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Thursday, March 24, 2011

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April 18 is deadline for filing 2009 flood loss

The IRS reminds those affected by the Nashville floods who want to seek tax relief on their 2009 income tax return that they must file or amend their 2009 return no later than April 18. Affected individuals also may choose to claim the loss on their 2010 tax return. Since rules for 2009 and 2010 are different, the IRS encourages filers to investigate which ones are most beneficial for their situation. Taxpayers with questions about casualty loss can call the IRS Disaster Assistance Hotline at (866) 562-5227. In addition, the Legal Aid Society has produced the booklet 2010 Tax Guide for Flood Victims to help affected individuals file a claim.

Download the IRS notice

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.

BOB FANNON, INDIVIDUALLY AND AS A CITY COUNCILMAN FOR THE CITY OF LAFOLLETTE v. CITY OF LAFOLLETTE, ET AL.
CORRECTION on pages 2, 4 and 7 (see below)

Court: TSC

Attorneys:

David H. Dunaway, LaFollette, Tennessee, for the appellant/plaintiff, Bob Fannon.

J. Stephen Hurst, LaFollette, Tennessee, for the appellants/defendants, Hansford Hatmaker, Mike Stanfield, and Ken Snodderly.

Jon G. Roach and Emily A. Cleveland, Knoxville, Tennessee, for the appellee/defendant, the City of LaFollette.

Judge: WADE

CORRECTION SUMMARY
This corrected opinion makes the following changes to the original opinion:
--On page 2, paragraph 1, a second section mark is added prior to "8-44-101"
--On page 2, footnote 2, a space is deleted between "8-44-102" and "(b)(1)(A)"
--On page 4, in the last sentence of the only full paragraph on the page, a space is deleted after "each department"
--On page 4, footnote 4, a space is deleted after "by the City"
--On page 7, in the first full paragraph, 7th line down, "Nashville and Davidson Cnty." is changed to "Nashville & Davidson Cnty."

OPINION SUMMARY
An elected council member of the City of LaFollette filed a declaratory judgment action alleging that three other members of the council had violated the terms of the Open Meetings Act in the process of adopting a resolution to increase the pay of various city employees. The trial court, after a hearing, granted a temporary restraining order, restricting implementation of the pay raises until the City complied with the procedural requirements of the City Charter. The order did not address the Open Meetings Act allegations. At a subsequent meeting, the Council, apparently in accordance with the requisite guidelines, approved the pay raises. After the Plaintiff filed a motion for summary judgment and then a motion seeking attorney's fees and costs, the trial court dismissed the Open Meetings Act claim as moot, but awarded fees and costs to the council member who had initiated the suit. The order did not address a challenge by the City to the council member's standing to sue. On direct appeal by the City, the Court of Appeals confirmed that the council member had standing as a taxpayer, rather than in his official capacity, but reversed the award of attorney's fees and costs. Because the litigation involves issues of public interest, this Court granted an application for permission to appeal. We hold that the council member had no standing to sue as a council member or a taxpayer, but that he did have standing based upon his allegations of an Open Meetings Act violation. As the prevailing party, he is entitled to an award of discretionary costs, but not attorney's fees. The judgment is, therefore, affirmed in part and reversed in part, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2011/fannonb_COR_032411.pdf

RONNIE GALE GILL v. NANCY JANE GILL

Court: TCA

Attorneys:

John M. Miles, Union City, Tennessee, for Petitioner/Appellant, Ronnie Gale Gill.

Damon E. Campbell, Conley Campbell Moss, Union City, Tennessee, for Respondent/Appellee, Nancy Jane Gill.

Judge: KIRBY

This is a post-divorce case. The husband sought to have his alimony in futuro obligation reduced or eliminated, asserting that his income had substantially decreased and the wife's income had increased. The trial court found a material change in circumstances, and reduced the husband's alimony in futuro obligation but did not eliminate it, finding that the wife still needed support. The husband appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2011/gillr_032411.pdf

IN RE HEALTHWAYS, INC. DERIVATIVE LITIGATION
CORRECTION appears on page 17, four lines from bottom of the last full paragraph. The word 'five' has been changed to 'four.'

