Opinion Flash

February 20, 2004
Volume 10 — Number 034

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
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
02 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


CITY OF COOKEVILLE, TN by and through COOKEVILLE REGIONAL MED. CTR. v.
WILLIAM M. HUMPHREY, M.D., ET AL.

Court:TSC

Attorneys:                          

William H. West, Nashville, Tennessee, for the appellants, Daniel F.
Coonce, M.D., William M. Humphrey, M.D., John P. Limbacher, M.D.,
George O. Mead, M.D., and Putnam Radiology, P.C.

Andree Sophia Blumstein, Nashville, Tennessee, for the appellee, City
of Cookeville by and through Cookeville Regional Medical Center.

William B. Hubbard, Nashville, Tennessee, for the amicus curiae,
Tennessee Hospital Association.

Brian W. Holmes and David L. Steed, Nashville, Tennessee, for the
amici curiae, American College of Radiology, American Medical
Association, Medical Staff of Cookeville Regional Medical Center,
Putnam County Medical Society, and Tennessee Medical Association.

Judge: HOLDER

First Paragraph:

In this declaratory judgment action, the plaintiff, a private act
hospital authority established pursuant to Tennessee Code Annotated
sections 7-57-601 to -604, seeks a declaration that it has the
authority to enter into an exclusive contract for professional imaging
services.  The defendants, four radiologists who currently have
clinical privileges at the Imaging Department of a hospital operated
by the plaintiff, filed a counterclaim.  We affirm the judgments of
the lower courts, holding that Tennessee Code Annotated section
7-57-603 permits the hospital authority to enter into an exclusive
provider contract, that the Board of Trustee's decision to close the
staff of the Imaging Department did not violate the medical staff
bylaws, and that the defendants are not legally or constitutionally
entitled to a hearing if their clinical privileges are terminated upon
the entry of an exclusive provider contract.

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

JUDITH CHRISTENBERRY v. STANLEY F. TIPTON, ET AL.

Court:TCA

Attorneys:                          

David L. Buuck, Knoxville, Tennessee, for the appellant, Judith
Christenberry.

J. Gregory O'Connor, Knoxville, Tennessee, for the appellee, State
Automobile Mutual Insurance Company.

William Arthur Simms, Knoxville, Tennessee, for the appellee, Stanley
F. Tipton.

Judge: SUSANO

First Paragraph:

This case arises out of an automobile accident.  The primary focus of
this appeal is on questions pertaining to uninsured motorists ("UM")
coverage.  At the time of the accident, Judith Christenberry ("the
plaintiff") - a single woman - was riding as a backseat passenger in
an automobile owned and driven by her friend, the defendant Stanley F.
Tipton ("the defendant driver").  The plaintiff sued the defendant
driver and "John Doe" - the unidentified motorist who caused the
defendant driver to lose control of his vehicle - for damages
resulting from serious personal injuries sustained by her in the
accident.  The plaintiff secured service of process on State
Automobile Mutual Insurance Company ("State Auto")  seeking UM
benefits under a "commercial auto insurance policy" ("the
Christenberry policy" or "the policy") issued to Christenberry
Trucking and Farm, Inc. ("the Christenberry company") and Clayton V.
Christenberry, Jr.,  the plaintiff's former husband.  State Auto
contends that the plaintiff, when riding in a non-covered vehicle, is
not an "insured" under the Christenberry policy and, as a consequence
of this fact, is not entitled to UM benefits under the policy.  State
Auto moved for summary judgment as did the defendant driver.  The
trial court granted both motions.  The plaintiff appeals, challenging
both rulings.  We affirm.

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

IN RE:  M.E.A. BY: ELIZABETH JOY ARGO EXUM, ET AL. v. KIMBERLY DARLENE
MOODY, ET AL.

Court:TCA

Attorneys:                          

David W. Camp, Jackson, For Appellant, Kimberly Moody

Catherine B. Clayton, Jackson, For Appellees, Elizabeth Joy Argo Exum
and James L.Exum

Judge: CRAWFORD

First Paragraph:

This is an appeal of a termination of parental rights case.  Appellant
mother contends that the petitioners have no standing to bring the
petition and also that the petitioners failed to prove by clear and
convincing evidence the grounds for termination and that the
termination was in the best interest of the child.  We affirm.

