Opinion Flash

April 30, 2002
Volume 8 — Number 074

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
11 New Opinion(s) from the Tennessee Court of Appeals
09 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


JANET CRAME v. GRINNELL CORPORATION

Court:TSC - Workers Comp Panel

Attorneys: 

Jeffrey P. Boyd, Jackson, Tennessee, for the appellant, Grinnell
Corporation

George L. Morrison, III, Jackson, Tennessee, for the appellee, Janet
Crame

Judge: MALOAN

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.  In this
appeal, the employer, Grinnell Corporation, contends the evidence
preponderates against the trial court's award to the employee, Janet
Crame, of twenty-two percent (22%) permanent partial disability to
both arms.  For the reasons stated in this opinion, we affirm the
judgment of the trial court.

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

TIMOTHY V. BOWLING v. TENNESSEE BOARD OF PAROLES, et al.

Court:TCA

Attorneys:

Timothy V. Bowling, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Kimberly J. Dean, Deputy Attorney General, for
the appellee, Tennessee Board of Probation and Parole.

Judge: KOCH

First Paragraph:

This appeal involves a prisoner's efforts to be paroled.  After a
hearing officer employed by the Tennessee Board of Paroles declined to
recommend him for parole, the prisoner filed a pro se petition for a
common-law writ of certiorari in the Chancery Court for Davidson
County asserting that the procedures used to consider him for parole
violated his due process and equal protection rights and were tainted
by delay and bias.  Instead of filing the record of the challenged
proceedings, the Board filed a Tenn. R. Civ. P. 12.02(6) motion to
dismiss.  The trial court granted the Board's motion, and the prisoner
has appealed.  We have determined that the prisoner's petition should
have been dismissed because it does not comply with Tenn. Code Ann. S
27-8-106 (2000) and because it does not present facts demonstrating
that the prisoner had no other plain, speedy, or adequate remedy when
he filed the petition.

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

DUDLEY G. BOYD, et al. v. COMDATA NETWORK, INC., et al.

Court:TCA

Attorneys:

William R. O'Bryan, Jr., Kenneth M. Bryant, and E. Todd Presnell,
Nashville, Tennessee, for the appellant, Comdata Network, Inc.

Scott Justin Crosby and Susan M. Clark, Memphis, Tennessee, and George
H. Nolan and Julie C. Murphy, Nashville, Tennessee, for the appellees,
Dudley G. Boyd and Jan E Boyd.                         

Judge: KOCH

First Paragraph:

This appeal involves a discovery dispute implicating the common
interest privilege and the work product doctrine.  After filing suit
in the Chancery Court for Williamson County to rescind their
guaranties, the individual guarantors of a corporate debt served
interrogatories and requests for production of documents on the
creditor seeking copies of all written communications between the
creditor and the corporation from which the creditor had purchased the
corporate debt.  The creditor objected to the production of documents
involving its negotiation of a joint defense agreement with the
original creditor and the drafts of an agreement to repurchase the
corporate debt.  The trial court directed the creditor to produce both
categories of documents but permitted the creditor to pursue an
interlocutory appeal.  We granted the interlocutory appeal to address
the application of the common interest privilege and the work product
doctrine.  We have determined that the common interest privilege
shields the documents relating to the joint defense agreement from
discovery and that the work product doctrine likewise protects the
drafts of the repurchase agreement.  Accordingly, we reverse the trial
court's order compelling the production of these documents.

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

NANCY E. COTTER v. TED A. BURKHALTER, et al.

Court:TCA

Attorneys:    

Carrol D. Kilgore, Nashville, Tennessee, for the appellant, Nancy E.
Cotter.

D. Alexander Fardon, Nashville, Tennessee, for appellees, Ted A.
Burkhalter, and Burkhalter, Ryan & Co., P.C.

John S. Hicks, Nashville, Tennessee, for appellee, Prudential
Securities, Inc.

Linda L. Resha, Nashville, Tennessee, Pro Se.                      

