Opinion Flash

January 26, 2004
Volume 10 — Number 016

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 New Opinion(s) from the Tennessee Court of Appeals
13 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


SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0126.wpd

B & S ENTERPRISES v. WILLIAM ROWLAND, JR., Individually, WILLIAM
ROWLAND, SR., Individually, and WILLIAM ROWLAND, JR., and WILLIAM
ROWLAND, SR., d/b/a U.S.A. Windows

Court:TCA

Attorneys:                          

Jason W. Blackburn, Johnson City, Tennessee, for Appellant.

Charles L. Moffatt, Bristol, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

The Trial Judge refused to onerate an individual associated with
defendant corporation with an obligation of the corporation which had
been discharged in bankruptcy.  On appeal, we affirm.

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

IN RE J.J.C., D.M.C., AND S.J.B. A/K/A K. STATE OF TENNESSEE,
DEPARTMENT OF CHILDREN'S SERVICES v. JOHN CALABRETTA

Court:TCA

Attorneys:                          

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, John
Calabretta.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl
Dimond, Assistant Attorney General, Nashville, Tennessee, for the
appellee, State of Tennessee, Department of Children's Services.

Judge: KIRBY

First Paragraph:

This is a termination of parental rights case.  While the father was
incarcerated for driving offenses, the mother was arrested for
possession of drug paraphernalia.  As a result, the parties' two young
children were placed in state custody.  When the father was released
from prison, he contacted the state to enter into a plan of
permanency.  Subsequently, the state filed a petition to terminate the
parental rights of both the mother and the father, alleging that they
had failed to comply with the permanency plan, and that they abandoned
the children by willfully failing to pay child support to the state. 
Almost a year later, the trial court conducted a trial in the matter. 
After the trial, the trial court entered an order terminating the
parental rights of both the mother and the father.  The father's
parental rights were terminated based, in part, upon abandonment. 
Only the father has appealed from the trial court's decision.  We
reverse, finding that the evidence does not establish by clear and
convincing evidence that the father's failure to make support payments
was willful.

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

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE v.
BASIL MARCEAUX

Court:TCA

Attorneys:                          

Basil Marceaux, Soddy Daisy, Tennessee, Pro Se.

Ann O'Connell Simon; P. Jeff Campbell; John L. Kennedy, Nashville,
Tennessee, for the appellee, Metropolitan Government of Nashville and
Davidson County.

Judge: COTTRELL

First Paragraph:

Because the record confirms that the appellant did not perfect an
appeal from an adverse decision of the general sessions court within
ten days of that decision, we affirm the trial court's dismissal of
the late attempted appeal.

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

DAVID T. SEARS, ET AL. v. CHARLES GREGORY, ET AL.
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Lawrence H. Hart, Nashville, Tennessee, for the appellants, David T.
Sears and wife, Anita G. Sears, David T. Sears as natural guardian and
next friend of M.L.S., a minor and B.S., a minor.

M. Bradley Gilmore and Kathleen W. Smith, Nashville, Tennessee, for
the appellees, Charles Gregory, d/b/a Charles Pest Control and Charles
O'Brien, individually and severally, Western Surety Company.

Judge: CAIN

First Paragraph:

Plaintiff homeowners sued Defendant pest control operators for
negligent misrepresentation and breach of warranty relative to the
issuance by the Defendants of a wood destroying insect infestation
inspection report pursuant to Tennessee Code Annotated section
62-21-201 to 206.  The trial court granted summary judgment to
Defendants.  Because civil liability is limited by section 62-21-202
and Plaintiffs allege no damages caused by the presence of
wood-destroying insects, we affirm the judgment of the trial court.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/searsdavid_dis.wpd

JOSEPH B. THOMPSON v. KEITH WILSON, TED COMO, BECKY CAMPBELL, and
MICHELLE WILDER

Court:TCA

Attorneys:                          

Joseph B. Thompson, Nashville, Tennessee, pro se.

Darryl G. Lowe, Knoxville, Tennessee, for Appellees.

Judge: FRANKS

First Paragraph:

Plaintiff's action for libel against defendants was dismissed on
grounds the action was time-barred.  We affirm.

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

PATRICIA WATTERSON v. BENNY BYRD AND LINDA BYRD

Court:TCA

Attorneys:                          

Scott D. Hall, Sevierville, Tennessee, for Appellant.

Steven E. Marshall, Sevierville, Tennessee, for Appellees.

Judge: FRANKS

First Paragraph:

Plaintiff was injured in a fall while being chased by a dog. 
Plaintiff claimed defendants had harbored the dogs on their property,
but the Trial Court granted summary judgment.  We vacate on the
grounds that there is disputed material evidence as to the
applicability of Tenn. Code Ann. S 44-8- 408.

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

CLAY C. WHITELAW, ET AL. v. JAMES BROOKS, ET AL.

Court:TCA

Attorneys:                          

David A. Riddick, Jackson, TN, for Appellant

William H. Lassiter, Jr., Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves a claim for surveyor negligence in which a property
owner seeks recovery of damages in the form of attorney's fees from a
previous quiet title action and the lost opportunity to sell a portion
of the land for a value higher than the market value.  The trial court
awarded the plaintiff property owner both types of damages and we
affirm.

