Memphis Poll: 8 of 10 Support Retention of Justices

The Memphis Bar Association (MBA) today released the results of its member poll of judicial candidates standing for retention election and candidates in contested judicial, court clerk and district attorney elections. The 1,383 members responding gave strong support for the retention of the state Supreme Court justices -- with all receiving about 80 percent support -- and for local appellate judges. See the full results for member preferences in trial court and other judicial races.

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
06 - 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









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TN Supreme Court

Tennessee Supreme Court DISCRETIONARY APPEALS Grants & Denials List

Court: TN Supreme Court


TN Court of Appeals

STEVEN BARRICK and JANICE BARRICK v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and THOMAS HARRY JONES

Court: TN Court of Appeals

Attorneys:

William D. Leader, Jr., and Paul J. Krog, Nashville, Tennessee, for the appellants, Steven and Janice Barrick.

Brigid M. Carpenter, Nashville, Tennessee, for the appellees, State Farm Mutual Automobile Insurance Company and Thomas Harry Jones.

Judge: ASH

This appeal arises from a trial court’s judgment granting State Farm Mutual Automobile Insurance Company (“State Farm”) and Agent Thomas Harry Jones’ motion for summary judgment and dismissing the Barricks’ action for negligence and violation of the Tennessee Consumer Protection Act. The Barricks held automobile insurance coverage through State Farm, with Thomas Jones as their agent, from 1985 until 2009, and their coverage limits remained the same throughout this period. The Barricks sued, claiming State Farm and Jones had a duty of care to advise the Barricks of their need for increased coverage. The Barricks now appeal, arguing the trial court erred in dismissing their claims. We affirm the trial court’s decision to grant summary judgment regarding the negligence claim. We reverse the trial court’s judgment based on the assumption of duty, which the trial court did not directly address, and the Tennessee Consumer Protection Act claims, since State Farm and Mr. Jones cannot meet their burden under Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 5 (Tenn. 2008), in these claims. We also reverse the trial court’s summary judgment in favor of State Farm for vicarious liability and failure to supervise in regard to the alleged assumption of duty by the agent.


CAPITAL BANK v. OSCAR BROCK ET AL.

Court: TN Court of Appeals

Attorneys:

William A. Harris, III, Chattanooga, Tennessee, for the appellants, Oscar Brock and Frank E. Cowden, III.

Wade K. Cannon and Justin B. Faith, Chattanooga, Tennessee, for the appellee, Capital Bank.

Judge: SUSANO

Capital Bank filed a complaint seeking a deficiency judgment against Oscar Brock and Frank E. Cowden, III (“Defendants”) after they defaulted on a loan and following the sale at foreclosure of the property securing the debt. After settlement discussions were unsuccessful, Capital Bank moved for summary judgment. It asserted that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. Defendants contested the motion but only as to the amount of the deficiency and the issue of whether Capital Bank is entitled to an award of attorney’s fees. As a defense to the deficiency claim, Defendants stated that the property was sold at foreclosure for an amount “materially less” than its fair market value and that Capital Bank’s knowledge of the alleged less-than-market- value sales price amounted to fraud, collusion or misconduct. The trial court granted Capital Bank’s motion. It was awarded a judgment of $168,798.98 which amount includes $70,628.85 in attorney’s fees.1 Defendants appeal. We affirm.


BRITTANY EVANS, By and Through Her Attorney-in-Fact, MARY EVANS, Her Natural Mother v. JENNIFER WILLIAMS, ET AL.

Court: TN Court of Appeals

Attorneys:

Euel W. Kinsey, Detroit, Michigan, for the appellant, Mary Evans.

Dixie W. Cooper and Chris Tardio, Nashville, Tennessee, for the appellees, Jennifer Williams and James L. Williams, II

Judge: FARMER

This is a health care liability action appeal.1 The case was tried before a jury, resulting in a judgment for the defendant physicians. The trial court excluded the testimony of one of the plaintiff’s expert witnesses on the applicable standard of care after finding that he was not qualified under the locality rule. The plaintiff appealed to this Court arguing, among other things, that the trial court erred in its application of the locality rule. We hold that it was error for the trial court to exclude the witness, but find that any error was harmless under the facts of this case. We therefore affirm.


IN RE HARLI B.

Court: TN Court of Appeals

Attorneys:

David D. Wolfe, Dickson, Tennessee, for the appellant, Jeremy B.