Judge: CLEMENT

First Paragraph:

This appeal arises from an action by a Trustee against: (1) Ted A.
Burkhalter (Burkhalter), an accountant/attorney, and the accounting
firm, Burkhalter, Ryan & Co., P.C., for professional malpractice; (2)
Burkhalter, a former co-trustee, for alleged breach of fiduciary
duties; (3) Burkhalter and his partner, Linda Resha, in a general
partnership, for alleged conspiracy to defraud and convert funds from
the trust; and (4)  Prudential Securities, Inc. for breach of
fiduciary duty by allegedly permitting the diversion of funds by
Burkhalter.  The Chancery Court granted summary judgment in favor of 
Burkhalter and Burkhalter-Ryan finding that the malpractice claims
were time-barred.  The Chancery Court also granted summary judgment in
favor of Prudential Securities finding that Prudential had not
breached a fiduciary duty to the trust.  Following a bench trial on
the remaining issues, the Chancery Court found that the
plaintiff/appellant was judicially estopped from pursuing the claims
against Burkhalter for alleged breach of fiduciary duties as a
trustee, and found in favor of Burkhalter and Resha on the claim of
conspiracy to divert funds, finding there was insufficient evidence to
establish that a conspiracy existed.  We affirm.

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

JEFFREY CROUCH, et al. v. BRIDGE TERMINAL TRANSPORT, INC.

Court:TCA

Attorneys:

Charles J. Williams & John B. Carlson, Nashville, TN, for Appellants

Michael Richards, Memphis, TN, and John S. Hicks, Nashville, TN, for
Appellee                         

Judge: HIGHERS

First Paragraph:

This appeal involves a trial court's refusal to grant class action
status to plaintiffs' claims for breach of contract and promissory
fraud.  Plaintiffs filed suit against defendant alleging that
identical contracts between proposed class members and defendant were
breached and that defendant's conduct amounted to promissory fraud. 
The trial court held that plaintiffs failed to show that issues of law
and fact common to the class predominated over individual questions
and refused to certify the class.  Plaintiffs were granted this
interlocutory appeal to review the trial court's decision on class
certification.  For the following reasons, we affirm the decision of
the trial court.

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

MICHAEL JOHN DURANT v. LORRIE DIANE DURANT

Court:TCA

Attorneys:  

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Lorrie
Diane Durant.
                    
Larry B. Watson, Clarksville, Tennessee, for the appellee, Michael
John Durant.

Judge: FARMER

First Paragraph:

This appeal concerns the dissolution of a twelve-year marriage.  The
trial court granted the husband a divorce on the grounds of
inappropriate marital conduct.  The court distributed the parties'
property and awarded custody of the couple's two minor children to the
husband.  The court also enforced a contract the parties entered into
prior to the divorce wherein the husband agreed to purchase the wife's
share of the marital residence.  The wife appeals.  We affirm the
trial court.

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

MICHAEL DELANEY GALLIGAN v. LINDA MEDDERS GALLIGAN

Court:TCA

Attorneys: 

Thomas F. Bloom, Nashville, TN, for Appellant

Winston S. Evans, Nashville, TN, for Appellee                         

Judge: HIGHERS

First Paragraph:

This appeal arises from a divorce proceeding initiated by the husband.
The trial court, holding that both parties contributed to the demise
of the marriage, granted the divorce to the wife based on the
husband's adultery.  The trial court refused to grant the wife
rehabilitative alimony and classified all but one of the parties'
assets as separate property.  Finally, the trial court refused to tax
discretionary costs against the wife and, instead, granted her
$36,000.00 in attorney's fees.  The parties have raised numerous
issues for our review.  For the foregoing reasons, we affirm in part,
reverse in part, and remand this case for further proceedings.

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

IN THE MATTER OF ASBERT JOSEPH

Court:TCA

Attorneys: 

Asbert Joseph, Clifton, Tennessee, Pro Se.                         

Judge: KOCH

First Paragraph:

This appeal involves a state prisoner's efforts to change his name in
accordance with the tenets of the Nation of Islam.  The prisoner filed
his petition in the Chancery Court for Wayne County.  The trial court
summarily dismissed the petition even though it was uncontested, and
the prisoner has appealed to this court.  We affirm the dismissal of
the petition solely because the prisoner neither alleged nor proved
that he was a resident of Wayne County when he filed the petition.

