November 30, 1999 Volume 5 -- Number 163 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 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 19 New Opinion(s) from the Tennessee Court of Appeals 20 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 BENNY N. BLANKENSHIP and SHEILA BLANKENSHIP and BLUE CROSS AND BLUE SHIELD OF TENNESSEE VS. ESTATE OF JOSHUA C. BAIN and BOB WILLIAMS FORD LINCOLN-MERCURY Court:TSC Attorneys: For Appellants: For Appellee, Blue Cross and Blue Shield of Tennessee: David E. High Nashville, Tennessee Jerome J. Cohen Nashville, Tennessee John Pellegrin Gallatin, Tennessee John B. Ingleson Nashville, Tennessee Peter D. Heil Nashville, Tennessee For Amicus Curiae, Tennessee For Amicus Curiae, Tennessee Trial Lawyers Assoc: Department of Health, Bureau of TennCare: Dianne Elizabeth Lashmit Paul G. Summers GILREATH & ASSOCIATES Attorney General and Reporter Knoxville, Tennessee Michael E. Moore Jimmy W. Bilbo Solicitor General LOGAN, THOMPSON, MILLER, BILBO, THOMPSON & FISHER, P.C. Sue A. Sheldon Cleveland, Tennessee Senior Counsel Nashville, Tennessee Judge: ANDERSON First Paragraph: We granted this appeal to decide whether a person who receives health care benefits under Tennessee's medical assistance program ("TennCare") must be "made whole" for his or her loss before the State is entitled to subrogation for any medical expenses it paid on the person's behalf. http://www.tba.org/tba_files/TSC/Blanknshb.wpd STATE OF TENNESSEE VS. MARIO GUTIERREZ Court:TSC Attorneys: FOR APPELLANT: FOR APPELLEE: RICHARD W. DEBERRY JOHN KNOX WALKUP Camden, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General MICHAEL J. FAHEY, II Assistant Attorney General Nashville, TN G. ROBERT RADFORD District Attorney General JOHN OVERTON Assistant District Attorney Savannah, TN Judge: BIRCH First Paragraph: The defendant, Mario Gutierrez, was convicted by a jury of voluntary manslaughter for shooting a female friend with whom he resided. He was sentenced to six-years imprisonment. He now challenges his sentence, contending that the intermediate court erred in holding that by shooting his friend, he abused a position of private trust. Tenn. Code Ann. S 40-35-114(15)(1997). Thus, the issue we address is: Whether the defendant's "live-in" relationship with the adult victim justifies application of the "abuse of private trust" sentence enhancement factor? http://www.tba.org/tba_files/TSC/GUTIERM.wpd BETTY NELSON VS. WAL-MART STORES, INC. Court:TSC Attorneys: For the Appellant: For Appellee: Jeffrey P. Boyd Patrick Johnson B. Chadwick Rickman JOHNSON, SCRUGGS & ALLEN, KOPET & BOYD, PLLC BARFIELD Jackson, Tennessee Nashville, Tennessee Judge: ANDERSON First Paragraph: We granted the motion to review this workers' compensation case to clarify the circumstances under which a worker's award limited by the provisions of Tenn. Code Ann. S 50-6-241 (1999) may exceed the statutory caps pursuant to Tenn. Code Ann. S 50-6-242 (1999). In resolving this issue, we also consider whether there was a "meaningful return to work" as contemplated by Tenn. Code Ann. S 50-6-241(a)(1). http://www.tba.org/tba_files/TSC/NelsonB.wpd STATE OF TENNESSEE VS. ROBERT A. PAYNE Court:TSC Attorneys: FOR APPELLANT: FOR APPELLEE: JEFFREY A. DEVASHER MICHAEL E. MOORE Assistant Public Defender Solicitor General Nashville ELLEN H. POLLACK J. MICHAEL ENGLE Assistant Attorney General Assistant Public Defender Nashville ALAN CALHOUN Assistant Public Defender Nashville Judge: HOLDER First Paragraph: We granted this appeal to determine whether the offense of reckless endangerment can be committed against the public at large. We conclude that reckless endangerment can be committed against the public at large but, to prove the charge, the State must show that a representative of that group was in an area in which a reasonable probability of danger existed. We affirm one conviction for reckless endangerment and hold that the evidence was insufficient to support the remaining charge of reckless endangerment. Accordingly, we vacate that conviction and modify the defendant's sentence to 46 years. http://www.tba.org/tba_files/TSC/paynera.wpd BERDELLA VAUGHN SEAVERS & EDDIE THOMAS SEAVERS VS. METHODIST MEDICAL CENTER OF OAK RIDGE WITH DISSENTING OPINION Court:TSC Attorneys: For the Appellants: For the Appellee: Elizabeth Ann Rowland Robert W. Knolton Knoxville, Tennessee Oak Ridge, Tennessee Janet Edwards Knoxville, Tennessee AMICUS CURIAE AMICUS CURIAE R. Sadler Bailey R. Hunter Cagle Tennessee Trial Lawyers Assoc Tennessee Defense Lawyers Association C. Philip M. Campbell Tennessee Trial Lawyers Assoc Judge: BARKER First Paragraph: We granted this appeal to address whether the doctrine of res ipsa loquitur, as codified at Tennessee Code Annotated section 29-26-115(c), is applicable in medical malpractice cases where the plaintiffs must rely upon expert testimony to prove the elements of causation, standard of care, and that the injury does not ordinarily