Opinion Flash

April 18, 2002
Volume 8 — Number 067

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
03 New Opinion(s) from the Tennessee Court of Criminal Appeals
04 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


PETER GREER v. TENNESSEE DEPARTMENT OF CORRECTION, et al.

Court:TCA

Attorneys:   

Peter Greer, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Dawn Jordan, Assistant Attorney General, for
the appellees, Tennessee Department of Correction and Donal Campbell.                       

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a prisoner and the Tennessee
Department of Correction regarding a change in the way the Department
reports pre-trial sentence credits.  Believing that the change
increased the length of his sentence, the prisoner filed suit in the
Chancery Court for Davidson County to rescind the change.  The trial
court concluded that the change had not altered the prisoner's
sentence expiration date and dismissed the petition.  We affirm.

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


H & M ENTERPRISES, INC. v. KATHY L. MURRAY, et al.

Court:TCA

Attorneys: 

Richard J. Brodhead, Lebanon, Tennessee, for the appellant, Larry D.
Murray.

Brody N. Kane and Frank Lannom, Lebanon, Tennessee, for the appellee,
H & M Enterprises, Inc. through its president, David Marks.                         

Judge: KOCH

First Paragraph:

This appeal involves a spouse's liability for money that the other
spouse embezzled from her employer.  When the employer discovered the
embezzlement, it filed suit in the Circuit Court for Wilson County
against the embezzler and her spouse to recover $196,231.69.  After
hearing the evidence without a jury, the trial court awarded the
employer a judgment against the embezzler and her spouse for
$196,231.69 and also awarded the employer a $78,500 judgment for
punitive damages against the embezzler.  The embezzler's spouse
asserts on this appeal that the evidence preponderates against the
trial court's determination that he should be jointly and severally
liable for the embezzled funds.  We agree and, therefore, reverse the
judgment against the embezzler's spouse.

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


DERRICK D. JACKSON v. TENNESSEE DEPARTMENT OF CORRECTION, et al.

Court:TCA

Attorneys: 

Derrick Jackson, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Dawn Jordan, Assistant Attorney General, for
the appellees, Tennessee Department of Correction, Ricky Bell, Zoyle
A. Jones, Billy Smith, and Richard Merchant.                         

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a prisoner and the Department
of Correction over the prisoner's loss of sentence credits as
punishment for a disciplinary offense.  Failing to obtain redress from
the Department, the prisoner filed a petition in the Chancery Court
for Williamson County alleging that he was being held unlawfully
because his sentence had expired.  The trial court dismissed the
petition, and the prisoner appealed.  We have determined that this
appeal is now moot because the prisoner has been released from
custody.  Therefore, we vacate the trial court's order and remand the
case with directions to dismiss the prisoner's petition.

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


LAURENCE B. KANDEL, M.D. 
v. 
THE CENTER FOR UROLOGICAL TREATMENT AND RESEARCH, P.C., RALPH C.
BENSON, JR., M.D., L. DEAN KNOLL, M.D., and THE INSTITUTE FOR
UROLOGICAL RESEARCH

Court:TCA

Attorneys:

Alfred H. Knight and William R. Willis, Willis & Knight, Nashville,
Tennessee, for the appellant Laurence B. Kandel, M.D.

R. Dale Grimes, Bryan E. Larson, and Andrea Taylor McKellar, Bass,
Berry & Sims, Nashville, Tennessee, for the appellees The Center for
Urological Treatment and Research, P.C., Ralph C. Benson, Jr., M.D.,
L. Dean Knoll, M.D., and The Institute for Urological Research.                          

Judge: LILLARD

First Paragraph:

This is a breach of contract case.  The plaintiff physician entered
into an employment contract with the defendant physician's group.  The
contract provided that the physician would work for the group for one
year, and that the parties would then "negotiate in good faith" to
give the employee physician the opportunity to purchase stock in the
group.  At the end of the physician's first year of employment, the
parties negotiated, but reached an impasse.  Subsequently,
negotiations ceased, and the physician's employment was terminated. 
He filed suit against the group, alleging that the defendants breached
the contract to "negotiate in good faith," and that the defendants
committed promissory fraud in inducing him into signing the employment
agreement.  The trial court granted summary judgment in favor of the
defendants on both counts.  The physician now appeals.  We affirm. 
Even if Tennessee recognizes a cause of action for breach of an
agreement to negotiate in good faith, the evidence does not
demonstrate such a breach, and does not establish promissory fraud.

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


BILLY LATTIMER v. TENNESSEE DEPARTMENT OF CORRECTION, et al.

Court:TCA

Attorneys: 

Billy Lattimer, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General & Reporter; Michael Moore, Solicitor
General; and Kimberly J. Dean, Deputy Attorney General, for the
appellee, Tennessee Department of Correction, et al.                         

Judge: CANTRELL

First Paragraph:

A prisoner filed a lawsuit against the Department of Correction and
some of its employees, claiming that the employees had confiscated and
destroyed his photo albums, and that their actions amounted to an
unconstitutional deprivation of his due process rights.  The trial
court dismissed the suit without prejudice, ruling that the prisoner
had only stated a claim for ordinary negligence against the State, and
thus that the only forum available to him was the Tennessee Claims
Commission.  We reverse in part and affirm in part.

