Opinion Flash

May 13, 2003
Volume 9 — Number 087

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):
03 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
01 New Opinion(s) from the Tennessee Court of Appeals
04 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


ROBERT LEWIS DAVIDSON, Individually and as Administrator of the Estate
of Joyce Davidson, Deceased, et al v. CHARLES R. LINDSEY, et al.

Court:TSC

Attorneys:    

Edward L. Martindale, Jr., Jackson, Tennessee, for the appellant,
Robert Lewis Davidson.

Fred N. McLean, Paris, Tennessee, for the appellant, Charles R.
Lindsey.

Raymond G. Prince, Nashville, Tennessee, for the appellants, Jason R.
Ross and Alan P. Ross.

Russell E. Reviere and Michael L. Mansfield, Jackson, Tennessee, for
appellees, Allen Briggs and Southland Transportation.

Judge: DROWOTA

First Paragraph:

In this personal injury case, we address whether the trial judge
properly performed his duties as thirteenth juror in denying the
appellees' motion for new trial.  The Court of Appeals found that
based on statements made by the trial judge during the trial, at the
hearing for the motion for new trial, and at the hearing to set bond
and stay execution of the judgment, there was "an appearance of bias"
against two of the defendants due to their failure to reach a
settlement with the plaintiffs.  As a result, the Court of Appeals
found that the trial judge could not have properly discharged his duty
as thirteenth juror.  We reverse.  There is no indication that the
trial judge was biased against the defendants; instead, it is clear
that the trial judge believed that the ultimate outcome was obvious
from the outset, and that the bad facts and poor testimony of one of
the defendants should have prompted a substantial settlement offer
from the defendants.   The record indicates that the trial judge
considered the issues in the case and explicitly approved the jury's
apportionment of fault and the amount of damages awarded. 
Additionally, acting in our discretion under Tennessee Rule of
Appellate Procedure 13(b), we address the other issues raised on
appeal by the appellees, and find that they are without merit.  As
such, we reinstate the judgment of the trial judge approving the
jury's verdict.

http://www.tba.org/tba_files/TSC/davidsonvlindsey.wpd
								
VICTORIA L. HENRY, et al. v. TIMOTHY A. GOINS, et al. Court:TSC Attorneys: Robert L. Whitaker, Nashville, Tennessee, for the plaintiffs-appellants, Victoria L. Henry and Peggy Henry. Paul M. Buchanan and Julie Bhattacharya Peak, Nashville, Tennessee, for the defendants-appellees, Jason M. Pope and Neal H. Dobyns d/b/a Residue Rescue. Eugene N. Bulso, Jr. and Julie Murphy Burnstein, Nashville, Tennessee, for the plaintiffs-appellees, Robert Orr-Sysco Food Services Company and Timothy A. Goins. Judge: HOLDER First Paragraph: The trial court entered an Order of Dismissal for failure to prosecute. The order was entered with prejudice and without notice to the parties. After the trial court reinstated Plaintiffs' claims pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure ("Rule 60.02"), Plaintiffs prevailed on the merits. The Court of Appeals held that the trial court erred in setting aside the Order of Dismissal and vacated the judgment in Plaintiffs' favor. We granted permission to appeal. Because Plaintiffs presented adequate grounds for relief under Rule 60.02, we hold that the trial court did not abuse its discretion in reinstating their claims. Therefore, we reverse that portion of the judgment of the Court of Appeals holding that the trial court erred in setting aside the Order of Dismissal. Accordingly, we reinstate the jury verdict, and we remand this cause to the trial court for proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/henryvopn.wpd
JOHN DOE, et al. v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE, et al. (Corrected Opinion) Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Michael W. Catalano, Associate Solicitor General, for the petitioner, Board of Professional Responsibility of the State of Tennessee. Ronald D. Krelstein, Germantown, Tennessee, for the respondent, Richard Roe, et al. Judge: BARKER First Paragraph: Pursuant to Tennessee Supreme Court Rule 23, we accepted certification of questions of law from the United States District Court for the Western District of Tennessee. We are asked by the federal district court to construe Rule 9, section 25 of the Rules of the Supreme Court of Tennessee. Specifically, we are asked to determine whether Richard Roe, a layperson (i.e., a non-attorney), may be charged with contempt for disclosing that he filed a complaint with the Tennessee Board of Professional Responsibility against an attorney in violation of the confidentiality provision embodied in Rule 9, section 25, and if so, by whom and before what tribunal? For the reasons given herein, we answer that the confidentiality requirement of Rule 9, section 25 applies to non lawyers and lawyers alike. The appropriate sanction for a violation of Rule 9, section 25 is an action of contempt. Contempt proceedings may be initiated by the attorney against whom the complaint has been filed, the complainant, the Board of Professional Responsibility, or this Court. Finally, we hold that such a petition for contempt should be filed in this Court, whereupon assignment shall issue to a special master to conduct an evidentiary hearing. The record and findings of fact of the special master shall then be sent to this Court whereupon a determination of guilt and punishment, if any, will follow. http://www.tba.org/tba_files/TSC/roevbpr.wpd
JEFFREY EARL EDMISTEN v. KATHY HAMILTON EDMISTEN Court:TCA Attorneys: Penny Harrington, Nashville, Tennessee, for the appellant, Jeffrey Earl Edmisten. Robert Todd Jackson, Nashville, Tennessee, for the appellee, Kathy Hamilton Edmisten. Judge: COTTRELL First Paragraph: Wife sought separate maintenance and support. After a two year separation during the pendency of Wife's petition, Husband sought a divorce on the statutory ground of the separation. Wife opposed the divorce. The trial court dismissed Husband's counter-complaint, awarded Wife a legal separation, divided the marital property, and awarded alimony in futuro to Wife. Husband appeals, challenging not only the trial court's decision not to award a divorce, but also the division of marital property and award of alimony to Wife. We affirm in part, reverse in part, and modify the trial court's order. http://www.tba.org/tba_files/TCA/edmistenj.wpd
WILLIAM G. BARNETT v. STATE OF TENNESSEE Court:TCCA Attorneys: Roger Eric Nell, District Public Defender; and Collier W. Goodlett, Assistant District Public Defender, for the appellant, William G. Barnett. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner, William G. Barnett, appeals the denial of his petition for post-conviction relief. On appeal, the petitioner contends he received ineffective assistance of counsel when he pled guilty to two drug-related offenses. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/barnettwilliam.wpd

