Opinion Flash

January 31, 2002
Volume 8 — Number 019

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
05 New Opinion(s) from the Tennessee Court of Appeals
07 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


BLOUNT COUNTY EDUCATION ASSOCIATION v. BLOUNT COUNTY BOARD OF
EDUCATION, et al.

Court:TCA

Attorneys: 

Richard L. Colbert, Nashville, Tennessee, for the Appellant Blount
County Education Association.

David R. Duggan, Maryville, Tennessee, and Henry Haile, Nashville,
Tennessee, for the Appellees Blount County Board of Education and
William Gary Pack, Director of Blount County Schools.

Deborah Richardson Noe, Nashville, Tennessee for Amicus Curiae
Tennessee School Boards Association.

Charles W. Cagle, Nashville, Tennessee, for Amicus Curiae Tennessee
Organization of School Superintendents.                         

Judge: SWINEY

First Paragraph:

This lawsuit arises from the unsuccessful attempt of the Blount County
Education Association ("Plaintiff") and the Blount County Board of
Education ("Board") to negotiate a new memorandum of agreement prior
to the expiration of the existing agreement on July 1, 1999. 
Plaintiff claims certain subjects it sought to bargain over were
mandatory subjects of bargaining and that the Board committed an
unfair labor practice when it refused to bargain in good faith and
thereafter unilaterally implemented changes after the agreement
expired.  The Board claims the subjects over which it refused to
bargain were permissive subjects of bargaining, and, therefore, it had
no duty to bargain over these subjects and was free to unilaterally
implement changes once the agreement expired.  The Board also filed a
counter-claim asserting that Plaintiff committed an unfair labor
practice by insisting the parties bargain over permissive subjects and
conditioning an agreement on inclusion of these permissive subjects. 
The Trial Court held that the subjects of involuntary transfers,
voluntary transfers, layoff, recall, non-discrimination, and the
duration of the agreement were all permissive subjects of bargaining,
dismissed the complaint, and granted the Board's counter-claim.  We
affirm in part, reverse in part, and remand.

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

JAN K. BURNS v. JAMES F. BURNS

Court:TCA

Attorneys: 

Richard A. Schulman, Chattanooga, Tennessee, for the appellant, James
F. Burns.

Sandra J. Bott, Chattanooga, Tennessee, for the appellee, Jan K.
Burns.                         

Judge: SUSANO

First Paragraph:

In this divorce case, the husband appeals the trial court's awards of
alimony pendente lite and alimony in futuro to the wife.  The record
before us does not demonstrate that the evidence preponderates against
the trial court's judgment.  Accordingly, we affirm.

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

MONROE E. DAVIS v. STATE OF TENNESSEE, ET AL.

Court:TCA

Attorneys: 

Monroe E. Davis, Petros, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; and Nichon Shannon, for the appellees, State of
Tennessee and Howard Carlton.                         

Judge: SUSANO

First Paragraph:

The plaintiff, Monroe E. Davis is a prisoner in state custody.  He
filed a complaint with the Tennessee Claims Commission ("the Claims
Commission") against the State of Tennessee and the warden of the
facility at which he is incarcerated, seeking damages for the alleged
detention and/or conversion of his personal property by the warden. 
The Claims Commission granted the defendants' motion to dismiss.  We
affirm.

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

THELMA AGNES SMITH v. DAVID PHILLIP RILEY

Court:TCA

Attorneys:

Robert W. White, Maryville, Tennessee, for the appellant, David
Phillip Riley.

J. Reed Dixon, Sweetwater, Tennessee, for the appellee, Thelma Agnes
Smith.

Steve Merritt, Maryville, Tennessee, for the appellees, Jerry
Strickland and Wanda Strickland.                          

Judge: SUSANO

First Paragraph:

The plaintiff, Thelma Agnes Smith, lived with the defendant out of
wedlock for several years.  When the relationship ended, she brought
this action seeking to enforce two written agreements with him
regarding the sale and assignment of property to her.  The trial court
enforced the agreements and divided the parties' property.  The
defendant appeals, arguing that the agreements lack consideration and
are void as against public policy.  We affirm.

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

MICHAEL SUTTON, et al. v. LARRY BARNES, et al.

Court:TCA

Attorneys:

Steven Douglas Drinnon, Dandridge, Tennessee, for the appellants,
Michael Sutton and Sandra Sutton.

Douglas L. Dutton and Lisa J. Hall, Knoxville, Tennessee, for the
appellees, Cocke County and the Cocke County Highway Commission.                          

