Ethics Commission adds 'confidential matters' to agenda
The Tennessee Ethics Commission's plan to close part of its monthly meeting on Tuesday to discuss "confidential matters" is causing raised eyebrows at the Tennessee Coalition for Open Government. The group's executive director Frank Gibson said he was concerned that the commission -- charged with making state government more accountable and ethical -- might have made its decision from "an exaggerated understanding of attorney-client privilege as it applies to public meetings." Follow the story in the Tennessean
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, 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 http://www.tba.org/getpassword.mgi.
01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
09 - TN Court of Appeals
04 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
TBA members can get the full-text versions of these opinions three ways detailed below.
All methods require a TBA username and password. If you have forgotten your password or need to obtain a password,
you can look it up on-line at http://www.tba.org/getpassword.mgi
Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then
open them from there. 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. 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. Browse the Opinion List area of TBALink.
This option will allow you to download the original version of the opinion.
Howard H. Vogel
SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
ASHTON SCOTT ADAMS v. HENDERSONVILLE HOSPITAL CORP., ET
Randall L. Kinnard and Daniel L. Clayton, Nashville, Tennessee; Steven R. Walker, Memphis,
Tennessee, for the appellant, Ashton Scott Adams.
Thomas A. Wiseman, III, and Margaret Moore, Nashville, Tennessee, for the appellees,
Hendersonville Hospital Corporation, Hendersonville Hospital Corporation d/b/a Hendersonville
Hospital, Hendersonvile Hospital and Kevin T. Hattaway, M.D.
Patient presented to hospital emergency department with complaints of high fever, body
aches (specifically in her right knee and calf), vomiting, nausea, and diarrhea. Approximately four
and a half hours later, patient was discharged from the emergency room with a diagnosis of flu and
dehydration. The patient died three days later, and an autopsy revealed that the cause of death was
septic shock, secondary to a bacterial infection. In the suit against the hospital and treating
physician, Appellant submitted three suggested jury instructions to the trial court, all three of which
were denied. Appellant appeals the trial court's denial of the three jury instructions, as well as a
specific portion of the instructions given to the jury. The judgment of the trial court is reversed and
the case remanded for a new trial.
ELIAS H. ATTEA, JR. v. ANDREW S. ERISTOFF ET AL.
Phillip L. Davidson, Nashville, Tennessee, for the appellant, Elias H. Attea, Jr.
Charles A. Trost, Jennifer L. Weaver, and Brett R. Carter, Nashville, Tennessee, for the appellees,
Andrew S. Eristoff and Jorge Reyes.
This appeal involves a dispute between a Tennessee resident and two taxing authorities of the State
of New York involving the Tennessee resident's business activities in New York. The Tennessee
resident filed suit against the New York taxing authorities in the Chancery Court for Cheatham
County, alleging that their telephone calls and letters attempting to collect the disputed taxes
amounted to intentional infliction of emotional distress. The taxing authorities moved to dismiss
the complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state
a claim upon which relief could be granted. The trial court granted the motion after concluding that
it lacked personal jurisdiction over the New York Taxing authorities. The Tennessee resident
appealed. We have determined that the trial court properly concluded that it lacked personal
jurisdiction and that the complaint was also due to be dismissed for both lack of subject matter
jurisdiction and failure to state a claim upon which relief could be granted.
HENRY BENSON v. HARRY A. HERBST ET AL.
Luvell L. Glanton and Tusca R.S. Alexis, Nashville, Tennessee, for the appellant, Henry Benson.
A. Scott Ross and Cynthia S. Parson, Nashville, Tennessee, for the appellees, Harry Herbst and
Bridgestone Americas Holding, Inc.
This appeal illustrates the fate that awaits plaintiffs who file suit in general sessions court when their
damages exceed the court's jurisdictional limits. After the plaintiff was seriously injured in an
automobile accident, he filed suit in the Davidson County General Sessions Court against the driver
of the other vehicle and the other driver's employer. On the date of the hearing, the defendants
confessed judgment and agreed to pay the damages sought in the general sessions warrant. Over the
plaintiff's objection, the general sessions court entered a $14,999 judgment against the defendants.