occur in the absence of negligence. Upon review of Tennessee's medical malpractice law and the authority in other jurisdictions, we conclude that the doctrine of res ipsa loquitur may be applied under those circumstances. The judgments of the lower courts are reversed, and the case is remanded to the trial court for further proceedings in accordance with this opinion. http://www.tba.org/tba_files/TSC/Seavrbv_opn.wpd DISSENTING OPINION: http://www.tba.org/tba_files/TSC/SEAVERBD_dis.wpd TRAVIS MILTON WATT VS. LUMBERMANS MUTUAL CASUALTY INSURANCE COMPANY and LARRY BRINTON, DIRECTOR OF THE DIVISION OF WORKERS' COMPENSATION, TENNESSEE DEPARTMENT OF LABOR, SECOND INJURY FUND Court:TSC - Workers Comp Panel Attorneys: FOR THE APPELLEE: FOR THE APPELLANT: T. J. EMISON, JR. PAUL G. SUMMERS P. O. Box 13 Attorney General and Reporter Alamo, Tennessee 38001 KATHLEEN W. STRATTON Assistant Attorney General DIANNE STAMEY DYCUS Deputy Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, Tennessee 37243 Judge: HOLDER First Paragraph: The plaintiff, Travis Milton Watt, brought suit against Lumberman's Mutual Casualty Insurance Company, the insurance carrier for the plaintiff's employer, Hamilton Hill Shopping Center, and the Second Injury Fund for workers' compensation benefits, alleging total and permanent disability to the body as a whole. The plaintiff alleged that on August 24, 1996, while employed by Hamilton Hills as a carpenter, he fell from a ladder severely injuring his right foot and the lower part of his right leg. In 1971, the plaintiff injured his right hand; his small finger and ring finger were amputated. He had limited use of the other two fingers on his right hand. http://www.tba.org/tba_files/TSC_WCP/Watttm.wpd SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/CERTLIST_1129.wpd BAPTIST HEALTH CARE SYSTEMS VS. MARY & JAMES C. YOUNG Court:TCA Attorneys: WM. STANTON MASSA, III, Morristown, for Plaintiff-Appellee. MARY & JAMES C. YOUNG, pro se. Judge: FRANKS First Paragraph: This action on debt originated in the Sessions Court, and upon an unfavorable judgment, the defendants appealed the matter to Circuit Court. http://www.tba.org/tba_files/TCA/baptisth.wpd BLOUNT EXCAVATING, INC. VS. DENSO MANUFACTURING TENNESSEE, INC. WITH CONCURRING OPINION Court:TCA Attorneys: For the Appellant: For the Appellee: Monty L. Walton Robert N. Goddard Knoxville Maryville Judge: SWINEY First Paragraph: This is an appeal from the Trial Court's refusal to affirm a submission by Denso Manufacturing Tennessee, Inc., Defendant/Appellant, as an arbitration award under Tenn. Code Ann. S 29-5-301 et seq., the Uniform Arbitration Act. Blount Excavating, Inc., Plaintiff/Appellee, filed suit for damages under a contract for improvements to the property of Defendant involving extensive earthmoving on two construction projects in Tennessee. Defendant filed an Answer and Motion for Summary Judgment, citing a contract clause appointing the architects/engineers on both projects, Allen & Hoshall, Inc. (hereinafter, "Architect"), to resolve disputes between the parties arising under the contract, with the clause setting out that such resolution "shall be final and binding." http://www.tba.org/tba_files/TCA/BlountExcav_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/blountexcav_con.wpd BRIAN RAY BOWMAN VS. SWAN SEYMOUR Court:TCA Attorneys: JOHNNY V. DUNAWAY OF LaFOLLETTE FOR APPELLANT ROBERT W. GODWIN OF KNOXVILLE FOR APPELLEE Judge: GODDARD First Paragraph: This is a suit by Plaintiff Brian Ray Bowman, seeking to rescind a deed wherein he acquired a certain lot from Swan Seymour. http://www.tba.org/tba_files/TCA/bowmanb.wpd MELISSA D. BOYE VS. JOHN HOLLIS MOORE, JR. Court:TCA Attorneys: For Appellant For Appellee JERRY SHATTUCK WILLIAM D. VINES, III Shattuck & Elledge VONDA M. LAUGHLIN Clinton, Tennessee Butler, Vines & Babb, PLLC Knoxville, Tennessee JOHN T. JOHNSON, JR. Kramer, Rayson, Leake, Rodgers & Morgan, LLP Knoxville, Tennessee Judge: SUSANO First Paragraph: Melissa D. Boye ("Boye") filed this personal injury action against John Hollis Moore, Jr. ("Moore") seeking damages for a permanent brain injury that -- she claims -- resulted from a motor vehicle accident caused by Moore. The defendant admitted liability for the accident, and the court below conducted a bench trial on the issue of damages. At the conclusion of the trial, the court below found that Boye's expert medical testimony sufficiently established causation and the existence of a significant, permanent brain injury, and awarded Boye compensatory damages of $219,000. http://www.tba.org/tba_files/TCA/BOYEMD.wpd DAIRY GOLD, INC. VS. MICHAEL THOMAS Court:TCA Attorneys: For the Appellant: For the Appellee: Lawrence A. Ault James T. Williams Knoxville, TN 37902 MILLER & MARTIN LLP Chattanooga, TN 37402-2289 Judge: SWINEY First Paragraph: This is an appeal by Michael Thomas ("Lessee") of the Trial Court's award to Dairy Gold, Inc. ("Lessor") of rent, real estate