Governor Signs 3 TBA Bills; Others on the Way

All of the TBA's legislative initiatives have passed both houses of the General Assembly, and three have been signed by the governor. The statute of repose for legal malpractice was signed by Gov. Haslam and will take effect July 1, as will TBA's family law bill enhancing parental rights concerning custody orders and a bill clarifying liability obligations in a limited liability partnership. Two more measures, the revision to the nonprofit corporations act and changes to the probate law are headed to the governor's desk for signature. Check TBAImpact for other bills we are tracking this session.

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
01 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
08 - TN Court of Appeals
05 - 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 Workers Comp Appeals

LARRY O. EVANS v. FIDELITY & GUARANTY INSURANCE COMPANY ET AL.

Court: TN Workers Comp Appeals

Attorneys:

Barry H. Medley, McMinnville, Tennessee, for the appellant, Larry O. Evans.

Timothy Pirtle, McMinnville, Tennessee, for the appellees, Fidelity & Guaranty Insurance Company and Batesville Logistics, Inc.

Judge: SUMMERS

An employee sustained a compensable injury. The trial court ruled that the employee’s partial disability award should be apportioned to the arm. The employee has appealed, asserting that the award should have been apportioned to his thumb. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Supreme Court Rule 51. We affirm the judgment.


TN Court of Appeals

WILLIAM E. CHERRY ET AL. v. REAGAN FARR, COMMISSIONER OF THE DEPARTMENT OF REVENUE FOR THE STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General, and Brad H. Buchanan, Senior Counsel, Nashville, Tennessee, for the appellant, Reagan Farr, Commissioner of the Department of Revenue for the State of Tennessee.

David J. Callahan, III, Nashville, Tennessee, for the appellees, William E. Cherry and Anne. W. Cherry.

Judge: CLEMENT

Plaintiffs filed suit to recover income taxes paid under protest pursuant to Tennessee’s Hall Income Tax. At issue is a “Special Dividend” Plaintiffs received that was classified by the corporation for income tax purposes as a return of “paid-in capital.” Plaintiffs contend the Special Dividend was exempt because the Hall Income Tax states, in pertinent part, that “no distribution of capital shall be taxed as income under this chapter, and no distribution of surplus by way of stock dividend shall be taxable in the year such distribution is made; but all other distributions out of earned surplus shall be taxed as income when and in whatever manner made, regardless of when such surplus was earned[.]” Tenn. Code Ann. § 67-2-104(e)(7) (2011). The trial court ruled in favor of Plaintiffs based upon a finding that “[t]he Special Dividend was not a leveraged dividend and as such the reduction in book value could have only come through a return of capital distribution.” We have determined the mere fact the dividend was not a leveraged dividend is not sufficient to prove the dividend was exempt from the Tennessee Hall Income Tax. To qualify for the exemption, Plaintiffs had the burden to prove the Special Dividend was paid out of capital. See Tenn. Code Ann. § 67-2-104(e)(7). We, therefore, reverse and remand for entry of judgment in favor of the Department of Revenue and for other proceedings consistent with this opinion.


RONALD LAMPLEY, ET AL. V. TOWN OF CHAPEL HILL, TENNESSEE, ET AL.

Court: TN Court of Appeals

Attorneys:

Vic L. McConnell, Joshua K. Chesser, Nashville, Tennessee, for the appellants, Ronald Lampley and Ron Lampley Construction, Inc.

Todd Moore, Matthew J. Crigger, Franklin, Tennessee, for the appellee, Town of Chapel Hill, Tennessee.

Judge: CANTRELL

A real estate developer entered an agreement with the Town of Chapel Hill to purchase sewer and water taps in exchange for the Town’s extension of a sewer line to the developer’s property. The developer paid the money and the Town extended the line, as agreed. Developer later lost the property through foreclosure before development occurred. When the property was sold to a third party, the Town transferred the sewer and water taps to the purchasers. The developer filed a complaint alleging the Town breached the agreement by transferring taps that belonged to the developer to the third party purchasers. The Town denied it breached the agreement and moved for summary judgment. The trial court granted the Town’s motion for summary judgment and the developer appealed. We affirm. The agreement evidences the parties’ intention that the sewer and water taps were to be used in connection with the development of the property the developer owned when the agreement was executed. When the developer lost the property through foreclosure, the developer had no more interest in the taps.


