New TBA Section, Committee Chairs Gather for Orientation

Attorneys from across the state will gather in Nashville this weekend to learn more about the Tennessee Bar Association and how to be successful leaders of the sections and committees they will head during the 2014-2015 bar year. The group will hear from Executive Director Allan Ramsaur and other key staff, as well as from President-Elect Jonathan Steen. Steen and the new leaders will take office at the TBA Annual Meeting in June.

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
06 - 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

CHARLES J. CHAMBERS EX REL. ODIS M. CHAMBERS v. BRADLEY COUNTY ET AL.

Court: TN Court of Appeals

Attorneys:

Thomas M. Pinckney, Stephen W. Elliott, and Fetlework Balite-Panelo, Nashville, Tennessee, for the appellant, Bradley Healthcare and Rehabilitation Center.

Ashley L. Ownby, Cleveland, Tennessee, for the appellee, Odis M. Chambers.

Judge: SUSANO

In this medical malpractice case, the defendants moved to dismiss the complaint with prejudice on the grounds that plaintiff failed to file, with his complaint, the affidavit of the person who mailed pre-suit notice to the defendants. The trial court, noting that plaintiff complied with Tenn. Code Ann. § 29-26-121 (Supp. 2013) in every respect except for filing the affidavit, and that he filed the affidavit shortly after the complaint, denied the motion to dismiss on the ground that plaintiff had substantially complied with the statute. We affirm the judgment of the trial court.


CYNTHIA L. CHRISTIAN, ET AL. v. AYERS L.P. d/b/a MS. LASSIE’S LODGE

Court: TN Court of Appeals

Attorneys:

R. Kim Burnette and Stacie D. Miller, Knoxville, Tennessee, for the appellants, Cynthia L. and Benny Christian.

P. Alexander Vogel, Knoxville, Tennessee, for the appellee, Ayers L.P. d/b/a Ms. Lassie’s Lodge.

Judge: MCCLARTY

This is a premises liability case. An attendee at an event fell in the defendant’s parking lot and sustained injuries. The attendee and her husband filed suit against the defendant claiming negligence because the parking area had no lighting on the evening of the fall. The defendant filed a motion for summary judgment, asserting it: had no notice the outdoor lights were burned out; owed no duty to the attendee; and the attendee was more than fifty percent at fault for her injuries. The trial court determined the record contained insufficient evidence to establish that the defendant had notice the outside lights were not working. The other issues raised were dismissed as moot. The plaintiffs appeal. We reverse and remand for further proceedings.


LINDA F. COFFEY ET AL. v. TYLER N. HOFFMAN ET AL.

Court: TN Court of Appeals

Attorneys:

Thomas L. Kilday and Brandy M. Burnette, Greeneville, Tennessee, for the appellant, Tennessee Farmers Mutual Insurance Company.

Phillip L. Boyd, Rogersville, Tennessee, for the appellees, Linda F. Coffey and C. Wayne Coffey.

Judge: SUSANO

The issue presented in this appeal is whether the plaintiffs’ uninsured motorist insurance carrier preserved its rights to a jury trial and subrogation interest under Tenn. Code Ann. § 56-7-1206 (2008). This statute allows an uninsured motorist insurer to “elect to decline binding arbitration and preserve its subrogation rights” under certain prescribed circumstances. Tenn. Code Ann. § 56-7-1206(k). The trial court held that the uninsured motorist insurance carrier failed to comply with a local circuit court rule that requires a response to a motion to be filed and served on the movant no later than 30 days after the motion is filed. Pursuant to that local rule, the trial court treated the plaintiffs’ motion to compel arbitration as “unopposed.” The trial court further held that the uninsured motorist insurance carrier “did not strictly comply with the requirement of T.C.A. § 56-7-1206 objecting to arbitration” and ordered the parties to submit to binding arbitration. We hold that the uninsured motorist insurance carrier complied with the statute, thereby preserving its rights to a jury trial and subrogation, and that the local rule does not operate to abrogate these rights. The judgment of the trial court is vacated and this case is remanded to the trial court for further proceedings.


IN RE GABRIEL B. ET AL.

Court: TN Court of Appeals

Attorneys:

Steven B. Ward, Madisonville, Tennessee, for the appellant, Donna B.

