Opinion Flash; 12/20/2000

December 20 , 2000
Volume 6 -- Number 206

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):

02 New Opinion(s) from the Tennessee Supreme Court

00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel

00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court

01 New Opinion(s) from the Tennessee Court of Appeals

05 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

LARRY W. STEWART v. STATE OF TENNESSEE Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Laura T. Kidwell, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee. Randy Hillhouse, Lawrenceburg, Tennessee, for the appellee, Larry W. Stewart. Judge: BARKER First Paragraph: In this case, we determine whether the Tennessee Claims Commission properly asserted jurisdiction pursuant to Tennessee Code Annotated sections 9-8-307(a)(1)(E) and -307(a)(1)(F) for the alleged negligence of a state highway patrol officer in failing to properly control county police authorities at an arrest scene. The Court of Appeals affirmed the Commission's exercise of jurisdiction, and the State requested permission to appeal on the issue of whether the Claims Commission properly asserted jurisdiction and whether the plaintiff, who stepped into the road before being hit by the truck, was fifty percent (50%) or more at fault for his accident. We hold that the Claims Commission lacked jurisdiction in this case under either section 9-8-307(a)(1)(E) or section 9-8- 307(a)(1)(F), and because the Claims Commission possessed no jurisdiction to hear the plaintiff's claims, we decline to reach the issue of whether the plaintiff was more than fifty percent (50%) at fault for his accident. Accordingly, the judgment of the Court of Appeals finding proper jurisdiction is reversed, and the plaintiff's claim against the State is dismissed. http://www.tba.org/tba_files/TSC/stewartlw.wpd
WASTE CONVERSION SYSTEMS, INC. v. GREENSTONE INDUSTRIES, INC., et al. Court:TSC Attorneys: John Allen Lucas, Knoxville, Tennessee, for the petitioners, Greenstone Industries, Inc. and Greenstone Industries-Atlanta, Inc. Kelli Lynne Thompson and Steven G. Anderson, Knoxville, Tennessee, for the respondent, Waste Conversion Systems, Inc. Judge: HOLDER First Paragraph: Waste Conversion Systems, Inc. ("WCS") alleges that it entered into a long-term contract to sell waste paper and similar fiber materials to Greenstone Industries-Atlanta, Inc. ("GSI-A"), the wholly-owned subsidiary of Greenstone Industries, Inc. ("GSI"). It also alleged that the contract specified that GSI-A would purchase a minimum quantity of fiber per month at a fixed price. Had the market price of fiber moved higher during the course of the contract, GSI-A would have benefitted by having a guaranteed source of supply at a low fixed price. However, the market price of fiber fell. It is WCS's contention that, without any legal justification whatsoever, GSI-A refused to accept fiber from WCS so that GSI-A could purchase fiber on the open market at a lower price. The claim against GSI is that it willfully and maliciously induced GSI-A to breach this same contract. http://www.tba.org/tba_files/TSC/wastecon.wpd
STAN WALLACE MOSLEY v. CARRIE LYNN MOSLEY Court:TCA Attorneys: William L. Francisco, Johnson City, Tennessee, for the Appellant, Stan Wallace Mosley. Judith Fain, Johnson City, Tennessee, for the Appellee, Carrie Lynn Checchi Mosley. Judge: SWINEY First Paragraph: This appeal arises from a bifurcated trial in a divorce action. After hearing the parties' proof in the second phase regarding alimony, child support and division of property, the Trial Court entered a Judgment which the Trial Court designated as "final." The Judgment, however, does not satisfy the requirements of Rule 54.02 of the Tennessee Rules of Civil Procedure. The Trial Court did not decide the issue of whether excess retained earnings of Telescan, Inc., a company in which Stan Wallace Mosley ("Husband") is a 90% shareholder, should be imputed as income to Husband. The Judgment states that this issue will be considered by the Trial Court in the future. Husband appeals the Judgment but does not raise the issue of Telescan's excess retained earnings. Carrie Lynn Mosley ("Wife") contends that the Trial Court erred by failing to impute the excess retained earnings of Telescan to Husband's personal income for purposes of calculating his child support obligation. We dismiss this appeal because the Judgment is not a final judgment from which an appeal lies. http://www.tba.org/tba_files/TCA/mosleysw.wpd
STATE OF TENNESSEE v. JOHN D. BROWN WITH DISSENTING OPINION Court:TCCA Attorneys: S. Randolph Ayres, Athens, Tennessee, for the appellant, John D. Brown. Paul G. Summers, Attorney General and Reporter; Patricia C. Kusmann, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Barry A. Steelman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, John D. Brown, appeals as of right from his McMinn County convictions for first degree murder and abuse of a corpse. On appeal, he raises nine issues: (1) whether the trial court failed to properly function as the thirteenth juror in considering the Defendant's motion for judgment of acquittal and a new trial; (2) whether the Honorable Steven Bebb erred by failing to recuse himself upon the grounds that under Tennessee Code Annotated section 17-1-305, only the Honorable Carroll Ross, the successor in office to the late Judge Mayo L. Mashburn, could rule on the Defendant's motion for a new trial; (3) whether the evidence was sufficient to support the verdict and whether the evidence was sufficient to establish that the