Sunshine study committee wraps up work

The special committee charged with studying the state's open records and meetings law approved a package of recommendations today aimed at addressing the concerns of both local officials and watchdog groups. However, critics were quick to label the package worse than current law. The most contentious items of the debate centered on how many city council officials or county commissioners would be able to meet without violating the law and whether penalties should be imposed on those who do. On the open records front, the committee voted to recommend that the Office of State Ombudsman and an Open Records Advisory Commission be formally established by state statute. Learn more in the News Sentinel:

http://www.knoxnews.com/news/2007/nov/28/1128webopen

TODAY'S OPINIONS
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HEATHERLY AWAD v. SELMA CURTIS

Court: TCA

Attorneys:

Nick T. Tooley, Clarksville, Tennessee, for the appellant, Selma Curtis.

Thomas R. Meeks, Clarksville, Tennessee, for the appellee, Heatherly Awad.

Judge: COTTRELL

This is a breach of contract case. The parties executed a contract for the sale of a beauty salon whereby, according to one of the provisions, Seller agreed to work for Buyer for a specific amount of time. Seller quit before the specified period expired. Both parties sued for breach of contract. The trial court awarded damages to Buyer in the amount of $18,000.00. Seller appeals, asserting that the provision at issue was too indefinite to be enforceable and challenging the damages awarded Buyer. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2007/awadh_112807.pdf


THOMAS D. DOSSETT v. CITY OF KINGSPORT, TENNESSEE

Court: TCA

Attorneys:

J. Wesley Edens, Bristol, Tennessee, and David H. Hornik, Nashville, Tennessee, for the Appellant, Thomas D. Dossett.

J. Michael Billingsley, Kingsport, Tennessee, and Joseph E. May, Mount Carmel, Tennessee, for the Appellee, City of Kingsport, Tennessee.

Judge: SWINEY

Thomas D. Dossett ("Plaintiff") filed suit after the Kingsport Board of Mayor and Aldermen (the "Board') showed an interest in selling city-owned real estate to private investors. Members of the Board met privately on two occasions with a potential buyer, after which the sale was considered at five public meetings and then approved by the Board. In his lawsuit, Plaintiff alleged that the ordinance by which the city disposes of surplus property is illegal; that the city violated the Open Meetings Act (the "Act"); and that a constructive trust should be imposed on the property for the use and benefit of the citizens of Kingsport. In a series of orders, the Trial Court dismissed the constructive trust issue, granted summary judgment to Defendant on the Open Meetings Act claim, and dismissed Plaintiff's challenge to the surplus property ordinance for Plaintiff's lack of standing. Plaintiff appeals the Trial Court's rulings on the standing issue and the Open Meetings Act claim. Plaintiff failed to request an in limine hearing or to make an offer of proof regarding his standing to challenge the ordinance, and we, therefore, find no reversible error as to this issue. We also hold that any alleged violations of the Open Meetings Act were cured by the Board's full and substantial consideration of the sale at five public meetings after the private meetings took place. We affirm.

http://www.tba2.org/tba_files/TCA/2007/dossettt_112807.pdf


WILLIAM EDWARD HARGROVE v. MERRIELLEN HARGROVE a/k/a MERRIELLEN WARSTLER

Court: TCA

Attorneys:

Merriellen Warstler, Stevenson, AL, Appellant, pro se

Terry J. Leonard, Camden, TN, for Appellee

Judge: HIGHERS

This is a post-divorce case involving disputes over obligations in the Marital Dissolution Agreement and modification of the visitation schedule contained in the permanent parenting plan. Husband filed for divorce from Wife, and on August 25, 1998, the chancery court entered a final decree of divorce that incorporated the Marital Dissolution Agreement. The permanent parenting plan was filed on February 12, 2004. Concerning Husband and Wife's minor son, born January 7, 1990, the residential schedule in the permanent parenting plan provided that Husband would be the primary residential parent and Wife would be responsible for the child every other weekend and during certain holidays. As to property division, the Marital Dissolution Agreement required Husband to transfer one-half of his pension plan to Wife. Concerning the marital home, Wife agreed to execute a quitclaim deed to Husband conveying her interest to Husband simultaneously with Husband paying her $15,000. After a contempt hearing, the court modified the parenting schedule; found that Wife was entitled to one-half of Husband's pension, but not one-half of Husband's annuity; and found that Husband had satisfied the $15,000 obligation. Wife appeals pro se, arguing that the modification of the residential schedule found in the parenting plan is void because the court did not follow Tenn. Code Ann. section 36-6-405(a). Wife also argues that the parties' intent was that she was to receive half the annuity along with half the pension. Finally, Wife contends that Husband did not meet his burden of proof to establish the defense of accord and satisfaction. We affirm.

