Gov. Haslam Appoints Criminal Appeals Judge

Gov. Bill Haslam has appointed Judge Timothy Easter of Brentwood to the Court of Criminal Appeals, Middle Section. Easter will replace Judge Jerry L. Smith, who is retiring. The Administrative Office of the Courts has the story.

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
02 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
04 - 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

MADIA DIA v. IMPORTS COLLISION CENTER, INC.

Court: TN Workers Comp Appeals

Attorneys:

Richard C. Mangelsdorf, Jr. and N. Adam Dietrich II, Nashville, Tennessee, for the appellant, Imports Collision Center.

James S. Higgins and Ryan Simmons, Nashville, Tennessee, for the appellee, Madia Dia.

Judge: COX

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation 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. Employee filed a request for reconsideration pursuant to Tenn. Code Ann. § 50-6-241(d)(1)(B), which Employer opposed on the ground that Employee’s loss of employment was due to Employee’s voluntary resignation and/or his employment-related misconduct. The trial court ruled that Employer failed to carry its burden of proof as to either of the asserted grounds for denying reconsideration. The trial court therefore granted Employee’s request for reconsideration and awarded increased benefits. Based on our review of the entire record, we reverse the trial court’s judgment.


JERRY SIMONS v. A.O. SMITH CORPORATION

Court: TN Workers Comp Appeals

Attorneys:

Lee Ann Murray, Nashville, Tennessee, for the appellant, A.O. Smith Corporation.

Peter M. Olson, Clarksville, Tennessee, for the appellee, Jerry Simons.

Judge: COX

An employee alleged he injured his back on two occasions during late 2008. His employer initially accepted the second claim as compensable, but then denied the claim after receiving records from the employee’s primary care physician. The Department of Labor and Workforce Development denied the employee’s Request for Assistance. This civil action was subsequently filed in the Chancery Court for Montgomery County. That court awarded workers’ compensation benefits to the employee. The employer has appealed, contending that the evidence preponderates against the trial court’s findings concerning causation and permanency. 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

IN RE AIREONA H. W.

Court: TN Court of Appeals

Attorneys:

Berry Foster, Chattanooga, Tennessee, for the appellant, Amber W.

Robert E. Cooper, Jr., Attorney General and Reporter, and Ryan L. McGehee, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children’s Services.

John B. Wysong, Chattanooga, Tennessee, guardian ad litem for the minor, Aireona H. W.

Judge: MCCLARTY

This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate Mother’s parental rights to the Child. The trial court found that clear and convincing evidence existed to support the termination of Mother’s parental rights on several statutory grounds and that termination of her rights was in the Child’s best interest. Mother appeals. We affirm the decision of the trial court.


DANIEL COHEN v. JULIE DIDIER (COHEN)

Court: TN Court of Appeals

Attorneys:

Jessie Ray Akers, Jr., Mt. Juliet, Tennessee, for Defendant/Appellant Julie Didier (Cohen)

Candi Henry and Donald Capparella, Nashville, Tennessee for Plaintiff/Appellee Daniel Cohen

Judge: KIRBY

This appeal involves the execution of documents in furtherance of the property division in a divorce decree. The parties were divorced many years ago. To carry out the property division, the final decree of divorce ordered the parties to execute copyright assignments. Twenty-five years later, the ex-husband filed this action to compel the ex-wife to execute the copyright assignments. The ex-wife argued that the action was barred by the ten-year statute of limitations applicable to an action on a judgment. Relying on Jordan v. Jordan, 147 S.W.3d 255 (Tenn. Ct. App. 2004), the trial court held that execution of the documents was a ministerial act to effectuate the property division in the divorce decree and was not execution on a judgment, so the action was not barred by the statute of limitations. After the ex-wife still failed to execute the copyright assignment documents, the trial court designated the clerk of the court to act for the ex-wife to execute them, pursuant to Tenn. R. Civ. P. 70. The ex-wife appeals. Discerning no error, we affirm.


FIRST COMMUNITY BANK, N.A. V. FIRST TENNESSEE BANK, N.A., ET. AL.

Court: TN Court of Appeals

Attorneys:

Lawrence F. Giordano and Linda J. Hamilton Mowles, Knoxville, Tennessee, and Daniel P. Lynch and William J. Wyrick, Cranberry Township, Pennsylvania, for the appellant, First Community Bank f/k/a First Community Bank, N.A.

Mark D. Griffin, Lori H. Patterson, and Kristine L. Roberts, Memphis, Tennessee, for the appellees, First Tennessee Bank, N.A. d/b/a FTN Capital Markets and FTN Financial Securities Corporation.

Thomas K. Potter, III and Lauren E. Kilgore, Nashville, Tennessee, for the appellee, Morgan Keegan & Company, Inc.

