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Wednesday, February 16, 2011

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Wyrick to lead TBA in 2013-2014

Sevierville attorney Cynthia Richardson Wyrick will be Tennessee Bar Association president in 2013-2014, according to election-qualifying results released today. No other candidate filed for the vice president position by the Feb. 15 deadline. After serving a year as vice president, Wyrick will ascend to president-elect in 2012-2013 before taking over the organization's leadership in June 2013.

Others who will be elected without opposition are:
-- Grand Division Governor, West Tennessee (one-year term): Brian Faughnan, Memphis.
-- Grand Division Governor, Middle Tennessee (one-year term): James Crumlin, Nashville.
-- Grand Division Governor, East Tennessee (one-year term): Jason Long, Knoxville.
-- Governor, Second District (three-year term): Tasha Blakney, Knoxville.
-- Governor, Fifth District (three-year term): Dan Berexa, Nashville.
-- TBA Delegate to the ABA House of Delegates, Position 1: Jonathan Cole, Nashville.
-- TBA Delegate to the ABA House of Delegates, Position 3 (Young Lawyer Delegate): Lee Bowles, Lewisburg.

No candidate filed to fill the Eighth District Governor position.

Find out more about the 2011 TBA elections

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. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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03 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
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02 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

KRISTEN COX MORRISON v. PAUL ALLEN ET AL.
With Dissenting Opinions

Court: TSC

Attorneys:

William Ray Hannah, John Gerald Jackson, Richard W. Bethea, David A. Love, and William M. Barker, Chattanooga, Tennessee, and Peter Harwood Curry, Nashville, Tennessee, for the appellants, Paul Allen, Jody Roberts, and Wiley Bros.-Aintree Capital, LLC.

Donald N. Capparella, Amy J. Farrar, and Candi Renee Henry, Nashville, Tennessee, for the appellee, Kristen Cox Morrison.

Judge: WADE

After the death of her husband, the plaintiff filed suit against their agents/financial planners based upon several theories of recovery in regard to the termination of a life insurance policy from one company and the acquisition of a replacement policy from a second company. After initially contesting the award of benefits, the second company, which was also named as a defendant in the suit, settled with the plaintiff. At the conclusion of the bench trial as to the liability of the agents, the plaintiff was awarded substantial damages as to each policy based upon various theories of recovery: the agents' failure to procure a life insurance policy as directed, negligence, negligent misrepresentation, breach of fiduciary duty, and violation of the Tennessee Consumer Protection Act. The Court of Appeals affirmed in part, but held that the damages in contract relating to the failure to procure should be offset by the amount of the plaintiff's pre-trial settlement with the second insurance company. Because of the nature of the issues presented, this Court granted permission to appeal. As to the policy for which benefits were denied by the second company, we hold that (1) a cause of action may arise for the failure of the agents to procure a policy not subject to contest; (2) the claim for failure to procure may be actionable, notwithstanding the policy holders' admission that they did not read the insurance application; and (3) because the settlement by the second life insurance company was not specifically resolved based upon contract, the agents are not entitled to a credit against damages caused by their failure to procure. As to the policy terminated by the plaintiff, we hold that the evidence preponderates against any award of damages based upon negligence, negligent misrepresentation, breach of fiduciary duty, or violations of the Tennessee Consumer Protection Act. Finally, we hold that the ad damnum clause in the complaint provided the agents with sufficient notice to support a damage award in the amount of $1,000,000 plus pre- judgment interest. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cause is remanded to the trial court for determination of post- judgment interest.

http://www.tba2.org/tba_files/TSC/2011/morrisonk_021611.pdf

CLARK concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2011/morrison_DIS(clark)_021611.pdf

KOCH concurring in part and dissenting in part
http://www.tba2.org/tba_files/TSC/2011/morrisonk_DIS(koch)_021611.pdf

TIMOTHY COOK v. GENERAL MOTORS CORPORATION

Court: TWCA

Attorneys:

Jason Andrew Lee and David Brett Burrow, Nashville, Tennessee, for the appellant, General Motors Corporation.

Larry R. McElhaney, II, Nashville, Tennessee, for the appellee, Timothy Cook.

