May 24, 1999
Volume 5 -- Number 070

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):
 
04 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
09 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
 

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Lucian T. Pera
Editor-in-Chief, TBALink


TODD FREDERICK BROOKS
VS.
LINDA FAYE CARTER

Court:TSC

Attorneys:                          
FOR APPELLANT                       FOR APPELLEE
The Hardison Law Firm               Rita L. Stotts  
Robert L. J. Spence, Jr.            Viola E. Johnson
Memphis, TN                         Memphis, TN 

Judge:DROWOTA

First Paragraph:

In this child custody case, we granted the application for extraordinary
appeal to consider whether the Court of Appeals erred by ordering that
mandate issue before the time period set forth by Tenn. R. App. P. 42
had expired.

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


LORRAINE BURTON SPIERS MARCUS, VS. TRENT WRIGHT MARCUS Court:TSC Attorneys: FOR APPELLANT FOR APPELLEE Daniel Loyd Taylor Caren B. Nichol Craig B. Flood, II Memphis, TN Memphis, TN Judge:DROWOTA First Paragraph: In this case, we consider whether the Chancery Court of Shelby County abused its discretion in declining jurisdiction of a suit for the modification of child custody. Apparently finding that the plaintiff was barred from filing suit in Tennessee due to her violation of previous child support orders entered in North Carolina, the trial court dismissed the plaintiff's complaint. The Court of Appeals reversed. Because we find that the trial court acted within its discretion as set forth in Tenn. Code Ann. S 36-6-209(b) (1996), we reverse the Court of Appeals and reinstate the trial court's order dismissing the plaintiff's complaint. http://www.tba.org/tba_files/TSC/Marcuslo_opn.WP6
STATE OF TENNESSEE VS. WILBERT K. ROGERS, Court:TSC Attorneys: For the Appellant: For the Appellee: Walker Gwinn John Knox Walkup Assistant Public Defender Attorney General & Reporter Memphis, Tennessee Michael E. Moore W. Mark Ward Solicitor General Assistant Public Defender Memphis, Tennessee Todd R. Kelley Assistant Attorney General Tony N. Brayton Nashville, Tennessee Assistant Public Defender Memphis, Tennessee William L. Gibbons (Trial Only) District Attorney General 30th Judicial District Amy Weirich Assistant District Attorney General Memphis, Tennessee Judge:CRAFT First Paragraph: The sole issue in this appeal is whether the common law year-and-a-day rule is currently a viable principle of criminal law in Tennessee. The defendant argued in the Court of Criminal Appeals that his conviction for second degree murder should be set aside because the victim's death did not occur within a year and one day of the fatal stab wounds. The Court of Criminal Appeals rejected the defendant's argument and affirmed his conviction upon finding that the common law year-and-a-day rule was abolished by the Criminal Sentencing Reform Act of 1989. For the reasons that follow, we hold that the rule was not abolished by the 1989 Criminal Sentencing Reform Act. However, the justifications originally supporting recognition of the rule have been eroded by advances in medical science, improved trial procedure, and sentencing reforms. Therefore, we hereby abolish the now obsolete common law year-and-a-day rule. Because the rule has been judicially abrogated by almost every court which has recently considered the issue, we conclude that our decision does not constitute an unforseeable judicial enlargement of a criminal statute; therefore, retrospective application of this decision is not barred by the ex post facto clauses of the state and federal constitutions. Accordingly, we affirm, on the separate grounds stated, the judgment of the Court of Criminal Appeals which upheld the defendant's conviction of second degree murder. http://www.tba.org/tba_files/TSC/Rogerswk_opn.WP6
FRANK SANJURJO, et al. VS. LOWELL WOODS Court:TSC ORDER Judge:BLOUNT First Paragraph: We granted the appellant's application for permission to appeal to review the decision of the Court of Appeals sitting at Knoxville. After due consideration of the record, briefs, applicable authority, and oral argument of the parties, we conclude that the appeal was "Improvidently Granted." It is, therefore, ORDERED that the appeal is hereby dismissed at costs to the appellant, for which execution may issue if necessary. http://www.tba.org/tba_files/TSC/Sanjurjo_ord.WP6