H. Frederick Humbracht, Jr., Nashville, Tennessee, and Roger A. Cooper and Jared M. Gerber, New York, New York, for the appellee, Bank of America Corporation as successor in interest to Merrill Lynch, Pierce, Fenner & Smith, Inc.

John A. Lucas and Lane E. McCarty, Knoxville, Tennessee, and Michael T. Reynolds and Kevin J. Orsini, New York, New York, for the appellees, J.P. Morgan Securities, LLC, individually and as successor in interest to Bear Stearns & Company, Inc.

John E. Winters and John T. Johnson, Knoxville, Tennessee, Steven L. Polk and Bryan M. Ward, Atlanta, Georgia, for the appellee, SunTrust Robinson Humphrey, Inc. f/k/a SunTrust Capital Markets, Inc.

James A. Holifield, Jr., Knoxville, Tennessee, and Eric R. Levine and Eric P. Heichel, New York, New York, for the appellee, Keefe, Bruyette & Woods, Inc.

Judge: MCCLARTY

Plaintiff brought this action against Defendants for fraud, constructive fraud, negligent misrepresentation, civil conspiracy, unjust enrichment, and violation of the Tennessee Securities Act, codified at Tennessee Code Annotated section 48-1-101, et seq. The claims arose out of the purchase of asset-backed securities that were later deemed unmarketable, causing a significant financial loss to Plaintiff. Defendants filed motions to dismiss pursuant to Rule 12.02(6), arguing that the claims were untimely, that Plaintiff failed to plead its claims with particularity, and that the losses were caused by general market conditions. Nonresident Defendants also objected to the court’s personal jurisdiction. The trial court dismissed the complaint. Plaintiff appealed the dismissal to this court, and we affirmed the dismissal against Nonresident Defendants for lack of personal jurisdiction but reversed the dismissal for failure to state a claim as to the remaining defendants. In so holding, this court found that consideration of matters outside the pleadings pertaining to the running of the statute of limitations converted the motions to dismiss into one for summary judgment, thereby requiring remand of the entire case for further discovery. The remaining defendants filed an application for permission to appeal. The Tennessee Supreme Court granted the application and remanded the case for “consideration of the trial court’s alternative basis of dismissal of [the] complaint, i.e., the failure to state a cause of action or state a claim for which relief can be granted (other than on the basis of the running of the applicable statutes of limitations or repose).” Upon remand, we reverse the decision of the trial court.


RAM TOOL & SUPPLY CO., INC. ET AL. v. HD SUPPLY CONSTRUCTION SUPPLY, LTD. d/b/a WHITE CAP CONSTRUCTION SUPPLY, ROBERT MAPLES AND TIM PRUITT

Court: TN Court of Appeals

Attorneys:

Joseph F. Welborn, Jason W. Callen, D. Gil Schuette, Nashville, Tennessee, for the appellant, Ram Tool & Supply Co., Inc.

John W. Smith T, Birmingham, Alabama; Thor Y. Urness, Edmund S. Sauer, Kristi M. Wilcox, Nashville, Tennessee, for the appellees, White Cap Construction Supply and Robert Maples

William S. Rutchow, Jennifer S. Rusie, Nashville, Tennessee, for the appellee, Tim Pruitt

Judge: HIGHERS

The parties in this case are competitors. The defendant company opened a branch in Nashville and began competing with the plaintiff; the defendant company hired employees away from the plaintiff and it allegedly worked with a now-former employee of the plaintiff to obtain plaintiff’s confidential information. The plaintiff filed suit alleging, among other things, breach of the fiduciary duty of loyalty by unlawfully recruiting, aiding and abetting such breach, and conspiracy to unlawfully recruit. The trial court granted summary judgment in favor of the defendants, finding the plaintiff’s claims preempted by the Tennessee Uniform Trade Secrets Act (“TUTSA”). We affirm in part and reverse in part and we remand for further proceedings. Specifically, we find preempted by TUTSA, Ram Tool’s common law breach of fiduciary duty/loyalty claim–and its derivative claims–insofar as they are based upon the misappropriation of trade secrets. However, we find Ram Tool’s common law breach of fiduciary duty/loyalty claim–and its derivative claims–insofar as they are not grounded in the misappropriation of trade secrets, are not preempted by TUTSA; summary judgment was improperly granted as to these claims.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. STEVIE GIBSON

Court: TN Court of Criminal Appeals

Attorneys:

Stephen C. Bush, Shelby County Public Defender; Barry W. Kuhn, Assistant Shelby County Public Defender (on appeal); and Coleman Garrett (at trial), Memphis, Tennessee, for the appellant, Stevie Gibson.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Chris West and Sam Winnig, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: BIVINS

Stevie Gibson (“the Defendant”) was convicted by a jury of two counts of second degree murder and one count of aggravated robbery. The trial court merged the two murder convictions and sentenced the Defendant to serve an effective term of thirty-seven years’ incarceration. In this direct appeal, the Defendant challenges the sufficiency of the evidence and his sentence. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgments.


