Opinion Flash

February 25, 2004
Volume 10 — Number 037

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
09 New Opinion(s) from the Tennessee Court of Appeals
06 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. ALLEN PRENTICE BLYE

Court:TSC

Attorneys:                          

Kenneth F. Irvine, Jr., and Julie A. Rice, Knoxville, Tennessee (on
appeal); Terry Jordan, Assistant Public Defender, Blountville,
Tennessee (at trial and on appeal); and Mark Toohey, Kingsport,
Tennessee (at trial), for the appellant, Allen Prentice Blye.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mark A. Fulks, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Joseph E. Perrin,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: BIRCH

First Paragraph:

We granted permission to appeal in this case to consider whether the
Sixth Amendment entitles the defendant to participate, through
counsel, in the determination of the existence of probable cause for
the issuance of a warrant to seize a sample of the defendant's blood. 
Because we find that the defendant has no such entitlement, we affirm
the judgment of the Court of Criminal Appeals.

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

WILLIAM OWEN BARBER v. AMELIA DIANNE BARBER CHAPMAN

Court:TCA

Attorneys:                          

Dan R. Alexander, Nashville, Tennessee, for the appellant, Amelia
Dianne Barber Chapman.

Martin A. Kooperman, Nashville, Tennessee, for the appellee, William
Owen Barber.

Judge: CLEMENT

First Paragraph:

Mother and Father divorced in South Carolina in 1989.  Father gained
custody of parties' two minor children.  Mother was ordered to pay
child support.  Subsequently, both parties left South Carolina with
Mother living in Tennessee and Father living in Texas.  In 2002, the
parties entered into an agreed order registering the South Carolina
divorce decree in the Circuit Court for Davidson County, Tennessee
pursuant to Tenn. Code Ann. S 36-6-229.  Father then filed a petition
for contempt asserting that Mother had failed to make the last
twenty-four child support payments.  The trial court granted Father's
petition, ordering Mother to pay $10,490.67, holding Mother in
criminal contempt and sentencing her to thirty days in jail.  Mother
filed a motion to alter or amend, asserting that the trial court
lacked jurisdiction and that the punishment was excessive.  Mother's
motion was denied and this appeal followed.  We affirm.

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

SAMUEL TIMOTHY COLLINS v. KNOX COUNTY, TENNESSEE, et al
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

John K. Harber, Knoxville, Tennessee, for the Appellant, Samuel
Timothy Collins

Arthur G. Seymour, Jr. and Robert L. Kahn, Knoxville, Tennessee, for
the Appellee, NBC Bank

Judge: GODDARD

First Paragraph:

This appeal arises out of a complaint filed by the Appellant, Samuel
Timothy Collins, against the Appellee, NBC Bank, for damages he
allegedly incurred as a consequence of his erroneous arrest and
incarceration by the Knox County Sheriff's Department.  We affirm the
judgment of the Trial Court.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/collinssamuelt_con.wpd

JANICE FORSYTH, ET AL. v. MARY N. CROSS

Court:TCA

Attorneys:                          

James Frank Wilson, Wartburg, Tennessee, Attorney for Appellant, Mary
N. Cross.

Joe R. Judkins, Wartburg, Tennessee, Attorney for Appellees, Janice
Forsyth and Paul Forsyth.

Judge: INMAN

First Paragraph:

This is a boundary-line case.  The Defendant's survey evidence was
excluded, and reputation evidence offered by the Plaintiff as to the
common boundary line was admitted.  Defendant appeals.  We affirm.

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

STATE OF TENNESSEE, DEPT. OF HUMAN SERVICES, ex rel. BRENDA LEACH
HADLEY-REDD v. MORRIS MURPHY HADLEY

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Warren Jasper,
Assistant Attorney General, Nashville, For Appellant, State of
Tennessee Department of Human Services

No appearance for Appellee

Judge: CRAWFORD

First Paragraph:

In the final decree of divorce, husband was ordered to pay child
support.  Husband relocated out of state.  When wife located husband,
she filed a UIFSA petition seeking recovery of child support
arrearages, which was transferred to Louisiana.  Husband then filed in
this Court a petition for declaratory judgment that wife's petition is
barred by the statute of limitations.  The trial court ruled that
wife's petition is barred by the ten-year statute of limitations in
T.C.A. S 28-3-110 (2000).  Wife appeals.  We affirm.

