Opinion Flash

February 04, 2004
Volume 10 — Number 023

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
15 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


CITY OF BRENTWOOD, TENNESSEE, ET AL. v. METROPOLITAN BOARD OF ZONING
APPEALS, ET AL.

Court:TCA

Attorneys:                          

James R. Tomkins, Nashville, Tennessee, and Roger A. Horner,
Brentwood, Tennessee, for the appellants, City of Brentwood,
Tennessee, Phil Hardeman, William J. Vaughn, Wesley Lamoureaux, and
Clarence Reynolds.

Karl F. Dean, Director of Law, J. Brooks Fox and John L. Kennedy,
Nashville, Tennessee, for the appellees, The Metropolitan Board of
Zoning Appeals and The Metropolitan Government.

Lawrence P. Leibowitz and Pamela P. Gibson, Knoxville, Tennessee, for
the appellee, Lamar Advertising Company.

Judge: KOCH

First Paragraph:

This appeal involves the efforts of the City of Brentwood to stop the
construction of a billboard located in Davidson County.  After
Nashville's zoning administrator granted a building permit for the
billboard, the City of Brentwood appealed to the Metropolitan Board of
Zoning Appeals.  When the Board affirmed the building permit, the City
of Brentwood and four neighboring property owners filed a petition for
common-law writ of certiorari in the Chancery Court for Davidson
County seeking judicial review of the Board's decision.  The trial
court granted the motions to dismiss filed by the Board and the owner
of the billboard on the ground that the City of Brentwood and the
individual property owners lacked standing.  We have determined that
the trial court erred by determining that the City of Brentwood and
its public officials lacked standing to seek judicial review of the
Board's decision.

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

MARY LEE DOTSON v. WILLIAM ENNIS DOTSON

Court:TCA

Attorneys:                          

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant,
William Ennis Dotson.

Kim B. Tycer, Pulaski, Tennessee, for the appellee, Mary Lee Dotson.

Judge: KOCH

First Paragraph:

This appeal involves the dissolution of a 28-year marriage by default.
 The wife filed for divorce in the Chancery Court for Maury County
and, after the husband failed to file a timely answer, filed for a
default judgment.  The trial court granted the default judgment even
though the husband had filed an answer and counterclaim on the day
before the hearing and later denied the husband's Tenn. R. Civ. P.
55.02 motion to set aside the default.  The husband has appealed.  We
have determined that the trial court properly granted the default
judgment but erred by refusing to later set the default judgment
aside.

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

LARRY FRANKENBACH v. LARRY ROSE, ET AL.

Court:TCA

Attorneys:                          

G. Thomas Nebel and Suzette Peyton, Nashville, For Appellant, Larry
Frankenbach

R. Eddie Wayland and D'Lesli M. Davis, Nashville, For Appellees, Marc
Ball, Scene 3, Inc., and STET, L.L.C.

Judge: CRAWFORD

First Paragraph:

This appeal arises from a dispute over proceeds from a failed
television series.  Appellants contracted with the owner of the
copyright to handle distribution of the series for which they were to
receive a percentage of profits.  Owner of the copyright also
contracted with Appellees to secure funding for the series with
Appellees' obligation limited to $1.6 million in expenses for the
series.  To that end, Appellees paid vouchers submitted by owner of
the copyright, which included payment of agents fees to Appellants. 
When the $1.6 million cap was reached, Appellees stopped paying
vouchers.  The owner of the copyright subsequently filed for
bankruptcy.  Appellants sued Appellees and alleged numerous causes of
action in both contract (i.e., oral contract, answering for debt of
another, partial performance, promissory estoppel, and The Statute of
Frauds) and tort (i.e., fraud, promissory fraud, negligent
misrepresentation, tortious interference with contract, interference
with business relationship, concert of action/joint enterprise).  The
trial court granted summary judgment to Appellees on all causes of
action.  Appellants appeal.  We affirm.

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

STATE OF TENNESSEE v. CHARLES RAY ALLEN

Court:TCCA

Attorneys:                          

Michael Colavecchio, Nashville, Tennessee, for the appellant, Charles
Ray Allen.

Paul G. Summers, Attorney General; Jennifer L. Bledsoe, Assistant
Attorney General; Victor S. Johnson, District Attorney General; and
Kimberly Cooper, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Charles Ray Allen, was convicted by a jury of first
degree premeditated murder and attempted voluntary manslaughter.  The
Defendant subsequently filed for post-conviction relief alleging,
among other things, ineffective assistance of counsel at trial.  After
an evidentiary hearing, the trial court denied relief, and the
Defendant now appeals.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. CRAIG PATRICK HEBERT

Court:TCCA

Attorneys:                          

David E. Brandon, Nashville, Tennessee, for the appellant, Craig
Patrick Hebert.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Scott McMurtry, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