STATE OF TENNESSEE v. IRIS A. JONES
With dissenting opinion.

Court: TN Court of Criminal Appeals

Attorneys:

Chris Young, Ashland City, Tennessee (on appeal) and Dale M. Quillen and Kenneth D. Quillen, Nashville, Tennessee (at trial) for the appellant, Iris A. Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; Margaret F. Sagi, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

A Cheatham County jury convicted the Defendant, Iris A. Jones, of driving under the influence (“DUI”), first offense, and vehicular assault. The Defendant filed an application seeking judicial diversion. The trial court merged the DUI conviction into the vehicular assault conviction and granted the Defendant’s motion for judicial diversion. On appeal, the State contends that the trial court abused its discretion when it found that the Defendant was eligible for judicial diversion. After a thorough review of the record and applicable authorities, we conclude that the Defendant is not a “qualified defendant” for judicial diversion. Accordingly, the case is reversed and remanded to the trial court for further proceedings consistent with this opinion.


JOSEPH KINDRED v. JERRY LESTER, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Joseph Kindred, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin E.D. Smith, Assistant Attorney General; Mike Dunavant, District Attorney General; and Brent A. Cooper, Assistant District Attorney General for the appellee, State of Tennessee.

Judge: WEDEMEYER

In 2010, the Petitioner, Joseph Kindred, pleaded guilty to multiple counts involving conspiracy to sell drugs within a school zone, and the trial court sentenced the Petitioner to sixteen years in the Tennessee Department of Correction. In 2013, the Petitioner filed a petition for habeas corpus relief, which was summarily dismissed by the habeas corpus court. On appeal, the Petitioner alleges that the habeas corpus court erred when it dismissed his petition, contending that the trial court did not have the jurisdiction or authority to sentence him for the conspiracy convictions because he was not indicted for conspiracy. After a thorough review of the record and applicable authorities, we affirm the habeas court’s judgment.


STATE OF TENNESSEE v. MARCUS MOORE

Court: TN Court of Criminal Appeals

Attorneys:

James Edward Thomas, Memphis, Tennessee, for the appellant, Marcus Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Katie Ratton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Marcus Moore, entered guilty pleas without recommended sentences to two counts of burglary of a building, a Class D felony. Following a sentencing hearing, the trial court imposed sentences of twelve years as a career offender for each count to be served consecutively to each other. Appellant now challenges the trial court’s alignment of his sentences. Following our review, we affirm the judgments of the trial court.


STATE OF TENNESSEE v. LONA PARKER

Court: TN Court of Criminal Appeals

Attorneys:

Stephen C. Bush, District Public Defender; and Tony N. Brayton (on appeal) and Jim Hale (at trial), Assistant District Public Defenders, Memphis, Tennessee, for the appellant, Lona Parker.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Amy P. Weirich, District Attorney General; and Susan Taylor, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Appellant, Lona Parker, was indicted for and convicted of theft of property valued at more than $1,000 but less than $10,000, a Class D felony. The trial court sentenced him to twelve years in the Tennessee Department of Correction as a career offender. He now appeals, challenging the sufficiency of the convicting evidence. Following our review, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. TYCORRIAN M. TAYLOR

Court: TN Court of Criminal Appeals

Attorneys:

Mitchell T. Harper, Knoxville, Tennessee, for the appellant, Tycorrian M. Taylor.

Robert Cooper, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel Criminal Justice Division, for the appellee, State of Tennessee.

Judge: WALKER

The defendant appeals the sentence imposed for conviction of attempted voluntary manslaughter and aggravated assault. Finding no error, we affirm the judgment of the trial court.


STATE OF TENNESSEE v. SOMER D. WILD

Court: TN Court of Criminal Appeals

Attorneys:

Jonathan M. Holcomb, Morristown, Tennessee, for the appellant, Somer D. Wild.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Dan E. Armstrong, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Somer D. Wild, was indicted for driving under the influence, a Class A misdemeanor. After the trial court denied her motion to suppress the legality of the traffic stop, the defendant pled guilty to the offense and was sentenced to eleven months and twenty-nine days, suspended following the service of forty-eight hours in jail. As part of her plea of guilty, the defendant reserved as a certified question of law the legality of the traffic stop of her vehicle. Following our review of the record and the video recording of the traffic stop, we conclude that the trial court erred in denying the motion to suppress. Accordingly, we reverse the judgment of conviction and dismiss the indictment.


Supreme Court Blocks Same Sex Unions in Virginia

The U.S. Supreme Court is delaying the start of same-sex marriage in Virginia, the Chattanooga Times Free Press reports from the Associated Press. The court today granted a request from a county clerk in northern Virginia to block same-sex marriages across the state while the issue is being appealed to the Supreme Court. The court provided no explanation for its order. Without court intervention, same-sex couples would have been allowed to wed as of Thursday.


