Opinion Flash; 10/31/2001

Missing Reports
Due to technical problems at our service provider, Opinion Flash files for Monday, Oct. 29, and Tuesday, Oct. 30, were not distributed to subscribers. We are including cases from those days in today's Opinion Flash. We are sorry for the inconvenience.

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.

There are three ways for TBALink members to get the full-text versions of these opinions from the Web:

FRED EDMOND DEAN A/K/A OMAWALI ASHANTI SHABAZZ v. STATE OF TENNESSEE Court:TSC Attorneys: Richard L. Gaines, Knoxville, Tennessee, for the appellee, Fred Edmond Dean. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; Greeley Wells, District Attorney General; and Barry Staubus, Assistant District Attorney General, for the appellant, State of Tennessee. Judge: ANDERSON First Paragraph: We granted this appeal to determine whether the petitioner properly raised a claim of ineffective assistance of counsel in a post-conviction proceeding when it was based upon the failure of defense counsel to object to or appeal the trial court's erroneous range of punishment instruction to the jury on the offense of attempted second degree murder. We conclude (1) that the issue of ineffective assistance of counsel was properly raised in the post-conviction proceeding and (2) that defense counsel's failure to object to or appeal the erroneous jury instruction fell below the range of competence demanded of attorneys in criminal cases and was prejudicial to the petitioner. We therefore affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/deanfred.wpd

JACKIE W. MCLANEY v. RICKY BELL, Warden, et al. Court:TSC Attorneys: Jeffrey T. Loy, Jamestown, Kentucky, for the appellant, Jackie W. McLaney. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Kim R. Helper, Assistant Attorney General, and Victor S. Johnson, III, District Attorney, for the appellees, Ricky Bell, Warden, and the State of Tennessee. Judge: BIRCH First Paragraph: This case is before the Court by way of a petition for writ of habeas corpus filed by Jackie W. McLaney, challenging a plea agreement which encompassed a sentence alleged to be illegal. McLaney presents three issues for review: (1) whether the record shows that his arrest occurred while he was on bail for a felony offense (thus requiring consecutive sentences pursuant to Tenn. Code Ann. S 40-20-111 (2000) and Tenn. R. Crim. P. 32(c)(3)(C)); (2) whether such an arrest while on bail affects the concurrent sentence imposed; and (3) whether habeas corpus provides a remedy for the review and correction of such a sentence imposed pursuant to a plea agreement. We hold that if the face of the judgment or the record of the underlying proceedings shows that the concurrent sentences is illegal, such sentence creates a void judgment for which habeas corpus relief is available. Therefore, we reverse the judgment of the Court of Criminal Appeals and remand the cause to the trial court for appointment of counsel and a determination whether the face of the judgment or the record of the proceedings indicates that McLaney committed the offenses for which he received the concurrent sentence while on bail for a felony offense. http://www.tba.org/tba_files/TSC/mclaneyj.wpd

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1029.wpd

EDNA COOKSEY, et al. v. HCA HEALTH SERVICES OF TENNESSEE, INC. Court:TCA Attorneys: James M. Balthrop, Springfield, Tennessee, for the appellants Edna Cooksey and Virgil Cooksey. C. J. Gideon, Jr. and Benjamin Papa, Nashville, Tennessee, for the appellee, HCA Health Services of Tennessee, Inc. Judge: CANTRELL First Paragraph: The only question in this appeal is whether the injury a patient suffered during post-operative care resulted from a medical procedure and, therefore, required expert proof to establish the hospital's liability. The Circuit Court of Davidson County held that the complaint sought damages for professional negligence and that since the plaintiff did not rebut the hospital's motion for summary judgment with any expert proof, the complaint must be dismissed. We affirm. http://www.tba.org/tba_files/TCA/cookseye.wpd

CORRECTED OPINION STATE OF TENNESSEE DEPARTMENT OF HUMAN SERVICES v. MICHELLE STEWART, PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLIE MAE CURREN, DECEASED Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, Pamela A. Hayden-Wood, Assistant Attorney General, Nashville, For Appellant, Tennessee Department of Human Services Samuel F. Anderson, Nashville, Attorney Ad Litem, For Appellee, Charlie Mae Curren David A Dearolf, Nashville, Guardian Ad Litem for Appellee, Charlie Mae Curren Judge: CRAWFORD First Paragraph: The Department of Human Services (DHS) instituted an action in chancery court pursuant to the Tennessee Adult Protection Act, T.C.A. S 71-6-101 et seq. (1995) after receiving a report of possible abuse, neglect, or exploitation of the respondent. The court appointed counsel to represent the respondent and also appointed a guardian ad litem to represent respondent. Subsequently, the court also appointed a temporary guardian to represent the interest of the respondent. After an evidentiary hearing, the trial court found that DHS had not carried its burden of proof required by the applicable statute and had failed to properly investigate the case before proceeding with the action. The trial court also ordered that DHS proceed with the filing of a conservatorship proceeding in the probate court which DHS did. Respondent's appointed attorney, guardian ad litem, temporary guardian, and later the conservator filed motions for assessment of fees and discretionary costs against DHS. The trial court granted the motions and assessed the fees and discretionary costs against DHS. DHS has appealed. We reverse. http://www.tba.org/tba_files/TCA/currenchar.wpd

