Haslam Names Chancellor to Court of Appeals

Chancellor Kenny W. Armstrong of Memphis has been appointed to the Tennessee Court of Appeals, Western Section by Gov. Bill Haslam. Effective Sept. 1, Armstrong will replace Judge Holly Kirby, who has been appointed to the Tennessee Supreme Court. The Administrative Office of the Courts has more.

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
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
02 - 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 Supreme Court

STATE OF TENNESSEE v. GLOVER P. SMITH

Court: TN Supreme Court

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Jeffrey D. Zenter, Assistant Attorney General; William Whitesell, Jr., District Attorney General; and Trevor Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

Jonathan L. Miley, Nashville, Tennessee, for the appellant, Glover P. Smith.

Judge: HOLDER

The defendant was indicted on two counts of fabricating evidence and on six counts of making a false report arising out of the disappearance of his wife. A jury convicted the defendant on all counts, and the trial court imposed a sentence of one year in the county jail followed by six years on probation. After a hearing on the defendant’s motion for new trial, the trial court affirmed the convictions for making a false report but dismissed the convictions for fabricating evidence after concluding that no investigation was “pending” when the defendant fabricated evidence. Both the State and the defendant appealed. The Court of Criminal Appeals reinstated the defendant’s convictions for fabricating evidence, dismissed as multiplicitous two convictions for making a false report, and affirmed the remaining convictions and sentences. We granted the defendant permission to appeal. Although we affirm the Court of Criminal Appeals’ reinstatement of the defendant’s convictions for fabricating evidence, we conclude that two of the defendant’s convictions for making a false report should be dismissed because the evidence is insufficient to support these convictions. We also conclude that three of the defendant’s convictions for making a false report are multiplicitous and therefore dismiss two of those convictions. We affirm the Court of Criminal Appeals in all other respects.


TN Court of Appeals

CLAYTON ARDEN, SURVIVING SPOUSE OF DEBORAH ARDEN, DECEASED v. KENYA I. KOZAWA, M.D. ET AL.

Court: TN Court of Appeals

Attorneys:

Donna Keene Holt and G. Turner Howard, III, Knoxville, Tennessee, for the appellant, Clayton Arden.

Heidi A. Barcus, Knoxville, Tennessee, for the appellees, Kenya I. Kozawa, M.D., and Ken Kozawa, M.D., P.C.

Gary G. Spangler and Carrie S. O’Rear, Knoxville, Tennessee, for the appellee, Sweetwater Hospital Association.

Judge: FRIERSON

The plaintiff, as surviving spouse, appeals the trial court’s dismissal of his health care liability action against the defendant doctor who treated the plaintiff’s wife prior to her death and the hospital wherein the treatment occurred. The trial court granted the defendants’ motions for summary judgment based upon the plaintiff’s failure to strictly comply with the pre-suit notice requirements of Tennessee Code Annotated § 29-26-121 (Supp. 2013). We reverse the trial court’s ruling that the plaintiff had to strictly comply with the provisions of the notice requirement and conclude that the plaintiff substantially complied with said requirement. We affirm, however, the trial court’s ruling that the plaintiff could not rely upon the statutory 120-day extension of the statute of limitations due to his failure to properly serve the notice. We therefore affirm the trial court’s dismissal of the plaintiff’s claims as barred by the statute of limitations.


DAVID D. CLARK, JR. v. ASHLYN M. COOPER

Court: TN Court of Appeals

Attorneys:

Franz F. Springmann, Sr., Sevierville, Tennessee, for the appellant, Ashlyn M. Cooper.

No appearance by or on behalf of David D. Clark, Jr.

Judge: SUSANO

This is a case focusing on the custody of J.C.C. (“the Child”), the son of the parties. Soon after the parties entered into an agreed order giving “temporary” custody of the Child to the paternal grandparents, Ashlyn M. Cooper (“Mother”) sought to regain custody. After a hearing, the juvenile court denied Mother’s request. The court determined that Mother failed to establish a material change in circumstances warranting a change of custody. Mother appeals. We conclude that the trial court erred as a matter of law when it applied the standard of “material change in circumstances” to Mother’s motion to modify a “temporary” custody order. We vacate the judgment and remand for further proceedings.


