Dig this: TBA volunteers plant 100+ trees

Tennessee Bar Association volunteers planted more than 100 trees in Chattanooga today in celebration of Earth Day and Arbor Day next week. The trees -- donated by the Tennessee Valley Authority -- were planted at the Clifton Hills Elementary School. Additional plantings are planned for Knoxville, Memphis and Nashville. Taking part in the Chattanooga planting project were: TBA President Gail Vaughn Ashworth, TBA President-elect Sam Elliott, TBA Environmental Law Section Chair David Higney, Chattanooga attorneys John Grant, Alicia Oliver, Yousef Hamaden, Jason Isaacson, Katie Giannasi, Chris Varner and Bobby Dan and TBA staffers Angie Bianchi and Britt Simonson.

See photos from the event on TBAConnect

TODAY'S OPINIONS
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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.

IN RE ESTATE OF MARY REEVES DAVIS

Court: TSC

Attorneys:

Ames Davis and Paul C. Hayes, Nashville, Tennessee, for the appellant, Ames Davis, Administrator of the Estate of Mary Reeves Davis.

Jeffrey Alan Greene, Nashville, Tennessee, for the appellee, W. Terry Davis.

Judge: WADE

In this interlocutory appeal, the administrator of the estate of the decedent argues that a petition for probate, filed more than two years after the probate of an earlier will, is time- barred by Tennessee Code Annotated section 32-4-108, and, therefore, the trial court erroneously denied his motion for summary judgment. Because the statute is one of limitations rather than repose, because exceptions within the statute do not preclude tolling based upon fraudulent concealment, and because there are genuine issues of fact as to whether the subsequent will was fraudulently concealed, the trial court's denial of summary judgment is affirmed.

http://www.tba2.org/tba_files/TSC/2010/davism_042310.pdf


SAMUEL D. LEGGETT ET AL. v. DUKE ENERGY CORPORATION ET AL.

Court: TSC

Attorneys:

Brian S. Faughnan and Cannon Fairfax Allen, Memphis, Tennessee, for the appellants, Williams Companies, Inc., Williams Energy Marketing & Trading Company, Inc., and Williams Merchant Services.

Leo Bearman, Jr., Michael Cotter Patton, and W. Michael Richards, Memphis, Tennessee; and Terry J. Houlihan, San Francisco, California, for the appellants, Reliant Energy Services, Inc. and Reliant Energy, Inc.

Jef Feibelman, Memphis, Tennessee, for the appellants, ONEOK, Inc. and ONEOK Energy Marketing and Trading Company, LP.

Douglas Ray Tribble, San Diego, California; John S. Golwen, Memphis, Tennessee; Michael J. Kass, San Francisco, California; and Joshua Ray Denton and Robert Dale Grimes, Nashville, Tennessee, for the appellant, Dynegy Marketing and Trade.

Glen G. Reid, Jr. and Robert Edgar Craddock, Jr., Memphis, Tennessee, for the appellants, CMS Energy Corporation, CMS Field Services, and CMS Marketing Services & Trading Company.

Brent Benoit, J. Michael Dorman, James R. Leahy, and Stacy Williams, Houston, Texas; Paul Howard Morris and Shea Sisk Wellford, Memphis, Tennessee, for the appellants, El Paso Corporation and El Paso Merchant Energy, LP.

Joel B. Kleinman, Washington, DC; Lela M. Hollabaugh and Paul G. Summers, Nashville, Tennessee, for the appellants, Duke Energy Corporation and Duke Energy Trading and Marketing Company, LLC. Joel B. Kleinman, Washington, DC, for the appellants, American Electric Power Co. and AEP Energy Services, Inc.

Alan G. Crone, Memphis, Tennessee; John S. Wilder, Somerville, Tennessee; and Thomas H. Brill, Mission Hills, Kansas, for the appellees, Samuel D. Leggett, Bing's Stop & Shop, Wolfe River Café, and Frank H. Colvett, Jr.

