TennBarU Teleseminar: What's New in Estate Planning: Select
Developments
June 22 • Noon to 1 p.m. (Central Time) - Teleseminar

Estate planning practice is complex – and the substantive legal
changes affecting the practice are constant. Keeping abreast of
federal and state, tax and non-tax, legislative, regulatory, and case
law developments is a substantial challenge. This program is designed
to provide estate planners and estate and gift tax practitioners a
wide-ranging update on developments in the last 12 months. Led by two
leading authorities – from private practice Charles “Skip” Fox of
Schiff Hardin and from academia Professor Jeff Pennell of Emory
University School of Law in Atlanta – this program will highlight
major developments of interest to practitioners and written material
for later reference.

Today's Opinions: June 8, 2005
Volume 11 — Number 108
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
02 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • 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. • 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. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


STATE OF TENNESSEE v. KEVIN L. LAWRENCE

Court:TSC

Attorneys:                          

William D. Massey and C. Michael Robbins, Memphis, Tennessee (on
appeal); William D. Massey and Lorna McClusky, Memphis, Tennessee (at
trial), for the appellant, Kevin L. Lawrence.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; Phyllis
Gardner and Jennifer Nichols, Assistant District Attorneys General,
for the appellee, State of Tennessee

Judge: BIRCH

First Paragraph:

We granted permission to appeal in this case pursuant to Tennessee
Rule of Appellate Procedure 11 to determine whether the trial court
properly denied the defendant's motion to suppress evidence obtained
during the investigation of a shooting death. To resolve this issue,
we must determine whether the investigators had probable cause to
arrest the defendant and whether the delay in taking him before a
magistrate for a judicial determination of probable cause should
independently require the exclusion of the evidence obtained during
the first few hours of his detention. Because we are of the opinion
that the officers had probable cause to arrest the defendant, we
conclude that the evidence recovered at the scene was not subject to
suppression. As to the defendant's claim of "unreasonable delay," it
is obvious that the defendant was not taken before a magistrate for a
judicial determination of probable cause within a constitutionally
reasonable time. However, the evidence the defendant sought to
suppress was obtained during the first few hours of his arrest. Thus,
these evidentiary items were not tainted by exploitation of the
constitutional violation and are not, therefore, subject to
suppression. Accordingly, we affirm the judgment of the Court of
Criminal Appeals.

http://www.tba.org/tba_files/TSC/2005/lawrencek6805.pdf

OVERNITE TRANSPORTATION CO. v. TEAMSTERS LOCAL UNION NO. 480, ET AL.

Court:TSC

Attorneys:                          

Edmund L. Carey, Jr. and George Edward Barrett, Nashville, Tennessee,
for the Appellants- Defendants, Billy D. Cullen, Eddie Mims, Isom
Folsom, and Kennie George.

James Gerard Stranch, III and Mark Allen Mayhew, Nashville, Tennessee,
for the Appellant- Defendant, Teamsters Local Union No. 480.

Christopher Johlie and Melissa Crawford Mazzeo, Chicago, Illinois, and
Kenneth A. Weber, Nashville, Tennessee, for the Appellee-Plaintiff,
Overnite Transportation Company.

Judge: HOLDER

First Paragraph:

We granted this appeal to determine 1) whether a trial court's order
declining to hold an alleged contemnor in civil contempt may be
appealed; 2) whether compensatory damages for civil contempt are
available pursuant to Tennessee Code Annotated section 29-9-105 (1980
& 2000) from a contemnor who commits an act forbidden by a trial
court's order; and, if so, 3) whether those damages may be recovered
if the violation is not ongoing at the time of the hearing. We answer
these questions in the affirmative. Accordingly, we affirm the
judgment of the Court of Appeals and remand this case to the trial
court for further proceedings consistent with this opinion.

http://www.tba.org/tba_files/TSC/2005/overnitet6805.pdf

GREGORY D. BARGO and ANGELA R. BARGO v. LARRY SCHMITT CONSTRUCTION,
INC., LARRY SCHMITT and DONNA SCHMITT

Court:TCA

Attorneys:                          

William H. Horton, Chattanooga, Tennessee, for appellants. 

Hallie McFadden, Chattanooga, Tennessee, for appellees.

