Opinion Flash

July 22, 2002
Volume 8 — Number 125

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 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


SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0722.wpd

STEVEN CASE v. SHELBY COUNTY CIVIL SERVICE MERIT BOARD, et al.

Court:TCA

Attorneys:  

Mark Allen, Memphis, Tennessee, for the appellant, Steven Case.

Martin Zummach, Germantown, Tennessee, for the appellee, Shelby County
Civil Service Merit Board and Shelby County Government.                        

Judge: FARMER

First Paragraph:

Petitioner was a classified Shelby County employee who was terminated
following a hearing before the County's Civil Service Merit Board. 
Petitioner appealed the Board's decision to chancery court, which
found that Petitioner's own statements at his pretermination hearing
constituted sufficient evidence to sustain the Board's action.  The
chancellor accordingly affirmed the decision of the Board.  Petitioner
appeals the chancellor's ruling, alleging he was deprived of due
process and that there was no substantial evidence to support the
Board's determination.  We affirm.

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

NORA EDDINGS AND SYLVESTER EDDINGS v. SEARS ROEBUCK & CO.

Court:TCA

Attorneys:    

Richard L. Winchester, Jr., Memphis, for Appellants

Mark W. Raines, R. Scott Vincent, Memphis, for Appellee                      

Judge: HIGHERS

First Paragraph:

This appeal involves a personal injury and allegations of promissory
fraud stemming from a display bed collapsing at the defendant's
department store.  The plaintiffs spoke with the defendant's claim
adjustor following the incident and were allegedly assured that
medical bills would be paid by the defendant or that the claim would
be "concluded."  The plaintiffs, however, were informed by the
defendant's claims adjustor approximately one year after the accident
that the defendant held no liability due to the lapse of the statute
of limitation.  The plaintiffs sued the defendant for both personal
injury and promissory fraud.  Both claims were eventually defeated
before a trial could be held and the plaintiffs appealed.  We affirm.

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

CITY OF GATLINBURG, TENNESSEE v. JAMES ODOM, d/b/a THOMAS KINCADE
GALLERIES

Court:TCA

Attorneys:

Boyd W. Venable III, Sevierville, Tennessee, for the appellant, James
Odom, d/b/a/ Thomas Kincade Galleries.

Ronald E. Sharp, Sevierville, Tennessee, for the appellee, City of
Gatlinburg, Tennessee.                        

Judge: SUSANO

First Paragraph:

On nine separate occasions, the defendant was cited to the Gatlinburg
Municipal Court by the City of Gatlinburg for building without a
permit.  The citations were consolidated for trial on October 17,
2001.  Following an adverse ruling, the defendant attempted to appeal
to the Sevier County Circuit Court.  In doing so, he filed his appeal
bonds in the circuit court.  The City moved to dismiss the appeals,
contending that  the appeal bonds should have been filed in the
municipal court.  The circuit court dismissed the appeal, finding that
it had no jurisdiction of the appeal.  We affirm.

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

RICHARD JOHN JOLLY v. LYNETTE SUZANNE JOLLY

Court:TCA

Attorneys: 

Richard John Jolly, Bethel Springs, Tennessee, Pro Se.

Ken Seaton, Selmer, Tennessee, for the Appellee, Lynette Suzanne
Jolly.                         

Judge: LILLARD

First Paragraph:

This is a divorce case regarding the distribution of marital property.
 The wife moved from Tennessee to Kansas with the parties' four minor
children and later filed a petition for divorce. The Kansas court
awarded the wife a divorce, custody of the children, and child support
but found that it did not have jurisdiction to order a division of the
parties' marital property located in Tennessee.  Thereafter, the wife
filed this action in Tennessee seeking a division of the parties'
marital property in Tennessee.  The trial court ordered that the
Tennessee property be sold and that the husband's share of the sale
proceeds be reduced by the amount of unpaid child support. On appeal,
the husband argues, inter alia, that the trial court erred in
recognizing the Kansas divorce decree.  We affirm, finding that the
Kansas decree was entitled to full faith and credit and that the trial
court did not err in dividing the parties' marital property in
Tennessee.

