Opinion Flash

July 9, 2003
Volume 9 — Number 121

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 New Opinion(s) from the Tennessee Court of Appeals
11 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


CONSOLIDATED WASTE SYSTEMS, LLC, v. SOLID WASTE REGION BOARD OF THE
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL and
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE v.
SOLID WASTE DISPOSAL CONTROL BOARD, ET AL.

Court:TCA

Attorneys:                          

Thomas G. Cross, John L. Kennedy and Daniel W. Champney, Nashville,
Tennessee, for the appellant, The Metropolitan Government of Nashville
and Davidson County.

Joe W. McCaleb, Hendersonville, Tennessee and Frank M. Fly,
Murfreesboro, Tennessee, for the intervenor/appellant, Sherard Caffey
Edington.

Thomas G. Cross, Daniel W. Champney and John L. Kennedy, Nashville,
Tennessee, for the respondent/appellee, Solid Waste Region Board of
The Metropolitan Government of Nashville and Davidson County.

James L. Murphy, III, Nashville, Tennessee, for the
petitioner/appellee, Consolidated Waste Systems, LLC.

Judge: CAIN

First Paragraph:

This appeal involves two chancery court cases concerning the proper
interpretation of Tennessee Code Annotated section 68-211-814.  From a
decision dismissing their counterclaims, the Metropolitan Government
Solid Waste Region Board and Sherard Caffey Edington appeal.  From a
decision affirming the State's issuance of a Class IV landfill permit,
the Metropolitan Government appeals.  We affirm.

http://www.tba.org/tba_files/TCA/conwaste.wpd

CHARLES GARRISON, ET AL. v. JAMES C. STAMPS

Court:TCA

Attorneys:                          

Lawrence Alan Poindexter, Lebanon, Tennessee, for the appellant, James
C. Stamps.

Frank Lannom, Lebanon, Tennessee, for the appellees, Charles Garrison
by Next Friend and Mother, Glenda Garrison, and Glenda Carol Garrison,
Individually.

Judge: CAIN

First Paragraph:

Charles Garrison and James C. Stamps were involved in an automobile
accident on October 10, 1998 wherein Garrison was seriously injured. 
Stamps was uninsured, and Garrison was beneficiary of uninsured
motorists coverage under policies of insurance issued to his parents. 
With no suit ever filed against Stamps, Garrison and his parents
reached an agreement with the uninsured motorists carriers whereby the
carriers paid the limits of their uninsured motorists coverage. 
Charles Garrison being a minor, a Petition for court approval of the
settlement was filed naming Stamps as the defendant, and an Order was
entered approving the settlement.  Garrison then filed suit against
Stamps, which suit was met with a Summary Judgment Motion by Stamps
claiming that he was released from liability by the settlement Order. 
Garrison filed a Tennessee Rule of Civil Procedure  60.02 Motion
seeking to have the settlement Order revised to reflect the true facts
of the settlement.  This Motion was granted, and Stamps appeals.  We
hold that Stamps is without standing to assert any rights under the
settlement Order and, on this basis, affirm the judgment.

http://www.tba.org/tba_files/TCA/garrisoncharles.wpd

HAREN CONSTRUCTION COMPANY, INC. v. THE METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY

Court:TCA

Attorneys:                          

Philip E. Beck and William L. Barrett, Jr., Atlanta, Georgia, for the
appellant, Haren Construction Company, Inc.

Thomas G. Cross and Jennifer C. Surber, Nashville, Tennessee, for the
appellee, The Metropolitan Government of Nashville and Davidson
County.

Judge: CAIN

First Paragraph:

This appeal involves a contract between the Appellant Haren
Construction Company, Inc. (HCCI) and the Appellee Metropolitan
Government (Metro).  The construction company brought suit claiming
Metro breached its contract with HCCI in "constructive suspension" of
work.  In addition the construction company claimed that Metro
interfered with the company's contract for equipment supply from a
third party.  The trial court granted Metro's two motions for summary
judgment, the first concerning Metro's alleged liability under the
Governmental Tort Liability Act, the second concerning the action for
breach of contract.  HCCI appeals the grant of summary judgment.  We
affirm.

http://www.tba.org/tba_files/TCA/harenconstruction.wpd

IN THE MATTER OF K.J.K.

Court:TCA

Attorneys:
                          
Paul G. Summers, Attorney General & Reporter; Douglas Earl Dimond,
Assistant Attorney General, for the appellant, State of Tennessee,
Department of Children's Services.

