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Friday, November 03, 2006

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Real estate CLE on tap for next week

The TBA's annual seminar "Hot Topics in Real Estate" will be offered in Nashville on Friday, Nov. 10 at the BellSouth Auditorium. The day-long session -- a joint venture of the TBA Real Estate Section and the Tennessee Land Title Association -- will cover recent legal and statutory developments in the field, new trends and best practices. Register at TennBarU:

https://www.tba.org/onsiteinfo/realestate_2006.html

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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00 - TN Supreme Court - Rules
03 - TN Court of Appeals
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00 - TN Attorney General Opinions
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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

Charlotte McCall v. National Health Corporation, ET AL.

Court: TWCA

Attorneys:

John W. Rodgers and James P. Barger, Murfreesboro, Tennessee, for appellants, National Health Corporation and Greg Bidwell.

Larry McElhaney, II, Nashville, Tennessee for appellee, Charlotte McCall.

Judge: HARRIS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer asserts that the trial court erred in finding the employee's injury compensable, awarding the employee workers' compensation benefits, and finding the employee seventy-five (75%) percent disabled as a result of her employment with National Health Corporation. The employee asserts that the trial court erred in not finding the employee totally disabled and that summary judgment should not have been granted with respect to the tort claim brought against employee's supervisor. We conclude that the findings of the trial court should be affirmed with regard to issues relating to workers' compensation benefits. Appellate jurisdiction with regard to the granting of summary judgment on Ms. McCall's tort claim lies with the Court of Appeals and, pursuant to Rule 17, T. R. App. P., the cause is transferred to that court for appropriate review.

http://www.tba2.org/tba_files/TSC_WCP/2006/mccallc_110306.pdf

JULIANNE D. DAVIS v. RICKY DAVIS

Court: TCA

Attorneys:

Ricky Davis, Knoxville, Tennessee, pro se Appellant.

Julianne D. Davis, Knoxville, Tennessee, pro se Appellee.

Judge: LEE

In this post-divorce action, Ricky Davis has filed four Notices of Appeal challenging various orders of the trial court. Because none of the orders identified by Mr. Davis are final judgments within the meaning of Tennessee Rule of Appellate Procedure 3(a), we hold that we do not have jurisdiction over this matter and dismiss Mr. Davis' appeals.

http://www.tba2.org/tba_files/TCA/2006/julianned_110306.pdf

STATE OF TENNESSEE v. DELINQUENT TAXPAYERS (PROVIDENT PROPERTIES)

Court: TCA

Attorneys:

Austin L. McMullen, Nashville, Tennessee, for the appellant, LERETA Corporation.

Cristy Coors Beasley and Stephen J. Zralek, Nashville, Tennessee, for the appellee, Cristy Coors Beasley.

Judge: KOCH

This appeal involves the efforts of the purchaser of real property at a tax sale to recover the expenses she incurred to repair the property during the redemption period. After receiving notice of the redemption, the purchaser filed a claim in the Chancery Court for Davidson County seeking, among other relief, reimbursement from the redemptioner for the repairs she had made to the redeemed property. The trial court, believing that the tax sale was void, declined to apply the measure of damages in Tenn. Code Ann. Section 67-5-2704(a) (2003) and, following a bench trial, awarded the purchaser $21,764.36 based on the doctrine of mistake. The redemptioner takes issue on this appeal with the trial court's reliance on the doctrine of mistake. We have determined that the trial court erred by concluding that the tax sale was void and by failing to calculate the purchaser�s recovery using Tenn. Code Ann. Section 67-5-2704(a). We have also concluded that the evidence is not sufficient to assess damages under Tenn. Code Ann. Section 67-5-2704(a) and, therefore, that the case must be remanded for further proceedings.

http://www.tba2.org/tba_files/TCA/2006/providentp_110306.pdff

IN RE: ESTATE OF ANNE F. THREEFOOT, ANNE W. MILLER v. THE UNITED STATES

Court: TCA

Attorneys:

Robert F. Miller, Robert A. McLean, Nichol Gibson Davison, and Paul C. Peel of Memphis, Tennessee for Appellant, Anne W. Miller

John A. Nolet and Lindsey Cooper of Washington, D.C., for Appellee, The United States

Judge: CRAWFORD

Appellant, Executrix of Decedent's Estate, filed a request with the Probate Court of Shelby County to authorize the post-mortem transfer of real property to a limited family partnership, which was allegedly established by oral contract entered by and between the Appellant and Decedent prior to Decedent's death. The United States, Appellee, disputed the Appellant's contention that there was an oral contract to form a partnership. The trial court found that the record did not support an enforceable oral contract by clear and convincing evidence. Appellant appeals. We affirm and remand.

