Bill Shifting AG Powers Headed to Full Senate Vote

A bill that would give state officials the power to direct the actions of the Attorney General passed out of the Senate Judiciary Committee yesterday. SB 2085 would allow the legislature, through joint resolution, or the governor, via executive order, to instruct the attorney general when to file legal actions. It would also allow the speakers of the House and Senate to direct the AG by joint agreement when the General Assembly is not in session. The TBA opposes this bill, as it raises constitutional questions that are untenable. Use TBAImpact to weigh in on this issue. Read more in the Chattanoogan.

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
07 - TN Court of Appeals
07 - 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

JACQUELINE WALL FARTHING, DICKSON COUNTY REGISTER OF DEEDS V. DICKSON COUNTY, TENNESSEE, BY AND THROUGH BOB RIAL, MAYOR FOR DICKSON COUNTY, TENNESSEE

Court: TN Court of Appeals

Attorneys:

Alan Poindexter, Lebanon, Tennessee, for the appellant, Jacqueline Wall Farthing, Dickson County Register of Deeds.

Timothy Valton Potter, Dickson, Tennessee, for the appellee, Dickson County, Tennessee, by and through Bob Rial, Mayor for Dickson County, Tennessee.

Judge: COTTRELL

Register of Deeds filed petition pursuant to Tenn. Code Ann. § 8-20-101 et seq. seeking an increase in compensation for her three deputy clerks and seeking an award of her costs, including attorney’s fees. The trial court denied Register the relief she sought, and she appealed. Based on the evidence presented and the language of the statute, we hold the trial court was required to determine the appropriate salary for Register’s assistants. Register is entitled under the applicable statute to have her costs, including her attorney’s fees, paid out of the fees collected by her office.


DIRECTOR, TVHS, MURFREESBORO CAMPUS v. LAWRENCE HARTMAN

Court: TN Court of Appeals

Attorneys:

Darren Lee Drake, Murfreesboro, Tennessee, for the appellant, Lawrence Hartman.

Bradley Wayne Flippin, Nashville, Tennessee, for the appellee, Director, TVHS, Murfreesboro Campus.

Judge: COTTRELL

The trial court ordered a sixty-eight year old army veteran to be involuntarily hospitalized because it found that he suffered from a mental illness that rendered him “unable to avoid severe impairment or injury from specific risks.” See Tenn. Code Ann. § 33-6-501. The only evidence of actual risk, however, was that others might easily be able to take financial advantage of his confusion or his trusting nature. We reverse the trial court and order the defendant’s release, because it is not constitutionally or statutorily permissible to deprive an individual of liberty when he poses no danger to others, and when the only danger he poses to himself is danger to his own property or potential for financial loss.


IN RE J.B. JR. ET AL.

Court: TN Court of Appeals

Attorneys:

John T. Sholly, Knoxville, Tennessee, for the appellant, J.B.

Robert E. Cooper, Jr., Attorney General and Reporter, and Ryan L. McGehee, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

Judge: SUSANO

J.B. (“Mother”) appeals the termination of her rights to her minor children, J.B. Jr. and J.B. (“the Children”).1 The Department of Children’s Services (“DCS”) was involved with the family going back to 2006. In 2009, the Children were taken into emergency, protective custody predicated on allegations of illegal drug use, failure to protect from sexual abuse, and domestic violence. The Children were adjudicated dependent and neglected and placed in foster care. A year later, DCS filed a petition to terminate Mother’s parental rights. It alleged that Mother abandoned the Children and that she failed to resolve the issues that led to their removal. Following a bench trial, the court found, by clear and convincing evidence, that multiple grounds for termination exist and that termination is in the best interest of the Children. On this appeal, Mother challenges only the best interest determination. We affirm.


ROBERT KEENAN, SR. AND DEBRA B. KEENAN v. BARRY C. FODOR AND DEBORAH A. FODOR

Court: TN Court of Appeals

Attorneys:

Kristin J. Fecteau, Nashville, Tennessee, for the appellants, Robert Keenan, Sr. and Debra B. Keenan.

