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Monday, December 27, 2010

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Former Chief Justice Fones dies; services Tuesday, visitation tonight

Former Tennessee Supreme Court Chief Justice William H.D. Fones Sr. died Dec. 23. He was 93. He served on the Tennessee Supreme Court from 1973 to 1990. Justice Fones and the four other justices with whom he served were known as a progressive court, setting new standards in Tennessee for the practice of law. His two sons, Jere Barr Fones and William H.D. Fones Jr., practice law in Memphis.

Justice Fones graduated from the University of Tennessee College of Law before World War II, but did not practice as an attorney until after the war. He enlisted immediately following Pearl Harbor and served with the Fifth Army Air Force as a bomber pilot, flying 90 combat missions in the Southwest Pacific.

Visitation will be in Memphis at Memorial Park Funeral Home today (Monday) from 5 to 7 p.m. A memorial service will be held at Christ United Methodist Church, the Wilson Chapel, on Dec. 28 at 11 a.m. The burial will be private. The family requests that memorial donations be made to the Church Health Center.

Read Justice Fones' obituary

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.

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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.

DAWN ANN DAVIS (GOODWIN) v. DANIEL PACE GOODWIN

Court: TCA

Attorneys:

Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellant, Dawn Ann Davis (Goodwin).

Ted I. Jones, Memphis, Tennessee, for the appellee, Daniel Pace Goodwin.

Judge: STAFFORD

In this divorce case, Wife appeals the trial court's division of marital property. She asserts that the parties' marital residence is her separate property and that the trial court erred in awarding Husband a share of the net proceeds following its court-ordered sale. Wife contends that she purchased the property during the marriage with her separate, premarital funds, that it was titled and financed in her name only, and that she paid the mortgage, taxes, and insurance on the property. We agree that the trial court erred and conclude that the marital residence is Wife's separate property. However, because the property increased in value during the marriage, we remand to the trial court to determine whether Husband substantially contributed to its preservation and appreciation. Reversed and Remanded.

http://www.tba2.org/tba_files/TCA/2010/goodwind_122710.pdf

CALVIN GRAY MILLS, JR., and wife, LINDA MILLS v. FULMARQUE, INC.

Court: TCA

Attorneys:

J. Houston Gordon, Covington, Tennessee; Irma Merrill Stratton, Memphis, TN, for the appellants, Calvin Gray Mills, Jr. and wife, Linda Mills

Andrew H. Owens, Memphis, Tennessee, for the appellee, Fulmarque, Inc.

Judge: HIGHERS

Plaintiffs initially filed suit against Royal Group, among others. In its answer, Royal Group alleged the comparative fault of Aaron Rents, Inc. Because the one-year statute of limitations had run, Plaintiffs utilized Tennessee Code Annotated section 20-1-119's ninety-day window to amend their complaint to add Aaron Rents as a defendant. However, in its answer, Aaron Rents then identified Fulmarque, Inc. as a comparative tortfeasor. Plaintiffs again amended their complaint to add Fulmarque as a defendant, but summary judgment was granted to Fulmarque based upon the running of the statute of limitations.

On appeal, the parties disagree as to whether Tennessee Code Annotated section 20-1-119 authorizes successive ninety-day windows in which additional defendants may be named. We are asked to interpret whether the term "applicable statute of limitations" as used in the statute, and appearing in the phrase "or named in an amended complaint filed within the applicable statute of limitations," refers only to the one-year limitation period for personal injury or to the limitation period as extended by the ninety-day window. We find that the term does not simply refer to the one year limitation period for personal injury, but also to the limitation period as extended by the ninety-day window. Therefore, because Aaron Rents was "named in an a amended complaint filed within the applicable statute of limitations[,]" and because Plaintiffs amended their complaint to name Fulmarque within ninety days from Aaron Rents' identification of Fulmarque in its answer, we find that the trial court erred in granting summary judgment to Fulmarque.

http://www.tba2.org/tba_files/TCA/2010/millsc_122710.pdf

IN THE MATTER OF: ESTATE OF CURTIS RINDA, TERRY ABERNATHY, ADMINISTRATOR

Court: TCA

Attorneys:

Terry Abernathy, Selmer, Tennessee, for the appellant, Terry Abernathy, Administrator.

