New online CLE courses will help you meet 2005 requirements

Many court cases are decided, not at trial, but at pretrial hearings on search and seizure questions. Learn what the latest cases hold in this important area of criminal procedure from this new course. Also new is a course that addresses the effect of the adoption of comparative fault on those common law tort doctrines that you learned in Torts 101. Scenarios and hypotheticals will raise issues and illustrate the problems that can arise when an important change in the law occurs by judicial fiat, leaving other doctrines uncertainly affected or even abrogated.

http://www.tnbaru.com/coursecatalog.php#

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, 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 http://www.tba.org/getpassword.mgi.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
07 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
01 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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

RICHARD A. DEMONBREUN v. METROPOLITAN BOARD OF ZONING APPEALS OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE

Court: TCA

Attorneys:

Karl F. Dean, Director of Law, J. Brooks Fox and John L. Kennedy, Metropolitan Attorneys, Nashville, Tennessee, for the appellant, The Metropolitan Board of Zoning Appeals of The Metropolitan Government of Nashville and Davidson County.

Robert W. Rutherford, Nashville, Tennessee, for the appellee, Richard A. Demonbreun.

Judge: CHARLES D. SUSANO, JR.,

The Metropolitan Davidson County Board of Zoning Appeals (“the BZA”) granted Richard A. Demonbreun (“the Landowner”) a special exception permit to use his residentially-zoned property as a special event site. The Landowner filed a petition for writ of certiorari and supersedeas, challenging the validity of several restrictions imposed upon the permit. The trial court held that several of the restrictions were unsupported by material evidence, and thus, according to the trial court, were arbitrarily imposed by the BZA. The BZA appeals the trial court’s determination with respect to the conditions found to be arbitrary. We affirm in part and reverse in part.

http://www.tba2.org/tba_files/TCA/2005/demonbr120805.pdf


IN RE ESTATE OF EDWARD LOUIS GREENAMYRE

Court: TCA

Attorneys:

Rankin P. Bennett, Cookeville, Tennessee, for the appellant, Gretta Guyton Stanger.

Joy Buck Gothard, Cookeville, Tennessee, for Anna L. Ham.

Kenneth S. Williams, Cookeville, Tennessee, for the appellees, Jiro Ishibashi and Hideo Ishibashi.

Dale Bohannon, Cookeville, Tennessee, for the appellee, Carol Gibbons.

Judge: WILLIAM C. KOCH, JR.

This appeal involves a dispute regarding the fate of specific bequests in a will prepared by a college professor without the assistance of counsel. The professor’s mental capacity declined after he prepared the will, and the Chancery Court for Putnam County appointed a conservator for the professor who, with the court’s approval, auctioned off his personal property, including property subject to specific bequests in the professor’s will. After the professor died, his executrix petitioned the trial court to construe several provisions of his will. The trial court heard the matter without a jury and, relying on In re Estate of Hume, 984 S.W.2d 602 (Tenn. 1999), concluded that several of the specific bequests had been adeemed by extinction. The trial court also concluded that the parties attorney’s fees and the court costs should be paid from the intestate funds in the estate. On this appeal, one of the beneficiaries of an adeemed bequest takes issue with the court’s conclusion that she was not entitled to the proceeds from the sale of the property bequeathed to her and that she was not entitled to recover all of her attorney’s fees. The professor’s sole surviving heir at law takes issue with the trial court’s decision to award this beneficiary any attorney’s fees. We have determined that the trial court’s decision regarding the fate of the specific bequests of personal property is correct but that the trial court erred with regard to the award of attorney’s fees.

http://www.tba2.org/tba_files/TCA/2005/greenamyree120805.pdf

Dissenting opinion
http://www.tba2.org/tba_files/TCA/2005/greenamyreeDIS120805.pdf


IN RE: ESTATE OF RICHARD L. LEATH,, ET AL. v. DAVID LEATH

Court: TCA

Attorneys:

Larry E. Parrish of Memphis, Tennessee for Appellant, David Leath, Individually and as Executor of Estate of Richard Leath

John S. Wilder, Sr., and Lee S. Saunders of Somerville, Tennessee for Appellees, Michael Tapp, Bryant Tapp, Raymond Tapp, Richard Leath and Sarah Jane Leath

Judge: W. FRANK CRAWFORD

This case concerns the payment of income taxes, including penalties and interest, incurred by an estate. The trial court held that the taxes and interest due were to be prorated among the various heirs, devisees and distributees in proportion to the amount of the distribution that each party received. The trial court further held that all penalties on the taxes were to be paid by David Leath, executor of the Estate of Richard L. Leath, individually. Lastly, the trial court ordered that the court costs were to be paid one-half by the executor and one-half by the other heirs and distributees. The parties appeal. We affirm in part, reverse in part, and remand.

http://www.tba2.org/tba_files/TCA/2005/leathr120805.pdf


LIPMAN BROTHERS, INC. v. ARETE AGENCIES, INC

Court: TCA

Attorneys:

Eugene N. Bulso, Jr. And Barbara Hawley Smith, Nashville, Tennessee, for the appellant, Lipman Brothers, Inc.