Tara L. Swafford, Lauren Cooney, Franklin, Tennessee, for the appellees, Barry C. Fodor and Deborah A. Fodor.

Judge: COTTRELL

The Keenans and the Fodors are neighbors who share access to their respective properties through an elaborate stone and metal gate that had been constructed on an easement of way over the Keenans’ property by the prior owner of the Fodors’ property. After a period of relative harmony, a dispute over the ownership of the gate led to a lawsuit. The trial court and this court ruled that the gate was personalty, not a fixture, and belonged to the Fodors, who were given authority to move it. The trial court’s order also set out some ground rules for the shared use of the gate pending its removal. Disagreements over the gate continued, resulting in two additional legal actions. The first was a motion for civil contempt filed by the Fodors alleging that the Keenans had violated the judicially-ordered ground rules for the use of the gate. For their part, the Keenans filed a motion to compel the Fodors to remove the gate from the easement and place it on their own property. In one proceeding, the court found that the Keenans were in contempt of its orders. In the other, it declined to order that the gate be removed. We reverse the finding of contempt, but we affirm the trial court’s determination that the Fodors are not obligated to remove the gate. We also hold, however, that the Fodors are not entitled to exclude the Keenans from the free use of their own property by keeping the gate locked.


MARVIN NORFOLK v. TENNESSEE CIVIL SERVICE COMMISSION

Court: TN Court of Appeals

Attorneys:

Andy L. Allman, Hendersonville, Tennessee, for the appellant, Marvin Norfolk.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Eugenie B. Whitesell, Senior Counsel; for the appellee, Tennessee Department of Safety.

Judge: BENNETT

State trooper challenges his termination for the good of the service. We find substantial and material evidence to support the decision of the Civil Service Commission and affirm the judgment of the trial court.


GREGORY CHARLES TRAYLOR, BY AND THROUGH HIS PARENT, DAVID TRAYLOR, and DAVID TRAYLOR, INDIVIDUALLY v. SHELBY COUNTY BOARD OF EDUCATION

Court: TN Court of Appeals

Attorneys:

Valerie B. Speakman, Arlington, Tennessee, for Defendant/Appellant Shelby County Board of Education

Edward M. Bearman, Memphis, Tennessee, for Plaintiff/Appellees Gregory Charles Traylor and David Traylor

Judge: KIRBY

This is a slip and fall case under the GTLA. The plaintiff high school student slipped on a patch of ice on the sidewalk at his public high school and sustained injuries. The student filed this action against the county board of education alleging negligence. After a bench trial, the trial court held that the defendant school board had constructive notice of the ice on the sidewalk and thus was liable under the GTLA. The school board now appeals. After carefully reviewing the record, we find insufficient evidence in the record to support the finding of constructive notice and so reverse the trial court’s decision.


RHEATTA F. WILSON, ET AL. v. AMERICARE SYSTEMS, INC., ET AL.

Court: TN Court of Appeals

Attorneys:

Roger W. Dickson and Robert F. Parsley, Chattanooga, Tennessee; and David L. Johnson, Nashville, Tennessee for the appellant, Americare Systems, Inc.

C. J. Gideon, Jr. and Alan S. Bean, Nashville, Tennessee; and Raymond W. Fraley, Jr., Fayetteville, Tennessee, for the appellees, Rheaetta F. Wilson and Lauralyn F. Watson.