taxes, late fees and attorney fees under the terms of a lease, offset by Lessee's security deposit and expenses incurred for demolition of a building on the leased premises. http://www.tba.org/tba_files/TCA/DairyGold.wpd WILLIAM DENNIS and wife, RUTH DENNIS VS. DAVID MICELI and wife, LAURA MICELI Court:TCA Attorneys: For the Plaintiffs/Appellees: For the Defendants/Appellants: Cindy A. Howell Andrew M. Cate Sparta, Tennessee David J. Waynick WAYNICK & CATE Nashville, Tennessee Judge: KOCH First Paragraph: This appeal involves a dispute between neighbors over public access to a country road. After one couple threatened to block access to the portion of the road on their property, a neighboring couple who used the road to gain access to their home filed suit in the Chancery Court for Van Buren County seeking a declaration that the road is a public road. The trial court, sitting without a jury, determined that the road had been dedicated to public use and enjoined blocking the road. On this appeal, the couple who were enjoined from blocking the road assert that the evidence does not support the trial court's conclusion that the road is a public road. We affirm the judgment because the evidence does not preponderate against the trial court's conclusion that the road had been dedicated to public use. http://www.tba.org/tba_files/TCA/dennisw.wpd THE WINDOW GALLERY OF KNOXVILLE VS. RICHARD DAVIS, individually and RICHARD H. DAVIS d/b/a DAVIS CONSTRUCTION COMPANY and NICHOLAS R. MARLER and SUE POSTON MARLER Court:TCA Attorneys: For the Appellants: For the Apellee: Steven E. Schmidt Jay W. Mader Rebecca B. Murray McDONALD, LEVY & TAYLOR Kennerly, Montgomery & Finley, P.C. Knoxville, TN 37922 Knoxville, TN 37901 Judge: SWINEY First Paragraph: The Window Gallery of Knoxville ("Window Gallery") sued Nicholas R. Marler and Sue Poston Marler ("Marlers") for payment for windows furnished by Window Gallery to Richard Davis ("Davis"), a building contractor, and which were installed in the Marlers' new house. Window Gallery was paid neither by the Marlers nor Davis for the windows. http://www.tba.org/tba_files/TCA/Gallery.wpd RICHARD L. JOHNSON and JENNIFER JOHNSON VS. STONEY HUNTER, ET AL, IN THE MATTER OF DENTY CHEATHAM'S FEE PATRICK ARDIS VS. DENTY CHEATHAM Court:TCA Attorneys: For the Appellant: For the Appellee: Glenn G. Reid, Jr. David B. Lyons Memphis, Tennessee Nashville, Tennessee Robert J. Walker Nashville, Tennessee Judge: LILLARD First Paragraph: This appeal is a dispute between two attorneys over attorney's fees incurred in a contingency fee personal injury and product liability lawsuit. The plaintiff attorney associated the defendant attorney for the product liability aspect of the lawsuit. The plaintiff attorney withdrew before the conclusion of the case and sought half of the attorney's fees. Finding that the attorneys had entered into a joint venture, the trial court awarded the plaintiff attorney one-third of the contingency fee. The defendant attorney appeals. http://www.tba.org/tba_files/TCA/johnsrl.wpd DAVID E. KELLY VS. THE TENNESSEE CIVIL SERVICE COMMISSION and THE TENNESSEE DEPARTMENT OF LABOR Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendants/Appellees: Frank J. Scanlon Paul G. Summers Watkins, McGugin, McNeilly & Rowan Attorney General and Reporter Nashville, Tennessee William J. Marett, Jr. Assistant Attorney General Judge: KOCH First Paragraph: This appeal involves the two-day suspension of an employee of the Tennessee Department of Labor. After the Tennessee Civil Service Commission upheld the suspension, the employee filed a petition for judicial review in the Chancery Court for Davidson County challenging the factual basis of the Commission's decision and asserting that the Department acted arbitrarily and capriciously. The trial court, sitting without a jury, affirmed the suspension. On this appeal, the employee admits violating departmental policy but asserts that he should have received less serious discipline or no discipline at all. We affirm the trial court's decision upholding the employee's two-day suspension. http://www.tba.org/tba_files/TCA/kellyde.wpd TINA NONG MABERRY VS. RICKY WAYNE MABERRY Court:TCA Attorneys: RICHARD BROOKS 215 Smotherman Avenue P. O. Box 255 Carthage, Tennessee 37030 ATTORNEY FOR PLAINTIFF/APPELLANT BOBBY JAMES ELLIS 111 South Union P. O. Box 192 Gainesboro, Tennessee 38562 ATTORNEY FOR DEFENDANT/APPELLEE Judge: CAIN First Paragraph: Tina Nong Maberry, ("Wife"), and Ricky Wayne Maberry, ("Husband"), were allegedly divorced by court decree entered in the district court of Naha, Okinawa, Japan, on August 23, 1993. The action at bar was commenced when Wife filed suit in chancery court in Jackson County, complaining that the alleged decree failed to dispose of Husband's military retirement benefit as marital property "although the District Court of Naha, Okinawa, Japan is believed to have had jurisdiction to do so." http://www.tba.org/tba_files/TCA/maberrytn.wpd