Robert E. Cooper, Jr., Attorney General and Reporter, and Mary Byrd Ferrara, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

Judge: FRIERSON

This is a termination of parental rights case, focusing on Gabriel B., Gracie B., and Zachary B., the minor children (“Children”) of Donna B. (“Mother”) and Richard B. (“Father”). The Children were taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on June 9, 2011, after they had been found in the care of an inappropriate caregiver while Mother was out of state. On April 19, 2012, DCS filed a petition to terminate the parental rights of Mother and Father. Father subsequently surrendered his parental rights to the Children and is not a party to this action. Following a bench trial held on November 9, 2012, and January 4, 2013, the trial court granted the petition upon its finding, by clear and convincing evidence, that (1) Mother had abandoned the Children by failing to provide a suitable home, (2) Mother had failed to substantially comply with the permanency plans, (3) the conditions causing the removal of the Children into protective custody persisted, and (4) Mother’s mental condition was impaired to the point of being unable to provide for the further care and supervision of the Children. The court further found, by clear and convincing evidence, that termination of Mother’s parental rights was in the Children’s best interest. Mother has appealed. Discerning no error, we affirm.


MARY ANN LAYMAN v. THOMAS STUART LAYMAN

Court: TN Court of Appeals

Attorneys:

Phillip C. Lawrence, Chattanooga, Tennessee, for the appellant, Thomas Stuart Layman.

Michael E. Jenne, Cleveland, Tennessee, for the appellee, Mary Ann Layman.

Judge: SUSANO

In this divorce case, the trial court granted Mary Ann Layman (“Wife”) an absolute divorce from Thomas Stuart Layman (“Husband”), thereby ending the parties’ twenty-nine year marriage. Subsequently, the court divided the marital property and awarded Wife alimony in futuro and child support in a lump sum amount. Husband appeals. We reverse the trial court’s award of $63,200 in retroactive child support. The judgment is otherwise affirmed.


SECURAMERICA BUSINESS CREDIT v. KARL SCHLEDWITZ, ET AL

Court: TN Court of Appeals

Attorneys:

W.O. Luckett, Jr., Clarkdale, Mississippi and Lorrie K. Ridder, Memphis, Tennessee, for the appellant, SecurAmerica Business Credit.

David J. Cocke, Memphis, Tennessee, for the appellees, Karl Schledwitz and Terry Lynch.

Judge: STAFFORD

This is the second appeal involving liability on personal guaranties securing the debt of a transportation company. On remand after our first opinion, the trial court found that the transportation company and the lender, through the actions of its president, entered into a conspiracy to violate the Tennessee Consumer Protection Act and violated the duty of good faith and fair dealing, relieving the guarantors of their liability under the continuing guaranties. The trial court, however, declined to hold that the lender and transportation company committed fraud or that the sale of the transportation company from the guarantors to its current owner was a sham. We affirm the trial court’s rulings with regard to (1) the actions of the lender’s president being imputed to the lender; (2) that the sale of the transportation company was not a sham; (3) that no fraud was committed; and (4) that the guaranties at issue are continuing. We further hold that the trial court was entitled to consider both the underlying credit agreement and the guaranties in determining whether the duty of good faith was breached. However, we vacate the trial court’s judgment with regard to its findings of conspiracy, a violation of the Tennessee Consumer Protection Act, and breach of the duty of good faith. We further vacate the trial court’s judgment that the guarantors may avoid the obligations under the guaranties. We remand to the trial court for further findings of fact and conclusions of law on these issues. Affirmed in part, vacated in part, and remanded.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. HERLANA BREWER

Court: TN Court of Criminal Appeals

Attorneys:

The Defendant, Herlana Brewer, challenges the trial court’s revocation of her community corrections sentence, imposition of full incarceration, and increase to the length of her effective sentence. Specifically, she contends that the trial court did not follow the requirements of Tennessee Code Annotated section 40-35-210 in revoking her community corrections sentence and improperly increased the length of her sentence on one of the offenses based upon her extensive criminal history and behavior. Upon consideration of the record and applicable authorities, we affirm the judgments of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; Amy P. Weirich, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Herlana Brewer, challenges the trial court’s revocation of her community corrections sentence, imposition of full incarceration, and increase to the length of her effective sentence. Specifically, she contends that the trial court did not follow the requirements of Tennessee Code Annotated section 40-35-210 in revoking her community corrections sentence and improperly increased the length of her sentence on one of the offenses based upon her extensive criminal history and behavior. Upon consideration of the record and applicable authorities, we affirm the judgments of the trial court.


