Opinion FlashOctober 30, 2003Volume 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel 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 PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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