TAM-BYTES January 7, 2013 Vol. 16, No.

1
IN THIS WEEKS TAM-Bytes * In case in which mother filed motion to modify child support for parties child, Court of Appeals holds trial court erred in imposing trust on funds gifted to child by her maternal grandmother, thus requiring mother to obtain court order to use any of money during childs minority; * Court of Criminal Appeals says exigent circumstances did not exist justifying searching of defendants residence by drug task force agent without warrant when state failed to present any evidence about dangers strong odor or soaking Sudafed posed to agent, other officers at scene, defendants neighbors, or anyone in surrounding vicinity; * Court of Criminal Appeals, in two cases, says trial judge erred in merging incest conviction into rape of child conviction; * Court of Criminal Appeals says defendants Sixth Amendment right to counsel is offense specific and cannot be invoked once for all future prosecutions because it does not attach until prosecution is commenced; * In DUI case, Court of Criminal Appeals says that while police accident report was itself inadmissible as evidence, police officer can testify as to his personal recollection of accident scene or accident investigation; and * Sixth Circuit, in case of first impression, holds Congress has not waived sovereign immunity for breach-of-settlement-agreement claims brought under Title VII against federal government as employer.

COURT OF APPEALS EMPLOYMENT: When plaintiff, who worked in parking and traffic control for University of Tennessee (UT) events, alleged that he had intimate relationship with female co-worker and that after relationship it ended, co-worker and three of her friends who were also co-workers, set out to get plaintiff fired, and plaintiff, after he lost his job, filed suit against UT and four individuals, trial court erred in dismissing plaintiffs retaliatory discharge claim against UT because allegation that whistleblowing activity was exclusive cause of termination is equivalent of allegation that it was sole cause of termination, and any allegation to contrary is properly construed as alternative allegations, especially in light of allegations that any other reason given for termination was pretext; trial court properly dismissed other claims against UT, i.e.,

those based on acts of individuals, because all of conduct alleged is intentional, and hence, UT is immune; trial court erred in holding that all claims against all individuals are barred by immunity, and to extent such claims against individuals, or some of them, include allegations of willful, malicious, or criminal acts or omissions or for acts or omissions done for personal gain, those claims survive for further proceedings in trial court on remand; trial court correctly ruled that complaint did not state claim against one defendant co-worker for malicious prosecution as order dismissing order of protection does not reflect that plaintiff was innocent of wrongdoing as defendant agreed to dismissal. Phelps v. Newman, 1/3/13, ES, Susano, 12 pages.
http://www.tncourts.gov/sites/default/files/phelpsjeopn.pdf

COMMERCIAL LAW: Trial court properly interpreted commercial lease agreement, which does not require tenant (lessee) to pay landlords Tennessee income taxes, franchise taxes, inheritance taxes, or transfer taxes, as requiring lessee to pay landlords excise tax; excise tax is not income tax and does not fall within category of annual reporting or other fees in connection with maintaining Landlords organizational existence; fact that failure to pay excise tax may result in revocation of companys charter under TCA 67-4-2016(c) does not make excise tax fee in connection with maintaining corporate existence; leases express exclusion of franchise tax from required payments by lessee implies inclusion of excise tax. J-Star Holdings LLC v. The Pantry Inc., 1/2/13, MS, Bennett, 8 pages.
http://www.tncourts.gov/sites/default/files/j-star_opn.pdf

FAMILY LAW: In case in which mother filed motion to modify child support for parties child, trial court erred in imposing trust on funds gifted to child by her maternal grandmother, thus requiring mother to obtain court order to use any of money during childs minority; mother is already accountable for funds given to child by grandmother and must comply with mandates of TCA 34-1-102(a), stating that funds of minor held by guardian may not be expended to relieve or minimize obligation of parent(s) to support minor, and there is no evidence that mother has failed to adhere to this statutory prohibition; evidence that mother placed childs funds in account along with other funds is not sufficient to show misuse of those funds. Carter v. Carter, 12/28/12, MS, Bennett, Clement not participating, 15 pages.
http://www.tncourts.gov/sites/default/files/carterm_opn.pdf

