March 15, 2001
Volume 7 -- Number 048

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): 
03 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 
06 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

                                                JEHIEL FIELDS  v.  STATE OF TENNESSEE
Court:TSC

Attorneys:  

James F. Logan, Jr., Cleveland, Tennessee, for the appellant, Jehiel
Fields.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General,
Nashville, Tennessee, for the appellee, State of Tennessee.                        

Judge: BARKER

First Paragraph:

The sole issue in this appeal is whether our decision in State v.
Burns, 6 S.W.3d 453 (Tenn. 1999), changed the standard by which
appellate courts review denials of post-conviction relief based on
allegations of ineffective assistance of counsel.  The Court of
Criminal Appeals in this case affirmed the denial of the appellant's
post-conviction petition, although it expressed concern that this
Court inadvertently changed the standard of appellate review in Burns
to require a de novo review of a trial court's factual findings
regarding claims of ineffective assistance of counsel.  While we
reaffirm that such claims are mixed questions of law and fact subject
to de novo review, we emphasize that Burns did not change the standard
of review in this context.  Consistent with the Rules of Appellate
Procedure, our language in Burns meant only that a trial court's
findings of fact be reviewed de novo, with a presumption that those
findings are correct unless the preponderance of the evidence is
otherwise.  A trial court's conclusions of law are also reviewed under
a de novo standard, although the trial court's legal conclusions are
accorded no deference or presumption of correctness on appeal. 
Because the Court of Criminal Appeals correctly applied the
appropriate standard of review in this case, the judgment of that
court is affirmed, and the appellant's petition for post-conviction
relief is dismissed.

