Opinion Flash

December 19, 2003
Volume 9 — Number 232

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):
02 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
05 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


STATE OF TENNESSEE  v.  CLARENCE W. CARTER 

Court:TSC

Attorneys:                          

C. Edward Fowlkes and John E. Herbison, Nashville, Tennessee, for the
appellant, Clarence W. Carter.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
John Zimmermann, Assistant Attorney General; and Ana Escobar,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: BARKER

First Paragraph:

The defendant, Clarence W. Carter, was tried and convicted of
conspiracy to sell cocaine and possession of cocaine with intent to
manufacture, deliver or sell, and the defendant was sentenced as a
Range Two multiple offender to consecutive sentences of thirty-six and
sixteen years.  The Court of Criminal Appeals affirmed both the
convictions and sentences.  Although there are several issues in this
case, we granted permission to appeal primarily to determine whether
the trial court committed reversible error in sentencing the defendant
as a Range Two multiple offender when the only notice of intent to
seek enhanced punishment filed by the State was in relation to an
indictment that was superseded by the indictment upon which the
defendant was tried.  Additionally, the defendant argues on appeal
that the indictment for possession with intent to deliver was
insufficient to charge anything more than simple possession because it
failed to contain the language that the defendant possessed the
cocaine "with intent to deliver."  Upon review, we conclude that the
notice of intent to seek enhanced sentencing was sufficient as to the
possession charge, but was not sufficient as to the conspiracy charge
because conspiracy was not charged in the original indictment for
which notice was given.  We also hold that the indictment was
sufficient to charge the offense of possession with intent to deliver.
 Finally, we hold that the defendant's remaining arguments regarding
the sufficiency of the evidence and length of sentence are without
merit.  The case is therefore remanded to the trial court for
re-sentencing on the conviction for conspiracy to sell cocaine.

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

STANLEY A. GUNTER v. LABORATORY CORPORATION OF AMERICA, d/b/a LABCORP,
ET AL.

Court:TSC

Attorneys:                          

William E. Godbold, III, and Cherie D. Jewell, Chattanooga, Tennessee,
and Thomas J. Dement, II, Nashville, Tennessee, for the appellant,
LabCorp.

August C. Winter, Brentwood, Tennessee, for the appellee, Stanley A.
Gunter.

Judge: BIRCH

First Paragraph:

We granted permission to appeal to determine the applicable statute of
limitations in this action against a laboratory that analyzes blood
for purposes of providing evidence in paternity cases.  The trial
court ruled that the case was "governed by the applicable one year
statute of limitations" in Tennessee Code Annotated sections 28-3-104
and 29-26-116, which refer to injuries to the person and medical
malpractice claims, and dismissed the action because the suit was
filed outside the one- year limitation.  The intermediate court
applied the three-year statute of limitations applicable to suits for
recovery of monetary damages for injuries to personal property and,
thereby, reversed the trial court's ruling.  We conclude that this
action sounds in negligence rather than medical malpractice.  Further,
we conclude that the economic loss sustained by the plaintiff is an
injury to property rather than to the person.  Thus, we hold that the
three-year statute of limitations for injury to personal property
applies.  Accordingly, we affirm the judgment of the Court of Appeals
and remand the case to the trial court for further proceedings
consistent with this opinion.

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

BETTY FRAZIER v. SATURN CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:                          

J. Anthony Arena, Arena & McElhaney, Nashville, Tennessee, for the
appellant, Betty Frazier

Thomas H. Peebles, IV, and Terrence O. Reed, Nashville, Tennessee, for
the appellee, Saturn Corporation

Judge: LOSER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  In this
appeal, the employee insists the trial court erred in determining the
date of her injury for the purpose of determining her average weekly
wage and that the evidence preponderates against the trial court's
findings as to the extent of her permanent disability.  As discussed
below, the panel has concluded the judgment should be modified with
respect to the worker's compensation rate.

http://www.tba.org/tba_files/TSC_WCP/frazierbetty.wpd

JAMES BOYD v. BILLY RILEY, ET AL. 

Court:TCA

Attorneys:                          

James R. Boyd, Clifton, Tennessee, Pro Se.

Tom Anderson, Jackson, Tennessee, for the appellees, Billy Riley and
John Crunk.

Judge: CAIN

First Paragraph:

This appeal, filed pro se, involves two separate law suits that were
filed and pursued in the trial court without consolidation and heard
without consolidation on appeal.  One complaint alleges negligence,
and the other complaint alleges malpractice.  The trial court
dismissed both actions, and we affirm the actions of the trial court.

