Gov. Shows Support for 2 in Online Video

Gov. Bill Haslam followed yesterday’s launch of the Yes on 2 Campaign with the release of an online video in support of Constitutional Amendment 2 or the Judicial Selection Amendment. He also today unveiled a new Yes On 2 Campaign website. Democratic former governor Phil Bredesen and Republican former senator Fred Thompson also showed their support for the amendment with in an op-ed piece in the Tennessean.

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.

01 - TN Supreme Court
01 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
04 - TN Court of Criminal Appeals
03 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









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TN Supreme Court

RICHARD THURMOND v. MID-CUMBERLAND INFECTIOUS DISEASE CONSULTANTS, PLC ET AL.
CORRECTION: On pages 4, 7, 10 and 12 of the opinion, "HIPAA" has been substituted for "HIPPA".

Court: TN Supreme Court

Attorneys:

Henry S. Queener, Nashville, Tennessee, for the appellant, Richard Thurmond.

Suzanne M. Pearson, Dan L. Nolan, and Erik Fuqua, Clarksville, Tennessee, for the appellees, Mid-Cumberland Infectious Disease Consultants, PLC, and Simi Vincent, M.D.

W. Bryan Smith, Memphis, Tennessee, for the amicus curiae, Tennessee Association for Justice.

Judge: CLARK

Sixty days prior to filing his complaint, the plaintiff in this health care liability action sent written notice of his potential claim to each of the health care providers that would be named as defendants. Tenn. Code Ann. § 29-26-121(a)(1) (2012 & Supp. 2013). The plaintiff served the pre-suit notice by certified mail, return receipt requested, as permitted by statute. Id. § 29-26-121(a)(3)(B). In his subsequent complaint, the plaintiff alleged that he had complied with the statutory requirement of pre-suit notice, id. § 29-26-121(b), but the plaintiff failed to file with the complaint “an affidavit of the party mailing the [pre-suit] notice establishing that the specified notice was timely mailed by certified mail, return receipt requested,” id. § 29-26-121(a)(4). The defendants moved for dismissal of the lawsuit, citing the plaintiff’s failure to file with the complaint an affidavit of the person who had sent the pre-suit notice by certified mail. The defendants did not allege that the lack of the affidavit resulted in prejudice. Instead, the defendants contended that the pre-suit notice statute demands strict compliance with all its requirements and that dismissal is the mandatory remedy for noncompliance. The trial court “reluctantly” agreed with the defendants and dismissed the complaint. The Court of Appeals affirmed but noted the “harsh results” strict compliance produces in cases, such as this one, where no prejudice is alleged. We granted the plaintiff’s application for permission to appeal. We hold that the statutory requirement of an affidavit of the person who sent pre-suit notice by certified mail may be satisfied by substantial compliance. We also hold that the plaintiff substantially complied with the statute. Accordingly, the judgment of the Court of Appeals affirming the trial court’s dismissal of the complaint is reversed; the complaint is reinstated; and this matter is remanded to the trial court for further proceedings.


TN Workers Comp Appeals

BOBBY R. BEAN v. JOHNSON CONTROLS, INC. ET AL.

Court: TN Workers Comp Appeals

Attorneys:

Catherine C. Dugan, Nashville, Tennessee, for the appellants, Johnson Controls, Inc. and Indemnity Insurance Company of North America.

Steve C. Norris, Nashville, Tennessee, for the appellee, Bobby R. Bean.

Judge: KOCH

This appeal involves the compensability of an alleged aggravation of a pre-existing degenerative back condition. After the employee began experiencing increased and more severe pain in his back, he filed a workers’ compensation claim in the Chancery Court for Marshall County against his employer, its insurer, and the Second Injury Fund. Following a bench trial, the trial court awarded the employee temporary total and permanent partial disability benefits. The employer’s 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 pursuant to Tenn. Sup. Ct. R. 51. We affirm the judgment of the trial court.