BARBARA MADISON, mother and natural guardian and next of kin of KIM THI LE PHAN, deceased, who was a minor sixteen years of age MARIE LOVE, VAL HOLMES, and TRAVIS LOVE, d/b/a ENCORE ENTERPRISES Court:TCA Attorneys: For Appellant For Appellees EDWIN BARRETT CHARLES RICHARD E. LADD, JR. Johnson City, Tennessee MARK E. FRYE Penn, Stuart & Eskridge HOWARD R. DUNBAR Abingdon, Virginia Dunbar & Dunbar Johnson City, Tennessee Judge: SUSANO First Paragraph: Barbara Madison ("Madison") filed this action against Marie Love, Val Holmes and Travis Love (collectively "Encore"), the proprietors of Encore Enterprises Nightclub, for the wrongful death of her sixteen year-old daughter, Kim Thi Le Phan ("Kim"). The trial court granted Encore's motion for summary judgment based on a pathologist's affidavit reflecting that the cause of Kim's death was unknown. Madison appeals, raising the sole issue of whether the trial court erred in granting Encore's motion for summary judgment as to the claim of negligent failure to render aid to another in peril. We affirm. http://www.tba.org/tba_files/TCA/MADISON.wpd RALPH MOORE, LINDA MOORE, WAYNE MOORE, AND REBECCA MOORE VS. DANNIE CHRISTMAS Court:TCA Attorneys: GREG LEFFEW OF ROCKWOOD FOR APPELLANT RALPH MOORE, LINDA MOORE, WAYNE MOORE, AND REBECCA MOORE, PRO SE Judge: GODDARD First Paragraph: This is an appeal from the Circuit Court's order requiring Dannie Christmas to pay towing and storage costs for the Appellees' automobiles, boats, and other towed items. http://www.tba.org/tba_files/TCA/mooreral.wpd RICHARD L. NORTHCOTT VS. TENNESSEE DEPARTMENT OF CORRECTION; DONAL CAMPBELL, Commissioner; BILL KEELING, Sentence Management Services, Department of Correction; FAYE CLAUD, Sentence Management Services, Department of Correction; SHIRLEY PLUNKETT, Records Clerk, Turney Center Court:TCA Attorneys: For Appellant For Appellees RICHARD L. NORTHCOTT PAUL G. SUMMERS Pro Se Attorney General and Reporter Only, Tennessee Nashville, Tennessee JOHN R. MILES Counsel Civil Rights and Claims Division Office of Attorney General and Reporter Nashville, Tennessee Judge: SUSANO First Paragraph: The plaintiff, Richard L. Northcott ("Northcott"), is a prisoner in state custody. He sued the Tennessee Department of Correction ("the Department") and others, claiming that he is entitled to "good conduct" and "prisoner performance" sentence credits allegedly earned by him prior to March 1, 1986. http://www.tba.org/tba_files/TCA/northcottrl.wpd ESTATE OF GROVER PEMBERTON BY EXECUTOR BROMMA PEMBERTON, and INDUSTRIAL LOGGING, A sole proprietorship of Sharon Lay VS. MABEL PENNINGTON and GEORGE PENNINGTON Court:TCA Attorneys: HAROLD G. JEFFERS OF ONEIDA FOR APPELLANTS MARK BLAKLEY OF HUNTSVILLE FOR APPELLEES Judge: GODDARD First Paragraph: This is an appeal from the Chancery Court's judgment finding Bromma Pemberton owned certain disputed property. http://www.tba.org/tba_files/TCA/pembertongro.wpd STATE OF TENNESSEE, EX REL., LOU ANN BATES VS. DAVID D. QUALLS Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter Stuart Wilson-Patton, Assistant Attorney General For Petitioner/Appellant, Donald W. Schwendimann, Hohenwald, Tennessee, for Respondent/Appellee. Judge: FARMER First Paragraph: The State of Tennessee, ex rel., Lou Ann Bates appeals from the judgment of the trial court in this paternity action awarding child support of $75 per week and ordering the respondent, David D. Qualls, to pay the sum of $740 as one-half of the total AFDC payments received by Ms. Bates since the filing of the petition. http://www.tba.org/tba_files/TCA/stateexrelbates.wpd J. MICHAEL TOMLIN VS. COLLEGIATE TECHNOLOGIES, INC., RETAIL TECHNOLOGIES, INC., THE CTI GROUP, INC., BYRON J. BURPULIS and KENNETH M. BOSACCO Court:TCA Attorneys: Philip N. Elbert, Donna L. DeLong, NEAL & HARWELL, PLC, Nashville, Tennessee Attorneys for Plaintiff/Appellant. D. Randall Mantooth, LEITNER, WILLIAMS, DOOLEY, & NAPOLITAN, PLLC, Nashville, Tennessee Attorney for Defendants/Appellees. Judge: FARMER First Paragraph: Plaintiff J. Michael Tomlin appeals an order of the trial court granting a motion to dismiss for lack of personal jurisdiction filed by Defendants Collegiate Technologies, Inc. ("Collegiate"), Retail Technologies, Inc. ("Retail"), The CTI Group, Inc. ("CTI"), Byron J. Burpulis, and Kenneth M. Bosacco. For the reasons set forth below, we reverse the ruling of the trial court. http://www.tba.org/tba_files/TCA/Tomlinjm.wpd PETER TRUSS VS. STATE OF TENNESSEE DEPARTMENT OF HUMAN SERVICES Court:TCA Attorneys: Gary Buchanan, Nashville, Tennessee Attorney for Plaintiff/Appellant Paul G. Summers, Attorney General and Reporter E. Blaine Sprouse, Assistant Attorney General Attorneys for Defendant/Appellee Judge: FARMER First Paragraph: Plaintiff Peter Truss appeals an order of the chancery court upholding a decision of Defendant State of Tennessee Department of Human Services ("Department") regarding the level of benefits to which he is entitled under