Judge: WADE

The plaintiffs, commercial and residential consumers of natural gas, purchased natural gas from utilities, which had acquired the product wholesale from the defendants. In this class action antitrust suit, the plaintiffs allege that the defendants engaged in various anti- competitive practices, including making false statements about natural gas transactions and engaging in "wash trades" and "churning." After the defendants filed a motion to dismiss, contending that the claims were barred by both field pre-emption and the filed rate doctrine, the chancellor dismissed the claims. The plaintiff appealed and the Court of Appeals reversed, holding that the claims were not subject to dismissal. Because the Natural Gas Act and subsequent federal legislation pre-empt state actions in this particular field of regulation, the judgment of the Court of Appeals is reversed and all claims are dismissed.

http://www.tba2.org/tba_files/TSC/2010/duke_energy_042310.pdf


JOHN SKIPPER and BRENDA SKIPPER v. WELLS FARGO BANK, N.A.
CORRECTED OPINION: On page 1, Walter L. Evans is named as Chancellor instead of Arnold Goldin


Court: TCA

Attorneys:

Philip M. Kleinsmith, Colorado Springs, Colorado, for the appellant, Wells Fargo Bank, N.A.

G. Patrick Arnoult, Memphis, Tennessee, for the appellees, John Skipper and Brenda Skipper

Judge: HIGHERS

Wells Fargo purchased foreclosed property, which it then sold to the Skippers. The Skippers contracted to sell the property, but before the sale was completed, two IRS tax liens against the previous owners were discovered. The Skippers sued Wells Fargo, and the trial court awarded them their lost profits from the anticipated sale. Wells Fargo appeals, and we affirm in part and reverse in part and remand.

http://www.tba2.org/tba_files/TCA/2010/skipperj_corr_042310.pdf


BARBARA CARR, ET AL. v. MOOSA VALINEZHAD, ET AL.

Court: TCA

Attorneys:

Moosa Valinezhad, Pro Se.

James W. Price, Jr., Nashville, Tennessee, for the appellee, Barbara Carr. Elizabeth S. Tipping and John D. Ross, Nashville, Tennessee, for the appellee, Joanne Carr Shypula, Individually and as Guardian of Barbara Carr.

Judge: FARMER

This appeal arises out of an elderly woman's attempt to recover assets from her daughter and former son-in-law, who allegedly exercised undue influence over her financial decision- making for a period of years following the death of her husband. In a motion for partial summary judgment, the plaintiffs sought to invalidate two transfers of substantial assets to the defendants. The trial court granted the plaintiffs' motion and certified the judgment as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Because the trial court's order does not dispose of a claim between the parties, we vacate the entry of final judgment and remand.

http://www.tba2.org/tba_files/TCA/2010/valinezhadv_042310.pdf


STATE OF TENNESSEE v. TIMOTHY MARK AGEE, II

Court: TCCA

Attorneys:

Michael A. Colavecchio, Nashville, Tennessee, for the appellant(s), Timothy Mark Agee, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Deborah M. Housel, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Timothy Mark Agee, II, appeals his conviction upon a guilty plea in the Davidson County Criminal Court for second degree murder, a Class A felony. The trial court sentenced the Defendant to serve twenty-three years. The Defendant appeals, contending that the sentence imposed is too lengthy. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/ageet_042310.pdf


STATE OF TENNESSEE v. ANTHONY DOUGLAS DANSBY

Court: TCCA

Attorneys:

Lawren B. Lassiter, Gallatin, Tennessee, for the Appellant, Anthony Douglas Dansby.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea Dulany Faughn, Assistant Attorney General; L. Ray Whitley, District Attorney for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Anthony Douglas Dansby, pled guilty to driving under the influence ("DUI"), violation of the implied consent law, violation of the seatbelt law, violation of the open container law, and possession of a Schedule VI controlled substance. In accordance with Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law the issue of whether the stop of his vehicle, which led to his indictment and guilty plea, was constitutional. After a thorough review of the record and applicable authorities, we conclude that the stop of the Defendant's vehicle was constitutional; therefore, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2010/dansbya_042310.pdf


STATE OF TENNESSEE v. HYMAN E. MILLER

Court: TCCA

Attorneys:

Brion J. Payne, Murfreesboro, Tennessee, for the appellant, Hyman E. Miller.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General, and Trevor Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Hyman E. Miller, pled guilty in Rutherford County to vehicular assault and second offense driving under the influence ("DUI"). Appellant was sentenced to eight years for the vehicular assault conviction. That sentence was suspended and the trial court ordered Appellant placed on supervised probation for a period of ten years. Appellant was sentenced to eleven months and twenty-nine days for the second offense DUI conviction. He received pre-trial jail credit of seven months and twenty-two days. The trial court ordered Appellant to serve this sentence on supervised probation for a period of four months and twenty-two days. Subsequently, a probation violation warrant was filed against Appellant. The trial court revoked probation, ordering Appellant to serve sixty days in jail before being reinstated to probation. A second violation of probation warrant was filed against Appellant, alleging that Appellant had violated his probation in various ways. After a hearing, the trial court revoked Appellant's probation and ordered him to serve his sentence in incarceration. Appellant appeals the trial court's revocation of probation. Because we determine that the trial court did not abuse its discretion in revoking Appellant's probation, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2010/millerh_042310.pdf


STATE OF TENNESSEE v. KENNETH MILLER AND RAY JUNIOR TURNER

Court: TCCA

Attorneys:

David A. Collins, Nashville, Tennessee, for the appellant, Kenneth Miller, and Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Ray Junior Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; John Zimmerman and Andrea Green, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendants, Kenneth Miller and Ray Junior Turner, were convicted by a Davidson County jury of conspiracy to deliver 300 grams or more of cocaine and delivery of 300 grams or more of cocaine. Additionally, the Defendant Miller was found guilty of possession with intent to deliver 300 grams or more of cocaine. All convictions are Class A felonies. See Tenn. Code Ann. Section 39-17-417(j)(5). Following a sentencing hearing, the trial court sentenced the Defendant Miller to an effective sentence of one hundred and twenty years as a Range II, multiple offender; the trial court ordered all three of his forty-year sentences to be served consecutively to one another. As for the Defendant Turner, the trial court imposed an effective sentence of sixty years as a career offender, running both of his sixty-year sentences concurrently with one another. On appeal, the Defendant Miller presents the following issues for our review: (1) whether the trial court erred in not suppressing the evidence gathered via wiretaps; (2) whether it was error to allow a State's witness to "field- test" a substance found on an exhibit; (3) whether the evidence was sufficient to support verdicts for conspiracy and delivery of 300 grams or more of cocaine; and (4) whether the trial court committed sentencing errors. The Defendant Turner, in addition to challenging the sufficiency of the evidence in support of his convictions, argues that: (1) the trial court erred by admitting into evidence certain "drug ledgers" found in his apartment; and (2) the telephone calls intercepted during the wiretap investigation, purported to contain the Defendant's voice, were, in fact, inadmissible hearsay. After a review of the record, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2010/miller_turner_042310.pdf


DELWIN O'NEAL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, attorney for appellant, Delwin O'Neal.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Delwin O'Neal, appeals as of right from the Marshall County Circuit Court's denial of his petition for post-conviction relief attacking his guilty plea convictions for multiple drug offenses for which he received an effective sentence of twenty-three years as a Range II, multiple offender. At the post-conviction evidentiary hearing, the Petitioner requested a reduction of sentence, and the trial court ruled that it was without jurisdiction to modify the sentence. In this appeal as of right, the Petitioner contends that the trial court erred in ruling that it could not modify the sentence. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/oneald_042310.pdf


STATE OF TENNESSEE v. HECTOR DIAZ PENA IN RE: AARON BONDING COMPANY, T BONDING COMPANY & AROUND THE CLOCK BONDING COMPANY, LLC

Court: TCCA

Attorneys:

James W. Tiller (on appeal and at hearing) and Peter J. Strianse (at hearing), Nashville, Tennessee, for the appellant, Hector Diaz Pena.

