Opinion Flash
May 27, 2003
Volume 9 — Number 095
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):
| 01 |
New Opinion(s) from the Tennessee Supreme Court |
| 01 |
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 |
| 08 |
New Opinion(s) from the Tennessee Court of Criminal Appeals |
| 02 |
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
STATE OF TENNESSEE v. JERRY BAXTER GRAVES
Court:TSC
Attorneys:
Jerry B. Graves, Pikeville, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Angele M. Gregory, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Scott G. Green,
Assistant District Attorney General, for the appellee, State of
Tennessee.
Judge: ANDERSON
First Paragraph:
We granted review to determine whether the trial court properly
refused to dismiss the indictment and allow a second preliminary
hearing where the first preliminary hearing was not recorded as
required by Rule 5.1(a) of the Tennessee Rules of Criminal Procedure.
The Court of Criminal Appeals concluded that the violation of Rule
5.1(a) did not prejudice the defendant and affirmed the convictions
and sentences for felony murder and especially aggravated robbery.
After reviewing the record and applicable authority, we hold that the
failure to preserve an electronic recording or its equivalent of a
preliminary hearing under Rule 5.1(a) requires the dismissal of the
indictment and a remand for a new preliminary hearing unless the State
establishes (1) that all material and substantial evidence that was
introduced at the preliminary hearing was made available to the
defendant and (2) that the testimony made available to the defendant
was subject to cross- examination. Because this standard has been
satisfied in the present case, we affirm the Court of Criminal
Appeals' judgment.
http://www.tba.org/tba_files/TSC/gravesj_opn.wpd
STATE OF TENNESSEE v. JERRY BAXTER GRAVES
Court:TSC
HOLDER CONCURRING
http://www.tba.org/tba_files/TSC/gravesj_con.wpd
BARBARA PRITCHETT V. WAL-MART STORES, INC., LARRY BRINTON, JR.,
DIRECTOR OF THE DIVISION OF WORKERS' COMPENSATION CLAIMS, and
TENNESSEE DEPARTMENT OF LABOR, SECOND INJURY FUND
Court:TSC - Workers Comp Panel
Attorneys:
David H. Dunway, David H. Dunway & Associates, LaFollette, Tennessee,
for the Appellant, Barbara Pritchett.
Terry L. Bernal, Allen, Kopet & Associates, Chattanooga, Tennessee,
for the Appellee, Wal-Mart Stores, Inc.
Judge: PEOPLES
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
S 50-6-225(e) for hearing and reporting of findings of fact and
conclusions of law. The employee appeals the dismissal of her claim
for workers' compensation benefits asserting that the trial court
erred in admitting findings of the Social Security Administration, and
in finding that her injury was non-compensable. We affirm.
http://www.tba.org/tba_files/TSC_WCP/pritchttb.wpd
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/certlist_0527_2003.wpd
CYNTHIA MITCHELL BARNETT v. BARBARA NAN BEHRINGER, et al.
Court:TCA
Attorneys:
D. Kirk Shaffer and Christine J. Laird, Nashville, Tennessee, for the
appellant, Cynthia Mitchell Barnett.
Beth A. Dunning, Nashville, Tennessee, for the appellees, Barbara Nan
Behringer, Cheryl Williams, and Michael Williams.
Judge: KOCH
First Paragraph:
This appeal involves a dispute between the owners of units in a duplex
arising out of the plans of one owner's tenants to build a
free-standing storage building on her lot. The owner who opposed the
storage building filed suit in the Chancery Court for Davidson County
seeking an injunction against violating restrictive covenants and
zoning regulations, as well as damages for trespass. The trial court
granted the defendant owner's and tenants' motion for summary judgment
and dismissed the complaint. On this appeal, the owner who objected
to the storage building asserts that material factual disputes should
have prevented the trial court from granting the summary judgment and
that her neighbor and her neighbor's tenants had not demonstrated that
they were entitled to a judgment as a matter of law. We have
determined, as a matter of law, that the proposed storage building
does not violate the restrictive covenants or applicable zoning
regulations and that the plaintiff is not entitled to injunctive
relief. Accordingly, we affirm the summary judgment dismissing the
complaint.
http://www.tba.org/tba_files/TCA/barnettcm.wpd
PATRICIA CONLEY, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF MARTHA STINSON, DECEASED v. STATE OF TENNESSEE
Court:TCA
Attorneys:
Gene Hallworth, Columbia, TN, for Appellant
Paul G. Summers, Attorney General & Reporter, Michael E. Moore,
Solicitor General, Martha A. Campbell, Senior Counsel, Nashville, TN,
for Appellee
Judge: HIGHERS
First Paragraph:
This is an appeal from the Claims Commission. The Claims Commissioner
dismissed both claims alleged by Ms. Conley on the motion of the
State. Additionally, the Claims Commissioner found that the State is
not a governmental entity for the purposes of Tennessee Code Annotated
section 20-1-119(g). For the following reasons, we reverse and remand.