Sharon T. Massey, Clarksville, Tennessee, for the appellee, Jessica H.

Judge: CLEMENT

Father appeals the modification of the primary residential plan and specifically the designation of Mother as the primary residential parent of the parties’ five-year-old daughter. In 2010, Father was designated as the primary residential parent of their two-year old child and the parents were awarded equal and shared parenting time based on an alternating weekly schedule. Over the next two years, the employment and marital status of each parent changed and Mother had three additional children. Based on these changes, Mother filed a petition in July 2012 to modify the primary residential plan requesting that she be designated as the primary residential parent. Finding, inter alia, that Mother was no longer employed, that she worked in the home caring for the parties’ child as well as her three younger children who were born after the initial plan went into effect, and that she had been acting as the de facto primary residential parent, the court granted Mother’s petition and designated her as the primary residential parent. We affirm.


IN RE KIARA C.

Court: TN Court of Appeals

Attorneys:

Susan H. Rushing, Alcoa, Tennessee, for the appellant, Mark C.

James R. LaFevor, Knoxville, Tennessee, for the appellees, Pamela B. and Richard B.

Robert L. Huddleston, Maryville, Tennessee, Guardian ad litem.

Judge: FRIERSON

This is a termination of parental rights case, focusing on Kiara C., the minor child (“Child”) of Mark C. (“Father”) and Pamela B. (“Mother”). On April 9, 2012, Mother and Mother’s husband, Richard B. (“Stepfather”), filed a petition for termination of Father’s parental rights and adoption of the Child by Stepfather. Following a bench trial, the trial court granted the petition for termination upon its finding, by clear and convincing evidence, that Father had abandoned the Child by willfully failing to visit her and willfully failing to provide financial support in the four months preceding the filing of the petition. The court further found, by clear and convincing evidence, that termination of Father’s parental rights was in the Child’s best interest. Father has appealed. We affirm.


WILLIAM H. THOMAS, JR. v. TENNESSEE DEPARTMENT OF TRANSPORTATION

Court: TN Court of Appeals

Attorneys:

John Lee Farringer and Lauren Zehr Curry, Nashville, Tennessee, for the appellant, William H. Thomas, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph Whalen, Acting Solicitor General; and Larry Teague, Deputy Attorney General; for the appellee, State of Tennessee, Department of Transportation.

Judge: BENNETT

This appeal arises from a petition for judicial review of the Tennessee Department of Transportation’s decision to deny the petitioner’s applications for billboard permits. Discerning no error, we affirm the chancery court’s decision upholding the Department’s denial.


TN Court of Criminal Appeals

BRADLEY WAYNE ADAMS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Richard Hughes, Cleveland, Tennessee, for the appellant, Bradley Wayne Adams.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Steven Bebb, District Attorney General; and Steve Morgan, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Bradley Wayne Adams (“the Petitioner”) pleaded guilty to one count each of second degree murder and aggravated assault. The Petitioner subsequently filed for post-conviction relief, alleging ineffective assistance of counsel. Following a hearing, the post-conviction court denied relief. The Petitioner now appeals. Upon our thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.


ROBERT JASON BURGESS v. STANTON HEIDLE, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Debbie Zimmerle, Lewisburg, Tennessee, for the petitioner, Robert Jason Burgess.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Robert Carter, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the respondent, State of Tennessee.

Judge: SMITH

Petitioner, Robert Jason Burgess, pled guilty to two counts of the sale of a controlled substance and two counts of rape in Marshall County. As a result, he was sentenced to an effective sentence of twenty-six years. After the denial of post-conviction relief, Petitioner sought habeas corpus relief in which he argued that his guilty plea was unknowingly or involuntarily entered because he was not informed that his sentence carried a community supervision for life provision. After a review of the record and applicable authorities, we affirm the judgment of the habeas corpus court which dismissed the petition for relief.


