Criminal justice issues on TBA action agenda

The TBA action agenda for the current legislative session includes several items affecting criminal justice in Tennessee. The TBA will play an active role during the upcoming legislative session by:

-- Opposing the Exclusionary Rule Reform Act that attempts to overturn the Tennessee Supreme Court's rulings that exclude inappropriately obtained evidence. (SB 518, HB 1700)
-- Supporting legislation to require recording of custodial interrogations. (SB 261, HB 596)

"The TBA has long supported efforts to increase the number of public defenders and district attorneys," TBA President Buck Lewis said. "The need is demonstrated by the weighted caseload studies showing a huge deficit in the number of lawyers needed to adequately staff large and growing criminal case loads. While we recognize that the tough budget picture means that an increase in the number of public defenders and district attorneys is unlikely, we will oppose legislation which would weaken funding for our system of justice."

Learn more about the TBA's legislative agenda

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
10 - TN Court of Appeals
00 - TN Court of Criminal Appeals
00 - 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.

TERRANCE N. CARTER v. RICKEY BELL

Court: TSC

Attorneys:

Peter D. Heil, Nashville, Tennessee, for the appellant, Terrance N. Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel E. Willis, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: KOCH

This appeal involves the application of the transfer provisions in Tenn. Code Ann. section 16-1-116 (Supp. 2008) to habeas corpus petitions challenging a criminal conviction. The petitioner, who was incarcerated in Davidson County, filed a petition for a writ of habeas corpus in the Criminal Court for Davidson County. The trial court promptly denied the petition on its merits. Rather than filing a petition seeking post-conviction relief, the petitioner appealed the dismissal of his habeas corpus petition to the Court of Criminal Appeals. For the first time on appeal, the petitioner, invoking Tenn. Code Ann. section 16-1-116, requested the Court of Criminal Appeals to transfer his habeas corpus petition to Maury County, where he had been convicted, for consideration as a post-conviction petition. The Court of Criminal Appeals declined to transfer the habeas corpus petition to Maury County and affirmed the denial of the petition. Carter v. Bell, No. M2006-01363-CCA-R3-HC, 2007 WL 2744998 (Tenn. Crim. App. Sept. 21, 2007). We affirm the judgment of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TSC/2009/cartert_022709.pdf

WADE dissenting
http://www.tba2.org/tba_files/TSC/2009/cartert_DISS_022709.pdf


STATE OF TENNESSEE FOR THE USE AND BENEFIT OF WILLIAMSON COUNTY ON RELATION OF WALTER J. DAVIS, TRUSTEE OF SAID COUNTY, ET AL. V. A&F CONSTRUCTION, ET AL. DELINQUENT TAXPAYERS FOR 2002 INCLUDING: LANDSCAPE CONTRACTORS, INC.; CATERPILLAR FINANCIAL SERVICES CORPORATION; CNH CAPITAL AMERICA, LLC (F/K/A NEW HOLLAND CREDIT COMPANY, LLC)

Court: TCA

Attorneys:

S. Madison Roberts, IV, Franklin, Tennessee, for the appellant, State of Tennessee, for the use and benefit of Williamson County on relation of Walter J. Davis, Trustee of said County, et al.

Sabin R. Thompson, Nashville, Tennessee, for the appellee, CNH Capital America, LLC f/k/a New Holland Credit Company, LLC.

Austin L. McMullen, Nashville, Tennessee, for the appellee, Caterpillar Financial Services Corporation.

Judge: KURTZ

This case involves a dispute between Williamson County and the secured creditors of a delinquent taxpayer over priority. The trial court granted summary judgment to the defendants in this suit for delinquent ad valorem property taxes after finding that the defendants' purchase money security interests in certain property had priority over the plaintiffs' statutory lien. We conclude that the "first lien" created by Tenn. Code Ann. section 67-5-2102 attaches to all interests in the property, with no exclusions for purchase money security interests. Accordingly, we reverse the judgment of the Chancery Court and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/afconstruction_022709.OPN.pdf


ESTATE OF BENJAMIN F. DARNELL, SR., ET AL. v. CHARLES FENN, ET AL.

Court: TCA

Attorneys:

Jerry K. Galyon, Sevierville, Tennessee, for the appellants, Charles Fenn, Dott Fenn, and Teddy Jones, Trustee.

David H. Parton, Gatlinburg, Tennessee, for the appellees, Mary J. Darnell, individually and as personal representative of the Estate of Benjamin F. Darnell, Sr., and parent and next friend of Jonathan J. Darnell and Melissa Darnell, both minors, Benjamin F. Darnell, Jr., Susan A. Reagan, Dolly M. Darnell, Lilly M. Stoltz, Thomas E. Darnell, Marie E. Darnell, and William C. Darnell.

Judge: SUSANO

Charles Fenn and Dott Fenn owned property in Sevier County. In August 1996, they entered into a contract to sell the property to Benjamin F. Darnell, Sr. The Fenns agreed to finance the sale over a ten-year period. According to the contract, Mr. Darnell was to make monthly payments of $999.11 for ten years, with one final balloon payment of $113,058.43. Mr. Darnell died in February 2004 and his wife, Mary Darnell, continued making the monthly payments. Unbeknownst to Ms. Darnell, on October 14, 2005, the Fenns sold the property to Teddy Jones. Four days later, Ms. Fenn, through her attorney, sent Ms. Darnell a letter terminating the contract based on various alleged breaches. Ms. Darnell filed suit seeking specific performance of the contract. Following a bench trial, the court found that the contract was enforceable; it ordered specific performance. The trial court rejected the claim of the defendant Teddy Jones that he was a bona fide purchaser without knowledge. The Fenns and Mr. Jones appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2009/darnellb_022709.pdf


CLAUDE L. GLASS v. STATE OF TENNESSEE EX REL. DEPARTMENT OF HUMAN SERVICES, ET AL.

Court: TCA

Attorneys:

Claude L. Glass, Knoxville, Tennessee, appellant, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Warren A. Jasper, Senior Counsel, Nashville, Tennessee, for the appellee, State of Tennessee Department of Human Services.

David H. Dupree, Knoxville, Tennessee, for the appellee, Lajuana Kincaid Thomas.

John E. Owings and Thomas Mullin, Knoxville, Tennessee, for the appellees, Knox County Juvenile Court and Pamela Netherland, Deputy Court Clerk.

Judge: SUSANO

Claude L. Glass ("the plaintiff") filed suit against the Tennessee Department of Human Services ("DHS") and Lajuana M. Kincaid Thomas. He also secured the issuance of a summons for, and service on, the Knox County Juvenile Court and a deputy clerk of that court, Pamela Netherland. The plaintiff seeks money damages. The gravamen of his complaint is a collateral attack on a final judgment of the Knox County Juvenile Court holding that he is the father of a daughter born to Ms. Thomas. Although the complaint is not entirely clear on this point, he apparently seeks the return of child support paid by him and other damages associated with the judicial finding that he is the father of the subject child. The trial court granted the various parties' motions to dismiss the complaint, but did so without prejudice as to the complaint against DHS, the Knox County Juvenile Court, and Pamela Netherland; as to Ms. Thomas, the complaint was dismissed "in its entirety." The plaintiff appeals. We affirm. This is a memorandum opinion pursuant to the provisions of Court of Appeals Rule 10.

http://www.tba2.org/tba_files/TCA/2009/glassc_022709.pdf


ESTATE OF GORDAN WAYNE HOWARD, ET AL. v. FIRST COMMUNITY BANK OF EAST TENNESSEE, ET AL.

Court: TCA

Attorneys:

William E. Phillips, Rogersville, Tennessee, for the appellant, Deborah Lynn Wells Howard, individually and as Executrix of the Estate of Gordan Wayne Howard.

L. Eric Ebbert, Knoxville, Tennessee, for the appellee, First Community Bank of East Tennessee.

Heather G. Anderson, Knoxville, Tennessee, for the appellee, Mountain Life Insurance Company.