http://www.tba.org/tba_files/TCA/conleypatricia.wpd
EILEEN WILSON DUNLOY v. BRIAN EDWARD DUNLOY
Court:TCA
Attorneys:
James G. Martin, III and Gregory D. Smith, Nashville, Tennessee, for
the appellant, Brian E. Dunloy.
Jeffrey L. Levy, Nashville, Tennessee, for the appellee, Eileen Wilson
Dunloy.
Judge: COTTRELL
First Paragraph:
This appeal involves a dispute over the interpretation of a provision
in a marital dissolution agreement dealing with the method of
distribution of the husband's defined benefit plan. The trial court
interpreted the provision as calling for deferred distribution
pursuant to the coverture fraction method. The husband appeals
arguing that the net present value method, rather than the deferred
distribution method, is proper. We reverse the trial court.
http://www.tba.org/tba_files/TCA/dunloye_opn.wpd
EILEEN WILSON DUNLOY v. BRIAN EDWARD DUNLOY
Court:TCA
CAIN DISSENTING
http://www.tba.org/tba_files/TCA/dunloye_dis.wpd
FIRST CITIZENS NATIONAL BANK AS TRUSTEE FOR THE TRUST ESTATE OF WILL
WRAY v. JANIECE WRAY
Court:TCA
Attorneys:
Jason L. Hudson, John W. Palmer, Dyersburg, Tennessee, for appellant,
First Citizens National Bank as Trustee for the Trust Estate of Will
Wray.
Michael D. Fitzgerald, Nashville, Tennessee, for appellee, Janiece
Wray.
Judge: LILLARD
First Paragraph:
This case involves a trust. The decedent established a trust in his
will. His son-in-law and a bank were designated as co-trustees. A
parcel of property with a home was placed into the trust. The trust
allowed one of the beneficiaries, the decedent's grandson, and his
wife to live in the house at no charge. The beneficiary and his wife
divorced, and as part of their marital dissolution agreement, the
beneficiary gave his ex-wife his possessory interest in the home, at
no charge. The son-in- law/trustee died, leaving the bank as the sole
trustee. The bank required the ex-wife to begin paying rent; she
declined. The bank then filed the instant lawsuit against the ex-wife
for past rent from the time they first requested rent from her, and
also a declaratory judgment permitting the bank to sell the home. The
trial court found that the trustees ratified the terms of the MDA
between the beneficiary and the ex-wife, allowing her to remain in the
home rent-free until the trust expired. The bank appeals. We
reverse, finding that the trustees could not ratify the MDA, a
contract to which the trust was not a party.
http://www.tba.org/tba_files/TCA/firstcitizens1.wpd
STATE OF TENNESSEE, EX REL MOORE & ASSOCIATES, INC. v. TERRENCE L.
COBB, DIRECTOR OF CODES ADMINISTRATION OF THE METROPOLITAN GOVERNMENT
OF NASHVILLE AND DAVIDSON COUNTY
Court:TCA
Attorneys:
Eugene N. Bulso, Jr., Joseph G. DeGaetano, Nashville, TN, for
Appellant
Karl F. Dean, Director of Law, Daniel Champney, Kelli Haas, John L.
Kennedy, Metropolitan Attorneys, Nashville, TN, for Appellee
Judge: HIGHERS
First Paragraph:
This is an appeal of a denial of a writ of mandamus. Moore &
Associates requested the lower court to require the Department of
Codes Administration to issue an occupancy permit for the Hilton
Garden Inn pursuant to the Metropolitan Code, Title 16, Chapter 36,
Section 020(A). The Department of Codes Administration refused to
issue the occupancy permit for the building because it felt that the
landscape buffer yard did not comply with plans submitted. The trial
court agreed with the Department and found that the term "building"
includes the landscape buffer yard. For the following reasons, we
reverse.
http://www.tba.org/tba_files/TCA/moore.wpd
RUSSELL WELLINGTON v. STATE OF TENNESSEE
Court:TCA
Attorneys:
Russell Wellington, Nashville, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Pamela S. Lorch, Assistant Attorney General, for
appellee, State of Tennessee.
