Opinion Flash

January 23, 2004
Volume 10 — Number 015

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):
01 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
07 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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


CHRISTY RENEE OSBORN v. JUSTIN CHANDLER MARR

Court:TSC

Attorneys:                          

Stacey M. Brackeen, Franklin, Tennessee, for the Appellant, Justin
Chandler Marr.

Kenneth W. Rucker, Nolensville, Tennessee, for the Appellee, Christy
Renee Osborn.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Elizabeth C. Driver, Assistant Attorney General,
for the intervenor, State of Tennessee.

Judge: HOLDER

First Paragraph:

We granted this appeal to determine whether Tennessee Code Annotated
section 36-1-113(g)(6), which provides for the termination of parental
rights when a parent is imprisoned for at least ten years due to a
criminal act and the child is under the age of eight when the sentence
is imposed, also requires a showing of substantial harm to the child
before a parent's rights may be terminated.  Because we hold that a
parent does not have standing to file a petition pursuant to Tennessee
Code Annotated section 36-1-113(g)(6), we lack subject matter
jurisdiction to hear the merits of the appeal.  Accordingly, we
dismiss this case and vacate the judgments of the lower courts.

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

JIMMY H. SPURLOCK v. BOILER & HEAT EXCHANGE SYSTEMS, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

Ronald J. Berke, Chattanooga, Tennessee, attorney for the Appellant,
Jimmy H. Spurlock.

C. Douglas Dooley, Charles W. Poss and Michael D. Newton, Chattanooga,
Tennessee, attorneys for Appellee, Boiler & Heat Exchange Systems,
Inc.

Judge: BYERS

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.   The
Plaintiff alleges he suffers from a occupational disease within the
definition thereof contained in Tenn. Code Ann. S 50-6-301.  The trial
judge found the plaintiff failed to show that his lung disease was
caused by or arose from his occupation as a welder with the Defendant
and dismissed the case.  We affirm the judgment of the trial court.

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

DANIEL C. BARNES v. CLINT BARNES, ET AL.

Court:TCA

Attorneys:                          

David B. Hill, Newport, Tennessee, for the appellant, Daniel C.
Barnes.

William M. Leibrock, Newport, Tennessee, for the appellee, Clint
Barnes.

No appearance on behalf of appellee, Gary Williams.

Judge: SUSANO

First Paragraph:

Daniel C. Barnes ("the Barnes son") filed a complaint against his
father, Clint Barnes ("the senior Mr. Barnes"), and half brother, Gary
Williams, to quiet title to, and partition, four acres of land in
Cocke County ("the property") that had been purchased by the
plaintiff's parents ("the Barnes").  The Barnes son claims that a
tenancy in common was created when the Barnes purchased the property,
due to the fact that, according to the Barnes son, his parents were
not then legally married.  The Barnes son argues that, when his mother
died, he inherited half of her one-half interest, i.e., an undivided
one-fourth interest in the property.   The Barnes son asked the trial
court to (1) remove the cloud from his title; (2) partition the
property pursuant to Tenn. Code Ann. S 29-27-101, et seq.; and (3) in
the alternative, sell the property pursuant to Tenn. Code Ann. S
29-27-201 (2000).  Following a bench trial, the trial court dismissed
the complaint.  The Barnes son appeals.  We affirm.

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

JACKIE R. CLINE v. EMILY C. PLEMMONS

Court:TCA

Attorneys:                          

Jackie R. Cline, Etowah, Tennessee, pro se.

Emily C. Plemmons, Knoxville, Tennessee, pro se.

Judge: FRANKS

First Paragraph:

This is a dispute between brother and sister over the handling of the
affairs as conservators of their mother.  The brother appeals from the
Trial Court's rulings as to compensation, attorney's fees and
conservatorship.  On appeal, we affirm.

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

STATE OF TENNESSEE, EX REL., VIKKI DAVIS v. JOHN W. DAVIS

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter, and Stuart F.
Wilson-Patton, Senior Counsel, Nashville, Tennessee, for the
appellant, State of Tennessee ex rel. Vikki Davis.

John W. Davis, pro se

Judge: KIRBY

First Paragraph:

This case involves a judge's sua sponte decision not to enforce a
Tennessee statute.  The parties divorced in 1997, and the mother was
awarded custody of the parties' minor daughter.  The father was
required to pay child support.  The father failed to pay, and the
State filed a petition for contempt on the mother's behalf.  The
father was found in contempt for his failure to pay.  Sua sponte, the
trial judge refused to enforce the Tennessee statute requiring the
payment of a child support processing fee, citing a perceived
violation of an unspecified federal law.  The State appeals.  We
reverse, finding that the trial judge erred in refusing to apply the
statute.

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

LLOYD E. WILLIAMS v. STATE OF TENNESSEE

Court:TCA

Attorneys:                          

Lloyd E. Williams, Tiptonville, Tennessee, pro se Appellant. 

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Tiffany Baker Cox, Assistant Attorney General,
Nashville, Tennessee, for the Appellee, State of Tennessee.

Judge: SWINEY

First Paragraph:

Lloyd E. Williams ("Plaintiff"), who absconded while on bond, was
tried, convicted, and sentenced on drug charges in absentia.  Years
later, Plaintiff was apprehended and placed in prison.  Plaintiff sued
the State of Tennessee ("the State") claiming that the trial and
sentencing violated various statutory rights of his.  The State filed
a motion to dismiss.  The Claims Commission ("the Commission") 
granted the State's motion to dismiss.  Plaintiff appeals.  We affirm.

