Supreme Court Evaluation Poll Launched Today

The Tennessee Bar Association today launched a Tennessee Supreme Court Candidate Evaluation Poll, which will remain open until June 9. For the first time in its history, the TBA is polling its members for their views on the three justices facing retention votes in the August General Election. For each of the three – Chief Justice Gary Wade, Justice Cornelia Clark and Justice Sharon Lee – TBA members are being asked to select one of four options: (1) highly recommend retention, (2) recommend retention, (3) do not recommend retention or (4) do not have an informed opinion at this time. The TBA is using the SurveyMonkey platform to conduct the survey, which ensures the secrecy of votes. If you have not yet received an email to participate, please check your spam folder for an email from SurveyMonkey.com. Results will be released in mid June.

The TBA is taking this unprecedented step because it believes that lawyers are uniquely qualified to provide an informed opinion as to whether a justice should be retained, and by providing the collective view of the organized bar, it can help Tennessee voters educate themselves about the election. The poll is one part of TBA’s efforts to help ensure that the 2014 judicial elections maintain a fair, impartial and accountable judiciary. Learn more about other efforts at the TBA’s Judicial Selection Information Center.

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
09 - TN Court of Appeals
01 - TN Court of Criminal Appeals
01 - 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

WINFRED ERROL ANKTON v. CHANDRANITA MICHELLE ANKTON

Court: TN Court of Appeals

Attorneys:

Chandranita Michelle Ankton, Pro se.

Adam Noah Cohen, Memphis, Tennessee, for the appellees, Winfred Errol Ankton.

Judge: FARMER

The parties to this action were divorced in Shelby County, Tennessee in 2002. The parties had one child together during the marriage. Pursuant to the original parenting plan, Mother had primary custody of the child. Father remarried and moved to Arkansas in 2003. In 2003, Father brought an action in the trial court charging Mother with contempt and petitioning the court to award him custody of the child. The trial court granted Father’s petition, and the child moved to Arkansas to live with Father. In 2012, Father was granted permission by the court to relocate to Texas with the child. In 2013, Mother brought this action in the trial court charging Father with contempt and petitioning the court to award her custody of the child once again. The trial court dismissed Mother’s petitions, ruling that Tennessee no longer had exclusive, continuing jurisdiction over custody issues related to the child. On appeal, we affirm the trial court’s ruling.


DONALD LESTER BENEDICT v. GRETCHEN MICHELLE BENEDICT

Court: TN Court of Appeals

Attorneys:

Phillip C. Lawrence, Chattanooga, Tennessee, for the appellant, Donald Lester Benedict.

Grace E. Daniell, Chattanooga, Tennessee, for the appellee, Gretchen Michelle Benedict.

Judge: SWINEY

This appeal concerns numerous post-divorce issues. Donald Lester Benedict (“Husband”) filed a petition to modify his child support obligation against his former wife Gretchen Michelle Benedict (“Wife”) in the Chancery Court for Hamilton County (“the Trial Court”).1 The parties eventually raised a host of issues about money, which were referred to a Special Master. Wife objected to certain of the Master’s findings. Ultimately, the Trial Court sustained certain of Wife’s objections to the Master’s report and denied others. The Trial Court found, inter alia, that Husband was willfully or voluntarily underemployed. Husband appeals, and both parties raise several issues. We reverse the Trial Court as to its finding that Husband is willfully or voluntarily underemployed and those issues related to this finding. We remand for the Trial Court to make new determinations on these issues in light of our holdings that Husband was not willfully or voluntarily underemployed, and that Husband’s income for purposes of child support is $75,000 per year as found by the Master. Otherwise, we affirm the judgment of the Trial Court.


CITY OF TOWNSEND v. ANTHONY DAMICO

Court: TN Court of Appeals

Attorneys:

William J. Carver and Camille H. Sanders, Knoxville, Tennessee, for the appellant, City of Townsend.

Joe Nicholson, Maryville, Tennessee, for the appellee, Anthony Damico.

Judge: FRIERSON

This appeal presents the issue of whether the City of Townsend (“the City”) properly issued a citation for trespass to the defendant, Anthony Damico, when he exited the Little River onto private property in order to avoid crossing a dam on his inner tube. The Townsend Municipal Court upheld the citation and issued Mr. Damico a fine. Mr. Damico appealed to the Blount County Circuit Court for a trial de novo. The circuit court held that Mr. Damico had a right to portage around the dam and that he was denied this right when he was confronted by an agent of the private property owner. The circuit court further held that Mr. Damico did not engage in trespass when he traversed private property because he was seeking to avoid further confrontation, which the court found constituted justifiable cause. Therefore, the circuit court dismissed the citation. The City of Townsend appeals. We reverse and remand for reinstatement of the trespassing citation and fine.