BETHANY CHRISTIAN SERVICES, INC. VS. JONATHAN NATHANIEL JACKSON Court:TCA Attorneys: MICHAEL S. JENNINGS, SAMPLES, JENNINGS & PINEDA, P.L.L.C., Chattanooga, for Appellee. BARBARA L. BROERSMA, Chattanooga, for Appellant. Judge:FRANKS First Paragraph: In this termination of parental rights case, plaintiff Bethany Christian Services, Inc., sued the putative father, Jonathan Nathaniel Jackson, and the Trial Judge terminated Jackson's parental rights. http://www.tba.org/tba_files/TCA/Bethany_opn.WP6
RUBYE WYRICK CRESWELL, VS. JOHN E. CRESWEL Court:TCA Attorneys: JOHN P. VALLIANT, JR., and PAUL HENSLEY, Knoxville, for Plaintiff-Appellee. SARAH Y. SHEPPEARD and JASON H. LONG, SHEPPEARD & SWANSON, P.L.C., Knoxville, for Defendant-Appellant. Judge:FRANKS First Paragraph: In this divorce action both parties appeal the distribution of the marital property ordered by the Trial Judge, raising issues as to the classification, valuation and equitable distribution of the properties owned by the parties at the time of the divorce. http://www.tba.org/tba_files/TCA/Creswell_opn.WP6
STATE OF TENNESSEE, EX REL., JUDY DEBYL, VS. BRYAN SCOTT GRAHAM Court:TCA Attorneys: For Appellant For Appellee D. MITCHELL BRYANT PAUL G. SUMMERS Cleveland, Tennessee Attorney General & Reporter Nashville, Tennessee TAMMY D. KENNEDY Assistant Attorney General Nashville, Tennessee Judge:SUSANO First Paragraph: This is post-divorce litigation between the parents of Peyton Tanner Graham ("Tanner") (DOB: October 14, 1980). The proceedings below, as pertinent to this appeal, focused on the child support obligations of the minor child's father, Bryan Scott Graham ("Father"). After the trial court granted Judy Debyl ("Mother") custody of Tanner, it adjudged a child support arrearage against Father of $4,599.29 and ordered him to continue paying child support of $117.81 per week until his obligation terminated pursuant to the provisions of T.C.A. S 34-11-102(b). http://www.tba.org/tba_files/TCA/Debyljg_opn.WP6
STATE OF TENNESSEE, ex rel., CAMPBELL COUNTY, TENNESSEE, et al. VS. ELK VIEW LAND AND GRAVEL, INC., et al., and BARBARA LAY, VS. JOE KIDD, et ux. Court:TCA Attorneys: For Appellants For Appellee State of Tennessee DAVID A. STUART JOHN KNOX WALKUP Stuart & Van Riper Attorney General and Reporter Clinton, Tennessee CYNTHIA L. PADUCH Senior Counsel For Appellee Campbell County, Tennessee PETER D. VAN DE VATE Knoxville, Tennessee For Appellees Joe Kidd and wife, Beulah Kidd DAVID E. RODGERS Kramer, Rayson, Leake, Rodgers & Morgan Oak Ridge, Tennessee Judge:SUSANO First Paragraph: This appeal requires us to determine whether the lower court erred when it conducted a bench trial on the merits of the parties' respective claims and thereafter issued a permanent injunction, all in the face of a written demand for a jury trial. http://www.tba.org/tba_files/TCA/Elkview_opn.WP6
ALBERT C. HARJES, III, and wife, MARY DENISE HARJES, VS. JEWELL I. RUSSELL, and DONNA RUSSELL Court:TCA Attorneys: For Appellant For Appellees JEWELL I. RUSSELL JAMES W. CLEMENTS, III Pro Se Kennedy, Fulton, Koontz & Woodbury, Tennessee Farinash Chattanooga, Tennessee Judge:SUSANO First Paragraph: Plaintiffs Albert C. Harjes, III, and his wife, Mary Denise Harjes, filed this action against Jewell I. Russell and her daughter, Donna Russell, seeking damages for the Russells' alleged misrepresentations in connection with the sale of the Russells' residence to the plaintiffs. Following a bench trial, the court found that Jewell I. Russell ("Russell") had made a misrepresentation regarding the existence of water problems on the subject property. Accordingly, the trial court awarded the plaintiffs damages of $2,950, which amount represents the cost of repairs to the property. http://www.tba.org/tba_files/TCA/Harjesac_opn.WP6
MIKE HARVEY, on behalf of himself and all others similarly situated, VS. FORD MOTOR CREDIT COMPANY Court:TCA Attorneys: GORDON BALL, Knoxville, for Plaintiff-Appellant. STEVEN D. LIPSEY, STONE & HINDS, P.C., Knoxville, and THOMAS M. BYRNE and DANIEL H. SCHLUETER, SUTHERLAND, ASBILL & BRENNAN, LLP, Atlanta, for Defendant-Appellee. PAUL G. SUMMERS, Tennessee Attorney General and Reporter, and TIMOTHY C. PHILLIPS, Assistant Attorney General, Nashville, Amicus Curiae for the State of Tennessee. Judge:FRANKS First Paragraph: Appellant filed his complaint designated a class action, alleging that Ford Motor Credit Company ("Ford Credit") engaged in a scheme with Ford dealers to mislead consumers and conceal the practice of dealer reserve. The complaint initially alleged two causes of action based on Ford Credit's violation of the Tennessee Consumer Protection Act ("TCPA") and unjust enrichment. The Trial Court conditionally certified the requested class of consumers, but subsequently set aside that order. http://www.tba.org/tba_files/TCA/Harveym_opn.WP6
