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Friday, August 11, 2006

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2 TBA members chosen to lead ABA committees

Memphis attorneys Al Harvey and Lucian Pera have been selected to chair two important American Bar Association committees. Al Harvey, a partner at Thomason Hendrix Harvey Johnson & Mitchell, will chair the ABA Standing Committee on Law and National Security, while Lucian Pera, a partner at Adams and Reese, will chair the Standing Committee on Technology and Information Systems.

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, 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.

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

H. DOUGLAS LANE v. HARRY LANE, ET AL.

Court: TCA

Attorneys:

David L. Bacon, Knoxville, Tennessee for the Appellant, H. Douglas Lane.

Darryl G. Lowe, Knoxville, Tennessee for the Appellees, E. Ladell McCullough, CPA and Henderson, Hutcherson, & McCullough, PLLC. Linda J. Hamilton Mowles, Knoxville, Tennessee for the Appellees, Harry Lane; Harry Lane Nissan, Inc.; and Jeffrey E. Cappo.

Judge: SWINEY

In March of 2000, H. Douglas Lane ("Plaintiff") sued Harry Lane ("Defendant Lane"), E. Ladell McCullough, CPA ("Defendant McCullough"), Henderson, Hutcherson & McCullough, PLLC ("Defendant Accountants"), Harry Lane Nissan, Inc. ("the Dealership"), and Jeffrey E. Cappo ("Defendant Cappo") claiming, among other things, that the various defendants had conspired to cheat Plaintiff out of his share of the proceeds from the sale of the Dealership and that the defendants' wrongful conduct had caused Plaintiff serious mental injury. The case was tried without a jury and at the close of Plaintiff's proof, the defendants moved for an involuntary dismissal. The Trial Court dismissed Plaintiff's claims against all defendants. Plaintiff appeals to this Court. We affirm.

http://www.tba2.org/tba_files/TCA/2006/lanehd_081106.pdf

ANDREW BLAKE MOOREHEAD v. STACY CHRISTINE FUGITT (MOOREHEAD)

Court: TCA

Attorneys:

Jennifer Twyman King, Jackson, Tennessee, for the Respondent/Appellant, Andrew Blake Moorehead.

Stacy Christine Fugitt, pro se (no brief filed).

Judge: KIRBY

This is a post-divorce case involving child custody. The parties divorced with an agreed parenting plan for their minor child in which the parties shared equally in residential parenting time and decision-making. When both parties remarried and the child approached school age, the father filed a petition seeking to have the child reside primarily with him. The mother then filed a similar petition. After a comparative fitness analysis, the trial court designated the mother as the primary residential parent. The father now appeals. We affirm, finding that the evidence does not preponderate against the trial court's decision.

http://www.tba2.org/tba_files/TCA/2006/mooreheadab_081106.pdf

FARMER DISSENTING
http://www.tba2.org/tba_files/TCA/2006/mooreheadab_dis_081106.pdf

KAREN WEBB v. TENNESSEE DEPARTMENT OF TOURIST DEVELOPMENT ET AL.

Court: TCA

Attorneys:

David B. Lyons, Nashville, Tennessee, for the appellant, Karen Webb.

Paul G. Summers, Attorney General and Reporter, and Eugenie B. Whitesell, Senior Counsel, for the appellees, Tennessee Department of Tourist Development, Susan Whitaker, Tennessee Civil Service Commission, and Randy Camp.

Judge: KOCH

This appeal involves a state employee in the career service who lost her job in a reduction in force. After her former department created a new position in the executive service that she believed was similar to her former position, the employee filed a grievance asserting that she was entitled to be placed in the new position by virtue of Tenn. Code Ann. � 8-30-320(b) (Supp. 2005). Both the commissioner of the employee's former department and the Commissioner of Personnel determined that her complaint was not grievable. Thereafter, the employee filed a petition for judicial review under Tenn. Code Ann. � 4-5-322 (2005) in the Chancery Court for Davidson County. The state defendants moved to dismiss the petition for lack of subject matter jurisdiction on the ground that the employee was not appealing from a final decision in a contested case proceeding. The trial court granted the motion, and the employee has appealed. We have determined that the trial court erred by concluding that it lacked subject matter jurisdiction to hear the employee's petition. However, we have also determined that the employee's petition fails to state a claim upon which relief can be granted because Tenn. Code Ann. � 8-30-320(b) does not require the State to place laid-off employees in the career service into newly created positions in the executive service.

