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Wednesday, December 19, 2007

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Year-end CLE Fest can save you

If you are in danger of not getting your required CLE hours in before the end of the year, don't worry. On Dec. 26, 27, 28 and 31, from 7 a.m. to 7 p.m., the TBA will offer more than 150 hours of programming -- including more than 100 hours of ethics. Programs will show continuously in four separate rooms in the Tennessee Bar Center, 221 Fourth Ave., North, in Nashville. You can come when you like and watch as many programs as you like. For more information, go to

https://www.tba2.org/tennbaru/clefest_2007.html

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.

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

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.

TIMOTHY WADE KEYT V. NANCI SUZANNE KEYT

Court: TSC

Attorneys:

Michael W. Binkley, Nashville, Tennessee, for the appellant, Timothy Wade Keyt.

Rankin P. Bennett, Cookeville, Tennessee, for the appellee, Nanci Suzanne Keyt.

Judge: CLARK

We granted the application for permission to appeal in this divorce case to address two issues presented by Husband: (1) whether the increase, if any, in value of his separately-owned stock interest in the family-owned company for which he worked qualifies as marital property; and if so, (2) whether the chancellor correctly assessed the increase in value. Because we find that Husband's employment with the company in which he owned stock did not substantially contribute to the preservation and appreciation of the stock, we reverse the judgment of the Court of Appeals and remand this matter to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2007/keytt_121907.pdf

WADE dissenting
http://www.tba2.org/tba_files/TSC/2007/keytt_DIS_121907.pdf

STATE OF TENNESSEE V. JAMES EDWARD TAYLOR

Court: TSC

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the appellant, James Edward Taylor.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Pamela S. Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: CLARK

A jury convicted the Defendant, James Edward Taylor, of first degree felony murder and especially aggravated robbery. The Court of Criminal Appeals affirmed the Defendant's convictions. We granted permission to appeal and address two issues: (1) whether the trial court erred by allowing the jury to watch a videotape in which the Defendant appears in custody and wearing jail attire; and (2) whether the trial court erred in admitting hearsay testimony about the Defendant's familial relationship with Sabrina Lewis. We hold that the trial court did not err in admitting the videotape but did err in admitting the hearsay testimony. We conclude, however, that the trial court's error was harmless. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

http://www.tba2.org/tba_files/TSC/2007/taylorj_121907.pdf

ANTHONY DEAN v. GLEN TURNER, WARDEN, ET AL.

Court: TCA

Attorneys:

Anthony H. Dean, pro se, Whiteville, Tennessee.

Robert E. Cooper, Jr. and David H. Findley, Nashville, Tennessee, for the appellee, Glen Turner.

Judge: KIRBY

This is appeal involves a habeas corpus petition filed by a prisoner. The appellant prisoner filed a petition for a writ of habeas corpus in chancery court. The chancery court denied the prisoner's habeas petition. The prisoner appealed. We vacate the judgment and dismiss the petition, finding that the chancery court did not have jurisdiction.

http://www.tba2.org/tba_files/TCA/2007/deana_121907.pdf

DANIEL FRANCOEUR and HEATHER HALL v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Dawn Jordan, George Coffin, Assistant Attorneys General, Nashville, TN, for Appellant.

R. Ray Galbreath, Nashville, TN, for Appellees.

Judge: HIGHERS

This appeal involves a motorcycle rider and his passenger who were injured in an accident when they hit a large pothole on a state route highway. The rider and the passenger each filed claims with the Tennessee Claims Commission asserting that the State of Tennessee had failed to maintain the highway in a safe and proper condition. A Claims Commissioner determined that the pothole did constitute a dangerous condition on a state maintained highway pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(J), but she determined that the State was not liable under that subsection because there was no proof that it had notice of existence of the pothole. The Commissioner then found that the State was negligent in maintaining the highway under Tennessee Code Annotated section 9-8-307(a)(1)(I), and therefore it was liable for the plaintiffs' injuries. The State appeals. We reverse.

http://www.tba2.org/tba_files/TCA/2007/francoeurd_121907.pdf

CLAUDE L. GLASS v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Claude L. Glass, Knoxville, Tennessee, pro se Appellant.

Robert E. Cooper, Attorney General & Reporter, Michael Moore, Solicitor General, and Heather C. Ross, Senior Counsel, Nashville, Tennessee, for the Appellee, State of Tennessee.

Judge: SWINEY

In this action to recover child support payments from the State of Tennessee (the "State"), Claude L. Glass, ("Claimant") filed a claim with the State Division of Claims Administration alleging that the State had miscalculated his child support payments and wrongfully collected money from his wages, federal income tax returns, and rent payments. The Tennessee Claims Commission (the "Commission") held that the Commission did not have subject matter jurisdiction and dismissed the case. Claimant appeals. We hold that the Commission lacks subject matter jurisdiction for claims to recover alleged excess child support payments, and, therefore, the Commission did not err by dismissing this claim. Affirmed and remanded.

http://www.tba2.org/tba_files/TCA/2007/glassc_121907.pdf

ROBERT JOSEPH MULLINS v. BOBBY REDMON, ET AL.