the Rehabilitation Act of 1973 ("Rehabilitation Act" or "Act"), 29 U.S.C.A. SS 701-96k (1999 & Supp. 1999). For the reasons set forth below, we affirm the ruling of the chancery court. http://www.tba.org/tba_files/TCA/Trussp.wpd WESTVACO CORPORATION VS. TENNESSEE ASSESSMENT APPEALS COMMISSION; BENTON COUNTY ASSESSOR OF PROPERTY; BENTON COUNTY TRUSTEE Court:TCA Attorneys: PHILLIP G. HOLLIS Peeler & Hollis 39 North Court Square P. O. Box 218 Camden, Tennessee 38302 JERRY C. SHELTON Lyell, Seaman & Shelton The Tower, Suite 2704 611 Commerce Street Nashville, Tennessee 37203 ATTORNEYS FOR PLAINTIFF/APPELLEE PAUL. G. SUMMERS Attorney General and Reporter SEAN D. CLANCY Assistant Attorney General Cordell Hull Building, Second Floor 425 Fifth Avenue North Nashville, Tennessee 37243 ATTORNEYS FOR DEFENDANTS/APPELLANTS Judge: CAIN First Paragraph: Tennessee Assessment Appeals Commission and the Benton County Assessor and County Trustee, (referred to collectively hereinafter as the State and Benton County, respectively) appeal from an adverse decision below regarding the ad valorem taxation of certain real property owned by the taxpayer, Westvaco Corporation (Westvaco), and located in Benton County, Tennessee. At the time of assessment, Westvaco owned approximately 59 parcels of woodland totaling over 24,000 acres. http://www.tba.org/tba_files/TCA/westvaco.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES VS. STEVEN CRAIG WILEY IN THE MATTER OF: SIERRA WILEY SHAVONNE WILEY Court:TCA Attorneys: For Appellant For Appellee RALPH M. MAYLOTT PAUL G. SUMMERS Knoxville, Tennessee Attorney General & Reporter Nashville, Tennessee ELIZABETH C. DRIVER Assistant Attorney General General Civil Division Nashville, Tennessee Judge: SUSANO First Paragraph: The trial court's judgment terminated the parental rights of Steven Craig Wiley ("Father") in and to his children, Sierra Wiley (DOB: September 24, 1991) and Shavonne Wiley (DOB: August 1, 1993). Father appeals, arguing that the evidence preponderates against the trial court's determination that grounds exist to terminate his parental rights. He also contends that the Department of Children's Services ("DCS") failed to make reasonable efforts to facilitate the return of the children to him. http://www.tba.org/tba_files/TCA/WILEYSC.wpd STATE OF TENNESSEE VS. KENNETH R. ALLEN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: KENNETH R. ALLEN PAUL G. SUMMERS #97731, CCA, P.O. Box 279 Attorney General & Reporter Clifton, TN 38425 GEORGIA BLYTHE FELNER Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 RON DAVIS District Attorney General P.O. Box 937 Franklin, TN 37065 Judge: WOODALL First Paragraph: In September of 1982, the Williamson County Grand Jury indicted Petitioner Kenneth R. Allen for aggravated rape and assault with intent to commit murder. On October 22, 1982, Petitioner pled guilty to aggravated rape and he received a sentence of thirty years. http://www.tba.org/tba_files/TCCA/allenkr.wpd STATE OF TENNESSEE VS. MICHAEL A. BRASWELL Court:TCCA Attorneys: For Appellant For Appellee Eugene J. Honea Paul G. Summers Assistant Public Defender Attorney General and Reporter P.O. Box 68 425 Fifth Avenue North Franklin, TN 37065-0068 Nashville, TN 37243-0493 Elizabeth B. Marney Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Derek Smith Assistant District Attorney P.O. Box 937 Franklin, TN 37065-0937 Judge: OGLE First Paragraph: On December 11, 1997, the appellant, Michael A. Braswell, pled guilty in the Williamson County Circuit Court to one count of theft upon the understanding that the trial court would determine his sentence. The following day a jury additionally found him guilty of aggravated burglary. http://www.tba.org/tba_files/TCCA/braswlma.wpd STATE OF TENNESSEE VS. MICHAEL BRAXTON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ROBERT J. MENDES (on appeal) PAUL G. SUMMERS St. Cloud Corner, Suite 575 Attorney General & Reporter 500 Church Street Nashville, TN 37219 ELIZABETH T. RYAN Assistant Attorney General WILLIAM C. ROBERTS (at trial) 425 Fifth Avenue North 222 Second Avenue North Nashville, TN 37243 Suite 360-M Nashville, TN 37201 VICTOR S. (TORRY) JOHNSON, III District Attorney General BERNARD F. McEVOY Assistant District Attorney Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1649 Judge: WILLIAMS First Paragraph: The defendant, Michael Braxton, appeals from his convictions by a Davidson County jury of aggravated rape and aggravated assault. He was sentenced to the Department of Correction for 23 years for the aggravated rape and five years for the aggravated assault; these two sentences were ordered to be served concurrent to each other but consecutive to another preceding conviction from South Carolina. http://www.tba.org/tba_files/TCCA/braxtonm.wpd RONALD L. DAVIS VS. JACK MORGAN, Warden Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: RONALD L. DAVIS PAUL G. SUMMERS Pro Se Attorney General and Reporter Turney Center Prison and Farm