CIVIL PROCEDURE: In case in which plaintiffs, who purchased home in 1994, filed suit against sellers alleging several causes of action after they discovered extensive fire damage to home in 2010, trial court erred in dismissing suit on basis of statute of limitation; at this stage of proceedings, there was nothing to indicate that reasonable person would have discovered allegedly concealed fire damage, which was behind the cabinets, in the walls and just underneath the linoleum floor, prior to when it was discovered by plaintiff, and hence, it was premature for trial court to

dismiss complaint for failing to exercise reasonable diligence in discovering injury. Eldrige v. Savage, 12/28/12, WS at Nashville, Highers, 9 pages.
http://www.tncourts.gov/sites/default/files/eldridgealisaopn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: In case in which defendant pled guilty to possession of .5 gram or more of methamphetamine with intent to sell, because evidence of exigent circumstances does not exist justifying searching of defendants residence by drug task force agent (Uselton) without warrant, defendants conviction is reversed; although there was strong odor of anhydrous ammonia and starter fluid emanating from residence, which could be smelled from significant distance, by time Uselton arrived at scene, police officers had removed defendants family from home, had determined that defendant was not present, and were waiting a distance away; state failed to present any evidence about dangers strong odor or soaking Sudafed posed to Uselton, other officers at scene, defendants neighbors, or anyone in surrounding vicinity. State v. Hawks,1/2/13, Jackson, Ogle, 7 pages.
http://www.tncourts.gov/sites/default/files/hawksbradleyopn.pdf

CRIMINAL LAW: In case in which defendant was convicted of rape of child and incest, and trial judge merged two convictions and sentenced defendant to 25 years, trial judge erred in merging incest conviction into rape of child conviction when two offenses are legally and factually distinct and are not same for double jeopardy purposes; defendants incest conviction is reinstated, and case is remanded to trial court for resentencing on both convictions. State v. Breezee, 12/26/12, Jackson, Ogle, 11 pages.
http://www.tncourts.gov/sites/default/files/breezeedavidopn.pdf

CRIMINAL LAW: In case in which defendant was convicted of rape of child and incest, and trial judge merged two convictions and sentenced defendant to 10 years, trial judge erred in merging incest conviction into rape of child conviction when two offenses are legally and factually distinct and are not same for double jeopardy purposes; defendants incest conviction is reinstated, and case is remanded to trial court for resentencing on both convictions. State v. Breezee, 12/28/12, Jackson, Tipton, 10 pages.
http://www.tncourts.gov/sites/default/files/breezeeeugenedavidopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of theft, trial judge did not err in denying defendants motion to suppress evidence seized by police during search of her property under plain view doctrine; although officers decision to move from front door of defendants residence to back door while conducting knock and talk is somewhat troubling, it is plain from testimony and exhibits that

what parties refer to as back door of defendants residence was actually more akin to side door, as it was visible from public street (because defendants house was located on corner lot), there was path leading to it, and it was not fenced-in; portion of defendants back yard that was not fenced in was implicitly open to public, and in this sense, door located there functioned as traditional front door for constitutional purposes. State v. Ronewicz, 12/26/12, Jackson, Williams, 26 pages.
http://www.tncourts.gov/sites/default/files/ronewiczopn7.pdf

CRIMINAL PROCEDURE: Allegations of negligence or innocent mistakes are insufficient to invalidate search warrant rather, defendant must show that reckless statements made in affidavit were necessary to finding of probable cause; defendants Sixth Amendment right to counsel is offense specific and cannot be invoked once for all future prosecutions because it does not attach until prosecution is commenced. State v. Mendenhall, 1/2/13, Nashville, Woodall, 38 pages.
https://www.tba.org/sites/default/files/mendenhallb_010213.pdf

