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Thursday, June 30, 2011

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Hibbett takes office as Claims Commissioner

Robert "Bobby" Hibbett was today sworn in to the Tennessee Claims Commission by Gov. Bill Haslam. He replaces Middle Tennessee Commissioner Stephanie Reevers, who served on the commission since January 2004. "As an active member of his community, Robert has a distinguished military and legal career," Haslam said. Hibbert has served in the District Attorney General's office for the 15th Judicial District since 1989, first as Assistant Attorney General and, since 2009, as the Deputy District Attorney General for the Criminal Division. See photos from the event on TBAConnect.

Read more about the new commissioner

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.

THE BANK OF FAYETTE COUNTY V. SIMON M. WOODY, JR., D/B/A ROYAL KINGDOM BUILDERS

Court: TCA

Attorneys:

Simon M. Woody, Jr., d/b/a Royal Kingdom Builders, Collierville, Tennessee, Respondent/Appellant, Pro Se.

Thomas M. Minor, Somerville, Tennessee, for the Petitioner/Appellee The Bank of Fayette County.

Judge: KIRBY

This is an action by the bank to recover against the debtor for defaulting on a loan. The plaintiff bank made a loan to the defendant debtor for the purchase of real property, and the property was pledged to secure the loan. The debtor defaulted on the loan, the property was sold, and the proceeds were applied to the debt. The bank filed this lawsuit against the debtor for the deficiency. After a bench trial, the trial court entered a judgment in favor of the bank. The debtor now appeals, arguing that the trial court erred in failing to grant him a continuance in order to obtain counsel. We affirm.

http://www.tba2.org/tba_files/TCA/2011/bankoffayettecounty_063011.pdf

CADLEROCK, LLC v. SHEILA R. WEBER

Court: TCA

Attorneys:

Oliver D. Adams, Knoxville, Tennessee, for the appellant, Cadlerock, LLC.

Scott D. Hall, Sevierville, Tennessee, for the appellee, Sheila R. Weber.

Judge: MCCLARTY

The plaintiff, an assignee to a foreign judgment, filed a petition to domesticate the judgment pursuant to the Uniform Enforcement of Foreign Judgments Act, found at Tenn. Code Ann. Section 26-6-101 et seq. The defendant objected to the enrollment of the foreign judgment because it was assigned. After a hearing on the matter, the trial court denied the plaintiff's motion to domesticate the foreign judgment and dismissed the case. The plaintiff appeals. Our review of the record reveals that the plaintiff properly followed the statutory requirements to enroll a foreign judgment. Accordingly, the trial court erred. We reverse.

http://www.tba2.org/tba_files/TCA/2011/cadlerock_063011.pdf

LISA FAYE ROLAND CAMP v. RANDY COLEMAN CAMP

Court: TCA

Attorneys:

Michael A. Carter, Crocker & Carter, PLLC, Milan, Tennessee, for Plaintiff/Appellant, Lisa Faye Roland Camp.

Sam J. Watridge, Watridge Law Firm, Humboldt, Tennessee, for Defendant/Appellee, Randy Coleman Camp.

Judge: KIRBY

This post-divorce appeal involves recusal of the trial judge. In the initial divorce proceedings, the trial judge recused himself based in part on friendship with the parties. A special judge was appointed to hear the case. The special judge tried the divorce, divided the parties' property, and awarded the wife alimony in futuro. Several years later, the husband filed a petition to terminate or modify his alimony obligation. The trial judge who had previously recused himself declined to do so for the post-divorce proceedings. After a hearing, the trial judge terminated the husband's alimony obligation. The wife appeals, arguing that the trial judge should have recused himself and that he erred in terminating the alimony. We reverse the trial court's decision on recusal, and therefore vacate the trial court's ruling on the husband's petition to modify.

http://www.tba2.org/tba_files/TCA/2011/campl_063011.pdf

JORDAN ASHTON DANELZ v. JOHN GAYDEN

Court: TCA

Attorneys:

Adam N. Cohen and Mitchell D. Moskovitz, Memphis, Tennessee, for the appellant, Jordan Ashton Danelz.