FERNANDEZ DEON DAVENPORT v. ARVIL CHAMPMAN, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Fernandez Deon Davenport, pro se, Clifton, Tennessee, as the appellant.

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

Judge: BIVINS

Fernandez Deon Davenport (“the Petitioner”) filed a petition for a writ habeas corpus regarding his conviction of second degree murder. The habeas corpus court summarily dismissed the petition, and this appeal followed. Upon our thorough review of the record and applicable law, we affirm the habeas corpus court’s judgment.


STATE OF TENNESSEE v. DESHUNDRIC DENNIS

Court: TN Court of Criminal Appeals

Attorneys:

Phyllis Aluko (on appeal), and Michael Johnson (at trial), Assistant District Public Defenders, for the appellant, Deshundric Dennis.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Kate Edmonds, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Deshundric Dennis, appeals his Shelby County Criminal Court jury conviction of aggravated assault, for which he received a three-year Range I sentence. On appeal, the defendant challenges the sufficiency of the convicting evidence. Discerning no error, we affirm.


STATE OF TENNESSEE V. WAYNE CHARLES GREEN

Court: TN Court of Criminal Appeals

Attorneys:

Robert G. Morgan, Jasper, Tennessee, for the appellant, Wayne Charles Green.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; J. Michael Taylor, District Attorney General; and David Shinn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Wayne Charles Green (“the Defendant”) pleaded guilty to theft of property of $60,000 or more. Pursuant to the plea agreement, the trial court sentenced the Defendant to a sentence of ten years. Following a sentencing hearing, the trial court ordered this sentence to be served in incarceration and ordered the Defendant to pay restitution of $123,901.22. On appeal, the Defendant argues that the trial court erred in denying probation or other alternative sentencing. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. ERIQUE RICHARDSON

Court: TN Court of Criminal Appeals

Attorneys:

Paul L. Springer (on appeal), Charles Gilcrest (advisory counsel at trial) and Erique Richardson (pro se at trial), Memphis, Tennessee, for the appellant, Erique Richardson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Jose F. Leon and Sam Winning, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Erique Richardson, was convicted by a Shelby County Criminal Court jury of being a felon in possession of a handgun, a Class E felony. See T.C.A. § 39-17-1307 (2010) (amended 2013). He was sentenced as a Range II, multiple offender to three years’ confinement. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction and (2) the trial court denied his right to counsel. We affirm the judgment of the trial court.


ANDRE DE LA REY ROSSOUW v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

David A. Collins, Nashville, Tennessee, for the appellant, Andre De La Rey Rossouw.

Robert E. Cooper, Jr., Attorney General & Reporter; Clarence E. Lutz, Senior Counsel; Victor S. (Torry) Johnson III, District Attorney General; and Benjamin Ford, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

The Petitioner, Andre De La Rey Rossouw, pleaded guilty in 2001 to stalking. On July 27, 2012, the Petitioner filed a petition for writ of error coram nobis arguing that his guilty plea was constitutionally invalid. Following a hearing, the coram nobis court denied the petition, and the Petitioner timely appealed. After a careful review of the record, we affirm the judgment of the coram nobis court.


TN Attorney General Opinions

Municipal Board of Education Elections

Court: TN Attorney General Opinions

Date: 2014-03-27

Opinion Number: 36


Sex Offender’s Attendance at a School Sporting Event

Court: TN Attorney General Opinions

Date: 2014-03-27

Opinion Number: 37


JAS, Other Groups Urge Professional Diversity on Bench

Justice at Stake (JAS) is among more than 30 organizations urging U.S. senators to consider professional diversity when evaluating judicial candidates. “A truly diverse judiciary...not only reflects the gender, ethnic, sexual orientation, disability and racial diversity of the nation, but also includes judges who come from all corners of the legal profession — and particularly those who have worked in the public interest, representing those whose voices are otherwise rarely heard. This sort of professional diversity both enhances judicial decision-making and is essential to the public’s trust in our justice system,” the groups' letter states. Read more at GavelGrab.


Judge, Municipal Leader Honored with Dunavant Awards

Shelby County Criminal Court Judge Chris Craft and Collierville town administrator James Lewellen are the 2014 recipients of the Dunavant Public Servant Awards, which are awarded each year by the family of the late Shelby County Probate Court Clerk Bobby Dunavant and the Rotary Club of Memphis East. The Memphis Daily News reports Craft and Lewellen will be honored at an April 21 awards luncheon at the Holiday Inn University of Memphis. A symposium on public service is also scheduled for the same day at the university.