http://www.tba.org/tba_files/TSC/fieldsjehiel.wpd



MEMPHIS HOUSING AUTHORITY v. TARA THOMPSON Court:TSC Attorneys: Webb M. Brewer, Debra N. Brittenum, Margaret Barr-Myers, Nancy Percer Kessler, and Brenda Oates-Williams, Memphis, Tennessee, for the appellant, Tara Thompson. Gregory L. Perry, Memphis, Tennessee, for the appellee, Memphis Housing Authority. Drake Holliday, Legal Aid Society of Middle Tennessee, Nashville, Tennessee and David Kozlowski, Legal Services of South Central Tennessee, Incorporated, for the Amicus Curiae, Tennessee Association of Legal Services.                         Judge: DROWOTA First Paragraph: The appellee, Memphis Housing Authority brought this unlawful detainer action seeking to evict the appellant, tenant Tara Thompson, after drugs were discovered on the father of her child while he was inside her apartment.  The trial court granted summary judgment to the appellee, and the Court of Appeals affirmed, finding that the lease agreement imposes strict liability upon the appellant for the drug-related criminal activity of her "guests and other persons under her control."  We granted permission to appeal to consider the appropriate standard that applies when a public housing authority seeks to evict a tenant for drug-related criminal activity.  This is an issue of first impression in Tennessee.  After due consideration, we hold that the lease agreement imposes strict liability for drug-related criminal activity engaged in by the tenant or any household member but permits eviction for the drug related criminal activity of "guests and other persons under [the tenant's] control"only if the tenant knew or should have known of the drug-related criminal activity and failed to take reasonable steps to halt or prevent the illegal activity.  Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the trial court for reconsideration of the appellee's motion for summary judgment under the legal standard announced herein. http://www.tba.org/tba_files/TSC/memphishousingauth.wpd
STATE OF TENNESSEE  v.  TIMOTHY WALTON Court:TSC Attorneys:  Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mark E. Davidson, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee. Charles S. Kelly, Dyersburg, Tennessee, for the appellee, Timothy Walton. Judge: BARKER First Paragraph: The primary issue in this case is whether the appellee was subjected to custodial interrogation in violation of the requirements of Miranda v. Arizona, 384 U.S. 436 (1966), when officers questioned him in response to his volunteered, but unwarned, statements.  The Dyer County Circuit Court found that although the appellee was placed in custody, his statements to the police as to the location of stolen property were spontaneous, voluntary, and not the result of interrogation.  The appellee then entered a conditional guilty plea, reserving for appeal the question of whether he was subjected to custodial interrogation.  The Court of Criminal Appeals reversed, finding that the greater weight of the evidence established that the appellee's statements were a result of interrogation, and it suppressed the appellee's statements and the physical evidence derived from his statements.  The State then requested permission to appeal to this Court on the issue of whether the appellee was subjected to custodial interrogation in violation of Miranda.  We agree with the intermediate court that the appellee was placed in custody and subjected to interrogation, but we decline to suppress the physical evidence recovered by the officers absent any evidence that his statements were the product of actual coercion.  Because the appellee's plea was made with the expectation that his statements were admissible as evidence, we remand this case to the Dyer County Circuit Court to give the appellee the opportunity to withdraw his plea should he so desire. http://www.tba.org/tba_files/TSC/waltontim.opn.wpd
DISSENTING OPINION http://www.tba.org/tba_files/TSC/waltontim.dis.wpd
ALMEDA ZOLIA GREEN v. EUGENE I. SACKS Court:TCA Attorneys: John D. Drake, Murfreesboro, Tennessee, for the appellant, Almeda Zolia Green. Thomas Pinckney and Andy Rowlett, Nashville, Tennessee, for the appellee, Eugene I. Sacks. Judge: KOCH First Paragraph: This appeal involves a dispute between a patient and her physician regarding the surgical insertion of an Angelchik prosthesis to control a chronic gastric reflux condition.  Almost five years after her surgery, the patient filed suit in the Circuit Court for Davidson County against her physician and the Angelchik's manufacturer.  The case was removed to federal court, but the federal proceedings were eventually dismissed after the patient voluntarily dismissed her claims against the manufacturer.  After the case was returned to the trial court, the physician moved for a summary judgment on the ground that the patient's claim was barred by the statute of repose in Tenn. Code Ann. S 29-26- 116(a)(3) (2000) and the statute of limitations in Tenn. Code Ann. S 29-26-116(a)(1), (2).  The patient responded that her physician's fraudulent concealment tolled the running of the statute of repose and that she filed suit within one year of discovering her injury.  The trial court granted the physician's summary judgment motion.  The patient asserts on this appeal that the physician has not demonstrated that he is entitled to a judgment as a matter of law on either defense.  We agree.  There is a material factual dispute regarding whether the physician's failure to inform his patient of the manner in which he inserted the Angelchik device amounts to fraudulent concealment for the purpose of tolling the statute of repose.  Likewise, the patient demonstrated that she filed suit within one year after discovering her injury  Accordingly, we reverse the summary judgment. http://www.tba.org/tba_files/TCA/greenaz.wpd