Retired Naval Officer Gets Three Years in Prison in Extortion, Perjury Case

A McMinn County judge yesterday sentenced retired U.S. Navy Lt. Cmdr. Walter Frances Fitzpatrick III to three years in prison. Fitzpatrick, who in 2010 tried to have the Monroe County grand jury foreman arrested, was indicted in March on charges of aggravated perjury, harassment, stalking and extortion and convicted by a jury in June on the perjury and extortion charges. The stalking charge was dismissed prior to trial and jurors found Fitzpatrick not guilty of harassment, according to court officials. The Chattanooga Times Free Press has more.


Interim Appointed for House Seat

The Bradley County Commission appointed Dan Howell as the interim successor of Eric Watson for the District 22 seat of the state House of Representatives, effective Sept. 1. Watson will step down to serve as the new sheriff of Bradley County, also effective Sept. 1. Howell — who won the Republican nomination for the seat — will serve as interim until the general election in November. The Chattanoogan has more.


Nashville Law Gives Neighbors Regulation Tool

Metro Council passed a new law adopting the so-called contextual overlay district, giving Nashville communities another tool to help regulate development. Supporters say it will combat new buildings that chafe against neighborhood fabric. The new law places restrictions on what builders can do in terms of height and width, taking into consideration the average shape of homes on either side of a proposed development. It’s not a blanket law; residents apply to be considered for the overlay. A vocal critic of the contextual overlay district said it will likely stagnate property values and create hurdles to home renovations. Nashville Public Radio has more.


Anderson County Votes Certified, Controversy Remains

Although Anderson County election commissioners certified the results of the Aug. 7 election yesterday afternoon, controversy remains, Knoxnews reports. Roger Miller, a Republican, defeated longtime Judge Ron Murch, a Democrat, for General Sessions judge for Division II. Catherine Denenberg, chair of the Anderson County Democratic Party, contends that Miller’s election should be voided because of his long history of debts, from federal and state tax liens to unpaid local property taxes to past-due child support. According to state law, any move to contest the election must be filed within five days after certification. Denenberg said she will meet today with others interested in the matter to decide their next moves.


Candidate Violated Hatch Act

Capt. Jimmy Tennyson violated the Hatch Act during his unsuccessful campaign for Maury County Sheriff, according to a letter by the U.S. Office of Special Counsel in Washington, D.C. The letter, dated Aug. 14, states that under the Hatch Act, government and municipal employees are not allowed to wear their uniforms while campaigning for an elected office, including in photographs. Tennyson, whose campaign Facebook page displayed several photographs of him in uniform, will not receive any punishment or repercussions for his actions but he did receive a warning, the Columbia Daily Herald reports.


Monroe County Election Results Contested

A day after the certification of the Monroe County election, incumbent Sheriff Bill Bivens has filed suit against the election commission to contest the results, Knoxnews reports. Republican Randy White won the Aug. 7 election against Democrat Bivens despite a ruling by the state Peace Officers Standards and Training Commission in July rescinding the certification for White to be on the ballot. The suit contends the election should be declared void and the outcome determined by an elected body such as the county commission or by holding another election. The suit asks that Bivens be allowed to hold office as sheriff until his successor, if any, is elected, appointed or qualified.


TBA Co-Hosting Reception for 3 Jackson Judges

The TBA is joining with the Jackson Madison County Bar Association, the Anne Schneider Chapter of the Lawyers’ Association for Women and Memphis Association of Women Attorneys to host a reception for three appellate judges on Aug. 21 in Jackson. The event will honor Court of Appeals Judge Holly M. Kirby, who will step down from the court to take a seat on the Tennessee Supreme Court, as well as Judges Judge David R. Farmer and Alan E. Highers, who are retiring from the court at the end of August. The event will run from 4:30 to 6:30 p.m. at the Jackson Country Club, 31 Jackson Country Club Dr. For more information or questions contact Brandon Gibson with Pentecost & Glenn at (731) 668-5995.


TJC Celebration to Honor Firm Involvement

The Tennessee Justice Center will kick off a new year with a celebration on Sept. 4 from 5:30 to 7 p.m. The group recently announced that 20 law firms have committed to help it serve more families across the state. The celebration will recognize these firms for “Raising the Bar.” All friends of TJC are invited. The event will be held in the offices of Bass, Berry & Sims, located on the 28th Floor of the Pinnacle at Symphony Place, 150 Third Ave. S., Nashville. Learn more or RSVP online.


Protect Your Practice with the Bar Plan

Protecting your practice and your family from an unexpected loss is a priority for many TBA members. The Bar Plan program provides TBA members with the most comprehensive and fairly priced professional liability coverage available. Learn more online.


 
 

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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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