http://www.tba2.org/tba_files/TCA/2006/webbk_081106.pdf

STATE OF TENNESSEE v. KEVIN B. ARMSTRONG

Court: TCCA

Attorneys:

Emma Rae Tennent, Assistant Public Defender (on appeal), and Dawn Deaner, Assistant Public Defender (at trial), for the appellant, Kevin B. Armstrong.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Angelita Dalton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Kevin B. Armstrong, appeals the trial court's revocation of his community corrections sentence. The sole issue on appeal is whether the trial court abused its discretion in ordering the defendant to serve the balance of his sentence in confinement. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/armstrongk_081106.pdf

STATE OF TENNESSEE v. BILLY JACKSON COFFELT

Court: TCCA

Attorneys:

David M. Hopkins, Nashville, Tennessee, for the appellant, Billy Jackson Coffelt.

Paul G. Summers, Attorney General & Reporter; Leslie Price and Sophia Lee, Assistant Attorneys General; Victor S. Johnson, III, District Attorney General; and Brett Gunn and Roger Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WADE

The petitioner, Billy Jackson Coffelt, was convicted in 1983 of assault with intent to commit first degree murder and assault with intent to commit robbery with a deadly weapon. The trial court imposed a sentence of life for the conviction of assault with intent to commit first degree murder and a sentence of not less than ten and not more than twenty-one years for the conviction of assault with intent to commit robbery. There was no direct appeal. After seventeen years of protracted litigation, the post-conviction court granted the petitioner a delayed appeal of his convictions. At the same time, the post-conviction court denied the remaining claims in the petition for post-conviction relief. The petitioner filed separate notices of appeal in each case. The cases were later consolidated by this court upon motion of the petitioner. The single issue presented in the petitioner's delayed appeal is whether the evidence is sufficient to support the convictions. In his appeal of the denial of his post-conviction petition, the petitioner asserts that he was denied the effective assistance of counsel at trial. Because the evidence was sufficient to support the convictions, the judgments of conviction as to the delayed appeal are affirmed; however, because the petitioner was denied the effective assistance of counsel at trial, the judgment of the post-conviction court denying relief must be reversed, the convictions vacated, and the cause remanded for a new trial.

http://www.tba2.org/tba_files/TCCA/2006/coffeltbj_081106.pdf

STATE OF TENNESSEE v. SHRONE M. HILL

Court: TCCA

Attorneys:

Stephen M. Goldstein, Chattanooga, Tennessee for the appellant, Shrone M. Hill.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William H. Cox III, District Attorney General; and Neal Pinkston, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Shrone M. Hill, pled guilty to five counts of aggravated burglary, and the trial court sentenced him, as a Range I offender, to an effective sentence of eighteen years in prison. On appeal, the Defendant contends that: (1) the trial court erred when it sentenced him to the maximum of six years for each count; and (2) the trial court erred when it ordered two of the five sentences to run consecutively to each other and consecutively to the three concurrent sentences. Finding that there exists no reversible error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/hillsm_081106.pdf

JOHNNY PHELPS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Johnny L. Phelps, pro se, Mountain City, Tennessee.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General, for the appellee; William H Cox, III, District Attorney General; Rodney C. Strong, Assistant District Attorney General, State of Tennessee.

Judge: WEDEMEYER

In 1973, a Hamilton County jury convicted the Petitioner of rape, and the trial court imposed an effective sentence of ninety-nine years in prison. On direct appeal, this Court affirmed the Petitioner's convictions, and the Tennessee Supreme Court denied the Petitioner's application for permission to appeal. In 2004, the Petitioner filed a petition for post-conviction relief requesting DNA testing pursuant to the Post-Conviction DNA Analysis Act of 2001. After the State responded1 that it was unable to find any biological evidence relating to the crime, the trial court denied the Petitioner's post-conviction petition. The Petitioner appeals, contending that the trial court erred by dismissing the petition without an evidentiary hearing. Finding that there exists no reversible error, we affirm the trial court's dismissal of the petition.

http://www.tba2.org/tba_files/TCCA/2006/phelpsjl_081106.pdf

STATE OF TENNESSEE v. JOSE RODRIGUEZ AND ELADIO CABALLERO SANCHEZ

Court: TCCA

Attorneys:

Geoffrey Coston, Franklin, Tennessee, for the appellant, Jose Rodriguez. Dale Quillen and Kenneth Quillen, Nashville, Tennessee, for the appellant, Eladio Caballero Sanchez.

Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant Attorney General; Lawrence Whitley, District Attorney General; and Dee Gay, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The defendants, Jose Rodriguez and Eladio Caballero Sanchez, were convicted of conspiracy to possess marijuana with intent to sell or deliver, a Class A felony. See Tenn. Code Ann. � 39-17-417(j)(13) (2003). The trial court sentenced each defendant to twenty years in the Department of Correction. In this appeal, the defendant Rodriguez asserts (1) that the evidence is insufficient to support his conviction; (2) that the trial court erred by admitting evidence of his alleged prior bad acts in violation of Tennessee Rule of Evidence 404(b); (3) that the trial court erred by permitting a state witness to give improper opinion testimony; and (4) that the trial court erred by admitting into evidence a map created by a state witness. The defendant Sanchez asserts (1) that the evidence is insufficient to support his conviction; (2) that the trial court erred by admitting evidence of his alleged prior bad acts in violation of Rule 404(b); (3) that the trial court erred by admitting into evidence a document that was not provided to the defense prior to trial; (4) that the trial court erred by permitting a state witness to give improper opinion testimony; and (5) that the trial court erred by admitting irrelevant evidence regarding his ownership of property in Mexico. The judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/rodriguezsa_081106.pdf

STATE OF TENNESSEE v. KENNETH SHANE STORY

Court: TCCA

Attorneys:

Michael W. Patrick, Waverly, Tennessee (on appeal), and Kenneth Shane Story, pro se, Waverly, Tennesee (at trial), for the Appellant.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Lisa Donegan, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Kenneth Shane Story, pled guilty to one count of manufacturing methamphetamine and two counts of possession of one-half gram or more of ethamphetamine with intent to sell or deliver. The Defendant received an effective sentence of four years, all to be served on probation. Subsequently, a probation violation warrant was issued, and after a hearing, the trial court revoked the Defendant's probation. The Defendant appeals, claiming that: (1) he was not provided due process; (2) the trial court was not presented sufficient evidence to revoke his probation; and (3) the trial court erred in failing to provide him counsel. Finding no reversible error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/storyks_081106.pdf

TODAY'S NEWS

Legal News
Online CLE
TBA Member Services

Legal News

Charter committee favors keeping Knox term limits

A Knox County charter review committee proposes keeping term limits as they were passed 12 years ago, the Knoxville News Sentinel reports. The issue came into question earlier this year when Chancellor John Weaver ruled the county's charter invalid, including term limit provisions approved by Knox voters. That decision is under appeal to the Supreme Court, which is expected to take up the matter Sept. 6.

Read the full story

Metro officials report progress on Birch facility problems

Top metro court and law enforcement officials are making progress in working out logistical kinks that have troubled the new new Justice A.A. Birch Building since it opened in June, the City Paper reports.

Read the full story

Governor repeats request for new justice candidates

Gov. Bredesen repeated his request that the Judicial Selection Commision select a new panel of three candiates to fill a Supreme Court vacancy, according to a report on WREG-TV in Memphis. The commisison had asked the governor to clarify whether he had sent back the first panel because it had no minority candidates or because he was rejecting the entire panel. The report said he repeated his reasoning to the commission, saying it was unacceptable to have to choose between two white candidates following the withdrawal of the only black finalist.

Judge stresses most bar members are ethical

Blount County Circuit Judge W. Dale Young writes an editorial in support of the lawyers in his county: "The mistakes and indiscretions of [a few lawyers] have been made public; they have caused some people to believe that if a few attorneys have failed in their ethical responsibilities, the group as a whole must be of the same persuasion. Such a view is profoundly wrong."