TBA Wins Top Award for Public Education Project

For the second consecutive year, the Tennessee Bar Association earned the top public service award from the Tennessee Society of Association Executives. The 2014 Legal Handbook for Tennessee Seniors was named winner of the Association's Advance Tennessee Award. The TBA’s Public Education Committee updated the Handbook and is continuing to conduct outreach and education across the state. TBA Executive Director Allan Ramsaur and Access to Justice/Public Education Coordinator Liz Todaro accepted the Award today at a Nashville luncheon.

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
03 - TN Court of Appeals
03 - 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 CONSERVATORSHIP OF ROBERT E. L. HATHAWAY, WARD

Court: TN Court of Appeals

Attorneys:

Michael G. Floyd, Memphis, Tennessee, for the Appellant, Flora M. Hathaway

Deborah K. Brooks, Memphis, Tennessee, for the Appellee, Aging Commission of the Mid- South

Judge: KIRBY

This is a conservatorship proceeding. The ward’s wife filed a petition to appoint a conservator in which she asked to be appointed as conservator for the ward. After a trial, the trial court held that the ward was disabled and in need of a conservator but appointed a public conservator instead of the wife. The trial court also set aside a transfer of real property, purportedly made by the ward prior to the filing of the conservatorship action. The wife now appeals, arguing that the trial court erred in setting aside the transfer of real property and in rejecting her request to be appointed conservator. Discerning no error, we affirm.


SCOTT OSTENDORF, ET AL. v. R. STEPHEN FOX, ET AL.

Court: TN Court of Appeals

Attorneys:

Dudley W. Taylor, Knoxville, Tennessee, for the appellants, Plaintiffs

Stephen C. Daves, Knoxville, Tennessee, for the appellees, Mark S. Dessauer and Hunter, Smith & Davis, LLP.

Judge: SWINEY

Scott Ostendorf, et al. (“Plaintiffs”) sued R. Stephen Fox, Mark S. Dessauer (“Attorney Dessauer”), and Hunter, Smith & Davis, LLP (“the Firm”) with regard to a transaction involving the sale of substantially all of the assets of Mothwing Camo Technologies, Inc. The defendants filed motions to dismiss. After a hearing, the Chancery Court for Scott County (“the Trial Court”) granted the motions to dismiss. Plaintiffs appeal to this Court. We find no error in the Trial Court’s finding and holding that Plaintiffs’ claims against Attorney Dessauer and the Firm are barred by the statute of limitations. We, however, find error in the sua sponte dismissal of Plaintiffs’ claims against Mr. Fox for improper venue. We affirm the dismissal of the claims against Attorney Dessauer and the Firm, vacate the dismissal of Plaintiffs’ claims against Mr. Fox, and remand this case for further proceedings.


MARKEESHA L. RUCKER v. FREDERICK E. HARRIS

Court: TN Court of Appeals

Attorneys:

Rebecca S. Montgomery, Nashville, Tennessee, for the appellant, Frederick E. Harris.

Markeesha Rucker, Nashville, Tennessee, Pro Se.

Judge: STANLEY

The trial court fashioned a parenting plan that designated the mother of five year old twins as their primary residential parent and gave the father 91 days of visitation each year. The father argues on appeal that the trial court should have divided parenting time equally between the parties, or, in the alternative, simply granted him additional parenting time. He relies on language in the child custody statute, Tenn. Code Ann. § 36-6-106(a), which directs the court to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child . . .” For her part, the mother argues that the parenting plan adopted by the trial court is in the best interest of the children. We affirm, but we remand this case to the trial court for correction of a clerical error.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. KEVIN LAMONT FRENCH

Court: TN Court of Criminal Appeals

Attorneys:

Robert L. Sirianni, Jr. (on appeal), Winter Park, Florida; and Robert T. Vaughn (at trial), Nashville, Tennessee, for the appellant, Kevin Lamont French.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel; Michelle Consiglio-Young, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Wesley King and Jennifer Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Kevin Lamont French, was convicted by a Davidson County jury of premeditated murder, felony murder, and especially aggravated robbery. He received life sentences for the murder convictions, and the trial court sentenced him to a concurrent sentence of twenty-one years for his especially aggravated robbery conviction. On appeal, he argues that: (1) the evidence was insufficient to support his convictions; (2) the trial court erred by admitting prior bad act testimony; (3) the trial court erred by admitting a letter purportedly written by appellant; (4) the trial court erred by admitting testimony regarding weapons found in appellant’s home; (5) the assistant district attorney general committed prosecutorial misconduct during closing arguments; and (6) the trial court erred by admitting certain autopsy photographs. Following our review of the record, the arguments of the parties, and the applicable law, we affirm the judgments of the trial court but remand the case for the trial court to merge the two murder convictions.


