Wednesday, October 08, 2008
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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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STATE OF TENNESSEE ex rel WILLIAM L. GIBBONS, DISTRICT ATTORNEY GENERAL, ET AL. v. CLAYTON R. SMART, ET AL.

Court: TCA

Attorneys:

Bruce S. Kramer, Scott A. Kramer, Memphis, TN, for Appellants.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Lyndsay Fuller, Laura T. Kidwell, Assistant Attorneys General, Nashville, TN; Max Shelton, James R. Newsom, III, Memphis, TN, for Appellees.

Judge: HIGHERS

This case involves the Fifth Amendment privilege against self-incrimination. The trial court entered a pre-trial order requiring the defendant to produce various personal and business records and to compile a list of the assets belonging to the defendant and his businesses. The defendant failed to comply with or object to the order. At a contempt hearing, the defendant's attorney assured the chancellor that the defendant would comply with the order if the contempt hearing was continued for two more weeks, and the chancellor continued the matter. At the next hearing, the defendant's attorney stated that his client would not be complying with the order based on Fifth Amendment grounds. The chancellor held the defendant in civil contempt and ordered the defendant's attorney to pay the opposing party's attorneys' fees. The defendant and his attorney appeal. We affirm in part and reverse in part and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2008/gibbonsw_100808.pdf
DR. VICTOR W. HORADAM v. SUE STEWART, EXECUTRIX OF THE ESTATE OF ANDRE ALICE NORTON AND THE ESTATE OF ANDRE ALICE NORTON

Court: TCA

Attorneys:

Dicken E. Kidwell, Murfreesboro, Tennessee, for the appellant, Sue Stewart.

Wm. Kennerly Burger, Murfreesboro, Tennessee, for the appellee, Dr. Victor W. Horadam.

Judge: STEWART

Executrix appeals the trial court's interpretation of language from decedent's Last Will and Testament. Decedent was a well-known author of science fiction literature and the rights to that literature comprise a significant portion of her estate. Beneficiary under Will sought construction specifically of his bequest granting "the royalties from all posthumous publication of any of my works[.]" The trial court held there was a patent ambiguity in the Will precluding extrinsic evidence of intent. Executrix objected and made an offer of proof of decedent's intended use and meaning of the terms "copyright," "royalties," and "posthumous publication." The court found decedent used "copyright" and "royalties" interchangeably and intended Beneficiary to have both the copyrights and posthumous royalties from all of her works.

Based on the language in the four corners of the Will, we agree there was an ambiguity in the Will but have determined it was latent, rather than patent, and we reverse the trial court on its ambiguity finding. Accordingly, the consideration of extrinsic evidence of the decedent's intent and the circumstances surrounding the execution of the Will is permitted and is necessary for the proper administration of the estate. After careful review of the record including Executrix's proffered evidence of decedent's intent, we have determined that the decedent intended different meanings of the terms "copyrights" and "royalties" and we reverse the court's determination that those terms were used interchangeably. In doing so, we award the copyrights not previously bequeathed in the Will to Executrix and the royalties, as defined in this opinion, to Beneficiary. In view of the circumstances of this case, we affirm the decision of the trial court that Executrix should be removed as executrix of the estate and an administrator ad litem appointed. Judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCA/2008/horadamv_100808.pdf
STATE OF TENNESSEE v. THOMAS E. CAPPS, SR.

Court: TCCA

Attorneys:

John P. Cauley, Franklin, Tennessee, for the appellant, Thomas E. Capps, Sr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Kim R. Helper (on appeal) and Ronald L. Davis (at trial), District Attorneys General; Sean B. Duddy and Michael J. Fahey, II, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

In August 2004 the Hickman County Grand Jury returned a six-count presentment charging the defendant, Thomas E. Capps, Sr., with one count of possession of a schedule II controlled substance (cocaine), two counts of sale of a schedule II controlled substance (cocaine), two counts of possession of a schedule IV controlled substance, and one count of possession of drug paraphernalia. The defendant pled guilty to one count of cocaine possession and one count of cocaine sale, both Class C felonies. Pursuant to the plea agreement, the defendant received two concurrent four-year sentences as a Range I, standard offender, the remaining charges were dismissed, and the defendant's manner of service was left to the trial court's discretion. Following a sentencing hearing, the trial court ordered that the defendant serve his sentences in the Department of Correction. On appeal, the defendant argues that the trial court erred in denying alternative sentencing. After reviewing the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/cappst_100808.pdf
STATE OF TENNESSEE v. CHRISTOPHER STEPHEN HAYES

Court: TCCA

Attorneys:

Mike Mosier, Jackson, Tennessee, for the appellant, Christopher Stephen Hayes.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William Paul Phillips, District Attorney General; and Larry Hardister and Hal Dorsey, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Gibson County Circuit Court jury convicted the appellant, Christopher Stephen Hayes, of attempted second degree murder, two counts of reckless endangerment, and one count of possession of a deadly weapon with intent to use it in the commission of an offense, and he received an effective ten-year sentence to be served in confinement. On appeal, he contends that (1) the evidence is insufficient to support the attempted murder conviction, (2) his sentences are excessive and the trial court erred by granting his request for alternative sentencing, and (3) the trial court made a clerical mistake on the judgment form for the attempted murder conviction. Based upon the record and the parties' briefs, we affirm the appellant's convictions but modify the appellant's attempted murder conviction from ten to eight years. We also remand the case to the trial court in order for the court to sentence the appellant for the possession of a deadly weapon conviction, to address alternative sentencing, and to correct clerical mistakes on several judgment of conviction forms.

http://www.tba2.org/tba_files/TCCA/2008/hayesc_100808.pdf
STATE OF TENNESSEE v. SHARON VIRGINIA HINKLEY

Court: TCCA

Attorneys:

William B. "Jake" Lockert, III, District Public Defender, and Christopher L. Young, Assistant Public Defender, for the appellant, Sharon Virginia Hinkley.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Wendell R. Crouch, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Sharon Virginia Hinkley, appeals the revocation of her probation. After review, we conclude that the appellate record does not contain any documents pertaining to the conviction and sentence contested by the defendant. Therefore, we are compelled to dismiss this appeal.

http://www.tba2.org/tba_files/TCCA/2008/hinkleys_100808.pdf
STATE OF TENNESSEE v. JASON GLEN JACOBS

Court: TCCA

Attorneys:

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Jason Glen Jacobs.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and J. W. Hupp, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Jason Glen Jacobs, pled guilty to the crime of child abuse, a Class D felony, in exchange for a three-year sentence with the manner of service to be determined by the trial court. The crime occurred on September 17, 2004. Following a sentencing hearing on January 19, 2007, the trial court sentenced the defendant as a Range I offender to three years of probation. Additionally, the defendant was sentenced to serve the first six months in confinement and was required to complete parenting classes. On appeal, he argues that he should have been sentenced to serve the entire term on probation without confinement. After careful review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/jacobsj_100808.pdf
CORNELL POE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Lee R. Sparks (on appeal), and Angela J. Hopson (at evidentiary hearing), Jackson, Tennessee, attorney for appellant, Cornell Poe.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General; James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Cornell Poe, appeals as of right the Madison County Circuit Court's denial of his petition for post-conviction relief. The petitioner alleges that his guilty pleas to two counts of aggravated burglary, one count of theft valued at over one thousand dollars, and three counts of aggravated assault were not voluntarily, knowingly and understandingly made due to the ineffective assistance of counsel and the alleged effects of the petitioner's medication. After the appointment of counsel and a full evidentiary hearing, the post-conviction court found that the petitioner failed to prove his allegations by clear and convincing evidence and denied the petition. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/poec_100808.pdf
JIMMY RAY ROGERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Joseph S. Bean, Jr., Winchester, Tennessee, for the appellant, Jimmy Ray Rogers.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; J. Michael Taylor, District Attorney General and Stephen M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Jimmy Ray Rogers, appeals the post-conviction court's denial of post-conviction relief. After a review of the record, we determine that Petitioner received effective assistance of counsel. Consequently, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/rogersj_100808.pdf
STATE OF TENNESSEE v. JOHN SHIELDS

Court: TCCA

Attorneys:

Jeffrey Jones, Bartlett, Tennessee, for the appellant, John Shields.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Chris Scruggs, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, John Shields, was indicted in January 2007 for possession of cocaine with intent to sell, possession of cocaine with intent to deliver, and driving on a suspended license. In this interlocutory appeal, he argues that the instant criminal prosecution violates double jeopardy protections under both the state and federal constitutions because the State has previously assessed and levied a tax under the Tennessee Taxation of Unauthorized Substances Act for the same cocaine. He asserts that because the tax is punitive in nature, the present prosecution would impose a second punishment for the same offense. Based upon the record and the parties' briefs, we affirm the trial court's order denying the appellant's motion to dismiss the indictment.

http://www.tba2.org/tba_files/TCCA/2008/shieldsj_100808.pdf
Constitutionality of State Welcome Center Brochure Policy

TN Attorney General Opinions

Date: 2008-10-08

Opinion Number: 08-151

http://www.tba2.org/tba_files/AG/2008/ag_08_151.pdf
Application of Little Hatch Act to Campaign Memorabilia

TN Attorney General Opinions

Date: 2008-10-08

Opinion Number: 08-152

http://www.tba2.org/tba_files/AG/2008/ag_08_152.pdf
Representing Participants in Benefit Review Conference; Unauthorized Practice of Law

TN Attorney General Opinions

Date: 2008-10-08

Opinion Number: 08-153

http://www.tba2.org/tba_files/AG/2008/ag_08_153.pdf
Utility District Grant to a Church

TN Attorney General Opinions

Date: 2008-10-08

Opinion Number: 08-154

http://www.tba2.org/tba_files/AG/2008/ag_08_154.pdf
Notice of Foreclosure
Note: Opinion was withdrawn 10-9-08 and is no longer available

TN Attorney General Opinions

Date: 2008-10-08

Opinion Number: 08-155

http://www.tba2.org/tba_files/AG/2008/ag_08_155.pdf
Increase in Positions or Funding to Office of Public Defender under Tenn. Code Ann. 16-2-518

TN Attorney General Opinions

Date: 2008-10-08

Opinion Number: 08-156

http://www.tba2.org/tba_files/AG/2008/ag_08_156.pdf
Disposal of Confiscated Weapons by Judicial District Drug Task Force

TN Attorney General Opinions

Date: 2008-10-08

Opinion Number: 08-157

http://www.tba2.org/tba_files/AG/2008/ag_08_157.pdf
TODAY'S NEWS
Legal News
Practice Management
Upcoming
TBA Member Services
Legal News
Second applicant files for Court of Appeals
Strawberry Plains attorney Sharon Dawn Coppock is the second applicant for an open seat on the Court of Appeals. Coppock joins Chattanooga attorney John Westley McClarty in seeking the position, which was vacated by Judge Sharon Lee after her appointment to the Tennessee Supreme Court. The deadline for applications is Oct. 20. The selection commission will meet Nov. 18 in Knoxville to consider applicants.
Information about the application process is on the AOC's web site
Arrest made in Palin email hacking case
University of Tennessee student David Kernell -- the son of state Rep. Mike Kernell, D-Memphis -- pleaded not guilty in federal court today to the charge of obtaining unauthorized access to vice presidential candidate Sarah Palin's personal e-mail. Kernell was indicted yesterday and surrendered today to authorities. He was allowed to remain free so long as he does not use his computer for non-school activities and has no contact with Palin or her family. If convicted, Kernell faces a maximum of five years in prison, a $250,000 fine and a three-year term of probation.
The News Sentinel has the story
Court blocks testimony on prosecutor firings
The U.S. Court of Appeals for the D.C. Circuit has granted a stay of a lower court order directing the White House to cooperate with a congressional probe into the firing of nine U.S. attorneys. The court granted the stay pending an appeal and refused to order an expedited hearing in the case.
Read more in the Washington Post
Judge orders 17 released from Guantanamo Bay
On Tuesday, a federal district court judge ordered the U.S. government to release and transfer to the United States 17 Chinese-born Muslims detained for almost seven years at Guantanamo. The decision marks the first time a court has ordered the transfer of detainees and could prompt the release of dozens of others who are waiting for the U.S. to find a country to accept them. Administration officials responded by preparing an emergency motion to block the ruling.
The Commercial Appeal reports
Some call for special counsel to probe Wall Street
At least one congressional lawmaker is calling for the appointment of a special counsel to probe Wall Street's operations as the country grapples with the causes and impact of the current financial situation. According to Rueters, U.S. Rep. John Mica, R-Fla., announced this week that he plans to work with colleagues to seek a special counsel in the matter.
Comment period opens on Shelby County dress code
There won't be any specific fashion dos or don'ts for Shelby County Circuit Court in a new set of local rules circulated for comment this week. The proposal reads in part: "The personal appearance and conduct of attorneys in the courtroom is visible evidence of their respect for the rule of law and the administration of justice. All attorneys shall wear professional attire." The draft has been approved by the nine circuit court judges and will take effect a month after the public comment period expires on Oct. 24. Read more in the Memphis Daily News.
Read the draft rule or submit comments at the Memphis Bar's web site
Issue of MLGW legal fees could surface again
On a 6-6 tie vote Tuesday, the Memphis City Council rejected paying $426,422 in legal bills for former Memphis Light, Gas and Water Division President Joseph Lee. The MLGW board had endorsed the payment, but the city council's approval is required for any utility expense greater than $25,000. Lee ran up the legal bills starting with a 2006 federal grand jury investigation that led to his indictment on corruption charges. The fees also include legal advice Lee received during a council investigation of how he handled the overdue utility bills of former City Council member Edmund Ford Sr.
The Memphis Daily News has more
Practice Management
Study shows lawyers want more time, less stress
Surveying lawyers in the nation's 300 largest law firms and corporations, Robert Half Legal asked what one thing they would change about their practice. Thirty-one percent said they wanted a less stressful work life. Another 30 percent said they wanted to work fewer hours or increase their personal time. Only two percent said they wanted more money.
Read more about the study
Upcoming
Holder to receive public service award
On Thursday, the Coalition for Mediation Awareness in Tennessee will present Supreme Court Chief Justice Janice Holder with the second annual Grayfred Gray Public Service Mediation Award at its annual banquet at Lipscomb University. Tickets for the event, which begins at 7 p.m., are $30. For more information contact (615) 966-7145 or read a press release from the school's Institute for Conflict Resolution.
TBA Member Services
Secure, compliant data backup service now available
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Learn why lawyers trust EVault for online data backup solutions

 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.
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