STATE OF TENNESSEE v. MARVIN MAGAY JAMES GREEN

Court: TN Court of Criminal Appeals

Attorneys:

Marvin Magay James Green, pro se, Henning, Tennessee, as the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; and Lacy Wilber, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Marvin Magay James Green (“the Defendant”) pleaded guilty to several offenses, including possession with intent to sell or deliver .5 grams or more of cocaine within 1000 feet of a school zone (“the cocaine conviction”). The trial court sentenced the Defendant to fifteen years of incarceration for the cocaine conviction, to be served at 100%. The Defendant subsequently filed motions, a petition for post-conviction relief, and a petition for writ of habeas corpus, all attacking the cocaine conviction and sentence. The trial court consistently denied relief, and the Defendant appealed. This Court consolidated the Defendant’s appeals. Upon our thorough review of the record and applicable law, we conclude that the Defendant is entitled to no relief. We also have determined that the judgment order entered on the cocaine conviction contains a clerical error. Therefore, we remand this matter for the correction of that error. In all other respects, we affirm the trial court’s rulings and judgments.


MARVIN BOBBY PARKER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Beau E. Pemberton, Dresden, Tennessee, for the appellant, Marvin Bobby Parker.

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

Judge: WILLIAMS

The petitioner, Marvin Bobby Parker, was convicted of reckless aggravated assault, two counts of assault, and one count of reckless endangerment after a violent confrontation at a racetrack. He appeals the denial of his petition for post-conviction relief. On appeal, the petitioner asserts that the post-conviction court erred in rejecting his argument that he received the ineffective assistance of counsel when: (1) trial counsel did not allow him to testify at the grand jury proceedings; (2) trial counsel did not request an instruction on self-defense during trial; (3) trial counsel failed to call certain witnesses at trial and at the preliminary hearing; (4) trial counsel failed to prepare him to testify; (5) trial counsel failed to pursue or advise him regarding pretrial diversion; (6) trial counsel did not introduce a videotape into evidence; and (7) trial counsel’s cumulative errors deprived him of a fair trial. After a review of the record, we conclude that the petition was properly dismissed, and we affirm the judgment of the post-conviction court.


Registration for August Election Ends July 8

Registration for the August election ends July 8, while early voting runs from July 18 to Aug. 2. This year, the August general election will include judicial races across the state and party primaries for state offices that will be on the ballot in November. See all key election dates on the Secretary of State’s website. Get information about early voting locations from your county election commission.


Judge Offers Reward for Stolen Campaign Signs

Murfreesboro Judge Ben Hall McFarlin is offering a reward for information about 20 campaign signs that were stolen last weekend, WKRN News 2 reports. In addition to filing a report with Murfreesboro police, McFarlin is offering a $1,000 reward for information leading to an arrest in the case. McFarlin is running as an independent for his third term as General Sessions Court judge.


Obama to Bypass Congress on Immigration

President Barack Obama vowed Monday to bypass Congress and pursue unilateral changes to the country's immigration system, Fox News reports. The president said he is forced to go it alone because the House has failed to act on a comprehensive overhaul. In a written statement, House Speaker John Boehner called the announcement "sad and disappointing," and said executive orders "can't and won't fix these problems." Obama’s actions today direct the attorney general and director of Homeland Security to move "available resources" to the border and ask a team to "identify additional actions” he can take within existing legal authorities. Those recommendations are due back by the end of the summer.

The president also wrote to congressional leaders today asking for more flexibility to deal with the surge of illegal immigrant children along the border, increased penalties for those who smuggle vulnerable immigrants and emergency funding to deter additional border crossings.


Judge Donald to Receive ABA Pickering Award

Sixth Circuit Court of Appeals Judge Bernice Donald will receive the American Bar Association’s 2014 John H. Pickering Award of Achievement during the group’s Annual Meeting in Boston this August. Donald, a native of Mississippi, worked for Memphis Area Legal Services and the Shelby County Public Defender’s Office before being elected the first female African-American judge in Tennessee. She later moved from General Sessions court to the U.S. Bankruptcy Court and the U.S. District Court for western Tennessee. She was appointed to her current position in 2010. In nominating Donald, California attorney Pauline Weaver wrote, “Judge Donald represents the best of the profession. She has consistently demonstrated the kind of integrity, legal ability, access to justice and public service that would make John Pickering proud.”


New State Laws Take Effect July 1

Beginning on July 1, some 180 new Tennessee laws will take effect, WBIR.com reports. Among them is an anti-meth bill that limits the amount of pseudoephedrine people can buy to less than six grams a month. Two laws named in memory of a Knoxville couple murdered in 2007 will remove the state's 13th juror rule, which requires a judge to sign a unanimous verdict, and prevent attorneys from bringing up allegations of a victim's past that are not related to the case. Another, known as “Amelia's Law,” will allow judges to order offenders and parolees to wear a monitoring device that tests blood every 30 minutes if alcohol or drugs played a role in the underlying crimes. And finally, prosecutors will be allowed to charge mothers caught abusing drugs while pregnant. The Sparta Expositor also offers a list of new laws.


