Iowa Justice to Speak on Election Challenges

The Iowa Supreme Court justice who authored the opinion permitting same-sex marriage in the state – and later watched three of his colleagues on the bench fall in retention elections – will be the featured speaker at this year’s Bench/Bar Luncheon during the TBA Annual Convention. Chief Justice Mark Cady will talk about the Varnum v. Brien decision and the attacks that followed from out-of-state groups that targeted the justices for deciding that the state’s statue limiting civil marriage to a union between a man and a woman violated the Iowa Constitution. The luncheon will be at noon on Thursday, June 12, at the Gatlinburg Convention Center. Learn more or register now.

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
07 - TN Court of Appeals
04 - 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 Court of Appeals

IN RE ADOPTION OF MARISSA O.R. G.A.K. AND D.L.K. v. N.E.R.

Court: TN Court of Appeals

Attorneys:

Kevin W. Weaver, Cordova, Tennessee, for the Petitioner/Appellants G.A.K. and D.L.K.

Respondent/Appellee, N.E.R., pro se (no appellate brief filed)

Judge: KIRBY

This is a petition for termination of parental rights and adoption. The parents of the child at issue divorced in 2007. The father moved to Colorado, and the mother was designated the child’s primary residential parent. The father was given parenting time in Colorado during the child’s spring, winter, and summer vacations, as well as parenting time in Tennessee at any time, with reasonable notice. The father exercised his parenting time only for a single 30-day period each summer in 2008, 2009, and 2010. After the child’s summer 2010 visit, the father scheduled no parenting time. In July 2011, the mother and her husband filed the instant petition to terminate the father’s parental rights and for the mother’s husband to adopt the daughter. The petition alleged abandonment by willful failure to visit during the fourmonth period preceding the filing of the petition. After a trial, the trial court denied the petition. It held that the petitioners did not establish grounds for termination and that the child’s best interest would not be served by terminating the father’s parental rights. The petitioners now appeal. After careful review of the record, we hold that clear and convincing evidence supports the termination of the father’s parental rights, and so reverse the trial court’s denial of the petition.


MOUNTAIN WOOD PRODUCTS, LLC v. AUTUMN CREEK FIREWOOD, LLC

Court: TN Court of Appeals

Attorneys:

Samuel J. Gowin, Chattanooga, Tennessee, and Clark E. Gulley, Colbert, Georgia, for Plaintiff/Appellant Mountain Wood Products, LLC

W.I. Howell Acuff, Cookeville, Tennessee, for Defendant/Appellee Autumn Creek Firewood, LLC

Judge: KIRBY

This appeal involves a contract dispute. The appellant distributor challenges the damages awarded to the appellee supplier under a supply contract for bagged firewood. Additionally, the supplier challenges the trial court’s failure to award damages for lost profits and tortious interference with prospective business. Discerning no error, we affirm.


DONALD J. ROBERTS IRA ET AL. V. PHILLIP H. MCNEILL, SR. ET AL.

Court: TN Court of Appeals

Attorneys:

John S. Golwen, Annie T. Christoff, Johathan E. Nelson, Memphis, Tennessee, and Edward J. Fuhr (pro hac vice), Matthew P. Bosher (pro hac vice), Trevor S. Cox (pro hac vice), Richmond, Virginia, for the appellants, Phillip H. McNeill, Sr., Howard A. Silver, Raymond E. Schultz, Robert P. Bowen, and Joseph W. McLeary.

Alan G. Crone, Memphis, Tennessee, and Lee A. Weiss (pro hac vice), Garden City, New York, for the appellees, Donald J. Roberts IRA, Dr. James M. Byers IRA Rollover, Patrick Svoboda IRA and Svoboda Realty Inc. Defined Benefit Plan, Jack Fulton, and Eric Clarke, as Trustee of Clarke Revocable Trust, On Behalf of Themselves and All Others Similarly Situated.

Judge: STAFFORD

This is the second interlocutory appeal from a class certification. In Roberts v. McNeill, No. W2010-01000-COA-R9-CV, 2011 WL 662648 (Tenn. Ct. App. Feb. 23, 2011) (“Roberts I”), we vacated the trial court’s class certification and remanded for reconsideration. Plaintiffs/Appellees are former owners of preferred stock in Equity Inns, Inc., who filed suit against Defendants/Appellants, the board of directors, for breaches of the fiduciary duties allegedly owed to the preferred shareholders during the negotiation and approval of a merger. Upon remand from this Court, the trial court granted the plaintiffs’ motion for class certification with respect to “the proposed preferred class stockholders.” Having previously enumerated three preferred classes of stockholders, the purported certification creates an ambiguity as to the global class. The trial court’s certification of three subclasses does not cure the ambiguity in the global class, and we cannot proceed to review under Tennessee Rule of Civil Procedure 23 in the absence of a clearly defined class. Accordingly, we vacate and remand for further consideration.