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

ROY JONES v. PERRY SPURLING, et al.

Court:TCA

Attorneys:

David H. Dunaway, LaFollette, Tennessee, for the Appellant, Roy Jones

Robert S. Olive, Knoxville, Tennessee, for the Appellees, Perry
Spurling, Keith Adcock, Cassandra Duncan, Debbie Lively, and Conrad
Strand, Members of the Morgan County Board of Education, Paul
Scarbrough, Superintendent of the Morgan County Schools, and the
Morgan County Board of Education.                        

Judge: GODDARD

First Paragraph:

This is a suit by Roy Jones, a tenured teacher in the Morgan County
School System, against Perry Spurling, Keith Adcock, Cassandra Duncan,
Debbie Lively, and Conrad Strand, Members of the Morgan County Board
of Education, Paul Scarbrough, Superintendent of the Morgan County
Schools, and the Morgan County Board of Education.  The suit seeks, by
means of a writ of certiorari, to overturn a determination of the
Board that Mr. Jones' employment should be terminated because of an
altercation between him and a student.  We vacate and remand.

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

MACHINERY SALES COMPANY, INC., v. DIAMONDCUT FORESTRY PRODUCTS, LLC,
et al.

Court:TCA

Attorneys:    

Henry L. Klein, Memphis, For Appellant, Machinery Sales Company, Inc.

Glen Reid, Memphis, For Appellee, Champion International Corporation
Dennis A. Cameron, Hot Springs, Arkansas, for Appellee, Diamondcut
Forestry Products, LLC Thomas W. Hardin and Patrick M. Carter,
Columbia, For Appellee, Columbia Trading, Inc.

Judge: CRAWFORD

First Paragraph:

This is an action for rescission of a contract to purchase a chip
mill.  Purchaser sued seller and seller's alleged agent for
rescission, based upon theory of fraudulent misrepresentation. 
Following a bench trial, the trial court entered judgment in favor of
defendants.  Plaintiff appeals.  We affirm.

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

IN RE: MADELAINE SIERRA REDMAN, RAY H. BOWEN, JR., and MARTHA L.
BOWEN, v. NATHAN SCOTT REDMAN

Court:TCA

Attorneys:

Allan J. Coup, Mount Carmel, Tennessee, for Appellant.

Leslie W. Bailey, Jr., Kingsport, Tennessee, for Appellees.

Judge: FRANKS

First Paragraph:

The Trial Court ordered limited visitation with minor child by
grandparents.  On appeal, we affirm.                     

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

IN RE: MADELAINE SIERRA REDMAN, RAY H. BOWEN, JR., and MARTHA L.
BOWEN, v. NATHAN SCOTT REDMAN

Court:TCA

SUSANO CONCURRING

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

STATE OF TENNESSEE v. DIONTE TAUREAN WHITE

Court:TCA

Attorneys:

Victoria L. Dibonaventura, Paris, For Appellant, Dionte Taurean White

Paul G. Summers, Attorney General & Reporter, Braden H. Boucek,
Assistant Attorney General, For Appellee, State of Tennessee                        

Judge: CRAWFORD

First Paragraph:

This is an appeal of a juvenile proceeding tried before a jury in
criminal court on appeal de novo from juvenile court.  The juvenile
was found guilty of committing delinquent acts in violation of T.C.A.
S 39-17-417 (Supp. 2001) and T.C.A. S 39-17-423 (1997).  Judgment was
entered on the jury verdict, and the juvenile appeals.  We affirm.

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

STATE OF TENNESSEE v. CLAUDE W. CHEEKS

Court:TCCA

Attorneys:

Bryan Henry Hoss, C. Leland Davis, and David W. Wallace, Chattanooga,
Tennessee, for the appellant, Claude W. Cheeks.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; William H. Cox, District Attorney General;
and Dean Ferraro and Mary Sullivan Moore, Assistant District Attorneys
General, for the appellee, State of Tennessee.                       

