Program Explores How to Tear Down Barriers to Justice

A panel of attorneys and judges from across Tennessee addressed how to tear down some of the barriers blocking access to justice for many Americans during a program today at the Baker Donelson offices in Nashville. The panelists looked at the issues from various perspectives: Justice Connie Clark and Access to Justice Commission Chair Buck Lewis talked about rule changes and programs launched by the court to make justice more accessible in Tennessee; Judge Chad Schmucker, president of the National Judicial College, talked about how judges can be better trained and educated to work with self-represented litigants; and a number of judges, including Don Ash and Claudia Bonnyman, spoke about their day-to-day experiences on the bench. Justice Janice Holder, UT Law Professor Penny White, Judge Philip Smith and Judge Daniel Eisenstein, Martha Lafferty of the Disability Law & Advocacy Center of Tennessee and Colin Calhoun of Sobel, Poss & Moore were also part of the program. Baker Donelson's Matt Sweeney moderated the discussion.

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.

03 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
08 - 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


ROGER DAVID HYMAN v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Court: TN Supreme Court

Attorneys:

C. Phillip Carter, M.D., Knoxville, Tennessee, for the appellant, Roger David Hyman.

Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

Judge: HOLDER

A hearing panel of the Board of Professional Responsibility determined that a Knoxville attorney violated a number of the Rules of Professional Conduct and recommended his suspension from the practice of law for six months and his attendance at six hours of ethics and professionalism courses in addition to those mandated by Tennessee Supreme Court Rule 21, section 3.01. The attorney timely filed a petition for certiorari in the Circuit Court for Knox County under Tennessee Supreme Court Rule 9, section 1.3. In his petition, the attorney alleged that the hearing panel improperly considered his disciplinary history and that his six-month suspension was excessive. The circuit court affirmed the judgment of the hearing panel. After a thorough review of the record, we affirm.


WILLIAM H. MANSELL v. BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC ET AL.
CORRECTION: P.8, first full paragraph, six lines down under "B." heading: change "denying" to "depriving"; P. 8, footnote 3, line nine: change "W2009-1426" to "W2009-01426"; P.12, five lines down after the first block quote: change "MIR Registry" to "MIR registry".

Court: TN Supreme Court

Attorneys:

Daniel C. Todd, Nashville, Tennessee, for the appellant, Bridgestone Firestone North American Tire, LLC.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; and Alexander S. Reiger, Assistant Attorney General, for the appellant, State of Tennessee.

William J. Butler and E. Guy Holliman, Lafayette, Tennessee; and Debbie C. Holliman, Carthage, Tennessee, for the appellee, William H. Mansell.

Judge: WADE

After a benefit review conference in the Department of Labor and Workforce Development failed to produce a settlement, the employee filed suit for workers’ compensation benefits. Because the suit had already been filed, the trial court denied a request by the employer for an independent medical examination pursuant to the medical impairment rating (“MIR”) process in Tennessee Code Annotated section 50-6-204(d)(5) (2008 & Supp. 2012). After hearing all other proof relating to the claim, the trial court awarded compensation to the employee and questioned the constitutionality of the MIR process. The employer appealed; the Attorney General filed a brief as amicus curiae; and this Court vacated the judgment and remanded the cause for additional proceedings. On remand, the Attorney General was added as a defendant to address the constitutional issue. The trial court considered additional evidence, which included an MIR report by an independent medical examiner, and ruled that section 50-6-204(d)(5), which requires our courts to consider the opinion of an independent medical examiner appointed under that section as presumptively accurate, is an unconstitutional infringement upon the powers of the judiciary. In the alternative, the trial court held that the statutory presumption of the accuracy of the report, if compliant with constitutional principles, was overcome by the other medical evidence, and that the employee was entitled to a 10% permanent impairment rating rather than the 7% rating in the MIR report. In this appeal, the employer and the Attorney General argue that the statute meets constitutional standards. We hold that the MIR process does not violate constitutional principles, and we further find that the evidence did not clearly and convincingly rebut the statutory presumption. The judgment of the trial court is, therefore, reversed in part, and affirmed and modified in part. The cause is remanded for additional proceedings consistent with this opinion.