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

LEWIS GREGORY LANGLEY v. SARAH ROUNDS LANGLEY

Court:TCA

Attorneys:                          

Michael W. Binkley, Nashville, Tennessee, attorney for appellant,
Lewis Gregory Langley.

Rose Palermo, Nashville, Tennessee, attorney for appellee, Sarah
Rounds Langley.

Judge: INMAN

First Paragraph:

Husband's proposed division of marital assets was adopted by the trial
court.  Wife received more than one-half of the assets, amounting to
one and one-quarter million dollars, mostly liquid.  Husband was
nevertheless ordered to pay substantial alimony, both in solido and in
futuro, together with attorney fees and certain expenses, including
the maintenance of a three-quarter million dollar policy of life
insurance with Wife as beneficiary.  The alimony in solido award is
affirmed, and the remaining awards are vacated.

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

GOVINDASWAMY NAGARAJAN v. SANDRA SCHEICK, ET AL.

Court:TCA

Attorneys:                          

Govindaswamy Nagarajan, Hermitage, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and William J. Marett,
Jr., Assistant Attorney General, for the appellees, Sandra Scheik,
Bobby Lovett, Augustus Bankhead, James Hefner, Tennessee State
University, and the Tennessee Board of Regents.

Robert L. Smith, Nashville, Tennessee, for the appellees, Yolanda
McCall, Theodore Krotuiski, Camelia Mitchell, and Soumayah Walton.

Judge: KOCH

First Paragraph:

This appeal is an outgrowth of complaints filed by a group of
Tennessee State University students regarding the performance of their
physics professor.  After the students complained to the university,
the professor filed a pro se complaint in the Chancery Court for
Davidson County against the Tennessee Board of Regents, the
university, four university administrators, and twenty-four students,
alleging breach of contract, defamation, intentional infliction of
emotional distress, and discrimination based on age, race, and
national origin.  The trial court dismissed the professor's complaint
in its entirety in response to motions to dismiss filed by the
university defendants and a number of the student defendants.  The
professor then filed serial "motion[s] to vacate the order of
dismissal for just cause."  The trial court denied the first motion
and, treating the second motion as a Tenn. R. Civ. P. 60.02(2) motion,
also denied the second.  On this appeal, the professor seeks to raise
twelve issues regarding the merits of his claim.  However, the only
matter properly before us is the denial of his second "motion to
vacate the order of dismissal for just cause."  We have determined
that the trial court properly denied this motion.  We have also
determined that this appeal is frivolous.

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

TOWN OF NOLENSVILLE v. RONALD M. KING

Court:TCA

Attorneys:                          

Robert J. Notestine, III, Nashville, Tennessee, for the appellant,
Town of Nolensville.

John E. Herbison, Nashville, Tennessee, for the appellee, Ronald M.
King.

Judge: KOCH

First Paragraph:

This appeal arises from the enforcement of the Town of Nolensville's
ordinance outlawing the storage of abandoned or unusable automobiles
and storage trailers within its city limits.  After the Nolensville
City Court entered a judgment against him for $18,600 for repeated,
flagrant violations of the ordinance, a town resident petitioned the
Circuit Court for Williamson County for a common- law writ of
certiorari seeking to set aside the city court's judgment because he
had been deprived of his right to a jury trial.  The trial court
granted the writ and set aside the city court's judgment based on its
conclusion that Tenn. Const. art. VI, S 14 guarantees the right to a
jury trial for fines in excess of fifty dollars.  After this court
vacated the trial court's order, the resident filed a Tenn. R. App. P.
11 application with the Tennessee Supreme Court.  The Court granted
the application and remanded the case to this court with directions to
reconsider the case in light of City of Chattanooga v. Davis, 54
S.W.3d 248 (Tenn. 2001).  We have determined that the resident was not
deprived of his right to have a jury assess his fine because Tenn.
Code Ann. S 27-5-101 (2000) affords him an absolute right to a de novo
trial in circuit court where he may obtain a jury trial if he wants
one.

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

KENNETH ROBERT DANIELS v. HOWARD CARLTON, WARDEN

Court:TCCA

Attorneys:                          

Kenneth Robert Daniels, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Kenneth Robert Daniels, appeals as of right the
Johnson County Circuit Court's dismissal of his petition for habeas
corpus relief.  In this pro se appeal, the petitioner contends that he
should be granted habeas corpus relief because his judgment of
conviction for especially aggravated robbery is void.  The state
contends that the trial court properly dismissed the petition for
failure to state a claim.  We affirm the trial court's dismissal of
the petition.

