Opinion Flash

March 31, 2003
Volume 9 — Number 057

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
01 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


SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0331.wpd
								
LARRY EUGENE BENTON v. THE VANDERBILT UNIVERSITY Court:TCA Attorneys: Robert J. Walker, John S. Bryant, and Clisby Hall Barrow, Nashville, Tennessee, for the appellant, The Vanderbilt University. Phillip L. Davidson, Nashville, Tennessee, and Earle J. Schwarz, Memphis, Tennessee, for the appellee, Larry Eugene Benton. Judge: LILLARD First Paragraph: This is a case of first impression regarding the enforceability of an arbitration agreement against a third party. The plaintiff was a passenger in an automobile accident and was treated at the defendant hospital. The hospital filed a statutory hospital lien against any proceeds the plaintiff might recover in any lawsuit arising out of the car accident. The plaintiff later successfully sued the tortfeasor for the injuries he sustained in the accident. Thereafter, the hospital sought to recover under its lien for the balance of the plaintiff's medical bills that were not paid to the hospital by the plaintiff's insurance carrier. The plaintiff filed this action against the hospital, claiming that the hospital's practice of balance billing violates the institution agreement between the hospital and the plaintiff's insurance carrier. The hospital filed a motion in the trial court to compel arbitration, pursuant to an arbitration provision contained in the institution agreement. The trial court denied that motion. The hospital now appeals the denial of its motion to compel arbitration. We reverse, concluding that the plaintiff, a third-party beneficiary to the institution agreement seeking to enforce his rights under that agreement, is bound by the arbitration provision contained within that agreement. http://www.tba.org/tba_files/TCA/bentonlarrye.wpd
STATE OF TENNESSEE v. JAMES THOMAS ERWIN Court:TCCA Attorneys: David Neal Brady, District Public Defender, and H. Marshall Judd, Assistant Public Defender, for the appellant, James Thomas Erwin. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William Edward Gibson, District Attorney General; and John A. Moore and David A. Patterson, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant contends the trial court erred in sentencing him to eleven years for a Class B felony of selling a Schedule II controlled substance, instead of the presumptive minimum sentence of eight years. The defendant also contends the trial court erred in ordering his sentences to run consecutive to a sentence in another county. Absent a sentencing hearing transcript, we conclude the record is inadequate for appellate review, and we must presume the sentences imposed for the Class B felony are correct. Moreover, we note the judgment forms reflect the defendant was sentenced to eleven years on two additional Class C felony convictions of selling less than .5 grams of a Schedule II controlled substance. These sentences exceed the statutory range of punishment prescribed for Class C felonies and are illegal. We affirm the judgment from the trial court as related to the defendant's Class B felony convictions and remand the defendant's two Class C felony convictions for correction or for resentencing within the proper statutory range of punishment. http://www.tba.org/tba_files/TCCA/erwinjt.wpd
STATE OF TENNESSEE v. CURTIS HALLIMAN Court:TCCA Attorneys: John H. Henderson, Franklin, Tennessee, for the Appellant, Curtis Halliman. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Matthew Colvard, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Following the defendant's guilty pleas to the offenses of theft over $1,000 and burglary, both Class D felonies, the trial court sentenced him to concurrent three-year terms in the Department of Correction. In this appeal, the defendant posits that minimum, two-year terms of probation, Community Corrections, or split confinement are more appropriate measures. We disagree, however, and affirm. http://www.tba.org/tba_files/TCCA/hallimancurtis.wpd
EUGENE JOSEPH KOVALSKY v. STATE OF TENNESSEE Court:TCCA Attorneys: Kristi M. Davis, Knoxville, Tennessee, for the appellant, Eugene Joseph Kovalsky. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and J. Douglas Godbee and Jack T. Marecic, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the denial of post-conviction relief from his conviction for voluntary manslaughter, arguing that the post-conviction court erred in finding that his guilty plea was knowing and voluntary and that he received the effective assistance of trial counsel. Following our review, we affirm the denial of the petition. http://www.tba.org/tba_files/TCCA/kovalskyeugene.wpd