Court: TCA

Attorneys:

Paul Kent Bramlett and Robert Preston Bramlett, Nashville, Tennessee; Brett D. Stecker, Jeffrey J. Ciarlanto, and Robert B. Weiser, Wayne, Pennsylvania; and James G. Flynn and Robert I. Harwood, New York, New York, for the appellant, Roy T. Forrest.

Wallace W. Dietz and Brian D. Roark, Nashville, Tennessee; and Brandon R. Williams, John L. Latham, and Susan E. Hurd, Atlanta, Georgia, for the appellee, Healthways, Inc.

Judge: DINKINS

Plaintiff in shareholder derivative action appeals the dismissal of his suit alleging breaches of fiduciary duty and other misconduct, including insider trading, by current and former officers and directors of corporation. Plaintiff filed suit without first making demand on the board of directors of the corporation that the directors initiate the lawsuit. Defendants moved to dismiss the suit on the ground that plaintiff failed to allege with requisite particularity that such demand would have been futile. We affirm the dismissal of the action.

http://www.tba2.org/tba_files/TCA/2011/healthways_COR_032411.pdf

TERESA LYNN JACKSON v. AARON THOMAS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CIRCUIT COURT CLERK OF JACKSON COUNTY, TENNESSEE ET AL.

Court: TCA

Attorneys:

Richard M. Brooks, Carthage, Tennessee, and Michael Savage, Livingston, Tennessee, for the appellant, Teresa Lynn Jackson.

Jeffrey M. Beemer and Kelly M. Telfeyan, Nashville, Tennessee, for the appellees, Aaron Thomas and Jackson County, Tennessee.

Judge: CLEMENT

Plaintiff appeals the Tenn. R. Civ. P. 12.02 dismissal of her claims against two defendants, the Circuit Court Clerk of Jackson County, individually and in his official capacity, and Jackson County, Tennessee for a violation of 42 U.S.C. section 1983, the Tennessee Governmental Tort Liability Act, and numerous intentional torts. The trial court dismissed all claims against these defendants finding that Plaintiff failed to state a claim. We affirm the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2011/jacksont_032411.pdf

MORGAN KEEGAN & COMPANY, INC. v. WILLIAM HAMILTON SMYTHE, III, INDIVIDUALLY; WILLIAM H. SMYTHE, IV, TRUST U/A/DTD 12/29/87, WILLIAM H. SMYTHE, III, TRUSTEE; AND SMYTHE CHILDREN'S TRUST #2 FBO KATHERINE S. THINNES U/A/DTD 12/29/87

Court: TCA

Attorneys:

Christopher S. Campbell and Laura S. Martin, Memphis, Tennessee; and Dale Ledbetter, Fort Lauderdale, Florida, for the Respondents/Appellants, William Hamilton Smythe, III, et al.

John S. Golwen, William G. Whitman, and Annie T. Christoff, Memphis, Tennessee, for the Petitioner/Appellee Morgan Keegan & Company, Inc.

Judge: KIRBY

This appeal addresses appellate jurisdiction to review a trial court's order on an arbitration award. The parties engaged in arbitration over a dispute in which the respondent investors asserted that the petitioner investment company mismanaged their funds. The investors prevailed and received a substantial arbitration award against the investment company. The investment company filed a petition in the trial court to vacate the arbitration award, alleging partiality and bias on the part of two members of the arbitration panel. After a hearing, the trial court held in favor of the investment company. The trial court entered an order vacating the arbitration award and remanding the matter to the regulatory authority for a rehearing before another panel of arbitrators. The respondent investors now appeal. Pursuant to Tenn. Code Annotated section 29-5-319(a), we dismiss the appeal for lack of appellate jurisdiction.

http://www.tba2.org/tba_files/TCA/2011/morgankeegan_032411.pdf

C.P. (minor) by and through his mother, MARILYN POWELL v. KEVIN SHEPHERD

Court: TCA

Attorneys:

Marilyn Powell, Alcoa, Tennessee, Pro Se.