QUI PHAM v. TENNESSEE BOARD OF PROBATION AND PAROLE, ET AL.

Court: TN Court of Appeals

Attorneys:

Qui Pham, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Bill Young, Solicitor General; and Jennifer L. Brenner, Senior Counsel; Nashville, Tennessee, for the appellee, Tennessee Board of Probation and Parole, and Ronnie Cole, Board Member.

Judge: DINKINS

Inmate filed petition for writ of certiorari seeking review of decisions of the Board of Parole denying him parole and setting a two year period for his next consideration. Trial court dismissed petition; finding no error, we affirm the decision.


JOSEPH E. RICH, M.D. v. DAN WARLICK

Court: TN Court of Appeals

Attorneys:

G. Kline Preston, Nashville, Tennessee, for the appellant, Joseph E. Rich.

Byron K. Lindberg, Nashville, Tennessee, for the appellee, Dan Warlick.

Judge: COTTRELL

A doctor who became the subject of disciplinary proceedings by the Tennessee Medical Examiners Board filed a complaint for legal malpractice against the attorney who had represented him in those proceedings. The doctor asserted that the Board suspended his medical license for one year as a result of numerous acts of professional negligence by the attorney. The attorney filed a motion for summary judgment, denying that he was guilty of any professional negligence and contending that in any case, the doctor’s complaint was barred by the one-year statute of limitations for legal malpractice. The trial court granted partial summary judgment to the attorney on the basis of the statute of limitations. The court ruled that the doctor suffered a legally cognizable injury when the attorney failed to disclose a list of proposed witnesses to the Administrative Law Judge assigned to conduct the evidentiary hearing, which was more than one year earlier than the doctor’s filing of his legal malpractice complaint. The court accordingly held that the attorney could not be held liable for his failure to disclose the witnesses, or for any other acts that occurred more than one year prior to the filing of the malpractice complaint. The court certified its judgment as final for purposes of appeal under Tenn. R. Civ. P. 54.02. We affirm.


MICHAEL W. SMITH v. KIMBERLY CHRESTMAN

Court: TN Court of Appeals

Attorneys:

Michael W. Smith, Whiteville, Tennessee, appellant, pro se.

No Brief filed by Kimberly D. Chrestman, Olive Branch, MS, appellee, pro se.

Judge: HIGHERS

The trial court dismissed Appellant’s complaint for lack of prosecution. Finding no abuse of discretion, we affirm.


TERESA LEE WALKER v. LARRY ALAN WALKER

Court: TN Court of Appeals

Attorneys:

Samuel A. Byrd and Clancy J. Covert, Chattanooga, Tennessee, for the appellant, Teresa Lee Walker.

James S. Smith, Jr., Rockwood, Tennessee, for the appellee, Larry Alan Walker.

Judge: MCCLARTY

This post-divorce appeal concerns the equitable division of property between the Parties. Following the grant of the request for divorce, the trial court credited Husband for separate property he contributed to the marital residence to equalize the overall division of the property. Wife appeals. We affirm the decision of the trial court.


CINDY WHEATLEY, ET AL. v. ROBERT J. MARTINEAU, ET AL.

Court: TN Court of Appeals

Attorneys:

W. Scott Sims, Jason W. Callen, Michael K. Stagg, Lauran M. Sturm, Nashville, Tennessee, for the appellant, Environmental Waste Solutions, LLC.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Wilson S. Buntin, Assistant Attorney General, Nashville, Tennessee, for the appellant, Robert J. Martineau, Jr., Commissioner, Tennessee Department of Environment and Conservation.

W. David Bridgers and J. Isaac Sanders, Nashville, Tennessee, for the appellee, Benton County, Tennessee.

Geoffrey A. Lindley, Jackson, Tennessee, for the appellee, City of Camden, Tennessee.

Elizabeth L. Murphy, Nashville, Tennessee, for the appellees, Cindy Wheatley, Johnny Wheatley, Joe Whitworth, Michael Melton, and Mark Totty.