STATE OF TENNESSEE v. LYNN L. DAVIS

Court:TCCA

Attorneys:

John H. Henderson, District Public Defender; and Vanessa Pettigrew
Bryan, Assistant Public Defender, for the appellant, Lynn L. Davis.

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

Judge: GLENN

First Paragraph:

The defendant, Lynn L. Davis, pled guilty to robbery, a Class C
felony, and was sentenced as a Range II, multiple offender to eight
years in the Department of Correction.  In his appeal, he argues that
the trial court erred in failing to apply mitigating factors and in
denying alternative sentencing.  Following our review, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. TONY ALAN GARRETSON

Court:TCCA

Attorneys:

Brenda S. Bramlett, Shelbyville, Tennessee, for the appellants, Tony
Alan Garretson, Harold  Garretson, and Tonya Garretson.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael D. Randles, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

Tony Alan Garretson, along with Harold Garretson and Tonya Garretson,
sought return of numerous guns alleged to have been unlawfully seized
by law enforcement when Tony Garretson was arrested for aggravated
assault.  The trial court found: (1) Harold Garretson and Tonya
Garretson failed to establish they were the lawful owners of the guns;
and (2) the guns could not be returned to Tony Garretson because he
was convicted of aggravated assault and cannot lawfully possess a
weapon.  On appeal, the state concedes the guns were unlawfully seized
and Harold Garretson and Tonya Garretson established proper ownership.
 We reverse the judgment of the trial court and remand for another
hearing.

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

STATE OF TENNESSEE v. DAVID WAYNE SMART

Court:TCCA

Attorneys:

Jodie A. Bell (on appeal) and Glenn R. Funk (at trial and on appeal),
Nashville, Tennessee, for the appellant, David Wayne Smart.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Dan Hamm and Philip H. Wehby, Assistant District
Attorneys General, for the appellee, State of Tennessee.                           

Judge: GLENN

First Paragraph:

The defendant was convicted of first degree premeditated murder and
sentenced to life imprisonment.  In addition to challenging the
sufficiency of the evidence, he argues the trial court erred in
excluding testimony as to the victim's prior aggressive conduct, as
well as his access and familiarity with firearms, and in not
instructing as to aggravated assault as a lesser-included offense and
that the cumulative effect of these errors warrants a new trial. 
Following our review, we affirm the judgment of the trial court.

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

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