STATE OF TENNESSEE v. MARK EDWARD GREENE

Court: TN Court of Criminal Appeals

Attorneys:

Mark Edward Greene, Henning, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Kim R. Helper, District Attorney General; and Terry E. Wood, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Mark Edward Greene, appeals the denial of his Tennessee Rule of Criminal Procedure 36 motion to correct a clerical error. He alleges that the trial court should have granted pretrial jail credits from the time that Williamson County lodged a detainer against him until the date he was sentenced. Following our review, we affirm the circuit court’s decision.


BLAKE DELANEY TALLANT v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Blake Delaney Tallant.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Steven C. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Blake Delaney Tallant, appeals the denial of his petition for post-conviction relief, arguing that he was denied the effective assistance of trial and appellate counsel due to counsel’s failure to properly educate him on the importance of testifying in his own defense, to press the issue of the bill of particulars in the trial court or to raise it as an issue on direct appeal, and to include the jury questionnaires in the record on direct appeal. Following our review, we affirm the denial of the petition.


Justice Bivins Sworn in as Newest Member of Supreme Court

Friends and family gathered today for the formal investiture ceremony to install Justice Jeffrey Bivins as the newest member of the Tennessee Supreme Court. Chief Justice Gary Wade was joined by Justices Connie Clark, William Koch and Sharon Lee at the ceremony at the Franklin Theatre. Gov. Bill Haslam administered the oath of office. TBA President Jonathan Steen was on hand to present a gavel to Justice Bivins.


7 Prosecutors to Leave DA’s Office

At least seven prosecutors have announced they will be leaving when Davidson County District Attorney General Torry Johnson retires Sept. 1. Among those leaving are incoming District Attorney General Glenn Funk’s election opponent, Rob McGuire, Bret Gunn, Kristen Menke, Shannon Poindexter, Sharon Reddick, Dina Shabayek and John Zimmerman. McGuire, Menke, Reddick and Shabayek will be starting a new law firm, while Zimmerman will begin prosecuting cases in Rutherford County for incoming District Attorney General Jennings H. Jones. Gunn and Poindexter have not publically stated what they plan to do. The Tennessean has more.


Apply Now to Be a Mentor

The TBA Mentoring Program is looking for attorneys with at least eight years of legal practice experience to join the program as mentors for upcoming classes. The program specifically needs attorneys in Jackson who practice disability, estate or elder law and those in the Nashville area who practice juvenile law, general solo, real estate, construction law or criminal defense. Visit the TBA website for more information or contact Christy Gibson.


Court Rules University Can Consider Race in Admissions

In a case on remand from the U.S. Supreme Court, a Fifth U.S. Circuit Court of Appeals panel ruled yesterday that the University of Texas can continue using race as a factor in undergraduate admissions, the Associated Press reports. The judges voted 2-1 that barring the university from using race would ultimately lead to a less diverse student body in defiance of previous legal precedent that promoting diversity was an important part of education.


Nonprofit Legal Firms Keep Tabs on TennCare

TennCare faces the prospect of lawsuits if it fails to set up a state system for people to apply for Medicaid, the Tennessean reports. Tennessee ended face-to-face assistance for people seeking Medicaid coverage on Jan. 1, when the Affordable Care Act came into full effect, and, instead, began telling people to apply online at healthcare.gov. People who should have qualified for coverage have fallen through the cracks or not been able to apply at all, according to the health advocacy and civil rights organizations. Attorneys with the Tennessee Justice Center, Southern Poverty Law Center and National Health Law Program are closely watching to see how the agency responds to a federal demand for a correction plan.