Andrew C. Clarke, Memphis, Tennessee, for the appellee, John Gayden.

Judge: STAFFORD

This is a parentage action in which an adult child seeks retroactive child support from his biological father. The juvenile court dismissed the petition. After a thorough review of the record, we vacate the judgment of the juvenile court for failure to join a party pursuant to Tennessee Rule of Civil Procedure 19, and we remand for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2011/danelzj_063011.pdf

IN RE: EMILY L. IN RE: D.L.

Court: TCA

Attorneys:

Kara L. West, Chattanooga, Tennessee, for the appellant, J.DL.

Leslie B. McWilliams, Chattanooga, Tennessee, for the appellees, D.C. and J.C.

Rachel Brock, Chattanooga, Tennessee, for the minor children, D.L. and E.L.

Judge: FRANKS

In this Petition to terminate the parental rights of the father to two minor children, the Trial Court, following an evidentiary hearing, terminated the parental rights of the father on the statutory grounds of abandonment and held that it was in the best interests of the children that the father's parental rights be terminated. The father appealed, and upon our review we affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2011/emilyl_063011.pdf

KATHY H. WRIGHT v. JAMES CHARLES WRIGHT

Court: TCA

Attorneys:

Thomas F. Mabry, Seymour, Tennessee, for the appellant, Kathy H. Wright.

Craig L. Garrett, Maryville, Tennessee, for the appellee, James Charles Wright.

Judge: MCCLARTY

In this post-divorce proceeding, the trial court granted the father sole custody and decision making authority over the parties' minor children. The mother appealed. We affirm the judgment of the trial court on all issues.

http://www.tba2.org/tba_files/TCA/2011/wrightk_063011.pdf

BRYANT ADAIR v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Terita M. Hewlett, Memphis, Tennessee, for the appellant, Bryant Adair.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Bryant Adair, appeals from the Shelby County Criminal Court's dismissal of his untimely filed petition for post-conviction relief from his convictions for especially aggravated kidnapping and two counts of aggravated robbery and from his effective sentence of thirteen and one-half years. On appeal, the Petitioner contends that principles of due process require the tolling of the applicable statute of limitations. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/adairb_063011.pdf

KEITH EZELL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mary Peterson Kleinman (on appeal) and Matthew Ian John (at hearing), Memphis, Tennessee, for the appellant, Keith Ezell.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Rachel Newton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Keith Ezell, appeals from the Shelby County Criminal Court's denial of his petition for post-conviction relief from his convictions for seven counts of especially aggravated kidnapping and four counts of aggravated robbery, for which he is serving an effective 198-year sentence. He contends that his trial attorney failed to provide effective assistance because counsel did not advise him that accepting a guilty plea offer was in his best interest and did not accurately advise him of the likelihood he would receive a greater sentence after a trial than if he accepted the plea offer. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/ezellk_063011.pdf

STATE OF TENNESSEE v. JAMES EDWARD FARRAR, JR.
With Concurring and Dissenting Opinion

Court: TCCA

Attorneys:

John H. Norton, III, Shelbyville, Tennessee, for the appellant, James Edward Farrar, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Chuck Crawford, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, James Edward Farrar, Jr., appealed the Bedford County Circuit Court's revocation of his probation. This court reversed the trial court's revocation, concluding that the State failed to establish a violation of probation by a preponderance of the evidence and that the trial court abused its discretion by revoking probation. See State v. James Edward Farrar, Jr., No. M2009-01285-CCA-R3-CD, slip op. 6 (Tenn. Crim. App., Nashville, Sept. 10, 2010). The State filed an application for permission to appeal to our supreme court. On April 14, 2011, the supreme court granted the State's application and remanded the case to this court for reconsideration in light of the supreme court's recent decision in State v. Teddy Ray Mitchell, ___ S.W.3d ___, No. E2008-02672-SC-R11-CD (Tenn. Mar. 21, 2011). We have reconsidered our prior opinion in light of Teddy Ray Mitchell, and following our review, we affirm the judgment of the trial court, although we reject part of that court's rationale for the revocation.