The plaintiff thereafter perfected a de novo appeal to the Circuit Court for Davidson County. The
defendants moved to dismiss the appeal for lack of subject matter jurisdiction on the ground that the
general sessions court judgment was not "adverse" to the plaintiff. The trial court dismissed the case
for lack of subject matter jurisdiction, and the plaintiff appealed. Like the trial court, we have
determined that the general sessions judgment was not adverse to the plaintiff because he had
received all the relief he requested from the general sessions court. Accordingly, the trial court did
not err by dismissing the de novo appeal for lack of subject matter jurisdiction.
TROY ALLEN CLARK v. JENNIFER DAWN CLARK
Andrew M. Cate, Nashville, Tennessee, for the appellant, Troy Allen Clark.
Alan D. Johnson and Mary Arline Evans, Nashville, Tennessee, for the appellee, Jennifer Dawn
This is the second appeal of a property division following the dissolution of an almost thirteen-year
marriage. After a remand on the issue of the division of marital property, Troy Allen Clark
(Husband) contends that the trial court divided the marital estate in an inequitable fashion and that
it erroneously increased the value of real property awarded to him by refusing to subtract likely
capital gains taxes from its market value. Husband also challenges the trial court's post-remand
award to Jennifer Dawn Clark (Wife) of half the attorney's fees incurred for the preparation of a
Qualified Domestic Relations Order [QDRO] that was ordered in the divorce proceeding. We affirm
in part, reverse in part, and remand for entry of judgment.
HCA HEALTH SERVICES OF TENNESSEE dba CENTENNIAL MEDICAL CENTER v. DOROTHY BARRON
Dorothy Barron, appellant, pro se.
Dixie W. Cooper, Catherine M. Corless, and Christopher A. Vrettos, Nashville, Tennessee, for the
appellee, HCA Health Services of Tennessee dba Centennial Medical Center.
HCA Health Services of Tennessee, which does business as Centennial Medical Center ("HCA"),
filed an emergency petition seeking to have a conservator appointed for a patient, Dorothy Barron.
The trial court appointed a guardian ad litem and an attorney ad litem for Ms. Barron. Following a
hearing, the court appointed a temporary conservator. Later, the temporary conservator approved
a transfer of Ms. Barron to a nursing home. The trial court later dismissed the petition insofar as it
sought the appointment of a permanent conservator. Ms. Barron appeals claiming she was denied
due process of law and equal protection of the law in violation of the Fourteenth Amendment to the
United Stated Constitution. We affirm.
PATRICK MCGEE v. TOMMY JACOBS, ET AL.
G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Patrick McGee.
Samuel P. Funk and J. Scott Hickman, Nashville, Tennessee, for the appellees, Tommy Jacobs and
Jacobs, Cohen & McCormick, PLLC CPAS.
Appellant asserts the circuit court erred by dismissing this action as untimely under the savings
statute. We affirm.
ROBERT E. TATE v. WESTERN EXPRESS, INC.
Isham B. Bradley, Nashville, Tennessee, for the appellant, Western Express, Inc.
Richard L. Colbert, Courtney L. Wilbert, Marty S. Turner, Nashville, Tennessee, for the appellee,
Robert E. Tate.
The trial court dismissed a buyer's counterclaim under an asset purchase agreement. The buyer's
counterclaim was an effort to recover from an individual party to the agreement for amounts buyer
spent in satisfaction of seller's debts although buyer did not assume such liabilities as well as other
costs or losses associated with the asset purchase. Based on the obligations undertaken by the
individual and the record before us, we affirm the trial court's grant of summary judgment to the
individual as to some claims and the grant of Rule 41.02 dismissal of the other claims.
STATE OF TENNESSEE, ex rel., o/b/o C.V. v. MARK VISSER, ET AL.
Paul G. Summers, Attorney General and Reporter; Juan G. Villasenor, Assistant Attorney General
for Appellant, State of Tennessee ex rel. o/b/o CV, a minor child
John R. Phillips, Jr., of Gallatin, Tennessee for Appellees, Mark and Loretta Visser
Adoptive parents of minor child executed a voluntary surrender of their parental rights and,
thereafter, sought termination of their child support obligations. The trial court granted the relief
sought. The State of Tennessee, on behalf of the minor child, appeals on the ground that T.C.A. Section 36-1-111(r)(1)(A) requires a parent who executes a voluntary surrender of parental rights to continue
paying child support until the child is adopted. We reverse and remand.