James W. Tiller (on appeal and at hearing), and Jeremy Gourley and Herbert R. Rich (at hearing), Nashville, Tennessee, for the appellant sureties, Aaron Bonding company, T Bonding Company, and Around The Clock Bonding Company, LLC.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and John Zimmerman and Pamela Sue Anderson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The appellants, Aaron Bonding Company, T Bonding Company, and Around the Clock Bonding Company, LLC, appeal the order of a final forfeiture against them, arguing that the trial court abused its discretion in issuing the order. Following our review of the record, we dismiss this appeal as being premature and remand the case to the trial court to issue an order of final disposition pursuant to Tennessee Rule of Civil Procedure 58, from which the appellants may then appeal.

http://www.tba2.org/tba_files/TCCA/2010/penah_042310.pdf


STATE OF TENNESSEE v. JASON ALLEN RUIZ

Court: TCCA

Attorneys:

Donna Orr Hargrove, District Public Defender; and Michael J. Collins, Assistant Public Defender, attorneys for appellant, Jason Allen Ruiz.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Charles Frank Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Jason Allen Ruiz, pled guilty to one count of sale of cocaine and one count of delivery of cocaine, both Class B felonies. The trial court merged the convictions and imposed an effective sentence of eight years as a Range I, standard offender to be served on probation following an 11 month and 29 day period of confinement in the local jail on work release. Following the filing of a revocation warrant and an evidentiary hearing, the trial court found that the Defendant had violated the conditions of his probation and ordered him to serve his sentence in incarceration. In this appeal as of right, the Defendant contends that the trial court abused its discretion by ordering him to serve his sentence in confinement. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/ruizj_042310.pdf


STATE OF TENNESSEE v. JEFFERY BOYD TRUSTY

Court: TCCA

Attorneys:

David L. Raybin, Nashville, Tennessee (on appeal); B.F. (Jack) Lowery, J.D. Lowery, and Jeff Cherry, Lebanon, Tennessee (at trial), for the appellant, Jeffery Boyd Trusty.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth T. Ryan, Associate Deputy Attorney General; Tom P. Thompson, Jr., District Attorney General; and Katrin N. Miller, Sharon Reddick, and David Durham, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Jeffery Boyd Trusty, was convicted by a Smith County jury of first degree premeditated murder, first degree felony murder, especially aggravated kidnapping, and theft of property over $1000. The trial court merged the two first degree murder convictions and sentenced the defendant to concurrent terms of life imprisonment for the first degree murder conviction, twenty-five years as a violent offender for the especially aggravated kidnapping conviction, and four years as a Range I offender for the theft of property over $1000 conviction, for an effective sentence of life in the Department of Correction. The defendant raises essentially eight issues on appeal, arguing that the evidence was insufficient to sustain the first degree murder and especially aggravated kidnapping convictions, that the State failed to prove venue in Smith County beyond a reasonable doubt and the trial court improperly instructed the jury on the State's burden to prove venue, and that the trial court erred by denying the defendant's requests for special jury instructions, allowing hearsay testimony that the victim feared the defendant, allowing irrelevant and prejudicial evidence about the search procedures employed to locate the victim's body and the evidence uncovered during those searches, allowing a police officer to offer legal opinions and conclusions, allowing irrelevant and prejudicial evidence about the defendant's possession and movement of firearms, and not allowing each of the defendant's counsel to deliver a separate closing argument. Having reviewed the record and found no reversible error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/trustyj_042310.pdf