STEWART WAYNE PAIT VS. CITY OF GATLINBURG and HARRY MONTGOMERY Court:TCA Attorneys: STEWART WAYNE PAIT, Pro Se, APPELLANT RONALD E. SHARP OF SEVIERVILLE FOR APPELLEES Judge:GODDARD First Paragraph: Plaintiff Stewart Wayne Pait appeals a judgment of the Chancery Court for Sevier County which dismissed his suit seeking certain information he contended was possessed by the Defendants in connection with his criminal conviction for solicitation to commit first degree murder and forgery. http://www.tba.org/tba_files/TCA/Paitst_opn.WP6
STATE OF TENNESSEE, VS. RICHARD M. PARROTT and EDITH L. PARROTT Court:TCA Attorneys: For Appellant Richard Parrott: For the Appellee: Charles R. Ray John Knox Walkup 211 Third Avenue North Attorney General of Tennessee Nashville, TN 37219-8288 and Janis L. Turner For Appellant Edith L. Parrott: Assistant Attorney General of Tennessee 425 Fifth Avenue North John E. Herbison Nashville, TN 37243-0493 2016 Eighth Avenue South Nashville, TN 37204 H. Greeley Wells, Jr. District Attorney General P.O. Box 526 Blountville, TN 37617-0526 Judge:TIPTON First Paragraph: The defendants, Richard M. and Edith L. Parrott, appeal as of right from their respective drug convictions in a jury trial in the Sullivan County Criminal Court, specifically Mr. Parrott's convictions for possession of a schedule III drug and possession of a schedule IV drug, Class A misdemeanors, and Mrs. Parrott's convictions for possession with intent to sell over one-half gram of a schedule II drug, a Class B felony, and two counts of possession of a schedule III drug, a Class A misdemeanor. Mr. Parrott received an eleven-month, twenty-nine-day concurrent sentence for each conviction with fifty percent to be served in the county jail and the remainder to be served on probation. http://www.tba.org/tba_files/TCA/Parrotrm_opn.WP6
RUTH L. WILLIAMS VS. JAMES BOTTS and wife, BRENDA BOTT Court:TCA Attorneys: CHRIS RALLS, Maryville, for Plaintiff-Appellant. REX A. DALE, JOHNSON & DALE, Lenoir City, for Defendants-Appellees. Judge:FRANKS First Paragraph: In this action, the issue is the width of plaintiff's right-of-way across a portion of defendants' property. The Trial Court determined the width to be 25 feet and the plaintiff has appealed. http://www.tba.org/tba_files/TCA/Williams_opn.WP6
STATE OF TENNESSEE VS. JOY ELIZABETH BARRON Court:TCCA Attorneys: FOR THE APPELLANT: JOHN KNOX WALKUP Attorney General and Reporter TODD R. KELLEY Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 CHARLES E. HAWK District Attorney General FRANK A. HARVEY Assistant District Attorney General P.O. Box 703 Kingston, TN 37763-0703 FOR THE APPELLEE: JOE H. WALKER District Public Defender WALTER B. JOHNSON II Assistant District Public Defender 502 Roane Street P.O. Box 334 Harriman, TN 37748-0334 Judge:RILEY First Paragraph: A Roane County Grand Jury indicted defendant in February 1997 for four criminal offenses, including three felonies. While on bond, defendant committed another felony in Loudon County. She pled guilty in Loudon County and was sentenced in November 1997. Subsequently, she pled guilty and was sentenced on the Roane County charges in June 1998. The trial court allowed the Roane County sentences to run concurrently to the Loudon County convictions. The state appeals this decision and argues that consecutive sentencing is mandatory under these circumstances. Defendant concedes the issue, and we agree. Thus, we REVERSE and REMAND for entry of modified judgments which reflect that the sentences for the Roane County convictions run consecutively to the Loudon County conviction. http://www.tba.org/tba_files/TCCA/Barronje_opn.WP6
TIM DENTON VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Tim Denton, pro se John Knox Walkup M. C. R. C. F. Box 2000 Attorney General and Reporter Wartburg, TN 37887 450 James Robertson Parkway Nashville, TN 37243-0493 Ellen Pollack Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Frank Harvey Assistant District Attorney General P.O. Box 703 Kingston, TN 37763 Judge:OGLE First Paragraph: The petitioner, Tim Denton, appeals the Morgan County Criminal Court's dismissal of his petition for a writ of habeas corpus. On November 27, 1989, a Cocke County Grand Jury indicted the appellant for aggravated rape, armed robbery, and aggravated kidnapping, occurring in August of 1989. Following a trial by jury, the Cocke County Criminal Court convicted the petitioner of all three offenses and imposed an effective sentence of twenty-two (22) years incarceration in the Tennessee Department of Correction. http://www.tba.org/tba_files/TCCA/Dentonti_op.WP6
