Opinion Flash

January 9, 2002
Volume 8 — Number 006

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
03 New Opinion(s) from the Tennessee Court of Criminal Appeals
08 New Opinion(s) from the Tennessee Attorney General (PDF format)
03 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


LANE-DETMAN, L.L.C., et al. v. MILLER & MARTIN, et al.

Court:TCA

Attorneys:

J. Harvey Cameron, Jasper, Tennessee, for the Appellants, Lane-Detman,
LLC, Clara Lane and Darlene Lane-Detman.

Gary S. Napolitan and D. Scott Bennett, Chattanooga, Tennessee, for
the Appellees, Miller & Martin, Miller & Martin, LLP, and W. Scott
McGinness, Jr.

Samuel L. Felker and Anna M. Grizzle, Nashville, Tennessee, for the
Appellee, Choicepoint Services, Inc., f/k/a Equifax Services, Inc.                        

Judge: SWINEY

First Paragraph:

In 1995, Lane-Detman, LLC, Clara Lane, and Darlene Lane-Detman
("Plaintiffs"), invested $600,000 in two businesses in which Samuel
Cooper ("Cooper") had an ownership interest.  This investment soured,
and in December 1997, Plaintiffs obtained a default judgment against
Cooper.  Before Plaintiffs invested with Cooper, Plaintiffs' attorney,
defendant W. Scott McGinness, Jr. ("Defendant McGinness"), performed a
background search on Cooper at the request of Plaintiff Darlene
Lane-Detman ("Plaintiff Lane-Detman").  In addition to other
investigative efforts, Defendant McGinness had the co-defendant,
Equifax Services, Inc. ("Defendant Equifax"), perform a background
search on Cooper.   Defendant Equifax's report revealed no
questionable or negative history on Cooper.  After Plaintiffs obtained
their default judgment against Cooper, Plaintiffs hired other counsel
to assist with collection of the judgment.  In 1998, Plaintiffs' new
counsel uncovered an abundance of questionable and negative history on
Cooper.  Thereafter, in 1999, Plaintiffs sued Defendant McGinness and
his law firm, Miller & Martin ("Defendant Miller & Martin"), and
Defendant Equifax.  The Trial Court granted summary judgment to the
defendants, finding that Plaintiffs' claim against Defendant Equifax
was barred by an exculpatory clause in the contract between Defendant
Equifax and Defendant Miller & Martin and that Plaintiffs' claim
against Defendants Miller & Martin and McGinness was barred by the
statute of limitations.  Plaintiffs appeal.  We affirm.

http://www.tba.org/tba_files/TCA/lanedetman.wpd

IN RE:  ESTATE OF J. CRAWFORD MURPHY v. ROBERT A. MURPHY, et al.

Court:TCA

Attorneys:

John T. McArthur, and Martha S. L. Black, Maryville, Tennessee, for
the Appellant, Matthew Thompson

Edward H. Hamilton, Sevierville, Tennessee, for the Appellee, Robert
A. Murphy, Executor of the Estate of J. Crawford Murphy                        

Judge: GODDARD

First Paragraph:

In this case the Probate Court held that the personal representative
of the Estate of Mae Thompson Murphy did not have authority to dissent
from the will of her husband, J. Crawford Murphy, and thereby take an
elective share of his Estate.  We find that T.C.A. 31-4-105 gives the
personal representative this right and reverse the judgment of the
Trial Court.

http://www.tba.org/tba_files/TCA/murphyjcra.wpd

RICHARD LYNN NORTON v. RANDY ECKMAN 

Court:TCA

Attorneys:   

Richard Lynn Norton, Pro Se.

Tom Anderson, Jackson, Tennessee, for the appellee, Randy Eckman.                        

Judge: FARMER

First Paragraph:

The Plaintiff, an inmate in a correctional facility, has appealed the
trial court's grant of Defendant's motion to dismiss for failure to
state a claim upon which relief can be granted.  We reverse the order
of dismissal and remand to the trial court to dispose of the
Plaintiff's summary judgment motion.

http://www.tba.org/tba_files/TCA/nortonr.wpd

ROBERT A. ATKINS v. JAMES M. DUKES, WARDEN

Court:TCCA

Attorneys:

Robert A. Atkins, Henning, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; and Peter M. Coughlan,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

The petitioner, Robert A. Atkins, appeals the summary dismissal of his
petition for writ of habeas corpus by the Lauderdale County Circuit
Court.  Following a thorough review of the record and applicable law,
we reverse the judgment of the circuit court.

http://www.tba.org/tba_files/TCCA/atkinsr.wpd

STATE OF TENNESSEE  v. JEFFERY BOWERS

Court:TCCA

Attorneys:

Jeffery Bowers, Somerville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Elizabeth Rice, District Attorney General;
and Thomas M. Minor, Assistant District Attorney General, for the
appellee, State of Tennessee.                     

Judge: WELLES

First Paragraph:

The Defendant, Jeffery Bowers, was convicted of speeding in the
Circuit Court of Fayette County. He now appeals to this Court alleging
that his conviction should be reversed due to a conflict of interest
in the Somerville City Court.  We affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/bowersj.wpd

KERRY JOE BRADLEY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

H. Randolph Fallin and Steve McEwen, Mountain City, Tennessee, for the
appellant, Kerry Joe Bradley.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; T. Michel Bottoms, District Attorney
General; and Robert C. Sanders, Assistant District Attorney General,
for the appellee, State of Tennessee.                     