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

JAMES D. LECKRONE v. JAMES D. WALKER, et al.

Court:TCA

Attorneys:  

John R. Jacobson, Nashville, Tennessee, for the appellant, James D.
Walker.

W. Lee Corbett and David F. Lewis, Nashville, Tennessee, for the
appellee, Prism Partners, L.P.                        

Judge: KOCH

First Paragraph:

This appeal arises from a dispute over the proceeds from the sale of a
Florida condominium unit once owned by a Tennessee partnership but
titled in the name of two of its partners.  When the  successor to the
partnership's interest in the unit undertook to sell it, one of the
owners of record agreed to sign the deed only if the proceeds were
placed in escrow while the parties attempted to resolve his claim to
one-half of the funds.  When the parties failed to agree on a
distribution of the proceeds, the escrow holder filed an interpleader
action in the Chancery Court for Davidson County.  Following a bench
trial, the trial court awarded the escrowed proceeds to the
partnership's successor after determining that the owner of record was
estopped to invoke the statute of frauds to defeat the successor's
claim.  We have determined that the trial court reached the correct
result because the owner of record no longer possessed a beneficial
interest in the unit.  Accordingly, we affirm the judgment.

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

ELLA JEAN McCAIN, CONSERVATOR OF THE PERSON AND PROPERTY OF HERMAN
McCAIN v. CHARLES DAVID PUGH

Court:TCA

Attorneys: 

James V. Ball, Memphis, Tennessee, for the appellant, Ella Jean
McCain.

Paul L. Burson, Memphis, Tennessee, for the appellee, Charles David
Pugh.                    

Judge: LILLARD

First Paragraph:

This is a personal injury case arising from a vehicle/pedestrian
accident.  A pedestrian wandered from the nursing home at which he
resided and began walking alongside a roadway.  The defendant driver
saw the pedestrian as he was driving on the roadway.  As the driver
approached, the pedestrian suddenly stepped into the roadway and was
struck by the defendant's truck.  The pedestrian suffered significant
injuries.  The pedestrian's daughter, as his conservator, filed suit
against the defendant driver.  At the conclusion of the plaintiff's
proof,  the defendant driver moved for a directed verdict on the
grounds that there was insufficient evidence that the defendant driver
was negligent.  The trial court granted a directed verdict for the
defendant driver and the plaintiff now appeals.  We affirm, finding
that the plaintiff failed to adduce evidence from which a reasonable
jury might conclude that the defendant driver was negligent.

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

LIDELL GREEN RUSSELL, et al. v. CITY OF MEMPHIS, TENNESSEE 

Court:TCA

Attorneys:  

William W. Heaton, Memphis, Tennessee, for the appellants, Lidell
Green Russell and George Green as Co-Administrators of the Estate of
Bobby E. Russell, Jr.

Sherry R. Brooks and Carrie L. Clark, Memphis, Tennessee, for the
appellee, City of Memphis, Tennessee.

Judge: FARMER

First Paragraph:

This is an appeal from a wrongful death action brought against the
City of Memphis pursuant to the Governmental Tort Liability Act.  The
trial court granted summary judgment to the City of Memphis, finding
that at the time of the accident giving rise to this action its
employee was not acting within the scope of his employment.  We
affirm.

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

JAMES O'NEAL VINEYARD, et ux. v. WALKER BETTY, et ux.

Court:TCA

Attorneys:  

J. Ross Pepper, Nashville, Tennessee, for the appellants, Walker
Betty, et ux.

Ronald Kilgore, Charlotte, Tennessee, for the Appellees, James O'Neal
Vineyard, et ux.