Kevin W. Shepherd, Maryville, Tennessee, Pro Se.

William L. Gribble, II, Maryville, Tennessee, Pro Se.

Judge: STAFFORD

This is a consolidated appeal from the grant of Defendants/Appellees' Tenn. R. Civ. P. 12.02(6) motions to dismiss. We are asked on appeal to determine whether each of Plaintiff/Appellant's complaints states a claim upon which relief can be granted. We conclude that they do. Reversed and remanded.

http://www.tba2.org/tba_files/TCA/2011/powellm_032411.pdf

STATE OF TENNESSEE v. WILLIE CLARK BENNETT

Court: TCCA

Attorneys:

Mark Stephens, District Public Defender; and Robert C. Edwards, Assistant District Public Defender, for the appellant, Willie Clark Bennett.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kenneth F. Irvine, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Willie Clark Bennett, appeals the trial court's revocation of his probation. In this appeal, he contends that the trial court erred by failing to suppress evidence obtained during a search of his person. Discerning no error, we affirm.

http://www.tba2.org/tba_files/TCCA/2011/bennettw_032411.pdf

DEARICE CATES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Dearice Cates.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Ta Kisha M. Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Dearice Cates, appeals as of right from the Knox County Criminal Court's denial of his petition for post-conviction relief. The Petitioner contends that he received the ineffective assistance of both trial and appellate counsel for failing to raise the statutorily mandated mitigating factor that he "voluntarily" released the victims of his especially aggravated kidnappings alive. See Tenn. Code Ann. section 39-13-305(b)(2). Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/catesd_032411.pdf

STATE OF TENNESSEE v. CAMILLE KRISTINE CHESNEY

Court: TCCA

Attorneys:

Jeffrey A. DeVasher and Lisa D'Souza (on appeal) and Rodney Caldwell and Laura C. Dykes (at trial), Nashville, Tennessee, for the appellant, Camille Kristine Chesney.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Jeff Burks, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Davidson County Criminal Court jury convicted the appellant, Camille Kristine Chesney, of facilitation to sell .5 grams or more of cocaine, a Schedule II controlled substance, and driving on a suspended license. After a sentencing hearing, the trial court sentenced her to concurrent sentences of four years for the facilitation to sell cocaine conviction and eleven months, twenty-nine days for the driving on a revoked license conviction, to be served as ninety days in jail and the remainder on supervised probation. She also was fined three thousand five hundred dollars. On appeal, the appellant contends that the trial court erred by denying her motion to suppress evidence obtained as a result of an illegal stop and arrest and that the evidence is insufficient to support the convictions. Based upon the record and the parties' briefs, we affirm the appellant's conviction for facilitation to sell cocaine but reverse the conviction for driving on a suspended license.

http://www.tba2.org/tba_files/TCCA/2011/chesneyc_032411.pdf

PHILLIP SHANE DUNCAN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Phillip Duncan.

Robert E. Cooper, Jr., Attorney General and Reporter; and Cameron L. Hyder, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Phillip Shane Duncan, filed a pro se petition for a writ of habeas corpus, arguing that the trial court erred in imposing a sentence of twenty-five years for his second degree murder conviction. The habeas corpus court dismissed the petition, and the Petitioner appealed. The State filed a motion requesting that this court affirm the habeas corpus court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. After review, we conclude that the petition was properly dismissed. Accordingly, the State's motion is granted and the judgment of the habeas corpus court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/duncanp_032411.pdf

STATE OF TENNESSEE v. JOHN HALL

Court: TCCA

Attorneys:

Thomas V. Testerman, Newport, Tennessee, for the appellant, John Hall.

