Opinion Flash

January 11, 2002
Volume 8 — Number 008

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):
 
02 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
02 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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


STATE OF TENNESSEE  v.  MICHAEL JACKSON 

Court:TSC

Attorneys: 

Tony N. Brayton, Memphis, Tennessee, for the appellant, Michael
Jackson.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; and J. Ross Dyer, Assistant Attorney General,
Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: BARKER

First Paragraph:

The defendant in this case was convicted of aggravated robbery and was
sentenced to twelve years imprisonment, the maximum sentence allowed
for a Range I standard offender convicted of a Class B felony.  The
trial court applied three enhancement factors, and the Court of
Criminal Appeals affirmed two of them: (1) the defendant was a leader
in the commission of an offense involving two or more criminal actors,
Tenn. Code Ann. S 40-35-114(2); and (2) the defendant has a previous
history of unwillingness to comply with the conditions of a sentence
involving release in the community, Tenn. Code Ann. S 40-35-114(8). 
In addition, the intermediate court determined that the defendant was
adjudicated to have committed a delinquent act or acts as a juvenile
that would constitute a felony if committed by an adult, Tenn. Code
Ann. S 40-35-114(20).  The defendant now argues that a court may only
consider a juvenile record under factor (20), and consequently, the
trial court improperly applied factor (8) to his juvenile probation
violations.  The sole issue in this case, then, is whether factor (20)
is the exclusive means for using a juvenile court record to enhance
sentences in subsequent adult criminal proceedings.  We hold that
factor (20) applies only to adjudicated delinquent acts; because
juvenile probation violations do not fall within the purview of factor
(20), factor (8) was therefore properly applied to enhance the
defendant's sentence.  Consequently, we find that a sentence of twelve
years imprisonment is appropriate and supported by the preponderance
of the evidence, and we affirm the judgment of the Court of Criminal
Appeals.

http://www.tba.org/tba_files/TSC/jacksonmrev.wpd

STATE OF TENNESSEE v. MARCUS MORROW

Court:TSC

Attorneys:

Christopher L. Dunn, Columbia, Tennessee, for the Appellant, Marcus L.
Morrow.

Paul G. Summers, Attorney General and Reporter; Michael M. Moore,
Solicitor General; and David H. Findley, Assistant Attorney General,
for the Appellee, State of Tennessee.

Judge: HOLDER

First Paragraph:

We granted this appeal to determine whether Tenn. Code Ann. S 41-2-128
authorizes a court other than a general sessions court to grant work
release to a defendant convicted of driving under the influence of an
intoxicant (DUI), second offense.  We hold that Tenn. Code Ann. S
41-2-128 does not permit a circuit court to grant work release to DUI
second offenders during the forty-five-day minimum mandatory sentence.
 The holding of the Court of Criminal Appeals is affirmed.  The case
is remanded to the trial court for proceedings consistent with this
opinion.

http://www.tba.org/tba_files/TSC/morrowma.wpd

CORRECTED OPINION
DONALD PICKLESIMER v. MCKEE FOODS CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:

Robert D. Bradshaw, of Chattanooga, Tennessee, for appellant, Donald
Picklesimer.

J. Bartlett Quinn and Charles D. Lawson, of Chattanooga, Tennessee,
for appellee, McKee Foods Corporation.                     

Judge: THAYER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann.S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  The trial
court awarded the employee 72 percent permanent partial disability to
the body as a whole.  The employee appealed insisting his disability
was 100 percent.  Judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TSC_WCP/picklesimer.wpd

JON D. HALL v. BILL MCLESKY, et al.

Court:TCA

Jon Hall has filed a respectful and well-written Petition to Rehear. 
After examining his Petition and the arguments contained therein, we
conclude that Mr. Hall is not entitled to the relief he seeks, and we
accordingly decline to grant him another hearing.

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

JANET FAYE JACOBS, et al. v. ALVIN R. SINGH, M.D.

Court:TCA

Attorneys:     

C. Hayes Cooney, Nashville, Tennessee, for the appellant, Alvin R.
Singh, M.D.

Jerry Scott and John L. Kea, II, Murfreesboro, Tennessee, for the
appellees, Janet Faye Jacobs and Jimmy E. Jacobs.

