Opinion Flash

October 30, 2003
Volume 9 — Number 199

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):
07 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
05 New Opinion(s) from the Tennessee Court of Appeals
00 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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


JUDY C. BURROUGHS, Individually and as Surviving Spouse and Personal
Representative of the Estate of Harold L. Burroughs, Deceased  v. 
ROBERT W. MAGEE, M.D.
ORDER

Court:TSC

Judge: HOLDER

First Paragraph:

The appellant, Judy C. Burroughs, has filed a petition for rehearing
in this case.  After careful and thoughtful consideration, it is the
opinion of a majority of the members of the Court that the petition
should be, and hereby is, denied.

http://www.tba.org/tba_files/TSC/burroughs_ord.wpd

MARK WESLEY HENDERSON  v.  BOARD OF PROFESSIONAL RESPONSIBILITY OF THE
SUPREME COURT OF TENNESSEE

Court:TSC

Attorneys:                          

James R. Stallings, Jr.,  Lebanon, Tennessee, for the appellant, Mark
Wesley Henderson.

Sandy Garrett, Nashville, Tennessee, for the appellee, Board of
Professional Responsibility.

Judge: BARKER

First Paragraph:

This is a direct appeal from an attorney disciplinary proceeding
originating in the Board of Professional Responsibility ("Board"). 
After the appellant, Mark Henderson, disagreed with an initial
proposal for a public censure, Disciplinary Counsel filed a petition
for discipline.  Henderson entered a conditional guilty plea before
the Board in exchange for a public censure, but upon review, this
Court rejected that plea.  The Board ultimately recommended that
Henderson be suspended from the practice of law for a period of six
months.  Henderson then filed a petition for certiorari in the
Chancery Court for Sumner County alleging several procedural defects,
including the allegation that the Board did not have authority to
pursue the disciplinary petition because he had not demanded a formal
hearing.  The trial court dismissed Henderson's petition for
certiorari due to his failure to file a complete transcript with the
court.  On direct appeal to this Court, Henderson argues that the
Board lacked jurisdiction to pursue the petition for discipline, that
the Board failed to follow the required procedure when it submitted
the conditional guilty plea to this Court for review, and that the
trial court erred in dismissing his petition for certiorari.  We
affirm the decision of the trial court, holding that it properly
dismissed the petition for certiorari, that the Board had authority to
initiate a formal petition for discipline, and that this Court had the
authority to review and reject the conditional guilty plea.

http://www.tba.org/tba_files/TSC/hendersonmw.wpd

STATE OF TENNESSEE  v.  JAMES A. MELLON 

Court:TSC

Attorneys:                          

Gerald L. Gulley, Jr., Knoxville, Tennessee, and Tim S. Moore,
Newport, Tennessee, for the appellant, James A. Mellon.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Marvin S. Blair, Jr., Assistant Attorney General,
for the appellee, State of Tennessee.

Judge: BARKER

First Paragraph:

Although the defendant, James A. Mellon, raises numerous issues on
appeal, the dispositive issue is whether his guilty plea was unknowing
and involuntary, and the subsequently imposed death sentence in
violation of due process, when he was not adequately informed of the
consequences should he breach the plea agreement.  Prior to trial, the
defendant pleaded guilty to felony murder and especially aggravated
robbery as part of a plea agreement with the prosecution.  The
agreement provided that, in exchange for his pleas of guilty, the
State would recommend a sentence of life in prison with the
possibility of parole on the felony murder conviction and a concurrent
sentence of fifteen to twenty-five years for the especially aggravated
robbery conviction, with the trial court to decide the actual length
of the sentence.  Pursuant to the agreement, sentencing would be
reserved until after testimony by the defendant in any related
proceeding or at the conclusion of such proceedings.  The defendant
reneged on the agreement and instead moved to withdraw his guilty
pleas.  The trial court denied the defendant's motion and empaneled a
jury.  A sentencing hearing was conducted, resulting in a sentence of
death.  The Court of Criminal Appeals affirmed the conviction and
death sentence for the felony murder.  On automatic appeal to this
Court, we conclude that the defendant was not adequately informed of
the consequences if he should breach the plea agreement.  We are
constrained to hold that the defendant's pleas were not knowingly and
voluntarily entered, and thus the subsequent sentence  denied him due
process of law.  Therefore, we reverse the decision of the Court of
Criminal Appeals and remand to the trial court for further proceedings
consistent with this opinion.

http://www.tba.org/tba_files/TSC/mellonja.wpd

RUTHERFORD COUNTY v. MARTHA JORDAN WILSON, ET AL.

