Understanding the New Limited Liability Company Act
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Today's Opinions: June 23, 2005
Volume 11 — Number 119
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
03 New Opinion(s) from the Tennessee Court of Appeals
08 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


ALBERT ALLEN ARNOLD, ET AL. v. HENRY BOWMAN

Court:TCA

Attorneys:                          

Howard L. Upchurch, Pikeville, Tennessee, for the appellants, Albert
Allen Arnold, Trustee for Robert Ivens, and Robert Ivens,
individually.

William J. Brown, Cleveland, Tennessee, for the appellee, Henry Bowman

Judge: SUSANO

First Paragraph:

Albert Allen Arnold, in his capacity as trustee for Robert Ivens and
Jackie West, and, in addition, Robert Ivens and Jackie West,
individually ("the plaintiffs") filed the instant action against Henry
Bowman ("the defendant"), claiming interests in real property ("the
subject property") titled solely in the name of the defendant. In
addition to that cause of action, Ivens asserted that he and the
defendant had a dispute as to the location of the property line
separating the subject property from another tract owned by Ivens. The
trial court granted the defendant summary judgment as to all of the
plaintiffs' claims. It subsequently conducted a bench trial on the
defendant's counterclaim; in that counterclaim, the defendant had
alleged that Arnold had, without the benefit of a license, acted as a
real estate broker and received a fee in connection with the
defendant's purchase of the subject property. The bench trial also
addressed the defendant's request for Tenn. R. Civ. P. 11 sanctions.
At the trial, these remaining issues were also found in favor of the
defendant. The plaintiffs Arnold and Ivens appeal.1 We affirm the
trial court's grant of summary judgment to the defendant as to the
appealing plaintiffs' claim that Ivens owns an interest in the subject
property, but we vacate so much of the award of summary judgment as
holds that Ivens' property line dispute is barred by the doctrines of
res judicata and collateral estoppel. We affirm the trial court's
judgment regarding the defendant's claim that Arnold acted as a real
estate broker without a license, but reverse that portion of the
judgment holding that Ivens is jointlyand severally liable with Arnold
for the statutory penalty assessed in response to Arnold's misconduct.
Furthermore, we vacate the trial court's award of a Rule 11 sanction.
We remand for further proceedings.

http://www.tba.org/tba_files/TCA/2005/arnolda62305.pdf

JAMES O. BAILEY, ET AL. v. ROBIN CRUM, ET AL.

Court:TCA

Attorneys:                          

John Stephen Anderson, Rogersville, Tennessee, for the Appellants,
James O. Bailey and Kim Bailey.

Richard A. Spivey, Kingsport, Tennessee, for the Appellees, Robin Crum
and Sonny Crum.

Judge: LEE

First Paragraph:

In this case, the Appellant argues that the trial court erred in
holding her in willful contempt of court for violating the court's
prior order of injunction and for failing to appear for the hearing on
the petition for contempt. The trial court sentenced the Appellant to
ten days in jail and imposed a fine of $50.00. Upon our finding that
the contempt was criminal in nature and that the Appellant was not
accorded her rights of due process under Tenn. R. Crim. P. 42(b), the
judgment of the trial court is reversed in part, vacated in part and
the cause is remanded for further proceedings.

http://www.tba.org/tba_files/TCA/2005/baileyj62305.pdf

TAMMY LYNN HUNTER v. TIMOTHY EDWIN HUNTER

Court:TCA

Attorneys:                          

Delilah Speed; Matt Q. Bastian, Columbia, Tennessee, for the
appellant, Timothy Edwin Hunter.

J. Russell Parkes, Wesley Mack Bryant, Columbia, Tennessee, for the
appellee, Tammy Lynn Hunter.

Judge: COTTRELL

First Paragraph:

The trial court granted a divorce to Wife on the ground of Husband's
inappropriate marital conduct, divided the marital property, made Wife
primary residential parent for the parties' two children, and ordered
Husband to pay child support, alimony, and attorney fees. Husband
argues on appeal that alimony was inappropriate, that the property
division was based on incorrect determinations, and that the parenting
plan adopted by the court gave him less residential time with the
children than he was entitled to. We affirm the trial court.

http://www.tba.org/tba_files/TCA/2005/huntert62305.pdf

STATE OF TENNESSEE v. KENNETH BUFORD, ALIAS

Court:TCCA

Attorneys:                          

Tony McGuire, Knoxville, Tennessee, for the appellant, Kenneth Buford,
Alias.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; Ta Kisha Fitzgerald, Assistant District Attorney General; and
Jennifer Beyland, Special Prosecuting Attorney, for the appellee,
State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals his conviction for reckless endangerment,
contending specifically that the evidence was insufficient to prove
that he placed anyone in imminent danger of death or serious bodily
injury. Upon review, we conclude that because the defendant fired the
gun in the air, away from any person or potentially occupied building,
the evidence is insufficient to sustain his conviction. Therefore, we
reverse the conviction and dismiss the charges.

http://www.tba.org/tba_files/TCCA/2005/bufordk62305.pdf

STATE OF TENNESSEE v. MICHAEL L. CALANDROS
JUDGEMENT

Court:TCCA

First Paragraph:

Came the appellant, Michael L. Calandros, pro se, and also came the
Attorney General on behalf of the State of Tennessee, and this case
was heard on the record on appeal from the Criminal Court of Sullivan
County; and upon consideration thereof, this Court is of the opinion
that this avenue of appeal is unavailable to the defendant because the
sentence in this case is neither illegal nor void.