WILLIAM ERNEST HOOD, III v. PATSY SEALS HOOD (BAST) Court:TCA Attorneys: Jennifer Austin Mitchell, Dunlap, Tennessee, for the appellant, Patsy Seals Hood (Bast). Howard L. Upchurch, Pikeville, Tennessee, for the appellee, William Ernest Hood, III. Judge: CANTRELL First Paragraph: The parties executed a marital dissolution agreement pursuant to divorce, which required the wife to transfer her interest in a 36 acre tract of marital property to the husband, and the husband to sell the tract, with the net proceeds to be divided between the parties. The wife subsequently quitclaimed her interest in the property, and the trial court incorporated the marital dissolution agreement into the Final Decree of Divorce by reference. When the wife filed a motion to enforce the agreement, the trial court ruled that any lien on the property the wife had acquired by virtue of the agreement was extinguished when she signed the quitclaim deed. We reverse the trial court. http://www.tba.org/tba_files/TCA/hoodwe.wpd

JOHN HOPKINS d/b/a RICHLAND CREEK SOD FARM v. POLO DEVELOPMENT, L.L.C., et al. Court:TCA Attorneys: Harold E. Bishop, Maryville, Tennessee, for the appellant, John Hopkins d/b/a Richland Creek Sod Farm. Celeste H. Herbert, Knoxville, Tennessee, for the appellee, Gettysvue Partners, L.P. Judge: INMAN First Paragraph: The sub-contractor plaintiff filed a lien against property owned by Gettysvue Partners, L.P., and leased to Polo Development, L.L.C. Kilmers, Inc., had contracted with Polo Development to construct a golf course thereon, and subcontracted with the plaintiff to supply sod for the course. The plaintiff was discharged by Kilmers and claimed a balance owing of $190,278.41. A performance bond had been posted by Kilmers as general contractor, a copy of which was filed by Gettysvue Partners pursuant to Tenn. Code Ann. S 66-11-142(b)(1) for the purpose of discharging the lien. The plaintiff consequently did not sue out the attachment required by Tenn. Code Ann. S 66-11-126. Two years after the complaint was filed the court ruled that the bond was ineffective because the insurance company was not licensed in Tennessee. Gettysvue Partners filed a motion for summary judgment because the plaintiff failed to sue out an attachment. The motion was granted. We affirm. http://www.tba.org/tba_files/TCA/hopkinsjohn.wpd

DAN MCCOY, et al. v. SUZI MIZELL Court:TCA Attorneys: R.D. Hash, Maryville, Tennessee, for the appellant, Suzi Mizell. John L. McCord, Knoxville, Tennessee, for the appellees, Dan and Jan McCoy. Judge: SUSANO First Paragraph: This appeal involves the application of T.C.A. S 47-29-101, a statute dealing with civil liability for dishonored checks and drafts. The lessors of a residence sued their lessee alleging that the latter acted with "fraudulent intent" when she stopped payment on a rent check given to the plaintiffs. Following a bench trial, the court below found that the defendant's action in stopping payment on the $650 rent check triggered the provisions of T.C.A. S 47-29-101. The court awarded the plaintiffs the face amount of the check, as well as interest, treble damages capped at $500, and attorney's fees of $1,500 - a total of $2,720.52. In the same judgment, the court also awarded the plaintiff damages for breach of the lease, finding these damages - before the allowance of a credit to avoid a double recovery - to be $1,483.25. The defendant only appeals the judgment awarded under T.C.A. S 47- 29-101. She argues that the trial court erred in its application of that statute to the facts of this case. The plaintiffs contend that the defendant's appeal is frivolous, thus entitling them to damages pursuant to the provisions of T.C.A. S 27-1-122. We modify the judgment below to delete the award of $2,720.52 to the plaintiffs under T.C.A. S 47-29-101. This modification also requires us to modify the trial court's award for breach of the lease so as to increase that award to $1,493.25. As modified, the trial court's judgment is affirmed. http://www.tba.org/tba_files/TCA/mccoyd.wpd

