Tennessee Bar Foundation Names 2014 Fellows

The Tennessee Bar Foundation inducted 29 new fellows at the annual Fellow’s Dinner in Nashville last month. The Bar Foundation's purpose is two-fold: to honor attorneys who have distinguished themselves in the profession and to administer a grant making program. That project, known by its acronym “IOLTA” (Interest On Lawyers' Trust Accounts), has awarded grants in excess of $19,000,000 to law-related, public interest projects throughout Tennessee. This year’s class is made up of Donald H. Allen, S. Leo Arnold, Jerri S. Bryant, Lisa M. Carson, Wade V. Davies, Steven A. Dix, Sherie L. Edwards, Jerry N. Estes, Brian S. Faughnan, Brandon O. Gibson, Frank Grace Jr., Cynthia D. Hall, Clarence Halmon, Jeffrey S. Henry, Michele M. Johnson, Edward K. Lancaster, James E. Lanier, Jason H. Long, M. LeAnn Mynatt, Robert S. Patterson, James I. Pentecost, Amy M. Pepke, Christine M. Sell, Rheubin M. Taylor, Charles L. Trotter Jr., Jack M. Vaughn, James L. Weatherly Jr., Joseph R. White and William E. Young.

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
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

DAVID KANIECKI v. O’CHARLEY’S INC. ET AL.

Court: TN Court of Appeals

Attorneys:

Randall J. Baron, pro hac vice, Kevin K. Green, A. Rick Atwood, Jr., and David T. Wissbroecker, San Diego, California; George E. Barrett, Douglas S. Johnston, Jr., and Timothy L. Miles, Nashville, Tennessee, for the appellants, David Kaniecki, Brady White, and Hilary Kramer Coyne.

W. Brantley Phillips, Jr., Joseph B. Crace, Jr., and Overton Thompson, III, Nashville, Tennessee, for the appellees, O’Charley’s, Inc., Arnaud Ajdler, William F. Andrews, Douglas N. Benham, David W. Head, Philip J. Hickey, Jr., Gregory R. Monahan, Dale W. Polley, Richard Reiss, Jr., H. Steve Tidwell, Robert Jackson Walker, Shirley A. Zeitlin.

John Lee Farringer, IV, and L. Webb Campbell, II, Nashville, Tennessee, for appellee, Fidelity National Financial, Inc.

Judge: CLEMENT

The sole issue in this putative class action is whether Plaintiffs are entitled to recover attorneys’ fees under the common law substantial benefit doctrine. Plaintiffs, shareholders of O’Charley’s Inc., filed this action against several parties to enjoin the imminent merger with and acquisition by Fidelity National Financial, Inc.; no monetary relief was sought. The gravamen of the complaint was breach of fiduciary duty. Plaintiffs requested additional disclosures but did not seek to enjoin the merger. After the merger was completed, Defendants filed motions to dismiss pursuant to Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief could be granted; Plaintiffs contemporaneously filed a motion to recover attorneys’ fees. Plaintiffs did not oppose the motions to dismiss and an agreed order was entered by which the complaint was dismissed but, by agreement, the issue of attorneys’ fees was reserved for hearing. Plaintiffs acknowledged this was not a shareholder derivative action and that they were not entitled to recover attorneys’ fees pursuant to Tennessee Code Annotated § 48-17-401; however, Plaintiffs claimed they were entitled to attorneys’ fees under the common law substantial benefit doctrine. The chancellor disagreed and denied Plaintiffs’ request for attorneys’ fees. We affirm.


ROBERT L. MACY v. OUIDA J. MACY

Court: TN Court of Appeals

Attorneys:

Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Robert L. Macy

Bratten H. Cook, II, Smithville, Tennessee, for the appellee, Ouida J. Macy

Judge: HIGHERS

This appeal challenges the effectiveness of a QDRO which requires Wife to pay taxes on a $115,000.00 divorce settlement. The trial court held that the amount should not be reduced by taxes. We conclude that the trial court erred in holding that Wife’s $115,000.00 divorce settlement was not subject to reduction for taxes, and we reverse its holding in that regard. The case is remanded for further proceedings consistent with this opinion.


CYNTHIA SHERWOOD MCKENZIE V. JASON WAYNE MCKENZIE

Court: TN Court of Appeals

Attorneys:

Cynthia Sherwood McKenzie, Nashville, Tennessee, Pro Se.

Lewis A. Williams, Nashville, Tennessee, for the appellee, Jason Wayne McKenzie.

