Opinion Flash

October 23, 2003
Volume 9 — Number 194

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
06 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


KASSANDRA GREENE v. TARRY GREENE

Court:TCA

Attorneys:                          

Tarry L. Greene, Chattanooga, Tennessee, pro se.

Alan R. Beard, Chattanooga, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

The Trial Court granted divorce, divided the marital assets, and
assigned debts.  The husband has appealed.  We affirm.

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

JOSEPH W. HOUSTON, ET AL. v. CHARLES D. MOUNGER, ET AL.

Court:TCA

Attorneys:                          

Charles D. Mounger, Kingston, Tennessee, Pro Se.

John W. Cleveland, Sweetwater, Tennessee, for appellees, Joseph
Houston and Joyce Houston.

Jimmie D. Turner, Oliver Springs, Tennessee, for appellees, Jimmie D.
Turner, Weldon Webb, Harvey Lowe and Edith Lowe.

Judge: INMAN

First Paragraph:

After judgment was entered, certain inaccuracies, deemed to be
clerical errors in an engineering survey of extensive properties, were
discovered which were resolved by the trial court following hearings,
and the judgment was corrected or amended over the appellant's
objections.  This appeal followed, but no transcript of the
proceedings was filed, and the appellant's purported Statement of the
Evidence did not receive the approbation of the Chancellor. 
Consequently, the appellant court must assume that the evidence was
sufficient to support the judgment, and the appeal is dismissed.

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

CLARENCE "AL" MATZ and wife, JOANN L. MATZ, v. QUEST DIAGNOSTICS
CLINICAL LABORATORIES, INC., D/B/A SMITH KLINE BEECHAM CLINICAL
LABORATORIES, ASSOCIATED PATHOLOGISTS, PLC., ESTELLE E. MAY, M.D., and
JARVIS LELAND HUGHES, M.D.

Court:TCA

Attorneys:                          

John H. Cocke, Clarksdale MS, for Appellants.

Wynne C. Hall, Knoxville, Tennessee, for Appellees, Estelle E. May,
M.D., and Associated Pathologists, PLC.

Judge: FRANKS

First Paragraph:

Defendants granted summary judgment in medical malpractice action on
grounds the statute of limitation had run.  On appeal, we vacate and
remand.

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

IN THE MATTER OF THE ADOPTION OF DPM by DONNA RAE MICKLES, and
husband, PAUL ED MICKLES, v. BRENDA SUE JOHNSON, and husband, STEVE
JOHNSON, and CHADWICK EARL SCHUBERT

Court:TCA

Attorneys:                          

John S. Anderson, Rogersville, Tennessee, for Appellants.

D. Vance Martin, Knoxville, Tennessee, for Appellees.

Wayne Decatur Wykoff, Knoxville, Tennessee, Guardian Ad Litem for DPM.

Judge: FRANKS

First Paragraph:

The Trial Court ordered appellants incarcerated for violation of the
Court's orders, and refused to remove the Guardian ad Litem for the
minor child.  On appeal, we affirm.

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

KAREN THOMPSON SCOGGINS v. LARRY BROWDER SCOGGINS

Court:TCA

Attorneys:                          

Mitchell A. Byrd, Chattanooga, Tennessee, for the Appellant, Larry
Browder Scoggins.

Phillip C. Lawrence, Chattanooga, Tennessee, for the Appellee, Karen
Thompson Scoggins.

Judge: SWINEY

First Paragraph:

Karen Thompson Scoggins ("Plaintiff") and Larry Browder Scoggins
("Defendant") were divorced in 2000.  The divorce judgment ordered
Defendant to use funds from his 401(k) plan to pay off certain marital
debts and then to convey the remainder of the 401(k) to Plaintiff. 
Defendant did not do this.  Instead, Defendant filed for bankruptcy,
listed Plaintiff as a creditor, and was granted a discharge in
bankruptcy.  Plaintiff filed a complaint in Chancery Court ("Trial
Court") seeking to enforce the divorce judgment.  Defendant claimed
the debt to Plaintiff was discharged in bankruptcy.  The Chancery
Court held that the discharge in bankruptcy does not bar Plaintiff
from enforcing her rights in Defendant's 401(k) plan.  Defendant
appeals.  We reverse and remand.

