Opinion Flash

July 16, 2003
Volume 9 — Number 126

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
12 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


RUSSELL GREGORY, III v. MARY FISHER GREGORY

Court:TCA

Attorneys:                          

William M. Monroe, Memphis, TN, for Appellant

Alicia A. Howard, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal arises from a divorce and custody proceeding.  The trial
court found it to be in the best interest of the child that the father
be granted primary custody of the parties' minor daughter.  The
primary issue on appeal is whether the trial court erred in applying
the best interest analysis.  For the following reasons, we affirm.

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

JERRY LEE HARBIN v. CHRIS MARIE HARBIN 

Court:TCA

Attorneys:                          

Chris Marie Harbin, Appellant, Pro Se

Barbara S. Arthur, Rossville, Georgia, for the Appellee, Jerry Lee
Harbin

Judge: GODDARD

First Paragraph:

Chris Marie Harbin appeals a judgment entered by the Circuit Court for
Hamilton County which decreed that the parties were divorced, awarded
custody of their three minor children to their father, Jerry Lee
Harbin, affirmed a visitation plan proposed by Mr. Harbin, which she
signed, and ordered Mr. Harbin to pay token alimony ($1.00 per month)
to her.  She appeals the judgment of the Court.  We affirm.

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

LILLIAN ANNETTE MUMFORD v. JOE LESLIE MUMFORD

Court:TCA

Attorneys:                          

Douglas J. Toppenberg, Knoxville, Tennessee, for the Appellant,
Lillian Annette Mumford.

Joe Leslie Mumford, Knoxville, Tennessee, pro se Appellee.

Judge: SWINEY

First Paragraph:

After five years of marriage, Lillian Annette Mumford ("Wife") filed
for a divorce from Joe Leslie Mumford ("Husband").  Husband also filed
for a divorce.  The Trial Court bifurcated the trial separating the
issues of divorce and property division.  During the first portion of
the bifurcated trial, the Trial Court heard fault proof and in its
order entered March 19, 2002, found that both parties were entitled to
a divorce and declared the parties divorced pursuant to Tenn. Code
Ann. S 36-4-129.  Wife appeals.  We affirm.

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

LISA KAY ROGERS v. RICHARD BARRETT ROGERS

Court:TCA

Attorneys:                          

William M. Monroe, Memphis, Tennessee, for Appellant.

Phillip C. Lawrence, Chattanooga, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

In this divorce action, the Trial Court divided marital property and
awarded child support and rehabilitative alimony.  Both parties raise
issues on appeal.  We affirm, as modified.

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

LAFEYETTE ROMINE, SR., & DEBRA P. ROMINE v. JULIA FERNANDEZ, CRNA &
JOHNATHAN ISOM, M.D.
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Teresa J. Sigmon, Claire M. Cissell, Memphis, TN, for Appellants

Dixie White Ishee, Memphis, TN, for Appellees

Judge: HIGHERS

First Paragraph:

In this medical malpractice action, Defendants appeal the trial
court's decision allowing Plaintiffs to use Tennessee Code Annotated
section 20-1-119 to add two new defendants after the one year statute
of limitations had expired.  Defendants also appeal the trial court's
award of damages.  For the following reasons, we affirm.

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

JOHN RUFF v. RALEIGH ASSEMBLY OF GOD CHURCH, INC., ET AL.

Court:TCA

Attorneys:                          

John Ruff, pro se, Memphis, TN

Evan Nahmias, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal arises from a complaint filed by the plaintiff, John Ruff
("Mr. Ruff"), in the Circuit Court at Shelby County against the
defendant, Raleigh Assembly of God Church, Inc. ("the church"), for
assault, battery, false imprisonment and intentional infliction of
emotional distress.  At the conclusion of the trial, the trial court
entered judgment in favor of the church.  The parties raise multiple
issues on appeal.  For the following reasons, we affirm in part and
remand.

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

UNION PLANTERS BANK, N.A., Executor and Trustee v. BOBBYE C. SHEPARD,
ET AL.

Court:TCA

Attorneys:                          

Robert F. Miller and Paul C. Peel, Memphis, Tennessee, for the
appellant, Union Planters National Bank, N.A.

J. Richard Rossie and David A. Billions, Memphis, Tennessee, for the
appellee, Bobbye C. Shepard.

Judge: FARMER

First Paragraph:

Executor brought this action to recover proceeds of the sale of
decedent's property prior to decedent's death.  Both parties moved for
attorney's fees.  The trial court entered judgment for Defendant and
awarded Defendant's attorney's fees.  On issues relating to decedent's
property, we affirm in part and reverse in part.  We reverse the award
of attorney's fees and remand for a determination of reasonableness.