FRANCE ISABELLE TER WEELE WINE v. JEFFREY MICHAEL WINE
Dana C. McLendon III, Franklin, Tennessee, for the appellant, Jeffrey Michael Wine.
Robert Todd Jackson, Brentwood, Tennessee, for the appellee, France Isabelle Ter Weele Wine.
The father of three children appeals the denial of his post-divorce petition to reduce child support
and for Tenn. R. Civ. P. 60.02(5) relief from his alimony in solido obligation. He was earning
$80,000 a year when the parties entered into the Marital Dissolution Agreement in July 2004 but was
fired two weeks prior to the entry of the Final Decree of Divorce on September 27, 2004. Two
months later, he was indicted for theft of property over $60,000, and remained in custody for one
month until family posted his bond. Thereafter, he filed a petition to reduce child support and for
Rule 60.02(5) relief from his alimony in solido obligation. The mother admitted there was a
significant variance but opposed the petition contending the father was willfully underemployed
because the conduct for which he was fired was willful. The trial court denied the petition to reduce
child support upon a finding the father failed to prove the significant variance was not caused by his
willful and voluntary underemployment. We reverse the denial of the petition to reduce child
support because the trial court erroneously placed the burden on the father to prove that he was not
willfully underemployed when the burden of proof was on the mother. We affirm the denial of Rule
60.02(5) relief because the father's decision to assume the alimony in solido obligation was a free,
calculated, and deliberate choice, and his failure to anticipate a significant change in his earning
capacity did not constitute a circumstance for which Rule 60.02(5) relief should be granted.
STATE OF TENNESSEE v. RICK BRADEN
Lauren Pasley-Ward, Memphis, Tennessee, for the appellant, Rick Braden.
Michael E. Moore, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paul Hagerman and Valarie Smith, Assistant
District Attorneys General, for the appellee, State of Tennessee.
The defendant, Rick Braden, was convicted by a Shelby County jury of two counts of aggravated
robbery, and he received concurrent nine-year sentences. On appeal, he argues that (1) the trial court
erred in not allowing him to introduce the guilty pleas of two named co-defendants, (2) the evidence
is insufficient to sustain his convictions, and (3) the trial court erred in failing to instruct the jury on
the lesser-included offense of facilitation. Following our review of the record and the parties' briefs,
we conclude that the trial court erred in failing to charge the lesser-included offense of facilitation,
and therefore, reverse the judgments of the trial court and remand for a new trial.
David G. Hayes, Judge, separate concurring.
DICKEY L. COTTON v. DAVID MILLS, WARDEN (STATE OF TENNESSEE)
Dickey Cotton, Pro se, West Tennessee Security Prison, Henning, Tennessee.
Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.
This case is before us after remand by the Tennessee Supreme Court for reconsideration in light of
its holdings in Summers v. State, 212 S.W.3d 251 (Tenn. 2007); Smith v. Lewis, 202 S.W.3d 124
(Tenn. 2006); and Shaun Hoover v. State, 215 S.W.3rd 776 (Tenn. Jan. 23, 2007). The petitioner,
Dickey L. Cotton, appeals the circuit court's summary dismissal of his pro se petition for writ of
habeas corpus. Upon reconsideration, we affirm the court's dismissal of the habeas corpus petition.
STATE OF TENNESSEE v. DELSHAUN EPPS
Paul J. Springer, Memphis, Tennessee, for the appellant Delshaun Epps.
Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Theresa McCusker, Assistant District Attorney
General, for the appellee, State of Tennessee.
The appellant, Delshaun Epps, was indicted for especially aggravated robbery and felony murder.
After a jury trial, the appellant was convicted of especially aggravated robbery and reckless
homicide. The appellant was subsequently sentenced to twenty-four years for the robbery conviction
and four years on the homicide conviction. The trial court ordered the appellant to serve the
sentences consecutively, for a total effective sentence of twenty-eight years. After the denial of a
motion for new trial, the appellant pursued this appeal. On appeal, the appellant challenges the
sufficiency of the evidence and his sentence. For the following reasons, we affirm the judgment of
the trial court.
STATE OF TENNESSEE v. MARK PERRY
Mark D. Harris, Kingsport, Tennessee, for the appellant, Mark Perry.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Kent L. Chitwood, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.
