October 26, 1999 Volume 5 -- Number 147 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):   00 New Opinion(s) from the Tennessee Supreme Court 02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 23 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 KENNETH KERR, JR. VS. MUNICIPAL CORPORATION OF JEFFERSON CITY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: John T. Batson, Jr. A. Benjamin Strand, Jr. Nathan D. Rowell Johnnie D. Sellars Watson, Hollow & Reeves Strand and Goddard P.O. Box 131 P.O. Box 219 Knoxville, TN 37901 Dandridge, TN 37725 Judge: BYERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. S 50-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). http://www.tba.org/tba_files/TSC_WCP/Kerrkenn_wc.wpd CARL EDWARD LOVING VS. LIBERTY MUTUAL INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellants: For the Appellee: William C. Skaggs Roger L. Ridenour Richard L. Burnette RIDENOUR, RIDENOUR & FOX Ayres & Parkey, Attorneys P. O. Box 530 P. O. Box 948 Clinton, TN 37717-0530 Knoxville, TN 37901 Judge: INMAN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff suffered a back injury in a job-related accident on November 4, 1996. The contested issue was the extent of permanent disability, which the Chancellor found was 65 percent to the whole body. The defendant disagrees, appeals, and presents the issues of excessiveness and the allowance of discretionary costs for review, which is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. S 50-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995). http://www.tba.org/tba_files/TSC_WCP/Loving_wc3.wpd SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/CERTLIST_1025.wpd MAHMOUD ALDURIDI, HOLLY J. ENOCH, WILLIAM J. FALCONE, TONYA D. FEURY, CARMEL JOHNSON, MELISSA JOHNSON, SANNYU OBARD, NATHAN K. SMITH, TONYA M. SMITH, and RUTH WILLEY CARMEL JOHNSON, MELISSA JOHNSON, SANNYU OBARD and RUTH WILLEY VS. COMMUNITY TRUST BANK, N.A., FIFTH THIRD BANK, HYUNDAI MOTOR FINANCE COMPANY, INC., and NATIONSBANK OF TEXAS, N.A., HYUNDAI MOTOR FINANCE COMPANY, INC. and NATIONSBANK OF TEXAS, N.A. WITH DISSENTING OPINION Court:TCA Attorneys: For the Plaintiffs/Appellants: For the Defendants/Appellees: Kenneth J. Mitteldorf Julie C. Murphy Nashville, Tennessee Nashville, Tennessee Judge: LILLARD First Paragraph: This case involves consumer installment sales contracts assigned by the seller to a creditor. The plaintiff consumers filed suit against the creditor assignee who financed their consumer contracts to purchase vehicles, seeking rescission or modification of the contracts based on the wrongful conduct of the seller. The trial court allowed the plaintiffs to recover from the creditor for the seller's misconduct, based on the Federal Trade Commission's Holder Rule, but limited the plaintiffs' recovery to the amount each plaintiff had paid to the creditor. We affirm in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/Alduridi_opn.wpd DISSENTING OPINION: http://www.tba.org/tba_files/TCA/Alduridi_dis.wpd BUDDY LEE ATTRACTIONS,INC. VS. WILLIAM MORRIS AGENCY, INC., and JOSEPH E. HARRIS CORRECTED OPINION Court:TCA Attorneys: SAMUEL D. LIPSHIE SCOTT K. HAYNES LUTHER WRIGHT, JR. Boult, Cummings, Conners & Berry 414 Union Street, Suite 1600 P. O. Box 198062 Nashville, Tennessee 37219 ATTORNEYS FOR PLAINTIFF/APPELLEE JAY S. BOWEN TIMOTHY L. WARNOCK GREGORY S. REYNOLDS Bowen Riley Warnock & Jacobson 1906 West End Avenue Nashville, Tennessee 37203 ATTORNEYS FOR DEFENDANTS/APPELLANTS Judge: CAIN First Paragraph: Defendant, William Morris Agency, Inc., appeals an adverse jury verdict in the amount of $250,000.00, trebled by the trial judge under Tennessee Code Annotated section 47-50-109. This defendant also appeals a partial summary judgment order granted to plaintiff prior to the three week jury trial. http://www.tba.org/tba_files/TCA/BUDDYLEE_OPN.wpd RONALD L. DAVIS VS. JAMES L. WEATHERFORD, SENIOR, JUDGE, et al. Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee, Kathy Kelley: Ronald L. Davis, Pro Se William H. Dale, Jr. Only, Tennessee Columbia, Tennessee For the Defendants/Appellees, Judge James L. Weatherford, Robert C. Sanders, William C. Bright and Shara A. Flacy: Paul G. Summers Michael E. Moore Martha A. Tarleton Nashville, Tennessee Judge: LILLARD First Paragraph: This is a civil rights case filed by a prisoner. The plaintiff was convicted in 1982 of aiding and abetting second degree murder. On July 14, 1997 he filed a civil rights claim against the judge who presided at his trial, the prosecutor who prosecuted his case, his court appointed public defender, the director of the public defender's office, and the county court clerk, alleging that they had conspired to deprive him of his constitutional rights. Four of the defendants filed a motion to dismiss for failure to state a claim. The remaining defendant, the court clerk, filed a motion for summary judgment. The trial court granted both motions. The plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/Davisr.wpd ANDREW GLUCK VS. CIVIL SERVICE COMMISSION Court:TCA Attorneys: R. Stephen Doughty; Weed, Hubbard, Berry & Doughty of Nashville For Appellant James L. Murphy, III, Director of Law William Michael Safley, Metropolitan Attorney Francis H. Young, Metropolitan Attorney The Department of Law of the Metropolitant Govenrment of Nashville and Davidson County for Appellee Judge: CRAWFORD First Paragraph: Petitioner/Appellant, Andrew Gluck, appeals the order of the chancery court affirming the decision of the Civil Service Commission (the Commission) relating to his demotion. http://www.tba.org/tba_files/TCA/Gluckan.wpd LORI LEE GRISSOM (BROWN) VS. JEFFREY DONALD GRISSOM Court:TCA Attorneys: JACK W. PIPER, JR., O'CONNOR, PETTY, CHILD & BOSWELL, Knoxville, for Appellant. ROBERT L. CROSSLEY, THE CROSSLEY LAW FIRM, P.C., Knoxville, for Appellee. Judge: FRANKS First Paragraph: In this action, the Trial Judge determined the former husband (husband) was no longer obligated to make alimony payments to the former wife (wife), as agreed upon by the parties in their Marital Dissolution Agreement. http://www.tba.org/tba_files/TCA/grissoml.wpd LAWRENCE A. HODGE VS. ROBERT C. EDWARDS Court:TCA Attorneys: For the Appellant: For the Appellee: Lawrence A. Hodge Robert C. Edwards Pro Se Pro Se Inmate Number 74811 382 Emory Road 7475 Cockrill Bend Ind. Road Blaine, TN 37709 Nashville, TN 37209-1010 Judge: SWINEY First Paragraph: This is an appeal from an Order of the Circuit Court for Knox County dismissing Appellant's complaint against his post-conviction attorney because it failed to state a cause of action by a short and plain statement of the claim as required by Rule 8.01, T.R.C.P., and because the claim is barred by the statute of limitations. Appellant states the issue as whether the Trial Court improperly dismissed his cause of action. Appellee raises the additional issue of whether the Trial Court should have granted his motion to dismiss for failure to prosecute. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/hodge.wpd GLENDA JENNINGS, et vir KEITH JENNINGS VS. KENNETH CASE, M.D.; SANDERS AND CASE MEDICAL CLINIC, P.C.; W. DAVID STEWART, M.D.; and ASSOCIATED SURGEONS CORRECTED OPINION Court:TCA Judge: KOCH First Paragraph: I concur with the court's conclusion that material factual disputes created by Dr. Rubin's affidavits prevent granting a summary judgment for Dr. Stewart. However, I file this separate opinion because I cannot concur with the court's conclusion that Dr. Rubin's affidavits likewise doom the summary judgment for Dr. Case. Notwithstanding Dr. Rubin's rather expansive and largely unsubstantiated notions about the standard of care of referring physicians, the court has overlooked an ineluctable ingredient to malpractice liability. A negligent act or omission by a physician does not give rise to liability unless it caused the patient to suffer injuries that he or she would not otherwise have suffered. http://www.tba.org/tba_files/TCA/jennings_con.wpd LEONA GENEVIEVE JUSTUS, EXECUTRIX VS. MOUNTAIN LIFE INSURANCE CO., ET AL Court:TCA Attorneys: C. DAN SCOTT and DAVID H. JONES, SCOTT & JONES, Sevierville, for Appellee, Nancy Simmons. LEWIS S. HOWARD, JR., Knoxville, for Appellee, Mountain Life Insurance Company. ROBERT L. OGLE, JR., OGLE & VENABLE, Sevierville, for Appellant. Judge: FRANKS First Paragraph: In this action to recover under a credit life insurance policy, the Trial Judge granted defendants summary judgment, and the Executrix has appealed. http://www.tba.org/tba_files/TCA/justusl.wpd SAM KNAFFL VS. THE DOUGLAS COMPANY Court:TCA Attorneys: For the Appellant: For the Appellee: Robert H. Green, J. Myers Morton, Rob Quillin George W. Morton, Jr. Kennerly, Montgomery & Finley, P.C. Morton & Morton, PLLC Knoxville, Tennessee Knoxville, Tennessee Judge: SWINEY First Paragraph: This is an appeal from an Order of the Chancery Court of Knox County, Chancellor Sharon Bell, denying defendant/appellant's motion to compel arbitration. The cause of action arose from a dispute between a subcontractor (Plaintiff) and the general contractor (Defendant) under a residential construction contract concerning a development in Knox County. Defendant, one of five named defendants, responded to Plaintiff's Complaint with a motion to order the parties to arbitration, citing an arbitration clause in the contract at issue, and to dismiss or for summary judgment, citing a venue selection clause in the same contract naming Lucas County, Ohio as exclusive venue for all litigation between the parties. http://www.tba.org/tba_files/TCA/KnafflS.wpd KAITLIN MCCOOL, by next friend and mother, ANGELA MCCOOL, BETTY MCCOOL and WILLIAM MCCOOL VS. PROFFITTS, INC. Court:TCA Attorneys: SCOTT N. BROWN, JR., and DANIEL M. STEFANIUK, SPEARS, MOORE, REBMAN & WILLIAMS, Chattanooga, for Plaintiffs-Appellants. C. DOUGLAS DOOLEY, CHARLES W. POSS, and JASON G. HOWELL, LEITNER, WILLIAMS, DOOLEY & NAPOLITAN, PLLC., Chattanooga, for Defendant-Appellee. Judge: FRANKS First Paragraph: In this action to recover damages for personal injuries resulting from a fall on defendant's escalator. A jury returned verdicts for the defendant and plaintiffs have appealed, insisting that the Trial Judge erred in refusing to charge a proper jury instruction, viz. "that violating a statute was negligence, per se, when there was evidence that made a statute, namely T.C.A. S68-121-109 appliccable". http://www.tba.org/tba_files/TCA/Mccoolk.wpd JAMES MILLER VS. MILLER BROTHERS FARMS, INC., LARRY L. MILLER, GARRY MILLER,) HON. EARL H. HENLEY, and ALLEN MILLER Court:TCA Attorneys: JOHN W. CLEVELAND, CLEVELAND & CLEVELAND, Sweetwater, for Plaintiff-Appellant. M. EDWARD OWENS, JR., LEWIS, KING, KRIEG, WALDROP & CATRON, P.C., Knoxville, for Defendants-Appellees, Larry L. Miller, Garry Miller & Allen Miller. JEFFREY L. CUNNINGHAM, CARTER, HARROD & CUNNINGHAM, PLLC, Athens, for Defendant-Appellee, Miller Brothers Farms, Inc. Judge: FRANKS First Paragraph: These appeals involve three consolidated cases, and our Opinion will consider the issues raised in the respective cases. Andrew Miller owned and operated a family farm near Sweetwater, and when he retired, his four sons, James, Larry, Garry and Allen, incorporated Miller Brothers Farms, Inc., ("Miller