Commission Recommends 5 for Criminal Appeals Court

The Governor’s Commission on Judicial Appointments met today in Nashville to interview and vote on candidates seeking to fill a vacancy on the Tennessee Court of Criminal Appeals following the appointment of Judge Jeffrey Bivins to the Tennessee Supreme Court. The panel recommended Circuit Court Judge Robert Lee Holloway Jr., Circuit Judge and Chancellor Larry B. Stanley Jr. and Circuit Court Judge Larry J. Wallace. In a rare move, the commission also sent two additional names to the governor “by acclamation.” The pair – Circuit Court Judge Timothy Lee Easter and District Public Defender Roger Eric Nell – previously were nominated for the Court of Criminal Appeals seat being vacated by Judge Jerry Smith. The governor has not yet named a replacement for Smith.

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
06 - TN Court of Appeals
07 - 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

SHEILA CAMERON v. MEMORIAL HEALTH CARE SYSTEM, INC. ET AL.

Court: TN Workers Comp Appeals

Attorneys:

Neil A. Brunetz and Scott E. Simmons, Chattanooga, Tennessee, for the appellants, Memorial Health Care System, Inc. and Indemnity Insurance Company of North America.

R. Jerome Shepherd, Cleveland, Tennessee, for the appellee, Sheila Cameron.

Judge: CANTRELL

A registered nurse sustained a compensable injury to her neck. The trial court found that she was permanently and totally disabled as a result of the injury. Her employer has appealed, contending that the trial court erred by failing to cap the award at one- and-one-half times the impairment rating pursuant to Tennessee Code Annotated section 50-6-241(d)(1)(A). In the alternative, the employer asserts that the trial court erred by awarding permanent total disability benefits. 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 of the trial court.


TN Court of Appeals

CITY OF ATHENS v. BLAIR STRONG ENTERPRISES, LLC, d/b/a OPEN DOOR CAFÉ

Court: TN Court of Appeals

Attorneys:

Matthew C. Rogers, Athens, Tennessee, for the appellant, Blair Strong Enterprises, LLC.

H. Chris Trew, Athens, Tennessee, for the appellee, City of Athens.

Judge: MCCLARTY

This appeal challenges a citation for an alleged violation of a city ordinance prohibiting the sale of alcoholic beverages to a person under the age of twenty-one. A municipal judge and the trial court found against the appellant restaurant. We affirm.


CLEVELAND CUSTOM STONE, ET. AL. v. ACUITY MUTUAL INSURANCE COMPANY

Court: TN Court of Appeals

Attorneys:

Stuart F. James, Chattanooga, Tennessee, for the appellant, Acuity Mutual Insurance Company.

Robert G. Norred, Jr. and Matthew G. Coleman, Cleveland, Tennessee, for the appellees, Cleveland Custom Stone, Inc. and Steve’s Stone Works.

Judge: MCCLARTY

This case concerns Acuity’s refusal to pay insurance proceeds to Plaintiffs, who filed suit, alleging negligence, breach of contract, bad faith refusal to pay, and violations of the Tennessee Consumer Protection Act, codified at Tennessee Code Annotated section 47-18- 101, et. seq. The case proceeded to jury trial. The jury awarded Plaintiff compensatory damages and found that Acuity’s failure to pay was in violation of the Tennessee Consumer Protection Act. The jury declined to award punitive damages. Likewise, the trial court affirmed the verdict but did not treble the damages. Acuity appeals. We affirm.


WILLIAM H. FLEMING v. TEJINDER SAINI, M.D. AND HEALTHQUEST CLINIC

Court: TN Court of Appeals

Attorneys:

Plaintiff/Appellant William H. Fleming, Memphis, Tennessee, self-represented.

Betty Campbell and Elizabeth E. Chance, Memphis, Tennessee, for Defendant/Appellees Tejinder Saini, M.D. and Healthquest.

