April 20, 1999
Volume 5 -- Number 051

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
 
05 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
10 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

There are three ways for TBALink members to get the full-text versions of these opinions from the Web:

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.

*NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WordPerfect 6.0 version of the opinion.

Click the URL at end of each Opinion paragraph below. This option will allow you to download the original WordPerfect 6.0 document.

Lucian T. Pera
Editor-in-Chief, TBALink

STATE OF TENNESSEE
VS.
JAMES A. BROWN
Court:TSC

Attorneys:

For Appellant:              For Appellee:

Scott G. Kirk               John Knox Walkup
HARDEE, MARTIN & JAYNES     Attorney General & Reporter
Jackson, Tennessee
                            Michael E. Moore
                            Solicitor General

                            Elizabeth T. Ryan
                            Assistant Attorney General
                            Nashville, Tennessee


                            At Trial:
                            
                            John W. Pierotti
                            District Attorney General
                            Memphis, Tennessee
                    
                            Karen Cook
                            Assistant District Attorney General
                            Memphis, Tennessee      

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine whether at the conclusion of the
evidence the prosecution elected the particular offense charged in the
indictment upon which it sought a conviction.  Such an election is
required to preserve the defendant's constitutional right to a
unanimous jury verdict.

http://www.tba.org/tba_files/TSC/Brownja_opn.WP6



EDWARD J. EYRING, Individually and for the benefit of EDWARD J. EYRING, M.D., P.C. VS. FORT SANDERS PARKWEST MEDICAL CENTER, INC. and FORT SANDERS ALLIANCE Court:TSC Attorneys: For the Appellant: For Appellees: John K. King Foster D. Arnett Alan M. Parker Rick L. Powers LEWIS, KING, KRIEG, Dan D. Rhea WALDROP & CATRON, P.C. ARNETT, DRAPER AND HAGOOD Knoxville, Tennessee Knoxville, Tennessee For Amicus Curiae, Tennessee For Amicus Curiae, Tennessee Medical Association: Hospital Association: Marc E. Overlock William B. Hubbard Angela Washington WEED, HUBBARD, BERRY AND TENNESSEE MEDICAL ASSOCIATION DOUGHTY Nashville, Tennessee Nashville, Tennessee Judge:ANDERSON First Paragraph: We granted this appeal primarily to determine whether hospitals are entitled to qualified immunity from liability for damages under the Tennessee Peer Review Law, Tenn. Code Ann. S 63-6-219 (1997). Other issues include whether there was a genuine issue of material fact as to whether the hospital's actions were in good faith and without malice and on the basis of facts reasonably known or reasonably believed to exist and whether the Peer Review Law grants the hospital a privilege barring discovery of the peer review process. http://www.tba.org/tba_files/TSC/Eyringej_opn.WP6
STATE OF TENNESSEE VS. TERESA DEION SMITH HARRIS Court:TSC Attorneys: APPELLANT FOR APPELLEE: Shipp Weems John Knox Walkup District Public Defender Attorney General & Reporter Charlotte, Tennessee Michael E. Moore Steve West Solicitor General West & West McKenzie, Tennessee Peter M. Coughlan (TRIAL ONLY) Assistant Attorney General Nashville, Tennessee G. Robert Radford District Attorney General Judge: DROWOTA First Paragraph: We granted this appeal to determine whether the constitutional harmless error analysis delineated in State v. Howell, 868 S.W.2d 238 (Tenn. 1993), applies when a jury renders an incomplete verdict as to one of the two aggravating circumstances upon which a sentence of life imprisonment without the possibility of parole is based. http://www.tba.org/tba_files/TSC/Harristd_opn.WP6
TOMMY NEAL HOLT, Deceased VS. MARILYN KAY HOLLINGSWORTH HOLT, ELLIOTT NATHAN HOLT VS. VICKIE LEWIS, In Re: Proceeds of Old Line Life Insurance Company of America Policy No. 1878593L Court:TSC Attorneys: FOR APPELLANT FOR APPELLEES John L. Whitfield, Jr. John G. Doak, Sr. Nashville, TN Nashville, TN Judge:DROWOTA First Paragraph: In this case, we determine the rights of parties to the proceeds of a $50,000 insurance policy insuring the life of Tommy Neal Holt, now deceased. In a marital dissolution agreement incorporated in a divorce decree, the decedent had agreed to acquire a $100,000 life insurance policy naming his child as beneficiary and his former wife as trustee. At the time of his death, the decedent owned a $40,000 insurance policy naming his child as beneficiary and a $50,000 policy naming his mother, who subsequently died, as beneficiary. After suit was brought before the Probate Court of Davidson County, the trial court entered summary judgment in favor of the appellees and ordered that the proceeds of the $50,000 be paid to the former wife as trustee for the benefit of the child. The Court of Appeals affirmed. http://www.tba.org/tba_files/TSC/Holttomm_opn.WP6
