September 26, 2000
Volume 6 -- Number 154

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.

This Issue (IN THIS ORDER):
 
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Court of Appeals
11 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
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

IN RE:  RULE 35, RULES OF TENNESSEE SUPREME COURT 

Court:TSC - Rules
                          
Judge: ANDERSON

First Paragraph:

The Court hereby amends Rule 35, Rules of the Tennessee Supreme Court,
by adding the following sentence at the end of section (b):

The introductory paragraph, prepared by the appellate court and
included at the beginning of an opinion issued in the standard format,
is an official part of the opinion.

http://www.tba.org/tba_files/TSC_Rules/rule35_ord.wpd


RHEA E. BURNS, JR. v. NEW YORK LIFE INSURANCE COMPANY Court:TCA Attorneys: Douglas C. Weinstein, Knoxville, Tennessee, for the Appellant, Rhea E. Burns, Jr. Richard J. McAfee, Chattanooga, Tennessee, for the Appellee, New York Life Insurance Company. Judge: SWINEY First Paragraph: Plaintiff, an insurance sales agent for New York Life Insurance Company, alleged that he entered into an oral agreement with another New York Life Insurance agent for the two agents to sell life insurance policies to a particular family and share the sales commissions. Some time later, a dispute arose between Plaintiff and the second New York Life Insurance agent over who was entitled to receive certain sales commissions. After Plaintiff did not receive a share of those sales commissions, he sought the assistance of New York Life in resolving his dispute with the second agent. New York Life accepted statements from both agents and then declined to intervene on Plaintiff's behalf. http://www.tba.org/tba_files/TCA/burnsre.wpd
CLARA FRAZIER v. EAST TENNESSEE BAPTIST HOSPITAL, INC., et al. Court:TCA Attorneys: Donna Keene Holt and David E. Waite, Knoxville, Tennessee, for the Appellant, Clara Frazier R. Franklin Norton, Gary G. Spangler and Jeffrey A. Woods, Knoxville, Tennessee, for the Appellee Baptist Hospital of East Tennessee, Inc. Judge: GODDARD First Paragraph: In this medical malpractice case brought by Clara Frazier, as Administratrix of the Estate of Josie Mae Blalock Pickens against East Tennessee Baptist Hospital, Inc., and Mark W. Jackson, M.D., the Trial Court sustained the motion of Baptist Hospital for summary judgment because the order granting an amendment to add Baptist Hospital as a party defendant after a non-suit had earlier been taken, was not timely and exceeded the one year mandated in T.C.A. 28-1-105(a). Ms. Frazier appeals, insisting that Rule 15.03 of the Tenn. R. Civ. P. is applicable and that the amendment related back to the date of the initial filing. We find the Trial Court acted properly and affirm. http://www.tba.org/tba_files/TCA/fraziercla.wpd
JACKIE MCGREGOR v. GREGOR SCOTT MCGREGOR Court:TCA Attorneys: Thomas Crutchfield, Chattanooga, Tennessee, for the appellant, Jackie McGregor. Grace E. Daniell, Chattanooga, Tennessee, for the appellee, Gregor Scott McGregor. Judge: SUSANO First Paragraph: This is a divorce case. Following a bench trial, the court below (1) granted the parties a divorce on stipulated grounds; (2) divided the marital property; and (3) found that wife was not entitled to an award of alimony, but that funds withdrawn by her from a joint account immediately prior to her filing for divorce constituted necessary temporary support for her and the parties' daughter. Wife appeals the trial court's characterization of certain real property as marital property and the trial court's division of the marital property. Both wife and husband take issue with the trial court's treatment of the funds withdrawn by wife from the joint account. We affirm the judgment of the trial court, as modified. http://www.tba.org/tba_files/TCA/mcgregorj.wpd
CHRISTOPHER J. MOORE v. ROBERT S. JOHNSON, et al. Court:TCA Attorneys: George H. Buxton, Oak Ridge, Tennessee, for the appellant, Robert S. Johnson. W. Zane Daniel, Knoxville, Tennessee, for the appellee, Christopher J. Moore. Judge: SUSANO First Paragraph: This is a personal injury action arising out of an automobile accident. The jury returned a verdict in favor of the plaintiff, finding that the defendant and an unidentified driver were equally at fault in causing the accident. The defendant appeals, raising issues that require us to determine whether there is material evidence in the record to support the jury's verdict. We conclude that there is material evidence to support the verdict and thus affirm the judgment. http://www.tba.org/tba_files/TCA/moorecj.wpd
STEAMFITTERS LOCAL UNION NO. 614 HEALTH AND WELFARE FUND, et al. v. PHILIP MORRIS, INC., et al. Court:TCA Attorneys: Leo Bearman, Jr., Jill M. Steinberg, Memphis, Tennessee, Kenneth J. Parsigian, Boston, Massachusetts, Jack E. McClard, Richmond, Virginia, for Philip Morris, Inc. Jeff Jones, Columbus, Ohio, Albert C. Harvey, Memphis, Tennessee, for R.J. Reynolds Tobacco Company. Judge: LILLARD First Paragraph: Union health and welfare funds brought an action against tobacco companies and their trade associations to recover the funds' costs of treating their participants' smoking-related illnesses. The tobacco companies moved to dismiss the complaint, arguing that the funds' economic injuries were derivative of the participants' physical injuries and, consequently, too remote for recovery. The trial court granted the motion to dismiss on the funds' antitrust claim but denied the motion on the funds' claims for fraud and deceit, misrepresentation, conspiracy and violation of the Tennessee Consumer Protection Act. Permission for interlocutory appeal was granted to the tobacco companies by both the trial court and the appellate court. We affirm the trial court's dismissal of the antitrust claim and reverse the trial court's denial of the motion to dismiss on the remaining claims, finding the plaintiffs' alleged injuries are too remote, as a matter of law, to permit recovery. The cause is remanded for entry of an order dismissing the plaintiffs' complaint. http://www.tba.org/tba_files/TCA/steamfitters.wpd
