Volunteers needed Saturday for Wills For Heroes

The TBA Young Lawyers Division is organizing a Wills for Heroes event this Saturday, Oct. 24, in Franklin and the response has been overwhelming: more than 120 "heroes" have signed up for the clinic, which provides basic estate planning services to first responders at no cost. Attorney volunteers will assist local police officers, firefighters, and paramedics and their spouses by drafting simple wills, advanced directives and durable powers of attorney.

Several volunteers are needed for the first shift (8:30 a.m. to 1 p.m.) and 10 are needed for the second shift (12:20 to 5 p.m.). The event will be held from 9 a.m. to 5 p.m. at the Elks Lodge No. 72, located at 485 Oak Meadow Drive, Franklin 37064. For more information or to volunteer, contact Joy Day at jday@sutter-law.com or (615) 771-5008.
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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
07 - TN Court of Criminal Appeals
00 - 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.

STATE OF TENNESSEE v. JERRY LEE HANNING

Court: TSC

Attorneys:

Wade V. Davies, Knoxville, Tennessee, for the appellant, Jerry Lee Hanning.

Robert E. Cooper, Attorney General and Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General, for the appellee, State of Tennessee.

Judge: LEE

This appeal involves the detention and questioning of the driver of a truck tractor and trailer based upon an anonymous tip of reckless driving from a citizen. A police officer received a dispatch that a caller had reported a black "18-wheeler" bearing a "Smith Brothers" logo was being driven recklessly in a northbound direction on the interstate and had just exited at the Highway 72 ramp. The police officer was in a parking lot very close to the exit ramp at the time he received the call. He responded immediately and observed a black "semi-truck" parked in the emergency lane of the northbound exit ramp. The officer turned his blue lights on, drove down the ramp, and pulled in front of the truck. After observing a Smith Transport logo on the door of the truck tractor, questioning the driver, and administering field sobriety tests, the officer arrested the driver for driving under the influence. The driver entered a conditional guilty plea to driving under the influence and reserved the certified question of whether the warrantless detention and questioning of the driver violated the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Constitution of the State of Tennessee. We hold that in this case the anonymous tip reporting reckless driving indicated a sufficiently high risk of imminent injury or death to members of the public to warrant immediate intervention by law enforcement officials and justified the brief investigatory stop because the offense was reported at or near the time of its occurrence, and the report indicated that the caller was witnessing an ongoing offense; the report provided a detailed description of the truck, its direction of travel and location; and the investigating officer verified these details within moments of the dispatch reporting the tip.

http://www.tba2.org/tba_files/TSC/2009/hanningj_102009.pdf

WADE concurring
http://www.tba2.org/tba_files/TSC/2009/hanningj_CON_102009.pdf


CURTIS S. PERSON v. THE BOARD OF COMMISSIONERS OF SHELBY COUNTY, TENNESSEE, ET AL.
CORRECTION: Page 1 corrects the spelling of attorney Brian S. Faughnan's name


Court: TCA

Attorneys:

Lucian T. Pera, Brian S. Faughnan, Memphis, Tennessee, for the appellant, Curtis S. Person.

Leo Bearman, Jr., Emily Turner Landry, Memphis, Tennessee, for the appellees, The Board of Commissioners of Shelby County, Tennessee, et al., and A. C. Wharton, Jr., Mayor of Shelby County, Tennessee.

Judge: COTTRELL

In 1967, the General Assembly passed a Private act consolidating the juvenile courts of Memphis and Shelby County by establishing a new court. The Act also provided for a second division, with the judgeship of that division to remain vacant until the County Commission determined the need for it. Almost forty years later, the Commission adopted a resolution approving the appointment of a judge to the second division of the court. The current judge of the Juvenile Court of Shelby County challenged the attempted creation of a second judgeship, arguing that the relevant portion of the Private Act constituted an unconstitutional delegation of the authority to ordain and establish courts, which power is reserved to the General Assembly by the Tennessee Constitution. Because a judge is a necessary component of a court, in order to "ordain and establish" a court under Art. VI, section 1, the legislation creating or establishing the court must make provision for a judge. The legislature cannot establish a court without also establishing a judgeship. Since Section 20 of the Private Act does not create or establish a judgeship for division 2, it did not effectively create or establish that division or court. Additionally, because in Section 20 of the Private Act the legislature delegated to the Commission the power to decide whether a judge for division 2 was needed, which is the equivalent of delegating to the Commission the authority to establish or create division 2 of the juvenile court, we conclude that Section 20 is an unconstitutional delegation of power reserved to the General Assembly by Art. VI, section 1 of the Tennessee Constitution and, therefore, reverse the trial court's holding on that issue. We affirm the trial court's ruling on Open Meeting Act claims based on a prior resolution that was promptly rescinded by the Commission.

http://www.tba2.org/tba_files/TCA/2009/personc_CORR_102009.pdf


IN THE MATTER OF: THE ESTATE OF LUCILLE ANNETTA SCHISLER

Court: TCA

Attorneys:

W. Charles Doerflinger, Lawrenceburg, Tennessee, for the appellants, Linda Lou Stem and Carroll Lynn Schisler, Sr.

Charles W. Holt, Jr., Ben Boston, and Ryan P. Durham, Lawrenceburg, Tennessee, for the appellees, Iris Edwards Wix, Donald Edward Schisler, Ralph Truman Schisler and August Frederick Schisler.

