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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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JEANNETTE BOYER DECENT v. TIMOTHY WILLIAM DECENT

Court: TCA

Attorneys:

S. Jason Whatley, Columbia, TN, for Appellant.

Wesley Mack Bryant, Columbia, TN, for Appellee.

Judge: HIGHERS

In this appeal, we are asked to determine whether the chancery court erred in finding that Husband was not entitled to the return of or reimbursement for certain items he claimed as separate personal property. The chancery court found that Husband did not carry his burden of proving that Wife intentionally disposed of his personal property, as it questioned Husband's testimony concerning both the existence and value of Husband's claimed separate property. Thus, the trial court ordered that each party retain as his or her sole and separate property all remaining personal property currently in his or her possession. We affirm.

http://www.tba2.org/tba_files/TCA/2008/decentj_101608.pdf


CHERYL MCLEMORE HEARN, ET AL. v. QUINCE NURSING and REHABILITATION CENTER, LLC, ET AL.

Court: TCA

Attorneys:

Rebecca Adelman, Memphis, TN, for the Appellants.

Chase Pittman, Memphis, TN, for the Appellants.

John Keith Perry, Jr., Southaven, MS, for the Appellees.

Judge: STAFFORD

This appeal concerns the enforceability of an arbitration agreement between a nursing home and one of its patients. The trial court found that the agreement was unenforceable because the nursing home's agent gave an insufficient explanation of the agreement's meaning to the patient's daughter. We do not reach the merits of the trial court's conclusion. Instead, we find that the patient's daughter did not have the authority to sign the agreement on her father's behalf. We, therefore, affirm the trial court's denial of the defendant's motion to compel arbitration.

http://www.tba2.org/tba_files/TCA/2008/hearnc_101608.pdf


MARCELLUS BETTY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Harold Donnelly, Nashville, Tennessee, for the appellant, Marcellus Betty.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Lisa Naylor, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Marcellus Betty, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief from his convictions for two counts of aggravated burglary; one count each of aggravated robbery, evading arrest, and reckless endangerment; and resulting effective forty-nine-year sentence. On appeal, the petitioner contends that he received the ineffective assistance of counsel because (1) his trial attorney failed to investigate the facts of his case and call an important witness to testify on his behalf and (2) he was forced to testify. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/bettym_101608.pdf


STATE OF TENNESSEE v. GEORGE FRANKLIN

Court: TCCA

Attorneys:

Paul K. Guibao, Memphis, Tennessee, (on appeal); Gerald Skahan, Memphis, Tennessee; and Jake Erwin, Memphis, Tennessee, (at trial) and for the appellant, George Franklin.

Robert J. Cooper, Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William L. Gibbons, District Attorney General; and Robert Carter, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Following a jury trial Defendant, George Franklin, was convicted of the second degree murder of three-year-old Jessica Borner and the attempted murder of nine other people. Defendant was convicted under the theory of criminal responsibility for the conduct of another. It is undisputed that Defendant did not fire the shot that killed Jessica. Defendant was sentenced to twenty-five years at one-hundred percent for second degree murder and twelve years at thirty percent for each count of attempted murder. The trial court ordered the sentences to be served consecutively for an effective sentence of one-hundred and thirty-three years. On appeal, Defendant challenges: (1) the sufficiency of the evidence to sustain convictions of second degree murder and nine counts of attempted second degree murder; (2) whether the trial court properly refused to grant a mistrial when the assistant district attorney general referenced the statement of a co-defendant; (3) whether the trial court properly prohibited the defense attorney from eliciting information about the alleged dangerousness of the house; (4) whether the trial court properly excluded certain prior bad acts of witnesses; (5) whether the trial court properly applied enhancement factors in sentencing; and (6) whether the trial court properly imposed consecutive sentences. After a thorough review of the record, we affirm the judgements of the trial court except the sentencing. Because of the improper use of enhancement factors in sentencing, we modify Defendant's sentence from twenty-five years to twenty-one years for second degree murder and from twelve years to nine years for each of the nine convictions for attempted second degree murder. Otherwise the judgments are affirmed.

http://www.tba2.org/tba_files/TCCA/2008/frankling_101608.pdf


STATE OF TENNESSEE v. ALLEN JERMAINE HORTON

Court: TCCA

Attorneys:

Ardena J. Garth and Donna Robinson Miller, Chattanooga, Tennessee, for the appellant, Allen Jermaine Horton.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; William H. Cox, District Attorney General; and Neal Pinkston, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

