Opinion Flash

September 6, 2002
Volume 8 — Number 155

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
02 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


SHERYL FAULKS, et al. v. DR. BRENDA CROWDER, et al.

Court:TCA

Attorneys: 

David W. Blankenship, Kingsport, Tennessee, for the Appellants Sheryl
Faulks and Bruce Zabower, Parents and Next Kin of Madison
Faulks-Zabower, deceased, Sheryl Faulks and Bruce Zabower.

Jimmie C. Miller and Nancy Eastridge, Kingsport, Tennessee, for
Appellee Dr. Richard Reece.

Jeffrey M. Ward and Thomas J. Garland, Greeneville, Tennessee, for
Appellee Dr. Brenda Crowder.

Charles T. Herndon, IV, Johnson City, Tennessee, for the Appellee Dr.
Robert Grindstaff.

M. Lacy West and Julia C. West, Kingsport, Tennessee, for the Appellee
Sycamore Shoals Hospital, Inc.

Judge: SWINEY

First Paragraph:

When this medical malpractice suit was originally filed, counsel for
Sheryl Faulks and Bruce Zabower ("Plaintiffs") instructed the court
clerk not to have process served.  Process was not reissued until
approximately nine months later.  When process was reissued and served
via certified mail, Plaintiffs failed to comply with the requirements
of Rule 4.03(2) pertaining to return of the service of process.  Three
of the four Defendants then were nonsuited, but a new lawsuit against
these Defendants was filed.  The lawsuits were consolidated.  The
three Defendants in the second lawsuit filed Motions to Dismiss based
upon the running of the statute of limitations.  The remaining
Defendant in the original suit filed a Motion to Dismiss challenging
the effectiveness of service of process.  The Trial Court dismissed
both Complaints based on Plaintiffs' failure to comply with Rule
4.03(2).  We reverse and remand.

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

GUY R. JENKINS, et al. v. DAN GIBBS

Court:TCA

Attorneys: 

James S. MacDonald, Knoxville, Tennessee, for the Appellants Guy R.
Jenkins and Aubrey Allen Jenkins.

John A. Lucas, Knoxville, Tennessee, for the Appellee Dan Gibbs.                         

Judge: SWINEY

First Paragraph:

After a dispute arose over the ownership of 1000 shares of stock in
City Bonding Company ("City Bonding"), Guy Jenkins and Aubrey Allen
Jenkins ("Plaintiffs") sued Dan Gibbs ("Defendant") seeking a
determination as to how many shares of stock were owned by the various
parties. Guy Jenkins also claimed Gibbs unlawfully procured the breach
of a contract Guy Jenkins had with City Bonding.  The Trial Court
granted Gibbs summary judgment on the unlawful procurement of breach
of contract claim.  After a trial on the remaining issues, the Trial
Court determined Gibbs owned 490 shares of stock, Guy Jenkins owned
255 shares, and the remaining 255 shares were unissued.  All parties
appealed the Trial Court's determination with respect to ownership of
the stock.  Guy Jenkins also appealed the granting of summary judgment
on his claim against Gibbs for unlawful procurement of breach of
contract.  We vacate the summary judgment granted to Gibbs and affirm
the judgment in all other respects.

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

EDDIE L. COLEY, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

J. Britt Phillips, Franklin, Tennessee, for the appellant, Eddie L.
Coley, Jr.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Ronald L. Davis, District
Attorney General; and Derek K. Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.                      

Judge: GLENN

First Paragraph:

The petitioner, Eddie L. Coley, Jr., was convicted of aggravated
robbery in 1996 and sentenced to confinement for twelve years. 
Following an unsuccessful appeal of his conviction, he filed a
petition for post-conviction relief, alleging that his trial counsel
was ineffective for not filing a motion to suppress a photographic
lineup and not allowing him to testify at his trial.  The
post-conviction court denied the petition; and, following our review,
we affirm that denial.

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

STATE OF TENNESSEE v. IVAN E. CUMMINGS

Court:TCCA

Attorneys:

Roger Eric Nell, District Public Defender, and Collier W. Goodlett,
Assistant District Public Defender, for the appellant, Ivan E.
Cummings.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and C. Daniel Brollier, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Ivan E. Cummings, pled guilty in the Montgomery County
Circuit Court to aggravated child abuse, aggravated child neglect, and
second degree murder, Class A felonies.  The trial court merged the
aggravated child abuse and neglect convictions and sentenced the
defendant as a Range I, standard offender to twenty-four years in the
Tennessee Department of Correction.  For the second degree murder
conviction, the trial court sentenced the defendant to twenty-five
years to be served concurrently with the twenty-four-year sentence. 
The defendant appeals, claiming that the trial court erroneously
applied enhancement factors to his convictions.  We affirm the
judgments of the trial court.