ASHLEY EVANS v. NIGEL M. REID

Court: TN Court of Appeals

Attorneys:

Nigel M. Reid, Morristown, Tennessee, appellant, pro se.

No appearance by or on behalf of the appellee, Ashley Evans.

Judge: SUSANO

At an earlier time, Ashley Evans (“the petitioner”) filed a petition against Nigel M. Reid (“the respondent”) seeking an order of protection. The trial court dismissed the petition due to “[in]sufficient cause.” In the same order, however, the court found “proof of the need of a restraining order.” Accordingly, the court restrained the respondent from coming about, calling or harassing the petitioner or her family. Several years later, the respondent asked the court to void the restraining order, which, on its face, was still in effect. The court refused. The respondent appeals. We reverse the trial court and hold that (1) the trial court was without jurisdiction to issue the restraining order and (2) the restraining order is, consequently, null and void.


PRACTICAL VENTURES, LLC d/b/a AAA CASH FAST v. JAMES NEELY, COMMISSIONER OF THE TENNESSEE DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, AND DANYELLE A. McCULLOUGH

Court: TN Court of Appeals

Attorneys:

Timothy A. Perkins, Memphis, Tennessee, for Plaintiff/Appellant Practical Ventures d/b/a AAA Cash Fast

Robert E. Cooper, Jr., Derek C. Jumper, and Kathryn A. Baker, Nashville, Tennessee, for Defendant/Appellee Tennessee Department of Labor and Workforce Development

Judge: KIRBY

This is an appeal from an administrative decision on unemployment benefits. The appellee Tennessee Department of Labor and Workforce Development held that the claimant employee was “constructively discharged” and was therefore eligible for unemployment benefits. The appellant employer filed a petition for judicial review of the administrative decision. The chancery court affirmed, and the employer appeals. We hold that the doctrine of constructive discharge is inapplicable to proceedings under the unemployment compensation statutes. The facts as found by the administrative tribunal support a holding that the employee voluntarily terminated her employment. For this reason, we conclude that the administrative decision awarding benefits to the employee is not supported by substantial and material evidence and is arbitrary and capricious. Accordingly, we reverse.


WILSON R. VASCONEZ v. SHELBY COUNTY, TENNESSEE, ET AL.

Court: TN Court of Appeals

Attorneys:

Virginia P. Bozeman and Robert B. Rolwing, Memphis, Tennessee, for the appellant, Shelby County, Tennessee.

Kevin A. Snider, Germantown, Tennessee, for the appellee, Wilson R. Vasconez.

Judge: STAFFORD

Appellant Shelby County appeals a portion of the trial court’s judgment in favor of Appellee, the purchaser of property formerly owned by Shelby County. After a bench trial, the trial court awarded the Appellee property damages, prejudgment interest, and attorney’s fees based on its finding that Shelby County committed inverse condemnation of the Appellee’s property by failing to inform the Appellee of the condemnation proceedings commenced by the City of Memphis. Because the City of Memphis, and not Shelby County, was the condemnor of the property, we conclude that the trial court erred in awarding damages against Shelby County on the theory of inverse condemnation, and further erred in awarding attorney’s fees pursuant to the inverse condemnation statute. Accordingly, we reverse the finding of inverse condemnation and the award of attorney’s fees against Shelby County. Shelby County does not appeal the trial court’s award of property damages or prejudgment interest. That award is, therefore, affirmed. Affirmed in part, reversed in part, and remanded.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. BRANDON HARRIS

Court: TN Court of Criminal Appeals

Attorneys:

