Opinion Flash

August 9, 2002
Volume 8 — Number 138

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
06 New Opinion(s) from the Tennessee Court of Appeals
15 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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


C. J. H. v. A. K. G.

Court:TCA

Attorneys:

Timothy P. Underwood & Rogers N. Hayes, Pulaski, Tennessee, for the
appellants, C.J.H. and A.K.G.                        

Judge: COTTRELL

First Paragraph:

In this appeal the mother and father of a young child appeal the order
of the trial court denying the termination of the father's parental
rights.  An order establishing the father's paternity had been 
entered after the child's birth, and the father was ordered to pay
child support and granted visitation.  While the father has met his
monetary obligations, he has not seen his daughter since her birth, or
attempted to see her, and has no interest in establishing a
relationship with his daughter.  The mother and father submitted a
joint petition to terminate the father's parental rights, and the
trial court denied this petition, finding that termination was not in
the best interest of the child.  The parties appeal that denial to
this court.  We affirm.

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

HUNTINGTON ELDRIDGE, JR. v. DEBORAH MARIE WEST ELDRIDGE

Court:TCA

Attorneys:   

Kay Farese Turner, Melissa C. Berry, and Sam B. Blair, Jr., Memphis,
Tennessee, for the appellant, Deborah Marie West Eldridge.

Wanda B. Shea, Lisa E. Circeo, and George Lawrence Rice, III, Memphis,
Tennessee, for the appellee, Huntington Eldridge, Jr.                       

Judge: FARMER

First Paragraph:

Husband filed for divorce alleging inappropriate marital conduct and
irreconcilable differences.  Wife countersued on the same grounds. 
After a lengthy trial, the court awarded Husband the divorce.  Wife
appeals several aspects of the court's decision, including the
distribution and classification of the parties' property, child
support, and alimony.  Wife also contends that the court was biased
against her and created an appearance of impropriety.  Husband also
raises issues on appeal.  We affirm in part, reverse in part, and
remand the case for further proceedings.

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

JONATHAN H., et al. v. JAMES STEWART, et al.

Court:TCA

Attorneys:

Jerry Shattuck, Clinton, Tennessee, for the Appellants, James Stewart,
Director, Anderson County Schools, and Sylvia Brinkman, John Burrell,
Ron Hagans, Gail Martin, Arthur Nelson, John Price, Kent Worthington,
Jerry White, and Jim Zitzman, Members of the Anderson County Board of
Education

Lenny L. Croce, Oak Ridge, Tennessee, for the Appellees, Jonathan H.,
by Next Friend Lisa S. and Lisa S.                        

Judge: GODDARD

First Paragraph:

This is a suit brought by Jonathan H., through his mother and next
friend, Lisa S., and Lisa S., individually, seeking by means of a writ
of certiorari and supercedes, to reverse a determination of the
Anderson County School Board expelling Jonathan H. for one year
because the Board found that he had violated its zero tolerance policy
by possessing drugs on a school campus.  We vacate the judgment below,
dismiss the appeal and remand.

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

CLIFFORD W. RUSSELL, et al. v. SUSAN I. RUSSELL

Court:TCA

Attorneys:

Carrol D. Kilgore, Nashville, Tennessee, for the appellant, Susan I.
Russell.

Luther Wright, Jr. and Keli Jean Stewart, Nashville, Tennessee, for
the appellees, Clifford W. Russell and John Hall Russell.

Judge: CAIN

First Paragraph:

This appeal involves a will contest coupled with a suit to construe
the same will.  The trial court granted summary judgment to the
proponent on the will contest and summary judgment to the contestants
on the will construction issues.  We hold that the issues cannot be
resolved on summary judgment and reverse the trial court.

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

TROY ALLEN THOMPSON v. ELISA CONNELL HULBERT

Court:TCA

Attorneys:

David A. McLaughlin and Gail R. Sevier, Memphis, Tennessee, for the
Appellant, Troy Allen Thompson.

Paul G. Summers, Attorney General and Reporter, and Kim Beals,
Assistant Attorney General, Nashville, Tennessee, for the Attorney
General's Office.                     