Judge: BENNETT

A defendant appeals the award of punitive damages arising from the death of a patient at an assisted living facility, which the defendant managed. We affirm the trial court’s review of the Hodges factors and the due process analysis relating to the punitive damage award. We also affirm the trial court’s directed verdict making the defendant liable for the actions of the assisted living facility’s employees. We must modify the amount of the punitive damage award by reducing it to comply with the amount the plaintiff requested in the ad damnum clause of their complaint.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. DERRICK BRAXTON

Court: TN Court of Criminal Appeals

Attorneys:

Marty B. McAfee, Memphis, Tennessee, for the appellant, Derrick Braxton.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Amy P. Weirich, District Attorney General; Carrie Sheldon and Caveat Ostner, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WOODALL

Defendant, Derrick Braxton, was convicted as charged for one count of aggravated sexual battery and sentenced to ten years’ confinement to be served at 100 percent release eligibility. Defendant appeals his conviction and sentence and asserts the following: 1) the trial court erred by denying his motion for judgment of acquittal and the evidence is insufficient to support his conviction; 2) his sentence is excessive; 3) the trial court failed to act as thirteenth juror; and 4) the prosecutor’s comments about Defendant’s credibility during closing argument were improper. Finding no error, we affirm the judgment of the trial court.


AUQEITH LASHAWN BYNER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Ashley Preston, Nashville, Tennessee, for the appellant, Auqeith Lashawn Byner.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; Victor S. Johnson, III, District Attorney General, and Rachel Sobrero, Assistant District Attorney, for the appellant, State of Tennessee.

Judge: SMITH

Petitioner, Auqeith Lashawn Byner, was indicted by the Davidson County Grand Jury for one count of possession of .5 grams or more of cocaine within 1,000 feet of a school with the intent to sell or deliver and one count of reckless driving. After a jury trial, he was convicted as charged. As a result, he was sentenced to a sixteen-year sentence for the possession of cocaine with intent to sell conviction and six months for reckless driving, to be served concurrently to each other but consecutively to the sentence in another case 2007-D-3157. Petitioner initiated a direct appeal of his convictions but dismissed the appeal voluntarily. Petitioner later sought post-conviction relief on the basis of ineffective assistance of counsel. After a hearing, the post-conviction court denied relief. Petitioner appealed. After a review, we determine Petitioner has failed to establish by clear and convincing evidence that he received ineffective assistance of counsel at trial. Accordingly, the judgment of the post- conviction court is affirmed.


STATE OF TENNESSEE v. DEXTER DESHUN COLEMAN

Court: TN Court of Criminal Appeals

Attorneys:

Melody Dougherty, Ripley, Tennessee, for the appellant, Dexter Deshun Coleman.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel, D. Michael Dunavant, District Attorney General; and Joni R. Livingston, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The Defendant, Dexter Deshun Coleman, pled guilty to three counts of facilitation of especially aggravated kidnapping and one count each of especially aggravated burglary and facilitation of especially aggravated robbery. The plea agreement provided that the Defendant would receive an effective sentence of twelve years as a Range I, standard offender with the trial court to determine the manner of service of the sentence. Following a sentencing hearing, the trial court denied the Defendant’s request for alternative sentencing and ordered that the Defendant serve his sentence in confinement. On appeal, the Defendant contends that the trial court erred in denying his motion for alternative sentencing. The State has filed a motion requesting that this court affirm the trial court’s judgments 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 judgments of the trial court.


JOSEPH LAMONT JOHNSON, JR. v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

David A. Collins, Nashville, Tennessee, for the appellant, Joseph Lamont Johnson, Jr.

Robert E. Cooper, Jr., Attorney General & Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Joseph Lamont Johnson, was convicted of two counts of aggravated robbery, one count of aggravated assault, and one count of felony evading arrest. The trial court then reduced one of the aggravated robbery convictions to aggravated assault pursuant to State v. Franklin, 130 S.W.3d 789, 798 (Tenn. Crim. App. 2003) and sentenced the petitioner to an aggregate sentence of fifty-four years. The petitioner’s convictions and sentences were affirmed on appeal. State v. Johnson, No. M2007-01644-CCA-R3-CD, 2009 WL 2567729, at *1 (Tenn. Crim. App. Aug. 18, 2009). The petitioner brings this post-conviction action alleging that he received the ineffective assistance of counsel in that: (1) trial counsel failed to convey a plea offer or inform the petitioner regarding his potential exposure; (2) trial counsel did not adequately investigate the case; (3) trial counsel performed deficiently by not moving to dismiss one of the aggravated robbery counts; (4) trial counsel performed deficiently by not moving to suppress a witness’s identification of the petitioner; (5) appellate counsel performed deficiently by failing to challenge the petitioner’s sentencing range; and (6) that the cumulative errors above resulted in the deprivation of the right to counsel. After a thorough review of the record, we conclude that the petitioner has failed to prove one or both prongs of a claim of ineffective assistance of counsel with respect to each claim, and we accordingly affirm the denial of the petition.