Judge: FRANKS

First Paragraph:

Grantors erected a house and driveway over an easement which was then
sold to grantees. Grantees brought an action for damages to encumbered
property and the Trial Court awarded grantees damages. We affirm.

http://www.tba.org/tba_files/TCA/2005/bargog6805.pdf

NATHAN & BRANDY HENDERSON V. QUEST EXPEDITIONS, INC.

Court:TCA

Attorneys:                          

H. Franklin Chancey, Cleveland, Tennessee, for appellants. 

Gary A. Cooper, Chattanooga, Tennessee, for appellee.

Judge: FRANKS

First Paragraph:

In this action for personal injuries allegedly due to defendant's
negligence, the Trial Court granted defendant summary judgment on the
grounds that plaintiffs had executed a Waiver and Release of Liability
which was required by defendant prior to plaintiffs' participation in
white water rafting. Plaintiffs have appealed, insisting the Release
is void as against the public policy of this State. We affirm.

http://www.tba.org/tba_files/TCA/2005/hendersonn6805.pdf

JEROME WILLIAM DEVEREAUX v. STATE OF TENNESSEE
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Jeffery S. Schaarschmidt, Chattanooga, Tennessee, for the appellant,
Jerome William Devereaux.

Paul G. Summers, Attorney General and Reporter; and Renee W. Turner,
Assistant Attorney General; Al Schmutzer, Jr., District Attorney
General; and Charles L. Murphy, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Jerome William Devereaux, pled guilty in the Jefferson
County Circuit Court to attempted rape of a child and received a
sentence of twelve years incarceration in the Tennessee Department of
Correction, with release eligibility after service of thirty percent
of his sentence. Subsequently, the petitioner filed a petition for
post-conviction relief, alleging that his trial counsel was
ineffective. The post-conviction court dismissed the petition. The
petitioner appeals the denial, arguing that his counsel was
ineffective in his advice concerning the petitioner's plea and that
the trial court's imposition of a twelve-year sentence violated the
dictates of Blakelyv. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004).
Upon review of the record and the parties' briefs, we affirm the
judgment of the post-conviction court.

http://www.tba.org/tba_files/TCCA/2005/devereauxj6805.pdf

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/2005/devereauxj_dis6805.pdf

STATE OF TENNESSEE v. KEITH SALTER

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender; and Tony N. Brayton,
Assistant Public Defender, Memphis, Tennessee (on appeal) and William
Gary Ball, Memphis, Tennessee (at trial) for the appellant, Keith
Salter.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Betsy Carnesale, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Keith Salter, was indicted in case No. 01-04363 on two
counts of theft of property over $1,000 but less than $10,000, a Class
D felony, and one count of felony evading arrest, a Class D felony.
Defendant was indicted in case No. 01-04364 on two counts of theft of
property over $10,000 but less than $60,000, a Class C felony.
Following a jury trial, Defendant was found guilty in case No.
01-04363 of one count of theft of property over $1,000 and one count
of felony evading arrest, and not guilty on the other felony theft
charge. Defendant was found guilty of both counts of felony theft in
case No. 01-04364. The trial court merged Defendant's conviction of
felony theft in count two of case No. 01-04364 with his felony theft
conviction in count one. Defendant was sentenced as a career offender
to twelve years for the felony theft conviction and twelve years for
the felony evading arrest conviction in case No. 01-04363. Defendant
was sentenced as a persistent offender to fifteen years for the theft
conviction in case No. 01-04364. The trial court ordered Defendant's
sentences in case No. 01-04363 to be served concurrently with each
other but consecutively to his felony theft sentence in case No.
01-04364 for an effective sentence of twentyseven years. On appeal,
Defendant argues (1) that the State failed to prove that the value of
the truck supporting his theft conviction in case No. 01-04363 was
over $10,000; (2) that the evidence was insufficient to establish his
identity as the perpetrator of the offenses; and (3) that the length
of his sentences is excessive. After a thorough review of the record,
we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/salterk6805.pdf

Increase in Fines Imposed on Traffic Violations Pursuant to Tenn. Code
Ann. S 68-55-301

Date: June 6, 2005

Opinion Number: 05-091

http://www.tba.org/tba_files/AG/2005/op91.pdf

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