February 01, 2001 Volume 7 -- Number 021 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 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 06 New Opinion(s) from the Tennessee Court of Appeals 08 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   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. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink ELVIN L. BLANKENSHIP, et al. v. ALVIS BLANKENSHIP, et al. Court:TCA Attorneys: Michael L. Weinman, Henderson, Tennessee, for the appellants, Alvis Blankenship, Dorothy Blankenship, Charles Goodman and Kathy Goodman. Daniel J. Perky, Lexington, Tennessee, for the appellees, Elvin L. Blankenship, Mary Blankenship, and Wayne Blankenship. Judge: FARMER First Paragraph: This appeal arises from a property line dispute between several parties. During the trial, the Chancellor appointed an independent surveyor as a Special Master to determine the actual location of the boundary lines between the parties. When the Special Master reported his results, the Chancellor concurred in his findings. We affirm. http://www.tba.org/tba_files/TCA/blankenshipelvin.wpd TERESA P. CONSTANTINO and LILA MAE WILLIAMS v. CHARLIE W. WILLIAMS and GLENDA E. WILLIAMS. Court:TCA Attorneys: Hunter B. Whitesell and John Bell Whitesell, Fulton, Kentucky, for the appellant, Lila Mae Williams. Pamela S. Jones, Dresden, Tennessee, for the appellees, Charlie W. Williams and Glenda E. Williams. Judge: LILLARD First Paragraph: This case involves the interpretation of a deed. The granting clause of the deed created a life estate in the grantee, the ex-husband of the grantor, with a remainder to the three children of the grantee and grantor. However, the habendum clause retained a life estate in the grantor. The trial court decided that the grantor did not retain a life estate because any ambiguity in the deed should be construed strictly against the grantor. The grantor appealed to this Court. We reverse. http://www.tba.org/tba_files/TCA/constantinotp.wpd LEE M. GREER, III, Administrator of the Estate of WOODROW WILSON TIMMONS v. MAUREEN NICOLE SNOW ZOLFAGHARBIK. Court:TCA Attorneys: Lee M. Greer, III, Memphis, Tennessee for the Plaintiff/Appellee Lee M. Greer, III, Administrator of the Estate of Woodrow Wilson Timmons, Deceased. W. Brown Hawley, II, Paris, Tennessee for the Defendant/Appellant Maureen Nicole Snow Zolfagharbik. Judge: LILLARD First Paragraph: This is a will contest case. The defendant/appellant challenges the validity of a mutual release she signed in which she waived any right she had to challenge the revocation of the decedent's will or to establish any rights under the decedent's will, in exchange for a release of any claims the estate may have had against her. The trial court found that the mutual release signed by the defendant/appellant effectively waived any claim she may have had to establish the validity of the decedent's will. We affirm, finding that the mutual release was an effective waiver of any rights the defendant/appellant had under the will or to challenge revocation of the will. http://www.tba.org/tba_files/TCA/greerlmadm.wpd VALERIE HUMPHREYS v. STUART BREAKSTONE, Individually and MORTON & BREAKSTONE, Jointly and Individually. Court:TCA Attorneys: Valerie Humphreys, Tulsa Oklahoma, Pro Se. Stuart Breakstone, Memphis, Tennessee, for the Appellees, Stuart Breakstone and Morton & Breakstone Judge: LILLARD First Paragraph: This is a legal malpractice action. The plaintiff is the majority shareholder of a corporation as well as a member of the corporation's board of directors. The defendant attorney and law firm represented the corporation. The plaintiff sued the defendant for professional malpractice, negligence, collusion, and interference in economic development, arising out of the defendant's representation of the corporation. The trial court held that the plaintiff did not have standing to bring a derivative suit in her own name since all of the alleged injuries were suffered by the corporation, not the plaintiff. We affirm, finding that a derivative suit to address injuries to a corporation must be filed in the name of the corporation, and that an individual shareholder may not sue pro se on behalf of the corporation. http://www.tba.org/tba_files/TCA/humphreysv.wpd EMANUEL JOHNSON v. DOCTOR CRANTS, et al. Court:TCA Attorneys: Emanuel Johnson, Pro Se No appearance for appellees Judge: CRAWFORD First Paragraph: Inmate, a State of Wisconsin prisoner in custody at a private correctional facility in Tennessee pursuant to a contract between the State of Wisconsin and the facility, filed a petition