GRIFFITH SERVICES DRILLING, LLC, ET AL. v. ARROW GAS & OIL, INC.

Court: TN Court of Appeals

Attorneys:

Christopher P. Capps, Morrestown, Tennessee, and Max D. Picklesimer, Nicholasville, Kentucky for the appellants, Griffith Services Drilling, LLC and Lexington Insurance Company.

W. Bryan Brooks and Alisha M. Toll, Nashville, Tennessee, for the appellee, Arrow Gas & Oil, Inc.

Judge: SWINEY

Griffith Services Drilling, LLC (“Griffith”) and Lexington Insurance Company, Griffith’s insurance company, sued Arrow Gas & Oil, Inc. (“Arrow”) for property damage caused by a fire that occurred while Arrow was refueling a drilling rig operated by Griffith in Anderson County, Tennessee (“the Drilling Site”). Arrow answered the complaint and counterclaimed for breach of contract based upon Griffith’s refusal to pay for the fuel delivered by Arrow on the day of the fire. Arrow also filed a motion to dismiss for spoliation, which the Circuit Court for Anderson County (“the Trial Court”) granted dismissing Griffith’s claims against Arrow. Arrow then filed a motion for summary judgment on its counterclaim, which the Trial Court granted in part. Griffith appeals to this Court raising issues regarding the dismissal of their claims and the grant of summary judgment to Arrow. We find and hold that both Griffith and Arrow were guilty of spoliation, and, therefore, that dismissal of Griffith’s claims was not an appropriate sanction. We vacate the dismissal of Griffith’s claims against Arrow and reinstate them. Because the Trial Court granted Arrow summary judgment based upon its decision on the issue of spoliation, and we have vacated the Trial Court’s decision on the issue of spoliation, we also vacate the grant of summary judgment to Arrow.


CITY OF GATLINBURG v. STUART H. KAPLOW ET AL.

Court: TN Court of Appeals

Attorneys:

Arthur G. Seymour, Jr., and Matthew A. Grossman, Knoxville, Tennessee, for the appellants, Stuart H. Kaplow and Maury R. Greenstein.

James H. Ripley, Sevierville, Tennessee, for the appellee, City of Gatlinburg.

Judge: FRIERSON

This case presents issues regarding the interpretation and enforceability of an agreed order entered into between the parties before the Gatlinburg Board of Appeals and Adjustments (the “Board”). Defendant, Stuart H. Kaplow, leases certain real property improved with rental units from defendant, Maury R. Greenstein, which property is located within the City of Gatlinburg. The City of Gatlinburg (the “City”), through its building official, issued notices of condemnation to the defendants regarding certain units on this property and informed the defendants that the units would be demolished if repairs were not made. The defendants appealed to the Board. During those proceedings, the parties entered into an agreement with respect to the property and memorialized this agreement in the form of a written order, which was signed by the defendants and their counsel. A few months later, the City filed the instant action, seeking a declaration that (1) the defendants’ further attempts to appeal to the Board were void and ineffectual pursuant to the terms of the agreed order and (2) the defendants had materially breached the agreed order such that the City had no obligation to issue building permits. Following a bench trial, the trial court found that the defendants had materially breached the terms of the agreed order. The court also found that the defendants had forfeited their right to further appeal to the Board. The court therefore ruled that the City could demolish the condemned units and impose a lien against the real property for the demolition and cleaning costs. Defendants have appealed. Discerning no error, we affirm.


SUMMER ANN-MICHELLE MILLER V. RICHARD ANTHONY MCFARLAND

Court: TN Court of Appeals

Attorneys:

Richard A. Demonbreun, Nashville, Tennessee, for the appellant, Richard Anthony McFarland.

No appearance by the appellee, Summer Ann-Michelle Miller

Judge: STAFFORD

In this post-divorce modification of alimony case, Husband contends that the trial court erred in concluding that his alimony obligation was not subject to modification. We reverse the trial court’s judgment and conclude that Husband’s alimony obligation constitutes transitional alimony that is subject to modification pursuant to Tennessee Code Annotated Section 36-5-121(g)(2). Reversed and remanded.


ASHLEY PURDY v. MATTHEW C. SMITH

Court: TN Court of Appeals

Attorneys:

Matthew C. Smith, Gatlinburg, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter and Warren Jasper, Senior Counsel, for the appellee, State of Tennessee ex rel. Ashley Purdy.