Thomas I. Carlton, Jr. And Ben M. Rose, Nashville, Tennessee, for the appellee, The Hartford Insurance Company.

Judge: DAVID R. FARMER

Plaintiff Lipman Brothers, Inc. purchased 1,156 cases of French wine and hired Italia Di Navigazione, S.p.A. (“Italia”) to ship the wine to the United States from France. Italia subsequently hired Defendant Arete Agencies, Inc. (“Arete”) to transport the wine to Plaintiff’s Nashville warehouses. Arete placed the wine on a train bound for Nashville but, after reaching its destination, the wine was never delivered to Plaintiff and ultimately spoiled after setting outside in the summer heat for thirty-six days. Arete’s insurance provider, The Hartford Insurance Company (“Hartford”), denied coverage for the incident. Plaintiff later obtained a judgment against Arete and, after learning that Arete was unable to pay, issued a writ of garnishment against Hartford. The trial court subsequently quashed Plaintiff’s writ after concluding that the debt was “contingent” because Plaintiff failed to first institute a declaratory judgment action to interpret the disputed insurance contract before seeking garnishment. We reverse.

http://www.tba2.org/tba_files/TCA/2005/lipmanbrothers120805.pdf


STATE OF TENNESSEE v. JEFFERY LYNN ANDERSON

Court: TCCA

Attorneys:

Timothy Boxx (on appeal) and Charles S. Kelly, Sr. (at trial), Dyersburg, Tennessee, for the appellant, Jeffery Lynn Anderson.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: J.C. MCLIN

The defendant, Jeffery Lynn Anderson was convicted by a jury of one count of burglary of a motor vehicle. On appeal, the defendant challenges the sufficiency of the convicting evidence. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/andersonj120805.pdf


STATE OF TENNESSEE v. GUSTAVO CHAVEZ

Court: TCCA

Attorneys:

Guy T. Wilkinson, District Public Defender; Richard W. DeBerry, Assistant District Public Defender, for the appellant, Gustavo Chavez.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Robert Radford, District Attorney General; and Jerry W. Wallace, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: J.C. MCLIN

This case is before us after remand by the Tennessee Supreme Court. The defendant, Gustavo Chavez, pled guilty to one count of aggravated sexual battery, a Class B felony. He was sentenced to ten years at 100% to be served in the Department of Corrections. On appeal, this Court originally affirmed the defendant’s conviction but modified his sentence to eight years due to our determination that the trial court improperly applied a statutory enhancement factor in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Subsequently, our supreme court held in State v. Gomez, 163 S.W.3d 632 (Tenn. 2005) that Tennessee’s sentencing scheme constitutes a non-mandatory scheme which does not violate the Sixth Amendment right to a jury trial as interpreted by Blakely. Accordingly, our supreme court remanded this case for reconsideration in light of Gomez. Upon consideration of Gomez, we affirm the conviction and sentence as originally imposed by the trial court.

http://www.tba2.org/tba_files/TCCA/2005/chavezg120805.pdf


STATE OF TENNESSEE v. LARANDA CONNER

Court: TCCA

Attorneys:

Mike Mosier, Jackson, Tennessee, for the appellant, Laranda Conner.

Paul G. Summers, Attorney General and Reporter; Brian C. Johnson, Assistant Attorney General; James G. Woodall, District Attorney General; and Jason White, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: ALAN E. GLENN

The defendant, Laranda Conner, pled guilty to DUI, a Class A misdemeanor, and was sentenced to eleven months, twenty-nine days in the county jail with all but forty-eight hours suspended. As a condition of her guilty plea, she sought to reserve as a certified question of law whether the trial court erred in overruling her motion to suppress the results of a blood-alcohol test taken without her consent but pursuant to medical treatment, which allegedly constituted an illegal search and seizure. Upon review of the record, we conclude that the defendant failed to properly reserve a question of law. Accordingly, we dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2005/connerl120805.pdf


QUENTIN L. HALL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Quentin L. Hall, T.D.O.C., Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William L. Gibbons, District Attorney General; and Edgar A. Peterson, IV, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: J.C. MCLIN

The petitioner, Quentin L. Hall, pled guilty to first-degree murder and was sentenced to life imprisonment with the possibility of parole. Approximately eight years later he filed a petition for post-conviction relief, which the post-conviction court denied. On appeal, the petitioner claims the post-conviction court erred in dismissing his petition as untimely. Because the facts of this case do not warrant tolling the post-conviction statute of limitations, we affirm the decision of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2005/hallq120805.pdf


LARRY JOE JONES v. DAVID MILLS, WARDEN

Court: TCCA

Attorneys:

Larry Joe Jones, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.