Judge: COTTRELL

First Paragraph:

Following a bench trial, the trial court found sufficient evidence to
show the existence of a prescriptive easement across the property of
the defendants in favor of the plaintiffs.  Defendants appeal, arguing
that clear and convincing evidence did not exist to support the trial
court's finding and that at trial plaintiff did not submit proof of
irreparable harm necessary to secure injunctive relief.  Appellant
failed to submit a transcript of the trial court proceedings or a
statement of the evidence to the appellate court leaving this court
only the technical record for consideration on appeal. In the absence
of a transcript or statement of the evidence, this court must presume
the evidence supported the trial court's findings.  Therefore, we
affirm the decision of the trial court.

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

STATE OF TENNESSEE v. LARRY BROOKS

Court:TCCA

Attorneys:    

S. Jasper Taylor, IV., Bells, Tennessee, for the appellant, Larry
Brooks.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Clayburn L. Peeples, District Attorney
General; and Gary Brown, Assistant District Attorney General, for the
appellee, State of Tennessee.                      

Judge: WELLES

First Paragraph:

The Defendant, Larry Brooks, was convicted by a jury of aggravated
robbery, aggravated assault, aggravated burglary, vandalism, and theft
up to $500.  The Defendant was subsequently sentenced as a Range III,
persistent offender to twenty years for the robbery, ten years for the
assault, ten years for the burglary, and eleven months, twenty-nine
days for each of the misdemeanors, all sentences to run concurrently. 
In this direct appeal the Defendant raises four issues:  (1) whether
the trial court erred in denying his motion to suppress; (2) whether
the evidence is sufficient to support his convictions; (3) whether the
trial court erred in sentencing the Defendant more than forty-five
days after the jury verdict; and (4) whether the trial court erred in
classifying the Defendant as a persistent offender in imposing
sentence.  Finding that principles of double jeopardy prohibit the
Defendant's convictions for aggravated assault and theft, we reverse
and dismiss those convictions.  In all other respects, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. TERRANCE BURKE

Court:TCCA

Attorneys:

James M. Gulley, Memphis, Tennessee, for the Appellant, Terrance
Burke.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Amy P. Weirich, Assistant District Attorney General; Jennifer
Smith Nichols, Assistant District Attorney General; and Daniel S.
Byer, Assistant District Attorney General, for the Appellee, State of
Tennessee.                        

Judge: WEDEMEYER

First Paragraph:

The Defendant was convicted of intentionally evading arrest in an
automobile, a Class E felony.  The trial court sentenced the Defendant
as a career offender to six years incarceration.  The Defendant now
appeals, arguing that the trial court erred by classifying him as a
career offender.  Concluding that the evidence was insufficient to
support the trial court's determination that the Defendant is a career
offender, we reverse the judgment of the trial court and remand for
re-sentencing.

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

BRADFORD D. DARNBUSH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Bradford D. Darnbush, Jonesville, Virginia, Pro Se.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General;  and Charles Michael Layne, District
Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the trial court's summary dismissal of his
post-conviction relief petition.  The issue presented for appeal is
whether the petitioner's post-conviction petition is barred by the
statute of limitations.  The judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. JAXIE RAYMOND JONES

Court:TCCA

Attorneys:

Jaxie Raymond Jones, Mountain City, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; and Joe C. Crumley, Jr., District Attorney
General, for the appellee, State of Tennessee.                       

Judge: WOODALL

First Paragraph:

In these consolidated appeals, the Appellant, Jaxie Raymond Jones, has
appealed from orders of the criminal courts of Washington County and
Johnson County.  His "Motion For Order Directing Joe C. Crumley, 1st
Judicial District Attorney General To Produce To Jaxie Raymond Jones,
A Copy Of The Entire Case File Of Case No. 14189" was denied. 
Subsequently, a motion to "alter or amend judgment" was also denied,
with the trial court imposing sanctions pursuant to Tennessee Code
Annotated sections 41-21-801 through -818.  Upon review of the entire
record, we affirm the judgments of each trial court insofar as each
order denies the motion.  However, we reverse the order of the Johnson
County Criminal Court insofar as it imposes sanctions pursuant to
Tennessee Code Annotated sections 41-21-801 through -818.

