Opinion Flash

June 5, 2002
Volume 8 — Number 99

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

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


COLUMBIA ADVERTISING AGENCY  v. RALPH ISENHOUR, et al.

Court:TCA

Attorneys:    

Paul W. Duty and John H. Lowe, Goodlettsville, Tennessee, for the
appellant, Columbia Advertising Agency.

Lawrence H. Hart, Nashville, Tennessee, for the appellee, Ralph
Isenhour, individually and D/B/A Isenhour and Associates.                        

Judge: WEATHERFORD

First Paragraph:

In this suit to collect payments for advertising services allegedly
rendered to defendant pursuant to an oral agreement, the plaintiff
failed to file an order setting the case for trial within the time
period allowed by an agreed scheduling order.  Shortly thereafter, the
trial court dismissed the case for failure to prosecute.  The
plaintiff filed a Tennessee Rule of Civil Procedure 60 motion seeking
relief from the order of dismissal on the grounds that by mistake,
counsel had failed to calendar the scheduling deadlines. The trial
court found that plaintiff failed to offer an adequate basis to grant
relief from the order of dismissal under Rule 60 and denied the
motion.  For the reasons set out in this opinion, we reverse the
decision of the trial court and remand this case for a trial on the
merits.

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

FLEET ONE, LLC v. JOHN COOK, et al.

Court:TCA

Attorneys:

Melissa Blackburn, Nashville, Tennessee, for appellant, Fleet One, LLC

Robert M. Burns and Stephen W. Elliott, Nashville, Tennessee, for
appellees, John Cook and Bennett Hill Spring, LLC

Judge: KURTZ

First Paragraph:

This appeal challenges the dismissal of a defendant.  The circuit
court granted John Cook's Tenn. R. Civ. P. 41.02 motion for
involuntary dismissal and found that he did not personally guarantee
the debt of Bennett Hill Spring, LLC when he signed the Credit
Application as "Operations Manager."  Appellant challenges the circuit
court's decision to grant the motion which dismissed John Cook as an
individual defendant.  As discussed below, we affirm the judgment of
the circuit court granting John Cook's motion for involuntary
dismissal.  The circuit court was correct that, from a reading of the
contract as a whole, it is not apparent that John Cook personally
guaranteed payment by signing the Credit Application.

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

DAVID FROUNFELKER v. IDENTITY GROUP, INC. 

Court:TCA

Attorneys: 

Kenneth Douthat, Nancy A. Vincent, and W. Edward Ramage, Nashville,
Tennessee; Carole S. Katz, Darren P. O'Neill, of counsel, Pittsburgh,
Pennsylvania, for the appellant, Identity Group, Inc.

Jon E. Jones and Cynthia A. Wilson, Cookeville, Tennessee, for the
appellee, David Frounfelker.                         

Judge: FARMER

First Paragraph:

Plaintiff agreed to sell his company to Defendant pursuant to an Asset
Purchase Agreement.  In addition to acquiring the assets of
Plaintiff's company, Defendant agreed to hire Plaintiff for a one year
term.  The Asset Purchase Agreement contained an arbitration clause,
and the Employment Agreement provided judicial remedies in the event
of a dispute.  Plaintiff sued Defendant for the breach of the
Employment Agreement, asserting that Defendant terminated his
employment prior to the one year term.  Plaintiff determined his
hiring date from the Asset Purchase Agreement.  Defendant filed a
motion to compel arbitration, which the trial court denied.  Defendant
appeals the trial courts ruling.  We affirm.

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

JACK HUTTER v. H. ALLEN BRAY, ROBERT M. COHEN, GEOFFREY D. KRESSIN,
R.D. HASH, R. FRANKLIN NORTON, WARREN P. LUHN, GARY G. SPANGLER, and
NORTON & LUHN, P.C.

Court:TCA

Attorneys:

Jack Hutter, Maryville, Tennessee, pro se.