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

Judge: OGLE

A Cocke County Circuit Court Jury found the appellant, John Hall, guilty of assault, a Class A misdemeanor. The trial court imposed a sentence of eleven months and twenty-nine days, thirty percent of which the appellant would be required to serve in the county jail. On appeal, the appellant challenges the sufficiency of the evidence and the sentence imposed by the trial court. Upon review, we affirm the judgment of the trial court but remand for entry of a corrected judgment.

http://www.tba2.org/tba_files/TCCA/2011/hallj_032411.pdf

STATE OF TENNESSEE v. DANIEL LEON LEE

Court: TCCA

Attorneys:

Gary Howell, Mt. Pleasant, Tennessee, for the appellant Daniel Leon Lee.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Daniel Leon Lee, was convicted by a Maury County Jury of attempted possession of cocaine over .5 grams and simple possession of marijuana. After a sentencing hearing, the trial court sentenced him to an effective sentence of ten years. On appeal, Appellant challenges the sufficiency of the evidence and his sentence. We affirm Appellant's convictions for attempted possession of cocaine over .5 grams and possession of marijuana because we determine that the evidence was sufficient to support the convictions. However, we determine that the trial court improperly utilized convictions that appeared in Appellant's presentence report but did not appear on the notice to seek enhanced punishment in order to establish Appellant's sentencing range. Additionally, the trial court failed to place adequate findings of fact and conclusions of law with regard to sentencing on the record. Consequently, we affirm in part, reverse in part and remand the matter for a new sentencing hearing.

http://www.tba2.org/tba_files/TCCA/2011/leed_032411.pdf

VICTOR PRITCHARD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John H. Parker, II, Memphis, Tennessee, for the appellant, Victor Pritchard.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and Kate Edmands, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Victor Pritchard, appeals the post-conviction court's denial of his petition for post-conviction relief, arguing that he received the ineffective assistance of counsel, which caused him to enter unknowing and involuntary guilty pleas. After review, we affirm the denial of the petition.

http://www.tba2.org/tba_files/TCCA/2011/pritchardv_032411.pdf

STATE OF TENNESSEE v. LISA JOYCE TYLER

Court: TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Gary Antrican, District Public Defender; and Shana Johnson, Assistant Public Defender (at trial), for the appellant, Lisa Joyce Tyler.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Joe Van Dyke, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Lisa Joyce Tyler, appeals the trial court's revocation of her probation. On appeal, she argues that the non-payment of her restitution was not willful but, instead, due to her inability to pay. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/tylerl_032411.pdf

STATE OF TENNESSEE v. CANTRELL LASHONE WINTERS

Court: TCCA

Attorneys:

Dumaka Shabazz (on appeal and at motion for new trial), Nashville, Tennessee; and Mike Engle, Assistant District Public Defender (at trial), for the appellant, Cantrell Lashone Winters.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee

Judge: WITT

A Davidson County Criminal Court jury convicted the defendant, Cantrell Lashone Winters, of possession of 50 grams or more of hydromorphone in a school zone with intent to sell or deliver, a Class A felony, see T.C.A. sections 39-17-417(a)(4), (j)(3); 39-17-432(b) (2006), and evading arrest, a Class D felony in this case, see id. section 39-16-603(b)(1), (3). In this appeal, the defendant challenges the trial court's denial of his motion to suppress evidence obtained during the search of his person following his arrest, the trial court's denial of his request for substitute counsel, the admission of expert testimony on illegal drug packaging, the sufficiency of the convicting evidence, and the trial court's denial of his petition for writ of error coram nobis. Because the evidence adduced at trial does not establish that the defendant created a risk of death or injury, his conviction of Class D felony evading arrest must be modified to Class E felony evading arrest. The judgments of the trial court are otherwise affirmed.

http://www.tba2.org/tba_files/TCCA/2011/wintersc_032411.pdf

TODAY'S NEWS

Disciplinary Actions
Legal News
General Assembly News
Career Opportunities
Upcoming
TBA Member Services

Disciplinary Actions

Former Knoxville judge suspended

On March 22, the Tennessee Supreme Court suspended the law license of Richard R. Baumgartner, following his guilty plea to the serious crime of official misconduct. The court also ordered the Board of Professional Responsibility to institute a formal proceeding to determine the extent of final discipline to be imposed as a result of the conviction. Baumgartner, who at the time was serving as a Knox County Criminal Court judge, pleaded guilty to official misconduct and resigned his position on March 10.