Bros."). Miller Brothers leased the farm land from Andrew Miller and purchased other farm land. When Andrew Miller died on July 14, 1992, he left his real property to his four sons as tenants in common. The land comprises 251.1 acres located on Glenlock Road in Monroe County. There are fifteen distinct improvements on the land, including four houses, two mobile home parks, six barns and three silos. http://www.tba.org/tba_files/TCA/millerj.wpd KIM NUCHOLS (WALKER) VS. BENNY NUCHOLS Court:TCA Attorneys: R. D. HASH, Maryville, for Appellant. GERALD C. RUSSELL, Maryville, for Appellee. Judge: FRANKS First Paragraph: The Trial Court, responding to the father's petition to modify the joint custody awarded at the time of the parties' divorce, ordered "physical custody to the father", but retained the joint custody to both parents. The mother has appealed. http://www.tba.org/tba_files/TCA/nucholsk.wpd IN THE MATTER OF: MATTHEW LANCE POWELL, A Minor Child Under the Age of 18. Court:TCA Attorneys: For Appellant For Appellee Matthew Lance Powell State of Tennessee MARK E. STEPHENS PAUL G. SUMMERS District Public Defender Attorney General and Reporter Sixth Judicial District Nashville, Tennessee Knoxville, Tennessee MARK E. DAVIDSON PAULA R. VOSS Assistant Attorney General Assistant Public Defender Nashville, Tennessee Sixth Judicial District Knoxville, Tennessee Judge: SUSANO First Paragraph: This is an appeal from an order of the Knox County Criminal Court affirming the juvenile court's order committing 18-year-old Matthew Lance Powell ("Powell") to the custody of the Department of Children's Services for a determinate sentence, i.e., to the child's 19th birthday. http://www.tba.org/tba_files/TCA/Powellml.wpd RONALD STEPHEN SATTERFIELD, SR. VS. GARY LONG and RICHARD M. SMITH WITH CONCURRING OPINION Court:TCA Attorneys: DAVID S. WIGLER, Knoxville, for Appellee. JOHN KNOX WALKUP, Attorney General & Reporter, WILLIAM J. MARETT, JR., MARY M. COLLIER, Assistant Attorneys General, Nashville, for Appellants. Judge: GODDARD First Paragraph: This is an action seeking damages for the tort of outrageous conduct. Plaintiff Ronald Satterfield, a former officer of the Tennessee Public Service Commission (PSC) sued Lieutenant Richard Smith and Captain Gary Long, his former supervisors at the PSC, alleging that they wrongfully caused him to be discharged by purposely manufacturing and reporting false charges against him. Plaintiff also alleged that the Defendants violated his constitutional rights of due process and free speech. The Trial Court dismissed Satterfield's constitutional claims and his claims against the Defendants in their official capacities, leaving only his outrageous conduct claims against the Defendants personally. http://www.tba.org/tba_files/TCA/satterfldrs_opn.wpd CONCURRING OPINION: http://www.tba.org/tba_files/TCA/saterfldrs_cop.wpd DORA (DORIS) L. SELVY, Widow of CARROLL W. SELVY, Deceased VS. CHRISTOPHER L. VINSANT, M.D. ST. MARY'S HEALTH SYSTEMS, INC., and RONALD K. SANDBERG, M.D. Court:TCA Attorneys: JOHN O. THREADGILL and SUSAN P. HERNDON, THREADGILL & ASSOCIATES, P.C., Knoxville, for Plaintiff-Appellant. JON G. ROACH and NATHAN D.. ROWELL, WATSON, HOLLOW & REEVES, P.L.C., Knoxville, for Defendant-Appellee. Judge: FRANKS First Paragraph: In this action, the Trial Judge granted defendant summary judgment, and plaintiff has appealed. Plaintiff's husband died on July 7, 1995, and on this record for purposes of bringing a medical malpractice claim, the statute of limitations began to run on the date of the husband's death. Plaintiff filed an action in the Circuit Court of Knox County on July 8, 1996. http://www.tba.org/tba_files/TCA/selvyd.wpd PATRICK JAMES THOMSON VS. HEATHER ALICIA ROACH THOMSON WITH DISSENTING