Judge: COTTRELL

This is an appeal of the trial court’s denial of a motion to recuse. The motion was based upon allegations of bias against the party, who is also a licensed attorney representing herself in this matter. Because we can find no evidence in the record of any bias that would require recusal, we affirm the trial court’s denial of the motion.


SARAH MCKISSACK, BY CONSERVATOR TYOWANNA MCKISSACK v. DAVIDSON TRANSIT ORGANIZATION AND JOHN DOE

Court: TN Court of Appeals

Attorneys:

Terry R. Clayton, Nashville, Tennessee, for the appellant, Sarah McKissack.

Janet Strevel Hayes, Knoxville, Tennessee, for the appellee, Davidson Transit Organization.

Judge: BENNETT

Conservator for injured bus passenger challenges the trial court’s dismissal of her action after the defendant’s filing of a confession of judgment for the full amount of damages requested in the general sessions warrant. In light of the plaintiff’s failure to amend the complaint after transferring the case to circuit court to increase the amount of damages sought, we affirm the trial court’s decision.


TERRY MORRISON, ET AL. v. RICHARD HUBBELL

Court: TN Court of Appeals

Attorneys:

Richard Hubbell, Hendersonville, Tennessee, Pro Se.

Joe M. Haynes, Goodlettsville, Tennessee, for the appellee, Terry Morrison and Laurie Guethlein.

Judge: BENNETT

Landlords filed suit against a tenant for breach of the rental contract. The trial court held the tenant breached the contract and awarded the landlords damages for the breach. Tenant appeals asserting that the landlords failed to mitigate their damages, that his counsel was ineffective, and that the trial court erred in failing to dismiss the case for failure to prosecute. Tenant’s arguments are without merit. We affirm the trial court.


REGIONS BANK, N.A. v. JOSEPH P. WILLIAMS, ET AL.

Court: TN Court of Appeals

Attorneys:

Drayton Durell Berkley, Memphis, Tennessee, for the appellants, Joseph P. Williams, The People’s Choice Auto Sales, LLC, Kimberlee Williams, Alexis Williams and Chazz Brantley.

Douglas Allen Black and Ahsaki E. Baptist, Memphis, Tennessee, for the appellee, Regions Bank, N.A.

Judge: FARMER

The trial court found that Defendants were liable to Plaintiff bank for losses stemming from a scheme wherein Defendants defrauded Plaintiff bank into making automobile loans to unqualified borrowers who were customers of a defendant. Defendants appeal. We affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. DAMIEN O. ARMSTRONG

Court: TN Court of Criminal Appeals

Attorneys:

Jason R. Creasy, Dyersburg, Tennessee, for the appellant, Damien O. Armstrong

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; C. Phillip Bivens, District Attorney General; and Charles Dyer and Lance Webb, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Damien O. Armstrong, was convicted by a Dyer County Circuit Court jury of possession of .5 grams or more of cocaine with intent to sell or deliver, a Class B felony, and sentenced to eight years, with one year of confinement and the remainder on probation. On appeal, he argues that the trial court erred in denying his motion to suppress evidence found in his home because the search warrant was defective. After review, we affirm the judgment of the trial court.


ROGER JOSEPH v. DAVID SEXTON, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Roger Joseph, pro se, Mountain City, Tennessee, as the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; and Deshea Dulaney Faughn, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Roger Joseph (“the Petitioner”) filed a petition for writ of habeas corpus, asserting, among other claims, that, due to mental illness, he could not have formed the requisite intent for first degree murder. The habeas corpus court dismissed his petition without a hearing. The Petitioner now appeals. After a thorough review of the record and the applicable law, we affirm the habeas corpus court’s judgment dismissing the Petitioner’s habeas corpus petition.


Retired Lawyer Killed by Package Bomb

Retired Wilson County lawyer Jon Setzer died Monday when a package sent to his home exploded. Marian Setzer, who was also in the house at the time, was seriously injured. She is hospitalized in critical condition. Setzer’s former law partner George Cate Jr. told CNN he couldn’t imagine why anyone would target Setzer. An $8,000 reward is being offered for information leading to a conviction in the case. The ABA Journal has more.