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

STATE OF TENNESSEE v. TIMOTHY WAYNE HOLLAND

Court:TCCA

Attorneys:

Lee Borthick, Springfield, Tennessee (on appeal); Roger Eric Nell,
District Public Defender; and Charles S. Bloodworth, Assistant Public
Defender (at trial), for the appellant, Timothy Wayne Holland.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Dent Morriss, Assistant District Attorney General, for
the appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

The defendant was convicted of facilitation of aggravated robbery and
aggravated burglary for his participation with a codefendant in
robbing a resident of a Springfield motel and burglarizing his room. 
The trial court sentenced him as a Range I, standard offender to an
effective sentence of six years.  Following the denial of his motion
for a new trial, he filed a timely appeal to this court, raising the
following issues:  (1) whether the trial court properly denied his
motion for a new trial based on his claim of an improper closing by
the State; and (2) whether the trial court properly denied his request
for a jury instruction on accessory after the fact.  Based on our
review, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. DAVID ALLEN LACKEY

Court:TCCA

Attorneys:  

Larry B. Hoover, Nashville, Tennessee (on appeal and at trial); and
John T. Conners, III, Franklin, Tennessee (at trial), for the
Appellant, David Allen Lackey.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; Pamela Anderson, Assistant District Attorney General; and
Lisa Naylor, Assistant District Attorney General, for the Appellee,
State of Tennessee.                        

Judge: WEDEMEYER

First Paragraph:

A Davidson County jury convicted the Defendant of one count of
premeditated murder, one count of felony murder during the
perpetration of a theft, and one count of misdemeanor theft.  The
trial court merged the two murder convictions and sentenced the
Defendant to life imprisonment in the Tennessee Department of
Correction for the murder conviction.  The trial court sentenced the
Defendant to eleven months and twenty-nine days for the theft
conviction and ordered that the sentence run concurrent with the
murder sentence.  The Defendant now appeals, challenging the
sufficiency of the evidence supporting the murder convictions and
arguing that the trial court erred in failing to suppress his
confession.  After review, we affirm the judgments of the trial court.

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

DAVID MICHAEL LONG v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Vance L. Baker, Jr., Athens, Tennessee, for the appellant, David
Michael Long.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; and Charles Pope, Assistant District
Attorney General, for the appellee, the State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, David Michael Long, appeals the denial of his petition
for post-conviction relief.  In this appeal of right, the petitioner
asserts that his plea was neither knowingly nor voluntarily made and
that he was denied the effective assistance of counsel.  The judgment
of the trial court is affirmed.

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

JOHNNY McCLAIN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Daniel L. McMurtry, Nashville, Tennessee, for the Appellant, Johnny
McClain.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, 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, Johnny McClain, appeals as of right from the judgment
of  the Davidson County Criminal Court denying his petition for
post-conviction relief.  On appeal, the Appellant argues that he
received ineffective assistance of counsel.  After review of the
record, we find that the Appellant's brief fails to provide any
argument in support of the issue as presented.  Due to the Appellant's
procedural default, the appeal is dismissed.

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

STATE OF TENNESSEE v. WENDY STEVENS

Court:TCCA

Attorneys:

Judson Wheeler Phillips, Franklin, Tennessee, for the appellant, Wendy
Stevens.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Lee Dryer, Assistant District Attorney General, for the
appellee, State of Tennessee.                         

Judge: MCGEE OGLE

First Paragraph:

The appellant, Wendy Stevens, pled guilty in the Williamson County
Circuit Court to one count of forgery involving a value of more than
$500 but less than $1,000, and one count of fraudulent use of a credit
card involving a value of more than $500 but less than $1,000, both
Class E felonies.  The trial court sentenced the appellant to eighteen
months incarceration in the Tennessee Department of Correction for
each offense, but immediately suspended the sentence in favor of
supervised probation.  On appeal, the appellant complains that the
trial court erred by failing to grant her judicial diversion.  Upon
review of the record and the parties' briefs, we affirm the judgment
of the trial court.

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

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