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May 18, 2001
Volume 7 — Number 092
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.
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New Opinion(s) from the Tennessee Supreme Court |
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New Opinion(s) from the Tennessee Supreme Court Workers' Compensation
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New Document(s) or Proposed Rule(s) from the Tennessee Supreme
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New Opinion(s) from the Tennessee Court of Appeals |
| 09 |
New Opinion(s) from the Tennessee Court of Criminal Appeals |
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New Opinion(s) from the Tennessee Attorney General (PDF format)
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New Judicial Ethics Opinion(s) |
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New Formal Ethics Opinion(s) from the Board of Professional Responsibility
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Lucian T. Pera
Editor-in-Chief, TBALink
JOHN M. CLINARD, et al. v. C. ROGER BLACKWOOD, et al.
Court:TSC
Attorneys:
Ames Davis, Mark W. Peters, Paula D. Walker, and Thomas Mink,
Nashville, Tennessee, for the appellant, American Limestone, Inc.
Ames Davis, Mark W. Peters, and Paula D. Walker, Nashville, Tennessee,
for the appellants, Edward Clinard and John M. Clinard.
James Clarence Evans and Winston S. Evans, Nashville, Tennessee, for
the appellees, C. Roger Blackwood and Nancy Dods Blackwood.
Thomas Mink, Nashville, Tennessee, for the defendant, Austin Powder
Co., Inc.
Allen F. Ramsaur, Gail Vaughn Ashworth, and Kathryn Reed Edge,
Nashville, Tennessee, and Brian S. Faughnan and Lucian T. Pera,
Memphis, Tennessee, for the amicus curiae, Tennessee Bar Association.
Judge: HOLDER
First Paragraph:
We granted this appeal to determine whether attorney screening
procedures may be used to prevent a law firm's disqualification under
Tenn. Sup. Ct. R. 8, Canon 5, DR 5-105(D), the vicarious
disqualification rule. We hold that when an attorney has a conflict
of interest arising from a former representation that would prohibit
representation of a present client, DR 5-105(D) does not require
automatic vicarious disqualification of that attorney's law firm.
When an attorney has a conflict of interest resulting from former
representation, adequate procedures to screen that attorney can rebut
the presumption of shared confidences. The screening procedures
utilized in this case were sufficient to overcome the presumption of
shared confidences. Nevertheless, the serious appearance of
impropriety requires the law firm's disqualification. The judgment of
the Court of Appeals is affirmed.
http://www.tba.org/tba_files/TSC/clinardj_opn.wpd
CONCURRING
http://www.tba.org/tba_files/TSC/clinardj_con.wpd
CONCURRING AND DISSENTING
http://www.tba.org/tba_files/TSC/clinardj_cd.wpd
DON L. CULBREATH v. FIRST TENNESSEE BANK NATIONAL ASSOCIATION
Court:TSC
Attorneys:
Andrew C. Clarke, C. Philip M. Campbell, R. Sadler Bailey, and Seymour
S. Rosenberg, Memphis, Tennessee, for the plaintiff-appellant, Don L.
Culbreath.
John C. Speer, Lang Wiseman, Leo Bearman, Jr., and Michael Cotter
Patton, Memphis, Tennessee, for the defendant-appellee, First
Tennessee Bank, N.A.
John E. Murdock, III, and Roger G. Jones, Nashville, Tennessee, for
amici curiae, Tennessee Association of Business and Tennessee Bankers
Association.
Judge: HOLDER
First Paragraph:
Don L. Culbreath (Culbreath) filed suit against Community First Bank
(Community First) seeking compensatory and punitive damages.