Black, Pierce to Retire From UT Law

University of Tennessee College of Law faculty members Jerry Black and Carl Pierce have announced they will retire at the end of the semester after more than 80 years of combined service. Black, who came to UT in 1975, has devoted much of his career to working in the college’s Legal Clinic — the oldest continually operating clinical program in the nation. He’s served as its director four times over the years and remains a member of the clinic faculty. During Pierce’s 42 years at UT, he has served as director of the College of Law’s Center for Entrepreneurial Law and taught courses in contracts, business associations, professional responsibility, and legal history. He currently serves as the W. Allen Separk Distinguished Professor of Law. Read more about their careers from Tennessee Today.


Lawmakers Criticize FAA for Not Protecting Musicians

A bipartisan group of Tennessee's Congressional delegation issued a joint statement today criticizing the Federal Aviation Administration (FAA) for not doing enough to protect musicians and their instruments, the Nashville Business Journal reports. The statement was issued by Democratic U.S. Reps. Jim Cooper and Steve Cohen, Republican Sen. Lamar Alexander and Republican Rep. Marsha Blackburn. It said that airline policies fail to protect musical instruments, which are sometimes lost or damaged. In 2012, Congress approved language meant to help musicians by requiring the FAA to set standards for the transport of guitars, flutes and other instruments. The legislators contend, however, that the FAA hasn’t event started the rulemaking process.


Senate Panel Approves Civil Rights Nominee

The Senate Judiciary Committee last week narrowly approved the nomination of a longtime legal advocate Debo Adegbile to run the civil rights division at the Justice Department. Praised by civil rights groups as one of the nation's leading attorneys in the field, Adegbile was opposed by conservative Republicans and half a dozen law enforcement groups over his legal work at the NAACP Legal Defense Fund on behalf of Mumia Abu-Jamal, who was sentenced to life in prison instead of the death penalty for the killing of a Philadelphia police officer. WRCB has the story.


Bill Would Shield ID, Personal Information of Rape Victims

Proposed state legislation filed by Sen. Becky Duncan Massey, R-Knoxville, at the behest of Metro Nashville’s legal department could shield the identify and personal information of rape victims from the public, the Tennessean reports. Metro Law Director Saul Solomon said the main push for the bill is “balancing the victim’s right of privacy with the public’s right to know,” and would simply allow police and prosecutors to redact personal information. But, as written, critics say it could turn rape into an “invisible crime" and interfere with a defendant’s right to a fair trial by preventing attorneys from discussing key evidence with their clients. In an editorial, the Tennessean goes further, saying the bill is an attempt to intimidate news media organizations throughout the state as they pursue a lawsuit against Metro over its refusal to release records in the rape investigation involving former Vanderbilt University football players.


Sinkhole Swallows Corvettes; Learn More About Insurance Issues

A 40-foot sink hole at the National Corvette Museum in Bowling Green swallowed eight of the sports cars on display inside the facility’s iconic Sky Dome this morning, the Tennessean reports. A recent TBA CLE webcast looked at the growing problem of sinkholes and related insurance claims. The course is now available as an online video program.


County Attorney Seeks Sessions Judgeship

Carter County attorney Keith Bowers Jr. is launching a campaign for the county’s General Sessions Court judgeship, the Elizabethton Star reports. Bowers, who operates his own law practice, represents Carter and Washington counties and the town of Watauga. He also serves on the Tennessee Bureau of Investigation's Director Nominating Committee and chairs the board of the Tennessee Office of the Post-Conviction Defender.


Greeneville ADA Files for DA

Assistant District Attorney General Cecil Mills of Greeneville has filed a petition to become a candidate in the county Democratic primary for the office of District Attorney General in the Third Judicial District, the Greeneville Sun reports. The district includes Greene, Hamblen, Hancock and Hawkins counties.


2 More File in 10th Judicial District Races

Two more candidates have picked up election petitions in the 10th Judicial District, the Cleveland Banner reports. Richard Hughes picked up a petition for re-election as the district public defender, while Steve Crump picked up paperwork for the attorney general’s post. Also of interest, a recent story in the Times Free Press looks at campaign funding in the race for district attorney general.


Services Friday for Memphis Attorney

David Michael DiScenza died Monday (Feb. 10) at the age of 39. He was the son of Tim DiScenza, former federal prosecutor and disciplinary counsel at the Tennessee Board of Judicial Conduct. Visitation will be held Friday at Calvary Episcopal Church in Memphis at noon, with funeral services immediately following. In lieu of flowers, memorials may be sent to Calvary Episcopal Church (102 N. Second St., Memphis, TN 38103), The Nature Conservancy in Tennessee (2021 21st Ave., Suite C400, Nashville, TN 37212) or the charity of your choice.


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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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