for writ of habeas corpus against respondent, the chief executive officer of the private correctional facility and the warden of the private facility. The petition alleges, in substance, that the act of the State of Wisconsin in sending the prisoner to a private correctional facility out of the state waived its jurisdiction over the inmate, voided his sentence, and released him from custody. The trial court dismissed the petition for failure to state a claim upon which relief can be granted, and inmate has appealed. We affirm. http://www.tba.org/tba_files/TCA/johnsonemanuel.wpd NANCY ELIZABETH CHURCHILL NICHOLS v. HOWARD BERKLEY NICHOLS Court:TCA Attorneys: Dennis J. Sossaman, Memphis, Tennessee, for the Appellant Nancy Elizabeth Churchill Nichols Howard Berkley Nichols, Pro se Judge: LILLARD First Paragraph: This is a post-divorce action on modification of child support. The parties' original divorce decree required the father to pay child support and, in addition, pay the private school tuition of one of the parties' children. Months later, the father filed a petition to eliminate his obligation to pay the tuition. The trial court referred the issue to a referee, issued an order consistent with the referee's ruling, and then later set it aside. The trial court then referred the issue to a special master for findings of fact. Adopting the findings of the special master, the trial court eliminated the father's obligation to pay the child's private school tuition. The mother appeals, arguing that there was not a significant variance justifying modification of the child support award. We reverse, finding that the basis for the trial court's modification were facts that were before the trial court at the time of the initial award, and that there are no facts in the record sufficient to support modification. http://www.tba.org/tba_files/TCA/nicholsnec.wpd STATE OF TENNESSEE v. COURTNEY ANDERSON Court:TCCA Attorneys: William L. Johnson, Memphis, Tennessee, for the appellant, Courtney Anderson. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy P. Weirich, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was convicted by a Shelby County jury of theft of property valued greater than $10,000 and forgery. The trial court sentenced him to consecutive sentences of 15 years for theft as a persistent offender and six years for forgery as a career offender. In this appeal as a matter of right, defendant alleges (1) the evidence is not sufficient to support the convictions, and (2) his sentence is excessive. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/andersonca.wpd WILLIAM PAUL BOGUS V. STATE OF TENNESSEE Court:TCCA Attorneys: Ralph I. Lawson, Dyersburg, Tennessee for the appellant, William Paul Bogus. Michael E. Moore, Solicitor General; Kim R. Helper, Assistant Attorney General; C. Phillip Bivens, District Attorney General; James Lanier, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner appeals from the Dyer County Circuit Court's dismissal of his petition for post- conviction relief. In 1994, the petitioner was tried and convicted of first degree murder in the perpetration of a felony and aggravated burglary. His convictions were affirmed, after which he timely filed a petition seeking post-conviction relief, claiming ineffective assistance of trial and appellate counsel, juror misconduct because an alternate juror had lied during voir dire about not knowing the petitioner, insufficient evidence to support the felony-murder conviction, and suppression of exculpatory evidence. After an evidentiary hearing, the post-conviction court denied relief. We affirm the post-conviction court's denial of the petitioner's request for post-conviction relief. http://www.tba.org/tba_files/TCCA/boguswp.wpd STATE OF TENNESSEE v. RECO R. DOUGLAS Court:TCCA Attorneys: A.C. Wharton, Jr., Public Defender; Trent Hall (at trial), Kathy Kent (at trial), and Tony N. Brayton (on appeal), Assistant Public Defenders, for the appellant, Reco R. Douglas. Michael E. Moore, Solicitor General; Lucian D. Geise, Assistant Attorney General; William L. Gibbons, District Attorney General; and Edgar A. Peterson, IV, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant's conviction for first degree murder during perpetration of robbery was reversed by this court in 1998. The defendant was subsequently retried, again convicted of first degree murder during the perpetration of a robbery, and sentenced to life imprisonment. This appeal followed, whereby the defendant alleges the evidence is insufficient to sustain his conviction, and the trial court erroneously admitted the audio recording and transcript of the victim's phone call to 911. After a thorough review of the record, we affirm the defendant's conviction and sentence. http://www.tba.org/tba_files/TCCA/douglasrr.wpd STATE OF TENNESSEE v. KEITH T. DUPREE Court:TCCA Attorneys: Charles D. Wright (at trial), Wayne Emmons (on appeal), and Robert C. Brooks (on appeal), Memphis, Tennessee, for the appellant, Keith T. Dupree. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; William L. Gibbons, District Attorney General; Elaine K. Sanders and Betsy L. Carnesale, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: This is an appeal from defendant's conviction for second degree murder for which he received a sentence of twenty-three years and six months. In this appeal, defendant presents two issues for our review: (1) whether the evidence is sufficient to support the verdict; and (2) whether the trial court erred in defining the mental state of "knowing" for the offense of second degree murder. We conclude the evidence was sufficient to support the verdict; however, we conclude the jury charge constituted plain error by failing to instruct on the applicable definition of "knowing." Accordingly, the judgment of the trial court is reversed, and the case is remanded for a new trial. http://www.tba.org/tba_files/TCCA/dupreekt.wpd STATE OF TENNESSEE v. ROBERT ERVIN Court:TCCA Attorneys: Gary F. Antrican, District Public Defender, Somerville, Tennessee, for the Appellant, Robert Ervin. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Lucian D. Geise, Assistant Attorney General, Elizabeth T. Rice, District Attorney General, and Tracey Brewer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: Robert Ervin, also known as Muhammad Jabbar, was convicted of attempted second degree murder and sentenced to twenty-five years in the Tennessee Department of Correction. On appeal, Ervin raises one issue for our review: Whether the evidence produced at trial was sufficient to support the verdict. After review, we find the evidence sufficient and affirm the judgment. http://www.tba.org/tba_files/TCCA/ervinr.wpd STATE OF TENNESSEE v. SAMMY GOFF Court:TCCA Attorneys: Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Sammy Goff. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant, after being convicted by a jury of first degree murder and sentenced to life without the possibility of parole, appeals his conviction and asserts that the trial court erred in three respects: (1) the trial court incorrectly allowed testimony from three witnesses attacking the defendant's reputation for truthfulness; (2) the trial court erred in allowing the State to question the defendant about a prior felony conviction; and (3) the trial court erred in allowing testimony about a prior statement made by the defendant. After review, we affirm the trial court's rulings in all respects. http://www.tba.org/tba_files/TCCA/goffs.wpd STATE OF TENNESSEE v. BERNARD K. JOHNSON Court:TCCA Attorneys: Leslie M. Jeffress, Knoxville, Tennessee, for the Appellant, Bernard K. Johnson. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; Randall E. Nichols, District Attorney General; and Paula Ham, Assistant Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals to challenge the sufficiency of the evidence supporting his convictions of sexual battery and aggravated kidnapping and the propriety of the felony sentences imposed by the trial court. We affirm the convictions, but upon notice of plain error, we reverse a misdemeanor conviction of aggravated criminal trespass. Finding the misapplication of some enhancement factors, we modify some of the sentences. http://www.tba.org/tba_files/TCCA/johnsonbk.wpd STATE OF TENNESSEE v. ROBERT D. WALSH Court:TCCA Attorneys: William D. Massey, Lorna S. McClusky, for the Appellant, Robert D. Walsh. Paul G. Summers, Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; Julie Mosley, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Robert D. Walsh, was convicted after a jury trial in the Shelby County Criminal court of the aggravated sexual battery of a foster child who was in his care. He appeals this conviction, alleging various errors in evidentiary admissions, impermissible comment on the evidence by the trial court, and improper sentencing. We modify the defendant's sentence to Range I classification and remand for correction of a clerical error in the judgment form. Otherwise, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/walshrd.wpd PLEASE FORWARD THIS E-MAIL! 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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