Judge: SUSANO

First Paragraph:

The plaintiffs, Cocke County homeowners, brought this action seeking
compensation for damage caused to their home by blasting activity on
their neighbors' property.  In response to interrogatories, the
company that did the blasting identified the Cocke County Highway
Commission as the provider of the explosives.  Thereafter, the
plaintiffs filed an amended complaint, naming Cocke County and the
Cocke County Highway Commission (collectively "the County") as
additional party defendants.  Upon the County's motion, the trial
court dismissed the plaintiffs' complaint as to the County, holding
that their action is time-barred.  On appeal, the plaintiffs argue
that the discovery rule applies to their action against the County,
and, therefore, their claim is not time-barred.  The County argues
that even if the plaintiffs' action is not barred by the applicable
statute of limitations, the plaintiffs have failed to state a claim
upon which relief can be granted.  We hold that the discovery rule
applies to actions against governmental entities and that there is a
genuine issue for trial as to when the plaintiffs' cause of action
"ar[ose]."  We further hold that the complaint adequately states a
cause of action, but only as to the plaintiffs' claim of common-law
negligence.  Accordingly, the judgment of the trial court is affirmed
in part and reversed in part.

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

STATE OF TENNESSEE v. CARL DEAN BOLIN

Court:TCCA

Attorneys: 

Carrie W. Kersh, Clarksville, Tennessee (at trial); Michael R. Jones,
District Public Defender, and Charles S. Bloodworth, Assistant
District Public Defender (on appeal), for the appellant, Carl Dean
Bolin.

Paul G. Summers, Attorney General and Reporter; Russell S. Baldwin,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and James B. Crenshaw, Assistant District Attorney General,
for the appellee, State of Tennessee.                         

Judge: SMITH

First Paragraph:

The defendant, Carl Dean Bolin, was convicted by a Montgomery County
Circuit Court jury of reckless homicide, a Class D felony.  The trial
court sentenced the defendant as a Range I, standard offender to four
years in the Department of Correction.  On appeal, the defendant
contends that the trial court erred in sentencing him to the maximum
of four years and by ordering that his sentence be served in the
Department of Correction.  After a careful review of the record, we
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. JERRY BREEDING

Court:TCCA

Attorneys: 

Michael R. Giaimo, Livingston, Tennessee, for the appellant, Jerry
Breeding.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and Owen G. Burnett, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: WILLIAMS

First Paragraph:

The defendant appeals his conviction of aggravated robbery for the
armed robbery of the Union Bank and Trust in Rickman, Tennessee.  We
conclude that the defendant did not prove his claim of ineffective
assistance of counsel and the record supports the trial court's
finding that the defendant personally waived his right to testify.  
Furthermore, the record reveals that the defendant introduced evidence
about an uncharged crime in order to impeach testimony by a witness
for the state and, therefore, cannot challenge the introduction of
such evidence on appeal. The trial court properly fulfilled its duty
to act as a thirteenth juror.  In addition, there is sufficient
evidence to support the defendant's conviction for aggravated robbery.
 The judgment of the trial court is affirmed.

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

HARRY D. CLARDY v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Robert T. Bateman, Clarksville, Tennessee, for the appellant, Harry D.
Clardy.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Arthur F. Bieber, Assistant District Attorney General,
for the appellee, State of Tennessee.                           

Judge: RILEY

First Paragraph:

The petitioner in this post-conviction matter was originally convicted
of theft of property over $10,000 in value, a Class C felony, and
sentenced to 15 years imprisonment as a Range III persistent offender.
 After his conviction was affirmed on direct appeal, he sought
post-conviction relief which was denied by the post-conviction court. 
In this appeal, the petitioner alleges trial counsel was ineffective
for failing to (1) recommend he accept the state's plea offer, and (2)
challenge an erroneous jury instruction on the range of punishment. 
After a thorough review of the record, we conclude the petitioner
received ineffective assistance of counsel based upon counsel's
failure to object to the erroneous range of punishment jury charge at
trial and failure to argue the error on direct appeal.  Accordingly,
we reverse and remand for a new trial.

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

STATE OF TENNESSEE v. DERRANN WILLIAM ESTILL

Court:TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal); Andrew J.
Dearing, III, Fayetteville, Tennessee (at trial and on appeal); Curtis
H. Gann,  and Larry F. Wallace, Jr., Shelbyville, Tennessee (at
trial), for the Appellant, Derrann William Estill.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William Michael McCown, District Attorney
General; Michael D. Randles, Assistant District Attorney General; and
Hollynn L. Hewgley, Assistant District Attorney General, for the
Appellee, State of Tennessee.                          

