Opinion Flash

February 10, 2003
Volume 9 — Number 023

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
06 New Opinion(s) from the Tennessee Court of Appeals
10 New Opinion(s) from the Tennessee Court of Criminal Appeals
06 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_0210.wpd
								
MARGARETTE J. ADAIR, et al. v. VINCENT T. SCALF d/b/a V & T TOPSOIL, et al. Court:TCA Attorneys: Larry D. Ashworth and Peter D. Heil, Nashville, Tennessee, for the appellant, Vincent T. Scalf. David I. Komisar, Nashville, Tennessee, for the plaintiff-appellee, Margarette J. Adair. Philip D. Baltz, John L. Kennedy and David Diaz-Barriga, Nashville, Tennessee, for the defendant- appellee, The Metropolitan Government of Nashville and Davidson County. Judge: CANTRELL First Paragraph: This is an action to abate a temporary nuisance of dust and noise attributable to the removal, processing and sale of topsoil ostensibly incidental to the development of real property owned by the defendant Scalf adjacent to the residence of the plaintiff, and for damages. A declaratory judgment against the Metro Government that it failed to enforce its zoning regulations was denied. Metro Government cross-claimed for declaratory relief that Mr. Scalf's removal, processing and sale of topsoil on residential property was forbidden by Ordinance. This relief was granted. The judgment, as modified, is affirmed. http://www.tba.org/tba_files/TCA/adairmj.wpd
DENISE ASHWORTH, et al. v. GREENE COUNTY, TENNESSEE, et al. Court:TCA Attorneys: K. Kidwell King, Jr., Greeneville, Tennessee, for the appellants, Denise Ashworth doing business as Hilltop House Bed & Breakfast. Roger A. Woolsey, Greeneville, Tennessee for the appellee, Greene County, Tennessee. Ronald S. Range, Jr. and Jennifer P. Keller, Johnson City, Tennessee, for the appellee, Greene County Partnership, Inc. Judge: SUSANO First Paragraph: Denise Ashworth, the proprietress of a bed and breakfast in Greene County, filed a declaratory judgment action challenging the constitutionality of a hotel/motel privilege tax authorized by private act of the General Assembly ("the Act") and approved by the Greene County Commission. Among other relief, she seeks the return of approximately $3,000 in taxes collected by her from patrons and paid by her under protest to Greene County. While her suit was pending, the trial court permitted an individual who had stayed one night at a local motel to intervene in this case. The gravamen of his complaint was the same as that of Ashworth's. The trial court granted the defendants summary judgment as to Ashworth's claim, finding that she was not the taxpayer under the Act and, consequently, did not have standing to pursue her claim. As to the intervenor's claim, the trial court held that the Act was unconstitutional and ordered that he be refunded the sum of $1.61, the amount of the tax that he had paid under protest, plus interest. Only Ashworth appeals. She contends that the traditional concept of standing should be broadened to permit her to pursue her claim. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/ashworthd.wpd
MICHAEL G. CANTRELL v. WALKER DIE CASTING, INC., EMPLOYEE BENEFIT PLAN, et al. Court:TCA Attorneys: Thomas A. Davidson, Lewisburg, Tennessee, for the appellant, Walker Die Casting, Inc., Employee Benefit Plan. John H. Norton, III, Shelbyville Tennessee, for the appellee, Michael G. Cantrell. Robert O. Binkley, Lewisburg, Tennessee, for the Intervenor/Appellee, Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Medical Center. Judge: FARMER First Paragraph: This case involves a denial of medical benefits for injuries sustained in an automobile accident. The Appellee was covered under an employee benefit plan which falls within the purview of the Employee Retirement Income Security Act of 1974 (ERISA). The trial court granted summary judgment for the Appellee as to the Appellant's liability for payment of the expenses resulting from the accident. We reverse the decision of the trial court, finding Appellee's failure to exhaust his administrative remedies prior to filing suit fatal to his cause. http://www.tba.org/tba_files/TCA/cantrellmichaelg.wpd
JAMES W. CLARK v. JIM ROSE Court:TCA Attorneys: James W. Clark, Pro Se. Judge: FARMER First Paragraph: This case involves a prisoner's allegations that correctional personnel failed to follow internal policies and procedures concerning administrative segregation of prisoners, thus denying him his due process rights. As we are unable to determine from the record if Appellant's continued presence in administrative segregation is actually non-punitive in nature, we reverse the trial court's dismissal of Appellant's petition. http://www.tba.org/tba_files/TCA/clarkj.wpd
JOHN FRANKLIN GARLAND v. TONIA KAY LEMASTER GARLAND Court:TCA Attorneys: Grace E. Daniell, Chattanooga, Tennessee, for Appellant, Tonia Kay Lemaster Garland. Howard L. Upchurch, Pikeville, Tennessee, for Appellee, John Franklin Garland. Judge: FRANKS First Paragraph: In this divorce action, the wife appeals the alimony award and amount of attorney's fees awarded to her. On appeal, we Affirm as Modified. http://www.tba.org/tba_files/TCA/garlandj.wpd
PROMUS HOTELS, INC. v. MARTIN, COLE, DANDO & ROBERTSON, INC, et al. Court:TCA Attorneys: Don L. Smith; Kenneth S. Schrupp, Nashville, For Appellant, Martin, Cole, Dando & Robertson, Inc. Nicholas E. Bragorgos; Thomas F. Preston, Memphis, For Appellee, David Moore, d/b/a D&M Enterprises Judge: CRAWFORD First Paragraph: This is an appeal from an Order denying Appellant's Motion to Compel Arbitration. Appellant filed a third-party claim against its subcontractor, Appellee, for indemnity. The Subcontract between the parties contained an agreement to arbitrate. Appellant contends that the agreement binds Appellee to arbitrate the matter. Appellee contends that it is not bound to arbitrate due to an exception in the Subcontract. We affirm and remand. http://www.tba.org/tba_files/TCA/promushotels.wpd