CRIMINAL PROCEDURE: Trial court did not constructively amend count of indictment charging defendant with felony murder by instructing jury that aggravated burglary was predicate felony for charge indictment alleged that defendant killed victim in perpetration of a burglary when instruction on aggravated burglary as predicate felony did not modify essential element of charged crime of felony murder in manner that permitted jury to convict defendant on a ground not charged in the indictment; felony murder statute was applicable if defendant committed any burglary. State v. Swett, 1/4/13, Nashville, Witt, 24 pages.
http://www.tncourts.gov/sites/default/files/swettraymondleejropn.pdf

EVIDENCE: In DUI case, trial judge did not err in denying defendants motion to suppress all evidence obtained as result of officers investigation of traffic accident when, while police accident report was itself inadmissible as evidence, police officer can testify as to his personal recollection of accident scene or accident investigation; use at trial of any evidence officer gathered pursuant to his accident investigation did not violate defendants Fifth Amendment right against self-incrimination fact that information which operator of vehicle is required by statute to give is elicited by officer in ordinary course of accident investigation is no bar to its admission; testimony by police officers relating to admissions by drivers for purpose of preparing automobile accident reports is admissible as evidence at trial. State v. Davis, 12/27/12, Knoxville, Thomas, 14 pages.
http://www.tncourts.gov/sites/default/files/davisdeborahopn.pdf

CRIMINAL SENTENCING: Defendant may be ordered to serve 100% of his or her sentence under TCA 40-35-501(k)(2) which requires defendant convicted of aggravated robbery, on or after 1/1/08, to serve sentence at 100% if he or she has at least one prior aggravated robbery conviction regardless of whether offense was

committed with firearm; plain language of statute makes no mention of requirement that offense be committed with firearm. State v. Thompson, 1/3/13, Nashville, Smith, Ogle concurred in result, 11 pages.
http://www.tncourts.gov/sites/default/files/thompsonropn.pdf

CRIMINAL PROCEDURE: Evidence did not preponderate against post-conviction courts finding that counsel was not ineffective in case in which petitioner alleged that counsel failed to communicate petitioners acceptance of plea offer quickly enough; to view counsels action as anything other than reasonable would discourage zealous pursuit of plea negotiations in criminal cases; it would also erect unreasonable time frame within which defense counsel must relay his or her clients acceptance of offer to state and court or risk engaging in deficient performance. Pye v. State, 12/28/12, Nashville, McMullen, partial dissent by Thomas, 14 pages.
http://www.tncourts.gov/sites/default/files/pyebrittanyopn.pdf http://www.tncourts.gov/sites/default/files/pyebrittanydissentingopn.pdf

SIXTH CIRCUIT COURT OF APPEALS EMPLOYMENT: District court properly dismissed breach-of-settlement-agreement claims under Title VII by IRS employee against federal government based on alleged noncompliance with settlement agreement by IRS and on series of purported retaliatory actions taken by her supervisor; Congress has not waived sovereign immunity for breach-of-settlement-agreement claims brought under Title VII against federal government as employer. Taylor v. Geithner, 1/2/13, Moore, partial dissent by McKeague, 21 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0001p-06.pdf

REVENUE RULINGS TAXATION: Application of Tennessee sales and use tax to charges for electronic access to written materials. Department of Revenue Ruling 12-11, 7/24/12, 7 pages.
http://www.tn.gov/revenue/rulings/sales/12-11.pdf

TAXATION: Application of Tennessee sales and use tax to certain information technology staffing services. Department of Revenue Letter Ruling 12-19, 10/15/12, 8 pages.
http://www.tn.gov/revenue/rulings/sales/12-19.pdf

If you would like a copy of the full text of any of these opinions, simply click on the link provided or, if no link is provided, you may respond to this e-mail or call us at (615) 661-0248 in order to request a copy. You may also view and download the full text of any state appellate court decision by accessing the states web site by clicking here: http://www.tncourts.gov/