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

DANIEL B. TAYLOR v. DONAL CAMPBELL, ET AL.
CORRECTED OPINION
WITH ORDER

Court:TCA

Attorneys:                          

Daniel B. Taylor, Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Kimberly J. Dean, Deputy Attorney General, for
the appellees, Donal Campbell, Commissioner, Tennessee Department of
Correction, Williams Keeling, Roland Colson, Faye Cloud, Dinna Wilson,
Wyema Helms, and Shirley Pluckett.

Judge: KOCH
 
First Paragraph:

This appeal involves a dispute between a prisoner and the Department
of Correction regarding the prisoner's sentence credits.  After his
request for a declaratory order was denied, the prisoner filed suit in
the Chancery Court for Davidson County against the Commissioner of
Correction and others seeking a declaration that the Department had
miscalculated his sentence and had erroneously refused to classify him
as a Range I especially mitigated offender.  The trial court granted
the Department's motion for summary judgment and dismissed the
petition.  We concur with the trial court's conclusion that the
Department is entitled to a judgment as a matter of law and,
accordingly, affirm the summary judgment.

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

ORDER http://www.tba.org/tba_files/TCA/taylordb_ord.wpd

JAMES C. WILKERSON, ET AL. v. PFC GLOBAL GROUP, INC, ET AL.

Court:TCA

Attorneys:                          

C. Allen Ragle, Knoxville, Tennessee, for the Appellants PFC Global
Group, Inc., Leslie Don Dorris, and Brenda L. Dorris.

David R. Duggan, Maryville, Tennessee, for the Appellees James C.
Wilkerson and Judith A. Wilkerson.

Judge: SWINEY

First Paragraph:

On May 3, 2002, James and Judith Wilkerson ("Plaintiffs") filed this
lawsuit against PFC Global Group, Inc. ("PFC") claiming PFC had
defaulted on a Promissory Note.  Plaintiffs also sued Don and Brenda
Dorris who had personally guaranteed PFC's debt to Plaintiffs.  All
three Defendants were served with process on May 16, 2002, and their
attorneys entered an appearance on Defendants' behalf the following
day.  Plaintiffs' counsel informed defense counsel that Plaintiffs
would move for a default judgment if an answer was not filed by
September 6, 2002.  When no answer was filed by that date, Plaintiffs
moved for and were granted a default judgment.  After hearing
testimony from Plaintiff James Wilkerson regarding the amount due
under the various contracts, the Trial Court granted Plaintiffs a
judgment against each Defendant in the total amount of $1,492,353.52,
plus an additional $15,000 in attorney fees.  Thereafter, Defendants
filed a motion to have the default judgment set aside under Tenn. R.
Civ. P. 60.  After a hearing, the Trial Court determined Defendants
were not entitled to relief from the default judgment.  We affirm.

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

STATE OF TENNESSEE v. MARCUS ANTWONE GILLARD

Court:TCCA

Attorneys:                          

Didi Christie, Brownsville, Tennessee (on appeal); George Morton
Googe, District Public Defender; and Vanessa D. King, Assistant Public
Defender (at trial), for the appellant, Marcus Antwone Gillard.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and Shaun A. Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was convicted of aggravated robbery, facilitating
aggravated kidnapping, and aggravated burglary.  He now appeals these
convictions contending that the (1) evidence was not sufficient to
support the convictions, (2) trial court erred in refusing to dismiss
the charge of aggravated kidnapping or in refusing to merge the charge
of aggravated kidnapping with his aggravated robbery charge, (3) trial
court erred by denying him his right to effective cross- examination
by stating that questions regarding the prior inconsistent statements
of the victim would allow the admission of more damaging testimony
against the defendant, and (4) trial court erred in sentencing.  We
hold that the trial court erred in applying enhancement factor four;
however, the error was harmless.  We affirm the judgments of the trial
court in all other respects.

