Corporate Counsel Pro Bono Initiative Gala Tickets Still Available

The TBA Access to Justice Committee, in partnership with the TBA Corporate Counsel Section and the Association of Corporate Counsel, is hosting the eighth annual Corporate Counsel Pro Bono Initiative Gala on Saturday, March 1, at the Hermitage Hotel in Nashville. The 2014 Gala will feature keynote speaker Bruce Ives, vice-president and deputy general counsel at Hewlett-Packard. 

Tennessee law firms and corporations are invited to support the CCPBI by becoming recognized sponsors or purchasing individual tickets to the event. The deadline to confirm sponsorships is Feb. 19. Learn more about sponsorships or individual tickets on TBA.org or contact Liz Todaro.

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
04 - TN Court of Criminal Appeals
02 - 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

ACTION CHIROPRACTIC CLINIC, LLC v. PRENTICE DELON HYLER, ET AL.

Court: TN Court of Appeals

Attorneys:

John P. Williams, Nashville, Tennessee, for the appellant, Action Chiropractic Clinic, LLC.

Gary Brewer, Nashville, Tennessee, for the appellee, Prentice Delon Hyler and Erie Insurance Exchange.

Judge: DINKINS

Chiropractic clinic which provided services to party injured in an automobile accident brought action against the injured party, who had assigned the proceeds of his claim against tortfeaser to the clinic in payment of the services, and the tortfeasor’s liability insurer, which did not honor the assignment. The trial court granted summary judgment to the insurer holding that: the victim did not have any rights relative to the insurance provider; the insurance policy required written consent for an assignment and there was no evidence of such consent; there was no privity between the clinic and the insurance provider; the clinic was not a beneficiary of the insurance policy; and the suit was a direct action against an insurance company which is prohibited by Tennessee law. The clinic appeals. Finding no error, we affirm the grant of summary judgment.


IN THE MATTER OF: CANDICE S.

Court: TN Court of Appeals

Attorneys:

Karen D. Huddleston Johnson, Brentwood, Tennessee, for the appellant, Amanda Y.

Robert E. Cooper, Jr., Attorney General and Reporter, Jordan Scott, Assistant Attorney General, for the appellee, Department of Children’s Services.

Judge: DINKINS

Mother’s parental rights to her daughter were terminated on the grounds of abandonment by failure to visit and failure to pay support, and persistence of conditions. Mother appeals, asserting that the evidence in support of the grounds is not clear and convincing and that the record does not show that termination of her rights would be in the child’s best interest. Finding no error, we affirm the decision of the trial court.


JAMES AND PATRICIA CULLUM v. BAPTIST HOSPITAL SYSTEM, INC. ET AL.

Court: TN Court of Appeals

Attorneys:

James E. Looper, Jr., Jennifer Eberle, John Everette Hall, Jr., and John R. Gerstein, Nashville, Tennessee, and Gabriela A. Richeimer, Washington D.C., for the appellants, Baptist Hospital Systems, Inc. et al.

Joseph P. Bednarz, Sr., Nashville, Tennessee, and Steven Rand Walker, Oakland, Tennessee, for the appellees, James and Patricia Cullum.

Judge: BENNETT

The trial court prohibited the use of taped testimony from a prior trial when a doctor exercised his statutory right not to appear at trial, ordering that the doctor “needs to testify live or not at all.” Efforts of the defendants’ counsel to secure the doctor’s live testimony were successful, only to have the plaintiffs’ counsel argue that counsel was being ambushed. The trial court finally determined not to allow the doctor to testify. The issues relating to prohibiting the doctor’s taped testimony and then prohibiting the doctor’s live testimony were appealed, along with other issues that arose during the trial. We find these two testimonial issues dispositive. We reverse the trial court on both issues and remand for a new trial.


IN THE MATTER OF T.R.Y.

Court: TN Court of Appeals

Attorneys:

Petitioner/Appellant K.B., Lansing, MI, self-represented.

David B. Lyons, Nashville, TN for Respondent/Appellee E.Y.

