TennBarU Teleseminar: Estate Planners & New Circular 230: How New
Standards of IRS Standards Will Impact Estate and Gift Tax Practice
June 23 • SPECIAL TIME 11 a.m. to noon (Central Time) - Teleseminar

The IRS recently amended that set of professional responsibility
regulations commonly known as “Circular 230.” As amended Circular 230
now covers a broad range of “written advice,” a range of advice
substantially greater than traditional “opinion letters.” As of June
20, 2005, the written advice of estate planners will be governed by
these new regulations. Traditionally, income tax practitioners have
been more accustomed to the application of Circular 230 than estate
planners. The application of Circular 230 to written estate planning
advice has engendered substantial ferment about the practical effect
of the new regulations on estate and gift tax practice. Is the
principal purpose of estate planning the reduction of tax – or the
effect transfer of a client’s assets to his heirs? This program is
designed to for estate planners and will be led by a senior official
of the U.S. Department of Treasury’s Office of Tax Policy and an
experienced estate planner, who will discuss the practical application
of Circular 230 to the advice given by estate planners to their
clients.

Today's Opinions: June 3, 2005
Volume 11 — Number 105
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
06 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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
Knoxville, Tennessee
Editor-in-Chief, TBALink


THE ALISON GROUP, INC. v. GREG ERICSON, Individually d/b/a ERICSON &
ASSOCIATES, ET AL.

Court:TCA

Attorneys:                          

Prince C. Chambliss, Jr., Memphis, TN, for Appellants

Bruce D. Brooke, Memphis, TN; William C. Hearon, Miami, FL, for
Appellees

Judge: HIGHERS

First Paragraph:

This appeal arises out of an action filed by Appellee to confirm an
arbitration award. Appellants contest whether Appellee, as a foreign
corporation without a certificate of authority, may avail itself of
the Tennessee judicial system to enforce the arbitration award. The
trial court determined that Appellee was exempted from the requirement
of obtaining a certificate of authority and confirmed the arbitration
award in favor of Appellee. Additionally, the trial court denied
Appellee's request for attorney's fees incurred to collect the
arbitration award. For the following reasons, we affirm.

http://www.tba.org/tba_files/TCA/2005/alisongroup6305.pdf

ROBERT BEAN ET AL. v. PHIL BREDESEN ET AL.
OPINION DENYING PETITION FOR REHEARING

Court:TCA

Judge: KOCH

First Paragraph:

The parties challenging the constitutionality of Tenn. Code Ann. S
70-4-403(4)(B) (2004) have filed a petition for rehearing pursuant to
Tenn. R. App. P. 39 requesting this court to reconsider portions of
its May 2, 2005 opinion. The petition asserts that we have ignored
material facts and misunderstood the statutes and rules relating to
cervidae in Tennessee. We have carefully considered the points raised
in the petition and have determined that the petition raises no new
factual or legal matters that we have not already considered.

OPINION DENYING PETITION FOR REHEARING
http://www.tba.org/tba_files/TCA/2005/beanr6305.pdf

CLINTON WILLIAM CLARNEAU v. ANGELA DAWN CLARNEAU (NOW ATWOOD)

Court:TCA

Attorneys:                          

Lance B. Mayes, Nashville, Tennessee, for the appellant, Angela Dawn
Clarneau (now Atwood).

Jason Ryan Reeves, Shelbyville, Tennessee, for the appellee, Clinton
William Clarneau.

Judge: CLEMENT

First Paragraph:

This is a custody dispute. The trial court granted the father's
petition to modify custody and changed primary custody of the parties'
two minor children from the mother to the father, based on findings of
a material change of circumstances and the best interests of the
children. On appeal, we reverse the trial court's modification of
custody finding there has not been a material change of circumstances
justifying a change of custody and that the children's best interests
are served by remaining with Mother.

http://www.tba.org/tba_files/TCA/2005/clarneauc6305.pdf

RUBY ANGELO SMITH and CHARLES SMITH v. SAMMIE L. SHAW

Court:TCA

Attorneys:                          

Barry L. Gardner, Brentwood, and Roland M. Lowell, Nashville, for
plaintiff/appellants Ruby Angelo Smith and Charles Smith.