Download the BPR release

Legal News

Sullivan County DA announces retirement

Sullivan County District Attorney Greeley Wells announced Wednesday that he plans to retire at the end of June. By that time he will have served in the position for 18 years, though he has worked in the office for 35 years. Saying he wants to spend more time with his family, especially his grandchildren, Wells said he would recommend the governor appoint Deputy District Attorney Barry Staubus to fill the position until the next general election in 2012.

The Times News reports

Agents can delay Miranda to protect the public

After being criticized for providing Miranda warnings in terrorism cases, the FBI is reminding its agents that under current case law they can delay reading a suspect his rights when there is immediate concern for the safety of the public. For some time, Attorney General Eric Holder has offered to work with Congress on a law that would let law enforcement delay Miranda warnings to terror suspects longer than allowed under the "public safety" exception. Today's move reflects the department's interest in clarifying current law and policy for its agents absent congressional action.

WTVC News has this AP story

Kentucky high court upholds ban on executions

A split Kentucky Supreme Court today upheld a lower court's order halting all executions in the state. The court, by a 5-2 vote, left in place an order from Circuit Judge Phillip Shepherd temporarily barring executions while an appeal by condemned inmate Gregory L. Wilson is pending. Shepherd said Monday that he is considering a final opinion in that case.

WKRN News reports

General Assembly News

Papers provide wrap-up of tort hearing testimony

Yesterday's hearing before the House Judiciary Subcommittee on Gov. Haslam's tort revision legislation (SB1522 and HB2008) generated considerable press coverage. Nashville Public Radio provided a detailed summary of the day's testimony and quoted TBA President Sam Elliott, who appeared before the panel. The Tennessean focused on the testimony of former Sen. Fred Thompson, while the Associated Press included excerpts from the testimony of Herbert Slatery, the governor's chief legal counsel. The Kingsport Times News carried that story.

Legislators honor civil rights icon

Members of the Tennessee General Assembly took time out of their schedule Wednesday to honor civil rights icon John Lewis at a program in the Legislative Plaza. The General Assembly had passed legislation last month recognizing the contributions Lewis has made to the civil rights struggle in Tennessee and across the country. Among the milestones in his life, Lewis spoke at the 1963 March on Washington before Martin Luther King Jr. gave his "I Have a Dream" speech. He also organized Tennessee's first lunch counter sit-in -- at the age of 19 -- in Nashville. The Memphis Daily News has more on the story.

In a related story, the Tennessean looks how women have been at the center of the nation's civil rights movement, and how, here in Tennessee, civil rights hero Diane Nash contributed to the sit-in effort in Nashville.

Career Opportunities

Knoxville firms seeks construction associate

The Knoxville firm of Woolf, McClane, Bright, Allen & Carpenter is seeking a licensed attorney with one to three years of litigation experience in the areas of construction disputes, contract drafting/negotiation and lien claims. Construction industry and/or an engineering background is a plus. Those interested in the position should contact Robert Noell at (865) 215-1000 or rnoell@wmbac.com.

Upcoming

Memphis bar to hold memorial service

The Memphis Bar Association will hold its annual memorial service at noon on April 26 at Calvary Episcopal Church. The event will honor 24 Memphis lawyers who passed away in the previous year. For more information about the event or to contribute a memorial statement about one of the honorees, contact Mary Lynes at (901) 527-3537 or mlynes@memphisbar.org.

UT Law to host docket day

The University of Tennessee College of Law will host the Tennessee Court of Criminal Appeals for a docket day on March 29, in Room 237. The morning docket will begin at 9 a.m. The afternoon docket will begin at 1 p.m. Interested individuals are invited to observe the proceedings.

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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.