Opinion Flash

January 14, 2002
Volume 8 — Number 009

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
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
02 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
05 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


BEATRICE SCOTT NALL v. E.I. DUPONT DE NEMOURS AND COMPANY, et al.

Court:TSC - Workers Comp Panel

Attorneys:

John R. Lewis, Nashville, Tennessee, and Wm. J. Peeler, Waverly,
Tennessee, for the appellants, E.I. Dupont De Nemours and Company and
Kemper Insurance Companies.

Charles L. Hicks, Camden, Tennessee, for the appellee, Beatrice Scott
Nall.                    

Judge: INMAN

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 issue
in this case is whether the plaintiff is entitled to interest on an
award of benefits.  The judgment did not comply with Rule 58 of the
Tenn. R. Civ. P., and never became final, but the judgment was
nevertheless satisfied.  The defendant declined to pay interest on the
judgment because it was not final.  The trial court awarded a recovery
of interest.  We affirm.

http://www.tba.org/tba_files/nallbeatricev.wpd

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

December 10, 2001                           
Amended January 14, 2002

http://www.tba.org/tba_files/TSC_Rules/certlist_1210.amended.wpd

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

January 14, 2002                            

http://www.tba.org/tba_files/TSC_Rules/certlist_0114.wpd

BEAL BANK, S.S.B., v. RBM COMPANY, d/b/a WEBSTER ENTERPRISES, ESTATE
OF H.A. ("BAM") WEBSTER, W. MICHAEL WEBSTER, AND RICHARD J. WEBSTER

Court:TCA

Attorneys:

Richard T. Klingler and Richard C. Kennedy, Chattanooga, Tennessee,
for Defendant/Appellant.

James R. Kelley, Marc T. McNamee and Philip D. Irwin, Nashville,
Tennessee, for Plaintiff/Appellee.

Judge: FRANKS

First Paragraph:

The Trial Court admitted into evidence the loan records from
NationsBank through a witness who was thoroughly familiar with the
record-keeping process.  On appeal, we affirm.

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

RICKY W. McELHANEY v. HOWARD B. BARNWELL

Court:TCA

Attorneys:

Ricky W. McElhaney, pro se, Wartburg, Tennessee. 

Howard B. Barnwell, pro se, Chattanooga, Tennessee.                          

Judge: SWINEY

First Paragraph:

In 1998, Ricky W. McElhaney ("Plaintiff"), filed a petition seeking 
disbarment of his former criminal defense attorney, Howard B. Barnwell
("Defendant").  Plaintiff relied upon the statutory scheme provided by
Tenn. Code Ann. S 23-3-201, et seq., which allows an individual
aggrieved by the act or conduct of a Tennessee attorney to file a
complaint in state court seeking disbarment or suspension against that
attorney.  Effective March 30, 2000, this statutory scheme was
repealed by 2000 Tenn. Pub. Acts 611 S 1.  Thereafter, the Trial Court
dismissed Plaintiff's petition, holding that since Tenn. Code Ann. S
23-3-201, et seq., was procedural and jurisdictional in nature and
since the statutory scheme was repealed, the Trial Court no longer had
jurisdiction to hear the petition.  Plaintiff appeals.  We vacate and
remand.

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

RICKY W. McELHANEY v. HOWARD B. BARNWELL

FRANKS DISSENTING

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

WILLIAM R. VARNER v. CITY OF KNOXVILLE, TENNESSEE, et al.

Court:TCA

Attorneys:

David L. Bacon, Knoxville, Tennessee, for the appellant, William R.
Varner.

Charles W. Swanson and Jason H. Long, Knoxville, Tennessee, for the
appellee, Knoxville City Council.

Sharon E. Boyce, Knoxville, Tennessee, for the appellee, City of
Knoxville.                        

Judge: SUSANO

First Paragraph:

By way of a complaint for writ of certiorari, the plaintiff challenges
the decision of the Knoxville City Council ("the City Council") to
deny his application to rezone his .5 acre lot from low density
residential to commercial for the expansion of a used car lot located
on adjacent property.  Following a bench trial, the court below
dismissed the complaint.  We affirm.

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

STATE OF TENNESSEE v. MARK CHRISTOPHER DAVIS

Court:TCCA

Attorneys:

Ardena J. Garth, District Public Defender; and Donna Robinson Miller,
Assistant District Public Defender, Chattanooga, Tennessee, for the
Appellant, Mark Christopher Davis.

Paul G. Summers, Attorney General & Reporter; Gill R. Geldrich,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Barry A. Steelman, Assistant District Attorney General,
for the Appellee, State of Tennessee.                         