Judge: KIRBY

This is an appeal from the denial of a post-judgment motion. The defendants filed a motion to dismiss the plaintiff’s lawsuit. At the hearing on the motion, the plaintiff agreed to dismissal of his lawsuit. The trial court entered an order dismissing the lawsuit and assessing court costs against the plaintiff. The plaintiff filed a timely motion to alter or amend, asking the trial court to reconsider the award of court costs; this was denied. The plaintiff filed a second motion to alter or amend, again seeking reconsideration of the award of court costs; this request for reconsideration was denied as well. The plaintiff now appeals the trial court’s order on the second post-judgment motion. Discerning no error, we affirm.


IN RE HANNAH H., ET AL.

Court: TN Court of Appeals

Attorneys:

Shauna L. Boyd, Kodak, Tennessee, for the appellant, Taymie B.

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Justin F.

Robert E. Cooper, Jr., Attorney General and Reporter, and Jordan Scott, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

Tim Gudmunson, Sevierville, Tennessee, Guardian ad Litem.

Judge: MCCLARTY

This is a termination of parental rights case. Following a hearing, the trial court found clear and convincing evidence existed to support the termination of the parental rights of both the mother and the father on the statutory grounds of abandonment based on failure to provide a suitable home, failure to substantially fulfill the requirements of the permanency plans, and persistence of conditions. Tenn. Code Ann. §§ 36-1-113(g)(1)-(3), 36-1-102(1)(A)(ii), 37-2- 403(a)(2). The court further concluded that termination was in the best interest of the children. Tenn. Code Ann. § 36-1-113(i). The mother and father appeal. Finding no reversible error, we affirm the decision of the trial court.


IN THE MATTER OF: SHAYLA H.

Court: TN Court of Appeals

Attorneys:

Lorraine Wade, Nashville, Tennessee, for the appellant, Charlotte M.

Nicholas William Utter, Nashville, Tennessee, for the appellee, Damon H.

Judge: ASH

Mother and Father were divorced and Mother was designated as the primary residential parent of their child in 2003. Father filed a petition several years later seeking to have the designation of primary residential parent changed from Mother to himself. The trial court granted Father’s petition after determining Father had proved a material change in circumstances and it was in the child’s best interest for Father to become the primary residential parent. Mother appealed, and we affirm the trial court’s judgment.


DEBORAH EVANS WILHOIT v. GARY DENNIS WILHOIT

Court: TN Court of Appeals

Attorneys:

Russell E. Edwards and Michael W. Edwards, Hendersonville, Tennessee, for the appellant, Gary D. Wilhoit.

Joseph Y. Longmire, Jr., Hendersonville, Tennessee, for the appellee, Deborah Evans Wilhoit.

Judge: DINKINS

Husband filed a petition to terminate his alimony obligation, asserting that he sold his dental practice following the entry of the final divorce decree for health reasons, as a result of which he was unable to pay alimony because his only income was social security benefits. The trial court found that husband’s retirement constituted a material and substantial change of circumstances, but declined to modify his obligation. Husband appeals the denial of his petition and wife appeals the denial of her request for attorney fees. We affirm the decision in part, reverse in part and remand for further consideration.


TN Court of Criminal Appeals

LARRY W. ANDERSON v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Larry W. Anderson, Pro Se, Henning, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General, for the respondent, State of Tennessee.

Judge: SMITH

Petitioner, Larry W. Anderson, pled guilty to one count of aggravated burglary and one count of evading arrest in a motor vehicle with a risk of death or injury to others and was sentenced by the Davidson County trial court to serve ten years as a Range III, persistent offender. Subsequently, Petitioner filed a pro se petition for writ of habeas corpus in Lauderdale County, alleging that his sentence was void because of the State’s failure to give notice of intent to seek enhanced punishment and because the original trial court did not enter judgment until more than forty-five days after Petitioner had entered his guilty plea. The habeas corpus court summarily dismissed the petition without an evidentiary hearing. Petitioner appeals the dismissal of his petition for writ of habeas corpus. Upon review of the record, we find that the Petitioner has failed to state a cognizable claim and affirm the decision of the habeas corpus court dismissing the petition.