Judge: BENNETT

This case involves the difficult issue of disestablishment of paternity and its effect on child support arrears. Over a year after the trial court entered an order requiring the respondent to pay child support, he requested Rule 60 relief on the grounds that he was not the biological father of the child. Based upon the statutory prohibition against the retroactive modification of child support and the related caselaw, we must affirm the trial court’s decision denying the respondent Rule 60 relief for any time period prior to the filing of his petition.


IN RE A TRANSFER OF STRUCTURED SETTLEMENT PAYMENT RIGHTS BY LAUREL J. SHANKS

Court: TN Court of Appeals

Attorneys:

Jason H. Long, Knoxville, Tennessee, for the appellant, JG Wentworth Originations, LLC.

Paul W. Kruse, Chris Raybeck, and Olatayo O. Atanda, Nashville, Tennessee; and E. John Gorman, Houston, Texas, pro hac vice, for the appellee, RSL Funding, LLC.

Judge: FRIERSON

The respondent financial services company appeals the trial court’s entry of an order approving a transfer of the payee’s structured settlement payment rights to the petitioner financial services company and its assignee, pursuant to Tennessee’s Structured Settlement Protection Act (“SPPA”). See Tenn. Code Ann. §§ 47-18-2601 to 2607 (2013). The trial court found that the transfer at issue met all statutory requirements. On appeal, the respondent company raises the issue of whether the transfer order contravened two prior court orders partially transferring the payee’s structured settlement payment rights to the respondent and if so, whether this contravened applicable law under the SSPA. Discerning no error, we affirm.


FRANK W. WILSON ET AL. v. TMBC, LLC

Court: TN Court of Appeals

Attorneys:

Ronald J. Zuker, Knoxville, Tennessee, for the appellants, Frank W. Wilson and Sonya L. Wilson.

Rockforde D. King and Melissa B. Carrasco, Knoxville, Tennessee, for the appellee, TMBC, LLC.

Judge: SUSANO

The plaintiff took his bass fishing boat to defendant’s business for it to repair a “rodbox lid” that did not fit properly. While the boat was there, defendant replaced the lid. Subsequently, plaintiff went to the defendant’s store and got in the boat, which was on a trailer in the parking lot, in order to examine the new lid. While attempting to exit the boat, plaintiff caught his foot on something, tripped, and fell out of the boat. Plaintiff’s theory was that an employee of the defendant had negligently left the old rodbox lid inside the boat and that plaintiff tripped over the old lid. At the close of plaintiff’s proof, defendant moved for a directed verdict, arguing that (1) plaintiff failed to prove breach of duty because, according to defendant, he offered no evidence of the object that caused his fall; and (2) defendant could not, as a matter of law, be liable because plaintiff was at least 50% at fault for his injuries. The trial court directed a verdict for defendant. We hold that plaintiff presented sufficient proof that the old lid caused him to trip and fall, and that a reasonable trier of fact could conclude that the employee had negligently caused plaintiff’s injury. We further hold that the question of comparative fault is properly for the jury to decide under the proof presented at this trial. We therefore vacate the directed verdict and remand for further proceedings.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. RONALD BERNARD ANDERSON, II

Court: TN Court of Criminal Appeals

Attorneys:

Jason Gichner, Nashville, Tennessee, for the appellant, Ronald Bernard Anderson, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Sharon Reddick, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial Defendant, Ronald Bernard Anderson, II, was found guilty as charged of four counts of the Class C felony offense of sexual battery by an authority figure. The trial court imposed a sentence of thee years for each conviction. A combination of concurrent and consecutive sentencing resulted in an effective sentence of six years. As to the manner of service of the sentences, the trial court ordered split confinement: three months incarceration and the balance of the six-year sentence suspended, with supervised probation for twelve years. In this appeal Defendant presents two issues for review. He claims the trial court erred by granting the State’s motion to amend each of the four counts of the indictment over Defendant’s objection because the indictment was defective, and he asserts the evidence was legally insufficient to support the convictions. After review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.


TN Attorney General Opinions

Lawfulness of Lottery-Ticket Pool

Court: TN Attorney General Opinions

Date: 1914-05-27

Opinion Number: 58


Reminder: Professional Privilege Tax Due June 1

All professional privilege tax returns filed on or after Jan. 1, must be filed electronically. Professional privilege tax returns can be filed electronically either by individuals, or by companies who file and pay for multiple individuals. The Tennessee Department of Revneue reports that it will not be mailing taxpayers a Professional Privilege Tax Return for the $400 tax due June 1. Click here for a step-by-step guide to electronically file an individual professional privilege tax return. If you are a company or firm filing and paying for multiple individuals, go here. Read more from the Department of Revenue.