Judge: FARMER

First Paragraph:

Defendant physician appeals judgment for Plaintiffs in a jury trial of
a medical malpractice action.  Upon review of the record, we do not
find that Plaintiffs' case was time barred pursuant to the statute of
limitations.  We find material evidence in the record to support the
verdict and a jury finding that medical expenses incurred by the
Plaintiff were necessary and reasonable.  We therefore affirm.

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

THOMAS CLINTON WYNNS, III. v. RAE ANN CUMMINGS

Court:TCA

Attorneys:   

Harvey Gipson, Memphis, For Appellant, Thomas Clinton Wynns, III

Bruce A. Ralston, Memphis, For Appellee, Rae Ann Cummings                       

Judge: CRAWFORD

First Paragraph:

This case involves a dispute between Thomas Clinton Wynns, III
("Thomas") and Rae Ann Cummings ("Rae Ann"), the son and granddaughter
of Mrs. Leola Wynns ("Leola"), concerning Leola's mental capacity and
ability to manage her own affairs.  Plaintiff, Thomas, holder of a
power of attorney from his mother, filed a complaint against the
defendant, Rae Ann, seeking to have Rae Ann turn over to him all of
Leola's assets in possession of Rae Ann.  Rae Ann filed an answer to
the complaint and a petition for appointment of a conservator for
Leola and for an injunction against Thomas from removing any more of
her assets.  After a nonjury trial, the trial court found that the
court had jurisdiction to appoint a conservator for Leola; that the
facts warranted the appointment of a conservator; that the power of
attorney held by Thomas and a will executed by Leola in 1998 were
void, and that the quit claim deed executed on April 22, 1999, in
favor of Thomas, was also void. Thomas appeals.  We affirm in part,
vacate in part, and remand.

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

STATE OF TENNESSEE v. CHAD DAVIS

Court:TCCA

Attorneys:

Leslie I. Ballin, Memphis, Tennessee, for the Appellant, Chad Davis.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and William Bond,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Chad Davis, pled guilty in the Shelby County Criminal
Court to DUI, second offense, and driving on a revoked license.  At
the sentencing hearing, Davis requested that he be permitted to serve
on work release the imposed forty-five day mandatory jail sentence for
DUI, second offense, and the consecutive two-day jail sentence for
driving on a revoked license.  The trial court found Davis was
ineligible for work release because he was self-employed.  Davis now
appeals this ruling.  In response, the State asserts that the trial
court was without authority under the provisions of the work release
statute, Tennessee Code Annotated S 41-2-128, to grant work release to
Davis or any other person convicted of  DUI, second offense, prior to
expiration of the minimum period of confinement.  After review, we
find both the trial court's ruling and the State's argument on appeal
misplaced.  Accordingly, the trial court's ruling that Davis was
ineligible for work release is reversed and this case is remanded to
the trial court for determination of Davis' eligibility for work
release pursuant to Tennessee Code Annotated S 41-2-128(c)(1).

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

STATE OF TENNESSEE v. BRIAN MATHIS

Court:TCCA

Attorneys:

Gary F. Antrican, District Public Defender; and David S. Stockton,
Assistant Public Defender, Covington, Tennessee, for the appellant,
Brian Mathis.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey Brewer, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a bench trial in the General Sessions Court of Lauderdale
County, the defendant, Brian Mathis, was found guilty of Class A
misdemeanor assault, Tenn. Code Ann. S 39-13-101.  He appealed to the
Lauderdale County Circuit Court.  Defendant was again convicted of
misdemeanor assault after a bench trial.  The Circuit Court then
ordered Defendant to serve eleven months, twenty- nine days, with the
sentence suspended upon service of ten days and the remaining time to
be served on supervised probation.  On appeal to this Court, Defendant
challenges his conviction and raises the following issues: (1) whether
his use of force against the victim was justified on the ground of
self- defense, and (2) whether the State presented sufficient proof to
negate his claim of self-defense beyond a reasonable doubt.  We affirm
the judgment of the trial court.

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

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