Judge: WITT

First Paragraph:

Mark Christopher Davis appeals the Hamilton County Criminal Court's
denial of his petition for post-conviction relief.  Because Davis has
not demonstrated error in the lower court's determination that he was
provided the effective assistance of trial counsel in the conviction
proceedings, we affirm.

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

STATE OF TENNESSEE v. STEVE GASS

Court:TCCA

Attorneys:  Gerald L. Melton, District Public Defender, and Jeffrey S.
Henry, Assistant District Public Defender, for the appellant, Steve
Gass.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; and Paul A. Holcombe, III, and William S.
Osborne, Assistant District Attorneys General, for the appellee, State
of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Steve Gass, was indicted on two counts of rape of a
child and two counts of aggravated sexual battery.  See Tenn. Code
Ann. SS 39-13-522, 39-13-504.  He was convicted of one count of rape
of a child, one count of aggravated sexual battery, and one count of
attempted rape of a child.  The trial court ordered sentences of 21
years, nine years, and 11 years, respectively.  In this appeal of
right, the defendant presents several evidentiary issues; asserts that
the evidence was insufficient; argues that the trial court should have
granted a new trial based on newly discovered evidence and
prosecutorial misconduct grounds; contends that the trial court erred
by not granting a mistrial based on a prejudicial comment made by a
potential juror during voir dire; and submits that the cumulative
effect of the alleged errors impugns the reliability of the verdicts. 
The judgments of the trial court are affirmed.

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

STATE OF TENNESSEE v. TIMOTHY ALLEN MOORE

Court:TCCA

Attorneys:

Daniel J. Taylor, Jackson, Tennessee, for the appellant, Timothy Allen
Moore.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Dan Alsobrooks, District Attorney
General; and Lisa D. Donegan, Assistant District Attorney, for the
appellee, State of Tennessee.                      

Judge: WELLES

First Paragraph:

The Defendant, Timothy Allen Moore, pled guilty to two counts of
aggravated robbery, a Class B felony.  The trial court subsequently
sentenced the Defendant as a Range I standard offender to the minimum
sentence of eight years on each count.  The trial court ran the
sentences concurrently to each other, but consecutively to a sentence
the Defendant had received in another county.  In this appeal as of
right, the Defendant challenges the trial court's imposition of
consecutive sentences.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. DARRELL M. SCALES

Court:TCCA

Attorneys:

Jeffrey A. DeVasher, Nashville, Tennessee, for the appellant.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Pamela Anderson, Assistant District Attorney General, for
the appellee, State of Tennessee.                      

Judge: WELLES

First Paragraph:

The Defendant, Darrell M. Scales, was convicted by a jury of three
counts of aggravated robbery and three counts of aggravated sexual
battery.  The trial court subsequently sentenced the Defendant to nine
years on each of the robberies and to nine years on each of the sexual
batteries.  The court ordered the sentences to be run partially
consecutive, for an effective sentence of twenty-seven years.  In this
appeal as of right, the Defendant raises the following five issues: 
(1) whether the trial court erred by refusing to suppress
identification testimony; (2) whether the evidence is sufficient to
support his convictions; (3) whether the trial court erred in failing
to require the State to elect from two separate incidents of
aggravated sexual battery against one of the victims; (4) whether the
trial court erred in failing to charge the jury on lesser-included
offenses of aggravated sexual battery; and (5) whether the trial court
erred in ordering partially consecutive sentences.  We hold that the
trial court committed reversible error when it failed to require the
State to elect offenses, and that it committed reversible error when
it failed to instruct the jury on all lesser-included offenses of
aggravated sexual battery.  Accordingly, we reverse and remand for
retrial the Defendant's convictions for aggravated sexual battery.  In
all other respects the judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. JEFFREY K. SHAW

Court:TCCA

Attorneys:

Jeffrey A. DeVasher, Nashville, Tennessee, for the appellant, Jeffrey
K. Shaw.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Derrick Scretchen, Assistant District Attorney General.  
                     
Judge: WELLES

First Paragraph:

On February 5, 2001, the Defendant, Jeffery K. Shaw, entered a plea of
guilty to felony weapon possession.  Pursuant to Rule 37 (b)(1)(i) of
the Tennessee Rules of Criminal Procedure, the Defendant sought to
reserve a certified question of law to be reviewed by this Court.  In
this appeal, the Defendant contends that the trial court erred in
denying his motion to suppress evidence and statements obtained as a
result of the Defendant's arrest in the home of a third party.  We
affirm the judgment of the trial court.

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

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