Only, TN 37140 LUCIAN D. GEISE Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 JOE D. BAUGH, JR. District Attorney General Judge: WELLES First Paragraph: This is an appeal from the trial court's denial of habeas corpus relief. In November of 1982, the Defendant, Ronald L. Davis, was convicted of aiding and abetting second degree murder, and the trial court sentenced him to ninety-nine years incarceration. This Court affirmed his conviction on direct appeal, and the Tennessee Supreme Court denied permission to appeal. The Defendant subsequently filed a petition for post-conviction relief, which was denied by the trial court. This Court affirmed the trial court's denial of post-conviction relief. A second petition for post-conviction relief was later filed, and this Court affirmed the trial court's denial of relief in that action. http://www.tba.org/tba_files/TCCA/davisrl.wpd CHARLES DWIGHT FARRAR VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: HERSHELL KOGER PAUL G. SUMMERS 135 N. First Street, Suite E Attorney General & Reporter Pulaski, TN 38478 LUCIAN D. GEISE Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 WILLIAM MICHAEL McCOWN District Attorney General ROBERT G. CRIGLER Assistant District Attorney One Public Square, Suite 300 Shelbyville, TN 37160 Judge: WILLIAMS First Paragraph: The petitioner, Charles Dwight Farrar, appeals from the Bedford County Circuit Court's order dismissing, after an evidentiary hearing, his petition for post-conviction relief. The petitioner pled guilty to twelve counts and received an effective sentence of twenty years in the Tennessee Department of Correction. His petition alleged that he received ineffective assistance of counsel and that his plea was not knowing and willing. We AFFIRM the trial court's judgment. http://www.tba.org/tba_files/TCCA/FARRARCD.wpd STATE OF TENNESSEE VS. JAMES GORDON FREEMAN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: LARRY B. HOOVER PAUL G. SUMMERS 500 Church Street, Suite 500 Attorney General & Reporter Nashville, TN 37219 LUCIAN D. GEISE Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON, III District Attorney General JOHN ZIMMERMANN Assistant District Attorney General CHARLES CARPENTER Assistant District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 Judge: WOODALL First Paragraph: James Gordon Freeman appeals as of right from his conviction in Davidson County Criminal Court. Following a jury trial, Defendant was convicted on one count of theft, more than $1,000 in value, and one count of especially aggravated kidnapping. Defendant was sentenced to four (4) years and thirty-four years (34), respectively, with the sentences to run consecutively. http://www.tba.org/tba_files/TCCA/freemnjg.wpd STATE OF TENNESSEE VS. MICHAEL SHANE HONEYCUTT Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: RICHARD McGEE PAUL G. SUMMERS 601 Woodland Street Attorney General & Reporter Nashville, TN 37206 KIM R. HELPER Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON, III District Attorney General ROGER MOORE Assistant District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 Judge: WOODALL First Paragraph: In April of 1996, the Davidson County Grand Jury indicted Defendant Michael Shane Honeycutt for aggravated child abuse and indicted co-defendant Misty K. Stacey for facilitation of aggravated child abuse and failure to protect a child from aggravated child abuse. http://www.tba.org/tba_files/TCCA/honyctms.wpd STATE OF TENNESSEE VS. HUGH R. LATHAM, JR. Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JULIE A. RICE PAUL B. SUMMERS P.O. Box 426 Attorney General & Reporter Knoxville, Tennessee 37901-0426 CLINTON J. MORGAN WILLIAM DONALDSON 425 Fifth Avenue North Assistant Public Defender Nashville, Tennessee 37243 110 Washington Avenue Athens, Tennessee 37303 CHAL THOMPSON Assistant District Attorney P.O. Box 647 Athens, Tennessee 37303 Judge: WALKER First Paragraph: The defendant, Hugh R. Latham, was convicted in a jury trial in the Criminal Court for Monroe County of attempt to commit second degree murder, a Class B felony. As a Range I, standard offender, he received a sentence of eight years. http://www.tba.org/tba_files/TCCA/lathhr.wpd STATE OF TENNESSEE VS. ANDREW LAY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: LEE OFMAN PAUL G. SUMMERS 317 Main Street, Ste. 208 Attorney General & Reporter Franklin, TN 37064 ELIZABETH B. MARNEY Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 JOE D. BAUGH, JR. District Attorney General LEE DRYER Assistant District Attorney P. O. Box 937 Franklin, TN 37065-0937 Judge: SMITH First Paragraph: On June 9, 1997, the Williamson County Grand Jury indicted Appellant Andrew Lay for driving under the influence of an intoxicant ("DUI"), third offense. After a jury trial on September 15, 1998, Appellant was convicted of DUI, third offense. That same day, Appellant received a sentence of eleven months and twenty-nine days, with all but 150 days suspended. http://www.tba.org/tba_files/TCCA/layand.wpd