R. Franklin Norton and R. David Benner, Knoxville, Tennessee, for
Appellees, H. Allen Bray, Robert M. Cohen, Geoffrey D. Kressin, R.D.
Hash, R. Franklin Norton, Warren P. Luhn, Gary G. Spangler, and Norton
and Luhn, P.C.                     

Judge: FRANKS

First Paragraph:

In plaintiff's action for conspiracy, fraud and malicious harassment,
the Trial Court dismissed the action for failure to state a claim for
which relief could be granted.  We affirm.

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

BAMBI KENNEDY, d/b/a KENNEDY MARKETING SERVICES v. TITAN SPECIALIZED
SERVICES, INC.

Court:TCA

Attorneys:   

G. Kline Preston, IV., Nashville, Tennessee, for Appellant.

Brad Hornsby, Murfreesboro, Tennessee, for Appellee.                       

Judge: FRANKS

First Paragraph:

On appeal from Sessions Court, the Chancellor allowed a set-off on the
indebtedness.  Plaintiff appeals, contending defendant filed no
pleading which would entitle him to a set-off.  We affirm.

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

NASHVILLE SASH & DOOR, INC. v. TRISTAR BUILDERS, INC., et al.

Court:TCA

Attorneys:

Melissa Blackburn, Nashville, Tennessee, for the appellant, Nashville
Sash and Door Co.

Bob Lynch, Jr., Nashville, Tennessee, for the appellee, Richard L.
Cameron.                         

Judge: STEWART

First Paragraph:

In this case Nashville Sash and Door, Inc. sued Tristar Builders, Inc.
and its two stockholders, Robert J. Ivy and Richard L. Cammeron on a
debt arising from credit extended under an application of credit. At
the conclusion of the plaintiff's proof the trial judge granted the
defendants motion under Rule 41 of the Tennessee Rules of Civil
Procedure and dismissed the complaint.  Nashville Sash and Door, Inc.
has appealed that decision.  We affirm the Trial Court.

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

TANYA PLATTENBURG v. TABITHA TALLEY, GAIL TALLEY, DAVID BASHAM, and
WILLARD BASHAM, ROGERS GROUP, INC., and JOHN DOE, and STATE FARM
MUTUAL AUTOMOBILE INSURANCE COMPANY

Court:TCA

Attorneys: 

Robert T. Carter, Tullahoma, Tennessee, for Appellant, Tanya
Plattenburg.

L. Marshall Albritton and Joel P. Surber, Nashville, Tennessee, for
Appellees, Tabitha Talley and Gail Talley.

Harry Weill, Chattanooga, Tennessee, for Appellees, David Basham and
Willard Basham.

Julie-Karel Elkin, Nashville, Tennessee, for Appellee, The Rogers
Group, Inc.

Gerald L. Ewell, Jr., Tullahoma, Tennessee, for Appellee, State Farm
Mutual Automobile Insurance Company.

Judge: FRANKS

First Paragraph:

The Trial Court dismissed plaintiff's action, pursuant to Tenn. R.
Civ. P. 41.02, for failure to pay costs which had been assessed as a
sanction.  On appeal, we affirm, as modified.

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

TONY WILLIS, et al. v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:

Edward Tharpe, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Terri L. Bernal, Assistant Attorney General; for
the appellee, Tennessee Department of Correction.                       

Judge: COTTRELL

First Paragraph:

Petitioners, state inmates, filed the underlying pro se petition for
common-law writ of certiorari to seek review of disciplinary sanctions
imposed on them by the Tennessee Department of Correction for
attempted escape.  Petitioners alleged that their due process rights
were violated because: (1) they were not given sufficient notice of
the hearing; (2) their convictions were based upon information from a
confidential informant; (3) they were denied the right to call
witnesses, and; (4) they were denied access to exculpatory evidence. 
The trial court dismissed the suit for failure to state a claim. 
Because the petition failed to allege sanctions that imposed atypical
and significant hardships beyond those ordinarily incident to prison
life, we affirm the decision of the trial court.