http://www.tba2.org/tba_files/TCCA/2011/farrarj_063011.pdf

JOSEPH M. TIPTON, P.J., concurring and dissenting
http://www.tba2.org/tba_files/TCCA/2011/farrarj_CONCURandDISSENT_063011.pdf

STATE OF TENNESSEE v. CARL LEE HOUGHTON

Court: TCCA

Attorneys:

Mike Mosier, Jackson, Tennessee, for the appellant, Carl Lee Houghton.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; James G. Woodall, District Attorney General; and Angela Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Carl Lee Houghton, was found guilty by a Henderson County Circuit Court jury of aggravated sexual battery, a Class B felony. See T.C.A. Setion 39-13-504(a)(4) (2010). He was sentenced as a Range I, standard offender to ten years' confinement in the Department of Correction. On appeal, he contends that (1) the evidence was insufficient to support his conviction, (2) the trial court erred by denying his motion to suppress his confession because it was not made voluntarily, and (3) the trial court erred in sentencing by not giving more weight to applicable mitigating factors. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/houghtonc_063011.pdf

STATE OF TENNESSEE v. DAVID EARL OFFUTT

Court: TCCA

Attorneys:

James O. Martin, III (on appeal) and Charles Walker (at sentencing), Nashville, Tennessee, for the appellant, David Earl Offutt.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

This case is before the court after remand to the Davidson County Criminal Court for sentencing after this court reinstated three convictions for attempted incest that the trial court incorrectly merged with three attempted rape convictions. On remand, the trial court sentenced the Defendant, David Earl Offutt, to serve four years for each of the Class D felony attempted incest convictions and ordered that the sentences be served consecutively to each other but concurrently with an effective eighteen-year sentence the Defendant was serving for other convictions. See T.C.A. Sections 39-12-101 (attempt), 39-15-302 (2010) (incest). On appeal, the Defendant contends that the trial court erred by imposing maximum sentences for his attempted incest convictions and ordering that they be served consecutively. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/offuttd_063011.pdf

STATE OF TENNESSEE v. CARRIE D. YOUNG

Court: TCCA

Attorneys:

James W. Hodges, Jr., Memphis, Tennessee, for the appellant, Carrie D. Young.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Walt Freeland, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Carrie D. Young, stands convicted of possession with intent to deliver 0.5 grams or more of cocaine, a Class B felony. The trial court sentenced her as a Range I, standard offender to an eight-year sentence, to serve 350 days with the remainder suspended. On appeal, the defendant argues that the trial court erred in denying the defendant's motion to suppress and that the evidence was insufficient to support her conviction. Specifically, she argues that the trial court erred in finding that law enforcement had probable cause to do a field strip search of her, that the trial court erred in finding that the confidential informant was reliable, and that the proof was insufficient to show that she intended to deliver the cocaine. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/youngc_063011.pdf

TODAY'S NEWS

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Lewis King names new Nashville managing partner

Lisa Ramsay Cole has been named managing partner of the Nashville office of Lewis, King, Krieg and Waldrop PC. An 18-year veteran of the firm, Cole is a graduate of the TBA's Leadership Law program and is active in the community, serving as chair-elect of the Board of the Sexual Assault Center, among other involvements. "This appointment makes Lisa one of only a few women in our state to hold such a position in a law firm of our size," said Deborah Stevens, president and managing shareholder of the firm, which has offices in Knoxville, Nashville and Sevierville. "We selected Lisa for this position because of the leadership capabilities she has shown in her law practice and in her community activities."

Wells to retires as Sullivan County DA

Sullivan County District Attorney General H. Greeley Wells Jr. retires today after more than three decades of putting bad guys behind bars in the Second Judicial District, which encompasses Sullivan County. Sullivan County Deputy District Attorney Barry Staubus will finish out the district attorney general's current term, which expires in 2014.