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

DONALD McARTHUR CARVER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Tim S. Moore, Newport, Tennessee, for the appellant, Donald McArthur
Carver.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and James B. Dunn, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WILLIAMS
 
First Paragraph:

The petitioner appeals the denial of his petition for post-conviction
relief.  He contends that he accepted his plea bargain on the
condition that he would serve his ten-year sentence in the county
jail.  No such agreement was contained in the plea agreement or
announced in open court.  However, the testimony is overwhelming that
trial counsel gave assurances to the petitioner that, unless his
medical condition changed or he was a discipline problem, he would be
allowed to serve his ten-year sentence in the county jail.  We
conclude the advice and assurances given by trial counsel were
erroneous, as contrary to the law.  But for said advice and
assurances, the petitioner would not have pled guilty.  We reverse the
post-conviction court's denial of relief, allow the petitioner to
withdraw his guilty plea, and remand for new trial.

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

STATE OF TENNESSEE v. AUBREY A. DAVIS

Court:TCCA

Attorneys:                          

Ardena J. Garth, District Public Defender; Donna Robinson Miller,
Assistant District Public Defender (on appeal); and Charles G. Wright,
Jr., Chattanooga, Tennessee (at trial), for the appellant, Aubrey A.
Davis.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and John H. Millican and Thomas E. Kimball, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

A jury found the defendant guilty of especially aggravated kidnapping
and attempted aggravated sexual battery.  The trial court sentenced
him to concurrent terms of twenty-two years for the especially
aggravated kidnapping and three years for the attempted aggravated
sexual battery.  On appeal, the defendant contends the trial court
erred in allowing him to be convicted of both especially aggravated
kidnapping and attempted sexual battery, since both crimes arose from
a single act.  Additionally, the defendant argues that the trial court
erred in charging the jury as to the mens rea element of attempted
aggravated sexual battery, erred in not suppressing a photograph
identification, and erred in sentencing him to twenty-two years for
the especially aggravated kidnapping.  We find no errors in the trial
court's rulings and affirm the judgments of the trial court on both
convictions. However, we conclude the trial court misapplied
aggravating and mitigating factors in sentencing the defendant for the
especially aggravated kidnapping and modify the sentence accordingly.

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

STATE OF TENNESSEE v. STEVEN RAY HICKS

Court:TCCA

Attorneys:                          

David B. Hill, Newport, Tennessee, for the appellant, Steven Ray
Hicks.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Alfred C. Schmutzer, Jr., District
Attorney General; and James B. Dunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant appeals from an order of the trial court which found him
to be in violation of the conditions of his probation and ordered his
sentence to be served in confinement.  The State concedes that the
trial court erred.  Because the Defendant's term of probation had
expired at the time the probation violation warrant was issued, the
trial court's order finding the Defendant to be in violation of his
probation is vacated.

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

STATE OF TENNESSEE v. SHATHA LITISSER JONES

Court:TCCA

Attorneys:                          

Michael D. Rasnake, Jackson, Tennessee, for the appellant, Shatha
Litisser Jones.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; James G. Woodall, District Attorney
General; and Jody S. Pickens, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Shatha Litisser Jones, pled guilty in the Madison
County Circuit Court to theft of property valued more than five
hundred dollars but less than one thousand dollars, a Class E felony. 
The length and manner of service of her sentence were to be determined
by the trial court, which sentenced the defendant as a Range I,
standard offender to two years in the Department of Correction.  The
defendant appeals, claiming that her sentence is excessive and that
she should have received probation or another sentence involving no
confinement.  We affirm the trial court's judgment of conviction.

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

STATE OF TENNESSEE v. WINSTON CHADRICK McCLAIN

Court:TCCA

Attorneys:                          

N. Andy Myrick, Jr., Fayetteville, Tennessee, for the appellant,
Winston Chadrick McClain.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Winston Chadrick McClain, pled guilty in the Marshall
County Circuit Court to aggravated robbery, a Class B felony, with the
length of the sentence to be determined by the trial court.  The trial
court sentenced him as a Range I, standard offender to eleven years in
the Department of Correction (DOC).  The defendant appeals, claiming
that his sentence is excessive because the trial court improperly
applied enhancement factors and failed to apply and give proper weight
to mitigating factors.  We affirm the judgment of the trial court.

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

BRYAN C. PEARSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Bryan C. Pearson, Pikeville, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; J. Michael Taylor, District Attorney
General, for appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The pro se appellant appeals from the summary dismissal of his
petition for the writ of habeas corpus.  Finding that summary
dismissal was appropriate under the circumstances of this case, we
affirm the judgment of the lower court.

