TBA’s First Mentoring Class Kicks Off Today

The first class of the TBA Mentoring Program kicked off today. Those participating in the program will engage in a formal mentoring relationship for one year. Mentors and mentees will meet face-to-face at least once a month during the year and will cover a variety of curriculum topics. The program, which was launched in January, is open to TBA members in their first three years of practice. Mentors must have at least eight years of legal practice experience. TBA members interested in participating in the next class should visit the TBA’s mentoring website for more information and application materials. The site also includes links to other mentoring programs across the state for lawyers. Questions about the program should be directed to Mentoring Coordinator Christy Gibson, (615) 383-7421.

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
06 - 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 Supreme Court

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TN Supreme Court


TN Court of Appeals

FIRSTBANK V. HORIZON CAPITAL PARTNERS, LLC, ET. AL.

Court: TN Court of Appeals

Attorneys:

James W. Clements, III, Chattanooga, Tennessee, for the appellants, Ladonna W. Safarriyeh and Mike M. Safari.

Walter N. Winchester and Joshua R. Holden, Knoxville, Tennessee, for the appellee, FirstBank.

Judge: MCCLARTY

This appeal concerns FirstBank’s request for a deficiency judgment against Defendants following a foreclosure sale of real property. FirstBank filed a motion for summary judgment, asserting that it was entitled to judgment as a matter of law because there were no issues of material fact remaining. Defendants objected, asserting that the property sold for an amount materially less than the fair market value. The trial court granted FirstBank’s motion, finding that Defendants failed to prove that the foreclosure price was materially less than the fair market value. Defendants appeal. We affirm the decision of the trial court and remand this case for proceedings consistent with this opinion.


ELLIOT H. HIMMELFARB, M.D. ET AL. v. TRACY R. ALLAIN

Court: TN Court of Appeals

Attorneys:

Matthew Todd Sandahl, Franklin, Tennessee, for the appellant, Elliot H. Himmelfarb.

Christopher K. Thompson, Nashville, Tennessee, for the appellee, Tracy R. Allain.

Judge: BENNETT

Physicians filed an action for malicious prosecution and abuse of process against Patient after Patient voluntarily dismissed her medical malpractice lawsuit against them. Following a change in the applicable case law, Physicians voluntarily dismissed their malicious prosecution and abuse of process claims. Patient moved for attorney fees under Tenn. R. Civ. P. 37.03(2) as a sanction against Physicians for their failure to admit a matter requested under Tenn. R. Civ. P. 36.01. Patient also sought discretionary costs. The trial court found that Physicians had reasonable grounds to believe they might prevail on their claims, but granted Patient a partial attorney fee award. We reverse the award of attorneys fees and affirm the award of discretionary costs.


MICHAEL DAVIS HOLMES v. MARIA ELIZABETH HOLMES

Court: TN Court of Appeals

Attorneys:

Browder G. Williams, Kingston, Tennessee, for the appellant, Maria Elizabeth Holmes.

John D. Lockridge and Mario L. Azevedo, II, Knoxville, Tennessee, for the appellee, Michael Davis Holmes.

Judge: FRIERSON

In this divorce action, the sole issue on appeal is the propriety of the trial court’s permanent parenting plan regarding the parties’ three children. Concerning co-parenting, the parties were alternating weeks with their children during the pendency of the divorce. At trial, the parties agreed to continuation of this schedule, which provided each party equal co-parenting time with the children. The issues announced for trial regarding the children were (1) which parent should be named primary residential parent and (2) which parent would have final decision-making authority. The trial court, however, chose to implement a “divided” custody arrangement, wherein father was awarded primary custody and decision-making authority during the school year while mother was awarded primary custody and decision-making authority during the summer. Mother appeals. Discerning no abuse of discretion, we affirm.


ILIE NITA v. OLGA NITA

Court: TN Court of Appeals

Attorneys:

Jennifer L. Honeycutt and Martin Stephen Sir, Nashville, Tennessee, for the appellant, Ilie Nita.

Jon Steven Jablonski and Martha C. Child, Nashville, Tennessee, for the appellee, Olga Nita.

Judge: BENNETT

In this divorce appeal, husband challenges the trial court’s decisions regarding the primary residential parent, rehabilitative alimony, the division of the marital estate, and the award of attorney fees. With the exception of the designation of alimony as “rehabilitative,” we find no error in the trial court’s decision.


FARMERS INSURANCE EXCHANGE v. MARK A. SHEMPERT, ET AL.

Court: TN Court of Appeals

Attorneys:

Robert A. Cox and Ronna D. Kinsella, Memphis, Tennessee, for the appellants, Mark A. Shempert and Deborah A. Shempert.