TN Court of Appeals

BRADFORD E. HOLLIDAY, ET AL. v. HOMER C. PATTON, ET AL.

Court: TN Court of Appeals

Attorneys:

Randall J. Fishman and Richard S. Townley, Memphis, Tennessee, for the appellants, Homer C. Patton and Jeffrey B. Presley.

Taylor A. Cates, Memphis, Tennessee, for the appellee, Bradford E. Holliday.

Clinton J. Simpson, Memphis, Tennessee, for the appellees, Michael A. Holliday and Clayton E. Holliday.

Judge: SWINEY

Bradford E. Holliday, Michael A. Holliday, and Clayton E. Holliday (collectively “Plaintiffs”) sued Homer C. Patton and Jeffrey B. Presley (collectively “Defendants”) for breach of contract and specific performance. Plaintiffs filed motions for summary judgment, which the Trial Court granted after finding and holding, inter alia, that the release provision contained in an amended agreement executed by Defendants “contains broad release language which the Court finds to be adequate to release claims of fraud asserted now by the Defendants in this action.” Defendants appeal to this Court raising issues regarding whether the release was sufficient to waive claims of fraud and whether the Trial Court erred in finding that Defendants could not have reasonably relied upon representations made by Bradford E. Holliday. We find and hold that the release language contained in the amended agreement was insufficient to release claims of fraud and that there are genuine issues of material fact as to the issue of reasonable reliance, and we reverse the grant of summary judgment. We, however, affirm that portion of the Trial Court’s order memorializing Defendants’ voluntary dismissal with prejudice of their counterclaims for fraud against Michael A. Holliday and Clayton E. Holliday.


JOHN PAYNE AS NEXT OF KIN ON BEHALF OF THE LEGAL MINOR HEIRS OF MARCUS K. PAYNE v. TIPTON COUNTY, TENNESSEE

Court: TN Court of Appeals

Attorneys:

Danese K. Banks and Ursula Y. Holmes, Memphis, Tennessee, for the appellant, John Payne, as next of kin on behalf of the legal minor heirs of Marcus K. Payne.

Brandon O. Gibson and Jon A. York, Jackson, Tennessee, for the appellee, Tipton County, Tennessee.

Judge: STAFFORD

This is a negligence case filed against Tipton County for injuries an inmate sustained as a result of a severe hypertensive crisis that occurred while he was confined in the Tipton County jail. The trial court denied the claim, finding that Tipton County did not breach the duty of care. Based on the evidence in the record, we reverse the decision of the trial court and remand this matter for consideration of damages. Reversed and remanded.


TONITA REEVES v. PEDERSON-KRONSEDER, LLC, d/b/a PEDERSON’S NATURAL FARMS, INC.

Court: TN Court of Appeals

Attorneys:

Phillip Leon Davidson, Nashville, Tennessee, for the appellant, Tonita Reeves.

Darrick Lee O’Dell, Nashville, Tennessee, for the appellee, Pederson-Kronseder, LLC, d/b/a Pederson’s Natural Farms, Inc.

Judge: CANTRELL

Employee and Employer were preparing to arbitrate Employee’s age discrimination claim when parties began discussing settlement. Employer was responsible for arbitration expenses and made an offer to settle Employee’s claim before incurring bulk of expenses. Employee was aware of Employer’s motivation to avoid paying these fees. Employee attempted to accept offer of settlement three days before arbitration was scheduled, which was after Employer was required to pay $9,000 deposit for arbitration and incurred other necessary expenses preparing for hearing. Employer informed Employee its offer had lapsed and was no longer open. Employee sued for breach of contract. Trial court found Employee did not accept Employer’s offer within reasonable period of time and that there was no settlement contract to enforce. Employee appeals trial court’s judgment. We affirm.