JUDGEMENT
http://www.tba.org/tba_files/TCCA/2005/calandrosm62305.pdf

ERIKA EAST V. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Erika
East.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and John W. Price, III., Assistant District Attorney
General, for the appellee, State of Tennessee

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Erika East, filed a petition for post-conviction
relief contending that she received ineffective assistance of counsel.
After a hearing, the post-conviction court denied the Petitioner's
request for post-conviction relief. Finding no reversible error, we
affirm the judgment of the post-conviction court.

http://www.tba.org/tba_files/TCCA/2005/easte62305.pdf

STATE OF TENNESSEE v. PATRICIA MARIE JENSON
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

C. Leann Smith, Nashville, Tennessee, for the appellant, Patricia
Marie Jenson.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Amy H. Eisenbeck and Brian K. Holmgren, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Patricia Marie Jenson,2 was convicted by a jury in the
Davidson County Criminal Court of child neglect and possession of drug
paraphernalia. She received a total effective sentence of four years,
to be served on community corrections. On appeal, the appellant
challenges the sufficiency of the evidence supporting her conviction
for child neglect and the sentence imposed by the trial court on that
offense. Upon our review of the record and the parties' briefs, we
affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/jensonp62305.pdf

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/2005/jensonp_dis62305.pdf

STATE OF TENNESSEE v. JESSE ROSS SMITH

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, and Andrew Jackson Dearing,
III, Shelbyville, Tennessee, for the appellant, Jesse Ross Smith.

Paul G. Summers, Attorney General and Reporter; and Renee W. Turner,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael D. Randles, Assistant District Attorney General,
for the appellee, State of Tennessee

Judge: OGLE

First Paragraph:

The appellant, Jesse Ross Smith, pled guilty in the Bedford County
Circuit Court to aggravated robbery, aggravated assault, possession of
a prohibited weapon, and driving on a revoked license. Pursuant to the
plea agreement, the trial court was to determine the length of the
sentence. After a sentencing hearing, the trial court ordered an
effective twenty-six-year sentence in the Department of Correction
(DOC). On appeal, the appellant claims the trial court improperly
enhanced his sentences in light of Blakely v. Washington, 542 U.S.
___, 124 S. Ct. 2531 (2004), and improperly sentenced him as a Range
II offender. Upon review of the record and the parties' briefs, we
affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/smithj62305.pdf

STATE OF TENNESSEE v. ALICE SMOTHERMAN

Court:TCCA

Attorneys:                          

J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Alice
Smotherman.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General, T. Michel Bottoms, District Attorney
General; and Douglas Dicus, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

The Defendant, Alice Smotherman, pled guilty to possession of a
Schedule IV controlled substance for resale, a Class D felony, after
the trial court denied her motion to suppress evidence seized pursuant
to a search warrant. As part of the plea agreement, she reserved the
right to appeal a certified question of law pursuant to Tennessee Rule
of Criminal Procedure 37(b)(2)(i). The certified question reserved for
review was "whether or not the affidavit in the search warrant is
sufficient to establish truthfulness, reliability and veracity of
information that [an] unnamed third party conveyed to affiant which
established probable cause for the issuance of the search warrant; and
whether or not the search warrant complied with Rule 41(c) of the
Tennessee Rules of Criminal Procedure." Because the record on appeal
is incomplete, we must conclusively presume the ruling of the trial
court was correct. Accordingly, we affirm the decision of the trial
court.

http://www.tba.org/tba_files/TCCA/2005/smothermana62305.pdf

STATE OF TENNESSEE v. DAVID LEE WAKEFIELD

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Mike Bottoms, District Attorney General;
and William Doak Patton, Assistant District Attorney General, for the
appellant, State of Tennessee.

Gary Howell, Mt. Pleasant, Tennessee, for the appellee, David Lee
Wakefield.

Judge: WEDEMEYER

First Paragraph:

A Maury County Jury convicted the Defendant, David Lee Wakefield, of
driving under the influence ("DUI"). The trial court granted the
Defendant's motion for a judgment of acquittal, and the State now
appeals. Finding that there exists reversible error, we reverse the
judgment of the trial court and remand the case for a new trial.

http://www.tba.org/tba_files/TCCA/2005/wakefieldd62305.pdf

STATE OF TENNESSEE v. WALTER WILLIAMS, JR.

Court:TCCA

Attorneys:                          

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Walter
Williams, Jr.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney
General; and Lisa Donegan, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Walter Williams, Jr., pled guilty in the Humphreys
County Circuit Court to driving under the influence (DUI), fourth
offense, a Class E felony, and driving on a revoked license, a Class B
misdemeanor. For the DUI conviction, the trial court sentenced the
appellant to one year in jail, to be suspended after serving one
hundred fifty days in jail, imposed a three thousand dollar fine, and
suspended the appellant's driver's license for five years. For the
driving on a revoked license conviction, the trial court sentenced the
appellant to six months, to be suspended after serving two days in
jail. The trial court ordered that the sentence for the driving on a
revoked license conviction be served consecutively to the sentence for
DUI. Pursuant to the plea agreement, the appellant reserved the right
to appeal a certified question of law challenging the trial court's
denial of his motion to suppress. Upon review of the record and the
parties' briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/williamsw62305.pdf

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