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Friday, January 25, 2008

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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 or to obtain a text version of each opinion, 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 the TBA's Membership Central.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
07 - TN Court of Criminal Appeals
10 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) 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. 2) 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.

J. O. HOUSE v. ESTATE OF J. K. EDMONDSON
With Dissenting Opinion

Court: TSC

Attorneys:

Tim Edwards, Memphis, Tennessee, and Kent J. Rubens, West Memphis, Arkansas, for the appellant, J. O. House.

Jef Feibelman, Memphis, Tennessee, for the appellee, Estate of J. K. Edmondson.

John McQuiston, II, Memphis, Tennessee, for the intervenor, Ram-Tenn, Inc.

James G. Stranch, III, Michael J. Wall, and Joe P. Leniski, Nashville, Tennessee, for the Amicus Curiae, The Plumbers and Pipefitters Local 572 Pension Fund.

Judge: CLARK

A minority shareholder in a closely held Tennessee corporation filed a derivative suit claiming that the company's majority shareholder, who also served as the corporation's president and chairman of its board of directors, misappropriated corporate funds. The minority shareholder also filed an individual claim against the majority shareholder alleging that he breached a pre-incorporation agreement in which the majority shareholder agreed to offer available stock to the corporation and other shareholders before purchasing the stock himself. A litigation committee appointed by the corporation to investigate the allegations against the majority shareholder found merit to the charges. The litigation committee recommended to the corporation that the company either settle the derivative claim or proceed with the litigation if the majority shareholder was unwilling to resolve the lawsuit in accordance with terms proposed by the committee. The trial court found that the litigation committee's findings and recommendations were in the corporation's best interests and that, once a settlement was reached, the derivative suit would be dismissed. The trial court also granted summary judgment to the majority shareholder on the individual breach of contract claim and denied the minority shareholder's request for attorney's fees. The Court of Appeals affirmed the trial court's acceptance of the litigation committee's report and the denial of attorney's fees to the minority shareholder, but reversed the trial court's grant of summary judgment to the majority shareholder on the breach of contract claim. We accepted review to determine: (1) whether a plaintiff in a shareholder's derivative suit brought on behalf of a for-profit corporation may recover attorney's fees; and (2) whether the trial court was correct in adopting the findings of the litigation committee's report. We hold that Tennessee law does not authorize an award of attorney's fees to a plaintiff in a shareholder's derivative suit brought on behalf of a for-profit corporation. We also hold that the trial court did not err in approving the sufficiently independent, thoroughly researched report of the litigation committee. Accordingly, the judgment of the Court of Appeals as to those issues is affirmed.

http://www.tba2.org/tba_files/TSC/2008/housej_012508.pdf

WADE dissenting
http://www.tba2.org/tba_files/TSC/2008/housej_DIS_012508.pdf

VERDIS CHAMBERS v. TENNESSEE BOARD OF PROBATION AND PAROLE, ET AL.

Court: TCA

Attorneys:

Verdis Chambers, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Kellena Baker, Assistant Attorney General, for the appellee, Tennessee Board of Probation and Parole.

Judge: COTTRELL

An inmate appeals the dismissal of his lawsuit under Tenn. Code Ann. section 41-21-807(b) for failure to make partial payment of the filing fee and argues the trial court abused its discretion in failing to specify the amount of the partial payment due. The trial court gave the inmate an opportunity to make the filing fee payment prior to dismissal and was not required to specify the amount due since the statute provided the formula to determine the amount of the partial payment due. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2008/chambersv_012508.pdf

STINSON, INC. v. JOHNATHAN ANDREW COOK

Court: TCA

Attorneys:

Stephen C. Knight and Nader Baydoun, Nashville, Tennessee, for the appellant, Stinson, Inc.

Curtis Maddin Lincoln, Hendersonville, Tennessee, for the appellee, Johnathan Andrew Cook.

Judge: CLEMENT

The two parties to this appeal entered into a joint venture based upon an oral agreement, the purpose of which was to construct a house with the intent to sell the house on the open market. Unfortunately, no one agreed to purchase the house, and thus, pursuant to the venturers' oral agreement, the defendant purchased the house "at cost." The plaintiff sued the defendant contending it was entitled to an additional $30,000 based upon an alleged subsequent agreement by the defendant to purchase the lot upon which the house was constructed for $50,000 even though the plaintiff's cost to purchase the lot was $20,000. The trial court found the parties' agreement provided that the defendant would purchase the house and lot at cost, that the cost of the lot was $20,000, and that the defendant had paid the plaintiff all it was entitled to receive. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2008/cookj_012508.pdf

KEVIN FOWLER D/B/A MED-STAT EMS v. WARREN COUNTY, TENNESSEE

Court: TCA

Attorneys:

Eric J. Burch, Manchester, Tennessee, for the appellant, Kevin Fowler d/b/a Med-Stat EMS.

