July 16, 2001 Volume 7 — Number 128 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 02 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   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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0716.wpd CLEMMYE MULLENIX BERGER v. BRENDA O'BRIEN, et al. v. SYLVIA GALASSI BERGER, et al. Court:TCA Attorneys: Michael F. Pleasants, Memphis, Tennessee, for the appellant, Morris Jack Berger, Sr. Louis R. Lucas,Carl Langschmidt, Jr., Parke S. P. Morris, Memphis, Tennessee, for the appellees, Brenda O'Brien, Executrix of the Estate of Louis Jack Berger, Pancho's Management, Inc., Pancho's Mexican Foods, Inc., Harold Walter, Guardian Ad Litem, and Patrick Ardis, Attorney Ad Litem. Richard M. Carter, Memphis, Tennessee, for the appellee, Sylvia Galassi Berger, Natural Guardian and Testamentary Trustee of Bianca Berger. Stevan L. Black, Vickie Hardy Jones, Memphis, Tennessee, for the appellee, Sylvia Berger, in her individual capacity. Judge: LILLARD First Paragraph: This case involves the settlement of an estate. After the estate was settled, the trial court assessed a portion of the fees and expenses of the guardian ad litem and the attorney ad litem as costs against an intervening defendant and beneficiary of the estate. The intervening defendant appealed the assessment of these expenses to this Court. On appeal, we affirm the decision of the trial court, finding that the trial court was within its discretion to assess a portion of the fees and expenses of the guardian ad litem and attorney ad litem against the intervening defendant as discretionary costs. http://www.tba.org/tba_files/TCA/bergercm.wpd DENLEY RENTALS, LLC, et al. v. HOWARD C. ETHERIDGE, et al. Court:TCA Attorneys: Julie C. Bartholomew, Somerville, Tennessee, for the appellants, Denley Rentals, LLC, Berryhill Pointe, LLC, and Robert J. Denley. Matthew S. Russell, Memphis, Tennessee, for the appellees, Howard C. Etheridge and Estate of Selma O. Etheridge. Judge: LILLARD First Paragraph: This case involves the assignability of a chose in action. The plaintiffs are two related limited liability companies and the person who was the owner/manager of both. The owner/manager contracted to purchase real property from the defendants, and later assigned his interest under the contract to one of the limited liability companies. The first limited liability company closed the transaction with the defendants. After the transaction was closed, the first company discovered a landfill located on the property that had not been disclosed by the defendants. The first company then transferred the property to the second limited liability company for de minimis consideration. The owner/manager of both companies made a "mental assignment" of the chose in action from the first company to the second company, and the second company incurred the cost of clearing the landfill debris. The plaintiffs jointly sued the defendants for breach of contract, fraud, and misrepresentation. The trial court dismissed the suit, holding that there was not a valid assignment of the chose in action, that the first company was precluded from recovery because it suffered no damages, and that the second company was precluded from recovery because it took the property with full knowledge of the defect. On appeal, we reverse and remand, finding that the chose in action was validly assigned. http://www.tba.org/tba_files/TCA/denleyrentals.wpd STATE OF TENNESSEE v. DARRIN BRYANT Court:TCCA Attorneys: A. C. Wharton and Tony N. Brayton, Memphis, Tennessee, for the appellant, Darrin Bryant. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: After a jury trial, Defendant, Darrin Bryant, was convicted of attempted first degree murder. Subsequently, he was sentenced to twenty-five (25) years, Range I, Standard Offender in the Department of Corrections. In this appeal as of right, Defendant asserts that the trial court erred in sentencing Defendant to the maximum sentence of twenty-five (25) years by inappropriately applying an enhancement factor; and the State failed to present sufficient evidence to justify a rational trier of fact in finding beyond a reasonable doubt, that the assault was an attempt to commit premeditated murder. We conclude that the evidence was sufficient to support the conviction and that the trial court did not err in sentencing Defendant to the maximum of twenty-five (25) years in the Department of Corrections. http://www.tba.org/tba_files/TCCA/bryantd.wpd STATE OF TENNESSEE v. CHRISTOPHER M. FLAKE Court:TCCA Attorneys: Leslie I. Ballin, Memphis, Tennessee, and Steven E. Farese, Ashland, Mississippi, for the appellant, Christopher M. Flake. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; William L. Gibbons, District Attorney General; Thomas D. Henderson and John W. Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was indicted for attempted first degree murder. A Shelby County jury convicted the defendant of the lesser-included offense of attempted voluntary manslaughter, and the trial court sentenced him to four years imprisonment. In this appeal, the defendant alleges: (1) his insanity defense was established by clear and convincing evidence; (2) the trial court erroneously admitted statements made by the defendant and a weapon seized from his vehicle; (3) the trial court erroneously restricted the testimony of a psychiatrist by disallowing his statement that the defendant was committable if found not guilty by reason of insanity, while allowing him to testify that the defendant stated he believed he would be free to go home within 60 to 90 days if adjudicated not guilty by reason of insanity; (4) the trial court erroneously allowed the state to call a psychiatrist because the defense was not notified pre-trial that he would be an expert witness; (5) the trial court improperly found that a psychiatrist was qualified to testify as an expert; and (6) the trial court erroneously refused the defendant's request to have the opening and rebuttal closing arguments. After a through review of the record, we reverse the judgment of conviction, modify the judgment to "Not Guilty by Reason of Insanity," and remand for further proceedings pursuant to Tenn. Code Ann. S 33-7-303. http://www.tba.org/tba_files/TCCA/flakecm.wpd STATE OF TENNESSEE v. LAVERNE LONG Court:TCCA Attorneys: William Gosnell, Memphis Tennessee, for the appellant, Laverne Long. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Camille McMullen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Laverne Long, entered a guilty plea to reckless homicide, a Class D felony, in exchange for a two year sentence as a Range I, standard offender. Following an evidentiary hearing on the Defendant's motion to suspend her sentence, the trial court denied alternative sentencing. The Defendant now appeals as of right from the denial of alternative sentencing. We find no error; thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/longl.wpd RONALD DONNELL MOORE v. STATE OF TENNESSEE Court:TCCA Attorneys: Juni S. Ganguli, Memphis, Tennessee (at post-conviction hearing), and Clifford K. McGown, Jr., Waverly, Tennessee (on appeal), for the appellant, Ronald Donnell Moore. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner was originally convicted by a Shelby County jury of first degree murder and received a sentence of life imprisonment. His conviction was affirmed on direct appeal. The petitioner filed a pro se post-conviction petition, counsel was appointed, and the petition was denied. In this appeal, the petitioner alleges that this matter should be remanded to the post-conviction court for a new hearing since he was unable to present his claim for relief. After a thorough review of the record, we conclude that the petitioner is entitled to a new post-conviction hearing. http://www.tba.org/tba_files/TCCA/moorerd.wpd STATE OF TENNESSEE v. ANTHONY PERRY Court:TCCA Attorneys: Coleman W. Garrett, Memphis, Tennessee, for the appellant, Anthony Perry. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul F. Goodman and Paul Thomas Hoover, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his convictions for first degree felony murder, especially aggravated kidnapping, and conspiracy to commit felony murder. After careful review, we conclude that the evidence is sufficient to support the defendant's convictions for first degree felony murder and especially aggravated kidnapping. Further, we hold that conspiracy to commit felony murder is not a recognizable offense in Tennessee. Therefore, we affirm the defendant's convictions for first degree felony murder and especially aggravated kidnapping. We reverse and dismiss the defendant's conviction for conspiracy to commit felony murder. http://www.tba.org/tba_files/TCCA/perrya.wpd MARCUS D. POLK v. STATE OF TENNESSEE Court:TCCA Attorneys: R. Price Harris, Memphis, Tennessee, for the appellant, Marcus D. Polk. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Dan Byer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Marcus D. Polk, pled guilty in the Shelby County Criminal Court to criminal attempt to commit first degree murder, especially aggravated robbery, and first degree murder and received a total effective sentence of life imprisonment plus twenty years. Subsequently, the petitioner filed a petition for post-conviction relief alleging the ineffective assistance of his plea counsel, which petition was denied by the post-conviction court. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/polkmarcus.wpd RONALD SHIPLEY v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert B. Gaia, Memphis, Tennessee, for the appellant, Ronald Shipley. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, 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 petitioner was originally convicted by a Shelby County jury of rape of a child. The conviction was affirmed on direct appeal. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal as a matter of right, the petitioner contends that his trial counsel provided ineffective assistance of counsel. After a thorough review of the record, we conclude that the trial court correctly denied post-conviction relief. http://www.tba.org/tba_files/TCCA/shipleyr.wpd MICHAEL THOMAS v. STATE OF TENNESSEE Court:TCCA Attorneys: Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Michael Thomas. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paula Wulff, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Michael Thomas, appeals as of right from the denial of post-conviction relief after an evidentiary hearing. On appeal, he asserts that his guilty plea was not knowing and voluntary and that he was denied the effective assistance of counsel. We find no merit to the Defendant's assertions; thus, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/thomasm.wpd STATE OF TENNESSEE v. CORWYN E. WINFIELD Court:TCCA Attorneys: Thomas E. Hansom, Memphis, Tennessee, for the appellant, Corwyn E. Winfield. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Rosemary Andrews, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of second degree murder by a Shelby County jury in the shooting death of his girlfriend. He was sentenced to twenty years as a standard offender, with his sentence to be served without parole eligibility in the Tennessee Department of Correction. In this appeal as of right, the defendant raises one issue: whether the trial court erred in admitting the testimony of the mother of the victim concerning a prior alleged assault on the victim by the defendant. We conclude that the evidence was admissible, having satisfied all three conditions for admissibility of evidence of prior bad acts pursuant to Tennessee Rule of Evidence 404(b)(1)-(3). The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/winfieldce.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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