Court: TCA

Attorneys:

Joseph R. Taggart of Jackson, Tennessee for Appellant, Robert Joseph Mullins.

Charles M. Purcell of Jackson, Tennessee for McNairy County School District.

John D. Richardson and Teresa A. Boyd, Memphis, Tennessee, for Bobby Redmon, Individually, and d/b/a R & R Truck Sales, and Anthony Pickens.

Judge: CRAWFORD

Plaintiff/Appellant, a student of McNairy County School District, filed a complaint for negligence against the Defendant/Appellee School District for injuries arising from an accident that occurred while the student was engaged in a work-based learning program. Finding that the actions of the School District did not cause the accident, the trial court granted summary judgment in favor of the School District. The student appeals. We affirm and remand.

http://www.tba2.org/tba_files/TCA/2007/mullinsr_121907.pdf

ROBERT ROYSDEN V. GLEN TURNER, WARDEN

Court: TCA

Attorneys:

Robert Roysden, pro se, Whiteville, Tennessee.

David H. Findley, Nashville, Tennessee, for the appellee, Glen Turner.

Judge: KIRBY

This is an appeal of a habeas corpus petition filed by a prisoner. The appellant prisoner filed a petition for writ of a habeas corpus in the chancery court. The chancery court denied the prisoner's habeas petition. The prisoner appealed. We vacate the judgment and dismiss the petition, finding that the chancery court did not have jurisdiction.

http://www.tba2.org/tba_files/TCA/2007/roysdenr_121907.pdf

ALAN P. WOODRUFF v. ANASTASIA INTERNATIONAL, INC.

Court: TCA

Attorneys:

Alan P. Woodruff, Esq., Sevierville, Tennessee, pro se Appellant.

Robert A. Crawford, Knoxville, Tennessee, for the Appellee, Anastasia International, Inc.

Judge: SWINEY

Alan P. Woodruff ("Plaintiff"), a Tennessee resident, filed suit in Sevier County Circuit Court for breach of contract and other claims against Anastasia International, Inc. ("Defendant" or "Anastasia"), a Kentucky corporation with its principal place of business in the United States in Maine. Defendant raised several affirmative defenses in its answer, including lack of personal jurisdiction and the forum selection clauses in the parties' two contracts. The forum section clauses provide for disputes between the parties to be litigated in Maine and Kentucky. Defendant then filed a Motion to Dismiss based on the forum selection clauses. On the same day, Defendant also filed a Motion for Order of Reference to Mediation "subject to its Motion to Dismiss, filed herewith." Several months later, Plaintiff filed a motion requesting the Trial Court to rule on Defendant's Motion to Dismiss. Six days before the hearing on defendant's Motion to Dismiss, Defendant filed a Supplement to Motion to Dismiss which raised the issue of personal jurisdiction and included an affidavit from Defendant's president setting forth facts in support of the lack of personal jurisdiction defense. Following the hearing, the Trial Court granted Defendant's Motion to Dismiss, holding that the Trial Court lacked personal jurisdiction over Defendant. The Trial Court taxed court costs to Plaintiff. On appeal, we affirm the decision of the Trial Court, although for reasons other than those given by the Trial Court. We hold that Defendant waived its lack of personal jurisdiction defense. However, we also hold that the forum selection clauses in the parties' contracts are valid and enforceable. Therefore, Tennessee is not the proper forum for this lawsuit, and we affirm the dismissal of Plaintiff's lawsuit. We also affirm the Trial Court's assessment of costs to Plaintiff. Affirmed and remanded.

http://www.tba2.org/tba_files/TCA/2007/woodruffa_121907.pdf

BRONZO GOSNELL v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Bronzo Gosnell, Mountain City, Tennessee, Pro Se.

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

Judge: THOMAS

The pro se petitioner, Bronzo Gosnell, appeals the Johnson County Criminal Court's summary dismissal of his petition for a writ of habeas corpus. The petitioner was convicted by a Greene County jury of second degree murder and sentenced to twenty-five years. He alleges that he is entitled to habeas corpus relief because his sentence was imposed in contravention to the United States Supreme Court's holding in Blakely v. Washington, 524 U.S. 296, 124 S. Ct. 2531 (2004). The trial court summarily dismissed the petition for failure to state a cognizable claim. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/gosnellb_121907.pdf

STATE OF TENNESSEE v. STEVEN CHRISTOPHER HIXON, ALIAS

Court: TCCA

Attorneys:

Steven Christopher Hixon (Alias), Pro Se.