JAMES RICHARD BLUE, JR. V. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Kyle Mothershead, Nashville, Tennessee, for the appellant, James Richard Blue, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dina Shabayek, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, James Richard Blue, Jr., appeals the denial of his petition for post-conviction relief. The petitioner pled guilty to sale of a Schedule II controlled substance over .5 grams and received an agreed-to sentence of twenty years in confinement as a Range III persistent offender. On appeal, he contends that his guilty plea was not entered knowingly and voluntarily due to the ineffective assistance of counsel. Specifically, he contends that trial counsel was ineffective for allowing him to plead as a Range III offender when, because of a failure to enter corrected judgments following a remand, he was in fact only a Range II offender. Following review of the record, we affirm the denial of post-conviction relief.


STATE OF TENNESSEE v. HAROLD D. DOSS, JR. AND JOHNATHAN LAMAR HATHAWAY

Court: TN Court of Criminal Appeals

Attorneys:

Peter J. Strianse, Nashville, Tennessee, for the appellant, Harold D. Doss, Jr.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Johnathan Lamar Hathaway.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Rob McGuire and Sarah Davis, Assistant District Attorneys General for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted Harold D. Doss, Jr., of first degree felony murder, second degree murder, especially aggravated robbery, and especially aggravated kidnapping. The jury convicted Johnathan Lamar Hathaway of first degree felony murder, especially aggravated robbery, and especially aggravated kidnapping. The trial court merged Defendant Doss’s convictions for first degree felony murder and second degree murder and ordered Defendant Doss to serve an effective sentence of life plus thirty years in the Tennessee Department of Correction. The trial court ordered Defendant Hathaway to serve an effective sentence of life in the Tennessee Department of Correction. On appeal, Defendant Doss asserts that: (1) the trial court erred when it denied his motion to sever; (2) the evidence is insufficient to support his convictions; (3) the trial court erred when it admitted hearsay evidence; (4) the trial court erred when it permitted the State to amend the indictment during the trial; (5) his dual convictions for especially aggravated kidnapping and especially aggravated robbery violate his right to due process; and (6) the trial court improperly imposed consecutive sentences. Defendant Hathaway asserts that: (1) there is insufficient evidence to support his convictions; (2) the trial court improperly allowed the State to present “unreliable evidence” of cellular telephone tower technology through a Tennessee Bureau of Investigation agent; (3) the trial court erred when it permitted the State to amend the indictment during the trial; (4) there was juror misconduct; and (5) the trial court applied the incorrect law governing circumstantial evidence. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.


MITCHELL FORD v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

James Randall Frazier, Lawrenceburg, Tennessee, for the appellant, Mitchell Ford.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Robert Carter, District Attorney General; and Weakley E. Bernard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Mitchell Ford, appeals the denial of his petition for post-conviction relief. At trial, the petitioner was convicted of arson and aggravated burglary, Class C felonies, and was sentenced to two fifteen-year terms to be served concurrently. On appeal, he argues that he was denied his right to effective assistance of counsel because trial counsel failed to challenge the identification of the petitioner by the State’s witnesses and failed to challenge a juror who knew the victim and the petitioner and his family. Following a review of the record, we conclude that the petition was properly denied and affirm the judgment of the post-conviction court.