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


STATE OF TENNESSEE v. CHRISTOPHER GLENN BELL

Court:TCCA

Attorneys: 

Billy P. Sams, Oak Ridge, Tennessee, for the Appellant, Christopher
Glenn Bell.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; James N. Ramsey, District Attorney
General; and Janice G. Hicks, Assistant District Attorney General, for
the Appellee, State of Tennessee.                         

Judge: WEDEMEYER

First Paragraph:

In 1992, pursuant to a plea agreement, the Defendant pleaded guilty to
possession with intent to sell a Schedule I controlled substance,
received an eight-year sentence, and was granted full probation.  In
1998, the trial court revoked the Defendant's probation and ordered
the Defendant to serve the eight-year sentence in the Tennessee
Department of Correction.  The Tennessee Department of Correction
subsequently placed the Defendant in the special alternative
incarceration unit program, and upon the Defendant's successful
completion of the boot camp program, released the Defendant on
supervision.  A warrant was issued on September 6, 2000, alleging that
the Defendant had violated the terms of his release.  The trial court
revoked the Defendant's release and ordered the Defendant to serve the
remainder of his sentence in the Tennessee Department of Correction. 
The Defendant now appeals, arguing that because more than eight
calendar years had passed from the date of his original sentence on
July 10, 1992 to the date of the violation of probation warrant that
was filed on September 6, 2000, the original eight-year probated
sentence had expired.  We conclude that because the service of the
Defendant's eight-year sentence began on April 3, 1998, when his
probation was revoked and he was ordered to serve the sentence, the
sentence had not expired, and the September 6 warrant was thus timely.
 Therefore, we affirm the judgment of the trial court.

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


STATE OF TENNESSEE v. BRANDY MCQUEEN

Court:TCCA

Attorneys:

Steve McEwen, Mountain City, Tennessee (on appeal); and David F.
Bautista and Jeffery C. Kelly, Johnson City, Tennessee (at trial), for
the appellant, Brandy McQueen.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Joe Crumley, District Attorney General;
and Victor Vaughn, Assistant District Attorney General, for the
appellee, State of Tennessee.                          

Judge: OGLE

First Paragraph:

The appellant, Brandy McQueen, pled guilty in the Washington County
Criminal Court to one count of facilitation of aggravated robbery, one
count of contributing to the delinquency of a minor, and one count of
driving on a suspended license.  The appellant received a total
effective sentence of four years incarceration in the Tennessee
Department of Correction.  On appeal, the appellant asserts that the
trial court erred by denying her request to be placed in the community
corrections program.  Upon review of the record and the parties'
briefs, we affirm the judgments of the trial court.

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


STATE OF TENNESSEE v. MICHAEL RAINES

Court:TCCA

Attorneys:   

W. Conrad Finnell, Cleveland, Tennessee, for the appellant, Michael
Raines.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Carl F. Petty, Assistant District Attorney General, for the
appellee, State of Tennessee.                       

Judge: WILLIAMS

First Paragraph:

The defendant was indicted for first degree murder.  After a jury
trial, he was convicted of the lesser-included offense of second
degree murder and sentenced to twenty-two (22) years as a Range I
standard offender.  After a thorough review of the record, we conclude
that the evidence was sufficient to support the second degree murder
conviction.  Although the defendant put on proof that he was acting in
self-defense or that any irrational actions were the result of
adequate provocation by the victim, both issues are questions for the
jury and were resolved in favor of the State. The defendant failed to
make an argument or cite to authority in support of his assertion that
the trial court erred in refusing to instruct the jury on the
defendant's right to bear arms.  In addition, there is no record of
the defendant's request for such an instruction or the trial court's
denial of such request.  Therefore, the issue is waived.  After a de
novo review, we conclude that the trial court followed the correct
sentencing procedure and applied the correct statutory enhancing and
mitigating factors in sentencing the defendant to twenty-two (22)
years.  The judgment of the trial court is affirmed.

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


Constitutionality of Amending Tenn. Code Ann. S55-50-321 to Require
the Issuance of Temporary "Driver's Certificates" to Otherwise
Qualified Applicants Who Have Not Been Issued a Social Security Number

Opinion Number: 02-041                          

http://www.tba.org/tba_files/AG/OP41.pdf


Duration of the Revocation of Driving Privileges for DUI conviction by
Formal Action of the Department of Safety

Date: April 9, 2002

Opinion Number: 02-042                         

http://www.tba.org/tba_files/AG/OP42.pdf


Setting Tax Rate for Franklin Special School District

Date: April 9, 2002

Opinion Number: 02-043                        

http://www.tba.org/tba_files/AG/OP43.pdf


In Lieu of Tax Payments in Shelby County

Date: April 9, 2002

Opinion Number: 02-044                         

http://www.tba.org/tba_files/AG/OP44.pdf

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