http://www.tba2.org/tba_files/TCA/2007/hargrovew_112807.pdf


IN RE: ADOPTION OF M.P.J., dob 1/29/02

Court: TCA

Attorneys:

Richard Gossum, Trenton, TN, for Appellant

Joseph E. Tubbs, Humboldt, TN, for Appellee

Robert E. Cooper, Jr., Attorney General and Reporter, Amy T. McConnell, Assistant Attorney General, Nashville, TN, for Intervenor, State of Tennessee

Judge: HIGHERS

This is a case involving the termination of a father's parental rights. The Department of Children's Services instituted a dependent and neglect proceeding and the court granted a protective order removing the minor child from the mother's home. At the time, the father's whereabouts were unknown. The child, almost seven months old, was placed in the temporary custody of her great- aunt. The father subsequently began serving a 56 month sentence in federal prison. When the child was almost five years old, the great-aunt petitioned the court for the termination of both the mother and the father's parental rights and for the adoption of the child. The mother joined in the petition. After a termination hearing, the court announced that the father had abandoned the child, that his rights were terminated, and granted the great-aunt's petition for adoption. The court first entered an order of adoption, but had yet to enter the order terminating the father's parental rights. The court then issued an order of termination, but failed to include any findings of fact. Next, the court issued an amended order of termination with specific findings of fact, nunc pro tunc to the termination hearing date. Father appeals, arguing (1) that the trial court failed to make findings of fact; (2) that there is not clear and convincing proof of abandonment; (3) that the Department of Children's Services did not afford him a reasonable opportunity to reunite with the child; and (4) that substantial harm to the child must be proven before a court may constitutionally terminate a parent's rights. We affirm.

http://www.tba2.org/tba_files/TCA/2007/inreadoptionofMPJ_112807.pdf


LAWRENCE LEVINE ET AL. v. RON MARCH ET AL.

Court: TCA

Attorneys:

Dan R. Alexander, Nashville, Tennessee; and Fletcher W. Long, Springfield, Tennessee; for the appellants, Ron March, Kathy March Breitowich, and Lee Breitowich.

C.J. Gideon, Jr. and Gail Vaughn Ashworth, Nashville, Tennessee, for the appellees, Lawrence Levine and Carolyn Levine.

Judge: KOCH

This appeal involves a dispute over the personal property of a wife who was murdered by her husband. Following their appointment as conservators of her property, the wife's parents filed suit in the Circuit Court for Davidson County against their son-in-law and certain members of his family seeking to recover their daughter's personal property. Following a three-day trial, the jury returned a $222,449.10 verdict for the parents against the husband's brother, sister, and brother-in-law. On this appeal, the husband's family members take issue with the denial of their motion for directed verdict based on the statute of limitations, the failure to join the original conservator as a necessary party, the admissibility of certain evidence, and the jury instructions. We have determined that the trial court did not commit error during the trial and, therefore, affirm the judgment.

http://www.tba2.org/tba_files/TCA/2007/levinel_112807.pdf


MOORE FAMILY PROPERTIES, LLC, ET AL. v. PULL-A-PART OF TENNESSEE, LLC, ET AL.