Judge: CLEMENT

Two of a deceased mother's six children appeal a jury's specific findings that their mother's last will was invalid because they had a confidential relationship with their mother and unduly influenced her to execute the will. Plaintiffs, the decedent's four other children, commenced this action to contest the will the appellants offered for probate. On appeal, the appellants contend there is no material evidence to support the jury's findings that they had a confidential relationship with their mother or that they exerted undue influence. Appellants also contend the trial court erred by admitting evidence of a criminal conviction of one of the appellants. Whether to admit the evidence was within the sound discretion of the trial court and we find the court did not abuse its discretion by admitting the evidence; moreover, the trial court gave a limiting instruction that evidence of the crime was only relevant as it pertained to motive and intent to influence the testatrix to change her will. As for the jury verdict, we find substantial and material evidence that supports the jury's findings in the record. Accordingly, we affirm the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2009/schislerl_102009.pdf


STATE OF TENNESSEE v. LACONTREAS CALWAY

Court: TCCA

Attorneys:

Joseph Liddell Kirk, Knoxville, Tennessee (on appeal), and Raymond Mack Garner, District Public Defender (at trial), for the appellant, Lacontreas Calway.

Robert E. Cooper, Jr., Attorney General and Reporter; and John H. Bledsoe, Senior Counsel, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Lacontreas Calway, appeals the trial court's order revoking her probation for her Class C felony conviction of theft of property over $10,000 and ordering her to serve her sentence in confinement. The State has filed a motion requesting that this court affirm the trial court's order pursuant to Tennessee Court of Criminal Appeals Rule 20. The State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/calwayl_102009.pdf


STATE OF TENNESSEE v. VINCENT JOHNSON

Court: TCCA

Attorneys:

Blake D. Ballin, Memphis, Tennessee, for the appellant, Vincent Johnson.

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

Judge: MCLIN

The Shelby County Grand Jury indicted the defendant, Vincent Johnson, on charges of unlawful possession of more than seventy pounds of marijuana. The defendant and the District Attorney General entered into a plea agreement allowing the defendant to plead guilty to one count of the indictment for an eight-year sentence and petition the trial court for placement in a community corrections program. The trial court rejected the plea agreement and the defendant filed an application for an appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We have reviewed the record and conclude that the trial court erred in withholding its approval of the plea agreement based on the defendant's ineligibility for probation and consequent ineligibility for placement in a community corrections program. Therefore, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2009/johnsonv_102009.pdf


RENDELL COREY JONES v. JAMES T. FORTNER, WARDEN

Court: TCCA

Attorneys:

Rendell Corey Jones, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and Robert Steve Bebb, District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Rendell Corey Jones, appeals pro se from the McMinn County Circuit Court's summary dismissal of his petition for the writ of habeas corpus in which he contends that his sentences have expired and that he is entitled to immediate release. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/jonesr_102009.pdf


DERRICK MCCLURE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Paul J. Springer, Memphis, Tennessee, for the appellant, Derrick McClure.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Damon Griffin and Tiffany Taylor, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Derrick McClure, was convicted of first degree murder, attempted first degree murder, and two counts of especially aggravated robbery. Following a jury trial, the petitioner received an effective sentence of life plus twenty-five years in the Tennessee Department of Correction. On appeal, the petitioner asserts that the post-conviction court erred in failing to find that due process considerations tolled the statute of limitations to allow him reasonable time to file his petition asserting the ineffective assistance of counsel. Following a review of the parties' briefs, the record, and applicable law, we affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2009/mcclured_102009.pdf


JOHNNY L. McGOWAN, JR. v. HOWARD CARLTON, WARDEN

Court: TCCA

Attorneys:

Johnny L. McGowan, Jr., Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Leslie E. Price, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The pro se Petitioner, Johnny L. McGowan, Jr., appeals from the trial court's order denying his petition for the writ of habeas corpus. The State has filed a motion requesting that this court affirm the order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petition fails to state a cognizable claim for habeas corpus relief. The State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/mcgowanj1_102009.pdf


SCOTT B. PRICE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Scott B. Price, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Benjamin A. Ball, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, Scott B. Price, appeals from the Knox County Criminal Court's dismissal of his petition for a writ of coram nobis. The State has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Tennessee Court of Criminal Appeals Rule 20. We hold the petition is barred by the statute of limitations and does not, otherwise, state grounds for relief that would allow the petition to be filed or granted. The State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2009/prices_102009.pdf


CARL STEVENSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

R. Andrew Hutchinson, Memphis, Tennessee, for the appellant, Carl Stevenson.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; William L. Gibbons, District Attorney General; and Dennis Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Carl Stevenson, appeals the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. The petitioner, pursuant to a negotiated plea agreement, pled guilty to criminal attempt murder in the first degree and especially aggravated robbery and received a concurrent sentence of 15 years in the Department of Correction. On appeal, he contends that the post-conviction court erred when it found that the petitioner failed to prove by clear and convincing evidence that he had received ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/stevensonc_102009.pdf