OPINION Court:TCA Attorneys: A. Thomas Monceret of Knoxville for Appellant. F. D. Gibson, III, of Maryville for Appellee. Judge: INMAN First Paragraph: This is a post-divorce proceeding wherein both parties appeal the change of custody of their son and the visitation orders of the trial court together with a challenge to the trial court's jurisdiction. http://www.tba.org/tba_files/TCA/ThomsoP_opn.wpd DISSENTING OPINION: http://www.tba.org/tba_files/TCA/thomsopd_dis.wpd FRANK TURK VS. JOSEPH B. HOLDER, d/b/a HOLDER TREE FARMS Court:TCA Attorneys: PAUL G. WHETSTONE OF MORRISTOWN FOR APPELLANT MARK A. COWAN OF MORRISTOWN FOR APPELLEE Judge: GODDARD First Paragraph: Plaintiff Frank Turk appeals dismissal of his suit against Joseph B. Holder, d/b/a Holder Tree Farms, because Mr. Holder, a resident of Oregon, had insufficient contact with the State of Tennessee to be amenable to service of process in this State. http://www.tba.org/tba_files/TCA/turkfra.wpd VANTAGE TECHNOLOGY, LLC VS. MARK CROSS Court:TCA Attorneys: For Appellant For Appellee J. FORD LITTLE H. SCOTT REAMS MICHAEL J. KING Taylor, Reams, Woolf, McClane, Bright, Tilson & Harrison Allen & Carpenter, PLLC Morristown, Tennessee Knoxville, Tennessee Judge: SUSANO First Paragraph: Vantage Technology, LLC ("Vantage") filed this suit against its former employee, Mark Cross ("Cross"), seeking injunctive relief and damages for breach of a non-competition covenant. Following a bench trial, the Chancellor found that the covenant was unreasonable and unenforceable. http://www.tba.org/tba_files/TCA/Vantage.wpd RONALD BRADFORD WALLER VS. MELINDA BRYAN and WILLIAM H. COX, III Court:TCA Attorneys: For the Appellant: For the Appellee Melinda Bryan: RONALD BRADFORD WALLER PHILLILP A. NOBLETT Pro Se LAWRENCE W. KELLY Chattanooga, TN 37402 Judge: SWINEY First Paragraph: This appeal results from an attempt by Ronald Bradford Waller [Appellant], a Tennessee prison inmate, to secure copies of photographs taken during the investigation of his criminal case which are in the possession of the Chattanooga Police Department. Appellant filed his petition in the Chancery Court of Hamilton County under the Tennessee Public Records Act while his post-conviction proceeding was pending before the Tennessee Court of Criminal Appeals. The Chancellor dismissed the case, finding that Appellant's discovery rights in the criminal case are governed by T.C.A. S 40-3-209 and Supreme Court Rule 28, which do not provide for a petition in Chancery Court. We affirm. http://www.tba.org/tba_files/TCA/WALLER.wpd JAMENSENA WHITE, ET AL. VS. REVCO DISCOUNT DRUG CENTERS, INC. Court:TCA Attorneys: A. PHILIP LOMONACO, Knoxville, for Plaintiffs-Appellants. BARRY K. MAXWELL and RONALD T. HILL, EGERTON, McAFEE, ARMISTEAD & DAVIS, P.C., Knoxville, for Defendant-Appellee. Judge: FRANKS First Paragraph: Plaintiffs' complaint named as defendants, the City of Knoxville, the Chief of Police of Knoxville, six Police Officers, Knoxville Community Development Corporation, and Revco Discount Drug Centers, Inc., (Revco). The complaint alleged that the officers acted negligently in their use of deadly force against the deceased, and are therefore liable for his pain, suffering and death. Defendant Revco filed a Motion to Dismiss on the grounds that the Complaint failed to state a claim against it. The Trial Judge granted judgment, and the action was dismissed as to Revco, and an appeal has been properly perfected from that dismissal. http://www.tba.org/tba_files/TCA/whitej.wpd JUNE Z. WILKINSON VS. GRANT R. WILKINSON Court:TCA Attorneys: NICHOLAS D. HARE 500 Church Street 5th Floor Nashville, Tennessee 37219 ATTORNEY FOR PLAINTIFF/APPELLANT JOHN J. HOLLINS, SR. HOLLINS, WAGSTER & YARBROUGH, P.C. 424 Church Street, Suite 2210 Nashville, Tennessee 37219 ATTORNEY FOR DEFENDANT/APPELLEE Judge: COTTRELL First Paragraph: In this personal injury case, Plaintiff June Z. Wilkinson ("Wife") alleged that her former husband, Defendant Grant R. Wilkinson ("Husband") infected her with Herpes Simplex II. Wife appeals the trial court's decisions to deny her motion for a physical examination under Tenn. R. Civ. P. 35 and grant Husband's motion for summary judgment. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/Wilkinsn.wpd JOYCE LOUISE WISDOM VS. JOSEPH MADDRY and BLOUNT MEMORIAL HOSPITAL, INC. Court:TCA Attorneys: J. Mikel Dixon, Knoxville, for Appellant. Carl P. McDonald, Maryville, for Appellee, Blount Memorial Hospital, Inc. Judge: INMAN First Paragraph: Marilyn Roberts and Joyce Wisdom were patients in Blount Memorial Hospital, which employed Jody Maddry, a male nurse. They filed a joint complaint against the hospital alleging that they were sexually assaulted by Maddry. Liability of the hospital was alleged to be vicarious, and additionally, that the hospital was independently negligent because it failed to investigate Maddry's background which would have revealed his propensity to sexually abuse females. http://www.tba.org/tba_files/TCA/wisdom.wpd STATE OF TENNESSEE VS. JOHN THOMAS HEFLIN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CAMPBELL SMOOT PAUL G. SUMMERS District Public Defender Attorney General & Reporter RACHEL E. WILLIS KIM R. HELPER Assistant Public Defender Assistant Attorney General 605 East Carroll Street 2nd Floor, Cordell Hull Building P.O. Box 260 425 Fifth Avenue North Tullahoma, TN 37388 Nashville, TN 37243 C. MICHAEL LAYNE District Attorney General KENNETH SHELTON, JR. Assistant District Attorney General P.O. Box 147 Manchester, TN 37355 Judge: WOODALL First Paragraph: On January 13, 1997, the Coffee County Grand Jury indicted Defendant John Thomas Heflin for first degree murder. After a jury trial on March 9-11, 1998, Defendant was convicted of first degree murder and was sentenced to life in prison. http://www.tba.org/tba_files/TCCA/heflinjt.wpd STATE OF TENNESSEE VS. BRUCE HOLDER Court:TCCA Attorneys: FOR THE APPELLANT: DAVID ALLEN DOYLE District Public Defender REGAN R. COTHRON Assistant District Public Defender 117 East Main Street Gallatin, TN 37066-2801 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter LUCIAN D. GEISE Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 LAWRENCE RAY WHITLEY District Attorney General DEE GAY Assistant District Attorney General 113 West Main Street, 3rd Floor Gallatin, TN 37066-2803 Judge: RILEY First Paragraph: Defendant, Bruce Holder, appeals the revocation of his probation by the Sumner County Criminal Court. We AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/HOLDERB.wpd STATE OF TENNESSEE VS. GARY THOMAS MOORE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: KEITH S. SMARTT PAUL G. SUMMERS Attorney at Law Attorney General & Reporter 107 College Street McMinnville, TN 37110 KIM R. HELPER Asst. Attorney General 425 Fifth Ave. North 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 WILLIAM M. LOCKE District Attorney General THOMAS J. MINER Asst. District Attorney General Professional Building McMinnville, TN 37110 Judge: WITT First Paragraph: The defendant, Gary Thomas Moore, appeals from his Warren County conviction and from the resulting sentence by the trial court. A jury convicted the defendant of aggravated assault with a weapon, a Class C felony, and two counts of reckless endangerment, a Class E felony. After a sentencing hearing, the trial court imposed a Range I sentence of five years confinement for the assault conviction and one year of confinement in each of the reckless endangerment convictions, to be served concurrently in the