SHONTEL S. ROSS, Individually and on behalf of Terry Wilson, III (a minor) v. DEIDRA L. GRANDBERRY, M.D., ET AL.

Court: TN Court of Appeals

Attorneys:

W. Bryan Smith, Memphis, Tennessee, for the appellant, Shontel S. Ross

Buckner Wellford, Shannon L. Wiley, Memphis, Tennessee, for the appellee, Methodist Healthcare-Memphis Hospitals, Inc.

Judge: HIGHERS

Plaintiff filed a healthcare liability action in the general sessions court. At a docket call, defendant Methodist appeared and tendered a confession for the full $25,000 jurisdictional limit of the general sessions court. Plaintiff immediately sought to non-suit her claims against Methodist. The general sessions court denied Methodist’s tendered confession and it entered an order non-suiting Methodist. Plaintiff then refiled her suit against Methodist in the circuit court and Methodist moved for summary judgment based upon its tendered confession of judgment in the general sessions court. The circuit court granted summary judgment in favor of Methodist. We reverse the circuit court’s grant of summary judgment and we remand for further proceedings.


LINUS THORNTON v. JAMES A. MASSEY

Court: TN Court of Appeals

Attorneys:

Dennis W. Plunk, Savannah, Tennessee, and Mary Stewart Nelson, Birmingham, Alabama, for the Defendant/Appellant, James A. Massey

Charles C. Drennon, III, Memphis, Tennessee, for the Plaintiff/Appellee, Linus Thornton

Judge: KIRBY

This is the second appeal in this breach of contract case. The defendant property owner leased his recreational farm on a yearly basis to the plaintiff lessee. Their agreement included a provision that, when the farm sold, the plaintiff would received a percentage of the proceeds of the sale. The defendant eventually divided the farm into several parcels and sold the parcels at auction to different purchasers. The plaintiff asserted his right to a percentage of the proceeds. Thereafter, for reasons that are disputed, none of the sales of the various parcels of the farm closed. The plaintiff filed this lawsuit against the defendant owner, asserting that he was entitled to a percentage of the total sale price that would have been realized had all of the sales closed. After a trial, the trial court held in favor of the plaintiff, and the defendant appealed. In the first appeal, the appellate court affirmed in part but vacated the judgment and remanded for the trial court to make a factual finding as to whether the sales failed to close because of the purposeful actions of the defendant. On remand, the trial court found that the closings on the sales failed to take place because of the defendant owner’s purposeful actions. The trial court found that the defendant prevented the sales from closing in order to avoid paying the plaintiff the percentage owed him under the parties’ lease agreement. The trial court reinstated the damage award in favor of the plaintiff and awarded prejudgment and post-judgment interest. The defendant now appeals. Discerning no error, we affirm.


IN RE VICTORIA W. ET AL.

Court: TN Court of Appeals

Attorneys:

Emeterio “Terry” R. Hernando, Lewisburg, Tennessee, for the appellant, Marie W.

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

Judge: CLEMENT

Mother appeals the termination of her parental rights as to her two children. Father’s rights were also terminated, but he does not appeal. The court found the Department of Children’s Services established three grounds for termination of mother’s parental rights: 1) severe child abuse pursuant to Tennessee Code Annotated § 36-1-113(g)(4); 2) mental incompetence pursuant to Tennessee Code Annotated § 36-1-113(g)(8)(B); and 3) persistence of conditions pursuant to Tennessee Code Annotated § 36-1-113(g)(3). In a previous dependency and neglect proceeding, the Lincoln County Juvenile Court found that Mother committed severe child abuse by failing to protect her minor daughter from sexual abuse by a neighbor. That judgment was not appealed; as a consequence, the severe abuse findings are res judicata. Pursuant to Tennessee Code Annotated § 36-1-113(g)(4), a court may terminate parental rights when the parent was found to have committed severe child abuse under any prior order of a court. The court also found that the Department had proven two additional grounds, mental incompetence and persistent conditions. The juvenile court also found that termination of both parents’ rights was in the children’s best interest. We therefore affirm.


IN RE: ZOEY F.

Court: TN Court of Appeals

Attorneys:

David C. Veazey, Chattanooga, Tennessee, for the appellant, Johonauan J. R.

Robert E. Cooper, Jr., Attorney General and Reporter; and, Martha A. Campbell, Deputy Attorney General, for the appellee, Tennessee Department of Children’s Services.