TN Court of Appeals

HANNAH ANN CULBERTSON v. RANDALL ERIC CULBERTSON

Court: TN Court of Appeals

Attorneys:

Rachael E. Putnam and Austin T. Rainey, Memphis, Tennessee, for the Defendant/Appellant, Randall Eric Culbertson

Amy J. Amundsen and Mary L. Wagner, Memphis, Tennessee, for the Plaintiff/Appellee, Hannah Ann Culbertson

Judge: KIRBY

This is the second extraordinary interlocutory appeal in this divorce case and custody dispute. In the first appeal, this Court held that the father did not automatically waive the psychologist-client privilege as to his mental health records by seeking custody or by defending against the mother’s claims that he was mentally unfit. While the first appeal was pending, the mother filed a motion asking the trial court to require the father to undergo a second mental health evaluation pursuant to Tenn. R. Civ. P. 35; the trial court granted the motion. The Rule 35 evaluating psychologist concluded that the father did not pose a danger to his children. Dissatisfied with this conclusion, the mother again asked the trial court to compel the father to produce all of the mental health records from his treating psychologists. After this Court rendered its decision in the first appeal, the trial court granted the mother’s request and again ordered the father to produce all of the mental health records from his treating psychologists. The trial court reasoned that the father waived the psychologist-client privilege as to all of his mental health records by allowing the evaluating psychologists to speak to his treating psychologists, by providing mental health records to the evaluating psychologists, and by testifying that he had a history of depression and had undergone treatment for it. It also ordered the father to produce all of his mental health records because the mother needed them to prepare her case. The father filed a request for a second extraordinary appeal, which this Court granted. We vacate the trial court’s order as inconsistent with this Court’s holding in the first appeal; we hold that there was at most a limited waiver of the psychologist-client privilege, only as to the privileged mental health information that the father voluntarily disclosed to the two evaluating psychologists involved in this case. As for mental health records not subject to a limited waiver of the privilege, we hold that the standard for the trial court to compel disclosure of the records is not met in this case. We remand the case for factual findings on any privileged mental health records the father voluntarily disclosed and other proceedings consistent with this opinion.


APRIL MILLER, ET AL. v. NORTHLAND INSURANCE COMPANY

Court: TN Court of Appeals

Attorneys:

D. Michael Kress, II, Sparta, Tennessee, for the appellant, April and Roger Miller.

B. Thomas Hickey, Jr., Chattanooga, Tennessee and Scott W. McMickle and Jon M. Hughes, Alpharetta, Georgia, for the appellee, Northland Insurance Company.

Judge: BENNETT

A commercial truck driver was injured while sitting in the passenger seat with another person driving. The question presented is whether the passenger qualified as an employee and was, therefore, excluded from benefits under the trucking company’s liability insurance policy. We agree with the trial court’s conclusion that the passenger was an employee when the accident occurred.

LESTER G. MURPHY, SR. V. STATE OF TENNESSEE CHILD SUPPORT SERVICES

Court: TN Court of Appeals

Attorneys:

Lester G. Murphy, Sr., Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Warren A. Jasper, Senior Counsel; R. Stephen Powers, Assistant District Attorney, Ashland City, Tennessee, for the appellee, Tennessee Department of Human Services, Child Support Division.

Judge: COTTRELL

A mother and father divorced and the trial court ordered the father to pay the mother $50 a week as support for their two children. The children subsequently came into the legal custody of their maternal grandfather, but the court did not order support. Ten years later, the Tennessee Department of Children’s Services filed a petition to set child support against the father. After a hearing which the father did not attend, the trial court increased his child support obligation to $333 a month and declared that he owed back support of $31,635, which he was ordered to pay in monthly installments. Four years later, the father, acting pro se, filed a petition to modify the support order. The trial court dismissed the father’s petition, declaring only that its previous order was a valid one. Because there was an existing support order for the two children, the appropriate proceeding would have been one to modify that order. The requirements for modification were not met, and the trial court exceeded its authority by assessing an arrearage based upon an amount different from the amount set in the existing order. We accordingly hold that the father was entitled to Relief from a Final Order under Tenn. R. App. P. 60.02(5), and reverse the trial court’s denial of that relief. We also vacate the trial court’s earlier order imposing on the father a duty to pay a modified amount of support and retroactive child support.