STATE OF TENNESSEE v. RANDALL E. BEST Court:TCCA Attorneys: Kimberly A. Parton, Knoxville, Tennessee (at trial and on appeal) and William C. Tallman, Knoxville, Tennessee (at trial) for the appellant, Randall E. Best. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; Jerry N. Estes, District Attorney General; Richard Carson Newman, Assistant District Attorney General; and Jon Chalmers Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Randall E. Best, appeals his first degree murder conviction and the resulting sentence of life without parole. He contends: (1) that the evidence is insufficient to show premeditation and deliberation, (2) that certain photographs of the victim were inadmissible at the sentencing phase of the trial, and (3) that the felony murder aggravating circumstance does not sufficiently narrow the class of death-eligible offenders when the jury convicts the defendant of both premeditated murder and felony murder. We hold that the evidence is sufficient, that the challenged photographs are admissible because they are relevant to the aggravating and mitigating circumstances, and that the jury properly based the defendant's sentence on the felony murder aggravator. We affirm the trial court's judgment of conviction. http://www.tba.org/tba_files/TCCA/bestre.wpd
STATE OF TENNESSEE v. AMY BOYD Court:TCCA Attorneys: Greg W. Eichelman, District Public Defender; and Russell Mattocks, Assistant District Public Defender, Morristown, Tennessee, for the appellant, Amy Boyd. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Michelle Green, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was indicted on two counts of aggravated assault. A Hawkins County jury found her guilty of one count and not guilty of the other. In this appeal as of right, the defendant challenges the sufficiency of the convicting evidence and the trial court's denial of alternative sentencing. Upon a thorough review of the record, we conclude the evidence was sufficient to sustain the defendant's conviction for aggravated assault and that alternative sentencing was properly denied. Thus, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/boyda.wpd
STATE OF TENNESSEE v. DEBORAH DARLENE CLARK Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee, attorney for the appellant, Deborah Darlene Clark, (on appeal only) George Morton George, District Public Defender, Jackson, Tennessee, attorney for the appellant, Deborah Darlene Clark, (at trial and of counsel on appeal) Paul G. Summers, Attorney General and Reporter, and J. Ross Dyer, Assistant Attorney General, attorneys for the appellee, State of Tennessee Judge: SMITH First Paragraph: The defendant, Deborah Darlene Clark, was convicted by a Madison County jury of aggravated kidnapping, aggravated robbery, and criminal impersonation. In this appeal the defendant claims the evidence is insufficient to support the verdicts. The court finds the evidence clearly sufficient to support the convictions and thus affirms the judgment of the trial court. http://www.tba.org/tba_files/TCCA/clarkd~1.wpd
STATE OF TENNESSEE v. NATHANIEL LYNN CROCKETT Court:TCCA Attorneys: George H. Waters, Maryville, Tennessee, for the appellant, Nathaniel Lynn Crockett. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Edward P. Bailey, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pleaded guilty to two counts of burglary and two counts of theft over $1,000. The trial court sentenced the Defendant to two years for each count of theft over $1,000 and to one year for each count of burglary. The trial court ordered that all sentences be served concurrently and that the Defendant serve six months in the county jail followed by intensive probation for the remainder of the sentence. The Defendant was ordered to pay $2,500 in restitution and to perform one hundred hours of community service. On appeal, the Defendant argues that the trial court erred in sentencing him to six months in confinement. Finding no error, we affirm. http://www.tba.org/tba_files/TCCA/crockettnl.wpd
STATE OF TENNESSEE v. JAMES DOUGLAS HAMPTON Court:TCCA Attorneys: Raymond Mack Garner, District Public Defender, and Shawn G. Graham, Assistant District Public Defender, for the appellant, James Douglas Hampton. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Tammy M. Harrington, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals from the trial court's revocation of his probation. The defendant admits that he materially violated his probation, but contends that the trial court's disposition of the case was improper. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/hamptonjd.wpd