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

MARK EDWARD IGOU v. DINAH CAROL IGOU

Court:TCA

Attorneys:                          

Phillip C. Lawrence, Chattanooga, Tennessee, for the Appellant, Dinah
Carol Igou.

Steven M. Jacoway, Chattanooga, Tennessee, for the Appellee, Mark
Edward Igou.

Judge: SWINEY

First Paragraph:

Mark Edward Igou ("Husband") sued Dinah Carol Igou ("Wife) for a
divorce.  After trial, the Trial Court awarded Wife alimony only to
the extent of requiring Husband to "pay all cost of tuition, books,
fees, and other charges relating to [Wife's] obtaining a master's
degree whether it's in education or any other related field which will
increase her compensation" with the restrictions that Wife must
complete the course of study within five years from the entry of the
Trial Court's order and that Wife must achieve passing grades.  Wife
appeals the Trial Court's judgment as to alimony and attorney fees. 
We affirm.

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

J.L. MAC-TN, INC. v. STATE OF TENNESSEE, ET AL.

Court:TCA

Attorneys:                          

Richard J. Braun, Patricia E. Crotwell, Nashville, Tennessee, for the
appellant, J.L. Mac-TN, Inc.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General, Kae Carpenter Todd, Assistant Attorney General, for
the appellee, State of Tennessee and Tennessee Department of
Environment and Conservation.

Judge: CAIN

First Paragraph:

J.L. Mac-Tn, Inc. and the State contracted for J.L. Mac's provision of
tire shredding services at the various county disposal facilities
requiring those services.  Subsequent to that contract, the state
legislature established new procedures for tire disposal requiring the
counties to find an end use for the shredded tires, and eventually
prohibiting the land filling of shredded tires.  The amount of
services required of J.L. Mac under the contract were significantly
reduced.  J.L. Mac commenced this action seeking damages for alleged
breach of the contract for shredding services.  The Claims Commission
granted summary judgment to the State.  From that summary judgment
J.L. Mac appeals.  We affirm.

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

LINDA G. JOHNSON v. MARK REINEKE, ET AL.

Court:TCA

Attorneys:                          

William Allen, Oak Ridge, Tennessee, attorney for appellant, Linda G.
Johnson.

Paul G. Summers, Attorney General and Reporter; Warren A. Jasper,
Assistant Attorney General, General Civil Division, for appellee,
Department of Labor and Workforce Development.

John E. Winters, Knoxville, Tennessee, attorney for appellee, Lenoir
City Housing Authority.

Judge: INMAN

First Paragraph:

The Petitioner was discharged from her executive position as Director
of the Lenoir City Housing Authority for misconduct connected with her
employment.  The Authority was awarded McKinney Act funds, an audit of
which revealed that $156,000.00 of these funds were inappropriately
expended, which led to the discharge of the Petitioner.

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

JOHN F. MCCARTHY v. UT-BATTLE, LLC

Court:TCA

Attorneys:                          

Jerrold L. Becker, Knoxville, Tennessee, attorney for Appellant, John
F. McCarthy..

Jeffrey S. Guilford and Alan M. Parker, Oak Ridge, Tennessee,
attorneys for Appellee, UT-Battelle, LLC.

Judge: INMAN

First Paragraph:

The Plaintiff was an at-will employee of the Defendant when he was
terminated for an asserted cause.  In this action he alleges that he
was wrongfully terminated because the Oak Ridge National Laboratory
Handbook afforded him a contractual right of peer review.  The motion
of the Defendants for summary judgment was granted upon a finding that
the Handbook was not an employment contract.  We affirm.

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

JOSEPH SPIVEY v. TERRY PAGE, ET AL.

Court:TCA

Attorneys:                          

Wade B. Cowan, Nashville, Tennessee, for the appellant, Joseph Spivey.

Thomas T. Pennington; Gregory H. Oakley, Nashville, Tennessee, for the
appellees, Terry Page, and Page & Associates, P.C.

Judge: COTTRELL

First Paragraph:

This appeal involves a question of valuation of the shares of a
withdrawing shareholder from a professional corporation.  We reverse
the trial court's determination that the shares had no value and hold
that the valuation should have been made as of the date of withdrawal.
 We also hold that the withdrawing shareholder may recover the value
of his shares from the sole remaining shareholder who removed the
corporation's assets after the notice of withdrawal.