Judge: LILLARD

First Paragraph:

This is a constitutional challenge to the Tennessee Child Support
Guidelines, Tenn. Comp. R. & Regs. 1240-2-4.  While the mother was
married to another man, she and the father had an extra- marital
relationship.  The child at issue in this case was born of that
relationship.  The father and mother never married each other.  Later
the father married a different woman and had two other children. Under
the Tennessee Child Support Guidelines, the father's financial support
of the children born of his marriage could not be considered in
determining the amount of court-ordered child support for his first
child.  The father argued to the juvenile court that the Guidelines
treated his later-born children less favorably than his first child
and, therefore, violated his children's constitutional rights to equal
protection.  The juvenile court rejected this argument and ordered
child support in accordance with the Guidelines.  The father now
appeals.  We reverse, finding that the Tennessee Child Support
Guidelines violate the equal protection guarantees of the federal and
state constitutions.

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

G. L. VANHORN v. DAN WEBB and BRYANT M. RAINES d/b/a/ MICKEY'S LATE
NIGHT PARTY

Court:TCA

Attorneys:  

Peter Skeie, Nashville, Tennessee, for the appellants, Dan Webb and
Bryant M. Raines.

Gregory D. Clayton, Nashville, Tennessee, for the appellee, G.L.
Vanhorn.                        

Judge: LILLARD

First Paragraph:

This case arises from commercial property leases.  The defendants
operated a late night dance club on premises leased from the
plaintiff.  The plaintiff landlord unilaterally terminated the leases,
changed the locks, and filed suit to recover for damage to the
premises.  While several pretrial motions were pending, the trial
court scheduled the final hearing.  The trial court found that the
defendant tenants had a week-to-week oral lease and that the tenants
violated the lease by engaging in illegal activity on the premises. 
On appeal, the defendant tenants argue that they were not given
sufficient notice prior to the final hearing.  We affirm, because the
record does not show that the issues raised on appeal were presented
to the trial court.

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

STATE OF TENNESSEE v. JACK DEFOREST BOLDEN

Court:TCCA

Attorneys:

Mark E. Stephens, District Public Defender; and Randall J. Kilby,
Assistant District Public Defender, for the appellant, Jack Deforest
Bolden.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Randall Eugene Nichols, District Attorney
General; and William J. Blevins, Assistant District Attorney General,
for the appellee, State of Tennessee.                         

Judge: RILEY

First Paragraph:

The defendant entered a guilty plea to Class D felony forgery and
Class D felony theft for an agreed effective six-year sentence with
the issue of alternative sentencing to be determined by the trial
court.  The trial court denied alternative sentencing.  On appeal, the
defendant contests the denial of community corrections.  We affirm.

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

STATE OF TENNESSEE v. BENJAMIN BROWN

Court:TCCA

Attorneys:

Coleman W. Garrett, Memphis, Tennessee, for the Appellant, Benjamin
Brown.

Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Kim R. Helper, Assistant Attorney General, William
L. Gibbons, District Attorney General, and Jennifer Nichols, Assistant
District Attorney General, for the Appellee, State of Tennessee.                          

Judge: HAYES

First Paragraph:

OPINION ON REMAND

http://www.tba.org/tba_files/TCCA/brownb1.wpd

MICHAEL O. BROWN v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:

Merrilyn Feirman, Nashville, Tennessee, and Andrew Jackson Dearing,
III, Shelbyville, Tennessee, for the Appellant, Michael O. Brown.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; W. Michael McCown, District Attorney
General; and Weakley E. Barnard and Ann Filer, Assistant District
Attorneys General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Michael O. Brown, appeals the Lincoln County Circuit
Court's denial of post- conviction relief.  In his post-conviction
petition, he challenged his 1996 conviction of selling cocaine by
alleging ineffective assistance of trial counsel.  Because the record
supports the trial court's denial of post-conviction relief, we
affirm.