Judge: SWINEY

The Juvenile Court for Hamilton County (“the Juvenile Court”) terminated the parental rights of Johonauan J. R. (“Father”) to the minor child Zoey F. (“the Child”) on the grounds of willful failure to visit, wanton disregard for the welfare of the child, and substantial noncompliance with the statement of responsibilities in the permanency plan. Father appeals the termination of his parental rights. As there is uncertainty regarding the time frame relied upon by the Juvenile Court for the ground of willful failure to visit, we modify the Juvenile Court’s judgment to exclude the ground of willful failure to visit. Otherwise, we find and hold that the evidence does not preponderate against the Juvenile Court’s finding by clear and convincing evidence that grounds existed to terminate Father’s parental rights and that the termination of Father’s parental rights was in the Child’s best interest. We affirm the termination of Father’s parental rights to the Child.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. MARK ANTHONY ANDERSON

Court: TN Court of Criminal Appeals

Attorneys:

Nicholas McGregor, Nashville, Tennessee, for the Appellant, Mark Anthony Anderson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Brian Ewald, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Defendant, Mark Anthony Anderson, of one count of arson. The trial court sentenced the Defendant to seven years in the Tennessee Department of Correction. On appeal, the Defendant contends that the trial court erred when it denied his motion to suppress his statements to police. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. RICKEY BRADFORD

Court: TN Court of Criminal Appeals

Attorneys:

Robert D. Massey, Pulaski, Tennessee, for the appellant, Rickey Bradford.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Robert J. Carter, District Attorney General; and Ann L. Filer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Rickey Bradford, was convicted by a Lincoln County Circuit Court jury of two counts of making a false report, Class C felonies, and extortion, a Class D felony. See T.C.A. §§ 39-16-502, 39-14-112 (2010). The trial court merged the false report convictions and sentenced the Defendant as a Range II, multiple offender to concurrent sentences of eight years for making a false report and five years for extortion. The court ordered that the effective eight-year sentence be served consecutively to any unexpired sentences. On appeal, the Defendant contends that (1) the trial court erred by admitting evidence regarding Navigator Telecommunications records, (2) the trial court erred by failing to instruct the jury on lost or destroyed evidence, (3) the trial court erred by admitting photographs taken from a lost or destroyed video recording, (4) the trial court erred by admitting bank records without requiring the State to comply with the Financial Records Privacy Act, (5) the trial court erred by permitting the State to impeach him with his previous conviction, and (6) that the cumulative effect of the trial court’s errors requires a new trial. We affirm the judgments of the trial court.


STATE OF TENNESSEE v. MITCHELL S. POZEZINSKI

Court: TN Court of Criminal Appeals

Attorneys:

Roger E. Nell, District Public Defender (at trial and on appeal) and Shelby Stack Silvey, Assistant District Public Defender (on appeal) Clarksville, Tennessee, for the appellant, Mitchell S. Pozezinski.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; John W. Carney, Jr., District Attorney General; C. Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Montgomery County jury convicted the Defendant, Mitchell S. Pozezinski, for one count of violating the terms of his community supervision for life, and the trial court sentenced him to ten days in jail plus six months of state probation. On appeal, the Defendant contends that the evidence presented is insufficient to support a finding that he knowingly violated the terms of his community supervision for life. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgment.


STATE OF TENNESSEE v. HARLEY UPCHURCH

Court: TN Court of Criminal Appeals

Attorneys:

Josh Hoeppner, Livingston, Tennessee, for the appellant, Harley Upchurch.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Randall A. York, District Attorney General; and Owen G. Burnett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Harley Upchurch, appeals the trial court’s revocation of his probation and reinstatement of his sentence of three years and six months in the Department of Correction. On appeal, he argues that the trial court erred in revoking his probation. Following our review, we affirm the judgment of the trial court.


Reeves Formally Installed as Federal Judge

Pamela L. Reeves was formally installed as the newest federal district court judge in a ceremony in Knoxville today. Reeves, a former TBA president, was appointed by President Obama to fill the lifetime post. The ceremony at Knoxville's Bijou Theatre was attended by more than 800 colleagues, friends and guests. Reeves' robing was done by her spouse Charles Swanson— also a former TBA president— and adult children Reedy and Amanda Swanson.


Family, Friends Attend McBrayer Investiture Ceremony

More than 120 friends, family and colleagues joined newly appointed Court of Appeals Judge Neal McBrayer for his formal investiture yesterday in the old Supreme Court chamber of the State Capitol. The oath of office was administered by Gov. Bill Haslam, who appointed McBrayer to fill the seat vacated by Judge Patsy Cottrell. TBA Vice-President Bill Harbison presented a gavel to McBrayer. Brentwood Homepage has more


Nominations Accepted for Access to Justice Awards

The Tennessee Alliance for Legal Services (TALS) is accepting nominations for the B. Riney Green Award and the New Advocate of the Year Award. The awards will be presented at the group's Access to Justice Dinner Sept. 10 during the Equal Justice University conference. Submit nominations to TALS Operating Director Samantha Sanchez by June 27.