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

RONNIE M. CAUTHERN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Donald E. Dawson, Post-Conviction Defender; and Paul J. Morrow, Deputy
Post-Conviction Defender, for the Appellant, Ronnie M. Cauthern.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Jennifer L. Smith, Assistant Attorney General;
Glenn Pruden, Assistant Attorney General; John Wesley Carney, Jr.,
District Attorney General; and Arthur F. Beiber, Assistant District
Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Ronnie M. Cauthern, appeals the Montgomery County
Circuit Court's denial of his petition for post-conviction relief.  In
1988, the petitioner was convicted by a jury of two counts of felony
murder and sentenced to death.  He was also convicted of the related
crimes of first degree burglary and aggravated rape.  His convictions
were affirmed on direct appeal by the Tennessee Supreme Court, but his
death sentences were reversed and remanded for a new sentencing trial.
 Upon retrial before a jury in 1995, the petitioner received the death
penalty for the murder of one victim and a sentence of life
imprisonment for the second victim's murder.  Those sentences were
appealed and affirmed, following which the petitioner instituted a
collateral proceeding seeking post-conviction relief from his
convictions and sentences.  Lengthy hearings were conducted on the
petitioner's claims, the majority of which involved allegations that
counsel representing him in his 1988 and 1995 trials rendered
constitutionally ineffective assistance of counsel.  On appeal, the
petitioner contends (1) that trial counsel's services were deficient
and prejudicial; (2) that the state suppressed exculpatory evidence in
violation of his due process rights; (3) that the United States
Supreme Court's opinions in Apprendi v. New Jersey and Ring v. Arizona
require that his death sentence be set aside; (4) that he was entitled
to but was not notified of his right to seek German consular
assistance pursuant to the Vienna Convention on Consular Relations;
(5) that the lower court erroneously concluded that some of his claims
had been waived or previously determined; (6) that Tennessee's system
of capital punishment is unconstitutional; and (7) that erroneous jury
instructions impaired his right to a fair trial.  After an extensive
review of the record and consideration of applicable law, we affirm
the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. TERRY CLARK

Court:TCCA

Attorneys:                          

Columbus Wade Bobo, Ashland City, Tennessee, for the appellant, Terry
Clark.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Richard H. Dunavant, Assistant Attorney General;
Dan Mitchum Alsobrooks, District Attorney General; and Kim G. Menke,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Dickson County jury convicted the Defendant, Terry Clark, of driving
under the influence of an intoxicant ("DUI") and assault.  The
Defendant alleges that the evidence is insufficient to support her
assault conviction.  After reviewing the record, we conclude that
sufficient evidence exists and, accordingly, we affirm the judgment of
the trial court.

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

RONNIE GRAVES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); James  T.
Powell, Union City, Tennessee (at hearing), for the appellant, Ronnie
Graves.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner was indicted for first degree murder and subsequently
pled guilty to voluntary manslaughter.  Pursuant to the plea
agreement, the petitioner was sentenced to fifteen years as a career
offender with a 60% release eligibility date.  The petitioner appeals
the post-conviction court's denial of post-conviction relief, arguing:
(1) he received ineffective assistance of counsel; and (2) his guilty
plea was made unknowingly with respect to his release eligibility
status as a career offender.  Upon review of the record and the
applicable law, we affirm the post-conviction court's denial of
post-conviction relief.

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

STATE OF TENNESSEE v. DEJI A. OGUNDIYA

Court:TCCA

Attorneys:                          

David L. Raybin, Nashville, Tennessee, for the appellant, Deji A.
Ogundiya.

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

Judge: WELLES

First Paragraph:

After a mistrial in August of 2001, the Defendant, Deji Ogundiya, was
retried and convicted by a jury of three counts of sexual battery.  In
this appeal, the Defendant raises several issues, including whether
the trial court erred by failing to charge misdemeanor assault as a
lesser-included offense of sexual battery.  The State concedes that
the trial court so erred.  We agree that the trial court committed
reversible error by failing to charge the jury with the
lesser-included offense.  Therefore, the Defendant's convictions are
reversed and the case is remanded for a new trial.

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

STATE OF TENNESSEE v. SHAUN DAVID PIERCE

Court:TCCA

Attorneys:                          

Andrew Jackson Dearing, Lewisburg, Tennessee, for the appellant, Shaun
Pierce.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Mike McCown, District Attorney General;
and Weakley E. Barnard, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Shaun David Pierce, pled guilty to four counts of
burglary of an automobile, a Class E felony, two counts of theft over
one-thousand dollars, a Class D felony, two counts of theft over
five-hundred dollars, a Class E felony, four counts of theft under
five-hundred dollars, a Class A misdemeanor, and two counts of
vandalism under five-hundred dollars, a Class A misdemeanor.  The
Defendant received an effective sentence of sixteen years.  The sole
issue in this direct appeal is whether the trial court erred by not
allowing the Defendant to serve his sentence in the community
corrections program.  We affirm the judgments of the trial court.

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

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