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

MICHAEL O. BROWN v. STATE OF TENNESSEE 

Court:TCCA

TIPTON CONCURRING

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

STATE OF TENNESSEE v. JIMMY BYRD

Court:TCCA

Attorneys:

J. Shannon Garrison, Dayton, Tennessee, for the appellant, Jimmy Byrd.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and James W. Pope, III, Assistant District Attorney General,
for the appellee, State of Tennessee.                           

Judge: RILEY

First Paragraph:

The defendant pled guilty to two counts of Class D felony theft over
$1,000 and was sentenced to the community corrections program for an
effective period of three years.  The trial court subsequently revoked
his community corrections sentence and resentenced the defendant to
consecutive sentences of four years on each count as a Range I
standard offender, for an effective eight-year sentence.  On appeal,
the defendant contends (1) the proof was insufficient to revoke his
community corrections sentence; and (2) the sentence is excessive.  We
affirm the judgment of the trial court.

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

JOHNNY O. CLARK v. STATE OF TENNESSEE

Court:TCCA

Attorneys:  

Jeff Mueller, Jackson, Tennessee, for the appellant, Johnny O. Clark.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Tom Hoover, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

The petitioner appeals as of right from the denial of his petition for
post-conviction relief from his conviction for first degree murder,
contending that: (1) he was denied the effective assistance of trial
counsel; (2) the post-conviction court erred by refusing to admit the
affidavit of a deceased potential defense witness into evidence at the
post-conviction evidentiary hearing; and (3) the post-conviction court
and post-conviction counsel erred by their failure to comply with
provisions of the Post- Conviction Procedure Act and Supreme Court
Rule 28.  We affirm the judgment of the post- conviction court denying
the petition for post-conviction relief.

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

STATE OF TENNESSEE v. ROBERT S. CLARK

Court:TCCA

Attorneys:

Jefferson D. Gilder, Southaven, Mississippi (on appeal), and Leslie
Ballin and Gray Bartlett, Memphis, Tennessee (at trial), for the
appellant, Robert S. Clark.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; and Greg Gilluly and Betsy Carnesale,
Assistant District Attorneys General, for the appellee, State of
Tennessee.                         

Judge: WADE

First Paragraph:

The defendant, Robert S. Clark, was convicted of two counts of
robbery.  The trial court imposed concurrent four-year sentences.  In
this appeal of right, the defendant asserts that there was
prosecutorial misconduct during voir dire and that the trial court
erred by excluding certain expert testimony.  Because there is no
reversible error, the judgments of the trial court are affirmed.

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

STATE OF TENNESSEE v. ANTHONY GENTRY, II

Court:TCCA

Attorneys:

Lanny R. Norris, Elizabethton, Tennessee, for the appellant, Anthony
Gentry, II.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Joe C. Crumley, Jr., District
Attorney General; and Kenneth C. Baldwin, Assistant District Attorney
General, for the appellee, State of Tennessee.                           

Judge: RILEY

First Paragraph:

The defendant entered a negotiated plea of guilty to two counts of
sale of schedule II narcotics for agreed concurrent sentences of four
years for each count, with the issue of alternative sentencing to be
determined by the trial court.  The trial court sentenced the
defendant to four years incarceration.  In this appeal, the defendant
contends he should have received alternative sentencing.  We affirm.

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

STATE OF TENNESSEE v. JOHN L. GOODWIN, III

Court:TCCA

Attorneys:

John L. Goodwin, III, Pikeville, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; David H. Findley, Assistant Attorney General;
Lawrence Ray Whitley, District Attorney General; and Dee David Gay,
Assistant District Attorney General, for appellee, State of Tennessee.
                        