Glen A. Isbell, Winchester, Tennessee, for the appellee, A.K.

Judge: CAIN

First Paragraph:

In this unusual appeal, the State seeks review of the trial court's
Order granting the appellee Mother's Petition for Contempt.  We
reverse the trial court's finding of criminal contempt and award of
visitation.

http://www.tba.org/tba_files/TCA/kjk.wpd

ALAN MILLER, ET AL. v. CITY OF MURFREESBORO, ET AL.

Court:TCA

Attorneys:                          

Susan Emery McGannon, Murfreesboro, Tennessee, for the appellant, City
of Murfreesboro.

Terry A. Fann, Murfreesboro, Tennessee, for the appellees, Alan
Miller, Ken Roberts and John Singleton.

Judge: CAIN

First Paragraph:

In this retaliatory demotion case, the City of Murfreesboro appeals
the action of the trial court in denying a Motion for Summary Judgment
as to all issues.  We find no material evidence in the record to
establish that the articulated reason for the demotion of these three
police officers, all of whom are established by the record to be
honest and competent officers, is pretextual.  The judgment of the
trial court is reversed, and summary judgment entered for Defendant as
to all issues.

http://www.tba.org/tba_files/TCA/milleralan.wpd

NEW COVENANT BAPTIST CHURCH v. PANTHER SARK, ET AL.
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Thomas M. Hale, Knoxville, Tennessee, for the Appellants, Panther
Sark, Carter Rome Eddleman Real Estate, LLC, Subland, LLC, and Koontz,
Loy & Taylor, LLC

George W. Morton, Knoxville, Tennessee, for the Appellee, New Covenant
Baptist Church

Judge: GODDARD

First Paragraph:

The origin of this appeal was a suit for declaratory judgment filed by
New Covenant Baptist Church against Panther Sark, Carter Rome Eddleman
Real Estate, LLC, Vincon, LLC, Subland, LLC, Rufus H. Smith & Co.,
John T. Hart, and Koontz, Loy & Taylor, LLC, owners of property in the
Technology Park West Subdivision in Knox County.  The suit sought a
declaration that the restrictive covenants applicable to the
subdivision did not preclude the church from using it as an entrance
driveway to a new church the membership proposed to build on adjacent
property.  The Trial Court found that such use would not be a
violation of any restrictive covenant.  This determination was
appealed and, by an opinion of this Court filed in Knoxville on
February 28, 2002, we reversed the Trial Court's determination and
held the lot owned by New Covenant could not be used in such a manner.
 Upon remand the Defendants moved to recover their attorney fees
pursuant to a restrictive covenant as to lots in the subdivision.  The
Trial Court found in favor of New Covenant, resulting in this appeal. 
We affirm.

http://www.tba.org/tba_files/TCA/newcove_opn.wpd

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/newcove_dis.wpd

SHELLEY SACKETT v. HAL ROSEMAN

Court:TCA

Attorneys:                          

Larry Hayes, Jr., Nashville, Tennessee, for the appellant, Shelley
Sackett.

Gregory D. Smith, Nashville, Tennessee, for the appellee, Hal Roseman

Judge: CAIN

First Paragraph:

This interlocutory appeal was brought to determine whether the trial
court properly exercised subject matter jurisdiction pursuant to the
Uniform Child Custody Joint Enforcement Act (UCCJEA).

http://www.tba.org/tba_files/TCA/sackett.wpd

STATE OF TENNESSEE v. GENE BOOKER

Court:TCCA

Attorneys:                          

Edwin C. Lenow, Memphis, Tennessee, for the appellant, Gene Booker.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Stephen P. Jones, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Appellant was convicted of aggravated robbery by a jury in the
Criminal Court for Shelby County, and the trial court sentenced him to
sixteen years of confinement as a Range II Multiple Offender.  The
Appellant raises the following issues on appeal:  (1) whether
sufficient evidence was presented at trial to convict the Appellant of
the charged offense, and (2) whether the trial court erred in failing
to charge the jury on the lesser-included offenses of robbery and
theft.  Finding no reversible error, we affirm the judgment of the
trial court.