STATE OF TENNESSEE VS. RICHARD L. MEYER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MICHAEL J. FLANAGAN PAUL G. SUMMERS 95 White Bridge Rd. #208 Attorney General & Reporter Nashville, TN 37205 TODD R. KELLEY DALE QUILLEN Asst. Attorney General 95 White Bridge Rd., Suite 208 Cordell Hull Bldg., 2nd Fl. Nashville, TN 37205 425 Fifth Ave., North (At Hearing Only) Nashville, TN 37243-0493 RON DAVIS District Attorney General LEE DRYER Asst. District Attorney General P.O. Box 937 Franklin, TN 37065-0937 Judge: PEAY First Paragraph: The defendant pled nolo contendere to one count of statutory rape and one count of sexual battery. Pursuant to a plea agreement, the defendant was sentenced to a term of two years for each count. After a sentencing hearing, the trial court ordered the defendant's sentences to run consecutively. The defendant now appeals the trial court's order of consecutive sentences. After a review of the record and applicable law, we find no merit to the defendant's contentions and thus affirm the judgment of the lower court. http://www.tba.org/tba_files/TCCA/MEYERRL.wpd JACKIE MCLANEY VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Jackie W. McLaney Paul G. Summers TDOC # 113694 Attorney General and Reporter Hardeman Cty Correctional Fac 425 Fifth Avenue North 2520 Union Springs Road Nashville, TN 37243-0493 Whiteville, TN 38075 Kim R. Helper Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 Judge: OGLE First Paragraph: The petitioner, Jackie McLaney, appeals the summary dismissal of his petition for a writ of habeas corpus by the Davidson County Criminal Court on June 22, 1998, without the appointment of counsel or an evidentiary hearing. Following a thorough review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mclaneyja2.wpd STATE OF TENNESSEE VS. GEORGE SHERRILL PILKINTON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: HAL HARDIN PAUL G. SUMMERS Counsel for Appellant At Trial Attorney General & Reporter ROGER T. MAY KIM R. HELPER Counsel for Appellant At Trial Assistant Attorney General 219 Second Avenue N., Suite 300 2nd Floor, Cordell Hull Building Nashville, TN 37201-1601 425 Fifth Avenue North Nashville, TN 37243 M. ANDREW HOOVER T. MICHAEL BOTTOMS Counsel for Appellant On Appeal District Attorney General TIMOTHY P. UNDERWOOD ROBERT C. SANDERS Counsel for Appellant On Appeal Assistant District Attorney General 134 North Second Street Pulaski, TN 38478 RICHARD DUNAVANT Assistant District Attorney General 252 North Military Avenue P.O. Box 459 Lawrenceburg, TN 38464 Judge: WOODALL First Paragraph: On October 14, 1996, the Giles County Grand Jury indicted Defendant George Sherill Pilkinton for aggravated vehicular homicide. On March 16, 1998, Defendant pled guilty to vehicular homicide pursuant to a negotiated plea agreement. Following a sentencing hearing on May 5, 1998, the trial court sentenced Defendant as a Range I standard offender to a term of eight years in the Tennessee Department of Correction. http://www.tba.org/tba_files/TCCA/pilkntngs.wpd STATE OF TENNESSEE VS. JOSEPH OSCAR PRICE, III Court:TCCA Attorneys: FOR THE APPELLANT FOR THE APPELLEE: JEFFREY A. DEVASHER PAUL G. SUMMERS Assistant Public Defender Attorney General & Reporter JOAN A. LAWSON MARK E. DAVIDSON Assistant Public Defender Assistant Attorney General 1202 Stahlman Building 425 Fifth Avenue North Nashville, TN 37201 Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General DAN HAMM SHARON BROX Assistant District Attorney 222 Second Avenue N. Nashville, TN 37201-1643 Judge: SMITH First Paragraph: On November 3, 1997, the Davidson County Grand Jury indicted the Appellant Joseph Oscar Price, III for especially aggravated kidnapping, aggravated robbery, aggravated burglary, and theft over $1,000.00. Following a jury trial on July 27 to 28, 1998, the Appellant was convicted of especially aggravated kidnapping, aggravated robbery, aggravated burglary, and theft in the amount of $500.00 or less. http://www.tba.org/tba_files/TCCA/PRICEOSC.wpd MELVIN DARRELL SAWYER VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: TERRY J. CANADY 211 Printer's Alley Building Suite 400 Nashville, TN 37201-1414 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter ELIZABETH T. RYAN Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General D. PAUL DeWITT Assistant District Attorney General Washington Square 222-2nd Avenue North, Suite 500 Nashville, TN 37201-1649 Judge: RILEY First Paragraph: Petitioner appeals the denial of his petition for post-conviction relief by the Criminal Court of Davidson County. Petitioner was convicted in 1986 of two counts of aggravated rape, and the trial court imposed an effective forty-year sentence. In 1988, this Court affirmed the convictions and sentences. http://www.tba.org/tba_files/TCCA/Sawyermd.wpd STATE OF TENNESSEE VS. COLLIN BENTLEY STEEN Court:TCCA Attorneys: FOR THE APPELLEE: FOR THE APPELLANT: JULIE A. MARTIN PAUL G. SUMMERS P. O. Box 