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

TONY WILLIS, et al. v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

KOCH DISSENTING

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

STATE OF TENNESSEE v. MARK LEE DALE

Court:TCCA

Attorneys:

John H. Richardson, Jr. (on appeal) and Raymond W. Fraley, Jr. (at
trial), Fayetteville, Tennessee, for the appellant, Mark Lee Dale.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Ann L. Filer, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant was convicted by a Lincoln County Circuit Court Jury of
robbery, a Class C felony, and was sentenced by the trial court as a
Range II, multiple offender to nine years, three months in the
Department of Correction.  The sole issue he raises on appeal is
whether the trial court erred in finding that the State's peremptory
challenge of the only African-American member of the venire was
exercised on race-neutral grounds.  Based on our review, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. HASKEL D. FINCH

Court:TCCA

Attorneys:

William B. Lockert, III, District Public Defender, and Richard D.
Taylor, Jr., Assistant District Public Defender, for the appellant,
Haskel D. Finch.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Lisa C. Donegan, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: GLENN

First Paragraph:

A Humphreys County Circuit Court jury convicted the defendant of rape,
and the trial court sentenced him as a violent offender to ten years,
with 100% of his sentence to be served.  On appeal, the defendant
argues that the trial court erred in finding sufficient evidence to
convict him of rape, in admitting a statement he made to the police,
in admitting evidence of the victim's mental capacity, in denying his
Tennessee Rule of Evidence 412 motion, and in failing to instruct the
jury as to assault.  We affirm the judgment of the trial court.

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

JAMES ROGER FORD v. STATE OF TENNESSEE

Court:TCCA

Attorneys:  

Michael R. Giaimo, Livingston, Tennessee, for the appellant, James
Roger Ford.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William Edward Gibson, District Attorney
General; Anthony J. Craighead, Assistant District Attorney General;
and Owen G. Burnett, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: WOODALL

First Paragraph:

Petitioner, James Roger Ford, pled guilty on October 28, 1998, to the
following offenses: casual exchange of marijuana, a Class A
misdemeanor; sale of diazepam, a Class D felony; sale of more than 1/2
ounce of marijuana, a Class E felony; and two counts of public
intoxication, a Class C misdemeanor.  In addition, Petitioner entered
a "best interest" plea of guilty to the charge of introducing
contraband in jail, a Class C felony.  The trial court sentenced
Petitioner as a Range I offender to eleven months and twenty-nine days
for the offense of casual exchange of marijuana, thirty days each for
the two counts of public intoxication, two years for the sale of more
than 1/2 ounce of marijuana, and four years each for the sale of
diazepam and introducing contraband in jail, with all sentences to be
served concurrently on a Community Corrections program.  On November
24, 1998, a violation of Community Corrections warrant was filed. 
Petitioner pled guilty to violating the terms of his community-based
sentence and agreed to serve the remainder of his four-year sentence
in incarceration.  On October 27, 1999, he filed a pro se petition for
post-conviction relief, which the trial court denied after a hearing
on the merits.  Petitioner appeals the court's denial of
post-conviction relief, alleging that he received ineffective
assistance of counsel prior to and during the plea proceedings and
that his guilty plea was not knowingly or voluntarily entered. 
Following a thorough review of the record, we affirm the judgment of
the post-conviction court.

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

STATE OF TENNESSEE v. THOMAS GATEWOOD

Court:TCCA

Attorneys:  

Ross E. Alderman, District Public Defender; C. Dawn Deaner, Assistant
Public Defender (on appeal); Jerrilyn R. Manning, Assistant Public
Defender (at trial); and Jeffery L. Warfield, Assistant Public
Defender (at trial), for the appellant, Thomas Gatewood.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. Johnson, III,
District Attorney General; Lisa A. Naylor, Assistant District Attorney
General; and Jason W. Lawless, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

The defendant, Thomas Gatewood, was indicted for first degree murder
but convicted of second degree murder, for which he was sentenced as a
violent offender to twenty-three years imprisonment.  In his appeal,
the defendant argues that the trial court erred in not granting a
continuance because of a missing witness, in not instructing as to the
lesser-included offenses of reckless homicide and criminally negligent
homicide and that his sentence was excessive. Although issues one and
three are without merit, we agree that the jury should have been
instructed as to the lesser offenses of reckless homicide and
criminally negligent homicide.  Accordingly, we reverse the conviction
and remand for a new trial.

