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 |
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version.
Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.
Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.
Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.
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
PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.
GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.
JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.
To join the TBA go to: http://www.tba.org/join_bar.mgi
SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.
Visit the TBALink web site at: http://www.tba.org/op-flash.mgi
UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi
Home • Contact Us • PageFinder • What's New • Help