STATE OF TENNESSEE v. KEVIN HARDING

Court: TN Court of Criminal Appeals

Attorneys:

Ronald G. Freemon, Columbia, Tennessee, for the appellant, Kevin Harding.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Mike Bottoms, District Attorney General; and Beverly White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Kevin Harding, was convicted of one count of facilitation of possession of marijuana, a Schedule VI drug, with the intent to sell, a Class A misdemeanor, one count of possession of cocaine with intent to sell, a Class B felony, one count of possession of drug paraphernalia, a Class A misdemeanor, and one count of possession of a firearm during the commission of a dangerous felony, a Class D felony. The trial court sentenced the defendant to a four-year sentence for facilitation of possession of marijuana with the intent to sell, a seventeen-year sentence for possession of cocaine for resale, a sentence of 11 months and 29 days for possession of drug paraphernalia, and an eight-year sentence for possession of a firearm during the commission of a dangerous felony. The court ordered the possession of cocaine for resale and possession of drug paraphernalia sentences to be served concurrently, and the sentence for possession of a firearm during the commission of a dangerous felony to run consecutively to the sentence for possession of cocaine for resale, for an effective sentence of twenty-five years. On appeal, the defendant argues that the trial court erred when it failed to define the charge of simple possession of cocaine for the jury; that the trial court committed plain error in sentencing the defendant to serve four years for facilitation of possession of marijuana with the intent to sell; and that the trial court committed plain error in failing to require the State to elect the felony to serve as the underlying felony for possession of a firearm and failing to define “dangerous felony” for the jury. After reviewing the record, we affirm the judgment of the trial court for possession with the intent to sell cocaine, reverse the judgment for facilitation because the sentence was outside the appropriate class range, and reverse the judgment for possession of a firearm during the commission of a dangerous felony. The case is remanded for resentencing on the facilitation conviction and for a new trial on the possession of a firearm charge.


ANDRE KIMBROUGH v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Andre Kimbrough, Whiteville, Tennessee, Pro Se.

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

Judge: WILLIAMS

The petitioner, Andre Kimbrough, was convicted of second degree murder, a Class A felony. He now appeals the denial of his petition for post-conviction relief. On appeal, he argues that the statute of limitations for filing a petition for post-conviction relief should be tolled because trial counsel did not give the petitioner adequate notice that his direct appeal was denied or notice that trial counsel did not apply for permission to appeal to the Tennessee Supreme Court. After reviewing the record, we affirm the denial of post- conviction relief.


MICHAEL MARTEZ RHODES V. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Elaine Heard, Nashville, Tennessee, for the appellant, Michael Martez Rhodes.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Katrin Miller, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Michael Martez Rhodes, appeals the denial of his petition for post-conviction relief. In a best interest plea agreement, the petitioner pled guilty to two counts of attempted aggravated sexual battery, Class C felonies, and received two four-year sentences. The trial court subsequently ordered that the sentences be served consecutively in the Department of Correction. On appeal, the petitioner contends that his guilty plea was not knowingly and voluntarily entered due to the ineffectiveness of trial counsel. Specifically, he contends that trial counsel was ineffective because he “pushed” the petitioner to accept the guilty plea even though the petitioner maintained that he did not commit the acts for sexual gratification, an element of the offense. Following review of the record, we affirm the judgment of the post- conviction court.


Kingsport Bar Supports Retention of Appellate Judges

The Kingsport Bar Association adopted a resolution today supporting the retention of the judges of the Tennessee Supreme Court, Court of Appeals and Court of Criminal Appeals in the August general election. The motion to adopt the policy passed without opposition, the group's president, Michael L. Forrester, reports.


Tennessean: 10 Primaries to Watch

The Tennessean looks at 10 state primary races for the General Assembly that are worth following. Among the candidates are Sen. Stacey Campfield, R-Knoxville; Nashville attorney Jeff Yarbro, who is seeking to fill the seat of retiring Sen. Douglas Henry; Sen. Mae Beavers, R-Mt. Juliet; and three who are seeking to fill the seat being left vacant by House Democratic Caucus Chairman Mike Turner.


Citing His Own Law School Debt, Obama Expands Repayment Caps

President Barack Obama has signed an executive order expanding a 2010 law that capped certain student-loan repayments at 10 percent of the borrower’s monthly income. Obama announced the action on Monday, citing his own experience with law school loans paid off just 10 years ago. Currently, the 10 percent cap is not available to those with older loans. The executive order will expand the program to nearly five million additional federal direct student loan borrowers. The ABA Journal links to several stories on the move.