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

STATE OF TENNESSEE v. KELVIN HOBSON

Court:TCCA

Attorneys:                          

Glenn R. Funk and Cynthia M. Fort (on appeal), Nashville, Tennessee,
for the appellant, Kelvin Hobson.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Victor S. Johnson, III, District
Attorney General; Brian Keith Holmgren, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Davidson County Criminal Court jury convicted the defendant, Kelvin
Hobson, of two counts of aggravated sexual battery, a Class B felony,
and the trial court sentenced him as a violent offender to concurrent
ten-year sentences.  The defendant appeals his convictions, claiming
that (1) the evidence is insufficient; (2) the trial court improperly
allowed the state to cross-examine him about prior bad acts; (3) the
trial court improperly allowed state witnesses to give rebuttal
testimony about his prior bad acts and his character for truthfulness;
(4) the trial court improperly refused to give a curative instruction
after the state shifted the burden of proof during closing argument;
and (5) the trial court should have granted his new trial motion
because the jury foreman mistakenly told other jurors during
deliberations that the defendant would serve only probation for his
aggravated sexual battery convictions.  We conclude that the trial
court committed reversible error by allowing state witnesses to
testify on rebuttal about the defendant's prior bad acts and his
character for truthfulness.  Accordingly, we reverse the judgments of
the trial court and remand the case for a new trial.

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

STATE OF TENNESSEE v. TREACY F. LEWIS

Court:TCCA

Attorneys:                          

William B. Lockert, III, District Public Defender; and Richard D.
Taylor, Jr., Assistant Public Defender, for the appellant, Treacy F.
Lewis.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney
General; and Lisa C. Donegan, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Treacy F. Lewis, entered a plea of nolo contendre to the
offense of murder in the second degree.  Following a sentencing
hearing, the trial court sentenced Defendant to twenty-three years in
the Tennessee Department of Correction.  Defendant appeals the length
of her sentence, arguing that the trial court misapplied enhancement
factor (4), the victim was particularly vulnerable because of age and
physical disabilities, and failed to give sufficient consideration to
the applicable mitigating factors.  Defendant does not challenge the
application of enhancement factor (9), based upon the use of a gun in
the commission of the offense.  Based on a review of the record, we
conclude that the trial court improperly applied enhancement factor
(4) in its sentencing determinations.  Accordingly, we modify the
judgment of the trial court to reduce the sentence to twenty-two
years.

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

JASON EUGENE MIZE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jason Eugene Mize, Pro Se, Pikeville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kathy D. Aslinger, Assistant Attorney General, for
the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Jason Eugene Mize, proceeding pro se, appeals the
summary dismissal of his petition for writ of habeas corpus, which
alleges that his effective eight-year sentence is illegal.  The trial
court, acting pursuant to Tennessee Code Annotated S 41-21-807 (2003),
ordered Mize to make a partial payment of the filing fee within twenty
days and dismissed the petition when Mize failed to do so.  Because
Mize did not have sufficient funds in his prison trust fund account to
make a partial payment of the filing fee, we conclude that the trial
court erred by dismissing his petition.  Accordingly, the judgment of
the Davidson County Criminal Court is reversed and remanded for
further proceedings consistent with this opinion.

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

STATE OF TENNESSEE v. JOHN E. TURNER

Court:TCCA

Attorneys:                          

Joe M. Brandon, Jr., Smyrna, Tennessee, for the Appellant, John E.
Turner.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
and William C. Whitesell, Jr., District Attorney General, for the
Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, John E. Turner, appeals his conviction by a Rutherford
County jury for especially aggravated robbery, a class A felony.  The
single issue for our review is whether the trial court erred by not
suppressing Turner's statement to the police and the victim's gun,
which was discovered as a result of his statement.  After a review of
the record, we conclude that the Appellant's statement was obtained in
violation of his Fifth Amendment right to remain silent.  Moreover, we
conclude that the stolen weapon is also inadmissible unless, upon
remand, the State can show either that the police had an independent,
untainted source for the information leading to the gun or that the
gun would have been inevitably discovered through routine police
investigation.  Accordingly, the judgment of conviction is reversed
and the case is remanded for further proceedings consistent with this
opinion.

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

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