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

STATE OF TENNESSEE v. ROBERT BENJAMIN BOWEN

Court:TCCA

Attorneys:                          

Michael Fox, Nashville, Tennessee, for the appellant, Robert Benjamin
Bowen.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Kristen Shea, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

Upon his plea of guilty, the Defendant was convicted of DUI.  In this
appeal, he attempts to present two certified questions of law pursuant
to Tennessee Rule of Criminal Procedure 37(b)(2)(i).  Because we
conclude that this appeal does not properly present certified
questions of law, we dismiss the appeal.

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

STATE OF TENNESSEE v. RODNEY LARON COVINGTON

Court:TCCA

Attorneys:                          

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher and
Jay Steed, Assistant Public Defenders (on appeal) and J. Michael
Engle, Assistant Public Defender (at trial), Nashville, Tennessee, for
the Appellant, Rodney Laron Covington.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Bernard
McEvoy and Amy Eisenbeck, Assistant District Attorneys General, for
the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Rodney Laron Covington, was convicted by a Davidson
County jury of one count of rape of a child and two counts of
aggravated sexual battery.  Covington received a twenty-year sentence
for rape of a child and ten-year sentences for each aggravated sexual
battery conviction.  The sentences were ordered to be served
concurrently.  On appeal, he presents three issues for our review: (1)
whether testimony by a nurse practitioner violated the holding of
State v. Ballard, 855 S.W.2d 557 (Tenn. 1993); (2) whether the State's
recitation of the facts supporting the charge of  rape of a child was
"specific enough to ensure that the jury would reach a unanimous
decision" and "sufficiently corresponded to the State's proof;" and
(3) whether the proof established that the offense of rape of a child
occurred after July 1, 1992, as required for 100% service of the
sentence imposed under Tennessee Code Annotated section 39-13-523(b). 
 After review of the record, we find no reversible error. 
Accordingly, the judgments of the trial court are affirmed.

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

STATE OF TENNESSEE v. JOHN CRAWLEY, SR.

Court:TCCA

Attorneys:                          

Robin Farber, Columbia, Tennessee, for the appellant, John Crawley,
Sr.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; and Mike Bottoms, District
Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, John Crawley, Sr., pled guilty to driving under the
influence, first offense.  As part of his plea agreement, he expressly
reserved with the consent of the trial court and the State the right
to appeal a certified question of law pursuant to Tennessee Rule of
Criminal Procedure 37(b)(2)(i).  The certified question of law stems
from the trial court's denial of the Defendant's motion to suppress
all evidence obtained as a result of a police officer stopping the
Defendant's automobile.  Because we find that the police officer did
not have reasonable suspicion to stop the Defendant, we reverse the
trial court's denial of the motion to suppress.  This case is remanded
for entry of an order of dismissal.

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

ALONZO LEONARDO GAYDEN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Larry D. Brandon, Murfreesboro, Tennessee, for the appellant, Alonzo
Leonardo Gayden.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Alonzo Leonardo Gayden, appeals from the Rutherford
County Circuit Court's denying him post-conviction relief from his
2001 conviction for theft of property valued at $1,000 or more, a
Class D felony.  He contends that he received the ineffective
assistance of counsel.  We affirm the trial court.

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

STATE OF TENNESSEE v. MARTIN STUART HAMMOCK

Court:TCCA

Attorneys:                          

C. LeAnn Smith, Nashville, Tennessee, for the appellant, Martin Stuart
Hammock.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Victor S. Johnson III, District Attorney
General; and Bret T. Gunn, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Martin Stuart Hammock, was originally convicted of first
degree murder following a jury trial.  On appeal, this Court found
that there was insufficient evidence of premeditation to support a
conviction for first degree murder.  Accordingly, we modified the
judgment to reflect a conviction of second degree murder and remanded
the case to the trial court for re-sentencing.  State v. Martin Stuart
Hammock, No. M2000-00334-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 824,
(Tenn. Crim. App. at Nashville, Oct. 12, 2001), no perm. to app.
filed.  Following a new sentencing hearing, the trial court sentenced
Defendant to serve twenty-five years.  Defendant appeals.  After a
review of the record, the briefs, and the applicable law, we affirm
the judgment of the trial court.

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

ANTHONY DARRELL HINES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:   
                       
Donald E. Dawson, Post-Conviction Defender; and Jon Joseph Tucci,
Assistant Post-Conviction Defender, Nashville, Tennessee, for the
appellant, Anthony Darrell Hines.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Angele M. Gregory, Assistant Attorney General; Dan
M. Alsobrooks, District Attorney General; and B. Dent Morriss,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Anthony Darrell Hines, convicted of first degree
felony murder and sentenced to death for a 1985 homicide, appeals from
the denial of his petition for post-conviction relief, alleging that
counsel were ineffective at his 1986 trial and 1989 resentencing
hearing, that women were excluded from both juries, and that
imposition of the death penalty violates his rights under the federal
and state constitutions.  The post-conviction court denied the
petition after an evidentiary hearing.  Following our review, we
affirm the denial.