Culbreath alleged that Community First fraudulently refused to pay
Culbreath the proceeds of a new $150,000 loan that had been agreed
upon by a bank officer and Culbreath and for which Culbreath had
signed a demand note and deed of trust. Instead, the bank used the
deed of trust to serve as additional collateral for Culbreath's
existing indebtedness to the bank. Prior to trial, Community First
merged with First Tennessee Bank, N.A. (First Tennessee), and First
Tennessee was substituted for Community First as the defendant in the
case. The trial court found in favor of Culbreath and awarded
$209,156 in compensatory damages. After a bifurcated hearing on the
issue of punitive damages, the court awarded Culbreath an additional
$9,000,000 in punitive damages. First Tennessee argues on appeal that
as a successor corporation it should not be liable for punitive
damages arising from Community First's actions. We hold that First
Tennessee is liable for the compensatory damages awarded by the trial
court and that it is also liable for punitive damages arising out of
Community First's pre-merger conduct. However, we remand this case to
the trial court for reassessment of punitive damages based upon the
factors outlined in Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn.
1992).
http://www.tba.org/tba_files/TSC/culbreathd.wpd
STATE OF TENNESSEE v. ROGER DALE LEWIS
Court:TSC
Attorneys:
Peter D. Heil, Nashville, Tennessee, for the appellant, Roger Dale
Lewis.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Marvin E. Clements, Jr., Assistant Attorney
General, for the appellee, State of Tennessee.
Judge: HOLDER
First Paragraph:
We granted review of this case to decide whether the "particularly
vulnerable victim" enhancement factor, Tenn. Code Ann. S 40-35-114(4),
and the "high risk to human life" enhancement factor, Tenn. Code Ann.
S 40-35-114(10), were appropriate for Lewis's offense of aggravated
arson. We hold that both enhancement factors were appropriate. In
addition, we find that the record supports the "multiple victim"
enhancement factor found at Tenn. Code Ann. S 40-35-114(3).
Accordingly, we affirm the judgment of the Court of Criminal Appeals
as modified and affirm the twenty-one-year sentence imposed by the
trial court.
http://www.tba.org/tba_files/TSC/lewisrog.wpd
STATE OF TENNESSEE v. VINCENT SIMS
Court:TSC
Attorneys:
W. Mark Ward and Tony N. Brayton, Memphis, Tennessee, for the
appellant, Vincent Sims.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Joseph F. Whalen, Assistant Attorney General,
for the appellee, State of Tennessee.
Judge: HOLDER
First Paragraph:
Vincent Sims was convicted of especially aggravated burglary and first
degree premeditated murder in the shooting death of Forrest Smith.
Sims was sentenced to twenty years on the especially aggravated
burglary conviction and was sentenced to death for the first degree
murder conviction. The sentences were ordered to run consecutively.
On direct appeal, the Court of Criminal Appeals affirmed Sims's
convictions and sentences. We entered an order designating the
following issues for oral argument: 1) whether the evidence is
sufficient to support the verdict of first degree premeditated murder;
2) whether the trial court erred in refusing to charge the law of
self-defense; 3) whether the record supports the aggravating
circumstance that the defendant had been previously convicted of a
felony whose statutory elements involve violence to the person; 4)
whether the trial court erred in allowing the State to cross-examine
defense witnesses at the sentencing hearing about the defendant's
prior criminal convictions; 5) whether the trial court erred in
refusing to allow the defendant to present hearsay evidence at the
sentencing hearing; 6) whether prosecutorial misconduct during closing
argument at the sentencing phase of the trial denied the defendant his
constitutional rights; 7) whether the evidence is sufficient to
support aggravating circumstance (i)(5), that the murder is especially
heinous, atrocious, or cruel in that it involved torture or serious
physical abuse beyond that necessary to produce death; 8) whether the
jury instruction on aggravating circumstance (i)(5) denied the
defendant his constitutional right to a unanimous jury finding; and 9)
whether the sentence should be upheld under the Court's mandatory
review under Tenn. Code Ann. S 39-13-206(c)(1). Having carefully
reviewed these issues and the remainder of the issues addressed in
Sims's brief, we find no merit to his arguments. Sims raises no
assignments of error related to his especially aggravated burglary
conviction, and after careful review of the record we find no plain
error requiring reversal of that conviction. Accordingly, we affirm
the Court of Criminal Appeals in all respects.
http://www.tba.org/tba_files/TSC/simsvinc.wpd
STATE OF TENNESSEE v. CALVIN T. BARHAM
Court:TCCA
Attorneys:
George Morton Googe, District Public Defender; and Vanessa D. King,
Assistant District Public Defender, Jackson, Tennessee, for the
appellant, Calvin T. Barham.
Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and Shaun A. Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
Defendant entered a best interest plea of guilty to possession of
cocaine with the intent to sell and was sentenced to four years on
community corrections. The plea attempted to reserve a certified
question of law relating to the suppression of evidence. Upon our
review of the record, we conclude that we do not have jurisdiction to
address the certified question of law. The appeal is dismissed.
http://www.tba.org/tba_files/TCCA/barhamc.wpd
STATE OF TENNESSEE v. RAIN THOMAS CHESHER
Court:TCCA
Attorneys:
Donald E. Parish, Huntingdon, Tennessee, for the appellant, Rain
Thomas Chesher.
Paul G. Summers, Attorney General and Reporter; Glen C. Watson,
Assistant Attorney General; Robert Radford, District Attorney General;
and Steve Garrett, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
A jury convicted the Defendant of first degree premeditated murder,
and he was sentenced to life imprisonment. In this direct appeal, the
Defendant contends that he received ineffective assistance of counsel
at trial and challenges the sufficiency of the evidence. We affirm
the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/chesherrt.wpd
STATE OF TENNESSEE v. TIMOTHY C. JEWELL, JR.
Court:TCCA
Attorneys:
Marvin E. Ballin, Memphis, Tennessee, for the Appellant, Timothy C. Jewell, Jr.
Paul G. Summers, Attorney General and Reporter, Elizabeth B. Marney,
Assistant Attorney General, William L. Gibbons, District Attorney
General, and David Pritchard, Assistant District Attorney General, for
the Appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Defendant pleaded guilty to one count of aggravated burglary, a
Class C felony, and two counts of theft over one thousand dollars,
Class D felonies. The trial court sentenced the Defendant to an
effective sentence of three years incarceration in the local
workhouse. The Defendant now appeals, arguing that the trial court
erred in denying him alternative sentencing. Finding no error, we
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/jewelltc.wpd
STATE OF TENNESSEE v. WILLIAM TONY MELTON
Court:TCCA
Attorneys:
Dwayne D. Maddox, III, Huntingdon, Tennessee, for the Appellant,
William Tony Melton.
Paul G. Summers, Attorney General and Reporter; Mark E. Davidson,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Eleanor Cahill, Assistant District Attorney General, for
the Appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Defendant pleaded guilty to manufacturing methamphetamine, a
Schedule II controlled substance. The Defendant was sentenced as a
Range I standard offender to five years in the Tennessee Department of
Correction. The Defendant now appeals, arguing that the trial court
erred in denying him alternative sentencing. Finding no error, we
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/meltonwt.wpd
ANTWAN LAMAR PATTON v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Ralph Newman, Nashville, Tennessee, at trial and sentencing; C. LeAnn
Smith, Nashville, Tennessee, on post-conviction, for appellant, Antwan
L. Patton.
Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, District Attorney
General, Pam Anderson, Assistant District Attorney, for appellee,
State of Tennessee.
Judge: SMITH
First Paragraph:
A Davidson County jury convicted the petitioner of two counts of child
rape. For each of these offenses, he received a sentence of eighteen
years, and the trial court ordered the sentences to be run
consecutively. On direct appeal this Court modified the petitioner's
sentences to sixteen and one half years each, resulting in an
effective sentence of thirty-three years, but otherwise found the
petitioner's claims merited no relief. Subsequently the petitioner
filed a pro se post-conviction petition alleging ineffective
assistance of counsel. Determining that the petitioner had raised a
colorable claim, the trial court appointed counsel to represent him
and later conducted an evidentiary hearing on the petition. After
taking the matter under advisement, the trial court filed an opinion
denying the petition. From this denial the petitioner brings the
instant appeal alleging that trial counsel provided ineffective
assistance by inadequately advising the petitioner of the potential
sentence he could receive should he elect to go to trial. However,
following our review of the record, we find that the trial court
correctly denied the petition, and we, therefore, affirm the lower
court's decision.
http://www.tba.org/tba_files/TCCA/pattonantwan.wpd
LELAND RAY REEVES v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
A. Russell Brown, Lafayette, Tennessee, for the appellant, Leland Ray
Reeves.