STATE OF TENNESSEE v. JOSEPH SHANE POWELL

Court: TN Court of Criminal Appeals

Attorneys:

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Joseph Shane Powell.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Jerry Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

A Madison County Grand Jury returned an indictment against Defendant, Joseph Shane Powell, charging him with promoting the manufacture of methamphetamine. Following a jury trial, Defendant was convicted as charged in the indictment. The trial court imposed a sentence of eight years as a Range II multiple offender. On appeal, Defendant argues that the evidence was insufficient to support his conviction. After a thorough review of the record, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. DONALD LEE REBURN

Court: TN Court of Criminal Appeals

Attorneys:

Robert E. Cooper, Jr, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., Assistant District Attorney General, for the appellant, State of Tennessee.

Gary F. Antrican, District Public Defender; and David S. Stockton, Assistant District Public Defender, Covington, Tennessee, for the appellee, Donald Lee Reburn.

Judge: PAGE

Appellee, Donald Lee Reburn, pleaded guilty to theft of property valued at $1,000 or more but less than $10,000. At his guilty plea submission hearing, the trial court sentenced him as a persistent offender to ten years, suspended to probation. The State has appealed and argues that the trial court erred by sentencing appellee without a sentencing hearing and without a presentence report. Following our review, we reverse the judgment of the trial court and remand for a sentencing hearing.


STATE OF TENNESSEE v. MARCUS SMITH

Court: TN Court of Criminal Appeals

Attorneys:

Stephen C. Bush, District Public Defender; and Harry E. Sayle, III (on appeal) and Sanjeev Memula (at trial), Assistant District Public Defenders, Memphis, Tennessee, for the appellant, Marcus Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlyn E.D. Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Terre Fratesi, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Marcus Smith, was convicted of one count of criminal attempt to commit rape of a child, a Class B felony. The trial court sentenced appellant to nine years to be served in the Tennessee Department of Correction. On appeal, appellant argues that the evidence at trial was insufficient to support his conviction. Following our review of the parties’ briefs, the record, and the applicable law, we affirm appellant’s conviction.


Judges Recuse Themselves from County Clerk Suit

No Circuit Court judge within the Third Judicial District will hear the ouster suit filed against Greene County Clerk David Thompson, the Greeneville Sun reports. The suit was filed last week by County Attorney Pro Tempore Suzanne Cook, who was appointed that same day by the Greene County Commission to act in place of County Attorney Roger Woolsey on the Thompson case.


Legacy of Adolpho A. Birch Remembered

The Tennessean recognizes Black History Month by remembering the legacy of Adolpho A. Birch Jr., who became the first black chief justice of the Tennessee Supreme Court. Born in Washington, D.C., Birch earned his bachelors and law degrees from Howard University before moving to Nashville where he taught at Meharry Medical College, Fisk University and Tennessee State University, while maintaining a private law practice. In 1969, Birch was named a General Sessions court judge, becoming the first black Tennessean to serve in a countywide office. Elected by his fellow justices as chief justice in 1994, Birch became the first person to serve at every judicial level in Tennessee.