John H. Dotson, Memphis, for defendant/appellee Sammie L. Shaw

Judge: KIRBY

First Paragraph:

This case is about a motion to set aside an order of dismissal. In
1997, the plaintiff sued the defendant for damages resulting from a
1996 car accident. On February 18, 2002, the trial court signed an
order dismissing the lawsuit for failure to prosecute. That order was
not filed by the court clerk until two years later, on February 18,
2004. During the two years between the time the dismissal order was
signed until it was filed, both parties continued discovery and
negotiation. After discovering the dismissal in 2004, the plaintiff
asserted that neither party had received notice of the dismissal. The
plaintiff then filed motions under Rules 59 and 60 of the Tennessee
Rules of Civil Procedure, asking the trial court to set aside the
order of dismissal. The motions were denied, and the plaintiffs
appeal. We reverse, finding that under the circumstances of this case,
the order of dismissal should have been set aside.

http://www.tba.org/tba_files/TCA/2005/smithr6305.pdf

RICHARD L. ELLIOTT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jeffry S. Grimes, Clarksville, Tennessee, for the Appellant, Richard
Elliott.

Paul G.Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; and C. Daniel Brollier, Assistant District
Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

On March 2, 2004, the Montgomery County Circuit Court, after
conducting an evidentiary hearing on the claims presented, entered an
order dismissing Richard L. Elliott's petition for post-conviction
relief. On March 5, 2004, Elliott filed an "Amended Petition" alleging
that because his postconviction counsel failed to raise a requested
claim for relief at the evidentiary hearing, he was entitled to a
hearing on the omitted claim. Elliott's "Amended Petition" was
summarily dismissed by the post-conviction court. After review, we
affirm the trial court's dismissal of the amended petition for
post-conviction relief.

http://www.tba.org/tba_files/TCCA/2005/elliottr6305.pdf

EDWARD JEROME JOHNSON V. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Michael A. Colavecchio, Nashville, Tennessee, for the appellant,
Edward Jerome Johnson.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; Victor S. (Torry) Johnson III, District
Attorney General; and Amy H. Eisenbeck, Assistant District Attorney
General, for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Edward Jerome Jones, filed a pro se petition for
post-conviction relief, as amended after the appointment of counsel,
arguing that he received ineffective assistance of counsel in
connection with the negotiation and entry of Petitioner's best
interest plea. Specifically, Petitioner alleges that his trial counsel
failed to advise him of the evidence against him or allow him to
listen to certain audio tapes, and that trial counsel failed to file a
motion to dismiss the charges against Petitioner. After a review of
the record in this matter, we affirm the trial court's dismissal of
Petitioner's petition for post-conviction relief.

http://www.tba.org/tba_files/TCCA/2005/johnsone6305.pdf

STATE OF TENNESSEE v. LUCIAN HENRY MARSHALL, III

Court:TCCA

Attorneys:                          

William N. Ligon, Gallatin, Tennessee, for the appellant, Lucian Henry
Marshall, III.

Paul G. Summers, Attorney General and Reporter; Lizabeth A. Hale,
Assistant Attorney General; Lawrence R. Whitley, District Attorney
General; and Dee Gay, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The appellant, Lucian Henry Marshall, III, appeals the order of the
Sumner County Criminal Court, signed by appellant's counsel, agreeing
to the disposition of money and his vehicle which had been seized
pursuant to a forfeiture warrant. Alleging he was not properly
informed of the procedure for recovering his seized assets, the
appellant asks us to void the agreed order. We affirm the order of the
trial court.

http://www.tba.org/tba_files/TCCA/2005/marshalll6305.pdf

STATE OF TENNESSEE v. ROBERT GENE MAYFIELD

Court:TCCA

Attorneys:                          