Judge: WADE

The Employee suffered a compensable injury while working on an automobile assembly line. A few months after the Employee filed a claim for workers' compensation benefits, his employer, through a highly-publicized bankruptcy, sold a majority of its assets to a newly created entity. The trial court held that because the Employee, who was employed by the new entity, had not returned to work for his pre-injury employer, he was entitled to permanent partial disability benefits in excess of the cap established by Tennessee Code Annotated section 50-6-241(d)(1)(A). The employer has appealed, contending that the unique circumstances of its bankruptcy sale compel this Panel to rule that the Employee returned to work for his pre-injury employer. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2011/cookt_021611.pdf

WYATT JOHNSON v. VENTURE EXPRESS, INC. ET AL.

Court: TWCA

Attorneys:

Thomas O. Sippel, Chattanooga, Tennessee, for the appellants, Venture Express, Inc. and Cherokee Insurance Company.

Louis Andrew McElroy, II, Knoxville, Tennessee, for the appellee, Wyatt Johnson.

Judge: WADE

The employee filed a workers' compensation claim against the employer for injuries sustained in a trucking accident. The trial court ruled that the employee was permanently and totally disabled as a result of the accident and entitled to full benefits. The employer appealed, alleging that the trial court erred in finding the employee permanently and totally disabled. The appeal was referred to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonw_021611.pdf

WAUSAU INSURANCE COMPANY v. ARCHIE W. RICHARDSON

Court: TWCA

Attorneys:

Joseph R Ford, Loudon, Tennessee, and Whitney S. Bailey, Knoxville, Tennessee, for the appellant, Archie W. Richardson.

Mary Elizabeth Maddox and Robert H. Smith, Knoxville, Tennessee, for the appellee, Wausau Insurance Company.

Judge: KURTZ

The employee alleged that he injured his back in the course of his employment. His employers denied the claim based upon failure to give timely notice of the injury. The employee saw two medical doctors and a chiropractor shortly after his injury. Their records contained no reference to a work injury; one stated that the injury had happened at home. The trial court found that the employee did not provide timely notice of his alleged injury and, alternatively, that he failed to sustain his burden of proof concerning causation. The employee has appealed from those findings. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2011/wausau_021611.pdf

ELIZABETH DIANE CARR v. GREGORY F. ALLEN

Court: TCA

Attorneys:

Deborah A. Yeomans, Johnson City, Tennessee, for the Appellant, Elizabeth Diane Carr.

No brief filed by the Appellee, Gregory F. Allen.

Judge: SWINEY

Elizabeth Diane Carr ("Petitioner") filed for and obtained an ex parte order of protection against her cousin, Gregory F. Allen ("Respondent"). Pursuant to statute, a hearing was conducted on whether to dissolve or to extend the order of protection. In accordance with Tenn. Code Ann. section 36-3-605(b), a trial court has two options at such a hearing: (1) to dissolve the order of protection; or (2) to extend the order of protection for a definite period of time not to exceed one year. With respect to taxing costs, Tenn. Code Ann. section 36-3-617(a) expressly prohibits taxing costs against a victim, even if the order of protection is dissolved. If the order of protection is extended, the costs must be taxed against the respondent. In the present case, following the hearing on whether to extend or dissolve the order of protection, the Trial Court instead entered a mutual restraining order and taxed costs equally to both parties. Because neither action was authorized by statute, we vacate the judgment of the Trial Court and remand for further proceedings consistent with this Opinion.

http://www.tba2.org/tba_files/TCA/2011/carre_021611.pdf

KERI WILLIAMS v. THE CITY OF MILAN, TENNESSEE, AND MAYOR CHRIS CRIDER, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES

Court: TCA

Attorneys:

Michael R. Hill and Pamela G. Vawter, Milan, Tennessee, for the Defendants/Appellants The City of Milan, Tennessee, and Chris Crider in his official capacity; and Dale Conder, Jackson, Tennessee, for Chris Crider in his individual capacity.

Charles H. Barnett and Teresa A. Luna, Jackson, Tennessee, for the Plaintiff/Appellee Keri Williams.

Judge: KIRBY

This appeal involves the transfer of a case from the chancery court to the circuit court. The plaintiff was terminated from her employment with the defendant municipality. She filed this lawsuit against the municipality for wrongful termination, seeking only unliquidated damages. The municipality filed a motion to transfer the case to circuit court, asserting that the chancery court did not have subject matter jurisdiction under Tennessee's Governmental Tort Liability Act and also based on Tennessee Code Annotated section 16-11-102, which addresses the chancery court's jurisdiction over claims for unliquidated damages. The chancery court denied the motion to transfer. The municipality now appeals. We reverse, concluding that once an objection to jurisdiction was made under Section 16-11-102, the chancery court was required to transfer the case to the circuit court.