Judge: SUSANO

In September 2003, Gordan Howard and his wife, Deborah Howard, applied for life insurance while in the process of obtaining a loan at First Community Bank of East Tennessee ("the Bank"). They applied for the insurance with Mountain Life Insurance Company ("Mountain Life"). A few months before applying for the insurance, Gordan Howard had been medically treated for chronic liver disease resulting from alcohol abuse. When Mr. Howard applied for insurance with Mountain Life, he stated that he had not been treated by a physician in the past twelve months, and that he had not been treated for liver disease in the past ten years. Less than six months later, Mr. Howard died from cirrhosis of the liver and alcoholic liver failure. When Mountain Life denied Mrs. Howard's claim for benefits, she filed this lawsuit in her individual capacity and as executrix of her husband's estate. The trial court granted the Bank's motion to dismiss and, thereafter, granted Mountain Life's motion for summary judgment. Mrs. Howard appeals, claiming the trial court erred when (1) it dismissed her claim against the Bank and (2) granted Mountain Life summary judgment. We affirm.

http://www.tba2.org/tba_files/TCA/2009/howardg_022709.pdf


INDIANA STATE DISTRICT COUNCIL OF LABORERS and HOD CARRIERS PENSION FUND v. GARY BRUKARDT, et al.
CORRECTION is as follows: on page one (1) of the opinion, attorneys for individual appellees have been added.


Court: TCA

Attorneys:

James G. Stranch, III, J. Gerard Stranch, IV, and Joe P. Leniski, Jr., Nashville, Tennessee; Darren J. Robbins, Randall J. Baron, A. Rick Atwood, Jr., and David T. Wissbroecker, San Diego, California; and William K. Cavanagh, Jr., Springfield, Illinois, for appellant.

Michael L. Dagley, Matthew M. Curley, Nashville, Tennessee; Lawrence O. Kamin, and Derek M. Schoemann, New York, New York; for appellee Renal Care Group, Inc.

Ames Davis, Nashville, Tennessee, Mary C. Gill, Atlanta, Georgia, and Mark T. Calloway, Charlotte, North Carolina, for individual appellees.

Judge: KURTZ

This is a shareholder class action which was dismissed by the trial court for failure to state a claim. The case alleges breach of fiduciary duty and self-dealing against members of the Board of Directors who procured and approved a merger. For the reasons stated herein, we hold that the complaint alleges sufficient facts to allow the case to go forward, and, therefore, dismissal was in error. The decision below is reversed and the case is remanded for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/indianastatedistcounciloflaborers_CORR_022709.pdf


LUCY C. KIRBY, ET AL. v. ROBERT P. WOOLEY

Court: TCA

Attorneys:

Bradley A. Farmer and Steve E. Fox, Knoxville, Tennessee, for the appellants, Lucy C. Kirby and Roy Kirby.

James S. MacDonald, Knoxville, Tennessee, for the appellees, Robert P. Wooley, deceased, Carolyn Wooley, administrator of the estate of Robert P. Wooley, and Dennis A. Bradley, administrator ad litem of the estate of Robert P. Wooley.

Terrill L. Adkins, Knoxville, Tennessee, for the appellee, Prudential Property & Casualty Insurance Company.

Judge: SUSANO

This lawsuit arises out of an automobile accident. At the time of the accident, Robert P. Wooley ("the defendant") gave an address in Lexington, Kentucky. Lucy C. Kirby and her husband ("the plaintiffs") filed suit and also caused a summons to be issued and served on their automobile casualty insurance company, Prudential Property & Casualty Insurance Company ("the uninsured motorist carrier"). Unbeknownst to the plaintiffs, the defendant had died of unrelated causes some six months after the motor vehicle accident, and before the lawsuit was filed. Service on the uninsured motorist carrier was effected, but service of process on the nonresident defendant through the Secretary of State was returned marked "Moved No Forwarding Address." The plaintiffs proceeded against the uninsured motorist carrier; they did not learn until some two years after filing suit that the defendant was dead. When they learned of his death, the plaintiffs had alias process issued and successfully served on the administratrix of the estate of the defendant and subsequently on the administrator ad litem of the estate. The trial court granted summary judgment to both the defendant and the uninsured motorist carrier, predicated on the court's holding that the plaintiffs failed to comply with Tenn. R. Civ. P. 3. We hold that the resolution of the controversy in this case is controlled by Tenn. Code Ann. section 56-7-1206(d) and (e) (2008) and not by Tenn. R. Civ. P. 3 and that, under the applicable statute, service of process was properly and effectively made upon both the uninsured motorist carrier and the defendant. The trial court incorrectly granted summary judgment to both. Accordingly, we vacate the judgment below and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/kirbyl_022709.pdf


LAWRENCE D. SELLICK ET AL. v. GENE S. MILLER ET AL.