Court: TCA

Attorneys:

David Wade, J. Lewis Wardlaw, Memphis, TN, for Appellants

Allan J. Wade, Lori Hackleman Patterson, Brandy S. Parrish, Memphis, TN, for Appellee, City of Memphis and Memphis City Council

Judge: HIGHERS

This appeal involves a review of actions taken at a meeting of the Memphis City Council. When the council members voted on a resolution, for unknown reasons, the electronic voting machine did not record an entry for one of the council members. This resulted in six votes being cast in favor of the measure and six votes against it. The omitted council member orally expressed his intention to vote in favor of the resolution before the Chairman announced the result of the vote. The Chairman then called for the electronic voting machine to be cleared so that all members could re-enter their votes. After the second vote, the Chairman declared that the resolution passed by a vote of seven to six. The appellants filed a petition for a writ of certiorari in the chancery court, alleging that the first vote was final and that the City Council acted illegally by taking a second vote. Upon review of the record of the proceedings, the trial court granted summary judgment to the City of Memphis and the Memphis City Council. We affirm.

http://www.tba2.org/tba_files/TCA/2007/moorefamily_112807.pdf


STATE OF TENNESSEE v. TERRY LYNN BYINGTON
Corrected Opinion


Court: TCCA

Attorneys:

Michael F. McClellan Carrico, Gate City, Virginia, for the appellant, Terry Lynn Byington.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and William B. Harper, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Terry Lynn Byington, was convicted by a Sullivan County jury of DUI, fourth offense, and received a Range II, multiple offender, sentence of three years in the Department of Correction. In his initial direct appeal, a panel of this court affirmed, addressing issues relating to the sufficiency of the evidence and sentencing. However, this Court held that two other issues were waived because Defendant's motion for new trial was untimely filed. See State v. Terry Lynn Byington, No. E2003- 02316-CCA-R3-CD, 2004 WL 1606993 (Tenn. Crim. App., at Knoxville, July 19, 2004) perm. to app. denied (Tenn., Dec. 28, 2004). Defendant filed a petition for post-conviction relief, and the trial court granted the petition insofar as ordering a delayed appeal after giving Defendant the opportunity to present a timely motion for new trial. T.C.A. sections 40-30-111(a) and 40-30-113(a); see Wallace v. State, 121 S.W.3d 652 (Tenn. 2003). Defendant has now again appealed from his conviction raising two issues: (1) the trial judge erred by declining to recuse herself from Defendant's trial, and (2) the trial court erred by permitting the State to impeach Defendant's testimony with his prior perjury conviction. Because there is no order in the record that the motion for new trial was denied, we are without jurisdiction to hear this appeal. Accordingly, the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2007/byingtont_corr_112807.pdf


EDWARD ALLEN HUDSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Edward Allen Hudson, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Edward Allen Hudson, appeals the trial court's summary dismissal of his petition for habeas corpus relief attacking his conviction for rape of a child. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court as to all issues not pertaining to Petitioner's sentence. The trial court recognized that Petitioner's sentence was improper and ordered that the Tennessee Department of Correction (TDOC) be notified; however, the court did not enter an amended judgment. We conclude, as to Petitioner's sentence, that habeas corpus relief from the illegal sentence should be granted. We remand this cause to the Sullivan County Criminal Court for entry of an amended judgment consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2007/hudsone_112807.pdf


PAUL WELCOME v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

D. David Sexton, II, Knoxville, Tennessee, for the appellant, Paul Welcome.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Paul Welcome, appeals the denial of his petitions for post-conviction relief and writ of error coram nobis. He asserts he was denied the effective assistance of counsel at trial and that he is entitled to relief based upon newly discovered evidence. Discerning no error, we affirm the judgments of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2007/welcomep_112807.pdf


Notaries Public -- Whether Notaries Public are State or County Officials

TN Attorney General Opinions

Date: 2007-11-28

Opinion Number: 07-157

http://www.tba2.org/tba_files/AG/2007/ag_07_157.pdf

TODAY'S NEWS

Legal News
Politics
Supreme Court Report
Upcoming
Disciplinary Actions
TBA Member Services

