 |
| Friday, October 09, 2009 |
|
| |
| |
TBAConnect web site perfect for legal networking
The Tennessee Bar Association's new Social Networking platform for members called TBAConnect is growing rapidly. This service provides many of the same features of mainstream sites such as Linked In or Facebook, but access is limited to members of the Tennessee Bar Association and approved guests. Already members are using TBAConnect to create profiles, share photos, notify colleagues about upcoming events and blog on current issues.
Join the TBAConnect social networking site now
|
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.
02 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
06 - TN Court of Appeals
05 - 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.
|
|
|
|
|
|
STATE OF TENNESSEE v. MARON DONTA BROWN
Court: TSC
Attorneys:
M. Jeffrey Whitt and Richard L. Gaines, Knoxville, Tennessee, for the appellant, Maron Donta Brown.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Cameron L. Hyder and Rachel E. Willis, Assistant Attorneys General, for the appellee, State of Tennessee.
Judge: HOLDER
We granted this appeal to determine certified questions of law related to a search of a taped package found within a vehicle during a traffic stop. A majority of the Court of Criminal Appeals affirmed the trial court's denial of the defendant's motion to suppress. We conclude that: (1) the detention of the defendant did not exceed the permissible scope of the traffic stop; (2) the defendant validly consented to a search of the vehicle; (3) the scope of the defendant's consent extended to handling the package in a minimally invasive manner; and (4) the scope of consent had not been exceeded when probable cause justified opening the package. Accordingly, we affirm the judgment of the
Court of Criminal Appeals.
http://www.tba2.org/tba_files/TSC/2009/brownm_100909.pdf
IRIS KAY SNODGRASS V. ROBERT H. SNODGRASS
Court: TSC
Attorneys:
Robert H. Green and Catherine E. Shuck, Knoxville, Tennessee, for the appellant, Robert H. Snodgrass.
Craig L. Garrett, Maryville, Tennessee, for the appellee, Iris Kay Snodgrass.
Judge: CLARK
We granted permission to appeal in this divorce case to address whether a spouse's 401(k) account is a "retirement or other fringe benefit right[] relating to employment" under Tennessee Code Annotated section 36-4-121(b)(1)(B) such that any increase in the account's value that accrues
during the marriage is marital property. We hold as follows: (1) the parties' 401(k) accounts are "retirement or other fringe benefit rights relating to employment"; (2) the entire net amount by which the parties' 401(k) accounts increased in value during the period of the parties' marriage is marital
property; (3) the premarital balances in the parties' 401(k) accounts remain their separate property; (4) Husband did not transmute his entire 401(k) account to marital property when he made a single withdrawal for marital purposes; and (5) the trial court correctly divided the parties' defined benefit pensions by reference to the monthly income each spouse was receiving rather than by reference to the present cash value of each spouse's pension. The judgment of the Court of Appeals is affirmed in part and reversed in part.
http://www.tba2.org/tba_files/TSC/2009/snodgrassr_100909.pdf
WADE dissenting
http://www.tba2.org/tba_files/TSC/2009/snodgrassr_DIS_100909.pdf
BETHANY A. ADKINS v. ROBIN SWENSEN
Court: TCA
Attorneys:
Joseph M. Huffaker and Daniel W. Olivas, Nashville, Tennessee, for the appellant, Robin R. Swenson.
Henry S. Queener, Nashville, Tennessee, for the appellee, Bethany A. Adkins.
Judge: DINKINS
Driver of automobile which struck pedestrian appeals jury award of damages for future pain and suffering, asserting that there is no material evidence to support the award. Finding the verdict of the jury to be supported by the evidence we affirm the judgment.
http://www.tba2.org/tba_files/TCA/2009/adkinsb_100909.pdf
IN RE A. L.T.
Court: TCA
Attorneys:
Gary M. Williams, Hendersonville, Tennessee, for the appellant, K.M. and A.M..
R.L.T., Goodlettsville, Tennessee, Pro Se.
Judge: DINKINS
Mother sought termination of Father's parental rights and to allow Mother's husband to adopt the child. The trial court denied Mother's petition having found that Father had not willfully abandoned the child. Mother appeals and finding no error, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCA/2009/alt_100909.pdf
DAVID L. HAYES v. STATE OF TENNESSEE, ET AL.
Court: TCA
Attorneys:
David L. Hayes, Whiteville, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter, and Michael E. Moore, Solicitor General, Kellena Baker, Assistant Attorney General, Nashville, Tennessee, for appellee, State of Tennessee.