Judge: KIRBY

This appeal involves the modification of a parenting arrangement. After many years without parenting time, the mother asked the juvenile court to designate her as the primary residential parent for the parties’ daughter. The juvenile court held domestic violence in the father’s home constituted a material change in circumstances. However, the juvenile court concluded that, despite the incidents of domestic violence, it was in the daughter’s best interest for the father to remain as the primary residential parent. The juvenile court awarded the mother alternate residential parenting time. The mother appeals, raising numerous issues. We affirm.


CANDACE WATSON v. CITY OF JACKSON

Court: TN Court of Appeals

Attorneys:

Candace Watson, Jackson, Tennessee, Pro Se.

Lewis L. Cobb, Jackson, Tennessee, for the appellee, City of Jackson.

Judge: STAFFORD

This accelerated interlocutory appeal pursuant to Tennessee Supreme Court Rule 10B results from the trial court’s denial of a post-trial recusal motion. The Appellant filed a motion seeking recusal of the trial judge from presiding over the preparation of the record for her appeal of the substantive issues in the case. The trial judge denied the motion by written order, making specific findings of fact. The Appellant appeals. Discerning no evidence that would lead a reasonable person to question the trial judge’s impartiality, we affirm the denial of Appellant’s recusal motion.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. LARRY JERELLER ALSTON, KRIS THEOTIS YOUNG, AND JOSHUA EDWARD WEBB

Court: TN Court of Criminal Appeals

Attorneys:

Robert E. Cooper, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney General, for the appellant, State of Tennessee.

Mike Whalen, Knoxville, Tennessee, for the appellee, Joshua E. Webb.

Sherif Guindi, Knoxville, Tennessee, for the appellee, Larry J. Alston.

Robert R. Kurtz (on appeal) and Vanessa Lemons (at trial), for the appellee, Kris T. Young.

Judge: WITT

In this State appeal, the State challenged the Knox County Criminal Court’s setting aside the jury verdicts of guilty of especially aggravated kidnapping, aggravated burglary, and possession of a firearm with intent to go armed during the commission of a dangerous felony and ordering dismissal of the charges. This court reversed the judgment of the trial court setting aside the verdicts and dismissing the charges of especially aggravated kidnapping and aggravated burglary, reinstated the verdicts, and remanded the case to the trial court for sentencing. We also determined that although the trial court erred by dismissing the firearms charge on the grounds named in its order, error in the indictment for that offense nevertheless required a dismissal of those charges. Finally, we affirmed the defendants’ convictions of aggravated robbery. Upon the defendant’s application for permission to appeal, the Tennessee Supreme Court remanded the case to this court for consideration in light of State v. Cecil, 409 S.W.3d 599 (Tenn. 2013). Having reconsidered the case in light of the ruling in Cecil, we confirm our earlier holdings. The jury verdicts of especially aggravated kidnapping and aggravated burglary are reinstated, and those convictions are remanded to the trial court for sentencing. The trial court’s dismissal of the firearms charge is affirmed on grounds other than those relied on by the trial court, and the convictions of aggravated robbery are affirmed.


STATE OF TENNESSEE v. DAVID EARL FREEMAN

Court: TN Court of Criminal Appeals

Attorneys:

Ardena J. Garth, District Public Defender and Richard Kenneth Mabee, Assistant District Public Defender, for the appellant, David Earl Freeman.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William H. Cox, III, District Attorney General, and Matthew Rogers, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, David Earl Freeman, pled guilty to three counts of theft of property and three counts of misapplication of funds in Hamilton County. He was sentenced to an effective sentence of sixteen years and placed on probation. He was also ordered to pay restitution to the victims. Subsequently, Appellant pled guilty to one count of theft of property and one count of passing a worthless check. A four-year sentence was imposed and ordered to run consecutively to the sixteen-year sentence. The new sentence was to be served on probation, and Appellant was ordered to pay restitution to the victims. A probation violation warrant was filed based in part on Appellant’s failure to pay restitution payments and the fact that he was convicted of several new charges in North Carolina. The trial court revoked Appellant’s probation and ordered him to serve the remaining fourteen years of his sentence in incarceration. After a review of the record and authorities, we determine that the trial court did not abuse its discretion in revoking Appellant’s probation as there was evidence to support the conclusion of the trial court that a violation of the conditions of probation occurred. Accordingly, the judgment of the trial court is affirmed.