STATE OF TENNESSEE VS. TEDDY ECHOLS, a.k.a. TEDDY LEE ECHOLS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ARDENA H, GARTH JOHN KNOX WALKUP District Public Defender Attorney General & Reporter DONNA ROBINSON MILLER MICHAEL J. FAHEY, II Assistant Public Defender Assistant Attorney General 701 Cherry Street, Ste 300 2nd Floor, Cordell Hull Building Chattanooga, TN 37402 425 Fifth Avenue North Nashville, TN 37243 WILLIAM H. COX, III District Attorney General BARRY A. STEELMAN Assistant District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402 Judge:WOODALL First Paragraph: The Defendant, Teddy Echols (a.k.a. Teddy Lee Echols), appeals as of right his conviction in the Knox County Criminal Court for aggravated robbery. The trial court sentenced Defendant as a Range I Standard Offender to eight (8) years and one (1) month in the Tennessee Department of Correction. In this appeal, Defendant raises the following two issues: (1) whether the evidence was sufficient to establish that Defendant was the perpetrator of the crime; and (2) whether the jury instruction regarding parole eligibility release dates violated Defendant's right to due process. After a careful review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Echolste_opn.WP6
STATE OF TENNESSEE VS. CHRIS EUGENE ETTERS Court:TCCA Attorneys: For Appellant: For Appellee: John Knox Walkup David Overbay Attorney General and Reporter 1740 Euclid Avenue 450 James Robertson Parkway Bristol, VA 24203 Nashville, TN 37243-0493 Vincent Sikora Albert L. Partee, III P.O. Box 821 Senior Counsel Piney Flats, TN 37686 Enforcement Division 425 Fifth Avenue North, 2nd Floor Nashville, TN 37243-0494 Lewis Combs, Jr. Assistant District Attorney General Blountville, TN 37617 Judge:OGLE First Paragraph: The defendant, Chris Eugene Etters, was indicted on February 12, 1997, on one count of vandalism in the amount of $10,000 or more and on one count of violating the Tennessee Water Quality Act. The defendant applied for pretrial diversion. On June 2, 1997, the District Attorney General denied the request. On January 7, 1998, the Criminal Court of Sullivan County overruled the District Attorney General and granted the defendant pretrial diversion. Accordingly, on February 10, 1998, the District Attorney General entered into a memorandum of understanding with the defendant, setting forth the conditions of the defendant's pretrial diversion. The State additionally applied for permission to appeal the interlocutory order of the trial court pursuant to Tenn. R. App. P. 9, which application was granted by the trial court and by this court. In this appeal, the State asserts that the trial court incorrectly overruled the District Attorney General's denial of pretrial diversion. http://www.tba.org/tba_files/TCCA/Etters_div.WP6
JULIUS GOODMAN VS. HOWARD CARLTON, WARDEN, and STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JULIUS GOODMAN, pro se JOHN KNOX WALKUP Northeast Correction Complex #91453 Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683 ELLEN H. POLLACK Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 JOE C. CRUMLEY, JR. District Attorney General 114 Alf Taylor Road Johnson City, TN 37601 Judge:WOODALL First Paragraph: Julius Goodman, the Petitioner, appeals the dismissal of his petition for habeas corpus relief. In 1985, the Petitioner pled guilty to aggravated rape and was sentenced to forty (40) years imprisonment in the Haywood County Circuit Court. On February 13, 1998, Petitioner filed a petition for habeas corpus relief, asserting that the indictment for aggravated rape was invalid as it did not contain the requisite mens rea. The trial court dismissed the petition based upon the issue not being amenable to habeas corpus relief. On March 25, 1998, the Petitioner filed a motion to reconsider the dismissal and to amend his petition for habeas corpus relief. In the amendment, Petitioner stated that the District Attorney failed to sign the indictment sent to the grand jury and such failure rendered the indictment against him void. This motion was also denied by the trial court, and Petitioner appeals on the basis of this denial. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Goodmanj_opn.WP6