Online Voting in TBA Election to End Monday

Online voting in the Tennessee Bar Association election will end on Monday for members in the Middle and East Grand Divisions where there are contested races. After electronic voting ends, members who have not yet voted will receive a paper ballot in the mail. In the Middle Grand Division, Nashville attorney Jim Cartiglia of Waddey & Patterson PC is facing Franklin attorney David Veile of Schell & Davies LLC for Middle Grand Division Governor, Position 2. In the East, Knoxville attorney Sarah Sheppeard of Sheppeard & Mynatt PLC is facing Chattanooga attorney David McDowell of Gearhiser Peters Elliott & Cannon PLLC for East Grand Division Governor, Position 1.


Percentage of Part-time Lawyers Drops in Major Firms

Just over 6 percent of lawyers working in major law firms were working part-time last year, and 70 percent of those part-timers were women, a National Association for Law Placement survey shows. The percentage of part-time women lawyers dropped from 13.5 percent in 2012 to 12.9 percent in 2013. Only 2.8 percent of all male lawyers worked part-time, the study notes. The percentage of lawyers working part-time lags behind that of the U.S. workforce as well as for those employed in other professions — about 13.7 percent of people employed in 2012 usually worked part-time. The ABA Journal has more.


KBA Community Law School Offers Free Legal Advice

In an interview with MetroPulse, Knoxville Bar Association Executive Director Marsha S. Wilson talks about the KBA’s Community Law School, a program that offers free legal assistance with topics like debt, mortgage foreclosures, and wills and advance directives. “The CLS is intended to provide unbiased information on the topics presented, and includes forms that can be utilized by the public. Volunteer local attorneys will be teaching the courses and will be available to answer questions from attendees,” Wilson said. For more information, visit the KBA wesbite or call (865) 522-6522.


House Democratic Caucus Chairman Won’t Seek Re-election

State House Democratic Caucus Chairman Mike Turner announced today he will not seek re-election to the House District 51 after 14 years in office. The Nashville Democrat told House colleagues on the floor this morning during personal orders. Turner, the House's No. 2 Democrat, has not ruled out running for Metro Nashville mayor in 2015, the Chattanooga Times Free Press reports.


Memorial Service Sunday for Sumner Circuit Court Judge

Sumner County Circuit Court Judge C.L. “Buck” Rogers died early this morning of an aortic aneurysm. He was 63. Rogers first ran for the office in 2000 to fill an unexpired term for Judge Thomas Goodall who also passed away while in office. He was elected again in 2006 and was running unopposed in the Sumner County Republican Primary in May. A memorial service will be held at 2 p.m. Sunday at First United Methodist Church in Hendersonville. Visitation will be 1 p.m. to 7 p.m. Saturday at Hendersonville Memory Gardens and Funeral Home.


11 Rutherford Candidates Face No Competition

Eleven candidates for Rutherford County offices will appear on the ballot without competition including Circuit Court Judge Royce Taylor; Donna Scott Davenport, an incumbent who presides over Juvenile Court; Keith Siskin, an incumbent who presides over Circuit Court Division III; and Howard Wilson, a Murfreesboro attorney who qualified to replace retiring Chancellor Robert Corlew. The Daily News Journal has more.


Greene County Lawyer Placed on Disability Inactive Status

The law license of Russell Dale Mays was transferred to disability inactive status on Feb. 25. Mays 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.


Get Innovative Payroll Solutions with CompuPay

CompuPay Inc. offers a variety of payroll service solutions for TBA members, including phone, fax and online payroll. For more information about CompuPay’s offerings and to receive TWO FREE MONTHS of payroll services, please call (615) 791-4000 and mention that you are a TBA member.


Public Service Awards Nomination Deadline Nears

There are two weeks left for citizens to nominate an elected official and/or an appointed public official for the awards named in honor of the late Probate Court Clerk Bobby Dunavant, the Memphis Daily News reports. Citizens can nominate someone through March 14 on a form on the Rotary Club of Memphis East website. The awards will be presented April 21 at a luncheon featuring a keynote speech by Sen. Lamar Alexander.


 
 

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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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