Judge: DINKINS

This appeal arises from a certiorari proceeding instituted in December of 2011 in which owners of property adjoining a landfill sought review of the Commissioner of the Tennessee Department of Environment and Conservation’s decision in October 2011 to issue a modification of a permit to operate a Class II disposal facility which was issued in 2008. The trial court held that the approval of the modification in 2011 was invalid because it was grounded on the 2008 permit, which the court also held to be invalidly approved; the court ordered the Commissioner to take action to void the 2008 permit and 2011 modification. The Commissioner and landfill owner appeal the holding that the 2008 permit and 2011 modification are null and void; adjoining landowners appeal the denial of their request for injunctive relief and ask this court to decide two issues which the trial court did not address. We conclude that the trial court lacked subject matter jurisdiction to review the issuance of the 2008 permit and to declare it void; that the Commissioner’s authority to approve the 2011 modification was not conditioned on the expansion project being approved by the city and county legislative bodies; that the landfill owner was not required to submit the 2011 modification application to the regional solid waste board prior to securing the Commissioner’s approval; and that the Commissioner had no duty to require that the material to be placed in the landfill be determined not hazardous prior to approving the modification. Accordingly, we reverse the judgment of the trial court and dismiss the petition.


ELIZABETH BRECKINRIDGE WHEELER v. JOSEPH ROBERT WHEELER

Court: TN Court of Appeals

Attorneys:

James L. Weatherly, Jr., Nashville, Tennessee, for the appellant, Joseph Robert Wheeler.

Andree Kahn Blumstein, Marlene Eskind Moses, Marissa Moses Russ, and April N. Watkins, Nashville, Tennessee, for the appellee, Elizabeth Breckinridge Wheeler.

Judge: CLEMENT

Following a 26-year marriage, Wife was granted a divorce, designated the primary residential parent of their children and given sole decision making authority for the minor children’s education, health and medical care, and extracurricular activities; Husband was ordered to pay child support, pendente lite support of $7,000 per month, post-divorce support at the same rate as pendente lite support until the marital residence was sold, transitional alimony of $3,600 for 48 months commencing upon the sale of the marital residence, and $25,000 of Wife’s attorneys’ fees. The parties’ separate and marital assets were classified, and the marital assets and debts were divided. Husband appeals, challenging Wife’s designation as the sole decision making authority for the children’s educational and extracurricular activities, the amount of Wife’s income for purposes of child support, the awards for pendente lite support, the indefinite award of post-divorce support and the additional award of transitional alimony for 48 months. Husband also challenges the classification and division of the marital estate, including holding him liable for one-half of the $335,000 home equity line of credit debt, most of which was incurred during the pendency of the divorce, and the award of attorneys’ fees to Wife. We have determined that Wife is not entitled to receive post-divorce support of $7,000 per month in addition to the award of transitional alimony of $3,600 for a term of 48 months; therefore, we reverse the indefinite post-divorce support award of $7,000 per month. We also modify the award of transitional alimony of $3,600 per month, reducing the term from 48 months to 24 months with the term commencing upon the entry of the Final Decree of Divorce. We affirm the trial court in all other respects. As for Wife’s request to recover the attorneys’ fees she incurred on appeal, we respectfully deny that request.


TN Court of Criminal Appeals

KRISTI KIMBRO v. BRENDA JONES, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Kristi Kimbro, Memphis, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; and Amy P. Weirich, District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Kristi Kimbro, pled guilty to second degree murder and was sentenced to thirty-seven years in the Tennessee Department of Correction. Subsequently, she filed a petition for writ of habeas corpus, alleging that her sentence was void. The habeas corpus court denied the petition, and the petitioner now appeals. Upon review, we affirm the judgment of the habeas corpus court.


STATE OF TENNESSEE v. SHARRON JOY MAYBERRY

Court: TN Court of Criminal Appeals

Attorneys:

Drew W. Taylor (on appeal) and Dawn Kavanagh (at trial), Ashland City, Tennessee, for the appellant, Sharron Joy Mayberry.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel; Dan Mitchum Alsobrooks, District Attorney General; and E. Dani Bryson and Craig Monsue, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Humphreys County Circuit Court Jury convicted the appellant, Sharron Joy Mayberry, of simple possession of a Schedule III controlled substance, a Class A misdemeanor, and the trial court sentenced her to eleven months, twenty-nine days suspended to probation and community service. On appeal, the appellant contends that the trial court erred by denying her motion to suppress evidence, that the trial court erred by not giving a missing evidence jury instruction, and that the evidence is insufficient to support the conviction. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. JAMES MELTON