426 Attorney General & Reporter Knoxville, TN 37901-0426 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 RANDALL E. NICHOLS District Attorney General ANNE S. CRISLER Assistant District Attorney City-County Building Knoxville, TN 37902 Judge: SMITH First Paragraph: The appellant, Colin Bentley Steen, pled guilty in the Knox County Criminal Court to one (1) count of aggravated robbery, a Class B felony. The trial court sentenced him as a Range I, Standard Offender, to eight (8) years incarceration. On appeal, the appellant claims that the trial court erred in (1) failing to sentence him as an Especially Mitigated Offender; and (2) denying his request for alternative sentencing. After a thorough review of the record before this Court, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Steenc.wpd JOHN T. SULLIVAN VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN T. SULLIVAN, Pro Se MICHAEL E. MOORE Turney Center Industrial Prison Solicitor General Route One Only, TN 37140-9709 LUCIAN D. GEISE Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 Judge: WILLIAMS First Paragraph: The petitioner, John T. Sullivan, appeals from the Hickman County Circuit Court's order dismissing his petition for writ of habeas corpus. The petitioner is incarcerated in the Department of Correction after pleading guilty to armed robbery, aggravated kidnaping, and aggravated rape and receiving an effective twenty-five year sentence. He filed a petition for habeas relief challenging this continued incarceration; the trial court summarily dismissed this petition. http://www.tba.org/tba_files/TCCA/sullivanjt.wpd LARRY A. WADE VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: RAYBURN McGOWAN, JR. PAUL G. SUMMERS Washington Square Building Attorney General and Reporter 222 Second Avenue North Suite 350M KIM R. HELPER Nashville, TN 37201 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General LISA NAYLOR Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1649 Judge: WELLES First Paragraph: The Defendant, Larry Anthony Wade, Jr., appeals as of right from the trial court's dismissal of his petition for post-conviction relief. We reverse the order of the trial court and remand for findings of fact and conclusions of law as required by the legislature. http://www.tba.org/tba_files/TCCA/Wadela.wpd STATE OF TENNESSEE VS. DONALD WALLACE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: EDWARD E. DEWERFF PAUL G. SUMMERS 211 South Sixth Street Attorney General and Reporter Clarksville, TN 37040 MICHAEL E. MOORE Solicitor General CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 DAN ALSOBROOKS District Attorney General BOB WILSON Assistant District Attorney General P.O. Box 580 Charlotte, TN 37040 Judge: WELLES First Paragraph: The Defendant, Donald Wallace, appeals from the judgment of the trial court sentencing him to twenty-five years for the offense of second degree murder. He argues that the trial court erred in its consideration of enhancement and mitigating factors. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wallaced.wpd CYRUS DEVILLE WILSON VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: WILLIAM A. LANE PAUL G. SUMMERS 3236 Dilton Mankin Road Attorney General & Reporter Murfreesboro, TN 37127 ELIZABETH B. MARNEY Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON, III District Attorney General KIMBERLY HAAS Assistant District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 Judge: WOODALL First Paragraph: Petitioner Cyrus Deville Wilson appeals as of right from the denial of his post-conviction petition by the Davidson County Criminal Court. Petitioner was convicted by a jury of first degree murder, and seeks post-conviction relief on a number of grounds. Because the trial court's order denying post-conviction relief is incomplete, we vacate the judgment entered by the trial court and remand the case for the entry of a new order consistent with this opinion. http://www.tba.org/tba_files/TCCA/Wilsoncd.wpd STATE OF TENNESSEE VS. JAMES CLIFFORD WRIGHT Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JERRY SCOTT PAUL G. SUMMERS Counsel for Appellant Attorney General & Reporter JOHN KEA LUCIAN D. GEISE Counsel for Appellant Assistant Attorney General Scott and Kea 2nd Floor, Cordell Hull Building 110 City Center Building 425 Fifth Avenue North 100 East Vine Street Nashville, TN 37243 P.O. Box 1216 Murfreesboro, TN 37133-1216 C. MICHAEL LAYNE District Attorney General STEPHEN E. WEITZMAN Assistant District Attorney General P.O. Box 147 Manchester, TN 37355 Judge: WOODALL First Paragraph: The Defendant, James Clifford Wright, pled guilty to second offense DUI relating to an incident which occurred in February, 1997. Two months later, he was convicted of second offense DUI following a jury trial for an offense which occurred in December, 1996. http://www.tba.org/tba_files/TCCA/wrightjc.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! 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