KENNETH JAMES WORGAN v. JEANNIE ANTOINETTE WORGAN

Court: TN Court of Appeals

Attorneys:

P. Richard Talley, Dandridge, Tennessee, for the appellant, Jeannie Antoinette Worgan.

G. Kenneth Gilleland, Seymour, Tennessee, for the appellee, Kenneth James Worgan.

Judge: SUSANO

In this post-divorce case, Jeannie Antoinette Worgan (“wife”) filed a Tenn. 1 R. Civ. P. 60.02 motion to alter or amend the final judgment, which had been entered over eleven months earlier. The final judgment had incorporated the parties’ marital dissolution agreement (“MDA”). Wife’s Rule 60.02 motion alleges that the MDA “failed to mention the division of the former husband’s pension” and that “[t]his oversight certainly must have resulted from a mistake, inadvertence, or excusable neglect.” The trial court denied the motion, finding that wife was aware of the pension of Kenneth James Worgan (“husband”) when she signed the MDA and that she had ample time and opportunity to review the MDA before signing it. We agree with the trial court’s ruling that wife has presented no ground for Rule 60.02 relief. Accordingly, we affirm.


DAVID R. SEATON ET AL. v. WISE PROPERTIES-TN, LLC

Court: TN Court of Appeals

Attorneys:

H. Wayne Grant, Chattanooga, Tennessee, for the appellants, David R. Seaton and Paul Ray Seaton.

Gary R. Patrick and McKinley S. Lundy, Jr., Chattanooga, Tennessee, for the appellee, Wise Properties-TN, LLC.

Judge: FRIERSON

This case involves the trial court’s award of attorney’s fees to the defendant property buyer upon remand from this Court. The sellers initiated the original action for specific performance and breach of contract after the buyer refused to close on the purchase of real property. The buyer filed a counterclaim requesting attorney’s fees. The buyer subsequently moved for summary judgment, arguing that the sellers had been the first to breach the contract by failing to fulfill a condition precedent. The trial court granted summary judgment in favor of the buyer, and the seller appealed. Upon that original appeal, while this Court affirmed summary judgment, the issue of attorney’s fees was not raised. Following this Court’s remand to the trial court, the buyer moved for an award of attorney’s fees, pursuant to a default provision of the parties’ agreement. After conducting a post-remand hearing, the trial court awarded the buyer attorney’s fees in the amount of $106,485. The seller appeals. We conclude: (1) that the buyer abandoned its counterclaim for attorney’s fees by failing to question the finality of the summary judgment and by failing to raise the issue during the first appeal and (2) that the trial court exceeded its authority by considering the buyer’s postremand motion. We therefore vacate the trial court’s award of attorney’s fees.


TN Court of Criminal Appeals

DAVID ALLEN BRIMMER v. DAVID SEXTON, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

David Allen Brimmer, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz and Kyle Hixson, Assistant Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, David Allen Brimmer, appeals as of right from the Johnson County Criminal Court’s order denying his petition for writ of habeas corpus relief challenging the validity of his 1999 aggravated kidnapping conviction and resulting sentence of 60 years as a violent offender. The State has filed a motion to affirm the trial court’s order pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Following our review, we conclude that the State’s motion is well-taken and affirm the order of the trial court.