Judge: J.C. MCLIN

The petitioner, Larry Joe Jones, appeals from the trial court’s summary dismissal of his pro se petition for writ of habeas corpus. Following our review, we affirm the trial court’s judgment.

http://www.tba2.org/tba_files/TCCA/2005/jonesl120805.pdf


STATE OF TENNESSEE v. STEPHANIE ANN MAYS

Court: TCCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the Appellant, State of Tennessee.

James T. Powell, Union City, Tennessee, for the Appellee, Stephanie Ann Mays.

Judge: DAVID G. HAYES

The State appeals the suppression of evidence by the Obion County Circuit Court. The Defendant, Stephanie Ann Mays, was arrested for criminal trespass, and a search of Mays’ person followed, which revealed the presence of a quantity of cocaine and marijuana. After an evidentiary hearing, the trial court granted Mays’ motion to suppress and dismissed the charges. The State argues that because the police had probable cause to arrest Mays, the resulting search and seizure of the evidence was valid. After review, we conclude that Mays’ arrest for trespass, which was based upon an erroneously generated police document, was invalid as no probable cause existed to arrest. As such, the evidence was properly suppressed. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2005/mayss120805.pdf


STATE OF TENNESSEE v. ALICE IRENE THOMAS

Court: TCCA

Attorneys:

Langdon S. Unger, Jr., Martin, Tennessee, for the appellant, Alice Irene Thomas.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: NORMA MCGEE OGLE

A Weakley County Circuit Court jury convicted the appellant, Alice Irene Thomas, of making a false report, a class D felony. The trial court sentenced her as a Range II, multiple offender to six years. The appellant appeals, claiming that the evidence is insufficient to support the conviction. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/thomasa120805.pdf


Attorney General Opinion 05-171

TN Attorney General Opinions

Date: 2005-12-08

Opinion Number: 05-171

http://www.tba2.org/tba_files/AG/2005/ag_05-171.pdf

Judicial Ethics Committee Advisory Opinion No. 05-03

Court: JEO

Attorneys:





Judge:

What effect does the case of Republican Party of Minnesota v. White, 536 U.S. 765 (2002), have on Canon 5A(3)(d), the Pledges/Promises Provision of the Tennessee Code of Judicial Conduct?

http://www.tba2.org/tba_files/Ethics/2005/jeo_05-03_120805.pdf


TODAY'S NEWS

Legal News
Upcoming CLE Programs

Legal News
Committee clarifies what judges can say on the campaign trail
The Tennessee Judicial Ethics Committee said today that the "pledges or promises" provision of the Tennessee Code of Judicial Conduct survives free speech scrutiny under the U.S. Supreme Court decision in Republican Party of Minnesota v. White, and that judicial candidates should not make pledges promises or commitments that could be interpreted as a prejudgment. Click on the link below to read the full opinion.

At issue was the provision of the Canon 5A(3)(d) that prohibits candidates for judicial office from making "pledges or promises of conduct in office other than fair and impartial performance of the duties of office." The Judicial Ethics Committee is established under Tenn. Sup. Ct. Rule 9, section 26.6 to give advice on proper professional conduct by judges. Its opinions "constitute a body of principles and objectives upon which judges can rely for guidance." TBA President Bill Haltom applauded the opinion saying "the TBA is offering CLE, encouraging debate and considering other steps aimed at continuing Tennessee's tradition of a fair, impartial and independent judiciary. This opinion helps to clarify the obligations of judicial candidates."
jeo_05-03_120805.pdf
TBA offers Judicial Campaign Ethics Seminar
The TBA is sponsoring a day-long Judicial Campaign Ethics CLE seminar this Saturday at the Frist Center for the Visual Arts in Nashville. Find our more or register online.
judicialcampaign_2005.html
Poore new bar prez in Cumberland County
Kevin Poore of Crossville is the new president of the Cumberland County Bar Association. He can be reached at (931) 707-2889 or kpoore@frontiernet.net

Upcoming CLE Programs
Special offer for last-minute CLE program
TennBarU is offering more than 150 hours of video replays (100+ ethics hours) between Dec. 27 and Dec. 30 at the Tennessee Bar Center in Nashville. We still need moderators to fill some of the three hour shifts -- moderators will earn 6 hours credit for each shift. Interested? Call TennBarU Administrator Kathleen Caillouette at (615) 383-7421 and schedule your shift today.
endofyear_2005.html

 
 
UNSUBSCRIBE TO TBAToday? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba2.org/tbatoday/unsub_tbatoday.php

TBALink HomeContact UsPageFinderWhat's NewHelp
 
 
© Copyright 2005 Tennessee Bar Association