Opinion Flash

July 16, 2002
Volume 8 — Number 121

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
04 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


BELLSOUTH TELECOMMUNICATIONS, INC. v. THE TENNESSEE REGULATORY
AUTHORITY

Court:TCA

Attorneys:  

R. Dale Grimes, Jonathan C. Stewart, and Guy M. Hicks, Nashville,
Tennessee; Patrick Turner, Atlanta, Georgia, for the appellant,
BellSouth Telecommunications, Inc.

J. Richard Collier and Lynn Questell, for the appellee, Tennessee
Regulatory Authority.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Timothy C. Phillips, Assistant Attorney General,
for the appellee, Office of the Tennessee Attorney General Consumer
Advocate and Protection Division.

Henry Walker, Nashville, Tennessee, for the appellee, The Tennessee
Payphone Owners Association.

Judge: CANTRELL

First Paragraph:

The only remaining question in this appeal concerns the authority of
the Tennessee Regulatory Authority (TRA) to order the payment of
interest on payphone rate refunds after the TRA found that the
ratepayers had been overcharged.  We find that Tenn. Code Ann. S
65-5-203(c) gives the TRA the requisite authority.

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

ROBERT LOUIS BROWN v. STATE OF TENNESSEE DEPARTMENT OF LABOR AND
WORKFORCE DEVELOPMENT, DIVISION OF WORKERS' COMPENSATION

Court:TCA

Attorneys:

Robert Louis Brown, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; E. Blaine Sprouse,
Assistant Attorney General, for the appellee, State of Tennessee.                          

Judge: CANTRELL

First Paragraph:

The appellant suffered an injury while on the job.  The Department of
Labor and Workforce Development denied him workers' compensation
benefits.  Appellant sued the state for monetary damages.  The trial
court dismissed the complaint for lack of subject matter jurisdiction.
 We affirm.

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

IN RE: WILLIAM HARRIS EPPS

Court:TCA

Attorneys:

Van L. Riggins, Jr., Clarksville, Tennessee, for the appellant,
William Harris Epps.

Dorris Fay Epps, appellee, not represented on appeal.                         

Judge: COTTRELL

First Paragraph:

The conservators and sons of Mr. Epps appeal the trial court's
decision to award to Mr. Epps's wife one-third of the proceeds from
the sale of a house owned by Mr. Epps but used as the marital
residence during the marriage of over ten years. We affirm the
decision of the trial court.

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

JERRY W. SEYMOUR, et al. v. TOMISA SIERRA, et al.

Court:TCA

Attorneys:

Parks T. Chastain, Nashville, Tennessee, for the appellant and unnamed
defendant, Nationwide Insurance Company.

Robert S. Peters, Winchester, Tennessee, for the appellees Jerry W.
Seymour and Emmalene Seymour.                     

Judge: CANTRELL

First Paragraph:

The only question involved in this appeal is whether an insured may
proceed directly against its uninsured motorist carrier when the
tortfeasor is in fact insured but service of process is returned "not
to be found."  The Circuit Court of Franklin County allowed the suit
to proceed and we granted the insurance company's motion for an
interlocutory appeal under Rule 9, Tenn. R. App. P.  After briefing
and oral argument, we affirm the trial court.

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

STATE OF TENNESSEE v. LARRY DOUGLAS

Court:TCCA

Attorneys:

Ardena J. Garth, District Public Defender, and Donna Robinson Miller,
Assistant District Public Defender, for the appellant, Larry Douglas.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; William H. Cox III, District
Attorney General; and Lila J. Statom, Assistant District Attorney
General, for the appellee, State of Tennessee.                          

Judge: WILLIAMS

First Paragraph:

After failing to report to his arrest house and failing a drug screen,
defendant's sentence in the Community Corrections Program was revoked,
and defendant appealed the revocation.  The record contains
substantial evidence to support the revocation.  We affirm the
judgment.

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

STATE OF TENNESSEE v. JEFFREY B.  JOHNSON

Court:TCCA

Attorneys:

Jeffrey B. Johnson, Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Jeffrey L. Long, Assistant District Attorney General, for
the appellee, State of Tennessee.                           

Judge: RILEY

First Paragraph:

The defendant appeals the trial court's order rejecting his request
for additional pretrial jail credits.  We dismiss the appeal.

