TBA Today

Wednesday, December 15, 2010

Search our Database for Opinions and News Items

State Democrats elect new leader

State House Democrats voted for change Wednesday by unseating their leader, Nashville Rep. Gary Odom, and replacing him with Rep. Craig Fitzhugh of Ripley, who declared "I've got a fire in my belly" to help rehabilitate the party. Fitzhugh, who was chairman of the Finance Committee in the last session, defeated Odom on the second ballot. The third candidate, Rep. John DeBerry of Memphis, won the fewest votes on the first ballot, setting up the Fitzhugh-Odom runoff. In other election news, Rep. Joe Towns Jr. of Memphis was named Democratic assistant leader and Rep. Mike Turner of Old Hickory was returned as caucus chair.

The Nashville City Paper reports

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
01 - TN Court of Appeals
07 - 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.

CAO HOLDINGS, INC. v. CHARLES A. TROST, COMMISSIONER OF REVENUE

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Brad H. Buchanan, Assistant Attorney General, Nashville, Tennessee, for the appellant, Charles A. Trost, Commissioner of Revenue, State of Tennessee.

Brett R. Carter, Christopher A. Wilson, and G. Michael Yopp, Nashville, Tennessee, for the appellee, CAO Holdings, Inc.

Judge: KOCH

This appeal involves a corporation's liability for the payment of use tax following its purchase of a business jet. After it received an assessment from the Tennessee Department of Revenue for over $700,000, the corporation paid the tax and filed suit in the Chancery Court for Davidson County seeking a refund on the ground that it qualified for the sale for resale exemption under Tenn. Code Ann. section 67-6-102(a) (28)(A) (Supp. 2004) because it had leased the aircraft to another corporation. Both the corporation and the Department filed motions for summary judgment. The trial court granted the corporation's motion for summary judgment, and the Department appealed. A divided Court of Appeals panel affirmed the trial court. CAO Holdings, Inc. v. Chumley, No. M2008-01679-COA-R3-CV, 2009 WL 1492230 (Tenn. Ct. App. May 27, 2009). We granted the Department's application for permission to appeal. We have now determined that neither party is entitled to a summary judgment because material disputes exist regarding the factual inferences or conclusions that can be drawn from the facts.

http://www.tba2.org/tba_files/TSC/2010/caoholdings_121510.pdf

ROBERT BROWN, An Incompetent, by and through next friend ANGELA ANDERSON v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Michael A. Anderson, Chattanooga, Tennessee, for the appellant, Robert Brown, by and through next friend Angela Anderson.

Robert E. Cooper, Attorney General and Reporter, Michael E. Moore, Solicitor General, Mary M. Bers, Senior Counsel, Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: HIGHERS

Appellant, who was not placed on fall observations until after his fall, suffered a fall while under the care of the Western Mental Health Institute. A CAT scan performed three days after the fall revealed no hemorrhaging, however, a repeat scan performed approximately one month later revealed a subdural hematoma for which Appellant subsequently underwent two surgeries. Appellant, by and through his next friend, filed suit against the State in the Claims Commission alleging medical negligence. Following a trial, the Claims Commission found that a Western nurse breached the standard of care in completing the initial fall risk assessment, but that Appellant had failed to prove that such breach was a proximate cause of his fall. Additionally, the Commission found that Appellant had failed to prove that Western's failure to later place Appellant on fall observations was a proximate cause of his fall. Finally, the Commission found that Appellant had failed to prove by a preponderance of the evidence that Western's failure to order repeat brain imaging prior to January 26, 2006, was a breach of the standard of care. We affirm the judgment of the Commission.

http://www.tba2.org/tba_files/TCA/2010/brownr_121510.pdf

DARRELL WAYNE BUMPAS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James O. Martin, III, Nashville, Tennessee, for the Appellant, Darrell Wayne Bumpas.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Jeff Burks, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Darrell Wayne Bumpas, pled guilty to robbery and resisting arrest, and the trial court sentenced him as a Range II offender to six years in the Tennessee Department of Correction. The Petitioner filed a petition for post-conviction relief, alleging that his guilty plea was unknowing and involuntary and that he received the ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition, and the Petitioner now appeals. After a thorough review of the record and applicable authorities, we affirm the post-conviction court's judgment.