Opinion: Debtors' Prisons in New Form Still Exist

Underfunded criminal and civil courts often function as modern day "debtors' prisons," Columbia Law School professor Vivian Berger states in an opinion piece in the National Law Journal. Although the federal government abolished imprisonment for debt in 1833, Berger argues that more than one-third of the states permit incarceration of those in default of their civil obligations. The American Civil Liberties Union and the Brennan Center for Justice at New York University School of Law recently wrote to the Consumer Financial Protection Bureau regarding the misuse of civil contempt to obtain repayment of private debts, calling for the abolition of debtors' prisons in their modern incarnations.


Democrats Hit Haslam for Medicaid Delay

State Democrats marked the one-year anniversary of Gov. Bill Haslam’s promise to seek a “Tennessee Plan” to expand Medicaid with a press conference yesterday in which they urged him to take action. Health and Human Services Secretary Kathleen Sebelius visited Nashville Thursday, in part to push for Medicaid expansion in the state. Earlier, however, the state legislature gave final approval to HB 937, a measure that requires the governor to get the General Assembly’s permission before expanding TennCare, the state’s Medicaid program. The Tennessean has the story.


States Tackle Cloud Computing Rules

As states begin to adopt ethics rules requiring lawyers to be technologically competent and aware of the ethical implications of cloud computing, many practioners may be left wondering what it all means. The ABA Techshow presentation “Ethics 20/20, Security and Cloud Computing” walks users through recent rules changes, highlighting what state ethics authorities have ruled so far about lawyers' use of the cloud. The presentation explores what constitutes technological competence, and discusses how far a lawyer who stores data in the cloud must go to protect client confidences from inadvertent or unauthorized access or disclosure. The ABA Journal boils the presentation down to five key requirements.


Opinion: Ag Gag Bill Returns

In an editorial released today, the Memphis Flyer criticizes the return of the whistleblower legislation nicknamed the “Ag Gag” bill. Gov. Bill Haslam vetoed the bill last year, which mandated that anyone observing animal cruelty report it to law authorities within 48 hours or be liable for arrest and penalty. "Ostensibly designed to bring swift attention to animal cruelty, the effect of such bills is nearly the opposite one, to discourage anyone from attempting to document such cruelty," the paper argues. The new bill, HB 2258/SB 2406, is sponsored by Rep. Andy Holt, R-Dresden, and Sen. Dolores Gresham, R-Somerville. The newspaper claims the new bills are just as “constitutionally suspect” as previous versions, and urges the legislature to oppose them.


Attorney Pulls Out of General Sessions Judge Race

Attorney Larry Ables has advised that he does not plan to make a race against incumbent Hamilton County General Sessions Court Judge David Bales in Division 2, the Chattanoogan reports. Ables, a former chief magistrate, had picked up qualifying papers and participated in a number of campaign events, however, he had never filed for the position. Of the five General Sessions judges, only Judge Christie Sell in Division 1 now faces opposition from Rex Sparks.


Judicial Candidate to Run for Public Defender Instead

Kim Nelson qualified to run for circuit court judge in January, but yesterday announced she is switching gears and running for 9th Judicial District public defender instead. Nelson, who currently serves as circuit court clerk for Roane County, said she has not yet filed the necessary paperwork to run for public defender. She has until April 3 to do so. Roane County News has the story.


Circuit Court Judges Run Unopposed

The four candidates running for circuit court judge in the 21st Judicial District are all running unopposed, Franklin Homepage reports. Read more about the candidates for Division I, II, III and IV in the paper’s Election 2014 section.


Knox County Lawyer Suspended for 3 Years

The Tennessee Supreme Court on March 21 suspended Knox County lawyer Rebecca C. Vernetti for three years and ordered her to pay the costs and expenses of the disciplinary proceeding within 90 days. The court found that Vernetti made misrepresentations to the court and opposing counsel, failed to maintain disputed funds in her trust account, used disputed funds for her personal benefit, shared legal fees with a non-attorney husband and failed to maintain professional independence. Download the BPR notice.


TBA Offers CLE Your Way

Remember to use the three hours of free CLE programming that comes with your TBA membership. Members can use this credit to cover all or part of the cost of live programs across the state, weekly webcasts or any of the 300-plus online courses offered in both video and text formats. Find a course now.


 
 

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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