STANLEY DON RUNYON v. MELANIE FORTNER RUNYON

Court: TN Court of Appeals

Attorneys:

Larry Rice and Mary L. Wagner, Memphis, Tennessee, for the Defendant/Appellant, Melanie Fortner Runyon

Kimbrough B. Mullins and Charles M. McGhee, Memphis, Tennessee, for the Plaintiff/Appellee, Stanley Don Runyon

Daniel Loyd Taylor, Memphis, Tennessee, for the Guardian ad Litem, Lisa Zacharias

Judge: KIRBY

This is a Rule 10B appeal of the denial of a petition for recusal. In this divorce case, the trial court bifurcated the issues and conducted a 15-day evidentiary hearing solely on the parties’ parenting arrangement. Months later, the trial court entered an order designating the father as the primary residential parent and giving the mother supervised parenting time. The mother was denied permission for an interlocutory appeal from the parenting order. Several months after that, the mother discovered that, in the course of drafting the parenting order, the trial judge’s office had an ex parte exchange with the guardian ad litem to confirm a minor factual matter. The mother alleged that the trial judge had violated ethical rules against such ex parte communications and filed a motion asking the trial judge to recuse herself. The trial court denied the motion to recuse. The mother filed this accelerated interlocutory appeal of the denial of her recusal motion pursuant to Rule 10B of the Tennessee Supreme Court Rules. We decline to adjudicate whether there was a breach of any ethical rules. As to the trial judge’s denial of the motion for recusal, we affirm.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. JOSHUA MATTHEW CLINE

Court: TN Court of Criminal Appeals

Attorneys:

Roger Eric Nell, District Public Defender; and Crystal L. Myers, Assistant District Public Defender, Clarksville, Tennessee, for the appellant, Joshua Matthew Cline.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Robert J. Nash, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Joshua Matthew Cline, pleaded guilty to two counts of rape of a child. The trial court sentenced him to consecutive terms of twenty-five years in the Tennessee Department of Correction. On appeal, appellant argues that the trial court abused its discretion by imposing consecutive sentences. Following our review, we affirm the judgments of the trial court.


STATE OF TENNESSEE V. ROBERT DWIGHT DAVIS, ALIAS

Court: TN Court of Criminal Appeals

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Robert Dwight Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Randall Nichols, District Attorney General; and Leland Price, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Robert Dwight Davis, alias (“the Defendant”), pleaded guilty to one count each of possession with intent to sell cocaine with priors, aggravated burglary, attempted aggravated robbery, and criminal impersonation. Pursuant to the plea agreement, the Defendant was sentenced to an effective sentence of sixteen years, to be suspended on “enhanced probation.” Upon the filing of a probation revocation warrant, the Defendant was taken into custody, and a revocation hearing was held. At the conclusion of the hearing, the trial court revoked the Defendant’s probation and ordered him to serve his original sentence in confinement. The Defendant timely appealed the trial court’s ruling. Upon a thorough review of the record, we affirm the trial court’s judgment.


MARTHA ANN FREEMAN v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Jodie Ann Bell, Nashville, Tennessee, for the Petitioner, Martha Ann Freeman.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Katrin Novak Miller, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Martha Ann Freeman, appeals from the Davidson County Criminal Court’s denial of her petition for post-conviction relief from her conviction for first degree murder, for which she is serving a life sentence. She contends that trial counsel provided the ineffective assistance of counsel in the plea bargaining process. We affirm the judgment of the trial court.


MARCUS JOHNSON v. STATE OF TENNESSEE
CORRECTION:: First page, last paragraph, line 1 "September 2102 to September 2012".

Court: TN Court of Criminal Appeals

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Marcus Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Marcus Johnson, appeals as of right from the Knox County Criminal Court’s dismissal of his petition for post-conviction relief. The Petitioner contends that the postconviction court erred by dismissing his petition as having been untimely filed. Discerning no error, we affirm the judgment of the post-conviction court.