WALTER JACOB HANSELMAN, JR. v. LINDA ELLEN HANSELMAN Court:TCA Attorneys:     Neal Lovlace, Centerville, Tennessee, for the appellant, Walter Jacob Hanselman, Jr. Douglas Thompson Bates, III, Centerville, Tennessee, for the appellee, Linda Ellen Hanselman. Judge: KOCH First Paragraph: This appeal involves a father's effort to reduce his child support and spousal support obligations.  Approximately one year after the parties were divorced, the father filed a petition in the Hickman County Chancery Court seeking a downward modification of his support obligations because his income had declined due to his employer's cutbacks in the availability of overtime work.  Following a bench trial, the trial court denied the father's petition because he had failed to establish a significant variance in his child support obligations and because he had failed to demonstrate that a substantial and material change in the parties' circumstances warranting a reduction in spousal support had occurred.  We agree with the trial court's findings and affirm the judgment. http://www.tba.org/tba_files/TCA/hanselmanwj.wpd
MEMPHIS PUBLISHING CO., et al. v. CHEROKEE CHILDREN & FAMILY SERVICES, INC., et al. Court:TCA Attorneys:   Allan J. Wade, Lang Wiseman, Lori Hackleman Patterson, Memphis, Tennessee, for the appellant, Cherokee Children & Family Services. Lucian T. Pera, Kathy Laughter Laizure and Brian S. Faughnan, Memphis, Tennessee, for the appellee, Memphis Publishing Company and Mike Kerr.                         Judge: CANTRELL First Paragraph: The publisher and assistant managing editor of The Commercial Appeal, a Memphis newspaper, sued a non-profit corporation seeking access to the corporation's books and records under the Tennessee Public Records Act.  The Circuit Court of Shelby County held that the corporation's contract with the State made virtually all of its records State property.  We reverse the judgment of the trial court and reject the appellee's alternative argument that the corporation is a State agency.  Therefore the appellee is not entitled to free access to the corporation's records. http://www.tba.org/tba_files/TCA/memphispub.wpd
JOHN MORGAN, etc. v. CHEROKEE CHILDREN & FAMILY SERVICES, INC. Court:TCA Attorneys:   Allan J. Wade, Lang Wiseman, and Lori Hackleman Patterson, Memphis, Tennessee, for the appellant, Cherokee Children & Family Services, Inc. Paul J. Summers, Attorney General & Reporter; Albert L. Partee, III, Senior Counsel, for the appellee, John Morgan, in his official capacity as Comptroller of the Treasury of the State of Tennessee.                         Judge: CANTRELL First Paragraph: The State Comptroller sued Cherokee Children & Family Services, Inc. seeking access to Cherokee's records for an audit of the company's affairs.  The Chancery Court of Davidson County held that the company's contract with the State, and Chapter 960 of the Public Acts of 2000, gave the State the right to conduct the audit.  Based on our opinion in Memphis Publishing Company, et al. v. Cherokee Children & Family Services, et al., released simultaneously with this opinion, we hold that the company's contracts with the State do not make all their records public records.  We also hold that to apply Chapter 960 retroactively would violate the constitutional prohibition against retrospective legislation.  We therefore reverse the lower court's judgment. http://www.tba.org/tba_files/TCA/morganj.wpd
ROGERS GROUP, INC. v. T. W. COMER, et al. Court:TCA Judge: CANTRELL Order: In accordance with the opinion of this court in Elizabeth Nicoll Doramus, et al. v. Rogers Group, Inc., and T. W. Comer, No. M1998-00918-COA-R3-CV (Tenn. Ct. App. Feb. 28, 2001), the judgment of the court below is affirmed and the cause is remanded to the Chancery Court of Sumner County for any further proceedings that may become necessary. Tax the costs on appeal to the appellant, James V. Doramus, on behalf of Elizabeth Nicoll Doramus and Victoria Lynn Doramus. http://www.tba.org/tba_files/TCA/rogersgroup.wpd
DANA HOPE DAVIS THURMON (SCOTT), INDIVIDUALLY AND AS SURVIVING NATURAL PARENT OF DALTON THURMON, A MINOR , et al. v. EDWARD SELLERS, et al. Court:TCA Attorneys: Tim Edwards and James F. Horner, Memphis, Tennessee, for the Appellant, Dana Hope Davis Thurmon Scott. Charles Abbott, Memphis, Tennessee, for the Appellants, Shane Thurmon and Tiffany Thurmon. Mark Ledbetter, Memphis, Tennessee, for the Appellant, Carl J. Fuhs. Robert L. Moore and John H. Dotson, Memphis, Tennessee, for the Appellees, Edward D. Sellers and Donald Sellers.                        Judge: FARMER First Paragraph: This is a personal injury and wrongful death case arising from a collision between a pickup truck and a tractor trailer truck.  The five-year-old son of plaintiffs Dana Scott and Shane Thurmon died as a result of the accident.  The driver of the car was an "on call" employee of his father's business at the time.  The plaintiffs sued the driver of the car and his father, alleging vicarious liability under the doctrine of respondeat superior and under the family purpose doctrine.  Plaintiff Dana Scott also sued for consortium-type damages for the loss of her son.  Although referring to it as a directed verdict, the trial court, pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure, entered an involuntary dismissal in favor of the defendants on the vicarious liability issue, under both respondeat superior and the family purpose doctrine, and on the loss of filial consortium claim.  The trial court awarded damages, inter alia, to Dana Scott for the wrongful death of her son and to Carl Fuhs for personal injuries based upon his negligent infliction of emotional distress claim.  We hold the following: (1) employer is not vicariously liable under the doctrine of respondeat superior for acts or omissions of "on call" employee when employee is not acting within the course and scope of his employment; (2) the requirements of the family purpose doctrine were met and defendant Donald Sellers, Sr. is vicariously liable under this theory; (3) parents may recover filial consortium damages in wrongful death actions for the death of their child; (4) the trial court's wrongful death award to Dana Scott was supported by the evidence; (5) Carl Fuhs sufficiently established a claim for negligent infliction of emotional distress; and (6) the personal injury award to Carl Fuhs is affirmed. http://www.tba.org/tba_files/TCA/thurmondana.wpd
STATE OF TENNESSEE v. SUZANNE C. DOUGLAS Court:TCCA Attorneys:     Michael J. Flanagan, Nashville, Tennessee, for the appellant, Suzanne C. Douglas. Paul G. Summers, Attorney General and Reporter; Glen C. Watson, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Suzanne M. Lockert, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals from her conviction for driving under the influence, contesting the sufficiency of the indictment.  We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/douglassc.wpd