http://www.tba2.org/tba_files/TCA/2006/threefoota_110306.pdf

STATE OF TENNESSEE v. CORY CAMPBELL

Court: TCCA

Attorneys:

C. Anne Tipton, Memphis, Tennessee, (on appeal); Marvin Ballin, Memphis, Tennessee, (at trial), for the appellant, Cory Campbell.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; William L. Gibbons, District Attorney General; Paul Goodman, Assistant District Attorney General; Jack Irvine, Assistant District Attorney General; and Anita Spinetta, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Cory Campbell, was indicted and charged with aggravated assault. Following a jury trial, Defendant was convicted of the lesser included offense of felony reckless endangerment. The trial court sentenced Defendant to serve one year in the Shelby County Correctional Facility, with ninety days to be served on weekends and the remainder suspended. Defendant appeals his conviction, arguing that the evidence was insufficient to convict him of felony reckless endangerment and that the trial court lessened the State's burden of proof in response to the jury's questions during deliberations. After a thorough review of the record, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2006/campbellc_110306.pdf

STATE OF TENNESSEE v. FRANKLIN FITCH

Court: TCCA

Attorneys:

Phyllis Aluko and Tony N. Brayton, (on appeal) and Diane Thackery and Larry Nance (at trial), Assistant Public Defenders, Memphis, Tennessee, for the appellant, Franklin Fitch.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee and Stacy McEndree, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

A Shelby County jury found the defendant, Franklin Fitch, guilty of the first degree premeditated murder of Angela Carroll. Following a separate penalty phase, the jury found the presence of two statutory aggravating circumstances and that the aggravators outweighed any mitigating factors. The jury subsequently imposed a sentence of death. The defendant seeks review by this court of both his conviction for first degree murder and his sentence of death. He challenges: (1) the trial court's denial of his motion to suppress, (2) the sufficiency of the convicting evidence of first degree murder, (3) the trial court's admission of post-mortem photographs of the victim, (4) the trial court's instruction on premeditation, (5) the prosecutor's closing argument, (6) the sufficiency of the (i)(2) aggravating circumstance, (7) the trial court's instruction that reckless endangerment is an offense of violence, (8) the sufficiency of the (i)(3) aggravating circumstance, (9) the trial court's admission of victim impact testimony, (10) the trial court's jury instruction regarding victim impact evidence, (11) the failure to charge aggravating circumstances in the indictment, and (12) the constitutionality of Tennessee's death penalty statutes. Following our extensive review, we affirm the defendant's conviction of first degree murder. However, we conclude that the evidence does not support application of the (i)(2) statutory aggravating circumstance. As we are unable to conclude that this error is harmless, this matter is remanded for a new sentencing hearing.

http://www.tba2.org/tba_files/TCCA/2006/fitchf_110306.pdf

STATE OF TENNESSEE v. TIMOTHY HUTSON

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender, and Tony N. Brayton and Jim Hale, Assistant Public Defenders, for the appellant, Timothy Hutson.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jim Lammey and Dennis Johnson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

Timothy Hutson, the defendant, appeals his jury conviction for premeditated first degree murder. He was sentenced to life imprisonment. On appeal the defendant presents a single issue, that the evidence does not support the jury's finding of premeditation. Our review reveals that sufficient evidence was presented, and we affirm the defendant's judgment of conviction.

http://www.tba2.org/tba_files/TCCA/2006/hutsont_110306.pdf

DAVID EARL PALMER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwayne D. Maddox, III, Huntingdon, Tennessee, for the Appellant, David Earl Palmer.

Paul G. Summers, Attorney General & Reporter; Brian Clay Johnson, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steve Jackson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The petitioner, David Earl Palmer, was convicted by a jury of aggravated burglary and aggravated rape. The trial court sentenced the petitioner to five years for the aggravated burglary conviction and 25 years for the aggravated rape conviction with consecutive service for an effective sentence of 30 years. On direct appeal, this court affirmed the petitioner's convictions and sentences. The petitioner filed a petition for post-conviction relief, which the post-conviction court dismissed after a hearing. On appeal, the petitioner contends that the post-conviction court erred when it dismissed his petition because he received ineffective assistance of counsel and because he was illegally sentenced. After thoroughly reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2006/palmerd_110306.pdf

STATE OF TENNESSEE v. FRANK SMITH

Court: TCCA

Attorneys:

Charles R. Curbo, Memphis, Tennessee, for the appellant, Frank Smith.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tracye N. Jones, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