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

STATE OF TENNESSEE v. WILLIAM RAMSEY

Court:TCCA

Attorneys:                          

George A. Burke, Sr., Spencer, Tennessee (on appeal); and Billy K.
Tollison, McMinnville, Tennessee (at trial), for the appellant,
William Ramsey.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Clement Dale Potter, District Attorney
General; and Thomas J. Miner, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant was convicted by a Warren County Circuit Court jury of
one count of aggravated robbery, a Class B felony, and one count of
theft over $1000, a Class D felony, based on his participation in
separate criminal acts that occurred over four months apart.  The
trial court sentenced him as a Range I, standard offender to nine
years for the aggravated robbery conviction and three years for the
theft conviction, with the sentences to be served concurrently, for an
effective sentence of nine years in the Department of Correction.  In
this appeal as of right, the defendant argues that the trial court
erred in denying his motion to sever the offenses; in refusing to find
him indigent and denying his request for funds to hire an expert
witness; and in enhancing his sentences from the presumptive minimum
in the range.  Following our review, we conclude the trial court did
not err in denying the defendant's motion for severance; the trial
court erroneously based its refusal to declare the defendant indigent,
in part, on the defendant's mother's financial resources, but there
was no error in the trial court's denial of the defendant's request
for funds for an expert witness; and the defendant's theft sentence
should be modified.  Accordingly, we affirm the judgments of the trial
court, but reduce the defendant's sentence for theft over $1000 from
three years to two years, to be served concurrently to his nine-year
sentence for aggravated robbery.

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

STATE OF TENNESSEE v. DENNIS MICHAEL RICHARDSON

Court:TCCA

Attorneys:                          

Michael Walcher, Greeneville, Tennessee, for the appellant, Dennis
Michael Richardson.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; C. Berkeley Bell, District Attorney
General; and Cecil Mills, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

Following a jury trial, the Defendant, Dennis Michael Richardson, was
convicted of Class B misdemeanor assault.  The trial court sentenced
him to serve six months in the county jail.  In this appeal, the
Defendant argues that the trial court erred in its application of one
of the sentencing enhancement factors.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. SCOTT E. SNOW

Court:TCCA

Attorneys:                          

Walter B. Johnson, Assistant Public Defender, Harriman, Tennessee, for
appellant, Scott E. Snow.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; and D. Roger Delp, Assistant District Attorney General; for
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

On June 19, 2000, the defendant, Scott E. Snow, was indicted by the
Roane County Grand Jury for driving on a revoked license and driving
under the influence, 3rd offense.  On August 6, 2001, he was convicted
by a jury of DUI 3rd, and acquitted of driving on a revoked license. 
The defendant received a sentence of 11 months and 29 days and was
ordered to serve at least 240 days prior to release on probation.  The
defendant now brings this appeal claiming that the evidence was
insufficient for the conviction of DUI.  After a thorough review of
the record, we find that the evidence is sufficient to sustain his
conviction and there is no reversible error.  Therefore the judgment
of the trial court is affirmed.

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

STATE OF TENNESSEE v. EZELL WALLACE

Court:TCCA

Attorneys:                          

Brett B. Stein, Memphis, Tennessee, for the appellant, Ezell Wallace.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William L. Gibbons, District Attorney
General; and Greg Gilluly, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A jury convicted the Defendant of attempted first degree murder, a
Class A felony.  The trial court sentenced the Defendant as a Range I,
standard offender to twenty-five years' incarceration.  The Defendant
now appeals, arguing that the trial court erred by denying his motion
for new trial because (1) insufficient evidence was presented to
support his conviction; (2) the trial court made an improper
evidentiary ruling; and (3) the trial court gave the jury improper and
inadequate instructions.  Finding no error, we affirm the judgment of
the trial court.

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

JOHN W. WILCOX v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

John W. Wilcox, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General;  Jerry N. Estes, District Attorney
General; and William W. Reedy, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the denial of his petition for post-conviction
relief.  The petitioner contends that he received ineffective
assistance of counsel and that the State engaged in a vindictive
prosecution and failed to perform testing on evidence which would have
supported his claim of self- defense.  We conclude that the evidence
does not preponderate against the findings of the post- conviction
court. We affirm the post-conviction court's denial of post-conviction
relief.

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

STATE OF TENNESSEE v. TRAVIS J. WOODS

Court:TCCA

Attorneys:                          

Charles P. Dupree, Chattanooga, Tennessee, for the appellant, Travis
J. Woods.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General;  Bill Cox, District Attorney General; and
Parke Masterson, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The defendant, Travis J. Woods, was convicted of attempted first
degree murder, aggravated assault and reckless endangerment.  For
these convictions the defendant received sentences of 35 years, 6
years, and 2 years, respectively.  The sentences were ordered to run
consecutively.  In this appeal the defendant argues that: (1) the
evidence is insufficient to support the verdicts of guilt for
attempted first degree murder and aggravated assault, (2) the trial
court erroneously denied the defendant's motion to dismiss the
aggravated assault charge pursuant to Tenn. R. Crim. P. 8, (3) the
trial court erred in refusing to order ballistics testing, (4) the
jury instructions were erroneous, and (5) the sentence is excessive. 
We find no reversible error in this record and therefore affirm the
judgment of the trial court.

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

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