Judge: SMITH

First Paragraph:

The petitioner, John L. Goodwin, III, was convicted of attempted rape
and aggravated burglary.  State v. John L. Goodwin, III, No.
01-C01-9108-CR-00242, 1992 Tenn. Crim. App. LEXIS 859, at *1 (Tenn.
Crim. App. at Nashville, Nov. 12, 1992). The petitioner decided to
waive his right to a direct appeal of his verdict and filed a
post-conviction petition for review.  Id.  His petition was denied,
and on appeal this Court found that the petitioner waived his right to
a direct appeal based on erroneous advice of counsel and thus granted
him an opportunity to file a motion for new trial and bring a delayed
direct appeal.  Id. at **3-4.  The petitioner filed a motion for new
trial, which the trial court denied, and the petitioner brought a
delayed direct appeal before this Court.  State v. Goodwin, 909 S.W.2d
35, 37 (Tenn. Crim. App. 1995).  This Court affirmed the petitioner's
conviction, but remanded the petitioner's case for re-sentencing.  Id.
at 45-46.  The petitioner was re-sentenced, and he appealed his new
sentence to this Court, as well as the trial court's denial of his
writ of habeas corpus.  State v. John L. Goodwin, III, No.
01C01-9601-CR- 00013, 1997 Tenn. Crim. App. LEXIS 679, at *1 (Tenn.
Crim. App. at Nashville, July 23, 1997).  We reviewed his sentence and
ultimately found that the trial court properly imposed the
petitioner's new sentence.  Id.  While this Court was reviewing the
petitioner's appeal of his new sentence, he filed an "application for
coram nobis and/or in the alternative to re-open post-conviction
petition."   John L. Goodwin, III v. State, No. M2000-0757-CCA-R28-CO,
at *2 (Tenn. Crim. App. at Nashville, Sept. 19, 1997) (no electronic
database citation available).   The trial court dismissed this
pleading, and we affirmed that ruling.  John L. Goodwin, III v. State,
No. 01C01-9608-CR-00337 (Tenn. Crim. App. at Nashville, Sept. 19,
1997) (no electronic database citation available).  The petitioner
then filed a motion to re-open his post-conviction petition, which was
ultimately dismissed without a hearing.  Id.  Thus, we remanded his
case for a hearing to determine the merits of what was, essentially,
his post-conviction petition.  The petitioner now brings the instant
appeal of the denial of his petition for post-conviction relief,
challenging: the fairness of his post-conviction hearing; his
sentence; his notice of the charges against him; the constitutionality
of Tennessee Rule of Criminal Procedure 44(a); the alleged conspiracy
between various court officers against him; the effectiveness of his
counsel; and the jury instructions.  After reviewing the petitioner's
claims, we find that they are either waived, previously determined, or
without merit.

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

STATE OF TENNESSEE v. GREGORY W. GURLEY

Court:TCCA

Attorneys:

Jeff Mueller, Jackson, Tennessee, for the Appellant, Gregory W.
Gurley.

Paul G. Summers, Attorney General & Reporter; Christine M. Lapps,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and Shaun A. Brown, Assistant District Attorney
General, for the Appellee, State of Tennessee.                         

Judge: WITT

First Paragraph:

The defendant, Gregory W. Gurley, pursues an appeal of a certified
question of law in the wake of his guilty plea and resulting
conviction of second-offense driving under the influence (DUI).  In
his reservation of a certified question for appeal pursuant to
Tennessee Rule of Criminal Procedure 37(b)(2)(i), the defendant claims
that the trial court erred in denying his motion to suppress the
results of an intoximeter test; he posits that the test results are
inadmissible because the officer who administered the test failed to
comply with the "20-minute" requirement for breath-alcohol testing
that was established in State v. Sensing, 843 S.W.2d 412 (Tenn. 1992).
 Because the record supports the trial court's denial of the
suppression motion, we affirm.

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

STATE OF TENNESSEE v. RICHARD HIGGS

Court:TCCA

Attorneys:

Robert Little (on appeal); and Peggy Short-Bohannon, Memphis,
Tennessee (at trial), for the Appellant, Richard Higgs.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and James M. Lammey, Jr., Assistant District Attorney
General, for the Appellee, State of Tennessee.                      

Judge: WEDEMEYER

First Paragraph:

A Shelby County jury convicted the Defendant of aggravated robbery and
evading arrest.  After a hearing, the trial court sentenced the
Defendant as a Range I standard offender to eleven years in the
Department of Correction for the aggravated robbery conviction, and as
a Range III persistent offender to six years in the Department of
Correction for the evading arrest conviction.  The sentences were
ordered to be served consecutively.  In this direct appeal, the
Defendant contends that the trial court erred in denying his lawyer's
motions to withdraw; that the trial court erred in admitting a prior
inconsistent statement by a co-defendant; and that the evidence is not
sufficient to sustain his convictions.  We affirm the judgments of the
trial court.