JIMMIE R. ROBINSON, SR. v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

James R. Hickman, Jr., Sevierville, Tennessee, for the appellant, Jimmie R. Robinson, Sr.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; James B. Dunn, District Attorney General; and George Ioannides, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Jimmie R. Robinson, Sr., (“the Petitioner”) pleaded guilty to second degree murder after he shot and killed his son-in-law. The plea agreement provided for a sentence of seventeen years and six months in prison. The Petitioner subsequently filed a petition for postconviction relief on the grounds that his guilty plea was the product of ineffective assistance of counsel and that his plea was constitutionally infirm. After an evidentiary hearing, the post-conviction court denied relief, and this appeal followed. Upon our thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.


DOMINIQUE SIMONS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Dominique Simons, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel Harmon, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Appellant appeals the trial court’s summary dismissal of his motion to withdraw his guilty plea. The ruling of the trial court is affirmed.


ROLLY WILLIAM WHITFORD v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the Appellant, Rolly William Whitford.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Rolly William Whitford, pled guilty to sexual battery and rape, with the trial court to determine the length and manner of service of his sentence. The trial court imposed an effective sentence of twelve years, to be served in the Tennessee Department of Correction. This Court affirmed the Petitioner’s sentence on appeal. State v. Rolly William Whitford, No. M2009-02525-CCA-R3-CD, 2011 WL 255310 at *1 (Tenn. Crim. App., at Nashville, Jan. 20, 2011), perm. app. denied (Tenn. May 25, 2011). The Petitioner timely filed a petition seeking post-conviction relief, asserting that his guilty plea was not entered knowingly and voluntarily, which the post-conviction court denied after a hearing. The Petitioner now appeals, maintaining that his guilty pleas were not entered knowingly and voluntarily because he was never advised of the lifetime supervision requirement for sex offenders. After a thorough review of the record, the briefs, and relevant authorities, we affirm the post-conviction court’s judgment.


STATE OF TENNESSEE v. JIMMY WAYNE WILSON

Court: TN Court of Criminal Appeals

Attorneys:

Jimmy W. Wilson, pro se, Wartburg, Tennessee, as the appellant.

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

Judge: BIVINS

Jimmy Wayne Wilson (“the Defendant”) was convicted by a jury in 1985 of committing a rape in 1984. The jury also determined the Defendant to be an habitual criminal, and the Defendant, accordingly, was sentenced to life imprisonment. In this proceeding, the Defendant is attacking his sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court summarily denied the Defendant’s motion, and this appeal followed. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgment.


2nd Rape Kit Lawsuit Names More Officials

A second federal lawsuit over the Memphis Police Department’s backlog of 12,000 untested rape kits was filed last week and casts a wider net of defendants, including the current and former Memphis police directors and the current and former district attorneys general, the Memphis Daily News reports. Like the first suit, however, it seeks more information about how the backlog came to exist. Lawyers representing the three rape victims bringing the suit have their own ideas about how that happened though, suggesting that the city had no effective system to organize and preserve rape kits that were taken as well as those that were processed.


Judge to Decide If Court Clerk Staff is Immune from Liability

Knoxville Circuit Court Judge Harold Wimberly’s ruling in the wrongful arrest of a local woman will set the stage for future lawsuits against the county in the wake of revelations that mistakes made by the Knox County Criminal Court Clerk’s office had led to wrongful arrests, unlawful detentions and improper suspension of drivers licenses. The county is seeking to dismiss the suit, aruging that government employees are immune from liability when they are carrying out routine functions of their jobs — even if they were negligent.


Memphis Judges Recuse Themselves from Brown's Case

All 10 criminal court judges in the 30th Judicial District have recused themselves from hearing former Shelby County judge and TV personality Joe Brown’s contempt-of-court case, the Commercial Appeal reports. The judges cite Brown’s former role as a local judge as the reason. The contempt case was originally set to be heard on April 4 but has been postponed until the state Supreme Court can appoint a special judge. Brown was charged with contempt after an outburst before Juvenile Court Magistrate Harold “Hal” Horne last week. Brown called the court “a circus” and a “sorry operation.” In related news, the Memphis Daily News looks at how the charge may affect Brown's campaign and the larger Democractic Party's election chances.