STATE OF TENNESSEE v. BILLY HANCOCK Court:TCCA Attorneys: Charles R. Curbo, Memphis, Tennessee, attorney for the appellant, Billy Hancock. Paul G. Summers, Attorney General and Reporter and Tara B. Hinkle, Assistant Attorney General, attorneys for the appellee, State of Tennessee Judge: SMITH First Paragraph: The defendant, Billy Hancock, pled guilty in Shelby County Criminal Court to vehicular homicide, vehicular assault, aggravated child endangerment, three (3) counts of child endangerment, and reckless driving. The trial court sentenced the defendant to serve twelve (12) years for vehicular homicide, four (4) years for vehicular assault, four (4) years for aggravated child endangerment, nine (9) months for each of the three (3) counts of child endangerment, and six (6) months for reckless driving. The court ordered that the sentences for vehicular homicide, vehicular assault, and each of the three counts of child endangerment were to be served consecutively to each other, and that the sentences for reckless driving and aggravated child endangerment were to be served concurrently with the sentence for vehicular homicide. The total effective sentence was eighteen (18) years and three (3) months. On appeal, this court affirms the imposition of consecutive sentences because the trial court properly found that the defendant was a dangerous offender and had an extensive criminal history. http://www.tba.org/tba_files/TCCA/hancic.wpd
STATE OF TENNESSEE v. JAMES M. McBRIDE Court:TCCA Attorneys: John M. McFarland and Charles B. Hill, II, Kingston, Tennessee, attorneys for the appellant, James M. McBride. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; J. Scott McCluen, District Attorney General; and Daryl Roger Delp, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals his convictions for two counts of first degree murder and one count of attempted first degree murder. He contends that the evidence is insufficient to show premeditation, that his confession should have been suppressed, that the trial court erred in admitting gory photographs of the victims and of the motor vehicle, and that the trial court erred in sentencing him to consecutive sentences. We affirm the convictions and the sentence. http://www.tba.org/tba_files/TCCA/mcbridejm.wpd
STATE OF TENNESSEE v. MICHAEL C. RICHARDSON, JR. Court:TCCA Attorneys: Robert M. Brannon, Jr., Memphis, Tennessee, for the appellant, Michael C. Richardson, Jr. Paul G. Summers, Attorney General and Reporter, Mark E. Davidson, Assistant Attorney General, Elizabeth T. Rice, District Attorney General, Deborah Alsop, Assistant District Attorney General, Henry P. Williams, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Michael C. Richardson, pleaded guilty to aggravated assault and was sentenced as a Range I standard offender to a suspended sentence of six years with ten years probation. The Defendant applied for judicial diversion pursuant to Tennessee Code Annotated S 40-35-313; however, the trial court denied the application. The Defendant appeals, arguing that the trial court abused its discretion in denying his application for judicial diversion. Finding no abuse of discretion, we affirm the trial court's denial of judicial diversion. http://www.tba.org/tba_files/TCCA/richardsonmc.wpd
STATE OF TENNESSEE v. JERRY WAYNE SOUTHERLAND Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennesseee, John Palmer, Dyersburg, Tennessee, and Joseph P. Atnip, District Public Defender, Dresden, Tennessee for the appellant, Jerry Wayne Southerland. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Peter Coughlan, Assistant Attorney General, Thomas A. Thomas, District Attorney General and James David Kendall, Assistant District Attorney General for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Jerry Wayne Southerland, was found guilty by an Obion County jury of aggravated burglary and theft. In this appeal, the Defendant challenges the trial court's decision to allow the in-court identification of the Defendant by witness Brian Stacks. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/southerlandjw.wpd
STATE OF TENNESSEE v. BILL WHITEHEAD Court:TCCA Attorneys: J. Ronnie Greer, Greeneville, Tennessee, attorney for the appellant, Bill Whitehead. Paul G. Summers, Attorney General & Reporter, Elizabeth B. Marney, Assistant Attorney General, C. Berkeley Bell, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Bill Whitehead, was charged by presentment with thirteen counts of felonious conflict of interest in violation of Tenn. Code Ann. S 5-14-114, the conflict of interest provision contained in the County Purchasing Law of 1957. Through various motions to dismiss, the defendant challenged the constitutionality of the statute, asserting that the statute violates state and federal principles of equal protection, challenging the statute as void for vagueness, and contending that the County Purchasing Law of 1957 constitutes an inappropriate delegation of legislative power. The trial court denied the defendant's motions but granted an interlocutory appeal on each of the constitutional issues. It is our view that Tenn. Code Ann. S 5-14-114, while not unconstitutionally vague, is violative of equal protection guaranties. Accordingly, the trial court's order denying relief is reversed and the presentment is dismissed. Having determined that the defendant is entitled to relief, it is not necessary to address the question of whether the County Purchasing Law of 1957 qualifies as an unconstitutional delegation of legislative power. http://www.tba.org/tba_files/TCCA/whiteheadbill.wpd
ERIC YOUNG v. STATE OF TENNESSEE Court:TCCA Attorneys: M. Dianne Smothers, Jackson, Tennessee, for the appellant, Eric Young. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; James G. Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: In this appeal from the trial court's denial of his post-conviction petition, the petitioner argues that he received ineffective assistance of counsel and that his guilty plea was unknowing and involuntarily entered. We find no error in the trial court's denial of the post-conviction petition. http://www.tba.org/tba_files/TCCA/younge.wpd

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