JEREMY PARENT, and MARTIN PARENT AND JUDITH PARENT, VS. STATE OF TENNESSEE Court:TSC Attorneys: FOR CLAIMANT/APPELLEE: FOR DEFENDANT/APPELLANT: MICHAEL A. KENT JOHN KNOX WALKUP CHATTANOOGA ATTORNEY GENERAL AND REPORTER MICHAEL E. MOORE SOLICITOR GENERAL DAVID T. WHITEFIELD SENIOR COUNSEL MARY M. BERS ASSISTANT ATTORNEY GENERAL NASHVILLE Judge: HOLDER First Paragraph: We granted this appeal to address: (1) whether Tennessee's recreational use statute codified at Tenn. Code Ann. SS 70-7-101 et seq. creates a cause of action or is merely a statutory defense to other viable causes of action; and (2) whether bicycling on state-owned land is within the purview of the recreational use statute. Upon review, we hold that Tenn. Code Ann. SS 70-7-101 et seq. is merely a statutory defense to other viable causes of action and that bicycling is an activity within the ambit of Tenn. Code Ann. S 70-7-102. The Court of Appeals' decision reversing the commissioner is affirmed, and the case is remanded to the claims commission. http://www.tba.org/tba_files/TSC/Parentj_opn.WP6
PAMELA BROWN VS. KAREMOR INTERNATIONAL, INC. and HAGER MARKETING GROUP (a/k/a HMG) Court:TCA Attorneys: For Appellant: For Appellee: Scott G. Kirk John Knox Walkup HARDEE, MARTIN & JAYNES Attorney General & Reporter Jackson, Tennessee Michael E. Moore Solicitor General Elizabeth T. Ryan Assistant Attorney General Nashville, Tennessee At Trial: John W. Pierotti District Attorney General Memphis, Tennessee Karen Cook Assistant District Attorney General Memphis, Tennessee Judge:CANTRELL First Paragraph: The Chancery Court of Davidson County refused to enforce an arbitration provision in a product distribution agreement. The court reasoned that the written agreement was an adhesion contract and that the parties had not bargained over the arbitration provision. We affirm as to the claims not related to the written agreement. As to the claim involving a breach of the agreement, we modify the lower court's order to reflect that the question is still open http://www.tba.org/tba_files/TCA/Brownp_opn.WP6
ALDEN WARD, individually, and d/b/a MASTERCRAFT/MASTERCLEAN, VS. GAYLE WILKINSON Court:TCA Attorneys: ROBERT J. TURNER Turner Law Offices 208 Third Avenue North, Suite 100 Nashville, Tennessee 37201 ATTORNEY FOR PLAINTIFF/APPELLEE JEFFREY A. GREENE JOHN W. BARRINGER, JR. Castleman & Greene 110 Glancy Street, Suite 109 Goodlettsville, Tennessee 37072 ATTORNEYS FOR DEFENDANT/APPELLANT Judge:CAIN First Paragraph: This case results from a contract dispute between Gayle Wilkinson and Alden B. Ward, Independent Contractors, a sole proprietorship doing business as Mastercraft/Masterclean. Mr. Ward contracted to rebuild Mrs.Wilkinson's home after it was consumed by fire. The court below found that the original contract price was $73,730.20. As sometimes happens with building agreements, Mr. Ward's performance in the agreement took significantly longer than was first contemplated. As a result of the time and cost overruns, a good faith dispute arose as to the amount owing under the contract. http://www.tba.org/tba_files/TCA/Wardalln_opn.WP6
CARLOS L. ACEVEDO VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: GREGORY D. SMITH JOHN KNOX WALKUP One Public Square, Suite 321 Attorney General & Reporter Clarksville, TN 37040 TIMOTHY BEHAN Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General JON SEABORG Asst. District Attorney General 222 Second Ave., North, Suite 500 Nashville, TN 37201 Judge:PEAY First Paragraph: In April 1994, the petitioner was charged by indictment with possession of cocaine and possession of marijuana after a search of his person revealed drugs and money. He filed a motion to suppress the drugs and money, which was denied. He then entered a plea of nolo contendere and attempted to preserve his right to appeal the suppression issue. On appeal, however, this Court determined that because the petitioner's judgment did not refer to a certified question of law for appeal, the petitioner had waived his right to appeal. See State v. Carlos L. Acevedo, 01C01-9602-CR-00061, Davidson County (Tenn. Crim. App. filed November 22, 1996, at Nashville). This Court did not address the merits of the suppression issue. http://www.tba.org/tba_files/TCCA/Acevedo_opn.WP6