TODAY'S NEWS

Legal News
Supreme Court Report
Disciplinary Actions
TBA Member Services

Legal News
Supreme Court upholds detention of reckless driver
The Tennessee Supreme Court today unanimously affirmed a Court of Criminal Appeals decision to uphold the detention and questioning of a reckless driver of a tractor trailer based on an anonymous tip. The opinion and concurring opinion recognize that when a vehicle is being driven recklessly there is an indication that the driver may be under the influence of alcohol or drugs. With this opinion, the Supreme Court affirmed the decision of the Court of Criminal Appeals and the Criminal Court of Loudon County to deny Hanning's motion to suppress evidence obtained during his arrest.
Find out more from the Administrative Office of the Courts
Morris selected city attorney, among objections
Herman Morris was nominated as Memphis city attorney by Mayor Pro Tem Myron Lowery, after a contentious city council meeting this afternoon, A C Wharton's first as mayor-elect. Morris, an attorney who has also served as the head of Memphis Light, Gas and Water Division, is replacing former city attorney Elbert Jefferson, who resigned Sunday night.
WMC-TV has the story
'Celebrate Pro Bono' events make news in East Tennessee
Efforts for Celebrate Pro Bono Month are in full swing around the state. Legal Aid of East Tennessee's legal clinic on Oct. 17 in Cleveland served 17 clients and included the volunteer efforts of four attorneys, one law student, one paralegal and other volunteers. Legal Aid provided food for the volunteers and clients. A clinic to be held in Chattanooga on Oct. 31, also sponsored by Legal Aid of East Tennessee, is detailed in
The Chattanoogan.
Hamilton General Sessions judges list 'off bench' duties
To show that their duties are usually more than meets the eye, the five Hamilton County General Sessions Court judges submitted a list of 50 "off bench" duties and responsibilities to County Mayor Claude Ramsey and the County Commission. These extra duties and responsibilities are "in reference to the criminal, civil, mental health and forfeiture hearings that we dispose of daily. The paperwork off of the bench is voluminous. We are the only courts in Tennessee that have multiple jurisdictional dockets," Judge David Bales said.
The Chattanoogan has the story
Former Sen. Miller trial begins
The trial of former state Sen. Jeff Miller got underway today in Cleveland, Tenn. His lawyer says the charges were politically motivated, but the prosecution says Miller charged for work he didn't do. He was serving as the county's delinquent tax attorney when he was accused of official misconduct and other charges.
The News Sentinel reports
Supreme Court Report
Roberts says ruling gives drunks 'one free swerve'
Chief Justice John Roberts spoke out today against a lower court ruling he says will "grant drunk drivers 'one free swerve'" that could potentially end someone's life. Roberts' comments were part of his dissent as the Supreme Court refused to hear an appeal from Virginia officials who had their drunk driving conviction of Joseph A. Moses Harris Jr. thrown out by that state's Supreme Court. Police were notified by an anonymous tipster that Harris was driving intoxicated, but the arresting officer did not see Harris break any traffic laws. "The decision below commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road -- by which time it may be too late," Roberts wrote.
WATE.com carried this AP story
Disciplinary Actions
Madison County lawyer censured
On Oct. 19, Madison County lawyer Angela Joy Hopson received a public censure from the Board of Professional Responsibility of the Tennessee Supreme Court for not acting with reasonable diligence. She violated Rules of Professional Conduct 1.3 and 8.1(b).
Read the BPR news release
Williamson County lawyer censured
Williamson County lawyer William Warren Leech received a public censure from the Board of Professional Responsibility of the Tennessee Supreme Court on Oct. 19. He had been suspended in 2007 but did not inform his client that he was unable to complete the case.
Read the BPR news release
Davidson County lawyer censured
On Oct. 19, Davidson County lawyer Brad Heath Frakes received a public censure from the Board of Professional Responsibility of the Tennessee Supreme Court for failing to comply with the provisions of his contract with the Tennessee Lawyers' Assistance Program.
Read the BPR news release
Davidson County lawyer censured
On Oct. 19, Davidson County lawyer John Lowe received a public censure from the Board of Professional Responsibility of the Tennessee Supreme Court for failing to place a furnisher's lien on a piece of property where the complainant's company had performed mechanical work. The lien rights expired, and although Lowe promised to reimburse the complainant for money lost, he never did.
Read the BPR news release
Knox County lawyer censured
On Oct. 19, Knox County lawyer Charles Carter received a public censure from the Board of Professional Responsibility of the Tennessee Supreme Court. He had been suspended in 2006 but continued to practice law and did not respond to the board. While his license was temporarily suspended, Carter practiced law by filing supplemental responses to discovery in the Knox County Circuit Court.
Read the BPR news release
Maryville lawyer censured
On Oct. 19, Maryville lawyer Charles Michael Clifford was publicly censured by the Board of Professional Responsibility for not being diligent in working on his client's case and eventually lying to the client.
Read the BPR news release
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
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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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