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.

This Issue (IN THIS ORDER):
 
04 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
00 New Opinion(s) from the Tennessee Court of Appeals
09 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

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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