RICHARD LEONARD MENDOZA v. STATE OF TENNESSEE Court:TCCA Attorneys: David L. Raybin and Jacqueline B. Dixon, Nashville, Tennessee, for the Appellant, Richard Leonard Mendoza. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Philip H. Wehby, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Richard Leonard Mendoza, appeals the denial of his petition for post-conviction relief, which alleged ineffective assistance of counsel in connection with his guilty pleas to aggravated sexual battery and that his guilty pleas were involuntary. Additionally, he insists that the post-conviction court erroneously denied funding for expert psychological services at the post- conviction level. After a thorough review of the record, we are unpersuaded that the post-conviction court's rulings, findings and conclusion are anything other than proper, and we affirm the judgment. http://www.tba.org/tba_files/TCCA/mendozarichard.wpd
STATE OF TENNESSEE v. ANTHONY PFAHLER Court:TCCA Attorneys: Mary L. Ward, Knoxville, Tennessee (on appeal), and R. Mack Garner, District Public Defender (at trial), for the appellant, Anthony Pfahler. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Michael L. Flynn, District Attorney General; and William R. Reed, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Blount County Circuit Court jury convicted the defendant, Anthony Pfahler, of especially aggravated robbery, a Class A felony, and aggravated assault, a Class C felony. The trial court sentenced him as a Range II, violent offender to thirty-five years in the Department of Correction (DOC) for the especially aggravated robbery conviction and as a Range II, multiple offender to eight years for the aggravated assault conviction to be served consecutively. In this delayed appeal, the defendant claims (1) that the evidence is insufficient to support his especially aggravated robbery conviction; (2) that the trial court erred by denying his attorney's motion to withdraw; and (3) that his sentences are excessive. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/pfahleranthony.wpd
STATE OF TENNESSEE v. BILLY JOE PORTERFIELD Corrected page 1 Court:TCCA Attorneys: Roger Nell, District Public Defender; Collier W. Goodlett, Assistant Public Defender, Clarksville, Tennessee, for the Appellant, Billy Joe Porterfield. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helena Walton Yarbrough, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Billy Joe Porterfield, was convicted by a Montgomery County jury of aggravated burglary, especially aggravated kidnaping, especially aggravated robbery, attempted first degree murder, and two counts of aggravated rape, all arising from a single criminal episode. As a result of these convictions, Porterfield received an effective sentence of one-hundred-fifteen years imprisonment. On appeal, Porterfield argues: (1) the evidence is insufficient to support his convictions, and (2) the trial court erred in its application of enhancement factors in determining the appropriate sentences. Finding no merit to these issues, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/porterfieldpg1correx.wpd
MICHAEL RUSSO v. STATE OF TENNESSEE Court:TCCA Attorneys: David M. Hopkins, Nashville, Tennessee, and Jesse N.H. Bacon, Madison, Tennessee, for the appellant, Michael Russo. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Michael Russo, filed a petition for post-conviction relief alleging the ineffective assistance of counsel. The post-conviction court denied the petition and the petitioner timely appealed. Finding no error, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/russomichael.wpd
STATE OF TENNESSEE v. JAMES MARIO STARNES Corrected page 1 Court:TCCA Attorneys: Larry F. Wallace, Jr., Shelbyville, Tennessee, (on appeal) for the Appellant, James Mario Starnes. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H. Findley, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael Randles, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, James Mario Starnes, was indicted by the Bedford County Grand Jury for attempted first degree murder and especially aggravated robbery. Starnes pled guilty to attempted second degree murder and especially aggravated robbery. Following a sentencing hearing, Starnes received concurrent sentences of ten years, nine months for attempted second degree murder and twenty-five years for especially aggravated robbery. Starnes now appeals his especially aggravated robbery conviction, contending that the evidence is insufficient to establish his guilt for that offense. Because the error complained of was waived as a matter of law by Starnes' plea of guilty, this issue is not reviewable upon direct appeal. Accordingly, this appeal is dismissed. http://www.tba.org/tba_files/TCCA/starnespg1correx.wpd

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