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

STATE OF TENNESSEE v. ANDRE NEELY

Court:TCCA

Attorneys:   

John E. Dunlap, Memphis, Tennessee, for appellant, Andre Neely.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; William L. Gibbons, District Attorney General; and
Lee Coffee, Assistant District Attorney General, for appellee, State
of Tenenssee.                       

Judge: SMITH

First Paragraph:

After the defendant's arrest for first degree murder and attempted
first degree murder, a Shelby County General Sessions Court conducted
a preliminary hearing to determine if there was probable cause to
support his arrest.  At the conclusion of the preliminary hearing, the
court dismissed the defendant's case. However, a Shelby County grand
jury later indicted the defendant for first degree murder and two
counts of attempted first degree murder. Pursuant to a jury trial, the
defendant was found guilty of one count of second degree murder and
two counts of attempted second degree murder.  Accordingly, the trial
court sentenced the defendant to serve twenty years in confinement. 
The defendant now brings this appeal, challenging his conviction on
the basis that (1) he was denied  an opportunity to review the
preliminary hearing tape, which was destroyed, and that (2) the trial
court  refused to admit certain testimony to cure this deficiency.  
After reviewing these claims, we find that neither of them merit
relief.  Accordingly, we affirm the defendant's convictions.

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

RUSSELL LANE OVERBY v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:

Ed Neal McDaniel, Savannah, Tennessee, for the Appellant, Russell Lane
Overby.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; G.
Robert Radford, District Attorney General; and John W. Overton,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                          

Judge: HAYES

First Paragraph:

The Appellant, Russell Lane Overby, appeals from the Hardin County
Circuit Court's dismissal of his petition for post-conviction relief. 
On December 8, 1997, Overby was found guilty of rape by a Hardin
County jury, and was sentenced to a term of twelve years in the
Department of Correction.  In this collateral attack of his rape
conviction, Overby alleges that he received  ineffective assistance of
counsel, both at trial and on direct appeal.  After review, we find no
error and affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. TIFFANY MICHELLE TAYLOR

Court:TCCA

Attorneys:  

Joseph F. Edwards (at trial and on appeal) and Michael H. Knowlton (at
trial), Cookeville, Tennessee, for the appellant, Tiffany Michelle
Taylor.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; William E. Gibson, District Attorney
General; Benjamin W. Fann, Assistant District Attorney General; and
Lillie Ann Sells, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: TIPTON

First Paragraph:

The defendant, Tiffany Michelle Taylor, was convicted by a Putnam
County Criminal Court jury of premeditated first degree murder and
sentenced to life in the Tennessee Department of Correction.  The
defendant appeals, claiming that (1) the juvenile transfer statute,
Tenn. Code Ann. S 37-1-134, is unconstitutional because it violates
equal protection and the separation of powers doctrine; (2) her
conviction violates the protection against double jeopardy; (3) the
trial court erred by refusing to give a sleep defense instruction; and
(4) the trial court improperly admitted inflammatory photographs into
evidence.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. RANDALL TAYLOR

Court:TCCA

Attorneys:

Philip A. Condra, District Public Defender, and David O. McGovern,
Assistant Public Defender, for the appellant, Randall Taylor.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and  William Bobo Copeland, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: WILLIAMS

First Paragraph:

Defendant contends there was insufficient evidence to support the
conviction for driving on a revoked license.  We disagree and affirm
the trial court's judgment.

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

STATE OF TENNESSEE v. KARDIUS WILKS

Court:TCCA

Attorneys:   

William C. Gosnell, Memphis, Tennessee, for the Appellant, Kardius
Wilks.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Braden H. Boucek, Assistant Attorney General;
William L. Gibbons, District Attorney General; and James Lammey,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                       

Judge: HAYES

First Paragraph:

The Appellant, Kardius Wilks, was convicted by a Shelby County jury of
first degree murder and sentenced to life imprisonment.  On appeal,
Wilks contends that the evidence presented at trial was insufficient
to support his first degree murder conviction because the State failed
to prove that the murder was premeditated and intentionally committed.
 After review, we find no error and affirm the judgment of the trial
court.

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

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