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Tom P. Thompson, Jr., District Attorney
General; and Guy E. Yelton, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner's conviction for rape was affirmed on direct appeal.
He filed a petition for post- conviction relief in which he claimed
that he received inadequate assistance of counsel at his trial.
Following a hearing, the post-conviction court dismissed the petition.
We affirm the judgment of the post-conviction court.
http://www.tba.org/tba_files/TCCA/reeveslr.wpd
STATE OF TENNESSEE v. JERRY LYNN SANDERS
Court:TCCA
Attorneys:
Vicki Snyder, Camden, Tennessee, for the appellant, Jerry Lynn
Sanders.
Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Robert Radford, District Attorney General;
and John Overton, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Jerry Lynn Sanders, appeals from his convictions of
aggravated burglary, theft of property less than $500.00, and
possession of a Schedule VI controlled substance. He asserts that the
evidence presented at trial was insufficient to support his
convictions and that the trial court erred by denying his request to
admit into evidence a notarized statement wherein the alleged victim
stated that he wanted to dismiss the charges in this matter. We find
no error; thus, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/sandersjl.wpd
SHANNON SMITH, et al. v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and John W. Campbell, Assistant District Attorney General,
for the appellant, State of Tennessee.
Danese Banks, Memphis, Tennessee; Elaine R. Jones, Theodore Shaw,
George H. Kendall, and Miriam Gohara, New York, New York, for the
appellees, Shannon Smith and Keith Versie.
Judge: WILLIAMS
First Paragraph:
Pursuant to a plea agreement, the Petitioners in the instant case each
pled guilty to one count of murder in the perpetration of a robbery
under Tennessee Code Annotated section 39-13-202, one count of
especially aggravated robbery under Tennessee Code Annotated section
39-13-403, and one count of aggravated assault under Tennessee Code
Annotated section 39-13-102. The Petitioners were sentenced to
concurrent sentences of life, twenty-five years, and six years,
respectively. On April 20, 1995, the Petitioners filed a petition for
post-conviction relief. Special Judge Bobby Capers was appointed to
hear the post-conviction petition. The trial court heard the
Petitioners' petition between August 9, 1999 and August 19, 1999, and
granted post-conviction relief to Petitioners Smith and Versie. On
December 3, 1999, the State filed a notice of appeal, challenging the
post-conviction court's findings that neither of the Petitioners
received effective assistance of counsel. After a thorough review of
the record, we conclude that the trial court was correct in granting
post-conviction relief to the Petitioners. The judgment of the
post-conviction court is affirmed.
http://www.tba.org/tba_files/TCCA/smithetal.wpd
STATE OF TENNESSEE v. HENRY FORD WILLIAMS, JR.
Court:TCCA
Attorneys:
Gregory D. Smith, on appeal, Clarksville, Tennessee; and Michael R.
Jones, Public Defender, Springfield, Tennessee, for the Appellant,
Henry Ford Williams, Jr.
Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Dent Morriss, Assistant District Attorney General, for
the Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
The defendant, Henry Ford Williams, appeals the Robertson County
Circuit Court's revocation of his community corrections sentence. The
trial court accepted the defendant's guilty pleas to Class B felony
possession of cocaine for resale and to Class C felony possession of
cocaine. On September 16, 1993, the trial court imposed an effective
sentence of ten years, with eleven months and 29 days to be served in
local confinement and the balance to be served in community
corrections. On February 18, 2000, the state filed a community
corrections revocation warrant. The trial court conducted an
evidentiary hearing and revoked the defendant's community corrections
placement. From that order, the defendant has appealed to this court.
Upon our review of the record, the briefs of the parties, and the
applicable law, we affirm the action of the trial court.
http://www.tba.org/tba_files/TCCA/williamshf.wpd
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