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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