Judge: STAFFORD
This is an appeal from the dismissal of Appellant's complaint. Appellant is an inmate housed at the Hardeman County Correctional Facility. The Chancery Court of Davidson County, dismissed Appellant's complaint, finding improper venue and that the Appellant failed to comply with the statutory requirements of 42 U.S.C. section 1997e (1996) and Tenn. Code Ann. section 41-21-805 (1996). We
affirm the trial court's dismissal.
http://www.tba2.org/tba_files/TCA/2009/hayesd_100909.pdf
STATE OF TENNESSEE ex rel PATRICIA McANALLY v. BRIAN McANALLY
Court: TCA
Attorneys:
S. Craig Moore, Fayetteville, TN, for Appellant
Robert E. Cooper, Jr., Attorney General and Reporter; Warren A. Jasper, Senior Counsel, Nashville, TN, for Appellee
Judge: HIGHERS
Appellant was found guilty of criminal contempt for failing to pay his child support and arrearage payments, and was sentenced to ten days in jail, to be served over five weekends. After reporting to the jail to serve his fifth weekend, Appellant was told that he could not be booked because he had not paid his "jail fees." Subsequently, Appellant was, again, found guilty of criminal contempt, for
"fail[ing] to pay fees at the Moore County Jail." Because the record contains no lawful order requiring Appellant to pay "jail fees," we find that the trial court abused its discretion in finding Appellant guilty of criminal contempt for failing to pay such fees.
http://www.tba2.org/tba_files/TCA/2009/mcanallyp_100909.pdf
JO TAYLOR, ET AL. v. WENDELL HARRIS, ET AL. AND JO TAYLOR, ET AL. v. LOUIE R. LADD, ET AL.
Court: TCA
Attorneys:
William G. Womack, Nashville, Tennessee, for the appellants, Jo Taylor, Kay Womack, Robert Womack, Sheila Womack, and William G. Womack.
Jerre M. Hood, Winchester, Tennessee, for the appellee, James Norwood.
Jerry Bible, Jasper, Tennessee, for the appellees, Deborah K. Ladd, Louie R. Ladd and Wendell
Harris.
Judge: DINKINS
In this ejectment action, the plaintiffs appeal the trial court's finding that they did not prove title to the property at issue by adverse possession in accordance with Tenn. Code Ann. section 28-2-105 and that they failed to show the boundaries of the property they claimed. Plaintiffs also contend that they were entitled to the presumption of ownership set forth at Tenn. Code Ann. section 28-2-109. Finding no basis to reverse the judgment of the trial court, we affirm same.
http://www.tba2.org/tba_files/TCA/2009/taylorj_100909.pdf
DAVID LEE WRIGHT, As Parent and Next Friend for KAITLYN LEE WRIGHT, A Minor v. ANITA J. WRIGHT, ET AL AND KAITLYN LEE WRIGHT, A Minor, By Her Guardian Ad Litem, JAMES P. ROMER v. JOHNNY V. DUNAWAY
Court: TCA
Attorneys:
James P. Romer, Jamestown, TN, for Appellant
Johnny V. Dunaway, LaFollette, TN, for Appellee
Judge: HIGHERS
This is the second appeal in this case regarding the amount of attorney's fees awarded to counsel for a minor. The minor was injured in a car accident, and her father employed counsel to file suit on her behalf, naming him as her next friend. The trial court appointed a guardian ad litem for the minor. The parties settled the case, and the trial court approved an attorney's fee award for the minor's
attorney of one-third of the settlement proceeds based upon a contingency fee agreement signed by the minor's father. The guardian ad litem appealed, challenging the reasonableness of the fee. On appeal, this Court found no evidence in the record regarding the reasonableness of the award, as the parties did not present proof at the hearing, and the trial court made no findings regarding the relevant factors when approving the award. Therefore, the Court reversed the trial court and remanded for a hearing to enable the trial court to set a reasonable fee. On remand, the trial court heard testimony and considered exhibits submitted by the parties, then slightly reduced the attorney's fee. The guardian ad litem appeals, again challenging the reasonableness of the fee. We affirm,
finding no abuse of the trial court's discretion.