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

STATE OF TENNESSEE v. SHAWN MARTIN HOLDAWAY

Court:TCCA

Attorneys:

Donna Leigh Hargrove, District Public Defender, and Andrew Jackson
Dearing, III and  Michael J. Collins, Assistant Public Defenders, for
the appellant, Shawn Martin Holdaway.

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

Judge: WILLIAMS

First Paragraph:

Defendant appeals denial of Community Corrections sentence.  We affirm
the judgment of the trial court.

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

RICHARD THOMAS JOHNSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

J.B. Glassman, Jackson, Tennessee, for the appellant, Richard Thomas
Johnson.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General, for the appellee, State of Tennessee.                        

Judge: TIPTON

First Paragraph:

The petitioner, Richard Thomas Johnson, appeals as of right the
Lauderdale County Circuit Court's denial of his petition for writ of
habeas corpus.  He contends that he was illegally arrested and
imprisoned after the expiration of his sentence.  Because the
petitioner is no longer incarcerated, we conclude that the issue is
moot and affirm the trial court's denial of the petition.

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

STATE OF TENNESSEE v. RONALD EUGENE PURDY

Court:TCCA

Attorneys:

George Morton Googe, District Public Defender, and Stephen P.
Spracher, Assistant Public Defender, for the appellant, Ronald Eugene
Purdy.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; James G. Woodall, District Attorney
General; and Jody Pickens, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: GLENN

First Paragraph:

The trial court placed the defendant on probation for eight years.  As
a condition of probation, the defendant was required to complete a
one-year drug rehabilitation program.  When the defendant violated his
probation by failing to complete the program and failing to report to
his probation officer upon his discharge from the program, the State
filed a probation violation report with the court.  After a hearing,
the trial court revoked the defendant's probation.  The defendant
appeals, claiming that the trial court abused its discretion in
revoking his probation.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. ANTHONY LEE SMITH

Court:TCCA

Attorneys:

John G. McDougal (at trial) and Melanie R. Snipes (on appeal),
Chattanooga, Tennessee, for the appellant, Anthony Lee Smith.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Dean C. Ferraro, Assistant District Attorney General, for
the appellee, State of Tennessee.                   

Judge: RILEY

First Paragraph:

A Hamilton County jury convicted the defendant of burglary and theft
under $500.  He received consecutive sentences of 10 years as a Range
III offender and 11 months and 29 days, respectively.  The defendant
contends  (1) the evidence was insufficient to support his
convictions; (2) the trial court erred in allowing the state to
present a property receipt into evidence in lieu of coins found in the
defendant's possession; (3) the prosecutor made improper remarks
during closing argument; and (4) the trial court erred in ordering
consecutive sentences.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/smithal1.wpd

STATE OF TENNESSEE v. SHANNON LEE WOOD

Court:TCCA

Attorneys:

Louis W. Ringger, Jr. (at trial), Decaturville, Tennessee; and Guy T.
Wilkerson (on appeal), Camden, Tennessee, for the Appellant, Shannon
Lee Wood.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Beth Boswell, Assistant District Attorney General, for
the Appellee, State of Tennessee.                        

Judge: WITT

First Paragraph:

Following a jury trial, the defendant, Shannon Lee Wood, was convicted
of the July 4, 1999 aggravated child abuse of his eighteen-month-old
stepdaughter, for which he received a 20-year sentence as a violent
offender.  Now on appeal, the defendant's sole issue is whether the
convicting evidence is sufficient to support the conviction.  It is,
and we affirm.

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

Civil Liability of Foster Care Agency Pursuant to Tenn. Code Ann.
S37-10-101

Date: August 6, 2002

Opinion Number:  02-086                        

http://www.tba.org/tba_files/AG/2002/OP86.pdf

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