Tennessee Department of Correction. In this appeal, the defendant raises the following issues: (1) whether the statutory violations of the jury selection procedures violated the defendant's due process rights and resulted in prejudice to the administration of justice; and (2) whether the trial court improperly sentenced the defendant. After a review of the record, the briefs of the parties, and the applicable law, we affirm. http://www.tba.org/tba_files/TCCA/MOORE-G.wpd STATE OF TENNESSEE VS. JEFFREY W. OSBORNE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TRIPPE STEVEN FRIED JOHN KNOX WALKUP 302 Third Avenue South Attorney General and Reporter Franklin, TN 37064 KIM R. HELPER Assistant Attorney General 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243 RONALD L. DAVIS District Attorney General SHARON E. TYLER and JEFFREY PRESTON BURKS Assistant District Attorney General P. O. Box 937 Franklin, TN 37065-0937 Judge: WILLIAMS First Paragraph: The defendant, Jeffrey W. Osborne, appeals from his conviction by a Williamson County jury for Possession of Drugs in a Penal Institution, a Class C felony. The Williamson County Circuit Court sentenced the defendant as a Range III persistent offender to eleven years in the Department of Correction, to be served concurrently with a prior unrelated sentence. http://www.tba.org/tba_files/TCCA/OSBORNJW.wpd STATE OF TENNESSEE VS. SHELIA SHARPTON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: PAUL G. SUMMERS J. RUSSELL PARKES Attorney General & Reporter 102 West 7th St. P.O. Box 692 ELIZABETH T. RYAN Columbia, TN 38402 Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493 MIKE BOTTOMS District Attorney General LARRY NICKELL Asst. District Attorney General P.O. Box 1619 Columbia, TN 38401-1619 Judge: PEAY First Paragraph: The defendant, Shelia Sharpton, pursuant to a plea agreement, pled nolo contendere to two counts of vehicular homicide, a Class C felony. The defendant was sentenced to a term of four years on each count to run consecutively. The trial court subsequently suspended the entire sentence. The State now appeals and contends that the trial court erroneously suspended the defendant's sentence. After a review of the record and applicable law, we find no merit to the State's contentions and thus affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/SHARPTON.wpd STATE OF TENNESSEE VS. JIMMY THORNTON Court:TCCA Attorneys: For Appellant: For Appellee: Herbert S. Moncier Paul G. Summers and David Wigler, Attorneys Attorney General & Reporter Suite 775, Nations Bank Center 550 Main Avenue Ellen H. Pollack Knoxville, TN 37902 Assistant Attorney General (on appeal) Criminal Justice Division 425 Fifth Avenue North William Leibrock, Attorney Nashville, TN 37243 339 East Main Street Newport, TN 37821 Charles Atchley, Jr. Assistant District Attorney and 125 Court Avenue, Suite 301-E Sevierville, TN 37862 Richard Talley, Attorney 145 East Main Street Dandridge, TN 37725 (at trial) Judge: WADE First Paragraph: The defendant, Jimmy Thornton, was convicted of two counts of sale of cocaine and two counts of conspiracy to sell cocaine. The trial court imposed a Range II sentence of twenty years on each count. Three of the four sentences are to be served consecutively; the effective sentence is, therefore, sixty years. Fines totaled $800,000. http://www.tba.org/tba_files/TCCA/Thornt~1.wpd STATE OF TENNESSEE VS. JEFFREY WALKER Court:TCCA Attorneys: For the Appellant: For the Appellee: Shara Ann Flacy John Knox Walkup District Public Defender Attorney General of Tennessee and and William C. Bright Clinton J. Morgan Assistant Public Defender Assistant Attorney General of Tennessee 128 North 2nd Street 450 James Robertson Parkway P.O. Box 1208 Nashville, TN 37243-0493 