Following a jury trial, a Shelby County trial court convicted the defendant, Frank Smith, of two counts of rape (Class B felonies). The trial court sentenced the defendant to terms of incarceration of eight years on each offense, to be served concurrently. The defendant contends on appeal that the trial court erred by failing to sentence him to a form of alternative sentencing and specifically argues that the trial court failed to state on the record its reasons for denying an alternative sentence. The defendant failed to provide a record of his sentencing hearing and, therefore, we must presume the trial court was correct. The judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/smithf_110306.pdf

STATE OF TENNESSEE v. ROBERT SMITH

Court: TCCA

Attorneys:

Robert K. Guibao (on appeal) and Larry E. Copeland, Jr. (at trial), Memphis, Tennessee, for the appellant, Robert Smith.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

Robert Smith, the defendant, appeals from a Shelby County jury conviction for second degree murder (Class A felony). The defendant was sentenced to sixty years as a career violent offender. In his sole issue the defendant maintains that the evidence does not support his conviction in that it was insufficient to prove a knowing killing. After review, we affirm the judgment of conviction.

http://www.tba2.org/tba_files/TCCA/2006/smithr_110306.pdf

TRENT STARKS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lauren Pasley-Ward, Memphis, Tennessee, for the appellant, Trent Starks.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

Following a jury trial, the Petitioner, Trent Starks, was convicted of first degree murder. The State sought to impose the death penalty, but the jury sentenced the Petitioner to life in prison without the possibility of parole. The Petitioner's convictions were affirmed on direct appeal. In this appeal from the denial of post-conviction relief, the Petitioner argues that (1) his trial co-counsel was inadequate under the Sixth and Fourteenth Amendments, (2) his lead trial counsel failed to meet and communicate with him adequately in violation of the Sixth Amendment, (3) his lead trial counsel did not adequately advise him on whether to testify in violation of the Sixth Amendment, and (4) his lead trial counsel did not adequately investigate his alibi witness in violation of the Sixth Amendment. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/starkst_110306.pdf

STATE OF TENNESSEE v. BERNARD M. WALLACE

Court: TCCA

Attorneys:

James N. Adams, Jr. and Jake Adams, Selmer, Tennessee, for the appellant, Bernard M. Wallace.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; G. Robert �Gus� Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Bernard M. Wallace, was convicted of possession of cocaine over point five (0.5) grams with intent to sell, a Class B felony, and possession of marijuana, a Class A misdemeanor. Defendant was sentenced to serve twenty-five years in the Department of Correction for the Class B felony, and eleven months and twenty-nine days for the Class A misdemeanor, to be served concurrently. In this appeal, Defendant argues that (1) the trial court erred in denying his motion to suppress the evidence obtained as a result of the search of a motel room; (2) the evidence was insufficient to support his convictions; (3) the trial court improperly applied the enhancement factors in determining the length of Defendant's sentence. After a thorough review, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2006/wallaceb_110306.pdf

TODAY'S NEWS

Legal News
Election 2006
BPR Actions
TBA Member Services

Legal News

Memphis lawyer honored with fund focused on civil rights

Memphis labor and employment attorney Maurice Wexler is being honored by the creation of a new charitable fund that will help establish programs and lectures that focus on the civil rights movement. The Maurice Wexler Fund was established by the American Bar Association's Equal Employment Opportunity Committee. In addition to the specific focus on the civil rights movement, the fund will finance the creation of a series of lectures and programs discussing the impact of the law and lawyers on society.

State rep. says he'll push for election of AG

Rep. Brian Kelsey, R-Germantown, this week renewed his commitment to introduce legislation in 2007 that will require the attorney general of Tennessee to be elected. Currently, Tennessee is the only state whose Supreme Court appoints the attorney general.

Read about it in the Chattanoogan.com

Anderson papers going to UT

Former Tennessee Supreme Court Chief Justice Riley Anderson has donated his official papers to his alma mater, the University of Tennessee, WATE-TV reports. Anderson worked on and wrote more than 3,000 appellate court decisions during a 19-year judicial career that began with his appointment to the state Court of Appeals in 1987. Justice Anderson retired from the high court Aug. 31.

Editorial questions juvenile court needs

An editorial in the Memphis Commercial Appeal questions a recent call for the creation of a second juvenile court judgeship and urges Shelby County commissioners to keep politics out of the equation.

Read the editorial

Election 2006

Early voting highest ever for midterm election

Heavy interest in the U.S. Senate race helped generate the largest early voting turnout in any Tennessee midterm election, state elections coordinator Brook Thompson says. He said 867,426 votes were cast statewide.