Bell Hits Board for Dismissing Complaint Against Wade

Sen. Mike Bell, R-Riceville, disclosed today that he was the source of an “anonymous” complaint filed with the Board of Judicial Conduct (BJC) against Tennessee Supreme Court Chief Justice Gary Wade. At issue were comments Wade made to a reporter in November, expressing his belief that all current appellate judges are qualified to serve. Bell alleges that the comment violates rules governing campaigning by judges. Last Friday, the BJC released its determination that the complaint was unfounded and thus dismissed. News Channel 5 has that story. Bell now has written a letter “excoriating the board” for dismissing the complaint, the AP reports. The Memphis Daily News has the latest.


Chancellor Johnson's Portrait Unveiled

Washington County Chancellor G. Richard Johnson, who served on the First Judicial District Chancery Court from 1988 to 2013, is making history as the first state trial judge to have his portrait hang in the Washington County George Jaynes Justice Center. "The feeling is indescribable," said Johnson. "It's exhilarating. To say I'm honored is an understatement." An unveiling of the portrait was held recently at the courthouse. The portrait will permanently hang on the second floor of the courthouse. WJHL has the story.


Veteran Gets Help from Legal Aid

A Murfreesboro veteran received much needed help from the Legal Aid Society of Middle Tennessee and the Cumberlands after his adopted daughter, who suffers from severe mental health problems, was denied a subsidy to assist with her care and the family’s debt began spiraling out of control. The daughter, who has since turned 18, required professional, residential care in a state facility. Read how Legal Aid was able to help the Hicks family get back on their feet in a piece printed on Memorial Day in the Murfreesboro Post.


Reeves Urges Voters to Look at Judges’ Qualifications, Experience

U.S. District Court Judge Pamela Reeves told the Knoxville-Knox County League of Women Voters that contested judicial elections this year will be critical votes, Knoxnews reports. In her first speech since being sworn in as federal judge, Reeves urged voters to look carefully at a candidate's background instead of party labels. “Look at qualifications and look at experience,” she told the group. Reeves also noted that the August election “has the potential for one of the most controversial votes this year" because of a challenge being waged against three incumbent state Supreme Court justices.


White: Voters Should Be Skeptical of Attacks on Judges

In an interview with the Johnson City Press, former Tennessee Supreme Court Justice Penny White talks about the campaign that removed her from the court and draws parallels to this year’s effort targeting three sitting justices. White – the only state judge to lose a retention election – says voters should “Be skeptical of those who would attempt to bully the bench. Ask yourself: What’s in it for them? What do they expect to gain?” She also suggests voters ask themselves why an elected official would be eager to bring outside money into Tennessee in an attempt to influence the outcome of a Supreme Court election and would want to diminish the separation of power between the three branches of government.


States Must Consider More Than IQ Scores in Close Cases

The U.S. Supreme Court ruled 5-4 today that states may not rely only on intelligence test scores to determine whether a death row inmate is eligible to be executed if the inmate scores between 70 and 75, the AP reports. A score of 70 is widely accepted as a marker of mental disability, but medical professionals say those who score as high as 75 can be considered intellectually disabled because of the test’s margin of error. The mental health community had argued that an accurate diagnosis must include evaluation of an individual's ability to function in society. Until today’s ruling, the court had left it up to the states to determine the definition of mentally disabled. The decision impacts only those states with a fixed statistical cut-off for execution.


Services June 1 for Jackson Lawyer

Jackson attorney Kenneth Don Bishop died Saturday (May 24) at the age of 72. He graduated from the University of Kentucky College of Law and was licensed in Tennessee in 1968. He later founded the Bishop Law Firm, where he worked until his death. A memorial service will be held at Cumberland Presbyterian Church in Allsboro, Alabama, on June 1 at 2 p.m. Burial will be in two weeks in Fairfield, Illinois. Memorials may be made to the Don Bishop Scholarship Fund at Bethel University, 325 Cherry Ave., McKenzie, TN 38201. Additional information is not yet available.


Lake County Lawyer Moved to Disability Status

The Tennessee Supreme Court today (May 27) transferred the law license of Lake County lawyer Timothy C. Naifeh to disability inactive status pursuant to Section 27.3 of Tennessee Supreme Court Rule 9. Naifeh may not practice law while on disability inactive status. 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 the practice of law. View the BPR release.


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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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