The defendant, Mark Perry, pled guilty to selling less than 0.5 grams of cocaine, a Class C felony.
Pursuant to the plea agreement, the defendant was sentenced as a Range I, standard offender to six
years with the manner of service to be determined by the trial court. After a sentencing hearing, the
trial court ordered the sentence be served in confinement, denying any form of alternative sentencing.
The defendant now appeals. We conclude that the trial court followed the appropriate statutory
procedure and imposed a lawful sentence in that the severity of the offense, the defendant's prior
criminal behavior, and his lack of candor removed any presumption of an alternative sentence. We
affirm the judgment from the trial court.
| Legal News
|Workman's body gives no clues
|An autopsy completed Saturday on the body of Philip Workman, who was executed earlier this month, "revealed no unexpected findings," according to the medical examiner. Workman had not wanted an autopsy because it conflicted with his Seventh Day Adventist beliefs, but on Friday a federal judge approved it, using a less invasive method.
|Read details from the AP in the News-Sentinel
|Saturn and Mazer acquitted
|Nashville lawyers Alan Saturn and Alan Mazer were found not guilty on Saturday of income tax evasion and conspiracy to defraud the government. But now Saturn and Mazer question the motivation behind the Department of Justice's prosecution. Was there a political reason?
|NashvillePost.com followed the story
|Support the power of the jury
|Gary Blackburn, president of the Tennessee Chapter of the American Board of Trial Advocates, explains how "thousands of Tennesseans become judges each year." He's talking about jurors and how "their work and their wisdom are under attack."
|Read the editorial in the Tennessean
|2nd juvenile judge OK'd by Shelby court
|Chancellor Kenny Armstrong ruled against Shelby County Juvenile Court Judge Curtis Person on Friday, paving the way for a second judge in the court. Person, through his attorney Lucian Pera, vowed to take the fight to the Tennessee Court of Appeals, and predicted that the Tennessee Supreme Court may decide it. "We think that his ruling ignores the explicit provision of the Tennessee Constitution that says that courts are different from other parts of government and that the legislature can't delegate the power to establish a court to anyone else," Pera said.
|Read more in the Commercial Appeal
|Thomas a man a few words
|During the current U.S. Supreme Court term, Clarence Thomas has sat through 68 hours of oral arguments without uttering a single word, the Associated Press reports.
Normally, in his nearly 16 years on the court, Thomas will ask questions a couple of times each term. The court's only black justice spoke up a few years ago in cases involving cross burning and affirmative action.
But the last time he asked a question in court was in February of last year.
He has said in the past that he will ask a pertinent question if his colleagues don't, but that he sees no need to engage in the back-and-forth "just to hear his own voice."
|Specter predicts vote will push Gonzales to quit
|Pennsylvania Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee, said he believed a "sizable number" of Republicans would join in the vote of no-confidence against Attorney General Alberto Gonzales if it comes to that. But noting that votes like that are rare, he predicts Gonzales will resign first. "Historically, that is something which Attorney General Gonzales would like to avoid. I think that if and when he sees that coming, he would prefer to avoid that kind of a historical black mark."
|The News Sentinel carried this AP story
|Lawyer-scientists in hot demand
|One of the "hottest niches" of the law is in patents, a good fit for scientists who also have law degrees, people who understand technology and can explain it to a jury.
"It's maybe not as sexy as defending a murderer, but it's sexy in a different way," said Loretta Weathers, 31, a scientist-turned-lawyer herself.
|The Kingsport Times-News carried this AP story
|Save the date for the Historical Society Dinner
|The second annual Tennessee Supreme Court Historical Society Dinner will be Oct. 2, at the Hilton Nashville Downtown. For more information call Joy Day at (615) 771-5008 or email her at firstname.lastname@example.org
|Deadline near for TBA convention hotel registration
|The deadline for reserving a room at the Music City Sheraton hotel for this summer's TBA Annual Convention is fast approaching. Don't miss out on these special rates for the June 13-16 event in Nashville. Visit the TBALink web site to register for the convention or find out more about hotel registration.
|Register now or find out more
|Arthur Miller on threats to privacy
|Author, legal correspondent and Harvard Law School Professor Arthur Miller moderates a distinguished panel of experts in examining the state of American law in light of potential and actual threats to privacy posed by emerging technology. Don't miss it, June 6, in Nashville.
|Find out more about this course