IN RE: ESTATE OF GUY ALLEN WHITE Court:TCA Attorneys: W. Howell Forrester, Pulaski, Tennessee, for the appellant, Mable White. Robert D. Massey, Pulaski, Tennessee, Pro Se. Bobby Allen White, Terry Lee White, James Edward White, Jeffery Lane White, Mack Dean White, and Jack Eugene White, Pulaski, Tennessee, Pro Se. Judge: KOCH First Paragraph: This appeal involves a dispute between a widow and her six sons regarding a small tract of property her estranged husband conveyed to the sons approximately nine months before he died. The widow filed a petition in the Chancery Court for Giles County seeking appellate review of the Giles County Probate Court's orders. She also sought a declaration that the decedent's conveyance to the sons was a fraudulent conveyance and, in the alternative, requested a partition sale of the property. Following a hearing, the trial court determined that it lacked appellate jurisdiction over the probate court and that the widow lacked standing to seek partition of the property because she owned no interest in it. The widow asserts on this appeal that the trial court erred by dismissing her petition to partition the property. We affirm the dismissal of the widow's fraudulent conveyance and partition claims. However, we vacate the dismissal of her appeal from the probate court and remand this claim for further proceedings in accordance with Tenn. Code Ann. S 16-4-108(a)(2) (1994). http://www.tba.org/tba_files/TCA/whitegaestate.wpd

STATE OF TENNESSEE v. DAVID GLENN AYERS Court:TCCA Attorneys: Ann D. Coria, Clinton, Tennessee, for the appellant, David Glenn Ayers. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, David Glenn Ayers, was convicted of driving under the influence, second offense. The trial court imposed a sentence of 11 months and 29 days with release eligibility after service of 75%. In this appeal of right, the defendant challenges the sufficiency of the evidence, argues that the trial court should have set aside the verdict as thirteenth juror, and contends that the sentence is excessive. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/ayersdavidglenn.wpd

STATE OF TENNESSEE v. STANLEY BOXLEY Court:TCCA Attorneys: Garland Erguden, Memphis, Tennessee (on appeal); William L. Johnson and Dianne Thackery, Memphis, Tennessee (at trial), for the Appellant, Stanley Boxley. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William L. Gibbons, District Attorney General; and Thomas Henderson, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Stanley Boxley, was convicted by a jury of first degree felony murder and attempted aggravated robbery. He was sentenced to life imprisonment for the murder and to a consecutive ten year term for the attempted aggravated robbery. In this appeal as of right the Defendant contends that there is insufficient evidence to sustain his convictions and that the trial court erred by ruling that the State could introduce evidence of threats against the accomplice witnesses if the Defendant inquired into the prosecution's recommendation that they receive probation. Finding the evidence insufficient to corroborate the accomplices' testimony, we reverse the Defendant's convictions and dismiss. http://www.tba.org/tba_files/TCCA/boxleys.wpd

WALTER L. JOHNSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert Little, Memphis, Tennessee, for the Appellant, Walter L. Johnson. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; William L. Gibbons, District Attorney General; and Katrina Earley, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner was convicted of especially aggravated kidnapping and sentenced to twenty-five years incarceration. The conviction and sentence were affirmed on direct appeal. Subsequently, the Petitioner filed a petition for post-conviction relief, alleging that his attorney at trial was ineffective. The post-conviction court denied relief. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/johnsonwl.wpd

STATE OF TENNESSEE v. MARY JANE BURCHFIELD McMAHAN Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee (on appeal); Raymond Mack Garner, District Public Defender; and George H. Waters, Assistant District Public Defender (at hearing), for the appellant, Mary Jane Burchfield McMahan. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Michael L. Flynn, District Attorney General; and William R. Reed, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant appeals the trial court's revocation of her probation. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mcmahanmjb.wpd

STATE OF TENNESSEE v. MELVIN M. MELSON Court:TCCA Attorneys: Richard DeBerry, Assistant Public Defender, Savannah, Tennessee, for the Appellant, Melvin M. Melson. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled guilty to two counts of aggravated sexual battery, and the trial court sentenced the Defendant pursuant to his plea agreement to two concurrent ten-year sentences. In this appeal as of right, the Defendant argues that the trial court erred by denying his request that he serve his sentence on community corrections. Because we conclude that the sentence imposed is adequately supported by the record, and that the trial court did not err by refusing to allow the Defendant to serve his sentence on community corrections, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/melsonmm.wpd

STATE OF TENNESSEE v. PATRICK D. PARIS Court:TCCA Attorneys: Jeffrey S. Schaarschmidt (on appeal) and John Brooks (at trial), Chattanooga, Tennessee, for the appellant, Patrick D. Paris. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William H. Cox, III, District Attorney General; and Barry Allen Steelman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Patrick D. Paris, appeals from his convictions for attempted first degree murder and especially aggravated robbery, contending that the evidence is insufficient to support his convictions and that the trial court erred by allowing hearsay testimony into evidence as an excited utterance. We affirm the judgments of conviction. http://www.tba.org/tba_files/TCCA/parispd.wpd

Admission of service dogs to places of public accommodation Date: October 22, 2001 Opinion Number: 01-156 http://www.tba.org/tba_files/AG/OP156.pdf

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!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free!

For the Plain Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank

For the HTML Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE HTML
3) Leave the body of the message blank

To STOP receiving TBALink Opinion-Flash:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank