Opinion Flash

September 3, 2002
Volume 8 — Number 153

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):
01 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
08 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


LINDA S. REECE v. FINDLAY INDUSTRIES, INC. AND HAROLD EDWARD TIGUE,
JR. v. TOKIO MARINE & FIRE INSURANCE COMPANY, et al.
(These two cases were consolidated for oral argument and opinion
purposes.  The opinions for both are contained in the single
attachment.)

Court:TSC

Attorneys:

B. Timothy Pirtle, McMinnville, Tennessee, for the appellant, Findlay
Industries, Inc., and for the appellants, Calsonic Yorozu Corporation,
Tokio Marine & Fire Insurance Company, and Yasuda Fire & Marine
Insurance Co. of America. Barry H. Medley, McMinnville, Tennessee, for
the appellee, Linda S. Reece, and for the appellee, Harold Edward
Tigue, Jr.                         

Judge: HOLDER

We granted this appeal to determine the propriety of the trial judge's
actions in the adjudication of these workers' compensation cases.  We
hold that the trial judge failed to perform all the duties of the
judge's office prescribed by law in these consolidated cases by
improperly delegating his authority to the clerk and master to
adjudicate the cases.  Accordingly, the judgments of the trial court
are reversed, and the cases are remanded to the trial court for
proceedings consistent with this opinion.

http://www.tba.org/tba_files/TSC/reecel.wpd

GLADYS WILLIS v. MOUNTAIN STATES HEALTH ALLIANCE d/b/a JOHNSON CITY
MEDICAL CENTER HOSPITAL

Court:TSC - Workers Comp Panel

Attorneys:  

M. Stanley Givens, Anderson, Fugate & Givens, Johnson City, Tennessee,
for the Appellant, Mountain States Health Alliance d/b/a Johnson City
Medical Center Hospital.

Howell H. Sherrod, Sherrod, Goldstein & Lee, Johnson City, Tennessee,
for the Appellee, Gladys Willis.                        

Judge: PEOPLES

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
S 50-6-225(e) for hearing and reporting of findings of fact and
conclusions of law.  The employer appeals a finding that the employee
is totally disabled.  We affirm.

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

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0902.wpd

H&R BLOCK  EASTERN TAX SERVICES, INC. v. KAMERON BATES, d/b/a BATES
INCOME TAX SERVICE, et al.

Court:TCA

Attorneys:        

Gary C. Shockley and Jennifer Gingery Cook, Nashville, For Appellant,
H&R Block Eastern Tax Services, Inc.

Daryl A. Colson, Livingston, For Appellees, Kameron Bates, Patricia
Bates, Lisa Jo Dunn, and Kellie Bates

Michael Savage, Livingston, For appellee, Janie Perkins                  

Judge: CRAWFORD

First Paragraph:

Plaintiff, provider of a tax preparation service, sued defendants, a
tax preparation service and individual former employees of plaintiff,
for damages and injunctive relief resulting from procurement of breach
of contract by defendant tax preparation service and for breach of
non- competition contracts by former employees.  The trial court found
that the plaintiff had no right to relief from the defendants and
entered judgment for all defendants.  Plaintiff appeals.  We affirm.

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

JEREL HUGHES v. TENNESSEE DEPARTMENT OF CORRECTION, et al.

Court:TCA

Attorneys: 

Jerel Hughes, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Ashley S. Old, Assistant Attorney General, for the
appellees, Tennessee Department of Correction and Tennessee Board of
Probation and Parole.

Judge: COTTRELL

First Paragraph:

Petitioner, a state inmate, filed the underlying action seeking review
of actions taken by the Tennessee Department of Correction and the
Tennessee Board of Probation and Parole, including the decision of the
Board to deny parole and set the next parole hearing two years later. 
Petitioner had been convicted of an additional felony while on parole
from a previous felony conviction.  The trial court dismissed the
petition for failure to state a claim under Tenn. R. Civ. P. 12.02(6).
 For the reasons set forth below, we affirm the decision of the trial
court.

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

JOE MORGAN, et al. v. BARBARA NELL GOOD (GRIMES)

Court:TCA

Attorneys:  

Robert G. Wheeler, Jr., Nashville, Tennessee, for the appellants, Joe
Morgan and Donna Morgan.

John H. Baker, III, Murfreesboro, Tennessee, for the appellee, Barbara
Nell Good (Grimes).                        

Judge: CAIN

First Paragraph:

Plaintiffs filed suit against Defendant in order to determine the true
boundary line and ownership  of one-half acre of property adjacent to
both Plaintiffs' property and Defendant's property.  The trial court
determined that the boundary line cut diagonally across the disputed
property giving approximately one-quarter acre to Plaintiffs and
one-quarter acre to Defendant.  Plaintiffs appealed asserting that
they are the true owners of the entire one-half acre and that the
trial court was in error when it established the diagonal boundary
line splitting the disputed property.  We agree with the trial judge's
determination of the boundary line and affirm the chancery court's
opinion.

http://www.tba.org/tba_files/TCA/morganj1.wpd

STATE OF TENNESSEE v. DEUNDRICK LARAN COBLE

Court:TCCA

Attorneys:

Steve Conley, (on appeal); Bruce and Steve Conley, Union City,
Tennessee (at trial), for the appellant, Deundrick Laran Coble.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and James T. Cannon, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: SMITH

First Paragraph:

The appellant was convicted of aggravated assault and sentenced to
five years in the Tennessee Department of Correction as a standard
Range I offender.  In this appeal, he raises two issues.  First, he
maintains that a prior inconsistent statement was improperly used by
the prosecution to impeach the testimony of a prosecution witness. 
Second, he claims the prosecutor made improper remarks during closing
argument.  We find neither of these alleged errors requires reversal
of this case and thus we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. LARENZO DESHAWN HARRIS

Court:TCCA

Attorneys:  

Stephen D. Jackson, Jackson, Tennessee, for the appellant, Larenzo
Deshawn Harris.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Michael W. Catalano, Associate Solicitor General;
G. Robert Radford, District Attorney General; and Eleanor Cahill,
Assistant District Attorney General, for the appellee, State of
Tennessee.                        

Judge: GLENN

First Paragraph:

The defendant was convicted of possession of a Schedule II controlled
substance with the intent to manufacture, deliver, or sell, a Class B
felony; possession of a Schedule VI controlled substance with the
intent to manufacture, deliver, or sell, a Class E felony; and
possession of drug paraphernalia, a Class A misdemeanor.  Following
the denial of his motion for a new trial, he filed a timely appeal to
this court, challenging the sufficiency of the evidence in support of
his convictions.  We affirm the defendant's convictions.  However,
because the jury assessed, and the trial court imposed, a fine for
possession of a Schedule VI controlled substance that exceeds the
statutory maximum, we remand the case to the trial court for a new
jury to be impaneled to assess an appropriate fine in Count 2 and for
entry of a corrected judgment as to the possession of drug
paraphernalia conviction in Count 3.

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

STATE OF TENNESSEE v. DANIEL HENLEY

Court:TCCA

Attorneys:   

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and P. T. Hoover, Assistant District Attorney General, for
the Appellant, State of Tennessee.

Irwin I. Cantor, Memphis, Tennessee, for the Appellee, Daniel Henley.                       

Judge: WITT

First Paragraph:

The State of Tennessee appeals from the Shelby County Criminal Court's
dismissal of its petition to declare Daniel Henley a motor vehicle
habitual offender.  Because the lower court erred in its determination
that the state failed to prove the existence of three prior,
qualifying convictions, we reverse and remand.

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

REECE CALLOWAY LOUDERMILK v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Julie A. Rice, Knoxville, Tennessee (on appeal); Stephen M. Wallace,
District Public Defender; and Terry L. Jordan, Assistant District
Public Defender (at hearing), for the appellant, Reece Calloway
Loudermilk.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; H. Greeley Wells, Jr., District
Attorney General; and Teresa Murray Smith, 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.  Pursuant
to an agreed plea entered in October 1992, the defendant pled nolo
contendere to three counts of aggravated rape of his niece, one count
of aggravated sexual battery of his niece, one count of aggravated
rape of his daughter, and one count of aggravated sexual battery of
his daughter for an effective 35-year sentence as a Range I standard
offender.  Both victims were under thirteen years of age.  On appeal,
the defendant contends he received ineffective assistance of counsel
rendering his plea unknowingly and involuntarily entered.  After
review, we affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. DAVID SALTZ

Court:TCCA

Attorneys:

Stephen M. Wallace, District Public Defender (at trial); Leslie S.
Hale, Assistant District Public Defender (at trial); and Steve McEwen,
Mountain City, Tennessee (on appeal), for the appellant, David Saltz.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General;  H. Greeley Wells, Jr., District Attorney
General; Teresa Murray-Smith, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant pled guilty to three counts of incest and was sentenced
as a Range II multiple offender to three concurrent terms of eight
years.  The defendant appeals the trial court's imposition of various
enhancement factors and denial of alternative sentencing.  We affirm
the trial court's judgment.

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

STATE OF TENNESSEE v. JEROME SAWYER

Court:TCCA

Attorneys: 

David L. Hamblen, Union City, Tennessee, for the Appellant, Jerome
Sawyer.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Alonda Dwyer, Assistant District Attorney General, for
the Appellee, State of Tennessee.                         

Judge: WITT

First Paragraph:

Convicted by a jury of the Class B felony offense of aggravated sexual
battery and sentenced by the trial court to serve an incarcerative
Range II sentence of eighteen years, the defendant, Jerome Sawyer,
appeals and claims that the evidence insufficiently supports the
verdict and that the court erroneously found him to be a Range II
offender.  We disagree and affirm.

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

STATE OF TENNESSEE v. RONALD SIMMONS

Court:TCCA

Attorneys:

Robert M. Brannon, Jr., Memphis, Tennessee, for the appellant, Ronald
Simmons.

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

Judge: GLENN

First Paragraph:

The defendant pled guilty to sexual battery, a Class E felony, in
exchange for a two-year sentence.  The trial court sentenced the
defendant to ninety days of weekend confinement, suspended the balance
of the two-year sentence, and placed the defendant on probation for
four years.  The defendant appeals his sentence, arguing that the
trial court erred in denying his petition for judicial diversion and
in sentencing him to ninety days of confinement.  After a review of
the record, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. REGINALD D. TERRY

Court:TCCA

Attorneys:

W. Mark Ward, Assistant Public Defender (on appeal); Timothy J.
Albers, Assistant Public Defender; and William Yonkowski, Assistant
Public Defender, Memphis, Tennessee, for the appellant, Reginald D.
Terry.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Julie Mosley, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: WEDEMEYER

First Paragraph:

A Shelby County jury convicted the Defendant of attempted aggravated
burglary, and this Court affirmed the conviction on direct appeal. 
The Tennessee Supreme Court remanded the case to this Court solely to
consider whether the trial court's failure to instruct on certain
lesser-included offenses was "plain error," thus warranting review
despite the Defendant's failure to timely file his motion for new
trial.  On remand, we conclude that the trial court's failure to
instruct on the lesser- included offenses in this case was not "plain
error." Accordingly, we affirm the judgment of the trial court.

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

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