Court: TN Court of Criminal Appeals

Attorneys:

J. Thomas Marshall, Jr., District Public Defender; and Nancy Meyer, Assistant District Public Defender, Clinton, Tennessee, for the Defendant-Appellant, James Melton.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; David S. Clark, District Attorney General; and Sandra Donaghy, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, James Melton, appeals the trial court’s revocation of his probation and reinstatement of his original six-year sentence in the Department of Correction. On appeal, Melton argues that the trial court based its decision on improper evidence and refused to admit proper evidence. The State responds that there is substantial evidence in the record to support the trial court’s order of revocation. Upon our review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. GEVON CORTEZ PATTON

Court: TN Court of Criminal Appeals

Attorneys:

John S. Anderson, Rogersville, Tennessee, for the appellant, Gevon Cortez Patton.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; C. Berkeley Bell, Jr., District Attorney General; and Victor Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

A Hamblen County jury convicted Gevon Cortez Patton of especially aggravated kidnapping and criminally negligent homicide. The trial court sentenced him to an effective sentence of twenty-five years in the Tennessee Department of Correction. On appeal, appellant argues that the evidence was insufficient to support his convictions, that the trial court erred in admitting into evidence the transcript of appellant’s juvenile court transfer hearing, that the trial court erred by forcing appellant’s brother to testify and then declaring him unavailable when he refused to testify, that the trial court erred by admitting an exhibit into evidence when the State had not proven the chain of custody, and that the trial court erred in its sentencing of appellant. Following our review, we affirm the judgments of the trial court.


RICHARD PRICE v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

James E. Thomas, Memphis, Tennessee, for the appellant, Richard Price.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy P. Weirich, District Attorney General; and David Michael Zak, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Richard Price, appeals as of right from the Shelby County Criminal Court’s dismissal of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective (1) for failing to communicate a plea offer from the State; and (2) for failing to request a curative jury instruction after a police officer testified that he “attempted to talk to” the Petitioner about the offense. Following our review, we affirm the judgment of the post-conviction court.


Nashville Lawyers Form New Litigation Firm

Former Nashville Bar Association (NBA) President Scott Sims of Walker Tipps & Malone and Sherrard & Roe litigation practice head Sam Funk are forming a new firm, the Nashville Post reports. Sims Funk PLC will open its doors at 3310 West End Ave. on Thursday. Funk said the new firm will begin with just the two litigators and "a lot of the same clients" they have represented. Funk has been with Sherrard since 1998. He was named head of the litigation practice in 2012. Sims served as the president of the NBA in 2008. He also is a past president of the NBA Young Lawyers Division and Middle Tennessee Governor for the TBA YLD. Both Funk and Sims were members of the TBA’s inaugural Leadership Law class.


Scalia Delivers UT Law Rose Lecture

Supreme Court Justice Antonin Scalia yesterday delivered what he referred to as his “stump” speech to roughly 1,000 people in Cox Auditorium at the University of Tennessee as part of the College of Law’s annual Rose Lecture. He discussed the famous 1986 flag-burning case, First Amendment rights and his position as an “originalist” — someone who interprets the U.S. Constitution as the founding fathers intended it, not as a “living” document that evolves with society. Scalia’s delivery of the Rose Lecture marked the third visit by a sitting Supreme Court justice in the past four years. Knoxnews has more.


Pilot Raid Anniversary is 'Embarrassing and Humbling'

On the one-year anniversary of the day the FBI raided Pilot Flying J’s Knoxville headquarters, Aubrey Harwell — attorney for CEO Jimmy Haslam — said Haslam is no longer a target in the federal investigation but there may be future indictments against other Pilot employees. This week Haslam issued an anniversary statement and called April 15, 2013, an "extremely embarrassing and humbling day" and the company has tried to "make things right." WBIR News 10 has the story.


Barnes to Lead Association of Legal Administrators

Burr & Forman’s Paula K. Barnes will take over as president of the Association of Legal Administrators when the group convenes its annual meeting next month in Toronto. The legal administrator for the firm’s Nashville office, Barnes will be the first Nashville resident to head the 10,000-member organization. She has been at Burr & Forman since it opened its Nashville office in 2006. In 2015, the group will meet in Nashville.


What Happens When a Lawyer Gets in Trouble?