STATE OF TENNESSEE v. SANDRA HOYLE COOPER Court:TCCA Attorneys: George Morton Googe, District Public Defender; and Stephen P. Spracher, Assistant Public Defender; Jackson, Tennessee, for the appellant, Sandra Hoyle Cooper. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Sandra Hoyle Cooper, appeals the trial court's revocation of her community corrections sentence. Defendant received two community corrections sentences of eleven months and twenty- nine days each following two separate convictions for theft and for filing a false police report. While serving her community corrections sentences, Defendant was arrested for aggravated robbery. Following a revocation hearing, the trial court revoked her community corrections sentences and ordered the imposition of her original sentences. Defendant argues that the trial court improperly based its revocation on circumstantial evidence that she committed the offense for which she was arrested. After a careful review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/coopers1.wpd
STATE OF TENNESSEE v. MARLON MARKTAVIAS FITZGERALD Court:TCCA Attorneys: A C Wharton, Jr., District Public Defender, and Garland Ergueden, Tim Albers, and Trent Hall, Assistant Public Defenders, for the appellant, Marlon Marktavias Fitzgerald. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell and Lorraine Craig, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his convictions of first degree premeditated murder and first degree felony murder. The defendant argues that the State did not present sufficient evidence at trial to support his convictions. We disagree. The defendant also argues the trial court erred in not charging the jury on second degree murder and voluntary manslaughter as lesser-included offenses of felony murder. We agree but conclude the error was harmless and affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/fitzgeraldmm.wpd
STATE OF TENNESSEE v. CLARENCE CARNELL GASTON, MIQWON DEON LEACH, and MARIO DEANGALO THOMAS Court:TCCA Attorneys: Mike Mosier, Jackson, Tennessee, for appellant Gaston; Clifford K. McGown, Jr., Waverly, Tennessee (on appeal) and Joseph P. Atnip, District Public Defender (at trial and on appeal), for appellant Leach; and Thomas H. Strawn (at trial and on appeal) and W. Lewis Jenkins, Jr. (on appeal), Dyersburg, Tennessee, for appellant Thomas. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon and James David Kendall, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendants, Clarence Carnell Gaston, Miqwon Deon Leach, and Mario Deangalo Thomas, were convicted by an Obion County Circuit Court jury of conspiracy to commit second degree murder, second degree murder, and first degree felony murder. Finding aggravating circumstances (3) and (7) applicable to both Leach and Thomas, and aggravating circumstances (2), (3), and (7) applicable to Gaston, the jury sentenced each defendant to life without the possibility of parole for the first degree murder convictions. The trial court merged the second degree murder convictions into the convictions for felony murder and sentenced the defendants to eight years for the conspiracy convictions, to be served concurrently to their life sentences without possibility of parole. All three defendants challenge the sufficiency of the convicting evidence. Leach and Thomas each raise issues regarding the appropriateness of their life sentences without parole, and Thomas raises two additional issues of whether his trial should have been severed, and whether the verdicts of first degree felony murder and conspiracy to commit second degree murder are impermissibly inconsistent. After a thorough review of the record and of applicable law, we affirm the judgments of conviction and the sentences imposed. However, we remand to the trial court for entry of a corrected judgment form for Gaston's conspiracy conviction to reflect that he was found guilty by a jury. http://www.tba.org/tba_files/TCCA/gastonc.wpd
STATE OF TENNESSEE v. MATTHEW MELTON JACKSON Court:TCCA Attorneys: Roger Eric Nell, District Public Defender; Charles S. Bloodworth, Assistant District Public Defender, Springfield, Tennessee, for the appellant, Matthew Melton Jackson. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Matthew Melton Jackson, appeals the sentence imposed upon him by the trial court following his guilty plea to aggravated kidnapping, aggravated robbery, theft of property over $500.00 and two counts of aggravated rape. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/jacksomm.wpd
STATE OF TENNESSEE v. JESSIE JONES Court:TCCA Attorneys: A C Wharton, Jr., District Public Defender; W. Mark Ward, Assistant Public Defender (on appeal); and Timothy J. Albers, Assistant Public Defender (at trial), for the appellant, Jessie Jones. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and William D. Bond, III, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Jessie Jones, appeals as of right his conviction by a Shelby County jury of attempted second degree murder, a Class B felony. The trial court sentenced him as a Range II, multiple offender to twenty years in the Department of Correction. The defendant contends (1) that the trial court should have instructed the jury on self-defense and (2) that attempted second degree murder is not an offense in Tennessee. Although we hold that attempted second degree murder is an offense, we reverse the conviction because the failure to instruct on self-defense is plain error. We remand the case to the trial court for a new trial. http://www.tba.org/tba_files/TCCA/jonesjes.wpd