Court: TCA

Attorneys:

G. Earl Patton and Susan M. Hyder, Crossville, Tennessee, for the appellants, Lawrence D. Sellick and Sheri A. Sellick.

C. Douglas Fields, Crossville, Tennessee, for the appellees, Gene S. Miller and Lois J. Miller.

Judge: SUSANO

Landowners Lawrence D. Sellick and Sheri A. Sellick ("the Sellicks"), who own the Archie Tate Farm Road ("the farm road"), brought this action for a declaration that their neighbors, Gene S. Miller and Lois J. Miller ("the Millers"), do not have a right to use the farm road for ingress and egress from property owned by the Millers and designated as Map 85, Parcel 5.07 ("Parcel 5.07"). The deed to Parcel 5.07 contains no language concerning an easement, and the property fronts on a paved county road. The Millers own a second piece of property designated as Map 85, Parcel 5.02 ("Parcel 5.02"). The deed to Parcel 5.02 contains an easement over the farm road. The Millers filed a motion for partial judgment on the pleadings, claiming they have the right to transfer the easement for Parcel 5.02 to Parcel 5.07 because the deed to Parcel 5.02 states, "This easement shall be freely transferable and shall pass with the title to the above property." They also claim that the recitation in the deed to Parcel 5.07 that "a new 50 foot ROW road" is a boundary, creates an easement in the farm road for the use and benefit of Parcel 5.07. The trial court refused to grant the Millers' motion on the "transferability" issue, holding that the language in the deed to Parcel 5.02 "is at best ambiguous and possibly such that further proof may be proper to ascertain its meaning." The court granted the Millers' motion, however, on its second basis, i.e., the recitation in the deed to Parcel 5.07 that "a new 50 foot ROW road" is a boundary created an easement in the farm road benefitting Parcel 5.07. We hold that the deed to Parcel 5.02 is not ambiguous and, furthermore, that the Millers do not have an easement in the farm road on any of the bases asserted. We vacate the judgment and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/sellickl_022709.pdf


LOU ELLA SHERILL, ET AL. v. BOB T. SOUDER, M.D., ET AL.

Court: TCA

Attorneys:

Edmund J. Schmidt, III, David Randolph Smith, Nashville, TN, Daniel J. McGlynn, Baton Rouge, LA, for Appellants, Lou Ella Sherill and Barbara A. Pigg.

Jeffrey L. Lay, Dyersburg, TN, for Appellees, Bob T. Souder, M.D., and Transouth Healthcare Center, P.C.

Judge: STAFFORD

This is a medical malpractice case. The trial court granted summary judgment in favor of Appellee doctor finding that, based upon the discovery rule, the one year statute of limitations for a medical malpractice claim had expired prior to the filing of the Appellants' complaint. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/sherilll_022709.pdf


DAVID A. STUART v. ANDERSON COUNTY ELECTION COMMISSION, ET AL.

Court: TCA

Attorneys:

David A Stuart, pro se Plaintiff.

William A. Reeves, Knoxville, Tennessee, for the Appellee, Anderson County Election Commission.

Robert W. Knolton, Oak Ridge, Tennessee, for the Appellee, Don A. Layton.

Judge: SWINEY

This is the second appeal in this election contest brought by David A. Stuart ("Plaintiff"). Plaintiff lost the August 2006 general election for Anderson County General Sessions Court Judge, Division I, by a margin of 119 votes. In the first appeal, we determined that Plaintiff's complaint sufficiently stated a claim upon which relief could be granted to survive a Tenn. R. Civ. P. 12.02(6) motion to dismiss. We remanded the case to the Trial Court to determine if any of the votes at issue were "illegal" and, if they were, whether there was a sufficient number of "illegal" votes to merit a new election. On remand, the Trial Court determined that none of the votes at issue were illegal and upheld the validity of the election. Plaintiff appeals, claiming that there were thousands of illegal votes because voters exceeded the statutory time limit to vote and because many voters were not asked to provide additional evidence of identification before voting. We affirm the judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2009/stuartd_022709.pdf


SCOTT SUTTON, ET AL. v. STOLT-NIELSEN TRANSPORTATION GROUP, LTD., ET AL.

Court: TCA

Attorneys:

Gordon Ball, Knoxville, TN, for Appellant, Scott Sutton, et al.