Judge Moreland Speaks Out, Considers Libel Suit

Nashville attorney Bob DeLaney has told WKRN News 2 that General Sessions Judge Casey Moreland has asked him to look at the possibility of filing a libel lawsuit against Metro Police Chief Steve Anderson. Word of a potential suit comes after a “blistering” public letter from Anderson to Bill Higgins, the presiding judge of Metro Nashville's General Sessions, about Judge Moreland's decision to waive the “cooling off period” in a domestic abuse case. Meanwhile, Fox 17 reports that Moreland recently broke his silence in the case, having an employee read a statement in court last week in which he “took responsibility for what he called a bad decision” and pledged to work hard to restore his reputation.


Judge Sell Working on Mental Health Court

Hamilton County General Sessions Court Judge Christie Mahn Sell announced Friday that she is working on establishing a mental health court to help break the cycle of arrest and release for those with mental health issues. Speaking to a local political group, Sell explained that many of these individuals repeatedly face charges such as public intoxication and criminal trespassing, and that a special court could link them to resources to help break that cycle. Chattanoogan.com has the story.


President to Name Lawyer to Lead NTSB

The White House says the president will nominate a lawyer with a history in aviation and transportation safety to head the National Transportation Safety Board, News Channel 5 reports. Christopher Hart joined the board as vice chairman in 2009 and became acting chairman in April. Hart has held high-level posts in the FAA, including deputy director for air traffic safety oversight and assistant administrator for system safety. He served as deputy administrator of the National Highway Traffic Safety Administration before moving to the FAA in 1995. Hart is a licensed pilot with commercial ratings. His great uncle is James Herman Banning, who in 1926, became the first African-American to receive a government-issued pilot's license.


Court: Companies Can Refuse Contraception Insurance

A divided U.S. Supreme Court today ruled the contraceptive mandate in the federal health care law violates the religious freedom rights of corporate owners who object to providing coverage in employee insurance plans. Justice Samuel Alito Jr., writing for the majority, said “closely held” for-profit corporations cannot be required to provide the coverage under the Religious Freedom Restoration Act, which requires the government to use the “least restrictive” option when placing a burden on the exercise of religion. Opponents of the decision warned it would be used by companies to avoid a host of regulations. Law.com has more.


Partial Public Workers Cannot Be Forced to Pay Union Dues

The U.S. Supreme Court ruled 5-4 today that home health-care workers who are partly public employees cannot be forced to pay "fair share" dues for union work affecting the terms and conditions of their jobs. The majority found that compulsory union dues violated the employees' free speech rights. "Except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support," Justice Samuel Alito wrote. The decision stopped short of overturning a 1997 decision that found public employees may be required to pay mandatory union dues as long as the money is not used for political purposes. The ABA Journal has more.


Court Wraps Up Term, Grants Cert in 5 Cases for Fall

The court wrapped up the public portion of its current term today turning aside a number of cases but granting review of five cases for the fall. Among the actions taken today, the court declined to intervene in the Mt. Soledad cross dispute in San Diego; declined to take up a challenge to a California law that bars gay conversion therapy; and declined to hear Google's appeal of a ruling that it violated the federal wiretap law when it took photos for its Street View service. Looking ahead to the fall term, the court granted cert in five cases. Learn more about those from SCOTUSblog.


Training for Advocates Fighting Violence Against Women

The Tennessee Coalition to End Domestic and Sexual Violence is offering an advocacy training July 9-10 in Memphis. The event, which is free, will take place at The Urban Child Institute, 600 Jefferson Ave., Memphis 38105. The training will focus on the history of violence against women, practical advocacy techniques, prevention, vicarious trauma and more. Registration begins at 8:30 a.m. The program will run from 9 a.m. to 4:30 p.m. on Wednesday and from 9 a.m. to 2 p.m. on Thursday. Register online to attend.


TBA Online: Your Source for Valuable Resources

Remember to visit and bookmark TBA.ORG, the TBA website that features current news, new member benefits, CLE courses, your access to Fastcase online legal research and more. You can also keep up with news from the Tennessee legal community through the TBA's Twitter feed, its Facebook page and its LinkedIn group.


 
 

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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