SEYMORE HAYES, III VS. STATE OF TENNESSEE Court:TCCA ORDER First Paragraph: By separate order, the court has affirmed the judgment of the criminal court in this case by order rather than by formal opinion pursuant to Rule 20, Tenn. Crt. Crim. App. Rules. It appearing that the petitioner is indigent, it is hereby ORDERED that the costs of this cause are taxed to the State of Tennessee. http://www.tba.org/tba_files/TCCA/hayess_ord.WP6
STATE OF TENNESSEE VS. HARRY DAVID JOHNSON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ROBERT C. NEWTON JOHN KNOX WALKUP 900 Anderson Street Attorney General & Reporter Bristol, TN 37620 ELIZABETH B. MARNEY PAUL R. WOHLFORD Assistant Attorney General 900 Anderson Street 425 Fifth Avenue North Bristol, TN 37620 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 GARY E. BREWER P.O. Box 2046 TERESA M. SMITH Morristown, TN 37816-2046 JOSEPH EUGENE PERRIN Asst. Dist. Attorney General P.O. Box 526 Blountville, TN 37617 Judge:WITT First Paragraph: The defendant, Harry David Johnson, appeals his conviction in the Sullivan County Criminal Court where a jury found him guilty of the first degree murder of his wife, Katherine Trotter Johnson. The trial court sentenced him to incarceration for life. http://www.tba.org/tba_files/TCCA/Johnsnhd_opn.WP6
BOBBY ALLEN JOYNER VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: BOBBY ALLEN JOYNER, pro se JOHN KNOX WALKUP N.E.C.C. #114016 Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683 ELLEN H. POLLACK Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 H. GREELEY WELLS, JR. District Attorney General 140 Blountville Bypass P.O. Box 526 Blountville, TN 37617-0526 Judge:WOODALL First Paragraph: The Petitioner, Bobby Allen Joyner, appeals as of right the trial court's dismissal of his petition for post-conviction relief. After a careful review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Joynerba_opn.WP6
STATE OF TENNESSEE VS. FRANKIE LEE LUNSFORD Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TERRY C. FRYE, JOHN KNOX WALKUP 1969 Lee Highway Attorney General & Reporter Bristol, Virginia 24201 ELIZABETH B. MARNEY Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 H. GREELEY WELLS, JR. District Attorney General TERESA MURRAY-SMITH Assistant District Attorney General P.O. Box 526 Blountville, TN 37617 Judge:WOODALL First Paragraph: The Defendant, Frankie Lee Lunsford, appeals as of right from his sentencing in the Sullivan County Criminal Court. Defendant was charged with one (1) count of Class D felony child abuse and pled guilty on February 23, 1998. As agreed to by the State and the Defendant as part of the plea agreement, the trial court was to determine the manner of service of a three (3) year sentence for the Defendant as a Range I Standard Offender. The State agreed not to oppose Defendant's request for alternative sentencing. The trial court denied any form of alternative sentencing, and sentenced the Defendant to serve three (3) years in the Tennessee Department of Correction. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Lunsfrdf_opn.WP6
JONATHAN STEPHENSON VS. HOWARD CARLTON, WARDEN, and STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JONATHAN STEPHENSON, pro se JOHN KNOX WALKUP Northeast Correction Complex #140145 Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683 ELLEN H. POLLACK Assistant Attorney General 2nd Floor, Cordell Hull Bldg 425 Fifth Avenue North Nashville, TN 37243 JOE C. CRUMLEY, JR. District Attorney General 114 Alf Taylor Road Johnson City, TN 37601 Judge:WOODALL First Paragraph: The Petitioner, Jonathan Stephenson, appeals from the dismissal of his petition for habeas corpus relief. Petitioner was tried and convicted in 1990 for conspiracy to commit first degree murder and for the first degree murder of his wife. He was originally sentenced to death. Petitioner's convictions were affirmed on appeal, but the death sentence was reversed and the case was remanded to the trial court for resentencing. State v. Stephenson, 878 S.W.2d 530 (Tenn. 1994). On October 6, 1994, Petitioner was resentenced to life without parole for the first degree murder conviction and to sixty (60) years for conspiracy to commit the murder. http://www.tba.org/tba_files/TCCA/Stphnsnj_opn.WP6


						
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