Larry B. Stanley, Sr., Ricky L. Stacy, McMinnville, Tennessee, for the appellee, Warren County, Tennessee.

Judge: BENNETT

A private ambulance service provider challenged the fees established in the Warren County ambulance regulations created pursuant to state law. The trial court found the fees were constitutionally permissible. We affirm, finding that the fees were true fees, not taxes, and that the fees were reasonable.

http://www.tba2.org/tba_files/TCA/2008/fowlerk_012508.pdf

STATE OF TENNESSEE v. CHRISTOPHER LEVON GROSS

Court: TCA

Attorneys:

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the Appellant, Christopher Levon Gross.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer L. Smith, Associate Deputy Attorney General; Chuck Crawford, District Attorney General; Michael D. Raddles, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Bedford County jury found the Defendant, Christopher Levon Gross, guilty of felony possession of a firearm and theft of property valued at less than $500. The trial court sentenced him to two years of incarceration as a Range I offender, consecutive to eleven months, twenty-nine days of incarceration. On appeal, the Defendant raises two issues: (1) the State presented insufficient evidence to support the convictions; and (2) the trial court improperly sentenced him. Finding no error, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCA/2008/grossc_012508.pdf

ERIC MAGNESS ET AL. v. TERRELL W. COUSER ET AL.

Court: TCA

Attorneys:

Brian O. Bowham, Nashville, Tennessee, for the appellants, Edith G. Couser and Thomas Couser.

J. Todd Moore, Brentwood, Tennessee; T. Holland McKinnie, Franklin, Tennessee, for the appellees, Eric Magness and Kathleen S. Magness.

Judge: BENNETT

This case involves a property dispute between neighbors. Property owner and her son who resides on her property brought an action to quiet title and for ejectment against a neighboring property owner. The trial court imposed sanctions against the defendant under Rule 37 of the Tennessee Rules of Civil Procedure for failing to comply with its order compelling discovery responses. The court subsequently granted the plaintiffs' motion for partial summary judgment and, after a hearing on damages, issued a permanent injunction against the defendant and her son and a judgment for damages and costs against the defendants. The defendants have appealed. We affirm the trial court's judgment in part, reverse in part and remand.

http://www.tba2.org/tba_files/TCA/2008/magnesse_012508.pdf

DARRYL J. ROBERTS v. THE BAYLOR SCHOOL

Court: TCA

Attorneys:

John T. Rice, Chattanooga, Tennessee, for appellant.

K. Stephen Powers, Chattanooga, Tennessee, for appellee.

Judge: FRANKS

Plaintiff sued recipient of an inter vivas gift to recover the gift on the grounds defendant violated a fiduciary duty owed to plaintiff, and the failure of defendant to comply with conditions of the gift. The Trial Court ruled in favor of defendant. We affirm.

http://www.tba2.org/tba_files/TCA/2008/robertsd_012508.pdf

RICKY G. AARON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lawrence C. Maxwell and Kristen D. Bailey, Nashville, Tennessee, for the appellant, Ricky G. Aaron.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian K. Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Ricky G. Aaron, was convicted in 2002 of especially aggravated sexual exploitation of a minor and false imprisonment and received an effective sentence of eleven years. State v. Ricky Grover Aaron, No. M2002-02288-CCA-R3-CD, 2004 WL 1533825, at *1 (Tenn. Crim. App. July 8, 2004). This court granted his petition to rehear and subsequently modified his sentence to nine years. State v. Ricky Grover Aaron, No. M2002-02288-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 1123, at *3 (Tenn. Crim. App. Dec. 13, 2004), perm. to appeal denied (Tenn. May 2, 2005). In 2005 the petitioner filed a petition for post-conviction relief, alleging a host of constitutional violations. Following a hearing, the post-conviction court vacated the petitioner's conviction for false imprisonment and denied relief on the rest of his claims. On appeal, the petitioner argues that trial counsel was ineffective, that the evidence at his trial was insufficient, and that the post- conviction court erred by not accrediting the petitioner's testimony at the evidentiary hearing. After review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/aaronr_012508.pdf