http://www.tba2.org/tba_files/TCA/2009/wrightd_100909.pdf
STATE OF TENNESSEE v. FREDDIE L. BROWN
Court: TCCA
Attorneys:
John D. Drake, Murfreesboro, Tennessee, for the appellant, Freddie L. Brown.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
William Whitesell, District Attorney General; and Trevor H. Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: WELLES
The Defendant, Freddie L. Brown, was charged with one count of especially aggravated kidnapping, a Class A felony. See Tenn. Code Ann. section 39-13-305(b)(1). Following a jury trial, he was convicted of the lesser included offense of aggravated kidnapping, a Class B felony. See Tenn. Code Ann. section 39-13-304(b)(1). The trial court sentenced him as a persistent offender to twenty-eight years in the
Department of Correction. In this direct appeal, the Defendant contends that: (1) the trial court erred in denying his motion to suppress the fruits of a search that recovered a BB gun used as evidence against him; (2) the State presented evidence insufficient to convict him; (3) the trial court erred in denying his motion in limine to conceal a warning label on the BB gun; and (4) the trial court erred in limiting the Defendant's cross-examination of the victim. After our review, we affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2009/brownf_100909.pdf
STATE OF TENNESSEE v. GAYLE THOMAS CRAWFORD
Court: TCCA
Attorneys:
Harold R. Gunn, Humboldt, Tennessee, for the appellant, Gayle Thomas Crawford.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Garry G. Brown, District Attorney General; and Edward L. Hardister and Harold E. (Hal) Dorsey, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: GLENN
The defendant, Gayle Thomas Crawford, was convicted by a Gibson County jury of possession of .5 grams or more of cocaine with the intent to sell or deliver, a Class B felony; possession of marijuana with the intent to sell or deliver, a Class E felony; and possession of drug paraphernalia,
a Class A misdemeanor, and was sentenced by the trial court as a Range II, multiple offender to an effective sentence of twenty years at thirty-five percent in the Department of Correction. In a timely appeal to this court, he raises essentially five issues: (1) whether the evidence was sufficient to sustain the convictions; (2) whether the rule of sequestration was violated; (3) whether the trial court erred by allowing a police officer to offer his opinion on the street value of the drugs; (4) whether the trial court erred by allowing an officer to testify that an unknown black male listed in the warrant was the defendant; and (5) whether the search warrant was invalid. Based on our review, we conclude that the evidence was sufficient to sustain the convictions for possession of cocaine and
marijuana, the rule of sequestration was not violated, the trial court did not err in allowing the officer's testimony with respect to the street value of drugs and the identity of the unknown black male, and that the defendant has waived the issues with respect to the validity of the search warrant. We further conclude, however, that there was insufficient evidence to sustain the conviction for
possession of drug paraphernalia. Accordingly, we affirm the defendant's convictions for possession of .5 grams or more of cocaine with the intent to sell or deliver and possession of marijuana with the intent to sell or deliver and reverse and dismiss the conviction for possession of drug paraphernalia.
http://www.tba2.org/tba_files/TCCA/2009/crawfordg_100909.pdf
STATE OF TENNESSEE v. DORIS NELL JONES
Court: TCCA
Attorneys:
Claudia S. Jack, District Public Defender; and Shipp R. Weems and Sharon D. Aizer (on appeal only), Assistant District Public Defenders, for the appellant, Doris Nell Jones.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and James G. White, II, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: THOMAS
On June 1, 2009, the Tennessee Supreme Court remanded this case for reconsideration in light of its opinion in State v. Byington, 284 S.W.3d 220 (Tenn. 2009). This court initially dismissed the defendant's appeal for lack of jurisdiction after both the defendant's motion for new trial and the trial court's order denying the motion were absent from the record. This court also denied the defendant's
subsequent petition to rehear and motion to supplement the record with the missing documents. On remand, the defendant, who was convicted of second degree murder and sentenced to eighteen years in the Department of Correction, again argues that the trial court erred by allowing certain out of court statements into evidence and that the State engaged in prosecutorial misconduct based on certain statements made during closing argument. After reviewing the record, we conclude that the trial court erred in admitting testimony by the defendant's mother regarding a telephone conversation between the defendant and the victim, but that such error was harmless. We also conclude that the defendant's contentions regarding the other challenged statements and the State's closing argument are waived for the defendant's failure to include them in the motion for new trial and that the issues do not merit plain error review. We therefore affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2009/jonesd_100909.pdf
MEMO
http://www.tba2.org/tba_files/TCCA/2009/jonesd_MEMO_100909.pdf
STATE OF TENNESSEE v. DECARLOS RODGERS
Court: TCCA
Attorneys:
Stephen R. Leffler, Memphis, Tennessee, for the appellant, Decarlos Rodgers.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; William L. Gibbons, District Attorney General; and Byron Winsett and Stacey McEndree, Assistant District Attorneys General, for the appellee, State of Tennessee.