Court:TSC

Judge: HOLDER

First Paragraph:

On May 16, 2003, the appellant, Cathey Baskin, filed a petition to
rehear the opinion this Court issued on May 6, 2003.  We granted the
appellant's petition to consider her assertion that our opinion is in
conflict with Walker v. Applebury, 400 S.W.2d 865 (Tenn. 1965).

http://www.tba.org/tba_files/TSC/rutherfordcntyrehear.wpd

JOAN C. SCHMITT v. JAMES CHARLES SMITH IN RE:  S. DENISE MCCRARY v.
JOAN CAROL SCHMITT

Court:TSC

Attorneys:                          

Mitzi C. Johnson and Kay Farese Turner, Memphis, Tennessee, for the
appellant, S. Denise McCrary.

James F. Schaeffer, Jr., Memphis, Tennessee, for the appellee, Joan C.
Schmitt.

Patricia M. Worley and David E. Caywood, Memphis, Tennessee, for the
Amicus Curiae, Memphis Bar Association.

Judge: BIRCH

First Paragraph:

The issues in this case are whether the lien for attorney's fees was
properly preserved, and if so, whether a separate action was required
to enforce that lien.  The trial court found that the lien had been
properly preserved and enforced it in the amount of $37,332.  On
direct appeal, the intermediate court reversed that judgment and held
that the attorney's failure to note the lien in the final judgment as
required by Chumbley v. Thomas, 198 S.W.2d 551 (Tenn. 1947), or to
amend the judgment to include a notation of the lien, was fatal to the
preservation and enforceability of the lien.  We granted permission to
appeal to revisit and reconsider the "notation" requirement of
Chumbley.  After careful consideration, we now overrule Chumbley to
the extent that it requires an attorney's lien be noted in the final
judgment.  We also hold that the lien in this case was properly
enforced in the court in which the matter was litigated.  Accordingly,
we reverse the judgment of the Court of Appeals and remand this case
to the trial court for enforcement of the lien and a determination of
attorney's fees on appeal.

http://www.tba.org/tba_files/TSC/schmittjoan.wpd

STATE OF TENNESSEE v. REGINALD D. TERRY 

Court:TSC

Attorneys:                          

W. Mark Ward and Robert Wilson Jones (on appeal); and Timothy J.
Albers and William Yonkowski (at trial), Assistant Public Defenders,
Memphis, Tennessee, for the appellant, Reginald D. Terry.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mark E. Davidson, Assistant Attorney General (on
appeal); William L. Gibbons, District Attorney General; and Julie
Mosley, Assistant District Attorney General, for the appellee, State
of Tennessee.

Judge: BIRCH

First Paragraph:

We granted the defendant's application for permission to appeal
pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to
decide whether attempted aggravated criminal trespass is a
lesser-included offense of attempted aggravated burglary, and, if so,
whether the trial court in this case committed plain error by failing
to so instruct the jury.  The Court of Criminal Appeals held that
attempted aggravated criminal trespass is not a lesser-included
offense of attempted aggravated burglary and thus found no error in
the trial court's failure to so instruct the jury.  The defendant
appealed to this Court.  After a thorough review of the record and the
relevant case law, we conclude that attempted aggravated criminal
trespass is a lesser-included offense of attempted aggravated
burglary.  However, we hold that the failure to instruct the jury on
this lesser-included offense was not plain error.  Accordingly, we
affirm the judgment of the Court of Criminal Appeals.

http://www.tba.org/tba_files/TSC/terryreginald.wpd

STATE OF TENNESSEE v. VERNON D. WALLER

Court:TSC

Attorneys:                          

William J. Steed, III (on appeal) and Joseph E. Clifton (at trial),
Assistant Public Defenders, Nashville, Tennessee, for the appellant,
Vernon D. Waller.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Gordon W. Smith, Associate Solicitor General,
for the appellee, State of Tennessee.

Judge: HOLDER

First Paragraph:

We granted this appeal to determine whether the trial court erred in
ruling that the appellant's prior felony drug convictions would be
admissible for impeachment purposes if he testified.  The Court of
Criminal Appeals affirmed the trial court, holding that the prior
convictions were relevant to the issue of the appellant's credibility
and that the probative value of the evidence outweighed any unfair
prejudicial effect.  We granted the appellant's application for
permission to appeal.  After thoroughly reviewing the record and
applicable law, we conclude that the trial court erred in allowing the
State to use the appellant's prior felony drug convictions for
impeachment purposes.  However, because the appellant failed to
demonstrate that he was prejudiced by the trial court's erroneous
ruling, we hold that the error was harmless.  Accordingly, the
judgment of the Court of Criminal Appeals is affirmed.

http://www.tba.org/tba_files/TSC/wallervd.wpd

EDNA C. BROOKS, ET AL. v. OPAL GREEN RANSOM, ET AL.

Court:TCA

Attorneys:                          

Duncan E. Ragsdale, Memphis, For Appellants, Edna C. Brooks, Ruby
Bonds, Peggy Theus, Maybell Lillard, Rosie Carney, Ernestine Banks,
James Carney, Joe Somerville, Jessie Somerville, Debra Somerville, for
themselves and as Next of Kin to Gladys Somerville, Artavious
Somerville, Deceased and Alexis Somerville, a minor

Larry S. Banks, Brownsville, For Appellee, Opal Green Ransom

Judge: CRAWFORD

First Paragraph:

This is a wrongful death case premised on a landlord's violation of
T.C.A. S 68-102-151 (smoke detector statute) as the proximate cause of
the death of several occupants of the structure when it caught fire. 
The trial court granted defendant summary judgment, holding the
statute is not applicable.  Plaintiffs appeal.  We affirm.