Timothy R. Wallace, Clarksville, Tennessee, for the Appellant, Robert
Gene Mayfield.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and Lance Baker, Assistant District
Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Robert Gene Mayfield, presents for review a certified
question of law. See Tenn. R. Crim. P. 37(b)(2)(i). Mayfield pled
guilty to felony possession of over .5 grams of cocaine with the
intent to sell and felony possession of over one-half ounce of
marijuana with the intent to sell. He was subsequently sentenced to an
effective eight-year sentence to be served on probation. As a
condition of his guilty plea, Mayfield explicitly reserved a certified
question of law challenging the denial of his motion to suppress
evidence found during the execution of a search warrant at his
residence. Mayfield argues that the affidavit given in support of the
warrant was insufficient to establish probable cause. After review of
the record, we affirm the judgment of the Montgomery County Circuit
Court denying the motion to suppress.

http://www.tba.org/tba_files/TCCA/2005/mayfieldr6305.pdf

STATE OF TENNESSEE v. JOANN WHITE POGUE

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, and Michael J. Collins,
Shelbyville, Tennessee, for the appellant, Joann White Pogue.

Paul G.Summers, Attorney General and Reporter; and Brent C.Cherry,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Joann White Pogue, pled guilty in the Marshall County
Circuit Court to five counts of delivery of morphine and five counts
of selling morphine, Class C felonies. The trial court merged each
delivery conviction into a conviction for selling morphine and
sentenced the appellant to an effective nine-year sentence in the
Department of Correction (DOC). On appeal, the appellant claims the
trial court improperly enhanced her sentences and improperly concluded
that she was not entitled to the presumption that she was a favorable
candidate for alternative sentencing. We agree that the trial court
improperly applied enhancement factors and that the appellant was
entitled to the presumption. Upon review of the record and the
parties' briefs, we conclude that the trial court erred in its
sentencing determinations and remand for resentencing.

http://www.tba.org/tba_files/TCCA/2005/poguej6305.pdf

STATE OF TENNESSEE v. PAUL DENNIS REID, JR.

Court:TCCA

Attorneys:                          

Thomas F. Bloom and James A. Simmons, Nashville, Tennessee, for the
appellant, Paul Dennis Reid, Jr.

Paul G.Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Angele M. Gregory, Assistant Attorney General,
for the appellee, State of Tennessee

Judge: WOODALL

First Paragraph:

Defendant Paul Dennis Reid, Jr., was found guilty by a jury of three
counts of premeditated murder, three counts of felony murder, one
count of attempted murder, and one count of especially aggravated
robbery. The felony murder convictions were merged into the
premeditated murder convictions. Thereafter, the jury sentenced
Defendant to death based upon the finding of four aggravating
circumstances: the defendant had previously been convicted of one or
more felonies, other than the present charge, the statutory elements
of which involve the use of violence to the person; the murders were
committed for the purpose of avoiding, interfering with or preventing
a lawful arrest or prosecution of defendant or another; the murder was
knowinglycommitted, solicited, directed or aided by the defendant,
while the defendant had a substantial role in committing or attempting
to commit, or was fleeing after having a substantial role in
committing or attempting to commit robbery; and the defendant
committed "mass murder," which was defined at the time of the
commission of these offenses as the murder of three or more persons
within the State of Tennessee within a period of forty-eight months,
and perpetrated in a similar fashion in a common scheme or plan. Tenn.
Code Ann. S 39-13-204(i)(2), (6), (7), and (12)(Supp. 1996). The trial
court sentenced Defendant to 25 years imprisonment for the attempted
murder conviction and 25 years imprisonment for the especially
aggravated robbery conviction, to be served consecutively to each
other and to Defendant's other non-death sentences. On appeal,
Defendant presents forty-seven issues. We affirm Defendant's
convictions and sentences.

http://www.tba.org/tba_files/TCCA/2005/reidp2_6305.pdf

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