W. Kyle Carpenter, Tony R. Dalton, Knoxville, TN, J. Mark Gidley, Christopher M. Curran, Peter J. Carney, Washington, D.C. for Appellee, Stolt-Nielsen Transportation Group, Ltd and Stolt- Neilsen S.A., Jimmie C. Miller, Kingsport, TN, Richard J. Rappaport, Amy B. Manning, Angelo M. Russo, for Appellee Jo Tankers BV and Jo Tankers, Inc.; John A. Lucas, Knoxville, TN, Steven F. Cherry, Leon B. Greenfield, Gordon Pearson, Washington D.C., for Appellee Odfjell ASA, Odfjell Seachem AS and Odfjell USA Inc.; and Andrew L. Colocotronis, Knoxville, TN, Keith Dubanevich, Portland, OR for Tokyo Marine Co., Ltd.

Judge: STAFFORD

In 2004, Plaintiff filed a class action lawsuit alleging that Defendants had engaged in a price-fixing conspiracy in the State of Tennessee. Defendants filed a motion to dismiss citing two defenses: lack of personal jurisdiction and failure to state a claim. The trial court granted the motion for failure to state a claim but explicitly declined to rule on the jurisdictional question. Defendants have not waived their personal jurisdiction defense. On appeal, Defendants ask that we consider the jurisdictional question only if we first find for Plaintiff on the substantive issue. Because we find that jurisdiction is a prerequisite of an adjudication on the merits, we vacate the trial court's order of dismissal, and remand to the trial court for consideration of Defendants' personal jurisdiction defense.

http://www.tba2.org/tba_files/TCA/2009/suttons_022709.pdf


TODAY'S NEWS

Legal News
Legislative News
Practice Management
Upcoming
TennBarU CLE
TBA Member Services

Legal News
Court puts damages back in play in nursing home suit
A state court has granted a retrial for punitive damage and upheld most of a separate $4.1 million compensatory damage award in a negligence lawsuit against nursing home operator National Healthcare Corp. The decision comes two years after a Warren County trial judge threw out almost all of an original $29.8 million punitive damage award, reducing the amount to $163,000. Read the court opinion or
learn more in the Tennessean
Entman earns Distinguished Teaching Award
The University of Memphis Alumni Association has named Emeritus Professor of Law June F. Entman as one of the four recipients of the 2008-2009 Distinguished Teaching Award. The award annually recognizes excellence in teaching at the undergraduate and graduate levels.

Tennessee sheriff named best in the nation
Shelby County Sheriff Mark Luttrell has been named the best sheriff in America by the National Sheriffs' Association, a group that promotes criminal justice professionalism. "I'm humbled and appreciative," Luttrell, 61, told the Memphis Commercial Appeal, "but also very aware that it's the people who work with me that made it happen."

Legislative News
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
Practice Management
Law students concerned about job prospects
Layoffs at law firms across the country are making a tight job market even tighter. And for those still in the legal education pipeline, the ongoing deluge of bad news about layoffs, pay freezes, new associate start date delays and offer revocations is daunting.
Minnesota Lawyer magazine has more on the topic
Upcoming
Minority Law Student Reception set for Knoxville
The Knoxville Bar Association and the University of Tennessee College of Law will co-host a reception for minority law students on March 10 at the Howard H. Baker Jr. Center for Public Policy. Special guest for the event will be Peyton Hairston, who serves as the TVA's Senior Vice President for Corporate Responsibility and Diversity.
RSVP online or call the KBA office at 522-6522
TennBarU CLE
Still time to complete CLE requirements
If you still need continuing legal education hours to avoid a non-completion fee, the TBA's TennBarU has more than 100 hours of online programming available 24/7. You can choose from online text or online video formats, and if you haven't yet used the three prepaid credits that come with your TBA Complete Membership, you can take these courses for free.
See what courses are available now from TennBarU
TBA Member Services
Have you activated your FedEx shipping discounts?
TBA members are entitled to discounts on FedEx shipping. Did you know that TBA members are saving an average of $83 per quarter by utilizing their FedEx Association Advantage program discounts? Here's what some members have to say about their FedEx savings:

"Our firm took advantage of the Tennessee Bar Association FedEx discounts and saved over $200 on FedEx Express shipments last quarter alone. It's the best $200 we've ever saved," says member Bill Cameron of Cameron & Young in Cookeville. Start saving on your shipments today! For more information on how to enroll, call 1-800-923-7089 or
visit the TBA Web site

 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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