http://www.tba2.org/tba_files/TCA/2011/williamsk_021611.pdf

STATE OF TENNESSEE v. DERRICK D. CRUTCHER

Court: TCCA

Attorneys:

Charles Walker, Nashville, Tennessee, for the appellant, Derrick D. Crutcher.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Davidson County Criminal Court jury convicted the defendant, Derrick D. Crutcher, of simple possession of cocaine, in this case a Class E felony, see T.C.A. section 39-17-418(a), (e) (2006), and possession of drug paraphernalia, a Class A misdemeanor, see id. section 39-17- 425(a)(1). In this appeal as of right, the defendant challenges the sufficiency of the convicting evidence. Because the evidence is sufficient, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/crutcherd_021611.pdf

STATE OF TENNESSEE v. JOSEPH VALENTINE HILL

Court: TCCA

Attorneys:

Donna Leigh Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant Public Defender; Michael Collins, Assistant Public Defender; and Catherine H. Hickerson, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Joseph Valentine Hill.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Joseph Valentine Hill, was charged with one count of DUI, second offense, a class A misdemeanor, and with seven counts of aggravated assault with a deadly weapon, a class C felony. He entered pleas of guilty as charged in each count and submitted to a sentencing hearing with no agreement as to the length or manner of service of the sentences. The trial court sentenced Defendant to four years for each aggravated assault conviction and to 11 months and 29 days for the DUI second offense conviction. The DUI sentence and three of the aggravated assault sentences were ordered to be served concurrently with each other. The remaining four aggravated assault sentences were ordered to be served concurrently with each other, but consecutively to the first grouping of sentences, for an effective sentence of eight years. The trial court ordered the eight-year sentence to be served in incarceration. Recognizing that the DUI, second offense conviction requires a mandatory minimum period of incarceration, Defendant argues on appeal that the trial court erred by declining to grant him probation after serving the above-noted mandatory minimum confinement. After careful review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/hillj_021611.pdf

STATE OF TENNESSEE v. BOBBY HUGHLETT

Court: TCCA

Attorneys:

Gary Antrican, District Public Defender, and David S. Stockton, Assistant Public Defender, for the appellant, Bobby Hughlett.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Kim Linville and Billy Burk, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Bobby Hughlett, appeals from the trial court's denial of any form of alternative sentencing, including probation. The defendant entered pleas of nolo contendere to attempted aggravated robbery and robbery, both Class C felonies. The defendant was given an agreed sentence of ten years for each count, to run concurrently, as a persistent offender, with a 45% release eligibility date. The defendant contends that the court abused its discretion in denying him an alternative sentence, including probation, and erred in finding the defendant was on probation at the time of committing these offenses. After review, we affirm the sentences imposed by the trial court.

http://www.tba2.org/tba_files/TCCA/2011/hughlettb_021611.pdf

ROBERT J. MONTVILLE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Larry Joe Hinson, Jr., Hohenwald, Tennessee, for the appellant, Robert J. Montville.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Kim R. Helper, District Attorney General; and Sean B. Duddy, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Robert J. Montville, appeals the Hickman County Circuit Court's denial of his petition for post conviction relief from his convictions for simple assault and reckless driving and his resulting effective sentence of eleven months, twenty-nine days to be served as twenty-four hours in jail and the remainder on supervised probation. On appeal, the Petitioner contends that he received the ineffective assistance of trial counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/montviller_021611.pdf

STATE OF TENNESSEE v. BRYANT C. OVERTON

Court: TCCA

Attorneys:

R. Wilford Fraley, III, Murfreesboro, Tennessee, for the Appellant, Bryant C. Overton.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lindsy Paduch Stempel, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; J. Paul Newman, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Rutherford County jury convicted the Defendant, Bryant C. Overton, of aggravated kidnapping, aggravated robbery, attempted first degree murder, and conspiracy to commit kidnapping. The trial court ordered the Defendant to serve an effective sentence of sixty years in the Tennessee Department of Correction. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. After a thorough review of the record and the applicable law, we affirm the trial court's judgments in part, but we reverse them in part based upon a sentencing error.

http://www.tba2.org/tba_files/TCCA/2011/overtonb_021611.pdf

VINCENT SIMS v. STATE OF TENNESSEE
CORRECTION on page 1 capitalizes the name of Judge John Everett Williams

Court: TCCA

Attorneys:

Paul Morrow, Jr., and Daniel E. Kirsch, Nashville, Tennessee, for the appellant, Vincent Sims.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Frank Borger-Gilligan, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The capital petitioner, Vincent Sims, appeals as of right from the October 1, 2008 order of the Shelby County Criminal Court denying his initial and amended petitions for post-conviction relief. On appeal, the petitioner claims that the trial court erred in denying relief because: (1) trial counsel was ineffective;(2) appellate counsel was ineffective; and (3) the imposition of the death penalty in this case was unconstitutional. After a careful and laborious review of the record, we conclude that there is no error requiring reversal. Accordingly, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/simsv_COR_021611.pdf

Off Highway Vehicle Use in State Forests

TN Attorney General Opinions

Date: 2011-02-16

Opinion Number: 11-16

http://www.tba2.org/tba_files/AG/2011/ag_11_16.pdf

Authority of a City Court to Punish for Contempt of Court

TN Attorney General Opinions

Date: 2011-02-16

Opinion Number: 11-17

http://www.tba2.org/tba_files/AG/2011/ag_11_17.pdf

TODAY'S NEWS

Legal News
General Assembly News
TennBarU CLE
TBA Member Services

Legal News

Process changes for paying certain CLE fees

The Tennessee Commission on Continuing Legal Education and Specialization is in the process of implementing Supreme Court Rule 21, Section 8.03, which requires that attorneys attending approved out-of-state CLE programs, or other programs for which the sponsor does not report and pay the per-hour fee, remit their fees to the commission at the time the course is taken. Attorneys who have received an annual statement showing a fee due should take care of the matter as unpaid fees may result in suspension from the practice of law.

Learn more about the change on the AOC website

Judge OKs new execution process

Davidson County Chancellor Claudia Bonnyman ruled today that the state's revised procedure for executions is constitutional. In November, the Tennessee Supreme Court halted the executions of four prisoners so Bonnyman could determine whether the new method is constitutional. The new process, which requires a prison warden to confirm the inmate is unconscious before administering lethal drugs, was implemented after Bonnyman ruled the old process allowed "for death by suffocation while conscious."

The Tennessean reports

Obama budget funds state med mal reform

In his annual budget submitted to Congress this week, President Barack Obama included $250 million in Justice Department grants to help states rewrite their malpractice laws. Funds could be used to implement health courts, in which trained judges decide cases and make awards based on a set schedule; a legal "safe harbor" for health providers who follow guidelines for best practice; rules that allocate damages in proportion to responsibility; and programs requiring early notification of errors and an apology from the health provider. Funds could not be used to impose caps on jury awards.

The Memphis Daily News reports

New Pro Bono Summit footage online

Additional footage from the Tennessee Supreme Court's Pro Bono Summit now is available online. Each session includes a video of the presentation and handout materials. To view or print the materials, click on the paperclip icon at the top of the screen and then on the "Materials" link to the right of the video screen.
Session I: Increasing Pro Bono Participation
Session III: Meeting the Needs of Tennesseans in Rural Areas
Session IV: Pro Bono Mediation
Session V: Clinic in a Box
Session VI: Disability and Language Barrier Issues
Session VII: Partnerships with Community Organizations
Session VIII: Law School Pro Bono
Session IX: How Technology Can Assist in Pro Bono
Session X: Remarks by ABA President-Elect, Session Reports & Closing Remarks

Memphis Law names new board members

The University of Memphis Cecil C. Humphreys School of Law has named Chancellor Arnold Goldin to the Alumni Chapter Board of the law school. Goldin, a Shelby County Chancery Court judge, graduated from the law school in 1974. In addition, the school announced that Estelle Winsett, assistant dean for Law Career Services and a 1997 alumna, has been appointed to the Memphis Bar Association Board of Directors. She fills a seat on the board that is reserved for the law school.

Two county bars elect new officers

At the Robertson County Bar Association, Jennifer Williams is the new president, Gary Dilliha with Richert & Dilliha is vice president and Phyllis Morriss is secretary and treasurer. All practice in Springfield.

At the Washington County Bar Association, Stephanie Sherwood is president, Donna Bolton is vice president, Charles London with Herndon, Coleman, Brading & McKee is secretary, and Holly Booksh with Booksh & Farrell is treasurer. All are from Johnson City.

Sevier lawyer indicted in $6M fraud scheme

Sevier County lawyer Jerry Kerley, 57, of Kodak has been named as an alleged co-conspirator in a $6 million mortgage fraud scheme. The federal charges include conspiring to defraud Citizens Bank in New Tazewell and SunTrust Mortgage in Richmond, Va., through the use of "straw borrowers," and money laundering.