Juvenile Court Reform Moves to Child Welfare Cases

Memphis-Shelby County Juvenile Court has been selected as one of eight courts in the nation in which the National Council of Juvenile and Family Court Judges will establish a new child welfare program. Juvenile Court reform has often focused on delinquent children who come into court for their actions — the nonprofit council now plans to examine the reason why children come to the court in the first place. The Memphis Daily News has the story.


Police Stand Behind Retention of Justices

The Tennessee Fraternal Order of Police today announced support for fair and impartial courts and endorsed the retention of Chief Justice Gary Wade, Justice Connie Clark and Justice Sharon Lee. “A fair and independent judiciary is the hallmark of our three-part system of government,” Sgt. Robert O. Weaver said in a press release. “Appellate Court judges review the cases and apply the laws written by the legislature and enforced by the executive branch. Judges need to be able to perform their duties without being beholden to the political winds of the other branches.”


News Station Questions Claims in Supreme Court Ads

The ad wars have begun in the battle for control of the Tennessee Supreme Court and News Channel 5 is reporting that questionable statements are coming from both sides. The campaign for the three incumbent justices hit the air first with a positive TV spot that focused on their oath to support the state and federal constitutions, adding that they "kept their word—protecting individuals rights, the Second Amendment right to bear arms and upholding nearly 90 percent of death sentences." However, News Channel 5 investigators found there was not a single case where the Second Amendment was an issue. In opposition, the Tennessee Forum sent out a mailer accusing the justices of working with President Barack Obama and “refusing to fight Obamacare.” While investigators found that one person hired to work on the justices’ campaign used to work on Obama’s campaign, the latter claim is false since the Tennessee Supreme Court has never been asked to rule on Obamacare.


DA Hopefuls Square Off in Tea Party Debate

District Attorney General Tony Clark and challenger Dan Smith faced off Tuesday night at a Tea Party-sponsored debate, the Johnson City Press reports. Clark is running as a Republican, while Smith identifies himself as a Republican, but is running as a “conservative independent.” He said he chose to run as an independent since there was not a Republican primary held in Johnson County so those voters didn’t get a say in who the Republican candidate would be, and because the DA does not make policy and therefore should not be a partisan office.


Smyrna Town Judge Candidate Faces Felony Charges

Smyrna Town Court judge candidate W. Alan Rose continues to face felony drug- and weapon-related charges heading into Friday’s early voting for the Aug. 7 election, the Daily News Journal reports. Rose faces charges of possession of a Schedule II narcotic for sale and delivery, possession of drug paraphernalia and possession of a dangerous weapon while committing a dangerous felony. Rose is running against incumbent Judge Keta J. Barnes, Lynn England Alexander, Jeremy Gourley and Cherie W. Meece.


Law Firm Trivia Contest on Tap for July 28

Nashville lawyers will gather for the Fourth Annual Law Firm Trivia Challenge on July 28 at the Crow’s Nest in Green Hills. The event will start at 6 p.m., with registration opening at 5:30 p.m. Teams should be comprised of five members. The entry fee per team is $250 with all proceeds benefiting the Cystic Fibrosis Foundation. Waddey Patterson has won two of the last three years and is looking for another win, organizers say. For more information contact Mary Beth Haltom with Lewis Thomason or Jenney Keaty with Kinnard, Clayton & Beveridge.


NBA Raises Funds for Child Abuse Prevention Groups

The Nashville Bar Association Young Lawyers Division will hold its 17th Annual Carbolic Smoke Ball this Saturday from 8 p.m. to midnight in the Reverb Room on the second floor of the Hard Rock Café in downtown Nashville. The event will feature a cocktail party with live music from the 90s cover band, "My So Called Band," heavy hors d'oeuvres, casino gaming and an open bar. Proceeds from this year's event will benefit two non-profit organizations: CASA Nashville & Prevent Child Abuse Tennessee. Tickets are $65 per person in advance, $75 at the door.


Memorial Service Thursday for Cleveland Judge

The family of Cleveland Municipal Judge Bill Moss will receive friends at 4:30 p.m. tomorrow in the Bradley County Commission Room in the Bradley County Courthouse. The reception and short memorial service will honor the life of Judge Moss, who died Monday. The Chattanoogan has more


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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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