Dickel Distillery Sues Tennessee Over Storage Law

Diageo Americas Supply Inc., owner of the George Dickel whiskey brand, has filed suit against Tennessee over a decades-old law governing the storage of spirits, the Tennesean reports. Since 1937, Tennessee has required distillers to store their spirits in the county in which they were produced. In 2013, the law was amended to allow distillers to also store spirits in adjoining counties. The George Dickel Distillery in Tullahoma has been in operation for more than 130 years, and though it stores most of its liquor on site, it has transported some of its spirits to Louisville, Ky. On March 20, the Tennessee Alcoholic Beverage Commission advised the company it was in violation of the law. Diageo is challenging the law saying it violates the U.S. Constitution’s interstate commerce clause. Diageo is also at odds with Jack Daniel's over the definition of Tennessee whiskey. A bill that would have modified the current definition was tabled this session.


Church Sues Online Marketing Partners

The United Methodist Church is suing former marketing partners Foundation Automation and Zebraplace after a failed joint venture to create an online donations portal and shopping site, the Nashville Post reports. The church ended its agreement with the partners after they failed to make scheduled payments. Now, the church is also trying to get back access to the UMCMarket.org domain name and stop the companies from using certain trademarks — among them "UMC" and the church's cross and flame logo.


No Raise for Teachers, State Employees, Haslam Says

With sales and business tax revenues down, Gov. Bill Haslam said today he will not be able to give state employees and teachers a pay increase next year, Knoxnews reports. The announcement came as part of a discussion of the governor’s budget proposal.


Court Upholds Knoxville Attorney’s 6-Month Suspension

The Tennessee Supreme Court unanimously upheld the six-month suspension of Knoxville attorney Roger D. Hyman in an opinion released today. In 2010, the Board of Professional Responsibility (BPR) filed a petition for discipline against Hyman based on complaints that he communicated with a person who he knew was represented by counsel, threatened a litigant, filed a lien against a litigant that was later declared void, failed to appear at a hearing and failed to timely pay sanctions. In 2011, a hearing panel found that Hyman showed a “complete disregard for the Rules” and imposed the suspension. Hyman appealed to the Knox County Circuit Court and to the Supreme Court, which both upheld the hearing panel’s decision.


Bailey Files for Circuit Court Return

Former Shelby County Circuit Court Judge D’Army Bailey filed a qualifying petition last week to run for Circuit Court, Division 3, in the August judicial elections. Candidates have until April 3 to file for the nonpartisan election. The Memphis Daily News reports that Bailey had also picked up a petition for Division 1 but apparently decided against it. Bailey is one of 10 possible candidates who pulled petitions to run in Division 3, but was the first to file for the office.


Cantrell Announces for Chancellor's Race

Longtime Anderson County attorney Nicki Cantrell has never run for political office before but says that makes her a better choice than either of her opponents, Michael Farley and Phil Harber. The three will face off in the May 6 Republican primary for the nomination for Judicial District 7 Chancellor. The winner will replace Democrat Bill Lantrip, who is retiring, Knoxnews reports.


Sugarmon Opens Juvenile Court Campaign

Memphis City Court Judge Tarik Sugarmon says the Memphis-Shelby County Juvenile Court is “administratively top-heavy” and too expensive to operate but that he will change that if elected. Sugarmon made the comments as he filed his petition to run in the August election for juvenile judge, the Memphis Daily News reports. Sugarmon also said he plans to talk about problems with the court that were identified by the U.S. Justice Department, including lack of due process, disproportionately harsher punishments for minorities and a greater number of minority youth transferred to adult court. Sugarmon will face Juvenile Court Chief Magistrate Dan Michael in the nonpartisan race for the position, now held by outgoing Judge Curtis Person.


Davidson County Lawyer Moved to Disability Inactive Status

The Tennessee Supreme Court transferred the law license of Davidson County lawyer Barrett B. Sutton Jr. to disability inactive status on March 28. While on inactive status, Sutton may not practice law. However, he may return to the practice of law after showing by clear and convincing evidence that the disability has been removed and he is fit to resume practicing. Download the BPR notice.


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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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