STATE OF TENNESSEE v. JOHN D. ADKINS

Court: TCCA

Attorneys:

David A. Doyle, District Public Defender, and Adam R. Michael and Michael Gene Anderson, Assistant Public Defenders, for the appellant, John D. Adkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Lyle Anthony James, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, John D. Adkins, appeals from his Sumner County jury trial conviction of driving under the influence, a Class A misdemeanor, for which he received a sentence of eleven months and twenty-nine days, with forty-eight hours to be served in jail and the remainder on probation. In this appeal, the defendant claims that the successor judge who ruled on his motion for judgment of acquittal should have granted him a new trial because the judge did not preside at the trial and that the evidence is not sufficient to support his conviction. We conclude that there was no error and that the evidence was sufficient. We affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/adkinsj_012508.pdf

STATE OF TENNESSEE v. QUENTIN ARMSTRONG

Court: TCCA

Attorneys:

Jordon D. Mathies, Nashville, Tennessee, for the Appellant, Quentin Armstrong.

Robert E. Cooper, Jr., Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, District Attorney General, and Kristen Shea, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Quentin Armstrong, appeals his Davidson County conviction of aggravated assault. Specifically, on appeal, Appellant seeks resolution of the following issues: (1) whether the evidence was sufficient to support the conviction; (2) whether comments made during closing argument by the State's attorney violated Appellant's rights to due process of law; and (3) whether the trial court improperly denied Appellant's proffered jury instruction. We affirm the judgment of the trial court because the evidence was sufficient to support the conviction, because Appellant did not object to the State's closing argument and failed to establish plain error in that regard, and because the trial court properly instructed the jury as to lesser included offenses.

http://www.tba2.org/tba_files/TCCA/2008/armstrongq_012508.pdf

STATE OF TENNESSEE v. KEVIN E. GLASGOW

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal), and Anthony L. Clark, Paris, Tennessee (at trial), for the appellant, Kevin E. Glasgow.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; Dan Mitchum Alsobrooks, District Attorney General; and Carey J. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Kevin E. Glasgow, was convicted of driving under the influence (DUI), fourth offense, a class E felony, and received a sentence of one year, suspended after 150 days. He was acquitted of driving on a revoked license. On appeal, the defendant argues that the evidence is not sufficient to support his conviction and that the jury rendered an inconsistent verdict by finding him guilty of DUI and not guilty of driving on a revoked license. We conclude that no error exists, and we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/glasgowk_012508.pdf

JOE CLARK MITCHELL v. STATE OF TENNESSEE and WAYNE BRANDON

Court: TCCA

Attorneys:

Joe Clark Mitchell, Pro Se, Only, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General; and Ron Davis, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Joe Clark Mitchell, filed a petition for writ of habeas corpus in which he alleged various grounds for habeas corpus relief. The trial court summarily dismissed the petition without an evidentiary hearing and denied a post-judgment motion in which Petitioner sought an amendment of the judgment and/or the filing of "additional facts" by the trial court to support the denial of the petition. Petitioner appeals the dismissal of his petition for habeas corpus relief. Following a review of the record, we determine that Petitioner did not follow the mandatory statutory requirements for a habeas corpus petition because he failed to attach a copy of his prior petition for habeas corpus relief to his petition. Furthermore, we conclude that Petitioner has failed to attach documentation to his petition that supports his claims as required by Summers v. State, 212 S.W.3d 251 (Tenn. 2007). Accordingly, we affirm the trial court's order summarily dismissing the petition for writ of habeas corpus.

http://www.tba2.org/tba_files/TCCA/2008/mitchellj_012508.pdf

STATE OF TENNESSEE v. DEDRICK L. PATTON

Court: TCCA

Attorneys:

R. Timothy Hogan, Murfreesboro, Tennessee, for the appellant, Dedrick L. Patton.

Robert E. Cooper, Jr., Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

After waiving his right to a jury trial, Appellant, Dedrick L. Patton, was convicted in August of 2006 by a Rutherford County judge of possession of more than twenty-six grams of cocaine with the intent to sell or deliver. Appellant was sentenced to ten years as a result of the conviction. On appeal, Appellant challenges the sufficiency of the evidence and his sentence. Because the evidence is sufficient to support the conviction for possession of cocaine with intent to sell or deliver, we affirm the conviction. With respect to Appellant's sentence, we determine that because Appellant waived his right to a jury trial, he has waived any issues with respect to Blakely v. Washington, 542 U.S. 296 (2004). Moreover, Appellant's prior criminal history more than supported the enhancement of his sentence. As a result, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/pattond_012508.pdf