Bradford D. Box and Jonathan David Stewart, Jackson, Tennessee, for the appellee, Farmers Insurance Exchange.

Judge: FARMER

The trial court denied Defendant’s motion to dismiss on the basis of the doctrine of prior suit pending and entered summary judgment in favor of Plaintiff under-insured/uninsured motorist insurance carrier. We hold that the action was barred under the doctrine of prior suit pending where the subject matter of the current lawsuit, namely, insurance coverage, was asserted by Plaintiff insurance carrier as a defense in an action previously filed by Defendant insured and pending in the circuit court. Summary judgment in favor of Plaintiff insurance carrier is reversed. This action is remanded to the trial court for dismissal in accordance with this Opinion.


ELIZABETH B. TURNER v. SELINA C. GAVIRIA

Court: TN Court of Appeals

Attorneys:

Kevin A. Snider, Germantown, Tennessee, for the appellant, Elizabeth B. Turner.

Fred M. Ridolphi, Jr., Memphis, Tennessee, for the appellee, Selina C. Gaviria.

Judge: FARMER

Plaintiff appeals the trial court’s judgment in favor of Defendant in this action to recover amounts allegedly due under an oral loan agreement. We vacate the trial court’s judgment and remand the matter for findings of fact and conclusions of law as required by Tennessee Rule of Civil Procedure 52.01.


TN Court of Criminal Appeals

DANIEL LEE DRAPER v. CHERRY LINDAMOOD, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Daniel Lee Draper, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Tracy L. Bradshaw, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The pro se petitioner, Daniel Lee Draper, appeals the summary dismissal of his petition for writ of habeas corpus. He argues that the trial court did not have jurisdiction to sentence him to life with the possibility of parole, that the habeas court erred in summarily dismissing his petition without a hearing, and that the habeas court erred in failing to treat his habeas petition as a post-conviction petition. After review, we affirm the summary dismissal of the petition.


STATE OF TENNESSEE v. AIVAR LANG

Court: TN Court of Criminal Appeals

Attorneys:

William J. Harold, Lewisburg, Tennessee, for the appellant, Aivar Lang.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney General; Robert Carter, District Attorney General; and Weakley Edward Bernard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Aivar Lang, pled guilty to one count of possession of drug paraphernalia, a Class A misdemeanor, and agreed to allow the trial court to determine his sentence. After a sentencing hearing, the trial court sentenced him to eleven months and twenty-nine days in the county jail. On appeal, the Defendant contends that his sentence is excessive. After a thorough review of the record and applicable authorities, we conclude that no error exists in the sentence imposed by the trial court, but a corrected judgment form is required. Therefore, the sentence is affirmed, and we remand the case for correction of a clerical error in the judgment.


STATE OF TENNESSEE v. JEFFREY WALTON

Court: TN Court of Criminal Appeals

Attorneys:

Stephen C. Bush, District Public Defender; Harry E. Sayle, III (on appeal), Michael J. Johnson and John Zastrow (at trial), Assistant Public Defenders, for the appellant, Jeffrey Walton.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy P. Weirich, District Attorney General; and Stacy M. McEndree, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Jeffrey Walton, was convicted by a Shelby County Criminal Court jury of vandalism over $10,000, a Class C felony, and burglary of a building, a Class D felony, for which he received sentences of fifteen years as a persistent offender and twelve years as a career offender, to be served consecutively, in the Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court.


Child Support Magistrate Removed from Bench

Cocke County Child Support Magistrate Lu Ann Ballew, who ordered a baby's name to be changed from ‘Messiah,’ has been removed from the bench, WJHL reports. An order from the Fourth Judicial District terminated her as of midnight Jan. 31, according to the report. Melissa Moore was named as her replacement. Ballew also faces charges from the Tennessee Board of Judicial Conduct, which alleges that her conduct violates Canons 1 and 2 of the Code of Judicial Conduct. WATE and WBIR cover the story.


Haslam Gives 4th ‘State of State’ Speech Tonight

Gov. Bill Haslam is giving his fourth State of the State address this evening at 7 p.m. Central time. The governor will unveil details of his annual state spending proposal and lay out some of his top legislative priorities for the year, the Times Free Press reports. Haslam has warned that flagging state revenues combined with growing health care costs will put the squeeze on programs. State lawmakers expect the governor to emphasize his “Drive to 55” initiative, which aims to increase Tennessee's college graduate rate to 55 percent by 2025 and new requirements to limit the sale of cold medicines used to make methamphetamine.