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

SHAMAIN JOHNSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Charles E. Walker, Nashville, Tennessee, for the appellant, Shamain
Johnson.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Roger Moore, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Shamain Johnson, appeals from the trial court's denial
of his petition for writ of habeas corpus.  Finding that denial of the
petition was appropriate, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. DYWAND CARLOS PETTWAY

Court:TCCA

Attorneys:                          

Donna Leigh Hargrove, District Public Defender, and Curtis H. Gann,
Assistant Public Defender (on appeal) and Andrew Jackson Dearing, III,
Assistant Public Defender (at trial), for the appellant, Dywand Carlos
Pettway.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael David Randles and Ann L. Filer, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON
 
First Paragraph:

A Bedford County Circuit Court jury convicted the defendant, Dywand
Carlos Pettway, of aggravated robbery, a Class B felony, and
possession of a Schedule II controlled substance, a Class A
misdemeanor.  The trial court sentenced him as a Range II offender to
twenty years in the Department of Correction for the aggravated
robbery conviction and eleven months, twenty-nine days for the
possession of a Schedule II controlled substance conviction, to be
served consecutively.  In this appeal, the defendant claims (1) that
the evidence is insufficient to support his aggravated robbery
conviction and (2) that his sentences are excessive.  We affirm the
judgments of the trial court.

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

STATE OF TENNESSEE v. ALONZO MAURICE ROGAN
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Daniel McMurtry, Nashville, Tennessee (at trial), and David A. Doyle,
District Public Defender (on appeal), for the appellant, Alonzo
Maurice Rogan.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General;  Lawrence R. Whitley, District Attorney
General; and Sallie W. Brown, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant filed a delayed appeal, alleging error: (1) in denying
the defendant the opportunity to file an amended motion for new trial;
(2) in the failure to amend the indictment for attempted first degree
murder to aggravated assault; (3) in the failure of the indictment for
evading arrest to contain statutory language; and, (4) in admitting
the defendant's confession in violation of an in limine order during
the second phase of a bifurcated trial.  We conclude that no
reversible errors were attendant and affirm the convictions.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/roganam_con.wpd

STATE OF TENNESSEE v. CHRISTOPHER ROBERT SMITH

Court:TCCA

Attorneys:                          

Cynthia M. Fort, Nashville, Tennessee, on appeal, for the Appellant,
Christopher Robert Smith.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; and Tammy
Meade and John Zimmerman, Assistant District Attorneys General, for
the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Christopher Robert Smith, was convicted by a Davidson
County jury of possession with intent to deliver over 300 grams of
cocaine, a class A felony.  Following this conviction, he was
sentenced to twenty-one years imprisonment.  Smith appeals, arguing
that (1) the trial court erred by denying his motion to suppress and
(2) the trial court improperly admitted evidence of prior criminal
conduct.  After a review of the record, the judgment of the trial
court is affirmed.

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

STATE OF TENNESSEE v. WALTER RAY SMITH, JR.

Court:TCCA

Attorneys:                          

Jeffrey S. Burton, Murfreesboro, Tennessee, for the appellant, Walter
R. Smith, Jr.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; and William C. Whitesell, Jr., District
Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Walter R. Smith, Jr., was convicted by a jury of five
counts of child rape.  Following a sentencing hearing, the trial court
imposed an effective sentence of forty years.  In this direct appeal,
the Defendant challenges the sufficiency of the evidence and his
sentences.  We affirm the Defendant's five convictions for child rape.
 The trial judge erred by failing to state on the record the facts
that support the imposition of consecutive sentences.  However, the
record clearly shows that consecutive sentencing was proper. 
Therefore, we affirm the Defendant's sentences.

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

STATE OF TENNESSEE v. DAVID I. TUCKER

Court:TCCA

Attorneys:                          

Ben Hall McFarlin, Burger Siskin, Scott, Goad & McFarlin,
Murfreesboro, Tennessee, for the Appellant, David I. Tucker.

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

Judge: HAYES

First Paragraph:

The Appellant, David I. Tucker, appeals the dismissal of his petition
requesting DNA analysis pursuant to the Post-Conviction DNA Analysis
Act.  After review, we find no error and affirm the judgment of the
Cannon County Circuit Court.

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

STATE OF TENNESSEE v. EMERY WELLS

Court:TCCA

Attorneys:                          

Robert L. Huskey, Manchester, Tennessee, for the Appellant, Emery
Wells.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
Charles Michael Layne, District Attorney General; and Jason Ponder,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Emery Wells, pled guilty to two counts of aggravated
assault and was sentenced to an effective eight-year sentence, with
the sentence being suspended after service of ninety days in jail.  A
probation violation warrant was subsequently issued alleging violation
of the following conditions: (1) failure to report to his probation
officer; (2) failure to obey the laws of this state; and (3) failure
to report a new arrest.  Following a hearing, the trial court revoked
Wells' suspended sentence and ordered his eight-year sentence to be
served with community corrections, after service of an additional
ninety-day period of jail confinement.  Wells concedes that the
violations occurred, but he argues that the revocation did not "aid
the interest of both the public and the [Appellant]," as it will
likely result in the loss of his employment.

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

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