Juni S. Ganguli (on appeal) and Randall B. Tolley (at trial), Memphis, Tennessee, for the appellant, Brandon Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Amy P. Weirich, District Attorney General; and Pamela Fleming and Steve Crossnoe, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Brandon Harris, was convicted by a Shelby County Criminal Court jury of especially aggravated robbery, a Class A felony; reckless endangerment, a Class A misdemeanor; and three counts of assault, Class A misdemeanors. He was sentenced to twenty-five years for the especially aggravated robbery conviction and eleven months and twenty-nine days for the reckless endangerment and each of the three assault convictions. All of the sentences were ordered to be served consecutively for an effective term of twentyeight years, eleven months, and twenty-five days in the Tennessee Department of Correction. On appeal, the defendant argues that: (1) the trial court erred in allowing a voice recognition “expert” to testify; (2) the trial court erred in denying his request for a jury instruction regarding mere presence; (3) the evidence is insufficient to sustain his convictions; and (4) the trial court erred in imposing excessive and consecutive sentences. After review, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. RYAN SOSA

Court: TN Court of Criminal Appeals

Attorneys:

Edward Cantrell Miller, District Public Defender; and Amber Haas, Assistant Public Defender, for the appellant, Ryan Sosa.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; James B. Dunn, District Attorney General; and Tim Norris, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In this appeal, the Defendant, Ryan Sosa, contends that the trial court abused its discretion in revoking his probation and ordering his original sentences for the sale of cocaine into execution because he showed a willingness to abide by the rules of probation and had not had any issues on probation prior to the violations currently at issue. Upon consideration of the foregoing and the record as a whole, we affirm the trial court’s sentencing decision.


UT Law to Freeze Tuition for Upcoming Academic Year

The University of Tennessee Board of Trustees voted today to freeze tuition for College of Law students for the 2014-2015 academic year. Tuition will remain at $16,078 for Tennessee residents and $34,522 for out-of-state students. “While UT Law has been identified as a solid value in legal education for years, even modest tuition increases make the cost of attendance very challenging for many candidates who would add talent and diversity to our student body,” College of Law Dean Douglas A. Blaze said in a statement.


Lawmakers Pledge to Strengthen Domestic Violence Law

State lawmakers are calling for strengthening a Tennessee domestic violence law following the early release of a suspect who police said returned home to abuse his girlfriend a second time, the Tennessean reports. Nashville General Sessions Judge Casey Moreland has come under fire for authorizing the release after only three hours in jail. Tennessee law says that domestic abuse and stalking suspects should be held in jail for 12 hours after an arrest if they are determined to be a continued danger to victims. House Speaker Beth Harwell, Rep. William Lamberth, R-Cottontown, State Rep. Gary Odom, D-Nashville, and Rep. Sherry Jones, D-Nashville, all pledged to introduce similar laws and make strengthening domestic violence laws a “priority when they get back in session.” Several are calling for Moreland’s resignation, including Tennessean writer Frank Daniels, mayoral candidate Megan Barry and Davidson County Republican Party Chairman Robert Duvall.


Chattanooga Bar Foundation Presents New Fellows

The Chattanooga Bar Foundation selected new Fellows during the Chattanooga Bar Association’s annual Law Day celebration last month. The Class of 2014 Fellows are Frederick L. “Rick” Hitchcock, Marc H. Harwell, Mark A. Ramsey, Thomas L. Wyatt, Hugh F. Sharber, Virginia C. Love, John C. Harrison and Barry L. Abbott. The Hamilton County Herald has the story.


Bradley County Bar Names New Officers

The Bradley County Bar Association has elected the following officers for the 2014-2015 bar year: Ashley L. Ownby, president; Jerry Hoffer, vice president; Rex A. Wagner, treasurer; and Daniel W. Clanton, secretary.


Attorney Takes on Drunk Driving Loophole

Chattanooga defense attorney Robin Flores tells News Channel 9 that attorneys who defend people charged with DUI may now be able to challenge their clients' charges, thanks to the results of a newspaper investigation. Flores says a story in the Memphis Commercial Appeal indicates a loophole in the law is not being applied fairly to people charged with simple DUI, who apparently face more jail time than people who kill someone while driving drunk. Flores sees the Tennessee Supreme Court being asked to rule on the law, but ultimately says the legislature will have to close the loophole to make the DUI law more fair.