http://www.tba2.org/tba_files/TCCA/2010/bumpasd_121510.pdf

STATE OF TENNESSEE v. KEVIN M. FRIERSON

Court: TCCA

Attorneys:

Patrick G. Frogge, Nashville, Tennessee, for the Appellant, Kevin M. Frierson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Brian Clay Johnson, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Joel Crim, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County grand jury indicted the Defendant, Kevin M. Frierson, for possession of .5 grams or more of a Schedule II controlled substance with the intent to sell or deliver and one count of possession of drug paraphernalia. The Defendant filed a motion to suppress the evidence against him, which was discovered on the Defendant's person and seized by a police officer who had stopped a vehicle in which the Defendant was a passenger. The trial court denied the motion to suppress. The Defendant pled guilty to possession of .5 grams or more of a schedule II controlled substance with the intent to sell or deliver, but reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) as to whether the search of the Defendant was constitutional. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/friersonk_121510.pdf

STATE OF TENNESSEE v. DEANDRE MARCELLUS HOWARD

Court: TCCA

Attorneys:

Anne M. Davenport, Nashville, Tennessee, for the appellant, Deandre Marcellus Howard.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Deandre Marcellus Howard, pleaded guilty to a single count of voluntary manslaughter and received an agreed term of three years' probation to be served pursuant to Tennessee Code Annotated section 40-35-313. In this appeal, the defendant contends that the trial court erred by denying him some 18 months of pretrial jail credit. For the procedural reasons explained more fully below, the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2010/howardd_121510.pdf

STATE OF TENNESSEE v. DERRICK SLOAN TAYLOR

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the Appellant, Derrick Sloan Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Sarah N. Davis, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Davidson County jury convicted the Defendant, Derrick Sloan Taylor, of attempted especially aggravated robbery and attempted first degree murder, and the trial court sentenced him to an effective sentence of thirty-three years in the Tennessee Department of Correction. On appeal, the Defendant contends that: (1) the trial court erred when it admitted evidence about him firing a gun on another occasion; and (2) the evidence is insufficient to sustain his convictions. After a thorough review of the record and applicable authorities, we affirm the trial court's judgments.

http://www.tba2.org/tba_files/TCCA/2010/taylord_121510.pdf

STEVE WALLACE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Steve Wallace, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; and William Whitesell, District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Steve Wallace, appeals the Rutherford County Circuit Court's summary dismissal of his petition for habeas corpus relief attacking his 1986 convictions for second degree burglary and aggravated assault. The Petitioner alleged, among other things, that his judgments of conviction were void because ineffective assistance of trial counsel led him to enter a guilty plea which was not voluntary, knowing, and intelligent. The habeas corpus court summarily dismissed the petition, finding that the Petitioner had failed to comply with the procedural requirements for seeking habeas corpus relief and, furthermore, that he did not state a cognizable claim for relief. Following our review of the record and the applicable law, we affirm the order summarily dismissing the petition.

http://www.tba2.org/tba_files/TCCA/2010/wallaces_121510.pdf

STATE OF TENNESSEE v. SAMUEL JACOB WEBB

Court: TCCA

Attorneys:

Samuel Jacob Webb, Lawrenceburg, Tennessee, pro se, for the Appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; L. Ray Whitley, District Attorney General, and Sallie Wade Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

Pursuant to a plea agreement, the Defendant, Samuel Jacob Webb, pled guilty to one count of sexual exploitation of a minor, and the trial court sentenced him to eight years in the Department of Correction. The Petitioner filed a motion to withdraw his guilty plea, claiming that he understood that he would be placed on parole for his eight-year sentence and returned to federal custody to serve his federal sentence for another charge. The trial court denied relief after a hearing, and the Defendant now appeals. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/webbs_121510.pdf

AARON WILLIAMS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Trudy L. Bloodworth, Nashville, Tennessee, for the Appellant, Aaron Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

Pursuant to a plea agreement, the Petitioner, Aaron Williams, pled guilty to four counts of rape of a child, and the trial court sentenced him to an effective sentence of forty-two years in the Tennessee Department of Correction. The Petitioner filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. On appeal, the Petitioner contends: (1) his conviction was based on a coerced confession; (2) he received the ineffective assistance of counsel; and (3) he did not knowingly and voluntarily plead guilty. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2010/williamsa_121510.pdf