TROY LEON BROADRICK VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TROY LEON BROADRICK (pro se) JOHN KNOX WALKUP Rt. 4 Box 600 Attorney General & Reporter Pikeville, TN 37367-3243 R. STEPHEN JOBE Assistant Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 JAMES MICHAEL TAYLOR District Attorney General JAMES W. POPE III Assistant District Attorney Twelfth Judicial District 265 Third Ave., Suite 300 Dayton, TN 37321 Judge: WITT First Paragraph: The petitioner, Troy Leon Broadrick, appeals from the Bledsoe County Circuit Court's order dismissing his petition for habeas corpus relief. In 1987, a jury convicted the petitioner of nine counts of aggravated rape, three counts of rape, and one count of sexual battery. The judge sentenced him to an effective sentence of 63 years in the Department of Correction. He appealed his convictions, and this court affirmed on June 29, 1989. See State v. Troy Broadrick, No. 88-257-III (Tenn. Crim. App., Nashville, June 29, 1989). On July 28, 1997, he filed a pro se petition for habeas corpus relief. The court below dismissed the action without a hearing because the court found that the petitioner did not assert grounds which would entitle him to the writ of habeas corpus. The petitioner contends that the trial court erred in not addressing issues presented in the petition, not ordering an evidentiary hearing, and not appointing counsel. http://www.tba.org/tba_files/TCCA/Broadric_opn.WP6
STATE OF TENNESSEE VS. JACKIE R. ELLIS Court:TCCA Attorneys: For the Appellant: For the Appellee: William C. Killian John Knox Walkup Number One Oak Avenue Attorney General and Reporter Jasper, TN 37347 Kim R. Helper Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 James Michael Taylor District Attorney General Stephen Strain Steven Blount Asst. District Attorneys General Jasper, TN Judge: HAYES First Paragraph: The appellant, Jackie R. Ellis, appeals the sentencing decision of the Marion County Circuit Court following his guilty plea to the offense of voluntary manslaughter. The terms of the plea agreement provided that the appellant would receive a sentence from three to five years and the court would determine the manner of service of the sentence. The trial court imposed a four year sentence in the Department of Correction. On appeal, the appellant contends that the trial court erred (1) in its application of the enhancing and mitigating factors and (2) by failing to grant an alternative sentence. http://www.tba.org/tba_files/TCCA/Ellisjr_opn.WP6
RICKY W. McELHANEY VS. STATE OF TENNESSEE Court:TCCA Judge: RILEY First Paragraph: Petitioner, RICKY W. McELHANEY, appeals the trial court's dismissal of his petition for post-conviction relief. In 1979, petitioner pled guilty to attempt to commit a felony. He received an agreed sentence of one year and one day. According to petitioner, he was released on this conviction in 1980. http://www.tba.org/tba_files/TCCA/Mcelhanr_opn.WP6
SAMMY J. MILLER VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Sammy J. Miller #85359, pro se John Knox Walkup Northeast Correction Complex Attorney General & Reporter P. O. Box 5000 425 Fifth Avenue North Mountain City, TN 37683 Nashville, TN 37243-0493 R. Stephen Jobe Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Judge:LAFFERTY First Paragraph: The appellant, Sammy J. Miller, herein referred as "the petitioner," appeals the Johnson County Criminal Court's dismissal of his pro se petition for habeas corpus relief. After a jury trial in Hamilton County in December, 1977, the petitioner was found guilty of murder first degree and sentenced to death. On direct appeal, the petitioner's conviction for murder first degree was affirmed, but the Supreme Court modified the sentence of death to reflect a sentence of life imprisonment. Miller v. State, 584 S.W.2d 758 (Tenn. 1979). http://www.tba.org/tba_files/TCCA/Millersj_opn.WP6
STATE OF TENNESSEE VS. MELISSA ROBERTS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DANA L. SCOTT JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 117 East Main Street Gallatin, TN 37066 GEORGIA BLYTHE FELNER Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 LAWRENCE RAY WHITLEY District Attorney General WAYNE HYATT Assistant District Attorney General 113 East Main Street Gallatin, TN 37066 Judge:WELLES First Paragraph: The Defendant, Melissa Roberts, appeals as of right the trial court's revocation of her probation. She was sentenced on November 24, 1997 to four years at thirty percent for theft of property valued over $500 and theft of property valued over $1000. The court permitted her to serve her sentence on probation, and the conditions of her probation included being employed, paying probation costs, making restitution payments, and reporting to her probation officer. http://www.tba.org/tba_files/TCCA/Robertme_opn.WP6