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

STATE OF TENNESSEE v. ZELLBURGE GLEAVES

Court:TCCA

Attorneys:                          

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher,
Assistant Public Defender, Nashville, Tennessee, for the Appellant,
Zellburge Gleaves.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Renee W. Turrner, Assistant Attorney General; 
Victor S. (Torry) Johnson III, District Attorney General; and Roger
Moore, Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Zellburge Gleaves, appeals the sentencing decision of
the Davidson County Criminal Court following his guilty plea to one
count of aggravated assault.  Under the terms of the plea agreement,
Gleaves agreed to an eight-year sentence as a Range II multiple
offender.  The plea agreement further provided that the manner of
service of the sentence was to be determined by the trial court. 
Following a sentencing hearing, the trial court ordered total
confinement.  Gleaves appeals, contending that the trial court erred
in failing to grant a sentence of split confinement.  After review of
the record, we affirm.

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

STATE OF TENNESSEE v. THADDAEUS MEDFORD
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

J. Thomas Cadlwell, Ripley, Tennessee; and Charles S. Kelly Sr.,
Dyersburg, Tennessee, for the Appellant, Thaddaeus Medford.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey A. Brewer, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Before us are the consolidated appeals of Thaddaeus Medford who, in
his first trial, was convicted of Class E felony evading arrest.  The
jury in that trial deadlocked on the companion charges of cocaine
possession with intent to deliver and drug paraphernalia possession. 
Upon retrial, the defendant was convicted of the two possession
offenses.  He appeals the legal sufficiency of his evading arrest and
cocaine possession convictions, complains that testimony about the
street value of cocaine and money found in his automobile was
erroneously admitted, and argues that his constitutional right to be
free from Aunreasonable searches and seizures@ was violated.  Based on
our review of the record, the briefs of the parties, and applicable
law, we affirm the defendant's evading arrest conviction.  As to the
cocaine possession conviction, we affirm the trial court's evidentiary
rulings and rejection of the defendant's motion to suppress, but we,
nevertheless, reverse the conviction because the evidence is legally
insufficient.

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

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

STATE OF TENNESSEE v. ABDULLAH MORRISON

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender; Michael Johnson and W.
Mark Ward, Assistant Public Defenders, for the appellant, Abdullah
Morrison.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Jennifer Nichols and Steve Jones, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS
 
First Paragraph:

The defendant was convicted of first degree (premeditated) murder.  He
now contends that the evidence of premeditation was insufficient for a
rational trier of fact to find the defendant guilty beyond a
reasonable doubt.  We hold that the evidence was sufficient to support
the jury's verdict.

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

MITCHELL TARVER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Mitchell Tarver, pro se, Clifton, Tennessee.

Paul G. Summers, Attorney General & Reporter; R. Robin Dixon, Jr.,
Assistant Attorney General; and Thomas A. Thomas, District Attorney
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The pro se petitioner, Mitchell Tarver, appeals from the denial of his
petition for a writ of habeas corpus.  We conclude that the circuit
court erred in summarily dismissing the habeas petition under the
peculiar circumstances presented in the instant case.  We therefore
reverse the judgment of the circuit court and remand for proceedings
consistent with this opinion.

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

STATE OF TENNESSEE v. WILLIAM WILSON

Court:TCCA

Attorneys:                          

Juni S. Ganguli, Memphis, Tennessee, for the appellant, William
Wilson.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Jennifer Nichols and Glen Baity, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

On May 19, 2001, a jury in Memphis convicted the defendant, William
Wilson, of aggravated robbery and first degree felony murder.  The
trial court sentenced him as a Range I Standard Offender to life in
prison for the first degree felony murder conviction and to eight (8)
years for the aggravated robbery to be served consecutively.  The
defendant appeals these convictions.  He argues four issues on appeal:
(1) He was not criminally responsible for his co-defendant's actions,
and therefore, not guilty of first degree murder; (2) the evidence was
insufficient to support his convictions for aggravated robbery and
first degree murder; (3) the trial court erred by failing to charge
the affirmative defense of duress; and (4) the trial court erred by
sentencing him to eight (8) years consecutive to his life sentence
with the possibility of parole.  We affirm the trial court's actions
with regard to these issues.

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

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