'Justice in Motion' Proceeds Presented to Domestic Violence Shelters

First Judicial District Attorney General Tony Clark and Washington County Sheriff Ed Graybeal presented checks to two local domestic violence shelters yesterday, WJHL reports. Clark and Graybeal presented the proceeds from the April 26 Justice in Motion 5K run/walk to Safe Passage of Johnson City and CHIPS of Erwin. The checks totaled more than $5,000.


MBA Launches Judicial Qualification Poll

The Memphis Bar Association is conducting an online Judicial Qualification Poll for the contested judicial, court clerks and District Attorney races in the August election. An email link to the Judicial Qualification Poll was sent to licensed, actively practicing attorneys in Shelby County on Tuesday. Results will be announced on June 30. For more information, see the MBA website.


In Defense of Defense Attorneys

The Washington Post examines why being a public defender is increasingly bad for a candidate’s political future in a June 17 article. Political candidates in Arkansas and South Carolina were subjected to attacks for having "personally defended dangerous criminals" as part of their jobs as defense attorneys. The paper notes one of the reasons Debo Adegbile’s nomination to lead the Department of Justice’s Civil Rights Division was rejected was because he once helped prepare a brief in defense of a man convicted of murdering a police officer. Potential presidential candidate Hillary Clinton also faced attack for her work as a defense attorney early in her career. Steven Benjamin, the immediate past president of the National Association of Criminal Defense Lawyers, called the attacks on criminal defense attorneys and public defenders assigned by the state “grossly unfair.” "Public defenders and court-appointed attorneys are the backbone of the criminal justice system," he said. "Without them, the criminal justice system couldn't function."


Civics Education Program Captures Emmy Award

The groundbreaking civics education campaign backed by the TBA has earned an Emmy Award for a public service film featuring former U.S. Supreme Court Justice Sandra Day O’Connor. The Informed Voters Project was developed by the National Association of Women Judges. It focuses on providing non-partisan education to increase public awareness about the judicial system, to inform voters that politics and special interest attacks have no place in the courts, and to give voters the tools they need to exercise an informed vote in favor of fair and impartial courts.


Pegram Attorney Seeks House Seat

Jane Crisp, owner-operator of Chigger Ridge Bed and Breakfast and Horse Farm in Pegram, is seeking the District 78 Tennessee House of Representatives seat as a Democrat, the Tennessean reports. Crisp worked as a probation officer during law school and became Director of Project First Offender upon graduation. Besides private practice, she was a Regional Attorney and later lead attorney with the State of Tennessee, pursuing civil prosecution of child abuse and neglect and adult protection cases.


GOP to Meet Candidates at June 28 Town Hall Meeting

A group of Crossville-area conservative Republicans will host a pre-election meeting with local, state and federal Republican candidates, including those running for judicial posts. The event will be held at St. George Marina in Fairfield Glade on June 28 from 2 p.m. to 6 p.m. The format for the afternoon meeting will provide voters with a brief description of the requirements and duties for each political and judicial office. A picnic lunch plate will be available for $7 per person. The Crossville Chronicle has more.


Retirement Celebration for Justice Koch July 7

Tennessee attorneys are invited to join in celebrating the retirement of Tennessee Supreme Court Justice William C. Koch Jr. at a July 7 event in the Supreme Court Building in Nashville, beginning at 11 a.m. Justice Koch announced earlier this year that he is retiring in order serve as dean of Nashville School of Law. RSVP to Lisa Hazlett-Wallace by July 1.


Civil Rights 50th Anniversary Celebration July 9

The YWCA is urging Tennesseans to take a stand against racism and join the organization as it celebrate the 50th Anniversary of the Civil Rights Act of 1964. Nashville Mayor Karl Dean, District Attorney-elect Glenn Funk and others will speak at noon on July 9 at the Church Street Park, 600 Church St. Live music, food trucks and ice cream will be available.


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Questions, comments: Email us at TBAToday@tnbar.org

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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