Following Knoxville attorney Bruce Poston’s arrest yesterday, WBIR News 10 anchor Robin Wilhoit sat down with University of Tennessee College of Law professor Dwight Aarons to learn more about the consequences lawyers may face when they are convicted of a crime. Aarons said lawyers with active cases should notify clients of their arrest and discuss whether or not the clients want continued representation. A lawyer's arrest also can affect previous cases, Aarons says, if former clients unhappy with their outcomes argue the lawyer did not give his full and best effort due to the alleged criminal activity.


Early Voting Starts Today

Early voting began today in Republican and Democratic primaries. Election Day is May 6. Winning in May means advancing to general elections in August. In Shelby County, voters will decide who holds 11 countywide offices, including Shelby County mayor and district attorney general, as well as 13 seats on the Shelby County Commission, the Memphis Daily News reports. Offices on the ballot in Sumner County include several 18th Judicial District posts as well as two General Sessions judgeships.  Visit the Tennessean to learn more about the Sumner County candidates and for more election coverage. 


Tracy Leads Incumbent DesJarlais in Fundraising

Republican state Sen. Jim Tracy has maintained his campaign fundraising lead over incumbent Rep. Scott DesJarlais, according to the candidates’ latest disclosures to the Federal Election Commission. From Jan. 1 through March 31, Tracy reported raising $172,061 while DesJarlais reported raising $76,102. The Chattanooga Times Free Press has more.


House Approves Electrocution Bill

The Capital Punishment Enforcement Act, which would allow the state Department of Correction to use the electric chair for executions if lethal injection chemicals are unavailable, passed in the House by a 68-13 vote, the Tennessean reports. HB 2476 sponsored by state Rep. Dennis Powers, R-Jacksboro, allows the department to petition the governor to use the electric chair if it is unable to obtain the proper chemicals for administering a lethal injection. Having passed the Senate last week 23-3, the bill now heads to Gov. Bill Haslam. State Attorney General Robert Cooper issued an opinion in March that deemed the bill constitutionally defensible, the Nashville Scene notes.


Tenn. House Votes to Express Regret for Slavery, Trail of Tears

The state House has voted to express "profound regret" for slavery and segregation in Tennessee, but stopped short of an outright apology. The chamber voted 97-0 in favor of the resolution sponsored by Democratic Rep. Mike Turner of Nashville, but the Republican-controlled chamber removed language from the original resolution that sought to offer "profound apologies" for slavery. The slavery measure followed the unanimous approval earlier in the session of a resolution expressing regret for the forced removal of more than 15,000 Native Americans in the 1830s. The Trail of Tears resolution was later approved by the Senate and signed by Gov. Bill Haslam yesterday. The Chattanooga Times Free Press has more from the Associated Press.


House Investigating Haslam’s Role in VW Vote

Democrats in the U.S. House today opened an “inquiry” into whether Tennessee Gov. Bill Haslam’s administration might have violated federal labor law by attempting to tie state incentives for expansion of the Chattanooga Volkswagen plant to the outcome of an election over representation by the United Auto Workers union. The probe is yet another chapter in the ongoing debate over whether Republican officials, including Haslam and U.S. Sen. Bob Corker, may have interfered in the February election in which workers voted 712-626 to reject the UAW, the Tennessean reports.


Court to Weigh Challenge to Ban Campaign Lies

As political campaigns begin to heat up, the U.S. Supreme Court is deciding whether false accusations and mudslinging made during an election can be punished as a crime. Next week, justices will consider a challenge to an Ohio law that bars false statements about political candidates, WATE reports. During the 2010 election, the Susan B. Anthony List, an anti-abortion group, planned to launch a billboard campaign accusing then-Democratic Rep. Steven Driehaus of supporting taxpayer-funded abortion because he backed President Barack Obama's health care overhaul. Driehaus urged the Ohio Elections Commission to block the ads, arguing that the proposed billboard was false under Ohio law. Given the threat of legal action, the billboard owner declined to run the ad.


Dyer County Lawyer Reinstated

The Supreme Court on April 14 reinstated Martin Lynn Howie to the practice of law subject to several conditions, including the use of a practice monitor and continued compliance with his TLAP monitoring agreement. Howie had been suspended for three years, with one year to be served as an active suspension, retroactive to Feb. 8, 2011. View 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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