Robert E. Cooper, Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Del Holley, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Appellant, Steven Christopher Hixon (alias), appeals from the Knox County Criminal Court's order denying his motion to receive pretrial jail credit. The Appellant contends that, pursuant to Tennessee Code Annotated section 40-23-101, the trial court erred by not applying pretrial jail credit to his sentences for aggravated burglary and theft. Following our review of the record and the parties' briefs, we conclude that the trial court did not have jurisdiction to rule on the Appellant's motion because the proper avenue for relief regarding the application of his pretrial jail credit is through the Uniform Administrative Procedures Act, Tennessee Code Annotated sections 4-5-101 to -325. Consequently, we vacate the trial court's order denying the Appellant's motion. We dismiss the appeal.

http://www.tba2.org/tba_files/TCCA/2007/hixons_121907.pdf

VERICO DEWAYNE JACKSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Joshua B. Spickler, Memphis, Tennessee, for the Appellant, Verico Dewayne Jackson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; and Greg Gilbert, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Verico Dewayne Jackson, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief. Jackson, who was convicted of first degree murder, is currently serving a sentence of life imprisonment with the possibility of parole. On appeal, he argues that he was denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that trial counsel was ineffective in: (1) failing to adequately communicate with Jackson and the investigator assigned to the case, resulting in a lack of preparation for trial; (2) failing to seek a severance in the case; and (3) failing to request and argue for certain lesser- included offense instructions. After review, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/jacksonv_121907.pdf

STATE OF TENNESSEE v. TONY SAMUEL

Court: TCCA

Attorneys:

Kari I. Weber, Assistant Public Defender, Somerville, Tennessee, for the appellant Tony Samuel.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Elizabeth Rice, District Attorney General; and Tracey Brewer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The defendant was indicted for one count of aggravated rape and one count of aggravated kidnapping of his live-in girlfriend�s fourteen-year-old, mentally-challenged daughter. A jury convicted the defendant of both indicted offenses. The trial court sentenced the defendant to thirty-five years for the aggravated rape and eighteen years for the aggravated kidnapping to be served concurrently with each other, but consecutively to a previous sentence. On appeal, the defendant argues: (1) that the evidence was insufficient to sustain his convictions of aggravated rape and aggravated robbery; (2) that the trial court erred in allowing questions to jurors in voir dire regarding mental retardation; (3) that the trial court erred in allowing testimony regarding the victim's I.Q. test scores and capabilities; (4) that the trial court erred in allowing testimony by a State witness regarding statements of the victim; (5) that the trial court erred in allowing testimony from a lay witness regarding recency and appearance of the injury to the victim; (6) that the trial court erred in determining that the victim was competent to testify; and (7) that the trial court erred in sentencing the defendant to an enhanced and consecutive sentence. After a thorough review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/samuelt_121907.pdf

STATE OF TENNESSEE v. BILLY R. SHELLEY

Court: TCCA

Attorneys:

Nat H. Thomas, Kingsport, Tennessee, for the appellant, Billy R. Shelley.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; William B. Harper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In December 2003, a Sullivan County jury convicted the defendant of theft of property over $1,000, a class D felony. The defendant was sentenced as a Range II, multiple offender to eight years in the Department of Correction. This court affirmed the defendant's conviction and sentence on appeal. State v. Billy R. Shelley, No. E2004-00145-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App. July 29, 2005), app. denied, (Tenn. Dec. 19, 2005). In February 2007, the trial court entered an order granting the defendant post-conviction relief and the right to file a delayed motion for new trial and a delayed appeal. The trial court denied the motion for a new trial, and this appeal follows. On appeal, the defendant alleges that the trial court erred in admitting certain hearsay statements into evidence during the defendant's trial. After reviewing the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/shelleyb_121907.pdf

Practice of Law; Medicaid Eligibility

TN Attorney General Opinions

Date: 2007-12-19

Opinion Number: 07-166

http://www.tba2.org/tba_files/AG/2007/ag_07_166.pdf

TODAY'S NEWS

Legal News
Legislative News
Knox Term Limits
Disciplinary Actions
TBA Member Services

Legal News

Selection commission to meet in February

The Judicial Selection Commission will meet Feb. 8 at 9 a.m. EST at the Holiday Inn Mountain View in Cleveland to initiate the process of filling the 10th Judicial District Circuit Court vacancy created by the resignation of Judge John B. Hagler Jr. The hearing will be open to the public.

For more information visit the AOC's website

DA abandons leak probe, court blocks tape's release

According to the Chattanooga Times Free Press, 10th Judicial District Attorney General Steven Bebb withdrew his request today for a TBI investigation into the leak of a tape recording that led to the resignation of Circuit Court Judge John Hagler. A day after asking the TBI to begin an investigation, Bebb said there wasn't enough manpower to conduct the probe and it would be too difficult to prove a crime. He did, however, request a forensic review of the original recording to determine if the tape had been edited or spliced. Read the paper's report . In other news, a judge yesterday blocked the city of Chattanooga from releasing the tape to the paper and set a Jan. 2 hearing on the matter.