was not to be found. However, because the trial court failed to make findings of fact and conclusions of law regarding the availability of the third witness, as required under Tenn. R. Civ. P. 52.01, we must vacate the trial court’s decision and remand.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. WESLEY M. GIFFORD, JR.
With concurring opinion.

Court: TN Court of Criminal Appeals

Attorneys:

Jeffrey Harmon, District Public Defender, and Norman Lipton, Assistant District Public Defender, Jasper, Tennessee, for the appellant, Wesley M. Gifford, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel; J. Michael Taylor, District Attorney General; and Julia Veal, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Wesley M. Gifford, Jr., was convicted by a jury of attempted aggravated burglary, telephone harassment, and indecent exposure. Following a sentencing hearing, the trial court imposed concurrent terms of three years and six months for the attempted aggravated burglary conviction and eleven months and twenty-nine days for the telephone harassment conviction. This effective sentence was also to run consecutively to his prior sentences. In this direct appeal, the Defendant contends that: (1) the trial court erred in failing to grant a mistrial when a witness testified that the Defendant previously had been in jail; (2) the trial court erred in allowing admission of evidence of the Defendant’s prior bad act; (3) the trial court erred in not instructing the jury on the issue of alibi; (4) the evidence was insufficient to support his convictions; and (5) cumulative errors entitle him to a new trial. After a thorough review of the record and applicable law, we affirm 1 the judgments of the trial court.


TERRY V. JOHNSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Terry V. Johnson, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Clark B. Thornton, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The pro se petitioner, Terry V. Johnson, appeals as of right from the Johnson County Circuit Court’s order denying his petition for writ of habeas corpus alleging that his 2005 conviction for sale of less than .5 grams of cocaine is void because the trial court failed to award pretrial jail credit. The State has filed a motion to affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Following our review, we conclude that the State’s motion is well-taken and affirm the order of the trial court.


Chancery Candidates Have Dual-Track Strategy

Vicki Hodge Hoover of Paris, Carma McGee of Savannah and Charles Trotter Jr. of Trezevant are seeking the Republican nomination for 24th Judicial District chancellor. Like other judicial candidates, they are meeting with voters and talking about their visions for the court, which serves Benton, Carroll, Decatur, Hardin and Henry counties. But all three also are applicants to fill the position on a temporary basis following the death of Chancellor Ron Harmon. Their names were submitted to Gov. Bill Haslam last week by the Governor's Commission for Judicial Appointments. Read about their backgrounds and how they are approaching this unique situation in Paris Post Intelligencer.


Shelby County Races Heat Up

Shelby County judges John Campbell and Robert Weiss have opened their re-election campaigns, the Memphis Daily News reports. Campbell, Division 6 Criminal Court judge, is unopposed so far. Weiss, Division 8 Circuit Court judge, has drawn opposition at this point from just one challenger, Venita Martin Andrews. Circuit Court elections are complicated this year by the possibility that the legislature might abolish two of the nine divisions: Divisions 1 and 5. Those seats are attractive to challengers though since Division 1 incumbent John McCarroll has not picked up papers yet and Division 5 incumbent Kay Robilio resigned in September. Martin Andrews pulled petitions for Divisions 1 and 5 on the same day she pulled papers for Division 8. Retired Circuit Court Judge D’Army Bailey picked up papers for Division 1 and then three days later pulled another petition for Division 3. Candidates with multiple petitions have until April 3 to make a final filing decision.


More Candidates Exploring Hamilton Races

A number of candidates have recently picked up papers to run for judicial posts in Hamilton County, Chattanoogan.com reports. They include Pam Fleenor, Chancery Court Part 1; incumbent judge Jeff Atherton, Chancery Court Part II; Yolanda Mitchell, a Democrat seeking to unseat Juvenile Court Judge Rob Philyaw; Public Defender Ardena Garth; and District Attorney Neal Pinkston. Races for municipal judgeships also have seen interest. Attorney Harry W. Miller III has picked up papers to challenge longtime incumbent Collegedale Judge Kevin Wilson, and in East Ridge, attorney Ryan Hanzelik is challenging Judge Arvin Reingold. Lookout Mountain Judge John Higgason Jr. and Signal Mountain Judge Mark Rothberger thus far do not have opposition.


ABA: Proposed Tax Rules Could Overburden Law Firms

American Bar Association President James Silkenat sent letters to leaders of the House and Senate committees with tax oversight to warn that proposed changes to allowed accounting methods would overburden many law firms and other types of professional service businesses throughout the country, the Hamilton County Herald reports. Sections of the "Tax reform Act of 2013" would require all law firms and other personal service businesses with annual gross receipts of more than $10 million to use the accrual method of accounting rather than the traditional cash receipts and disbursement method of accounting. The ABA contends that the mandatory accrual accounting provisions in the draft House and Senate bills would create unnecessary complexity in the tax law, increased compliance costs and significant new financial burdens.


Asians Account for Majority of Minority Increase

The majority of the percentage increase in minority associates in law firms over the last three years is due to increasing numbers of Asian associates, the ABA Journal reports. According to an article published by the National Association for Law Placement, of the 21 percent of associates in 2013 who were minorities, 10.48 were Asian, 4.10 were black and 3.82 were Hispanic. About 7 percent of partners are minorities. Among all partners, 2.67 percent are Asian, 1.78 percent are black, and 1.99 percent are Hispanic.


Higgins Firm Moving to New Location

While a deal to build a Hyatt Regency hotel on its property in downtown Nashville fell through, the Higgins Firm is still moving to a nearby building it  bought at 525 Fourth Ave. S. The 17- person firm was looking to move for two reasons: they're running out of space and because of the prospective hotel proposal. The developer, Denver-based Swerdling & Associates, declined to renew contracts late last year, effectively killing the project, property owners told the Nashville Business Journal.


Show Your Professional Pride with the TBA Visa

TBA members can now show their professional pride and get rewarded for doing so. The Tennessee Bar Association Visa® Platinum Rewards Card is now available to all members. Apply now and earn points at hundreds of online retailers. Redeem your points for name-brand merchandise, event tickets, gift cards, travel rewards options and more. Apply now!


UT Law’s Blackshear Gala Feb. 28

The University of Tennessee College of Law will host the 14th annual Julian Blackshear Jr. Scholarship Gala on Feb. 28 at the Holiday Inn World’s Fair Park in Knoxville. Paulette Brown, president-elect of the American Bar Association, will give the keynote speech. The dinner and formal program will begin at 7 p.m. To order tickets, or for information on table sponsorship at the gala, please contact Rynn Dupes at (865) 974-6691.


 
 

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 2014 Tennessee Bar Association