Melissa G. Stewart-Leitschuh, Selmer, Tennessee, for the appellee, Scott Rinda.

Judge: STAFFORD

Appellant, the Estate of the Decedent herein, appeals the Chancery Court of McNairy County's denial of the Estate's exception to a claim for Decedent's funeral expenses. Decedent's brother, the Appellee herein, held a power of attorney for his father (who is also Decedent's father). Appellee exercised the power of attorney to arrange Decedent's funeral and to pay for that funeral with the father's funds. The claim, which was filed in Appellee's name only, was excepted by the Estate, on grounds that Appellee had no standing to file the claim because he did not, in fact, pay the funeral expenses. The trial court allowed the claim, but held that it was payable to the father. The Estate appeals. We find that the existence and amount of the claim are supported by the record, and that Appellee's power of attorney authorized him : (1) to bind the father to the funeral contract, (2) to pay the funeral expenses from the father's funds, and (3) to file a claim against the Estate, on behalf of the father, to recoup those expenses from the Estate. The decision reached by the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2010/rindac_122710.pdf

STATE OF TENNESSEE v. WILLIAM CHANDLER DANIELS

Court: TCCA

Attorneys:

Keith E. Haas, Newport, Tennessee, for the appellant, William Chandler Daniels.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; James B. Dunn, District Attorney General; and William Brownlow Marsh, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

Appellant William Chandler Daniels pled guilty to a charge of theft of property valued at more than $10,000. The plea agreement stipulated that Appellant's sentence was to be three years, with the manner of service and restitution to be determined by the court. The completed judgment form indicates that Appellant was sentenced to serve his three years in the Tennessee Department of Correction. It also provides that "[r]estitution is reserved pending a hearing." At a subsequent hearing, the trial court ordered Appellant to pay $2,000 in restitution. In this appeal, Appellant challenges the trial court's authority to order restitution in combination with a custodial sentence as well as the court's evaluation of the appropriate amount of restitution. We conclude that the trial court was permitted to order restitution; however it did not consider Appellant's ability to pay or specify the time or amount of payment. Therefore, the case is remanded to the trial court for further proceedings.

http://www.tba2.org/tba_files/TCCA/2010/danielsw_122710.pdf

STATE OF TENNESSEE v. CLARENCE D. HAYES

Court: TCCA

Attorneys:

Paula Ogle Blair (on appeal), and David Collins and Scott Rich (at trial), Nashville, Tennessee, for the appellant, Clarence D. Hayes.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Sharon Reddick and Katie Miller, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

A Davidson County jury convicted the defendant of first degree felony murder, and he received a life sentence in the Tennessee Department of Correction. On appeal, he argues that (1) the trial court denied his right to counsel at his motion for new trial hearing; (2) the evidence was insufficient to support his conviction; (3) the trial court erred by admitting evidence of the defendant's prior bad acts; and (4) the trial court erred by allowing a lay witness to provide expert testimony. Following a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/hayesc_122710.pdf

AARON T. JAMES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David R. Heroux, Nashville, Tennessee, for the appellant, Aaron T. James.

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

Judge: TIPTON

The Petitioner, Aaron T. James, appeals the Davidson County Criminal Court's denial of post-conviction relief from his conviction for especially aggravated kidnapping and resulting sixty-year sentence. He contends that the trial court committed plain error by (1) failing to instruct the jury on the need for unanimity as to the theory of guilt, (2) failing to require the State to elect a theory of guilt, and (3) failing to correct the prosecutor's misstatement of law during closing argument. He also contends that (4) trial counsel rendered ineffective assistance by failing to object to or request corrections for the first three issues and (5) appellate counsel rendered ineffective assistance by failing to raise these issues on appeal. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/jamesa_122710.pdf

JOHN F. JOHNSON v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

Court: TCCA

Attorneys:

John F. Johnson, Only, Tennessee, Pro Se.