Number of Black Lawyers in 'BigLaw' Firms Falls

According to a new American Lawyer survey, only 3 percent of lawyers and 1.9 percent of partners at large law firms are African American. While the percentage of all minorities increased slightly last year at the 223 law firms polled, the number of black lawyers fell to its lowest level since 2000. Asian-Americans are now the largest group of minorities in law firms, comprising 6.3 percent of the lawyers and 2.7 percent of the partners. The next largest group is Hispanics, which account for 3.2 percent of the lawyers and 2.3 percent of the partners. The ABA Journal has the story.


Formation of Veterans Court Urged

A group of advocates that comprise the Middle Tennessee Veterans Mental Health Council is working to establish a Rutherford County Veterans Court, the Daily News Journal reports. The group states that many of the veterans who face misdemeanor and felony charges could use a court that tailors justice to the support and treatment they need to cope with lingering memories of war. Council Chairman Michael Cowger said many veterans return from war with post-traumatic stress syndrome, and this condition can lead to domestic violence, divorce, drug addiction, alcoholism, homelessness and suicide.


House Rejects Effort to Defund LSC

The U.S. House of Representatives yesterday defeated an amendment to zero out the Legal Services Corporation (LSC) by a vote of 116 to 290. Three of Tennessee's representatives – Diane Black, Marsha Blackburn and Scott DesJarlais – voted for the amendment. When the amendment was last offered in 2012, there were 122 votes in favor of zeroing out. The House bill contains $350 million for the agency. The Senate takes up its appropriations bill next week, and then the two chambers will have to conference on final legislation. View the transcript of the House's consideration.


House Approves Grant Funding Rape Kit Testing

The U.S. House of Representatives yesterday approved an amendment from Rep. Steve Cohen, D-Memphis, that would transfer $5 million in federal money to a grant program to help local governments reduce their backlog in testing of rape kits. The amended bill, which funds the Department of Justice, awaits final approval in the House, the Commercial Appeal reports.


Editorial: Politics Has No Place in Tennessee Courtrooms

Tennessee’s judicial system does not need Lt. Gov. Ron Ramsey’s campaign to unseat three state Supreme Court justices for political reasons, an editorial in the Jackson Sun asserts. "While Ramsey is free to pursue his political interests in the legislature and with the executive branch...he has no business inserting political partisanship into the selection or retention of judges," the paper writes. “There simply is no place for politics in the judicial system. That’s why it is a separate arm of government intended to offer checks and balances. Judicial impartiality is critical to public trust in the law and the courts,” the editors conclude.


Strickland: Ramsey Using Distortions in Campaign Against Justices

In an opinion piece this week, columnist Pam Strickland writes in Knoxnews that Ron Ramsey, in an attempt  to oust three Democratic Supreme Court justices, is "using distortions and unsubstantiated claims." Quoting from a letter written in support of one of the justices, Strickland says, "outstanding judges know to leave partisanship at the courthouse door” and "like good referees in football games...should be as low profile as possible and unafraid to make the close, and sometimes controversial, call.”


House Candidate Arrested for Bad Checks

Kristopher Gore, a Democratic candidate for the state House of Representatives, has been charged with two felonies for writing one bad check over $10,000 and another over $1,000 to a sign company. Gore, two other Democrats and a Republican are running in the Aug. 7 primaries for the open House District 43 seat. The Tennessean has more.


Services Held Today for Mississippi Lawyer

Drue D. Birmingham of Olive Branch, Mississippi died Monday (May 26) at the age of 82. After a tour in Korea with the 1st Marine Division, he attended the University of Memphis School of Law and earned a master of laws from the University of Mississippi. Birmingham practiced in Mississippi, but was a member of the Tennessee Bar Association and a senior counselor. Funeral services were held today at 10 a.m. at Olive Branch First Baptist Church. In lieu of flowers, the family asked that donations be made to American Center for Law and Justice. Read more about his life in the Commercial Appeal.


Memphis Lawyer Suspended

Memphis lawyer John Robert Hershberger was suspended on May 30 for two years, with 60 days to be served on active suspension and the remainder to be served on probation so long as he meets several conditions. Those conditions include working with a practice monitor, establishing an operating account for his law practice and undergoing an evaluation by the Tennessee Lawyers Assistance Program. 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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