Loudon County Bar Association Elects New Officers

The Loudon County Bar Association has elected new officers. They are: President Ian McCabe, President-elect Chad Wilson, Secretary Travis McCroskey, Treasurer/Historian Robert G. Hinton and Past President A. Wayne Henry. The bar association also reports that its goals for the 2014-2015 bar year include holding a “People’s Law” event and two social events to highlight pro-bono opportunities.


Vanderbilt Rape Case Back in Court

A packed courtroom listened to arguments Monday in the legal dispute over access to records in the Vanderbilt University rape case that led to charges against four former football players. At issue is how the state's laws on open records, fair trials and victims' privacy rights intersect as cases move through the courts, the Tennessean reports. Key players in the suit also argued over which court should hear the case. Both issues will be decided by the Tennessee Court of Appeals in the coming weeks.


Columns Cover Labor Law, Hospice ... and Golf

In his "The Law at Work" column in the June Tennessee Bar Journal, Ward Phillips writes with co-author Brandon Morrow "that courts have not been shy to award substantial fees and costs to employers who have been required to combat frivolous claims." They look at how courts have been increasingly critical of agencies’ “sue first, ask questions later” strategy. In Monica Franklin's "Senior Moments" column, she helps you and your clients know when to choose Hospice and who pays for it, and she explains the new "Medicare Choices Model." Humor columnist Bill Haltom explores the game of golf -- and why he ended up selling his golf clubs at a yard sale.


Service Tomorrow for NSL Graduate

Nashville native Anthony "Tony" Papuchis died June 8. A graduate of Vanderbilt University and the Nashville School of Law, Papuchis opted for a career in structural engineering. His family reports that he was involved in multiple mid-Tennessee buildings, including the Pennington Bend Elementary School and LP Field. Visitation is today and tomorrow at the Hamilton United Methodist Church, 3105 Hamilton Church Rd., Antioch 37013. A memorial service will be held Wednesday at 11 a.m. at the church.


Services Thursday for Former State Representative

J. William "Bill" Pope Jr. of Dayton died June 8 from cancer. He was 76. A native of Nashville, Pope attended the University of Tennessee and the Cumberland School of Law in Birmingham. He worked as an attorney with the Tennessee Valley Authority and later in private practice before being elected to the Tennessee House of Representatives. After an unsuccessful Congressional race, he was appointed district attorney general of the 18th Judicial District (now the 12th), where he served until retiring in 1992. Services will be Thursday at 1 p.m. CDT. In lieu of flowers, the family suggests donations be made to the Vanderbilt Gift Processing Office, Attn: Thorasic Cancer Research, Vanderbilt University, PMB 407727, 2301 Vanderbilt University Place, Nashville, TN 37240-7727. The Chattanoogan.com has more on this life.


Golf Tournament to Benefit CASA Monroe

CASA Monroe will benefit from this year’s "Chip in for a Child,” an annual golf tournament sponsored by Fritts and Associates and Fritts Financial in Knoxville. The tournament will take place Monday at Rarity Bay Golf Club, beginning at 11:30 a.m. It is $75 to play, which includes golf, a boxed lunch, giveaways, and a master’s buffet dinner. Prizes will be awarded for closest to the pin, longest drive and a chipping contest. Hole sponsorships also are available. Knoxnews has details on the event.


Thompson’s Station Lawyer Disbarred

William A. Lane of Thompson’s Station was disbarred on June 9 for submitting false and deceptive fee claims to the Administrative Office of the Courts. The court found that Lane failed to keep time records for work done on behalf of indigent defendants, billed out-of-court time as if it were in-court time, and failed to prorate his time when appearing on multiple cases during one hearing. Lane did not file an answer to the petition nor appear for the final hearing. Download 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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