Judge: MCGEE OGLE

First Paragraph:

The appellant, Claude W. Cheeks, was convicted by a jury in the
Hamilton County Criminal Court of one count of especially aggravated
robbery and two counts of aggravated assault.  The trial court
sentenced the appellant to a total effective sentence of twenty-five
years incarceration in the Tennessee Department of Correction.  On
appeal, the appellant specifically raises the following issues: (1)
"whether the trial court erred in allowing the jury to consider the
evidence where the State's doctors all supported the insanity defense
and there was no sufficient lay testimony, nor other testimony that
contradicted the insanity defense," and (2) "whether it is permissible
for the State to seek the assistance of expert witnesses in the field
of psychiatry, then to provide the experts the information on which to
base their opinion, and then at trial to reject the State's experts
and attack their results and offer no proof."  Upon review of the
record and the parties' briefs, we reverse the judgments of the trial
court on all three counts, institute verdicts of not guilty by reason
of insanity on each count, and remand for proceedings pursuant to
Tenn. Code Ann. S 33-7-303 (2001).

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

STATE OF TENNESSEE v. CLAUDE W. CHEEKS

Court:TCCA

TIPTON DISSENTING

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

STATE OF TENNESSEE v. HOWARD C. COVINGTON IN RE: MEMPHIS BONDING
COMPANY

Court:TCCA

Attorneys:

Michael J. Gatlin, Memphis, Tennessee, for the Appellant, Howard C.
Covington.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Kimkea Harris, Assistant District Attorney General, for
the Appellee, State of Tennessee.                       

Judge: WITT

First Paragraph:

Memphis Bonding Company appeals the Shelby County Criminal Court's
order denying its petitions for exoneration of liability for the
defendant Howard C. Covington's bail bonds for various offenses. 
Because the record fails to reflect that this case is properly before
us as a rightful appeal, we dismiss the appeal.

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

STATE OF TENNESSEE v. WILLIAM J. FORD

Court:TCCA

Attorneys:

Michael J. Gatlin, Memphis, Tennessee, for the Appellant, Howard C.
Covington.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Kimkea Harris, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

A Shelby County grand jury indicted the defendant for first degree
murder, and the State elected to seek the death penalty in this case. 
Following the guilt phase of the defendant's bifurcated trial, the
trial jury convicted him as charged. At the close of the sentencing
phase, the trial jury further found that the evidence supported the
existence of the alleged aggravating factor but concluded that this
factor did not outweigh the mitigating factors.  The jury, therefore,
sentenced the defendant to serve a life term without the possibility
of parole.  Subsequently, the defendant filed a new trial motion which
the trial court denied. On appeal, the defendant contends (1) that the
evidence is insufficient to support his conviction; (2) that the trial
court erred in barring him from the courtroom because of his outbursts
in the jury's presence; (3) that the trial court erred in not
declaring a mistrial after deciding that the defendant could not be
present at his trial because of these outbursts; (4) that the trial
court erred in admitting three letters written by the defendant; and
(5) that the prosecution, in its closing argument, impermissibly
shifted the burden of proof to the defense by commenting on a witness
mentioned by the defense in its opening statement but not called to
testify at trial. Upon reviewing these issues, we find that none merit
relief and, therefore, affirm the defendant's conviction.

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

JOE HIBBLER, III v. STATE OF TENNESSEE

Court:TCCA

Attorneys:    

Robert B. Gaia, Memphis, Tennessee, for the Appellant, Joe Hibbler,
III.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Thomas Hoover,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Joe Hibbler, III's petition for post-conviction relief
was denied by the Shelby County Criminal Court following an
evidentiary hearing.  Because the record supports the lower court's
determination that the petitioner did not demonstrate the ineffective
assistance of counsel by clear and convincing evidence, we affirm.

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

STATE OF TENNESSEE v. RANDY B. LONG

Court:TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton
Googe, District Public Defender (of counsel on appeal); and J. Colin
Morris, Jackson, Tennessee (at trial), for the appellant, Randy B.
Long.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; James G. Woodall, District Attorney
General; and James W. Thompson, Assistant District Attorney General,
for the appellee, State of Tennessee.                       