STATE OF TENNESSEE v. VIRGIL CALVIN HOWELL

Court: TN Court of Criminal Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; and Michael Dunavant, District Attorney General, for the appellant, State of Tennessee.

Thomas M. Minor, Somerville, Tennessee, for the appellee, Virgil Calvin Howell.

Judge: SMITH

Appellant, the State of Tennessee, appeals after the Hardeman County Circuit Court granted a motion to dismiss the indictments against Appellee, Virgil Calvin Howell. Appellee was indicted by the Hardeman County Grand Jury for three counts of contracting without a license in violation of Tennessee Code Annotated sections 62-6-103 and 62-6-120. After a hearing, the trial court dismissed the indictments. On appeal, the State insists that the trial court improperly determined that Appellee was not a contractor because Appellee was supervising more than $25,000 of improvements to buildings that he owns and are intended for public use. After a review of the record and applicable authorities, we determine that the trial court improperly dismissed the indictments where the plain language of the statute indicates that the actions performed by Appellee amounted to contracting as defined by the statute. Accordingly, the judgment of the trial court is reversed, and the matter is remanded for further proceedings consistent with this opinion.


LUIS RODRIGUEZ v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Luis A. Rodriguez, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Luis Rodriguez, appeals the Davidson County Criminal Court’s summary dismissal of his petition for a writ of habeas corpus regarding his 2008 conviction for especially aggravated robbery, for which he is serving a twenty-five-year sentence. The Petitioner contends that the trial court erred in dismissing the petition when his guilty plea was unknowingly and involuntarily entered. We affirm the judgment of the trial court.


TN Attorney General Opinions

Underground Storage Tank Operators’ Records

Court: TN Attorney General Opinions

Date: 2014-02-11

Opinion Number: 16


Employee of a State Institution of Higher Education Holding Elected Office

Court: TN Attorney General Opinions

Date: 2014-02-11

Opinion Number: 17


Arrest Made in Explosion That Killed Lawyer

Police have made an arrest in the Monday explosion that killed retired attorney John Setzer and his wife, Marion, near Lebanon. Investigators say Richard Parker, the Setzers’ son-in-law, placed a package outside their home and it exploded. Parker is being held on a $1 million bond, WREG reports.


Chattanooga Firm Becomes Pillar Law Firm

Clark & Washington in Chattanooga has become one of only two Pillar Law Firm partners with Legal Aid of East Tennessee. Following a model developed by the Tennessee Supreme Court and its Access to Justice Commission, Pillar Law Firms select a particular area of law on which to focus their pro bono efforts and then receive steady referrals from Legal Aid in that area. Clark & Washington is accepting bankruptcy cases in which the client has significant debt and is in danger of losing his or her home, driver’s license, or having his or her wages garnished. The Hamilton County Herald has the story.


Opinion: Regulate Predatory Lending

In an opinion piece last week for the Tennessean, Atlanta attorney Thurbert Baker criticizes lawsuit lending practices that prey on vulnerable consumers and evade regulation in many states. “’Crash cash’ offers are attractive to people who have few options and don’t have time to wait for the legal system,” he writes. But in addition to harming consumers, lawsuit lending poses a danger to our legal system, he contends. Baker urges Tennessee lawmakers to pass legislation such as SB 1360 by Sen. Jack Johnson, R-Franklin, and HB 1242 by Rep. Curtis Johnson, R-Clarksville, which creates a regulatory framework for lawsuit loans and caps interest rates.


CBA Mock Trial Jurors and Judges Needed

The Chattanooga Bar Association Young Lawyers Division will host its annual Tennessee High School Mock Trial Competition in Chattanooga Feb. 19-21. The YLD is asking for volunteer judges and jurors from the bar. If you are interested in volunteering on any or all of the dates, please contact Andrew Godbold. Learn more at the Hamilton County Herald.