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

ROBERT E. ALLEN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Robert E.
Allen.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Richard H. Dunavant, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Leslie Nassios,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Robert E. Allen, pled guilty to aggravated assault,
three counts of domestic assault, vandalism, evading arrest, public
intoxication and reckless burning.  The trial court sentenced him to
five years in prison for the aggravated assault and eleven months and
twenty-nine days on each of the other charges, with the sentences to
run concurrently.  The Petitioner did not perfect an appeal of his
sentence, but petitioned for post-conviction relief on the grounds
that he was denied effective assistance of counsel.  Following a
hearing on the post-conviction petition, the post-conviction court
dismissed the petition.  On appeal, the Petitioner contends that he
was denied effective assistance of counsel for the following reasons: 
(1) trial counsel failed to properly advise him as to the potential
sentences for all the charges covered in the plea agreement; and (2)
trial counsel failed to advise him of his right to appeal the sentence
imposed by the trial court.  Finding no error, we affirm the
post-conviction court's dismissal of the petition.

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

STATE OF TENNESSEE v. DANNY WAYNE ARNOLD

Court:TCCA

Attorneys:                          

Larry F. Wallace, Jr., Shelbyville, Tennessee, for the appellant,
Danny Wayne Arnold.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael D. Randles, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The defendant was convicted of robbery under a theory of criminal
responsibility for the conduct of another.  The defendant contends the
evidence was insufficient to sustain his conviction.  We conclude a
reasonable jury could have inferred the defendant's intent to assist
in the robbery based upon his contemporaneous assault on the victim. 
We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. PAUL ANTHONY BUCKNER

Court:TCCA

Attorneys:                          

Dwight E. Scott, Nashville, Tennessee, for the appellant, Paul Anthony
Buckner.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Senior Counsel; Victor S. Johnson, III, District Attorney General; and
Christopher R. Buford and Sarah N. Davis, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The defendant pled guilty to two counts of attempted second degree
murder.  Following a sentencing hearing, the trial court imposed two
consecutive ten-year sentences.  The defendant contends on appeal the
trial court erred in imposing consecutive sentences.  We affirm the
judgments of the trial court.

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

STATE OF TENNESSEE v. TAVARUS LA'TRENT MARTINDALE

Court:TCCA

Attorneys:                          

J. Christopher Williams, Lawrenceburg, Tennessee, for the appellant,
Tavarus La'Trent Martindale.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; T. Michel Bottoms, District Attorney
General; and Robert C. Sanders and Patrick S. Butler, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Tavarus La'Trent Martindale, was convicted by a jury in
the Giles County Circuit Court of murder in the first degree and
sentenced to life in prison without the possibility of parole.  In
this appeal as of right, the defendant contends (1) that the evidence
is insufficient to convict him of murder in the first degree, (2) that
the trial court erred by not excluding the autopsy evidence, and (3)
that the trial court's sentencing instructions to the jury were
unclear as to the standard for imposing life in prison without the
possibility of parole or for imposing life in prison.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. CECIL MOSS

Court:TCCA

Attorneys:                          

William B. Lockert, III, District Public Defender; and Chris L. Young,
Assistant Public Defender, Ashland City, Tennessee, for the appellant,
Cecil Moss.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Kim Menke, Assistant District Attorney General, for the
appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Cecil Moss, appeals from the trial court's order revoking
his probation and reinstating his original sentence to be served in
the Tennessee Department of Correction.  Defendant argues that the
trial court erred by failing to consider any alternative sentencing
options other than incarceration.  We affirm the judgment of the trial
court.

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

JOSEPH D. TAYLOR v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

N. Andy Myrick, Jr., Fayetteville, Tennessee, for the appellant,
Joseph D. Taylor.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Joseph Taylor, filed a petition for post-conviction relief
which was subsequently amended.  Following an evidentiary hearing, the
trial court dismissed the petition.  On appeal, Petitioner argues that
his trial counsel rendered ineffective assistance of counsel because
he (1) failed to adequately meet with Petitioner prior to trial; (2)
failed to interview and call certain witnesses to testify; (3) failed
to request a jury instruction on assault as a lesser-included offense
of attempted rape; and (4) failed to object to the classification of
Petitioner as a career offender when the trial court sentenced
Petitioner for attempted rape.  Petitioner also alleges that his
appellate counsel rendered ineffective assistance of counsel when he
failed to appeal the classification of Petitioner as a career offender
for purposes of sentencing.  After a thorough review of the record,
the judgment of the trial court is affirmed in part and reversed in
part, and this case is remanded to the trial court for a new
sentencing hearing in accordance with this opinion.

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

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