offense was committed prior to the return of the formal charge; (4) whether the trial court erred by failing to grant the Defendant's special jury instruction request; (5) whether the trial court erred by not allowing into evidence the testimony of Frank Hammonds, Polk County General Sessions Judge; (6) whether the trial court erred by not allowing into evidence the medical records pertaining to the treatment of Danny Jones at the Athens Regional Medical Center; (7) whether the trial court erred by failing to grant a mistrial after T.J. Jordan, a witness for the State, volunteered information to the jury that a certain four-wheel land vehicle found on the Defendant's property was "stolen"; (8) whether the trial court erred by overruling the Defendant's motion to dismiss criminal charges for violating the "anti-shuttling provisions" of the Interstate Agreement on Detainers Act; and (9) whether the trial court erred by ordering the Defendant's sentence for murder to run consecutive to his life sentence in the federal penitentiary. We hold that the Defendant's convictions must be reversed and the case remanded for a new trial because the trial judge failed to properly function as the thirteenth juror and because the State failed to prove beyond a reasonable doubt that the offenses were committed prior to the return of the formal charge. http://www.tba.org/tba_files/TCCA/brownjd_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/brownjd_dis.wpd
STATE OF TENNESSEE v. GARY ANTHONY BURNS Court:TCCA Attorneys: Richard A. Tate, Assistant Public Defender, for the appellant, Gary Anthony Burns. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Teresa Murray-Smith, Assistant District Attorney General; for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Gary Anthony Burns, pleaded guilty to two counts of theft over $500.00. The trial court sentenced the Defendant as a Range I standard offender to two years on each theft count and ordered the sentences to be served concurrently. The trial court then suspended the two-year sentence and ordered the Defendant to be placed on six years probation after service of ninety days in the Sullivan County jail, day for day. The Defendant now appeals, arguing that the trial court unlawfully denied him alternative sentencing. We conclude that the Defendant's sentence is proper and therefore affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/burnsga.wpd
STATE OF TENNESSEE v. ROBBIE CARRIGER Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; and Joe C. Crumley, Jr., District Attorney General, for the appellant, State of Tennessee. Rowland E. Verran, Johnson City, Tennessee, attorney for the appellee, Robbie Carriger. Judge: TIPTON First Paragraph: The state challenges the trial court's order placing the defendant, Robbie Carriger, on pretrial diversion based upon its finding that the prosecutor abused his discretion for failing to consider all the factors relevant to pretrial diversion in his written response denying diversion. The state contends that the trial court erred in refusing to consider the prosecutor's amended response to the application for pretrial diversion. We hold that the trial court properly refused to consider the prosecutor's amended response, but we reverse the trial court's automatic grant of pretrial diversion and remand the case for the trial court to consider the defendant's entitlement to pretrial diversion in light of the relevant factors. http://www.tba.org/tba_files/TCCA/carrigerr.wpd
STATE OF TENNESSEE v. MARCUS ANTHONY PARRAM Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennessee (on appeal) and Gary Groover, Clinton, Tennessee (at trial) for the appellant, Marcus Anthony Parram. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; James N. Ramsey, District Attorney General; and Janice G. Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals his convictions for aggravated robbery and aggravated burglary, contending that the evidence was insufficient to support his convictions, that the trial court erred in allowing hearsay statements into evidence, and that the trial court erred in allowing evidence of a prior robbery committed by the defendant. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/parramma.wpd
STATE OF TENNESSEE v. VANCE SHELTON Court:TCCA Attorneys: Roger A. Woolsey, Greenville, Tennessee (at trial); Greg W. Eichelman, District Public Defender; Michael A. Walcher, Assistant District Public Defender, Morristown, Tennessee (on appeal), for the appellant, Vance Shelton. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Eric D. Christiansen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant was convicted of rape of a child and aggravated sexual battery. The defendant was sentenced to twenty-five years for rape of a child and twelve years for aggravated sexual battery, to run consecutively to each other and consecutively to a prior four-year sentence. In this appeal, the defendant makes the following allegations: (1) the evidence was insufficient to support his convictions; (2) the trial court erred in failing to grant a mistrial due to a variance between the indictment and the state's proof at trial; (3) the trial court erred in ruling his prior convictions for arson would be admissible if he testified; and (4) his sentences are excessive. Upon our review of the record, we remand for modification of the judgment for aggravated sexual battery to reflect the proper date of the offense, but affirm the judgments in all other respects. http://www.tba.org/tba_files/TCCA/sheltonv.wpd

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