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

TERRELL BURGESS v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Robert Little, Maplewood, New Jersey, for the appellant, Terrell
Burgess.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William L. Gibbons, District Attorney
General; James Morton Lammey, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Terrell Burgess, appeals the Shelby County Criminal
Court's denial of his petition for post-conviction relief from his
guilty pleas to first degree felony murder, aggravated robbery, and
two counts of aggravated assault and his resulting effective sentence
of life plus ten years in the Department of Correction (DOC).  He
contends (1) that he received the ineffective assistance of counsel
and (2) that his attorney coerced him into pleading guilty.  We affirm
the trial court's denial of the petition.

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

STATE OF TENNESSEE v. ERICA J. HARTWELL

Court:TCCA

Attorneys:                          

C. Michael Robins, Massey, McClusky & Robbins, Memphis, Tennessee, for
appellant, Erica J. Hartwell.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Elizabeth Rice, District Attorney General,
for appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

In this appeal the appellant, Erica J. Hartwell, contends that the
Circuit Court of Tipton County, Tennessee, erred in denying her a writ
of certiorari to review and vacate the orders of the Tipton County
General Sessions Court revoking the appellant's probation.  She
maintains that the general sessions court conducted the probation
revocation hearing without proper notice and without informing her of
her right to an attorney at the hearing and her right to appeal.  We
hold that under the circumstances the writ of certiorari is not
available.  The judgment of the circuit court is therefore AFFIRMED.

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

STATE OF TENNESSEE v. LAWRENZO MENTON 

Court:TCCA

Attorneys:                          

Brett B. Stein, Memphis, Tennessee, for the appellant, Lawrenzo
Menton.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Betsy Carnesale, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant was indicted for two counts of aggravated robbery and
two counts of aggravated kidnapping.  Following a trial, the Defendant
was convicted of two counts of aggravated robbery and two counts of
simple kidnapping.  The trial court sentenced the Defendant as a Range
I, standard offender to twelve years' incarceration for each
aggravated robbery conviction and to six years' incarceration for each
kidnapping conviction.  It ordered that the sentences for aggravated
robbery be served consecutively and that the sentences for kidnapping
be served concurrently with each other and with the aggravated robbery
sentences.  In this appeal as of right, the Defendant argues (1) that
insufficient evidence was presented to support his convictions; (2)
that the trial court erred by consolidating the separate counts for
trial; and (3) that the trial court erred by ordering him to serve his
sentences for aggravated robbery consecutively.  We affirm the
Defendant's convictions.  However, we reverse the trial court's
imposition of consecutive sentences and remand to the trial court
solely for its determination, consistent with this opinion and the
factors set forth in Tennessee Code Annotated S 40-35-115, of its
basis for imposing consecutive sentences.

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

STATE OF TENNESSEE v. TIMOTHY MURRELL

Court:TCCA

Attorneys:                          

Didi Christie, Brownsville, Tennessee, for the appellant, Timothy
Murrell.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and Shaun Brown, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant (defendant), Timothy Murrell, was convicted by a Madison
County jury of the offenses of possession of cocaine with the intent
to sell, possession of cocaine with intent to deliver, and possession
of drug paraphernalia.  The two (2) felonious possession of cocaine
convictions were merged.  The trial court sentenced the defendant to
twenty (20) years in the Department of Correction for these offenses
and eleven months and twenty-nine days for the drug paraphernalia
conviction.  These sentences were to run concurrently for a total
effective sentence of twenty years.  In this appeal the defendant
raises five issues for our review: (1) whether the evidence is
sufficient to support the convictions for felonious possession of
cocaine; (2) whether the trial court erred in declining to give the
jury a missing witness instruction; (3) whether the trial court erred
in allowing police officers to testify that the cocaine found in the
defendant's possession was for re-sale; (4) whether the trial court
erred in refusing to admit certain evidence for impeachment; and (5)
whether the trial court erred in declining to apply a mitigating
factor offered by the defendant at sentencing.  After a thorough
review of the record and applicable authorities, we find no reversible
error.  Therefore, the judgments of the trial court are AFFIRMED.

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

STATE OF TENNESSEE v. TOMMY FRANKLIN POE

Court:TCCA

Attorneys:                          

Didi Christie, Brownsville, Tennessee, for the Appellant, Tommy
Franklin Poe.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Jerry W. Norwood,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Tommy Franklin Poe, pled guilty to second degree
murder, a class A felony, and was sentenced to twenty-five years to be
served at 100% in the Department of Correction.  In addition, the
trial court ordered that this sentence be served consecutively to "any
unserved sentence."  On appeal, Poe contends that his sentence was
improper because the trial court's decision provides no rationale for
imposition of consecutive sentences or for service of his sentence at
100%.  Finding no error, the judgment of the McNairy County Circuit
Court is affirmed.

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

STATE OF TENNESSEE v. MAURICE PRUITT

Court:TCCA

Attorneys:                          

Harold R. Guinn, Humboldt, Tennessee, for the appellant, Maurice
Pruitt.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Edward L. Hardister, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Maurice Pruitt, appeals from his conviction by a jury
in the Gibson County Circuit Court for the sale of one-half gram or
more of cocaine, a Class B felony.  The trial court sentenced him as a
Range II, multiple offender to eighteen years in the Department of
Correction to be served consecutively to a ten-year sentence from
another county.  The defendant contends that (1) the pretrial
identification procedures were suggestive and violated due process and
(2) the trial judge erred by entering the jury room.  We affirm the
judgment of conviction.

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

STATE OF TENNESSEE v. ALORRA D. PUCKETT
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Ardena J. Garth, District Public Defender; and Donna Robinson Miller
(on appeal) and Lorrie Dawn Miller (at hearing), Assistant District
Public Defenders, for the appellant, Alorra D. Puckett.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Carl Thomson Huskins, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

In a certified question of law, the defendant challenges the traffic
stop that resulted in her plea of nolo contendere to DUI, first
offense.  We hold the stop was unlawful and reverse the trial court's
judgment.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/puckettalorrad_dis.wpd

STATE OF TENNESSEE v. JOSEPH HAROLD RUCKER

Court:TCCA

Attorneys:                          

Joe H. Walker, Harriman, Tennessee (on appeal); and Walter B. Johnson,
II, Harriman, Tennessee (at trial and on appeal); for the Appellant,
Joseph Harold Rucker.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; and Frank Harvey, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Joseph Harold Rucker, appeals the Roane County Criminal
Court's imposition of a 23-year Department of Correction sentence for
the second-degree murder of his girlfriend, Tommy Jean Trinkle. 
Because we determine that the length of the Class A, Range I sentence
is supported in the record, we affirm.

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

STATE OF TENNESSEE v. CALVIN SCOTT

Court:TCCA

Attorneys:                          

Robert Wilson Jones, Shelby County Public Defender; W. Mark Ward,
Assistant Shelby County Public Defender, Memphis, Tennessee, for the
Appellant, Calvin Scott.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Glen Baity,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES
 
First Paragraph:

The Appellant, Calvin Scott, was found guilty by a Shelby County jury
of aggravated robbery, two counts of especially aggravated robbery,
and two counts of first degree murder.  The trial court sentenced
Scott to an effective sentence of life plus twenty-two years.  In this
appeal as of right, Scott raises the following issues for our review:
(1) whether the State asserted sufficient race-neutral explanations to
support its exercise of peremptory challenges against four
African-American jurors; and (2) whether the trial court, after
concluding that the State's exercise of a peremptory challenge was
improper, should have dismissed the entire panel rather than reseating
the juror.  We conclude that the State's use of its peremptory
challenges was proper, and the trial court did not err by reseating
the challenged juror.  Accordingly, the judgment of the trial court is
affirmed.

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

STATE OF TENNESSEE v. ERIC JAMES TAYLOR, ALIAS

Court:TCCA

Attorneys:                          

Susan Shipley, Knoxville, Tennessee, for the appellant, Eric James
Taylor.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and Randall E. Nichols, District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Eric James Taylor, Alias, was convicted by a jury of
first degree premeditated murder and aggravated assault.  The
Defendant now appeals as of right from his murder conviction, alleging
seven errors:  (1) the trial court should have allowed him to
cross-examine a prosecution witness about pending theft charges; (2)
the trial court should have instructed the jury about the State's duty
to preserve evidence; (3) the prosecutor impermissibly shifted the
burden of proof to the Defendant during closing argument; (4) the
trial court should have instructed the jury on the lesser- included
offense of vehicular homicide; (5) the trial court should have allowed
him to cross-examine a prosecution witness about the victim's
pre-offense surgery; (6) the evidence is not sufficient to support his
murder conviction; and (7) a police officer testifying for the State
improperly referred to prior contacts with the Defendant.  Finding no
merit to the Defendant's contentions, we affirm the judgment of the
trial court.

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

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