Judge: COTTRELL
First Paragraph:
Inmate appeals the trial court's order dismissing his lawsuit for
failure to prosecute. Because the State had been granted a transfer
of this case from the Claims Commission for the purpose of
consolidating it with another case pending in the trial court, but
took the position in this appeal that no consolidation had occurred,
we vacate the dismissal and remand.
http://www.tba.org/tba_files/TCA/welling.wpd
JASON LEWIS ADAMS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Melanie R. Snipes, Chattanooga, Tennessee, for the appellant, Jason
Lewis Adams.
Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Parke Masterson, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
On January 5, 2001, the petitioner pled guilty to filing a false
police report, aggravated burglary, theft over $1000, vandalism,
carjacking, two counts of especially aggravated kidnapping, and two
counts of aggravated robbery and received a fifteen-year sentence. On
February 2, 2001, he filed a motion to withdraw his guilty pleas,
which was determined to be untimely and was treated as a petition for
post-conviction relief. Because of the subsequent decision of our
supreme court in State v. Green, __ S.W.3d __ (Tenn. 2003), we
conclude that the petitioner's motion to withdraw his pleas of guilty
was timely and should have proceeded pursuant to Tennessee Rule of
Criminal Procedure 32(f), Withdrawal of Plea of Guilty. We reverse
the order of the post-conviction court and remand for the petitioner's
motion to withdraw his pleas of guilty to be considered as timely.
http://www.tba.org/tba_files/TCCA/adamsjasonl.wpd
STATE OF TENNESSEE v. JEFFERY W. ALEXANDER
Court:TCCA
Attorneys:
Paul Simpson, Selmer, Tennessee (at trial); and Didi Christie,
Brownsville, Tennessee (on appeal), for the Appellant, Jeffery W.
Alexander.
Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Jerry W. Norwood, Assistant District Attorney General,
for the Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
Convicted of burglary and theft of property valued at more than $1,000
but less than $10,000, the defendant, Jeffery W. Alexander, claims on
appeal that the convictions are unsupported by sufficient evidence,
that the trial court erred in admitting copies of photographs of the
crime scene, and that the trial court erroneously sentenced him as a
career offender. Because our review of the record, the briefs, and
the applicable law exposes no reversible error, we affirm.
http://www.tba.org/tba_files/TCCA/alexan.wpd
CHRISTOPHER CURRY v. FRED RANEY, WARDEN
Court:TCCA
Attorneys:
Christopher Curry, Tiptonville, Tennessee, pro se.
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; C. Phillip Bivens, District Attorney
General; and Marcia Fogle, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The petitioner, Christopher Curry, filed in the Lake County Circuit
Court a pro se petition for writ of habeas corpus, alleging that his
confinement was illegal due to the expiration of his sentence. The
habeas corpus court summarily dismissed the petition and the
petitioner appealed. Upon review of the record and the parties'
briefs, we reverse the dismissal of the petition for habeas corpus
relief and remand to the habeas corpus court for the appointment of
counsel and an evidentiary hearing to determine whether the
petitioner's sentence has expired.
http://www.tba.org/tba_files/TCCA/curryc.wpd
STATE OF TENNESSEE v. CLINT RAY MCCOY
Court:TCCA
Attorneys:
Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Clint
Ray Moody.
Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; Robert Radford, District Attorney General;
and Steven L. Garrett, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Clint Ray McCoy, pled guilty to twelve counts of theft:
one Class C felony, nine Class D felonies, one Class E felony, and one
Class A misdemeanor. Sentencing was left to the discretion of the
trial court. The trial court ordered the Defendant to serve an
effective sentence of eight years, with one year to be served in
confinement and the balance to be served in the Community Corrections
program. In this direct appeal, the Defendant argues that the trial
court erred by enhancing his sentences and by ordering him to serve
one year in confinement. We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/mccoycr.wpd
TERRY LEE VESTAL v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Donnie W. Knott, Milan, Tennessee, attorney for the appellant, Terry
Lee Vestal.
Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; and Elizabeth T. Rice, District Attorney
General Pro Tem, for the appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The petitioner, Terry Lee Vestal, was convicted by a jury in the
Gibson County Circuit Court of rape of a child, a Class A felony. The
trial court sentenced the petitioner as a Range I standard offender to
twenty-five years in the Tennessee Department of Correction.