TODAY'S NEWS

Legal News
Supreme Court Report
TBA Member Services

Legal News
President will appeal 'National Day of Prayer' ruling
The Obama administration said Thursday it will appeal a court decision that found the National Day of Prayer unconstitutional. The Justice Department said it will challenge the decision in the U.S. 7th Circuit Court of Appeals in Chicago. U.S. District Judge Barbara Crabb in Madison, Wis., ruled last week that the National Day of Prayer established by Congress 58 years ago amounts to a call for religious action.
The Tennessean carried this AP story
Horton Jr. recalls two great Memphians
Memphis lawyer Odell Horton Jr. writes about two men -- Odell Horton Sr. and Benjamin Hooks -- who were "of courage, whose leaderships were based on their deep moral convictions of doing what was right and on their great respect for our nation's rule of law."
Read the guest column in the Commercial Appeal
Palin testifies, Utah student doesn't have to
In Knoxville today, Sarah Palin testified in the case against former University of Tennessee student David Kernell, who faces up to 50 years in federal prison if convicted of identity theft, mail fraud and two other felony charges. Another former student who defense attorney Wade Davies wanted to put on the stand will not have to appear. Justin Hill is a Utah college student who was one of 10 other people across the nation who used a password allegedly created and posted on a web site to tap into Palin's account, Davies said.
The News Sentinel reports
Birch to step down from parks board
Retired Tennessee Supreme Court Justice Adolpho A. Birch Jr. is leaving the board of the Metro Parks and Recreation Department about a year before his current term is scheduled to end, according to the board's May 4 agenda.
The Tennessean's political blog, In Session, reported the news
On-call magistrates in question in Hamilton Co.
The Hamilton County Commission is considering the question of whether there should be on-call magistrates to handle bond hearings, but cost and size of the program is a concern.
The Times Free-Press reports
Judge Colton announces retirement
Longtime Criminal Court Judge John Colton Jr. of Memphis will retire June 30, leaving four years remaining on his current eight-year term. The seat is expected to be on the ballot in the Aug. 5 general election, but no decision has been made whether Gov. Phil Bredesen would appoint someone to the bench in the interim.
The Commercial Appeal has the story
Editorial: What will Bredesen do for Gaile Owens?
In an editorial, the Commercial Appeal points out what Gov. Bredesen should consider regarding Gaile Owens' plea for him to commute her death sentence. His decision will stir up passions on both sides, as well as the inevitable comparisons with Mary Winkler, who served less than a year for the 2006 slaying of her husband, Rev. Matthew Winkler of Selmer. Like Winkler, Owens exhibited symptoms of battered woman's syndrome. "Whatever he does," the paper says, "it will be greeted by second guessing among people who should be grateful their hands don't hold the pen.
Read the editorial
Opera-singing lawyer chooses which career to focus on
Knoxvillian Kevin Burdette had always wanted to be a lawyer, but an operatic role in college sent him a different direction. He studied opera at Julliard after graduating from the University of Tennessee, deferring his admission to Columbia Law School. Eventually, he did go back to become a lawyer and practiced corporate law with New York's Debevoise and Plimpton. But his love of the opera has won out for now though, as Burdette resigned from the firm this month. "I decided that maybe I needed to stop this lawyer stuff, because I was having way too much fun [performing]." Burdette plays Bartolo in the cast of Knoxville Opera's "The Barber of Seville," which opens tonight at the Tennessee Theater in Knoxville.
Metro Pulse tells you more
Board meeting a power play for Pannu
If Nashville lawyer Jason Pannu's experience is any guide, the Nashville Predators may want to swing by the Tennessee Bar Center Monday before facing off for Game 6 at Bridgestone Arena. With his team in the midst of the championship playoff round in the Nashville Men's Hockey League last week, Pannu slipped away to join his legal colleagues at the TBA Board of Governors meeting at Fall Creek Falls State Park. Secure that the TBA was firmly behind him, he returned Sunday, just in time to help his team take the title. Congratulations!
See the championship team on TBAConnect
Supreme Court Report
Is religion of court members a factor?
When Justice Stevens retires, the U.S. Supreme Court will be composed of six Catholic and two Jewish justices, which has some people taking religion into account when considering who might be appointed to the court. "The religious background and beliefs really are not relevant to that process. It's how the judge views himself and his role in government," Jay Sekulow, chief counsel for the conservative American Center for Law and Justice, said. He says he's not concerned about sharing their religious philosophy, but is "more concerned that they share my judicial philosophy."
The Tennessean has the story
TBA Member Services
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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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