Judge: WEDEMEYER

First Paragraph:

The Defendant was convicted of theft of property valued between $1,000
and $10,000, a Class D felony, and criminal trespass.  The trial court
sentenced him as a Range II, multiple offender to six years
incarceration for the theft conviction and to thirty days
incarceration for the criminal trespass conviction, with the sentences
to be served concurrently.  The Defendant argues that insufficient
evidence was presented at trial to convict him of theft or criminal
trespass.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. REGINALD MERRIWEATHER

Court:TCCA

Attorneys: 

J. Colin Morris, for the appellant, Reginald Merriweather.

Paul G. Summers, Attorney General, Mark E. Davidson, Assistant
Attorney General, Jerry G. Woodall, District Attorney General, and
Donald H. Allen, Assistant District Attorney General, for the
appellee, State of Tennessee.                         

Judge: CLARK

First Paragraph:

This case returns to this court after remand by order of the Tennessee
Supreme Court.  The defendant appeals his jury convictions of
attempted second degree murder, aggravated assault, and especially
aggravated robbery.  He raises the following issues: (1) whether the
trial judge erred in denying defendant's request for a mistrial based
on a juror's response during voir dire; (2) whether the trial court
erred in directing a witness to answer questions on cross-examination;
(3) whether the evidence was sufficient to support his convictions;
and (4) whether the trial court erred in failing to instruct the jury
as to certain lesser-included offenses.  This court initially 
reversed the appellant's conviction for aggravated assault, based on
double jeopardy considerations, and affirmed the judgment of the trial
court on all other issues.  See State v. Reginald Merriweather, No.
W1999- 2050-CCA-R3-CD, 2001 WL 242570 (Tenn. Crim. App., Jackson,
March 6, 2001) (perm. to appeal granted).  On June 5, 2001, the
Supreme Court released its decision in the case of State v. Curtis
Jason Ely and State v. Laconia Lamar Bowers, 48 S.W.3d 710 (Tenn.
2001).   In Ely and Bowers, the Court announced new standards
regarding the duty to instruct on lesser-included offenses. In light
of the decision in Ely and Bowers, the Supreme Court remanded the case
to this court to determine whether error in not instructing
facilitation was harmless.  See State v. Reginald Merriweather, No.
W2001-02206-CCA-RM-CD, Madison County (Tenn., September 10, 2001). 
After revisiting this issue under the standards announced in Ely and
Bowers, we reverse the defendant's convictions and remand this matter
for a new trial.

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

STATE OF TENNESSEE v. HORACE DEMON PULLIAM

Court:TCCA

Attorneys:

David A. Collins, Nashville, Tennessee, for the appellant, Horace
Demon Pulliam.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Bret T. Gunn and Kimberly F. Cooper, Assistant District
Attorneys General, for the appellee, State of Tennessee.                          

Judge: RILEY

First Paragraph:

The defendant was indicted by a Davidson County Grand Jury on one
count of premeditated first degree murder and two counts of attempted
first degree murder.  Following a jury trial, the defendant was
convicted of the indicted premeditated first degree murder count and
two counts of the lesser- included offense of attempted second degree
murder.  The defendant was sentenced to life imprisonment for
premeditated first degree murder and two 11-year terms for the two
counts of attempted second degree murder, with all sentences to run
consecutively, for a total effective sentence of life plus 22 years. 
In this appeal, the defendant contends (1) the evidence was
insufficient to sustain the convictions; (2) the trial court
erroneously refused to charge reckless endangerment as a
lesser-included offense of attempted first degree murder; and (3) the
trial court erroneously sentenced the defendant to consecutive
sentences.  After a thorough review of the record, we conclude the
trial court erroneously failed to charge reckless endangerment as a
lesser-included offense of attempted first degree murder and remand
for a new trial on these two counts.  We affirm the conviction and
life sentence for premeditated first degree murder.

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

STATE OF TENNESSEE v. CHARLES M. THOMAS

Court:TCCA

Attorneys:

V. Michael Fox, Nashville, Tennessee, for the appellant, Charles M.
Thomas.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Derrick L. Scretchen, Assistant District Attorney
General, for the appellee, State of Tennessee.                            
 
Judge: RILEY

First Paragraph:

The defendant, Charles M. Thomas, appeals his conviction for
possession of greater than .5 grams of cocaine with the intent to sell
and the trial court's order requiring his resulting ten-year sentence
to be served consecutively to prior sentences.  This case presents
three issues for our determination: (1) whether evidence against the
defendant was the fruit of an illegal detention and search; (2)
whether the evidence was sufficient to support the defendant's
conviction; and (3) whether the trial court erred by ordering the
defendant's sentence to be served consecutively to his prior
sentences.  For the reasons set forth below, we conclude there is no
reversible error; therefore, we affirm the judgment of the trial
court.

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

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