If You Did It, Flaunt It With a TBJ Announcement

The Tennessee Bar Journal has a new opportunity for lawyers and firms to promote outstanding achievements, new associates, new partners, mergers, awards and any changes within the firm. Now, Professional Announcements are available at special, lower-rate pricing. You can tell more than 12,000 of your peers about your accomplishments by placing an announcement in the Journal. For information or to place an announcement, contact Debbie Taylor at 503-445-2231 or Debbie@llm.com. To have an announcement placed in the April issue, please contact her before Feb. 18.


Bill Calls for Electric Chair if Lethal Injection Unavailable

A bill filed last week by Sen. Ken Yager, R-Harriman, would require Tennessee to use an electric chair for executions if the drugs needed to carry out lethal injections are unavailable, or if a court strikes down the lethal injection option, Knoxnews reports. Currently, the state is scheduled to execute 10 death row inmates between April 2014 and November 2015.


Senator Works to Block Amp Funding

Sen. Jim Tracy, R-Shelbyville, head of the Senate Transportation Committee, moved yesterday to block state funding for the Amp, Nashville’s proposed bus rapid-transit system. The Nashville Business Journal reports that Tracy's plan would add language to an appropriations bill for the Tennessee Department of Transportation preventing any spending on a bus rapid transit service that uses a portion of a state highway. Officials have said they could still fund the $174 million Amp without help from the state, however, they have not detailed how.


Lawmakers Designate Feb. 6 'State Constitution Day'

Sen. Brian Kelsey, R-Germantown, and State Rep. Sheila Butt, R-Columbia, have filed Senate Joint Resolution 481 designating Feb. 6 as “State Constitution Day” in Tennessee, the Columbia Daily Herald reports. That date recognizes the 218th birthday of the adoption of the state’s first Constitution by delegates at a convention held for that purpose in Knoxville before the birth of the Volunteer State. The resolution declares that during the annual recognition of Constitution Day the document will be read aloud in both the House of Representatives and the Senate by any legislators desiring to participate.


Senate Passes Guns-in-Parks Measure

The Senate today approved a bill 26-7 that would lift gun bans in local parks, despite opposition from Nashville Mayor Karl Dean and other city leaders, the Tennessean reports. Senate Bill 1496 — sponsored by Sen. Stacey Campfield, R-Knoxville — would undo a 2009 law that allows city councils and county commissions to decide for themselves whether to permit guns in their parks. Dean has lobbied lawmakers to reject the bill, arguing that local governments should continue to decide how to police their own parks. Gov. Bill Haslam, a former mayor of Knoxville, also has said he opposes the measure.


Lawyer Seeks Clerk Post Held by His Grandfather

Hayden Bryson, a life-long resident of Cannon County, has announced his candidacy for the office of Cannon County circuit court clerk, the Cannon Courier reports. Bryson retired in 2012 as a letter carrier for the U.S. Postal Service. He is also a realtor and auctioneer for Bob Parks Realty & Auction Co. in Murfreesboro. Prior to his affiliation with the Parks Group he was with former local real estate agency Parsley & Todd. Bryson’s grandfather, the late Henry H. Smith, served as circuit clerk from 1922-1934.


Shelby Criminal Court Clerk Race Heats Up

Incumbent Shelby County Criminal Court Clerk Kevin Key has checked out a qualifying petition to seek re-election in 2014, the Memphis Daily News reports. He will run in the May Republican primary against Richard DeSaussure, who had picked up a petition earlier. The paper also reports that the Democratic primary for the clerk position now has its first possible contender in Michael McCusker.


Roane County Lawyer Seeks Judgeship

Roane County attorney Tom McFarland plans to hit the campaign trial again this year, but he is not running for the position he’s held for the last 16 years. Instead, McFarland is running for 9th Judicial District circuit court judge, the Roane County News reports.


Kane Announces for Judicial Race

Lebanon attorney Brody Kane today announced his candidacy for Criminal Court Judge for the 15th Judicial District comprised of Wilson, Macon, Trousdale, Jackson and Smith counties. Kane earned his law degree from the University of Memphis Law School and is a founding partner of the Lebanon-based law firm, McBrien & Kane. He has also served as the Municipal Court Judge for the town of Alexandria since 2004. Read more about his background and campaign.


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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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