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

CYNTHIA FAYE DAVIS v. TERRY REGGIE DAVIS

Court:TCA

Attorneys:                          

John Van Den Bosch, Jr., Jackson, Tennessee, for the appellant, Terry
Reggie Davis.

Jeffrey A. Smith, Trenton, Tennessee, for the appellee, Cynthia Faye
Davis.

Judge: FARMER
  
First Paragraph:

This case involves an appeal from the trial court's final decree of
absolute divorce providing for division of marital property, alimony
award, and award of attorney's fees. We affirm in part, reverse in
part, and remand.

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

JAMES DIAL, ET AL. v. ROBERT L. HARRINGTON, M.D., ET AL.

Court:TCA

Attorneys:                          

Timothy Boxx, Dyersburg, Tennessee, for the appellants, James Dial and
wife, Rachel Dial.

Hubert B. Jones and Gary H. Nichols, Dyersburg, Tennessee, for the
appellees, Robert L. Harrington, M.D., Jackson Clinic, P.A. and
Women's Clinic of Dyersburg.

Judge: FARMER

First Paragraph:

This is an appeal of the trial court's award of summary judgment to
defendants in a medical malpractice action.  The trial court held that
Rule 32.01(3) of the Tennessee Rules of Civil Procedure prohibits use
of an expert discovery deposition taken in accordance with Rule
26.02(4) to show the existence of a genuine issue of material fact in
opposition to a motion for summary judgment.  We reverse.

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

DAVID A. PICKLER, CHAIRMAN, ET AL. v. ELIZABETH DEAN PARR a/k/a BESSIE
DEAN PARR, ET AL.

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter and Stephanie R.
Laffon, Assistant Attorney General, for the Appellee, State of
Tennessee.

Henry L. Klein, Memphis, Tennessee, for the appellees, David A.
Pickler, Chairman, Anne J. Edmiston, Vice Chairman, Joseph A. Clayton,
Virginia R. Harvell, Karen Hill, Ron W. Lollar, and Wyatt Bunker, as
Members of the Shelby County Board of Education and their Successors
in Office.

DeWitt M. Shy, Jr., Memphis, Tennessee and Richard D. Crotteau and
James R. Buckner, Chattanooga, Tennessee for the appellants, Elizabeth
Stratton Parr, William Hampton Parr and William D. Parr, Jr.

William M. Walsh, Memphis, Tennessee, for the appellant, Elizabeth B.
Parr.

James S. Strickland, Jr., Memphis, Tennessee, for the appellant,
Louise Electra Hampton Parr Daniel.

Judge: FARMER

First Paragraph:

This case involves an interlocutory appeal from the trial court's
denial of Respondent's motion to dismiss Petitioner's petition for
condemnation.  We affirm.

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

ERNEST W. SIPE, BOTH AS ADMINISTRATOR OF THE ESTATE AND NEXT OF KIN OF
GLADYS LOUISE SIPE, DECEASED v. F. RAYMOND PORTER, M.D.

Court:TCA

Attorneys:                          

Leslie A. Muse and Gary E. Brewer, Morristown, Tennessee, for the
Appellant, Ernest W. Sipe.

Gary G. Spangler and Joseph M. Huffaker, Knoxville, Tennessee, for the
Appellee, F. Raymond Porter, M.D.

Judge: SWINEY

First Paragraph:

Ernest W. Sipe ("Plaintiff") sued F. Raymond Porter, M.D. ("Dr.
Porter") regarding Dr. Porter's medical care of Gladys Louise Sipe. 
Plaintiff filed his expert's affidavit.  Plaintiff's expert then was
deposed.  During this deposition, defense counsel questioned
Plaintiff's expert about portions of Ms. Sipe's medical record that
Plaintiff's expert had not reviewed previously.  Dr. Porter then filed
a motion for partial summary judgment.  After his deposition,
Plaintiff's expert reviewed all of the previously unreviewed records,
and Plaintiff then filed a supplemental affidavit of his expert.  The
Trial Court applied the rule of cancellation and found that
Plaintiff's expert's opinions were contradictory and that his
testimony as an expert witness should be cancelled and disregarded as
competent proof in this case.  The Trial Court then granted Dr.
Porter's motion for partial summary judgment.  Plaintiff appeals.  We
reverse and remand.

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

Effect of 2003 Public Acts 105 on Access to Confidential Student
Records Maintained by Institutions of Higher Education

Date: October 27, 2003

Opinion Number: 03-139                         

http://www.tba.org/tba_files/AG/2003/op139.pdf

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