STATE OF TENNESSEE v. WILLIAM EDWARD WRIGHT

Court: TCCA

Attorneys:

Paula Ogle Blair (on appeal) and Bill Lane (at trial), Nashville, Tennessee, for the appellant, William Edward Wright.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Tammy Meade, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, William Edward Wright, was convicted by a Davidson County jury of one count of conspiracy to sell over twenty-six grams of cocaine, a Class B felony; two counts of facilitation of the sale of over twenty-six grams of cocaine, a Class C felony; and one count of possession with intent to deliver over twenty-six grams of cocaine, a Class B felony. He was sentenced by the trial court as a Range II offender to twenty years for the conspiracy conviction, ten years for each of the facilitation convictions, and twenty years for the possession with intent to deliver conviction. Finding the defendant to be a professional criminal, that he had an extensive history of criminal activity, and that the offenses were committed while he was on probation, the trial court ordered that the twenty-year sentences be served consecutively, for an effective sentence of forty years in the Department of Correction. On appeal, the defendant argues that the evidence was insufficient to support his conspiracy and facilitation convictions, the trial court erred in denying his motions to suppress his statement and the evidence seized during the search of his residence, and his sentence was excessive. Finding no error, we affirm the judgments of the trial court. However, we remand for the entry of a corrected judgment in Count 3 to reflect the correct conviction offense of facilitation of the sale of over twenty-six grams of cocaine.

http://www.tba2.org/tba_files/TCCA/2008/wrightw_012508.pdf

Compensation of Gibson County Utility District Commissioners

TN Attorney General Opinions

Date: 2008-01-25

Opinion Number: 08-01

http://www.tba2.org/tba_files/AG/2008/ag_08_01.pdf

City Commissioner Serving as City Police Officer

TN Attorney General Opinions

Date: 2008-01-25

Opinion Number: 08-02

http://www.tba2.org/tba_files/AG/2008/ag_08_02.pdf

Authority of Development District Board

TN Attorney General Opinions

Date: 2008-01-25

Opinion Number: 08-03

http://www.tba2.org/tba_files/AG/2008/ag_08_03.pdf

Effect of 2006 Tenn. Pub. Acts Ch. 951 on Foreclosures

TN Attorney General Opinions

Date: 2008-01-25

Opinion Number: 08-04

http://www.tba2.org/tba_files/AG/2008/ag_08_04.pdf

Revenue Agent's Use of Observations Made Outside the State to Establish Probable Cause for Subsequent Warrantless Search of an Automobile in Tennessee

TN Attorney General Opinions

Date: 2008-01-25

Opinion Number: 08-05

http://www.tba2.org/tba_files/AG/2008/ag_08_05.pdf

Statutory Reporting Obligations of Entities Leasing Property from Industrial Development Boards

TN Attorney General Opinions

Date: 2008-01-25

Opinion Number: 08-06

http://www.tba2.org/tba_files/AG/2008/ag_08_06.pdf

Payment of Just Compensation for Structures Situated on Land Taken by Eminent Domain

TN Attorney General Opinions

Date: 2008-01-25

Opinion Number: 08-07

http://www.tba2.org/tba_files/AG/2008/ag_08_07.pdf

Charter County Authority over Juvenile Court

TN Attorney General Opinions

Date: 2008-01-25

Opinion Number: 08-08

http://www.tba2.org/tba_files/AG/2008/ag_08_08.pdf

Sale of Beer on Golf Courses and at Outdoor Events

TN Attorney General Opinions

Date: 2008-01-25

Opinion Number: 08-09

http://www.tba2.org/tba_files/AG/2008/ag_08_09 .pdf

Appointing Substitute Senator

TN Attorney General Opinions

Date: 2008-01-25

Opinion Number: 08-10

http://www.tba2.org/tba_files/AG/2008/ag_08_10.pdf

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Legal News

Poplin to be first female law director in Knoxville

Longtime city of Knoxville staff attorney Debbie Poplin was named the new city law director today, becoming the first woman to serve in that post in the city's history.

Judge rules restaurant owners must shore up fund

A group of restaurant owners from across the state will have to pay $4.8 million to shore up a failed workers' compensation trust fund, Davidson County Chancellor Claudia Bonnyman ruled this week. The Tennessee Restaurant Association's workers' compensation fund went broke two years ago, and its liquidation has been in the hands of the state Department of Commerce and Insurance.