BILLY J. GROOMS v. STATE OF TENNESSEE Court:TCCA Attorneys:  Billy J. Grooms, Pro Se. Paul G. Summers, Attorney General & Reporter; R. Stephen Jobe, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General,  for the appellee, State of Tennessee.                           Judge: WADE First Paragraph: The petitioner, Billy J. Grooms, appeals the trial court's denial of a pro se petition to correct an illegal judgment/sentence.  The trial court's order of dismissal is affirmed. http://www.tba.org/tba_files/TCCA/groomsbilly.wpd
STATE OF TENNESSEE v. CHRISTOPHER KNIGHTON Court:TCCA Attorneys: Jon A. Anderson, Maryville, Tennessee, for the appellant, Christopher Knighton. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Counsel; Michael L. Flynn, District Attorney General; Kirk Andrews and Edward P. Bailey, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.                          Judge: ACREE First Paragraph: The defendant was convicted by a jury of aggravated rape, aggravated burglary and theft.  In his direct appeal, he presents six issues for review.  Three of those issues concern the jury selection process, one issue is an evidentiary issue, and the other issues concern the sufficiency of the indictment and the sufficiency of the evidence.  With respect to the jury selection process, we hold:  the failure to raise the issue of a Batson violation during jury selection constitutes a waiver of that issue; the failure to swear the jury before voir dire is not reversible error unless it is shown that a juror did not truthfully answer the questions as the result of not being sworn; and the trial court did not abuse its discretion in refusing to dismiss two jurors for cause.  Additionally, we hold that felony drug crimes are crimes involving dishonesty and are relevant to the issue of credibility under Tenn. R. Evid. 609, and that under the facts of this case, the unfair prejudicial effect did not outweigh the probative value of the impeaching convictions.  Finally, we hold that the indictment charging the defendant with aggravated rape was legally sufficient, and that the evidence was sufficient to support the verdict of the jury for that offense. http://www.tba.org/tba_files/TCCA/knightonc.wpd
STATE OF TENNESSEE v. DAVID CALVIN MITCHELL Court:TCCA Attorneys:  Nancy Meyer, Assistant Public Defender, for the Appellant, David Calvin Mitchell. John Knox Walkup, Attorney General & Reporter; Sandy C. Patrick, Assistant Attorney General; James Ramsey, District Attorney General; Jan Hicks, Assistant District Attorney General, for the Appellee, State of Tennessee.                          Judge: WITT First Paragraph: The defendant, David Calvin Mitchell, appeals the manner of service of his sentence for second offense DUI.  Notwithstanding Anderson County's lack of a work release program for jail inmates, he claims that he is statutorily and constitutionally entitled to work release during the mandatory, 45- day period of jail confinement for his crime.  Because we hold that the defendant was not statutorily entitled to work release consideration and that there was no equal protection violation, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mitchelldc.wpd
STATE OF TENNESSEE v. DEANDRADE PHILLIPS Court:TCCA Attorneys:    John B. Nisbet, III, Cookeville, Tennessee (on appeal); Stephen M. Wallace, Public Defender and Leslie S. Hale, Assistant Public Defender (on appeal and at trial), for the appellant, Deandrade Phillips. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Gregory Alan Newman, Assistant District Attorney General, for the appellee, State of Tennessee.                        Judge: TIPTON First Paragraph: The defendant appeals from his conviction for selling less than one-half gram of cocaine, contesting the sufficiency of the evidence, the trial court's restrictions of his examinations of witnesses, the trial court's failure to require the state to elect the offense for which it sought a conviction, and the jury instructions.  We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/phillipsd.wpd
STATE OF TENNESSEE v. JULIANN LYNN WHITEHEAD Court:TCCA Attorneys: Mack Garner, Maryville, Tennessee, and Julie A. Rice, Knoxville, Tennessee, for the appellant, Juliann Lynn Whitehead. Paul G. Summers, Attorney General and Reporter, R. Stephen Jobe, Assistant Attorney General, Michael L. Flynn, District Attorney General, and Kirk Andrews and Edward P. Bailey, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: McGEE OGLE First Paragraph: The appellant, Juliann Lynn Whitehead, pled guilty in the Blount County Circuit Court to one count of burglary, a class D felony, and one count of theft under $500, a class A misdemeanor.  The trial court sentenced the appellant to four years incarceration in the Tennessee Department of Correction for the burglary conviction and to eleven months and twenty-nine days incarceration in the Blount County Jail for the theft conviction.  The trial court ordered that these sentences run concurrently, and allowed the appellant to serve her sentences on intensive probation.  During a random drug screen conducted by the appellant's probation officer approximately three months after sentencing, the appellant tested positive for cocaine.  Additionally, the appellant admitted to her probation officer that she had left the state without permission.  Pursuant to a probation revocation hearing, the trial court revoked the appellant's probation and ordered her to serve the balance of her sentences in the Tennessee Department of Correction and recommended that she be placed into a Special Needs Facility to assist with her substance abuse and mental health problems.  On appeal, the appellant raises the following issue for our review: whether the trial court erred in sentencing the appellant to serve the balance of her sentences in the Tennessee Department of Correction after revoking her probation.  Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/whiteheadjaffd.wpd

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