A Metro Nashville police officer stopped the appellant for improper
mounting of tags on his vehicle and drinking a beer while driving in
downtown Nashville.  After performing poorly on the field sobriety
test, the police officer arrested the appellant and asked him to take
a breathalyzer test.  After taking the test, the officer determined
the appellant was intoxicated and arrested him for Driving Under the
Influence (DUI).  The appellant now appeals arguing that the evidence
was insufficient to support his conviction and the State did not meet
the requirements under State v. Sensing, 843 S.W.2d 412 (Tenn. 1992),
for introducing the breathalyzer test.  We conclude that there is
sufficient evidence to support the conviction and that the Sensing
requirements are not applicable to the case at hand because the
results of the breathalyzer test were not introduced into evidence. 
We also hold that the arresting officer's testimony concerning the
appellant's behavior while taking the breathalyzer test was admissible
in evidence against the appellant.  Therefore, we affirm the judgment
of the trial court.

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

JOHNNY MARVIN HENNING, PRO SE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Johnny Marvin Henning, pro se.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General, for the appellee, State of  Tennessee.

Judge: RILEY

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court pursuant to Rule 20, Rules of the Court of
Criminal Appeals. The Petitioner, Johnny Marvin Henning, appeals the
trial court's denial of his petition for habeas corpus relief. 
Finding that the Petitioner has failed to assert a ground entitling
him to habeas corpus relief, this Court affirms the judgment of the
trial court dismissing the petition.

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

COREY JOHNSON, PRO SE v. TONY PARKER, WARDEN

Court:TCCA

Attorneys:                          

Corey Johnson, pro se.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, III,
Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The Petitioner, Corey Johnson, appeals the trial court's denial of his
petition for habeas corpus relief.  The State has filed a motion
requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals.  
Petitioner has failed to allege any ground that would render the
judgment of conviction void.  Accordingly, we grant the State's motion
and affirm the judgment of the lower court.

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

STATE OF TENNESSEE v. JAMES A. JOHNSON

Court:TCCA

Attorneys:                          

Guy T. Wilkinson, District Public Defender, and Richard W. DeBerry,
Assistant Public Defender, for the appellant, James A. Johnson.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and John W. Overton, Chief Deputy District Attorney, for the
appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals his convictions and sentences on two counts of
aggravated sexual battery.  The defendant was sentenced to two
twelve-year terms, to be served consecutively for an effective
sentence of twenty-four years.  The defendant asserts three issues for
review: (1) insufficiency of the evidence to support the convictions;
(2) error in the use of enhancement factors in determining the length
of the sentences imposed; and (3) error in ordering the sentences
served consecutively.

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

STATE OF TENNESSEE v. TERRANCE LEWIS

Court:TCCA

Attorneys:                          

Jack S. Hinson, Lexington, Tennessee, for the appellant, Terrance
Lewis.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and Bill R. Martin, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant was convicted by a Henderson County Circuit Court jury
in consolidated cases of aggravated robbery, a Class B felony, and
especially aggravated robbery, a Class A felony.  He was sentenced by
the trial court as a Range I, standard offender to eight years for the
aggravated robbery conviction, and as a violent offender to twenty
years for the especially aggravated robbery conviction, with the
sentences ordered to be served concurrently, for an effective sentence
of twenty years in the Department of Correction.  He raises
essentially one issue on appeal: whether the trial court erred in
denying his pretrial motion to suppress his statement to police. 
Following our review, we affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. QUINTON SANDERS

Court:TCCA

Attorneys:                          

John E. Herbison, Nashville, Tennessee, for the appellant, Quinton
Sanders.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Jerry Kitchen and Amy Weirich, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

Following his transfer from juvenile court, the appellant, Quinton
Sanders, was convicted of first degree felony murder, attempted theft
of property over $1,000 but less than $10,000 in value, and theft of
property over $10,000 but less than $60,000 in value.  He received
sentences of life imprisonment, two years, and five years,
respectively.  All sentences are to be served consecutively.  In this
appeal, the appellant maintains that the trial court erred in failing
to instruct the jury with respect to any lesser-included offenses of
felony murder.  The appellant also maintains that the trial court
erred in excluding evidence of the Memphis Police Department's
policies and procedures regarding high-speed chases.  The State
maintains that the trial court properly excluded evidence of the high
speed chase policies and procedures, but concedes that the trial court
erred in declining to instruct the jury with respect to the
lesser-included offenses of felony murder.  After an exhaustive
examination of the record and applicable authorities, we conclude that
the trial court did indeed err in declining to instruct the jury on
the lesser-included offenses of felony murder and the error is not
harmless beyond a reasonable doubt. We also conclude that the trial
court properly excluded evidence of the high speed chase policies and
procedures of the Memphis Police Department.  Accordingly, the
appellant's conviction for first degree felony murder is Reversed and
Remanded for a new trial in accordance with this opinion.  His
remaining convictions for attempted theft and theft as well as the
sentences for those offenses are affirmed.