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

Judge: DINKINS

Certiorari proceeding in which an inmate seeks reversal of trial court's affirmance of disciplinary board proceeding finding inmate guilty of solicitation of staff in violation of Tennessee Department of Correction policy and grant of judgment on the record to the Tennessee Department of Corrections. Petitioner asserts that the decision of the disciplinary board was unsupported by material evidence and was procedurally defective. Finding no error, we affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/johnsonj_122710.pdf

STATE OF TENNESSEE v. DON SIDDALL

Court: TCCA

Attorneys:

J. Mikel Dixon, Knoxville, Tennessee, for the appellant, Don Siddall.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Bill Cox, District Attorney General; and Cameron Williams, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Don Siddall, was found guilty in a bench trial by the Hamilton County Criminal Court of two counts of false imprisonment, a Class A misdemeanor. See T.C.A. section 39-13-302 (2010). He was sentenced to eleven months, twenty-nine days' confinement, suspended after time served. On appeal, he contends that (1) the evidence was insufficient to support his convictions and (2) the trial court erred by allowing the victims to be exempt from the rule of sequestration. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2010/siddalld_122710.pdf

TODAY'S NEWS

Legal News
U.S. Supreme Court
Congressional News
TBA Member Services

Legal News

ABA president praises Senate action on IOLTA insurance

American Bar Association President Stephen N. Zack calls Congress's action last week to continue unlimited FDIC coverage for Interest On Lawyers' Trust Accounts (IOLTA) "a major victory." On Dec. 22, the U.S. Senate passed legislation (H.R. 6398) that extends the coverage for IOLTA accounts through Dec. 31, 2012. Zack writes in a column that had the action not been taken, "lawyers and their clients faced complicated ethical and financial questions about handling money involved in legal transactions. The ultimate casualty of this confusion would have been poor people whose access to the justice system comes through assistance from IOLTA-funded programs."

Read his comments

Chattanooga firms increase pro bono involvement

Several Chattanooga law firms are increasing their pro bono involvement through Legal Aid of East Tennessee (LAET). "More people have need than we have capacity," said Maeghan Jones, pro bono director at LAET. "The firms have really been stepping up to have more partnerships with us." With the economic downturn, the demand for free legal representation for people who can't afford to pay a lawyer has been on the rise, Jones said. Legal Aid is taking more than 300 cases a year.

ACLU-TN's school letter identified as 'suspicious activity'

Last week, the government-run Tennessee Fusion Center had on its web site map of "Terrorism Events and Other Suspicious Activity" a recent ACLU-TN letter to school superintendents. The letter was intended to encourage schools to be supportive of all religious beliefs during the holiday season, according to the ACLU-TN. "It is deeply disturbing that Tennessee's fusion center is tracking First Amendment-protected activity," said Hedy Weinberg, ACLU-TN executive director, in a release. "Equating a group's attempts to protect religious freedom in Tennessee with suspicious activity related to terrorism is outrageous." This week, the blinking icon denoting the activity on the center's map has been removed.

Editorial: Give to CASA

In an editorial, the Times-News suggests that people should help Court Appointed Special Advocates (CASA), saying that "every day, CASA volunteers throughout Sullivan and Hawkins counties help children move from a world of fear to one of hope. And you can be part of that success story." Over the past 20 years, CASA in those two counties has helped more than 4,000 children receive the help they so urgently needed, the paper says. The program, begun in the 1970s, was envisioned as a way to determine the best interests of children in the juvenile court system.

Read the editorial

U.S. Supreme Court

Obama's 'scolding' of court tops defining moments list

The National Law Journal outlines the top "defining moments" of the U.S. Supreme Court in 2010. Topping the list was President Barack Obama's scolding of the court for its Citizens United decision. Democratic members of Congress stood and applauded, glaring at the justices who sat expressionless -- except for Justice Samuel Alito Jr., who mouthed the words "not true" as he gave the silent headshake heard 'round the world.