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

STATE OF TENNESSEE v. GARY K. HADDON

Court:TCCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; C. Michael Layne, District Attorney
General; and Douglas Aaron, Assistant District Attorney General, for
the appellant, State of Tennessee.

Robert S. Peters, Winchester, Tennessee, for the appellee, Gary K.
Haddon.

Judge: WOODALL

First Paragraph:

After the Coffee County Grand Jury indicted the Defendant, Gary K.
Haddon, for driving under the influence, second offense, Defendant
filed a motion to dismiss the indictment for prosecution as a second
offender.  As the ground for dismissal, Defendant argued that the
State failed to provide him with a copy of the department of safety
printout at the arraignment, as required by Tenn. Code Ann. S
55-10-403(g)(3)(ii).  The Circuit Court of Coffee County granted
Defendant's motion.  The State appeals.  After a review of the record,
we reverse the judgment of the trial court.

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

ERIC ROSS SEWELL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

S. Jason Whatley, Sr., Columbia, Tennessee, for the appellant, Eric
Ross Sewell.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Lawrence R. Whitley, District
Attorney General; and Sallie W. Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner appeals the denial of his petition for post-conviction
relief.  The petitioner pled guilty to two counts of aggravated sexual
battery, Class B felonies, and one count of attempted aggravated
sexual battery, a Class C felony.  Subsequently, he filed a petition
for post-conviction relief, alleging ineffective assistance of counsel
as its main issue.  Following a hearing, the court denied relief, and
the petitioner timely appealed.  On appeal, the petitioner argues that
the record shows that trial counsel was ineffective and that the
post-conviction court showed bias in its ruling and incorrectly
limited his proof at the hearing.  Following our review, we affirm the
denial of post-conviction relief.

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

STATE OF TENNESSEE v. JEFFREY DOUGLAS STRATTON

Court:TCCA

Attorneys:

Julie A. Rice, Knoxville, Tennessee (on appeal); Raymond M. Garner,
District Public Defender; and Shawn G. Graham, Assistant Public
Defender (at trial), for the Appellant, Jeffrey Douglas Stratton.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and Tammy Harrington, Assistant District Attorney General,
for the Appellee, State of Tennessee.                         

Judge: WITT

First Paragraph:

The defendant, Jeffrey Douglas Stratton, pleaded guilty to seven
counts of theft involving checks that he had forged.  Pursuant to a
plea agreement with the state, the defendant was sentenced to four
years on each count, and two of the sentences were to be served
consecutively for an effective sentence of eight years.  The trial
court was to determine the manner of service of the sentences.  After
a sentencing hearing, the trial court imposed fully incarcerative
sentences to be served in the Department of Correction.  The defendant
appeals this sentencing determination.  We affirm the judgment of the
trial court.

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

Eligibility of non-teaching school employee to run for and serve on
local school board

Date: May 23, 2002

Opinion Number: 02-070                         

http://www.tba.org/tba_files/AG/2002/OP70.pdf

Application of Uniform Administrative Procedures Act to Revenue
Hearings Conducted Pursuant to Tenn. Code Ann. 67-1-105

Date: May 29, 2002

Opinion Number: 02-071                        

http://www.tba.org/tba_files/AG/2002/OP71.pdf

Clerks of Court - Costs - Collection - Successful Party - Payment

Date: June 3, 2002

Opinion Number: 02-072                          

http://www.tba.org/tba_files/AG/2002/OP72.pdf

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