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

STATE OF TENNESSEE v. RAY SAULSBERRY

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender; and Tony N. Brayton,
Michael Johnson, and Gregg Carman, Assistant Public Defenders, for the
appellant, Ray Saulsberry.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Amy Weirich, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was convicted of robbery and driving while a habitual
motor vehicle offender.  The defendant contends on appeal that the
trial court erred in 1) denying his constitutional right to the
assistance of counsel, and 2) conducting the trial in absentia while
the defendant was not represented by counsel.  We conclude that once
elbow counsel has been appointed, and the defendant is absent
voluntarily or through removal because of behavior, the trial court
should require elbow counsel to represent the absent defendant.  Under
the facts of this case, the trial court erred in not requiring elbow
counsel to proceed to represent the defendant when he was removed from
the courtroom.  Accordingly, the judgments of conviction are reversed
and remanded for a new trial.

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

JAMES E. TAYLOR, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Roger Swindle, Hendersonville, Tennessee, for the appellant, James E.
Taylor, Jr.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and Byrna Grant, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, James E. Taylor, petitioned for post-conviction relief
from his convictions of aggravated assault, aggravated burglary, and
aggravated kidnapping.  He alleged that he received ineffective
assistance of counsel.  After a hearing, the trial court denied
relief, and the Defendant now appeals.  We affirm the judgment of the
trial court.

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

JOSEPH MARTIN THURMAN v. STATE

Court:TCCA

Attorneys:                          

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Joseph
Martin Thurman.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; J. Michael Taylor, District Attorney
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner, Joseph Martin Thurman, appeals the dismissal of his
petition for post-conviction relief based upon its filing beyond the
statute of limitations.  He argues that due process considerations
tolled the limitations period of Tennessee Code Annotated section
40-30-102(a) and that the trial court erred in dismissing the petition
without an evidentiary hearing.  Because the time for filing the
petition cannot be tolled under the circumstances presented in this
case, we conclude that the petition for post-conviction relief was
untimely and we affirm the decision of the trial court.

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

EUGENE TURNER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Pamela Drewery-Rodgers, Selmer, Tennessee, for the appellant, Eugene
Turner.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Jerry W. Norwood,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WEDEMEYER

First Paragraph:

A McNairy County jury convicted the Petitioner, Eugene Turner, of two
counts of premeditated first degree  murder and the trial court
sentenced the Petitioner to two concurrent life sentences with the
possibility of parole.  On direct appeal, this Court affirmed the
conviction, and the Tennessee Supreme Court denied the Petitioner's
application for permission to appeal.  The Petitioner then sought
post-conviction relief in the trial court, alleging that he was denied
effective assistance of counsel.  Following a hearing, the
post-conviction court dismissed the petition.  Finding no error, we
affirm the post-conviction court's judgment.

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

DARRELL WATKINS, PRO SE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Darrell Watkins, pro se.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: RILEY

First Paragraph:

The Petitioner, Darrell Watkins, appeals the trial court's denial of
his petition for habeas corpus relief.  The State has filed a motion
requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals.  The
Petitioner fails to assert a ground entitling him to habeas corpus
relief.  Accordingly, the State's motion is granted and the judgment
of the trial court is affirmed.

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

STATE OF TENNESSEE v. JAMES Q. WILKERSON

Court:TCCA

Attorneys:                          

Troy L. Brooks, Mt. Juliet, Tennessee, for the Appellant, James Q.
Wilkerson.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Helena Walton Yarbrough, Assistant Attorney
General; Tom P. Thompson, Jr., District Attorney General; and Howard
Chambers, Assistant District Attorney General, for the Appellee, State
of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, James Q. Wilkerson, appeals the decision of the Wilson
County Circuit Court sentencing him to three years confinement in the
Department of Correction.  On appeal, Wilkerson contends that the
trial court erred in denying an alternative sentence.  After review,
we conclude that the sentencing proof is insufficient to overcome the
statutory presumption that Wilkerson is a favorable candidate for
alternative sentencing.  Accordingly, we modify Wilkerson's sentence
to reflect a sentence of split confinement.

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

EDDIE WILLIAMS, JR., PRO SE v. DAVID MILLS, WARDEN

Court:TCCA

Attorneys:                          

Eddie Williams, Jr., pro se.

Paul G. Summers, Attorney General & Reporter; Kathy Denise Aslinger,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: HAYES

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court by order pursuant to Rule 20, Rules of the
Court of Criminal Appeals.  The Petitioner appeals the trial court's
denial of habeas corpus relief.  The Petitioner fails to assert a
cognizable ground for habeas corpus relief.  Accordingly, the State's
motion is granted and the judgment of the trial court is affirmed.

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

ROBERT ZANDI, PRO SE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Robert Zandi, pro se

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General, for the appellee, the State of Tennessee.

Judge: GLENN

First Paragraph:

The Petitioner, Robert Zandi, appeals the trial court's denial of his
petition for post-conviction relief.  The State has filed a motion
requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. 
Concluding that the petition is barred by the one-year statute of
limitations, the State's motion is granted and the denial of relief
entered by the trial court is affirmed.

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

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