Judge: GLENN
The defendant, Decarlos Rodgers, pled guilty to possession of cocaine in an amount greater than 0.5 grams with intent to sell and convicted felon in possession of a handgun. He was sentenced to twelve and two years, respectively, to be served concurrently as a Range II offender. As a condition
of his guilty plea, the defendant reserved a certified question of law pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure regarding whether the indictments against him should have been dismissed under a theory of promissory estoppel. After review, we conclude that the questions are properly certified and that the trial court ruled correctly in denying the motion to
dismiss.
http://www.tba2.org/tba_files/TCCA/2009/rodgersd_100909.pdf
STATE OF TENNESSEE v. DANA LOUISE SOLOMON
Court: TCCA
Attorneys:
Dana Louise Solomon, Nashville, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The Petitioner, Dana Louise Solomon, appeals the trial court's order dismissing her petition for post- conviction relief. The State has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Tennessee Court of Criminal Appeals Rule 20. The petition is barred by the statute of limitations and was properly dismissed. The State's motion is granted, and the judgment of the trial court is affirmed.
http://www.tba2.org/tba_files/TCCA/2009/solomond_100909.pdf
|
|
 |
|
| TODAY'S NEWS |
|
Legal News
TBA in the News
Disciplinary Actions
Resources
Clarification
TBA Member Services
|
| Legal News |
| Nominating Commission to meet next week |
The Judicial Nominating Commission will meet Oct. 16 to begin the process of filling the vacancy in the 30th Judicial District Circuit Court created by the retirement of Judge D'Army Bailey.
The meeting will begin at 8:30 a.m., Central time, at the Embassy Suites Hotel in Memphis. Anyone may attend the public hearing to express, orally or in writing, approval of or objections to any suggested nominee for the judicial vacancy.
Those who applied before the deadline are: Linda Nettles Harris,
assistant U.S. attorney,
United States Attorney's Office,
Western District of Tennessee;
Gina Carol Higgins, attorney with Higgins & Johnson; and attorney JoeDae L. Jenkins. All are from Memphis. |
Find out more
|
| Defendant's rights trump victims', judge says |
| Knox County Criminal Court Judge Mary Beth Leibowitz agreed earlier this week with murder suspect Troy Whiteside, who argued that crime victims had no legal standing to challenge decisions by the prosecution. Whiteside is suspected of killing Reginald Stacy Sudderth.
Relatives of Sudderth say their rights were violated when prosecutors and Whiteside attorney Gregory P. Isaacs struck a deal that allowed Whiteside to be arraigned a day early and his bond cut without a hearing.
But Leibowitz said that while prosecutors are required under the victims' rights law to notify victims of any changes in hearing dates, they are immune from penalty if they fail to do so. She also opined that a defendant's rights trump victims' rights. |
The News Sentinel has the story
|
| Bradley County forms committee on criminal justice |
| A committee of legal and mental health professionals held its inaugural meeting this week after being established by the Bradley County Commission to gain a better understanding of local crime and criminal justice problems. At its first meeting, the committee established three subcommittees: one to study a jailer's fee, one to study pretrial release programs and one to consider a workhouse. |
The Cleveland Daily Banner reports
|
| TBA in the News |
| 'Celebrate Pro Bono' lauded |
| The TBA's efforts for "Celebrate Pro Bono Month" are featured in the Memphis Daily News, showcasing the governor's proclamation of October as Pro Bono Month and the driving forces behind the concept.
"At first, we decided we'd do (the celebration) in a week, but then we just decided to do it the whole month because it works better for lawyers to be able to select a particular date, time, location and event that they felt like would have the greatest impact in their areas," TBA President Gail Vaughn Ashworth said. "So we thought we'd try that, and it's going great guns." |
Read the article
|
|
|
Find out how to become involved in Celebrate Pro Bono Month
|
| Disciplinary Actions |
| Memphis attorney suspended |
| On Sept. 30, the Tennessee Supreme Court temporarily suspended the law license of Memphis attorney
Stephanie Calvert, pursuant to Section 4.3 of Tennessee Supreme Court Rule 9. The
Board of Professional Responsibility petitioned the court to temporarily suspend Calvert's law license because
of her failure to respond to a complaint of ethical misconduct.
|
Read the BPR release
|
| Resources |
| LexisNexis Coffee Break Webinar: Access More Expert Witness Info |
| They're fast, effective, and best of all -- they're on the house! Choose from a menu of LexisNexis Coffee Break Webinars -- quick 20- or 60-minute sessions -- and discover powerful tools and proven techniques to help your business be more efficient and cost-effective.
Don't miss "Access More Expert Witness Information Faster than Ever" on Oct. 15, from 11 to 11:20 a.m. Central time. |
Register now
|
| Clarification |
|
| The Oct. 7 issue of TBA Today listed attorneys serving on the Tennessee CASA Association Board of Directors. The story inadvertently omitted Nashville lawyer Meagan Frazier Grosvenor with Smith Harris Carr, who is serving as president-elect of the association. |
|
| TBA Member Services |
| Discounts from Office Depot |
| Are you saving yet? Sign up for the TBA-Office Depot Program and begin saving. TBA Members receive significant discounts on office supplies from Office Depot. |
Find out more
|
| |
|
| |
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php
Questions, comments: Email us at TBAToday@tnbar.org
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.
© Copyright 2009 Tennessee Bar Association
|
|
|