Legal News
Judge lifts desegregation order in Tipton County
U.S. Dist. Judge Jon P. McCalla on Tuesday signed an order dropping a four-decade old desegregation order against Tipton County Schools. "The Court concludes that the Tipton County Board of Education has met the legal standards for a declaration of unitary status," McCalla's order says.
Read about it in the Commercial Appeal
Benefits for associates proliferate
In a battle to attract the best associates, an increasing number of large law firms are offering lifestyle perks, including transportation and meals for those who work late, pet insurance and concierge services.
Read about the trend in the New York Times
DA opposes sex-club ordinance
Shelby County District Attorney General Bill Gibbons is urging the Memphis City Council to reject a proposed ordinance to regulate adult-oriented businesses because the measure lacks meaningful penalties. Instead, he encouraged commissioners to allow a new county ordinance to take effect Jan. 1. A public hearing on the matter will take place tomorrow at 1 p.m. at Memphis City Hall.
The Commercial Appeal looks at the issues involved
Greene County bar elects officers
The Greene County Bar Association has elected Todd Shelton with Rogers, Laughlin, Nunnally, Hood & Crum as its new president, and Kim Miller with the Ricker Law Office as secretary. Both are from Greeneville.

Bredesen names Pinkston to senior staff
Governor Phil Bredesen Tuesday announced that Will Pinkston will rejoin his staff in January as a senior advisor. In his new role, Pinkston will focus on development and management of key policy initiatives. After working for the governor during his first term in office and serving as communications director for the 2006 reelection campaign, Pinkston moved to the Nashville public relations firm of McNeely Pigott & Fox.
Read more about Pinkston's background on Chattanoogan.com
Whatley named Spring Hill's city judge
Columbia attorney Jason Whatley has been chosen as city court judge by the Spring Hill Board of Mayor and Aldermen. He had served as backup judge since August. He replaces Huntly Gordon, who cited concerns about having to represent developers before the board and not having enough time to spend with family as the reasons for his departure.
The Tennessean has more
Judge rules for Bradley mayor
Bradley County Criminal Court Judge John Hagler has ruled in favor of county Mayor Gary Davis in a funding dispute with Sheriff Tim Gobble. Hagler said Gobble failed to prove his office received inadequate funding. Gobble had brought the case in an effort to seek more employees and equipment, as well as higher salaries.
Chattanoogan.com reports
Politics
McWherter decides against Senate bid
Mike McWherter announced yesterday that he would not run for the U.S. Senate in 2008. The son of former Governor Ned Ray McWherter, the younger McWherter said the timing was not right for his family.
Read his comments on Chattanoogan.com
Alexander eyes leadership job
U.S. Senator Lamar Alexander, R-Tenn., said he would make a bid for the No. 3 post among Senate Republicans following Senator and Minority Whip Trent Lott's decision to resign. Alexander, who lost the whip race to Lott by one vote last year, said he plans to support Senator Jon Kyl, R-Ariz., for whip and then seek to fill Kyl's position as conference chairman, reports the Memphis Daily News.

Supreme Court Report
Court turns down welfare search case
The U.S. Supreme Court has refused to accept a case challenging a requirement that welfare recipients allow searches of their homes. The program, adopted in 1997 by the district attorney's office in San Diego County, required unannounced home visits by the district attorney's fraud investigators and denied welfare benefits to those who refused searches. The 9th U.S. Circuit Court of Appeals had upheld the program saying the search did not pose constitutional issues because the recipients could refuse them. The high court's decision lets that ruling stand.
Read more on SCOTUS Blog
Upcoming
Christmas at the Courthouse kicks off next week
Chattanooga's 23rd Annual Christmas at the Courthouse will be Dec. 3-7 at noon at the City-County Courts Building, 600 Market Street. Each weekday will feature a school choir and will honor certain county officials and judges. For additional information call Maureen Davis at (423) 842-6748.
Chattanoogan.com has the schedule
Disciplinary Actions
Powell attorney reinstated
Randy Keith Miller has been reinstated to the practice of law in Tennessee after complying with requirements for continuing legal education.
View all attorneys suspended and reinstated for 2006 CLE violations
TBA Member Services
Program offers savings on auto insurance
See how being a member of the TBA could help you save 8 percent on car insurance. GEICO offers 24-hour sales, service and claims. Call GEICO at 1-800-368-2734
or get an online rate quote

 
 
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