STATE OF TENNESSEE v. DANNY WAYNE CARPENTER

Court: TN Court of Criminal Appeals

Attorneys:

D. Clifton Barnes, Morristown, Tennessee, for the appellant, Danny Wayne Carpenter.

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

Judge: OGLE

After the appellant, Danny Wayne Carpenter, pled guilty in the Hamblen County Criminal Court to aggravated burglary and theft of property worth more than $10,000, the trial court imposed a total effective sentence of three years in the Tennessee Department of Correction and ordered the appellant to pay restitution in the amount of $15,250. On appeal, the appellant challenges the amount of restitution imposed by the trial court. Upon review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. RONALD L. CARROLL and JOHN BOYDE COLLETT

Court: TN Court of Criminal Appeals

Attorneys:

James D. Estep, III (on appeal), Tazewell, Tennessee; and Thomas Eikenberry (at trial), Knoxville, Tennessee, for the appellant, Ronald L. Carroll.

Mark Blakley, District Public Defender; and Matthew McClung (on appeal) and Robert Scott (at trial), Assistant District Public Defenders, Lafollette, Tennessee, for the appellant, John Boyde Collett.

Judge: PAGE

Appellants Ronald L. Carroll and John Boyde Collett stand convicted of especially aggravated robbery. The trial court sentenced Appellant Carroll to serve fifteen years as a violent offender and sentenced Appellant Collett to serve seventeen years as a violent offender. On appeal, the appellants argue that (1) the evidence was insufficient to support their convictions for especially aggravated robbery; (2) the victim’s coaching of an essential witness should have resulted in a mistrial; and (3) the prosecutor violated the appellants’ right to remain silent during closing arguments. Following our review, we affirm the judgments of the trial court.


TOMMY JOE OWENS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Douglas A. Trant, David M. Eldridge, and Troy S. Weston, Knoxville, Tennessee, for the appellant, Tommy Joe Owens.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Lori Phillips-Jones, District Attorney General; and Scarlett Wynne Ellis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Tommy Joe Owens, appeals the Campbell County Criminal Court’s denial of his petition for post-conviction relief from his convictions of two counts of aggravated child abuse and one count of aggravated child neglect and resulting effective twenty-fiveyear sentence. On appeal, the Petitioner contends that he received the ineffective assistance of counsel. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the post-conviction court.


TN Attorney General Opinions

City’s Interim Chief of Police Serving as Interim City Administrator

Court: TN Attorney General Opinions

Date: 2014-04-24

Opinion Number: 50


Use of Botox, Other Neurotoxins, and Dermal Fillers by a General Dentist

Court: TN Attorney General Opinions

Date: 2014-04-24

Opinion Number: 51


Drug-Free-Workplace Programs

Court: TN Attorney General Opinions

Date: 2014-04-24

Opinion Number: 52


8 Apply for Court of Appeals Opening

The Governor’s Commission for Judicial Appointments will consider eight applicants when it meets May 16 in Memphis to select nominees for the Court of Appeals vacancy created by Judge Holly M. Kirby’s appointment to the Tennessee Supreme Court. The candidates are Kenny W. Armstrong, Frank S. Cantrell, Oscar C. Carr III, Robert Lawson Childers, Stephen D. Crawley, Steven Wayne Maroney, Brandy Suzanne Parrish and Stacie S. Winkler. The applicants’ interviews are open to the public, the Administrative Office of the Courts reports.


Lipman Confirmed for Federal Judgeship

Nine months after she was nominated, University of Memphis administrator Sheryl H. Lipman has been confirmed by the U.S. Senate as the newest federal judge for West Tennessee, the Commercial Appeal reports. The Senate today voted 95 to 0 to confirm Lipman, who President Obama nominated for the judgeship last August upon the recommendation of U.S. Rep. Steve Cohen. She replaces Jon McCalla, who announced last year that he was going on senior status.