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

STACEY F. BALDON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

D. Michael Dunavant, Ripley, Tennessee, for the appellant, Stacey
Baldon.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Tracey A. Brewer, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Stacey Baldon, appeals from the trial court's denial
of post-conviction relief.  The issues presented for review are
whether the petitioner was denied the effective assistance of counsel
and whether the guilty pleas were knowingly and voluntarily entered. 
The judgment is affirmed.

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

STATE OF TENNESSEE v. LEVAR GRAY

Court:TCCA

Attorneys:                          

Ross A. Sampson, Memphis, Tennessee (on appeal), and Charles Waldman,
Memphis, Tennessee (at trial), for the appellant, Levar Gray.

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

Judge: WADE

First Paragraph:

The defendant, Levar Gray, was convicted of two counts of aggravated
robbery and two counts of aggravated kidnapping.  The trial court
imposed sentences of twelve years for each of the four offenses. 
Because the trial court ordered partially consecutive sentencing, the
effective sentence is twenty-four years.  In this appeal of right, the
defendant contends that the evidence is insufficient to support the
convictions and that the sentence is excessive.  Because the record
does not support the imposition of maximum sentences for each
conviction and because consecutive sentences were not warranted, the
judgments must be modified to reflect concurrent sentences of ten
years for each conviction.

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

STATE OF TENNESSEE v. STACY L. MACK and MARTRESS SHAW
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

William Dan Douglas, Jr., Ripley, Tennessee, for the appellant, Stacy
L. Mack.

D. Michael Dunavant, Ripley, Tennessee, for the appellant, Martress
Shaw.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Thomas E. Williams, III, Assistant Attorney
General; Elizabeth T. Rice, District Attorney General; and Tracey Anne
Brewer, Assistant District Attorney General, for the appellee, State
of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendants appeal their convictions of possession of more than 0.5
grams of cocaine with intent to deliver.  The defendants allege error
in the trial court's failure to suppress evidence seized pursuant to a
search warrant and denial of their motions for judgment of acquittal. 
Upon review, we reverse the failure to suppress the search warrant and
reverse and dismiss the convictions of both defendants.  The
conviction of Stacy Mack is reversed due to insufficiency of the
evidence, and Martress Shaw's conviction is reversed due to
insufficiency of evidence after suppression of the search warrant.

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

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

STATE OF TENNESSEE v. ATTA NAJJAR

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender, and W. Mark Ward,
Assistant Public Defender (on appeal), and Leslie Ballin (at trial),
Memphis, Tennessee, for the appellant, Atta Najjar.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Tiffani Taylor and Gail Vermaas, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was convicted of aggravated rape and aggravated robbery.
 He contends on appeal that 1) the evidence was insufficient to
support the convictions, and 2) the trial court erred in instructing
the jury as to aggravated rape.  The judgment for aggravated robbery
is affirmed.  We conclude that a constructive amendment of the
indictment for aggravated rape occurred because the jury was permitted
to convict the defendant based on an element different from that which
was charged or included within the indictment.  Accordingly, the
judgment for aggravated rape is reversed.

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

FLOYD LEE PERRY, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

John M. Miles, Union City, Tennessee, for the appellant, Floyd Lee
Perry, Jr.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; and Thomas A. Thomas, District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Floyd Lee Perry, Jr., filed a petition for
post-conviction relief in the Obion County Circuit Court.  In his
petition, the petitioner raised several issues, with his two chief
complaints being that the trial court erred by failing to charge the
jury on the lesser-included offenses of felony murder and that trial
counsel was ineffective.  Subsequent to an evidentiary hearing, the
post- conviction court dismissed the petition and the petitioner
timely appealed.  Upon review of the record and the parties' briefs,
we affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. OCTAVIAN DEMETRIUS REEVES

Court:TCCA

Attorneys:                          

Clifford K. McGown, Jr. (on appeal), Waverly, Tennessee, and George
Morton Googe (at trial and on appeal), District Public Defender, for
the appellant, Octavian Demetrius Reeves.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and James W. Thompson, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals his conviction for second degree murder and the
sentence of twenty-five years.  After review, we conclude that the
restrictions placed on the defendant's cross-examination of the
witness were within the discretion of the trial court.  Further, we
affirm the conviction and sentence imposed.

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

STATE OF TENNESSEE v. JASON WHITE

Court:TCCA

Attorneys:                          

Shawn G. Graham, Maryville, Tennessee, for the appellant, Jason White.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner,
Assistant Attorney General; Mike Flynn, District Attorney General; and
Edward P. Bailey, Jr., Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

Following a bench trial appellant, Jason White, was found guilty of
D.U.I. Second Offense in violation of T.C.A. 55-11-401.   He was
sentenced to eleven months and twenty-nine days with incarceration for
forty-five days followed by probation for the balance of the sentence.
The appellant appeals, contending that the evidence was not sufficient
for a D.U.I. Second Offense conviction.  After a review of the record
we affirm the judgment of the trial court.

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

Vote Required for Zoning Ordinance

Date: January 16, 2004

Opinion Number: 04-007                         

http://www.tba.org/tba_files/AG/2004/op7.pdf

Authority of a Trial Court to Set Bail Bond Requirements

Date: January 21, 2004

Opinion Number: 04-008                         

http://www.tba.org/tba_files/AG/2004/op8.pdf

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