Judge: GLENN

First Paragraph:

A Madison County deputy jailer saw a plastic bag of 2.5 grams of
cocaine fall from the defendant's crotch area as he removed his
clothing for a strip search after his arrest for possession of
marijuana and drug paraphernalia.  The defendant was subsequently
convicted of possession of more than .5 grams of cocaine with the
intent to sell or deliver, a Class B felony, and the introduction of
contraband into a penal institution, a Class C felony.  He argues on
appeal that he cannot be convicted of introduction of contraband into
a penal institution when his entrance into the jail was involuntary,
and that the evidence was not sufficient to support his convictions. 
Based on our review of the record and of applicable law, we conclude
that a voluntary entrance into a penal institution is not a
requirement of the offense, and that the evidence was more than
sufficient to support the defendant's convictions in this case. 
Accordingly, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. GEORGE W. LUCAS

Court:TCCA

Attorneys:    

Tony N. Brayton, Assistant Public Defender, Memphis, Tennessee, for
appellant, George Lucas.

Paul G. Summers, Attorney General & Reporter, P. Robin Dixon, Jr.,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Paul Goodman, Assistant District Attorney General for
appellee, State of Tennessee.                      

Judge: SMITH

First Paragraph:

The defendant pled guilty to the offense of carjacking and was
sentenced to 7.2 years in the Tennessee Department of Correction.  In
this appeal he claims that he was improperly denied probation because
the trial judge mistakenly held that individuals convicted of
carjacking were statutorily ineligible for probation.  We hold that
the legislature has allowed individuals convicted of carjacking and
sentenced to eight (8) years or less to remain eligible for probation.
 Moreover, the trial judge also erred in determining that the use of a
weapon in a carjacking was, standing alone, sufficient reason to deny
the defendant probation.  We therefore reverse the judgment of the
trial court and remand for re-sentencing in accordance with this
opinion.

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

STATE OF TENNESSEE v. DELANEY E. MARCUM

Court:TCCA

Attorneys:

John H. Henderson, District Public Defender, Franklin, Tennessee, for
the Appellant, Delaney E. Marcum.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Lee Dryer, Assistant
District Attorney General, for the Appellee, State of Tennessee.                         

Judge: HAYES

First Paragraph:

The Appellant, Delaney E. Marcum, appeals from the sentencing decision
of the Williamson County Circuit Court.  Marcum entered guilty pleas
to one count of aggravated burglary, a class C felony, and one count
of theft of property over $1,000.00, a class D felony.  Under the
terms of the agreement, Marcum received concurrent sentences of five
years for aggravated burglary and four years for theft.  Following a
sentencing hearing, the trial court ordered that Marcum's sentences be
served in the Department of Correction and, additionally, he was
ordered to pay restitution on both counts.  On appeal, Marcum contends
that the trial court erred in (1) not sentencing him to probation or
any other alternative to incarceration, and (2) ordering restitution
in conjunction with total confinement.  Finding no error, the judgment
of the Williamson County Circuit Court is affirmed.

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

TIMOTHY ROBERSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Shannon A. Jones, Alamo, Tennessee, for the appellant, Timothy
Roberson.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and William D. Bowen, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

The petitioner, Timothy Roberson, was convicted in 1995 of first
degree murder and especially aggravated robbery, receiving respective
sentences, to be served consecutively, of life without parole and
fifteen years as a Range I, standard offender.  Following an
unsuccessful direct appeal of his conviction, he filed a petition for
post-conviction relief, alleging ineffective assistance of counsel at
trial.  The post-conviction court dismissed the petition following a
hearing, and the petitioner timely appealed.  We affirm the order
denying the petition.

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

STATE OF TENNESSEE v. DEBRA KAY THOMAS

Court:TCCA

Attorneys:

Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Debra
Kay Thomas.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Steven L. Garrett, Assistant District Attorney General,
for the appellee, State of Tennessee.                      

Judge: TIPTON

First Paragraph:

The defendant, Debra Kay Thomas, appeals the Henry County Circuit
Court's resentencing her upon revocation of her community corrections
sentence.  She claims that the trial court erred in failing to give
her credit for the time she served in confinement and in the community
corrections program under her original sentence.  The state agrees. 
We hold that the defendant was improperly sentenced and remand the
case for resentencing.

http://www.tba.org/tba_files/TCCA/thomasd1.wpd

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