Judge: WILLIAMS

First Paragraph:

The petitioner appeals from the denial of his post-conviction relief
petition.  The trial court found that the petitioner failed to prove
by clear and convincing evidence that his guilty plea was not
voluntary or that he received ineffective assistance of counsel.  The
judgment from the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/bradleykj.wpd

STATE OF TENNESSEE v. PAUL C. MICHAEL

Court:TCCA

Attorneys:

Angela R. Scott, Henderson, Tennessee, for appellant, Paul C. Michael.

Paul G. Summers, Attorney General & Reporter; Laura McMullen Ford,
Assistant Attorney General; Elizabeth Rice, District Attorney General;
and Jerry Norwood, Assistant District Attorney, for appellee, State of
Tennessee.

Judge: SMITH

First Paragraph:

On October 19, 2000, the appellant, Paul C. Michael, was convicted by
a McNairy County jury of violating the provisions of Tennessee Code
Annotated Section 55-10-616, a section of the Motor Vehicle Habitual
Offender Act.  On November 22, 2000, he was sentenced to two years
incarceration suspended after service of ninety days.  He brings this
appeal claiming his conviction is invalid because the order declaring
him an habitual motor vehicle offender was not properly entered
pursuant to Tennessee Rule Civil Procedure 58.  We hold that an
individual must utilize the provisions of Tennessee Rule of Civil
Procedure 60.02 to challenge an order declaring the individual an
habitual motor vehicle offender.  Because the appellant herein did not
mount his attack on such an order pursuant to Rule 60.02 the appellant
cannot obtain relief.  Moreover, the unreasonable amount of time the
appellant waited to mount his challenge after having actual notice of
the order declaring him an habitual motor vehicle offender precludes
relief pursuant to Rule 60.02.  The judgment of the trial court is
affirmed.

http://www.tba.org/tba_files/TCCA/michaelpaul.wpd

STATE OF TENNESSEE v. LIVERGEST MICKENS

Court:TCCA

Attorneys:

A.C. Wharton, Jr., District Public Defender; Michael Johnson,
Assistant Public Defender; and Garland Erguden, Assistant Public
Defender, Memphis, Tennessee, for the appellant, Livergest Mickens.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Dan Byer, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: WOODALL

First Paragraph:

Defendant, Livergest Mickens, was convicted by a Shelby County jury of
aggravated burglary, and theft of property under five hundred dollars
in value.  On appeal, Defendant challenges the sufficiency of the
evidence to sustain the convictions.  After a review of the record and
applicable law, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/mickenslopn.wpd

KENNETH W. NESBITT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Steven L. West and Dwayne D. Maddox III, Huntingdon, Tennessee, for
the appellant, Kenneth W. Nesbitt.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; and Robert Radford, District Attorney
General, for the appellee, State of Tennessee.                    

Judge: WELLES

First Paragraph:

The Defendant, Kenneth W. Nesbitt, was convicted of two counts of
selling cocaine by a Carroll County jury and sentenced to eight years
on each count to be served concurrently.  He appealed his convictions
and this Court affirmed the convictions and the sentences, and our
supreme court denied the Defendant's application for permission to
appeal.  The Defendant then filed a petition for post- conviction
relief alleging ineffective assistance of counsel.  The trial court
dismissed the petition.  The Defendant now appeals to this Court
alleging that the trial court erred in denying him relief.  We affirm
the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/nesbittkw.wpd

STATE OF TENNESSEE v. JARRETT SHERRARD SIBERT 

Court:TCCA

Attorneys:

Dan Bryant, Public Defender, for the appellant, Jarrett Sherrard
Sibert.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; and Dale Potter, District Attorney
General, for the appellee, State of Tennessee.                        

Judge: WELLES

First Paragraph:

The Defendant, Jarrett Sherrard Sibert, was convicted of attempted
first degree murder by a Warren County jury.  After a sentencing
hearing on January 14, 2000, the trial court sentenced the Defendant
as a Range I standard offender to 24 years in the Department of
Correction.  On appeal, the Defendant argues that (1) the evidence was
insufficient to support the jury's verdict of guilty beyond a
reasonable doubt and (2) the trial court improperly sentenced the
Defendant.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/sibertjs.wpd

STATE OF TENNESSEE v. JOHN D. SNEED

Court:TCCA

Attorneys:

Ross E. Alderman, District Public Defender; and Jonathan F. Wing (at
hearing), Joseph E. Clifton (at hearing), and C. Dawn Deaner (on
appeal), Assistant District Public Defenders, for the appellant, John
D. Sneed.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Sharon L. Brox and Roger D. Moore, Assistant District
Attorneys General, for the appellee, State of Tennessee.                          

Judge: RILEY

First Paragraph:

The defendant pled guilty in 1998 to delivery of over 0.5 grams of
cocaine for an agreed fine of $2,000 and an eight-year sentence, as a
Range I standard offender, with the manner of service of the sentence
to be determined by the trial court. Following a sentencing hearing,
the trial court denied alternative sentencing.  In this appeal, the
defendant contests this denial.  After review, we affirm.

http://www.tba.org/tba_files/TCCA/sneedjd.wpd

Drug-Free Workplace Program Required by TENN. CODE ANN. S 50-9-113 and Its Effect on Competitively Bid Construction Services for a Local Board of Education

Date: January 2, 2002

Opinion Number: 02-001     

http://www.tba.org/tba_files/AG/OP1.pdf

Governmental Liability for Off-Duty Police Officers Working for Private Security Firms

Date: January 2, 2002

Opinion Number: No. 02-002               
                      
http://www.tba.org/tba_files/AG/OP2.pdf

Disclosure of Social Security Numbers as a Condition for the Issuance of Handgun Carry Permits

Date: January 2, 2002

Opinion Number: 02-003                         

http://www.tba.org/tba_files/AG/OP3.pdf

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