Allen Jermaine Horton (hereinafter "Horton"), appeals the revocation of his intensive probation sentences. He argues the evidence was insufficient to show that he willfully violated his probation. Following our review of the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/hortona_101608.pdf


STATE OF TENNESSEE V. ROBERTO MARQUICE HORTON

Court: TCCA

Attorneys:

Terry L. Jordan, Assistant Public Defender, Blountville, Tennessee, for the appellant, Roberto Marquice Horton.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Greeley Wells, District Attorney General; and James F. Goodwin, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Roberto Marquice Horton, pled guilty in the Sullivan County Criminal Court to one count of failure to appear, a Class E felony. The trial court subsequently sentenced him to a two-year sentence. Appellant appeals his sentence, arguing that it is excessive and that the trial court erred by denying an alternative sentence. We determine that the record supports Appellant's sentence and, therefore, affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/hortonr_101608.pdf


STATE OF TENNESSEE v. NICHLOUS MAXWELL

Court: TCCA

Attorneys:

Lorna S. McClusky, Memphis, Tennessee, for the appellant, Nichlous Maxwell.

Robert E. Cooper, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; Lee Coffee, Assistant District Attorney; and Stacey McEndree, Assistant District Attorney, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Nichlous Maxwell, was convicted of second degree murder. He was sentenced to twenty-five years' incarceration. On appeal Defendant argues (1) the trial court committed reversible error by permitting the prosecutor to elicit a hearsay statement under the excited utterance exception to the hearsay rules, (2) that the trial court erred in its response to jury questions regarding the instruction on criminal responsibility for the conduct of another, and (3) the trial court erred in enhancing Defendant's sentence based on facts not found by a jury. After a thorough review of the record, we affirm the judgments of the trial court as to the hearsay statements and the jury instruction and modify the judgment as to sentencing from twenty-five to twenty-three years.

http://www.tba2.org/tba_files/TCCA/2008/maxwelln_101608.pdf


STATE OF TENNESSEE v. RANDALL McCLURE

Court: TCCA

Attorneys:

Donna Orr Hargrove, District Public Defender; and A. Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Randall McClure.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Hollyn Hewgly, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Randall McClure, pled guilty to one count of the sale of less than .5 grams of cocaine and one count of the delivery of less than .5 grams of cocaine. The convictions were merged. The manner of service of the agreed upon five year sentence was to be determined by the trial court at a sentencing hearing. Defendant requested alternative sentencing and after conducting the sentencing hearing the trial court denied the request and sentenced Defendant to serve the five-year sentence incarcerated. On appeal, Defendant argues the trial court erroneously denied his request for alternative sentencing. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/mcclurer_101608.pdf


STATE OF TENNESSEE v. JESSIE EDWARD WEST
Correction. In the opening paragraph, line 3, the word "constitution" has been replaced with "institution."


Court: TCCA

Attorneys:

William C. Barnes, Jr., Columbia, Tennessee, for the appellant, Jessie Edward West.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; Hollyn Hewgley and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WELLES

Upon his pleas of guilty, the Defendant, Jessie Edward West, was convicted of conspiracy (to commit arson), burglary, arson, vandalism (with damages of $60,000 or more), introduction of contraband into a penal institution, and escape from a penal institution (while being held for a felony). In exchange for his pleas of guilty, the State dismissed three misdemeanor counts of contributing to the delinquency of a minor and two misdemeanor counts of vandalism. Following a sentencing hearing, the Defendant was sentenced as a Range I, standard offender to two years for conspiracy, a Class D felony, two years for burglary, a Class D felony, five years for arson, a Class C felony, three years for introducing contraband into a penal institution, a Class C felony, and ten years for vandalism causing damage of $60,000 or more, a Class B felony. These sentences were ordered to be served concurrently. He also was sentenced to two years for escape while being held for a felony, a Class E felony. This sentence was ordered to be served consecutively to the other sentences. The sentences are to be served in the Department of Correction. In this appeal, the Defendant argues that his sentences are excessive. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/westj_101608.pdf

THOMAS dissenting
http://www.tba2.org/tba_files/TCCA/2008/westj_DIS_101608.pdf


TODAY'S NEWS

Legal News
Practice Management
Upcoming
TBA Member Services

Legal News
New appeals court applicant files
Adrienne L. Anderson, a partner with Kramer Rayson LLP in Knoxville, is the fifth attorney to apply for the Court of Appeals vacancy created by the appointment of Judge Sharon Lee to the Tennessee Supreme Court. Anderson joins George Taylor Underwood Jr. of Powell, Vonda M. Laughlin of Jefferson City, Sharon Dawn Coppock of Strawberry Plains and John Westley McClarty of Chattanooga. The deadline for applications is Monday, Oct. 20.
For more information visit the AOC's website
Hollars appointed as special judge
Governor Phil Bredesen yesterday appointed Amy V. Hollars of Livingston to serve as special circuit court judge for the Thirteenth Judicial District effective immediately. Hollars takes over for Judge John Turnbull who submitted a notice of physical disability due to a ruptured disc in his neck and back surgery. Hollars is a solo practitioner in Overton County and a former partner in the Knoxville firm of Hodges, Doughty and Carson.
Read the court's press release
State budget shortfall could reach $600 million
The worsening economy could create up to a $600 million shortfall in this year's state budget and force "painful cuts" in government programs, Gov. Phil Bredesen said today. Referencing tax collections that are well below budget forecasts, Bredesen stated that the state would have to cut spending and tap budget reserves. The governor made his comments during an editorial board meeting with the Chattanooga Times Free Press.
Learn more from the paper
Tennessean calls for death penalty reform
In an editorial today, the Tennessean called for an end to mistakes in the death penalty system while highlighting the work of a legislative study committee, which according to the paper, offers the first "sliver of hope for improvement."
Read the editorial
Running along side the paper's editorial were opinion pieces by Nashville attorney David Raybin and William P. Redick Jr., president of the Tennessee Justice Project. Raybin suggests that the state level the playing field between prosecution and defense by giving each public defender a significant budget and the freedom to make appropriate spending choices. Redick argues the best way to fight inadequate representation is to establish an independent authority to oversee indigent defense services.
Read Redick's opinion
Read Raybin's opinion

Comp time issue keeps magistrate debate alive
Hamilton County Commissioners say some magistrates have been collecting comp time and accruing leave, although they were not working 40-hour weeks. The commissioners recently learned about the shortened workweek and now are perplexed as to why comp time was needed. They also have become aware that the county paid seven substitute magistrates at a time when the regular magistrates were not putting in a full week's worth of service.
Read about it on Chattanoogan.com
Suit against God dismissed
A county judge has thrown out a Nebraska legislator's lawsuit against God, saying the Almighty wasn't properly served due to his unlisted home address. State Sen. Ernie Chambers filed the lawsuit last year seeking a permanent injunction against God for making terroristic threats against him and his constituents, inspiring fear and causing "widespread death, destruction and terrorization..." Chambers has not yet decided whether to appeal, but if he does he is prepared to argue that because God is omniscient, he already has notice of the suit.
The AP has the story
Early voting under way in Tennessee
Voters took to the polls Wednesday as Tennessee kicked off its two-week early voting period. In Clarksville, long lines greeted voters as the polls opened. Incumbent state Sen. Rosalind Kurita, who had her narrow primary win stripped by state Democratic Party officials last month, had two trucks in the parking lot with large signs touting her write-in campaign.
The Memphis Daily News reports
Lawyer discusses economic effect on corporate law
John Good, a member at Bass Berry & Sims PLC and a principal founder of the firm's Memphis office, sat down with the Memphis Daily News to talk about how the downturn in the economy is affecting mergers, acquisitions and securities offerings.
Read the interview
Practice Management
Law firms hope bailout helps bottom line
Law firms gearing up to offer advice on the $700 billion bailout package hope to help clients, as well as their own bottom lines. Experts tell the Wall Street Journal that law firms may see work beyond counseling clients on how to get money under the bill; that there could be work in the areas of bankruptcy, regulatory compliance and white-collar defense of executives accused of aiding the financial downfall.
The ABA Journal reports
Upcoming
Pro bono arts group holds fundraiser
Tennessee Volunteer Lawyers for the Arts is planning a Halloween party on Oct. 25 with all proceeds benefiting the organization's pro bono work. The party at Limelight will feature live music, prizes for the best costume and food from Monell's. Nashville attorneys Bob Sullivan, David Cannon and John Griffin will perform favorite songs from the 60s and 70s. Tickets are available for a suggested donation of $10. For more information contact TNVLA at (615) 298-9309 or info@tnvla.org.
Buy tickets online
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The TBA World Points Rewards MasterCard from Bank of America places a new world of rewards, privileges, and service at your command -- with no annual fee.
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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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