Temporary Replacement Sought for Sullivan Sessions Court

Sullivan County General Sessions Court Judge William Watson plans to temporarily step down from the bench for medical reasons and has asked for a short-term replacement, TriCities.com reports. In a letter to Gov. Bill Haslam, Watson requests medical disability under a little used state statute, which will allow him to keep his judgeship while seeking medical treatment for a defective heart valve. Haslam spokesman Dave Smith said the governor is accepting applications for the temporary position until Feb. 7, and then will review all of the candidates and “work through the process and find the best fit.”


Non-attorneys Bring Business Skills to Law Firms

The Nashville Post reports that the local legal sector is seeing an increase in the number of non-lawyers being added to key management positions at law firms. Gullett Sanford Robinson & Martin, for example, has hired its first chief operating officer. At Waddey & Patterson, a non-lawyer firm administrator oversees all accounting, billing, human resources, advertising, technology and health insurance efforts and initiatives. And the firm administrator at Stites & Harbison has an educational background that involves political science and information systems. Interviewed for the story, these management professions predict the trend will increase and that opportunities will expand as the current crop of administrators tends to be age 45 and older and likely to retire in coming years. (Subscription required.)


6th Circuit Offers Appellate Advocacy Training

The U.S. Court of Appeals for the Sixth Circuit now features a series of video clips providing training on appellate advocacy on its website. In one of the videos, Judge Jeffrey Sutton provides an in-depth discussion on effective appellate advocacy before the court, but many of his comments have equal application to practice in Tennessee appellate courts, according to the TBA’s Appellate Practice Section. Other video resources on the site provide tips for electronic filing, avoiding common billing mistakes and handling Criminal Justice Act cases. Read more in this blog posting from the appellate group at Squire Sanders.


Bill Creates Digital Performance Royalties for Pre-1972 Songs

State lawmakers Sen. Stacey Campfield, R-Knoxville, and Rep. G.A. Hardaway, D-Memphis, have filed a bill they say would close a loophole in copyright law and establish digital performance royalties for recordings made before 1972. Under current copyright law, songs recorded prior to Feb. 15, 1972, do not pay a performance royalty to the artist and musicians. Instead, they are protected by a “patchwork of state laws and common law,” the Tennessean reports. Last month, a hearing on comprehensive royalty reform was held in the House Judiciary Committee, but with powerful interests on both sides of the issue action may not be likely any time soon, observers say.


Bill Reduces Jail Time for DUI Offenders Completing Treatment

People convicted of second and third DUI offenses could reduce their jail time in exchange for completing treatment for alcohol abuse under legislation before the Tennessee General Assembly. Gov. Bill Haslam’s administration is seeking the change. According to sponsors, the goal of SB 1633 and HB 1429 is to reduce repeat offenses and use state money designated for addiction treatment more effectively. Second offenders would have to serve at least 15 days in jail, and third offenders at least 60 days, before participating in a treatment program under this proposed new law.


Federalist Society Looks at Criminalization of Federal Law

The Memphis Lawyers’ and University of Memphis Law Student Chapter of the Federalist Society will host a discussion Feb. 6 on the topic “Over Criminalization of Federal Law.” Participants include Edward L. Stanton III, U.S. Attorney for the Western District of Tennessee; associate professor Steven J. Mulroy, University of Memphis School of Law; and Paul J. Larkin Jr., senior research fellow with The Heritage Foundation. University of Memphis School of Law Dean Peter V. Letsou will moderate the panel. The event runs from 11:30 a.m. to 1 p.m. and is free and open to the public. To register, contact Greg Grisham, (901) 462-2616. Download the invitation.


Service Animals, Closely Held Corporations Headline New Issue

Chattanooga lawyer Samuel J. Gowin explains in the new Tennessee Bar Journal the differences among service animals, therapy animals and pets and what that means to your clients. Murfreesboro attorney Josh McCreary details the equities of business dissolution and oppressive conduct in closely held corporations. And don't miss the latest words of wisdom from the students of the Law Launch Project.


Knox County Lawyer Placed on Disability Inactive Status

The law license of John Albert Walker Jr. was transferred to disability inactive status on Jan. 30. Walker may return to the practice of law after reinstatement by the Tennessee Supreme Court upon showing of clear and convincing evidence that the disability has been removed and he is fit to resume. Download the BPR notice.


Protect Your Practice with the Bar Plan

Protecting your practice and your family from an unexpected loss is a priority for many TBA members. The Bar Plan program provides TBA members with the most comprehensive and fairly priced professional liability coverage available. Learn more online.


 
 

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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