STATE OF TENNESSEE v. WENDELL S. LEWIS Court:TCCA Attorneys: A C Wharton, Jr., Public Defender; Garland Ergueden and Robert Hayes Gowen, Assistant Public Defenders, for the appellant, Wendell S. Lewis. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul F. Goodman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: When the defendant's status on community corrections was revoked, the trial court should have given the defendant credit for the time served in the community corrections program. We, therefore, reverse and modify the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lewisws.wpd
STATE OF TENNESSEE v. TONY MARTIN Court:TCCA Attorneys: Steve Temple and Jim Hale, Memphis, Tennessee (at trial); A C Wharton, Jr., Public Defender; andW. Mark Ward and Tony N. Brayton, Assistant Public Defenders (on appeal), for the appellant, Tony Martin. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Camille N. McMullen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted by a jury of second degree murder and sentenced to twenty years imprisonment as a violent offender. On appeal, the defendant contends that (1) the evidence was insufficient to support a second degree murder conviction, and (2) the jury instructions were erroneous, leading to a lower burden of proof for conviction and prejudice to the defendant. We agree the jury instructions were erroneous, yet the error was harmless. We disagree the evidence was insufficient to support second degree murder and therefore affirm the conviction. http://www.tba.org/tba_files/TCCA/martint.wpd
STATE OF TENNESSEE v. TONY MARTIN Court:TCCA TIPTON CONCURRING http://www.tba.org/tba_files/TCCA/martintc.wpd
STATE OF TENNESSEE v. JEREMY RODRIQUES MCPHEARSON Court:TCCA Attorneys: Stephen P. Spracher, Assistant Public Defender, for the appellant, Jeremy Rodriques McPhearson. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and Jody S. Pickens and Angela R. Scott, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: After the defendant, Jeremy Rodriques McPhearson, pled guilty to several unrelated offenses, the trial court ordered an effective sentence of eleven years to be served on supervised probation. When the defendant was arrested and charged with aggravated assault and trespass, the state filed a probation violation warrant. After a hearing, the trial court revoked the defendant's probation and ordered him to serve his original sentence in confinement. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/mcphears.wpd
STATE OF TENNESSEE v. BLAKE SHANE WALKER Court:TCCA Attorneys: Amber D. Haas, Assistant Public Defender, Newport, Tennessee, for the appellant, Blake Shane Walker. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Cocke County jury found the Defendant guilty of theft of property valued over $500 and of burglary of a motor vehicle. The trial court sentenced the Defendant as a Range II offender to three years for each conviction and ordered that the sentences run concurrently to each other but consecutively to prior sentences in Jefferson County. The Defendant now appeals, arguing that insufficient evidence was presented to convict the Defendant of theft and burglary. Finding no error, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/walkerbs.wpd
STATE OF TENNESSEE v. JOSEPH WILLIAM WILSON Court:TCCA Attorneys: Daniel J. Taylor, Jackson, Tennessee, for the appellant, Joseph William Wilson. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Madison County jury found the defendant guilty of three counts of aggravated rape and one count each of attempted second degree murder, especially aggravated robbery, especially aggravated burglary, conspiracy to commit aggravated burglary, and misdemeanor vandalism. In this appeal, the defendant argues: (1) the evidence is insufficient to support his convictions; (2) certain photographs of the victim's injuries were improperly admitted; (3) evidence that the defendant committed a subsequent burglary was improperly admitted; and (4) the trial court erred in failing to charge the jury as to simple rape as a lesser-included offense of aggravated rape. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/wilsonjo.wpd
Voluntary Capital Contribution For Construction of Public School; Statutory Proration Requirements Date: January 23, 2003 Opinion Number: 03-008 http://www.tba.org/tba_files/AG/2003/OP08.pdf
Scope of Public Defenders' Duty to Represent Defendants During "Drug Court" Appearances Date: January 24, 2003 Opinion Number: 03-009 http://www.tba.org/tba_files/AG/2003/OP09.pdf
Board of Medical Examiners Rules / 2002 Public Chapter 742 Date: January 24, 2003 Opinion Number: 03-010 http://www.tba.org/tba_files/AG/2003/OP10.pdf
Constitutionality of classification of political promotion calls as telemarketing/telephone solicitation Date: January 24, 2003 Opinion Number: 03-011 http://www.tba.org/tba_files/AG/2003/OP11.pdf
Passage of the Lottery Amendment Date: January 29, 2003 Opinion Number: 03-012 http://www.tba.org/tba_files/AG/2003/OP12.pdf
Exempting Human Resource Agencies From Conflict of Interest Provision in Child Care Broker Services Grant Application Date: January 30, 2003 Opinion Number: 03-013 http://www.tba.org/tba_files/AG/2003/OP13.pdf

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