Following an unsuccessful appeal of his conviction, the petitioner
filed a petition for post-conviction relief, alleging, among other
grounds, ineffective assistance of counsel. The petitioner now brings
this appeal challenging the post-conviction court's denial of his
petition for relief. Upon review of the record and the parties'
briefs, we affirm the judgment of the post-conviction court. However,
we note that the judgment of conviction reflects that the petitioner
was sentenced as a Range I standard offender with a release
eligibility of thirty percent (30%). Because a child rapist must
serve one hundred percent (100%) of his sentence with no potential for
earning sentence reduction credits, we remand for the correction of
the judgment of conviction. Tenn. Code Ann. S 39-13-523(c)-(d)
(1997).
http://www.tba.org/tba_files/TCCA/vestaltl.wpd
STATE OF TENNESSEE v. BRIAN WEBB
Court:TCCA
Attorneys:
Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and Ronald C. Newcomb, Assistant District Attorney General,
for the appellant, State of Tennessee.
Susanna Laws Thomas, Newport, Tennessee (on appeal) and William M.
Leibrock, Newport, Tennessee (at trial) and Tim Moore, Newport,
Tennessee (at trial) for the appellee, Brian Webb.
Judge: WOODALL
First Paragraph:
The State appeals the ruling of the Cocke County Circuit Court
amending its judgments pertaining to the sentencing of Defendant,
Brian Webb, pursuant to Rule 36 of the Tennessee Rules of Criminal
Procedure. Under the terms of a plea agreement involving Defendant's
four theft convictions in Cocke and Jefferson counties, the trial
court sentenced Defendant on January 8, 2001 to an effective
three-year sentence to be served concurrently with Defendant's federal
sentence of twenty-four months arising out of the same incident. The
trial court's judgment was entered on January 30, 2001 following
Defendant's incarceration in federal prison on January 29, 2001. On
August 22, 2002, Defendant filed a motion to correct a mistake in the
trial court's judgment. After a brief hearing, the trial court
granted Defendant's motion and ordered that Defendant's state
sentences be modified to time served and the balance served on
probation to reflect the trial court's understanding at the time of
sentencing that Defendant's sentences would run "coterminous" rather
than "concurrently" with his federal sentence. The State argues that
the record in this matter does not contain any clerical errors, and
the trial court was without jurisdiction to modify Defendant's
sentence. After a careful review of this matter, we reverse the
judgment of the trial court, and this case is remanded for
reinstatement of the judgments of conviction as originally entered.
http://www.tba.org/tba_files/TCCA/webbbrian.wpd
STATE OF TENNESSEE v. STEVE A. WHITE
Court:TCCA
Attorneys:
James S. Haywood, Jr., Brownsville, Tennessee (on appeal), and Mark
Mesler and Loys A. Jordan, Memphis, Tennessee (at trial), for the
appellant, Steve A. White.
Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and James M. Lammey, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The defendant, Steve A. White, was convicted by a Shelby County
Criminal Court jury of attempted first degree premeditated murder, a
Class A felony; theft of property valued $10,000 or more but less than
$60,000, a Class C felony; and violating the sales tax law, a Class E
felony. The trial court sentenced the defendant as a Range I,
standard offender to an effective sentence of thirty-one years in the
Department of Correction. The defendant appeals, claiming (1) that
the evidence is insufficient; (2) that the trial court erred by
denying his motion for a bill of particulars; (3) that the trial court
erred by denying his motion to exclude evidence; (4) that the trial
court erred by failing to instruct the jury after the prosecution
asked a witness an inappropriate question; (5) that the trial court
improperly excluded impeachment evidence; (6) that the trial court
made several errors regarding the victim's testimony; (7) that the
trial court improperly restricted the defense expert's testimony; and
(8) that the trial court improperly allowed the state to make
inappropriate comments during its closing argument. We affirm the
judgments of the trial court.
http://www.tba.org/tba_files/TCCA/whitest.wpd
STATE OF TENNESSEE v. JEREMIAH WISEMAN
Court:TCCA
Attorneys:
Jake Erwin, Memphis, Tennessee, for the Appellant, Jeremiah Wiseman.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paul Hagerman,
Assistant District Attorney General, for the Appellee, State of
Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Jeremiah Wiseman, pled guilty to carjacking, a class B
felony, and was sentenced as a mitigated offender to the Department of
Correction for a term of 7.2 years. On appeal, the Appellant argues
that the trial court erred by denying him a probated sentence.
Finding no error in the record, we affirm.
http://www.tba.org/tba_files/TCCA/wiseman.wpd
Lottery Scholarships; Home Schooled Students
Date: May 20, 2003
Opinion Number: 03-065
http://www.tba.org/tba_files/AG/2003/OP65.pdf
State lottery -- use of unclaimed prize money and proceeds of privilege
tax
Date: May 22, 2003
Opinion Number: 03-066
http://www.tba.org/tba_files/AG/2003/OP66.pdf
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