Pulaski, TN 38478 T. Michael Bottoms District Attorney General P.O. Box 459 Lawrenceburg, TN 38464-0459 Assistant District Attorney General Judge: TIPTON First Paragraph: The defendant, Jeffrey Walker, appeals as of right from his conviction by a jury in the Maury County Circuit Court for selling one-half gram or more of a substance containing cocaine, a Class B felony. The trial court sentenced the defendant as a career offender to thirty years in the custody of the Department of Correction to be served consecutively to prior sentences. The court also imposed a two-thousand-dollar fine. http://www.tba.org/tba_files/TCCA/WALKERJ.wpd STATE OF TENNESSEE VS. PARIS A. WEAVER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ARDENA J. GARTH PAUL G. SUMMERS District Public Defender Attorney General & Reporter DONNA ROBINSON MILLER MARVIN S. BLAIR, JR. and Assistant Attorney General CHRISTIAN CODER 425 Fifth Avenue North Asst District Public Defender Nashville, TN 37243 701 Cherry Street, Suite 300 Chattanooga, TN 37402 WILLIAM H. COX, III District Attorney General H. C. BRIGHT, III Assistant District Attorney 600 Market Street, Suite 310 Chattanooga, TN 37402 Judge: WILLIAMS First Paragraph: The defendant, Paris A. Weaver, appeals from the Hamilton County Criminal Court's order revoking his probation. The defendant contends that the trial court had insufficient evidence to support revocation. We AFFIRM the trial court's order revoking probation. http://www.tba.org/tba_files/TCCA/Weaverpa.wpd STATE OF TENNESSEE VS. JOHN WILCOX Court:TCCA Attorneys: For the Appellant: For the Appellee: William J. Brown Paul G. Summers 23 N. Ocoee Street Attorney General of Tennessee Post Office Box 1001 and Cleveland, TN 37364-1001 Erik W. Daab Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Jerry N. Estes District Attorney General 130 Washington Avenue, NE Post Office Box 647 Athens, TN 37371 Judge: TIPTON First Paragraph: The defendant, John Wilcox, appeals as of right from his conviction by a jury in the McMinn County Criminal Court for second degree murder, a Class A felony. The defendant was sentenced to fifteen years confinement in the custody of the Department of Correction. http://www.tba.org/tba_files/TCCA/Wilcox.wpd STATE OF TENNESSEE VS. BLAINY D. ZACHARY Court:TCCA Attorneys: For the Appellant: For the Appellee: Samuel E. Wallace, Jr. Paul G. Summers Wallace & Wallace Attorney General and Reporter Attorneys 227 Second Avenue North Nashville, TN 37201 Elizabeth T. Ryan Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 Victor S. Johnson III District Attorney General Edward S. Ryan Asst. District Attorney General Washington Square, Suite 500 222-2nd Avenue North Nashville, TN 37201-1649 Judge: HAYES First Paragraph: The appellant, Blainy D. Zachary, was indicted by a Davidson County Grand Jury for the offenses of driving under the influence, third offense, and driving on a revoked license. The appellant proceeded to trial, and, after the jury was impaneled and the indictment read, pled guilty to driving on a revoked license. The trial continued and the jury found the appellant guilty of driving under the influence, third offense. The trial court sentenced the appellant to 11 months, 29 days, suspended except for 180 days for the DUI conviction, and 11 months, 29 days, suspended except for 45 days for the driving on revoked conviction. These sentences were ordered to be served concurrently. In his sole issue on appeal, he contends that the prosecutor's comments during closing argument constitute prosecutorial misconduct requiring reversal of his DUI conviction. http://www.tba.org/tba_files/TCCA/Zacharyb.wpd 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. 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