STATE OF TENNESSEE VS. EDWARD LORENZO SAMUELS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: KARL DEAN JOHN KNOX WALKUP District Public Defender Attorney General & Reporter JEFFREY A. DeVASHER TIMOTHY BEHAN Assistant Public Defender Assistant Attorney General (On Appeal) 2nd Floor, Cordell Hull Building 425 Fifth Avenue North RALPH W. NEWMAN Nashville, TN 37243 (Asst Public Defender) 1202 Stahlman Building VICTOR S. JOHNSON, III Nashville, TN 37201 District Attorney General (At Hearing) SHARON L. BROX Assistant District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 Judge:WOODALL First Paragraph: The Defendant, Edward Lorenzo Samuels, appeals as of right the Davidson County Criminal Court's revocation of his community corrections sentence. In this appeal, Defendant argues that the trial court arbitrarily determined that Defendant should receive the maximum sentence and that the court did not have the authority, or in the alternative, erred, in ordering his sentence to be served consecutively to an unrelated, previously-imposed sentence. After a careful review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Samulsel_opn.WP6
STATE OF TENNESSEE VS. ROBERT P. THURMA Court:TCCA Attorneys: Judge: JONES First Paragraph: Appellant, ROBERT P. THURMAN, appeals the trial court's revocation of his probation. On October 12, 1994, appellant pled nolo contendere to nine counts of obtaining unemployment benefits through misrepresentation, Class E felonies. He received an agreed upon effective sentence of four years and was placed upon immediate probation. http://www.tba.org/tba_files/TCCA/Thurmanr_opn.WP6
STATE OF TENNESSEE VS. LON S. WALKER Court:TCCA Attorneys: For the Appellant: For the Appellee: John E. Herbison John Knox Walkup Attorney at Law Attorney General and Reporter 2016 Eighth Avenue South Nashville, TN 37204 Daryl J. Brand Assistant Attorney General (ON APPEAL) Criminal Justice Division 425 Fifth Avenue North William A. Cameron 2d Floor, Cordell Hull Building Attorney at Law Nashville, TN 37243-0493 100 South Jefferson Avenue Cookeville, TN 38501 William Edward Gibson (AT TRIAL) District Attorney General Ben Fann Lillie Ann Sells Asst. District Attorneys General 145 S. Jefferson Cookeville, TN 38501 Judge: HAYES First Paragraph: The appellant, Lon S. Walker, appeals as of right, his conviction by a Putnam County jury for second degree murder. The trial court imposed a sentence of twenty years in the Department of Correction. On appeal, the appellant raises three issues for our review: I. Whether the evidence is sufficient to sustain a conviction for second degree murder; II. Whether the trial court erred in instructing the jury regarding prior inconsistent statements; and III. Whether the trial court properly charged the jury regarding the impeachment of a witness. After a review of the record, the judgment of conviction is affirmed. http://www.tba.org/tba_files/TCCA/Walkerls_opn.WP6
STATE OF TENNESSEE VS. PAUL WILLIAM WARE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ARDENA J. GARTH JOHN KNOX WALKUP District Public Defender Attorney General and Reporter DONNA ROBINSON MILLER MICHAEL J. FAHEY, II Asst District Public Defender Assistant Attorney General Suite 300 - 701 Cherry Street 425 Fifth Avenue North Chattanooga, TN 37402 Nashville, TN 37243 WILLIAM H. COX District Attorney General 600 Market Street, Suite 300 Courts Building Chattanooga, TN 37402 Judge:WELLES First Paragraph: The Defendant, Paul Ware, was indicted in 1994 for felony murder and multiple counts of rape of a child. The State filed notice of intent to seek the death penalty. A Hamilton County jury found him guilty of felony murder and two counts of child rape, and he was sentenced to life without parole for the felony murder. At a subsequent sentencing hearing, the trial court imposed concurrent twenty-five year sentences for the child rape convictions and ordered that the twenty-five year sentences be served consecutively to the sentence of life without the possibility of parole. The Defendant now appeals his convictions and sentences pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Warepa_opn.WP6

PLEASE FORWARD THIS EMAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN TBALink!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion-Flash free each day by e-mail? Anyone -- whether a TBA member or not is welcome to subscribe ... it's free!

For the
Plain Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type:
SUBSCRIBE
3) Leave the body of the message blank

For the HTML Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type:
SUBSCRIBE HTML
3) Leave the body of the message blank

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

To STOP receiving TBALink Opinion-Flash:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type:
UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 1999 Tennessee Bar Association