TODAY'S NEWS

Tenn. Supreme Court
Legal News
General Assembly News
Congressional News
TennBarU CLE
TBA Member Services

Tenn. Supreme Court

Four new cases to be heard

The Raybin-Perky Tennessee Supreme Court Hot List highlights four new cases the court has agreed to review. They include the Savings Statute and the Statue of Limitations in Medical Malpractice Actions, "Termination" under the Public Protection Act, the Discovery Doctrine under the Statute of Limitations, and Evidence of an Acquittal in criminal cases.

Learn more about the cases

Legal News

DOJ sues BP, 8 others

The U.S. Justice Department today filed suit against BP and eight other defendants in the U.S. District Court for the Eastern District of Louisiana. The civil suit alleges safety and occupational violations stemming from last April's oil spill, and calls for the companies to be assessed removal costs, economic losses and environmental damages "without limitation." The suit comes amid an ongoing criminal investigation of the spill and rig explosion. Attorney General Eric Holder Jr. admitted it will be "difficult to have parallel proceedings going on at the same time," but said the department would be careful not to do anything to jeopardize a criminal case.

The Blog of Legal Times reports

Power outages hit Nashville, Knoxville courts

A power outage that affected several downtown Nashville government buildings -- including the state Supreme Court -- occurred about 3 p.m. yesterday. Power was restored at about 3:22 p.m. in all buildings except the Tennessee Tower, where officials believe a broken sprinkler system flooded the basement, turning off transformers. In Knoxville today, a six-hour power disruption affected the City County Building and the Andrew Johnson Building. Most courts --- including Knox County Circuit Court and domestic courtrooms -- were closed though the Chancery Court proceeded with a trial. An officer with the Knox County Jail, located on the lower level of the City County Building, said the facility was operating with emergency power.

Read about the Knoxville situation from the News Sentinel

Ables: magistrates should halt service to municipal courts

Chief Hamilton County Magistrate Larry Ables is recommending that magistrates halt services to municipal judges until certain problems are worked out. Ables told county commissioners there have been problems regarding scheduling of visits, use of pre-set bond formulas and arrest warrant processes. He also noted that county magistrates have not always served city judges but began doing so "as a courtesy when one of the municipal judges became ill." The commission decided to refer the matter to its Security and Corrections Committee.

Chattanoogan.com has more

ACLU warns schools about holiday celebrations

The American Civil Liberties Union of Tennessee has warned school officials across the state about holiday celebrations. In a letter to 137 school superintendents, the group said that celebrations focusing primarily on one religious holiday amount to an unconstitutional endorsement of religion. The ACLU said in a news release it was responding to complaints from families about such school activities.

Read the group's press release or the letter to schools

Courthouse temperatures spark concern

Sheriff's office deputies working the metal detectors at the Washington County Justice Center are having to bundle up against the cold inside. Washington County Mayor Dan Eldridge reported they are "literally cold all day long. They're having to wear coats, gloves, toboggans, anything they can do to say warm..." Asked why the building did not include an interior set of double doors, the architects said such a design did not fit the county's budget. The city is seeking a cost-effective solution to the issue.

Tri-Cities.com reports

State official weighs in on sunshine issue in mayoral race

State Open Records Specialist Elisha Hodge said this week that Hamilton County Commission members seeking to be appointed county mayor would not violate the Sunshine Law by talking to other commissioners, who will fill the position. The opinion came in response to a statement by the county attorney that commissioners seeking the mayoral post could not talk about it with their colleagues. At the time, commissioners said such an interpretation would result in an "unfair" and "absurd" situation.

Chattanoogan.com has more

General Assembly News

State GOP pushing immigration issue

According to News Channel 5, Republicans plan to make immigration reform one of their main priorities when the legislative session begins in January, and some are making plans to introduce a bill this week that mirrors a controversial Arizona law. Sen. Bill Ketron, R-Murfreesboro, is pushing legislation to check the immigration status of the people stopped by police. But unlike the Arizona law, it would not require that businesses check employees' immigration status through a federal database.