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

TRAVIS JONES, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

F. Michie Gibson, Jr., Nashville, Tennessee, for the Appellant, Travis
Jones, Jr.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Braden H. Boucek, Assistant Attorney General;
Victor S. Torry Johnson, III, District Attorney General; and Dan Hamm,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Travis Jones, Jr., appeals from the dismissal of his
petition for post-conviction relief.  On March 22, 2000, Jones,
pursuant to a negotiated plea agreement, entered "best interest" pleas
to two counts of second degree murder.  As provided by the plea
agreement, Jones was sentenced by the Davidson County Criminal Court
to consecutive fifteen-year terms for each conviction.  On appeal,
Jones challenges the post-conviction court's dismissal of his
petition, arguing that he was "forced" into pleading guilty due to
trial counsel's inadequate pre-trial preparation.  Finding no error,
the judgment of the post-conviction court is affirmed.

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

STATE OF TENNESSEE v. CLYDE RANDALL SCIVALLY

Court:TCCA

Attorneys:

Robert S. Peters, Winchester, Tennessee, for the appellant, Clyde
Randall Scivally.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and Bill Copeland, Assistant District Attorney General, for
the appellee, State of Tennessee.                          

Judge: RILEY

First Paragraph:

The defendant and co-defendant were indicted for possession of over .5
grams of cocaine with intent to sell and possession of drug
paraphernalia.  A Franklin County jury convicted the defendant of the
lesser-included offense of simple possession of cocaine and acquitted
him of possession of drug paraphernalia.  The co-defendant was
convicted of both indicted offenses.  In this appeal, the defendant
contends the evidence was insufficient to sustain his conviction.  We
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. MARK WALKER

Court:TCCA

Attorneys:

Ross E. Alderman, District Public Defender, and Carol Dawn Deaner,
Assistant Public Defender, for the appellant, Mark Walker.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Victor S. (Torry) Johnson III, District
Attorney General; and Roger D. Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.                     

Judge: WILLIAMS

First Paragraph:

The defendant was convicted of one count of theft of property, one
count of aggravated assault, two counts of criminal simulation, one
count of evading arrest, and one count of possession of drug
paraphernalia.  The criminal simulation convictions were merged by the
trial court, and the defendant was sentenced as follows:  four years
for theft of property, four years for criminal simulation, ten years
for aggravated assault, and eleven months and twenty nine days for
both evading arrest and possession of drug paraphernalia. On appeal,
the defendant challenges the sufficiency of the evidence to support
his convictions for theft, criminal simulation, and evading arrest. 
He also alleges that the trial court failed to exclude from evidence
hearsay testimony and statements to law enforcement in violation of
his Fifth Amendment rights.  Further, the defendant asserts that the
trial court erred by failing to instruct the jury on the
lesser-included offense of attempted criminal simulation.  Finally,
the defendant challenges the length and manner of service of his
sentences.  After a review of the record, we reverse and dismiss the
defendant's conviction of criminal simulation.  The remaining
judgments of the trial court are affirmed.

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

STATE OF TENNESSEE v. GEORGE T. WIEBE,  IN RE:  PAUL'S BONDING
COMPANY, INC.

Court:TCCA

Attorneys:

Joel H. Moseley, Sr., Nashville, Tennessee, for the appellant, George
T. Wiebe, In Re:  Paul's Bonding Co., Inc.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General;  Victor S. (Torry) Johnson, III, District
Attorney General; and John C. Zimmerman, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

Bonding company for absconded defendant appeals final forfeiture of
bond and alleges that its agents were without authority to issue an
alleged illegal bond.  Concluding that bonding company's employee had
authority to act, we affirm the judgment of the trial court.

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

ADRIAN WILKERSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Cynthia M. Fort, Nashville, Tennessee, for the appellant, Adrian
Wilkerson.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. Johnson, III,
District Attorney General; and Dan Hamm, Assistant District Attorney
General, for the appellee, State of Tennessee.                      

Judge: RILEY
 
First Paragraph:

This is an appeal from the denial of post-conviction relief.  A
Davidson County jury originally convicted the petitioner and a
co-defendant of first degree felony murder, especially aggravated
robbery, and theft over $1,000.  The petitioner is serving an
effective sentence of life imprisonment plus 25 years. In this appeal,
the petitioner contends he received ineffective assistance of counsel
due to counsel's failure to interview witnesses and failure to raise
on direct appeal the trial court's denial of severance from his
co-defendant.  After a review of the record, we affirm the judgment of
the post-conviction court.

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

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