Botched Execution Leaves Oklahoma Inmate Dead of Heart Attack

Oklahoma governor Mary Fallin has granted a two-week delay in executions after Clayton Lockett, a convicted murderer, died of a heart attack during a botched lethal injection execution. CNN reports that Lockett’s vein "exploded" in the middle of his execution, prompting authorities to abruptly halt the process and call off another execution later in the day as they try to figure out what went wrong. Gov. Fallin has called for an independent review of the state's execution protocols, WRCB reports.


White House Making Big Push on Judicial Appointments

With some polls now showing Republicans with a greater chance of reclaiming control of the Senate, the White House and Senate Democrats are moving aggressively to make appointments and get judicial nominees approved, the New York Times reports. At the White House, three lawyers in the counsel’s office are working full time vetting and processing nominees and potential nominees. That effort is being countered by some Senate Republicans, who are openly threatening to hold up or halt the confirmation process altogether to deprive the president of his picks.


Baker Donelson Opens Third Florida Office

Baker Donelson has opened an office in Tallahassee, marking the law firm's third new location in Florida in three years. With the addition of the Tallahassee office, Baker Donelson now has 20 offices in seven states across the Southeast, Texas and Washington, D.C., including seven in Tennessee. 


Judge Presides over Youth Court Swearing-In Ceremony

Judge Sophia Brown Crawford today presided over the swearing-in ceremony for 14 Whites Creek High School students into the Tennessee Youth Court Program, a juvenile delinquency intervention program initiated by the Tennessee Bar Association and funded by the state. The students, including three seniors, will get to hear their first case before graduation.


Brown Seeks Second Delay for Contempt Hearing

Attorneys for Shelby County District Attorney General candidate Joe Brown have asked for another delay in his case, saying there are errors on court documents. Brown was arrested in March after being charged with contempt of court. His hearing is scheduled for May 2, WREG reports.


Court Upholds EPA Rule on Cross-State Pollution

The Supreme Court yesterday handed the Obama administration an important victory in its effort to reduce power plant pollution in 27 Midwestern and Appalachian states. In a 6-2 decision, the court upheld a rule adopted by the Environmental Protection Agency in 2011 to limit emissions that create smog and soot that drift into the air above states along the East Coast. The decision caps a decades-long effort by the EPA to find a legally acceptable way to ensure that states don't contribute to pollution problems in downwind states, where environmental officials can do nothing to control it. Opponents argued the rule violated the intent of the Clean Air Act, which envisioned states and the EPA working cooperatively to rein in air pollution. The Chattanooga Times Free Press has more.


Forum to Focus on Judicial Races

A forum with candidates for area judicial positions will be held tomorrow night at 7 in the Bradley County Commission meeting room at the Bradley County Courthouse. The event is sponsored by the Bradley County Bar Association, Cleveland Lions Club and the Rotary Club of Cleveland. This session also serves to recognize Law Day, proclaimed by President Dwight D. Eisenhower in 1958 to honor the role of law in the creation of the United States. The Cleveland Banner has more.


Pemberton to Stay on Roane County Ballot

A challenge to Mike Pemberton’s candidacy as 9th Judicial District Court judge was tossed out in a 5-0 vote Monday by the Roane County Election Commission, Knoxnews reports. Willis Hall filed a complaint with the election commission contending Pemberton didn’t meet the residency requirements of living in the district for a year before the upcoming Aug. 7 election. The 9th Judicial District covers Loudon, Meigs, Morgan and Roane counties. Pemberton owns a home on Watts Bar Lake near Rockwood — within the judicial district — as well as a home in Knox County near his law office.


Judicial Candidates Submit Campaign Financial Statements

The Tennessean outlines the first quarter fundraising reports for the Sumner County judicial candidates. The newspaper profiles financial statements for Jan. 16 through March 31 for those running for Chancery Court judge, Circuit Court judge, General Sessions judge in Division II and Circuit Court clerk.


TBA Members Save at Office Depot

Save up to 60 percent on office supplies through the TBA's Office Depot benefit program! The TBA has partnered with this top national office supply company to offer discounted pricing for law firms large and small.


 
 

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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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