Opinion Flash

March 5, 2004
Volume 10 — Number 044

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
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
03 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


JUDITH A. JOHNSON, SURVIVING WIDOW OF DAVID C. JOHNSON, ET AL. v.
ROBERT B. RICHARDSON, d/b/a RICHARDSON LANDSCAPING & TRUCKING

Court:TSC - Workers Comp Panel

Attorneys:                          

Debra A. Wall, Clarksville, Tennessee, attorney for appellant, Robert
B. Richardson.

Timothy K. Barnes, Clarksville, Tennessee, attorney for appellee,
Judith A. Johnson, Kimberly Ann Mahoney and Sean Patrick Mahoney.

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
defendant/appellant has appealed the action of the trial court, which
overruled his motion to set aside a default judgment under the
provisions of Tenn. R. Civ. P., Rule 60.  The standard of review is
whether the trial court abused its discretion in denying the motion to
set aside the judgment.

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

CHARTER OAK FIRE INS. CO. v. LEXINGTON INS. CO.

Court:TCA

Attorneys:                          

Bridgett A. Wohlpart, Brentwood, Tennessee, for the appellant, Charter
Oak Fire Insurance Company.

Michael Patrick McGovern, Knoxville, Tennessee, for the appellee,
Lexington Insurance Company.

Judge: ASH

First Paragraph:

On November 16, 1997, a fire destroyed a Chili's Restaurant
("Chili's") in Nashville, Tennessee.  At the time of the fire, the
premises were owned and operated by RMR Investments and Gower Center,
Ltd. ("RMR/Gower") and leased to Chili's.  Under a 20-year lease
agreement, Chili's agreed to insure the improvements against loss or
damage by fire and other casualties and to insure against property
damage and public liability arising out of occurrences on the
premises.  RMR/Gower was to be named as a loss payee or additional
insured under the insurance policies obtained by Chili's.  According
to the lease, in the event the premises and/or the improvements were
destroyed by fire or other casualty, Chili's had the option to
terminate the lease, and all insurance proceeds were to be paid to
RMR/Gower, except for the portion payable to Chili's for loss of
personal property.  Pursuant to the lease agreement, Chili's obtained
insurance coverage through Lexington Insurance Company ("Lexington"). 
The certificate of insurance dated December 5, 1997 listed RMR/Gower
as certificate holder and named RMR/Gower as additional insured. 
After the fire, Chili's elected to terminate the lease agreement due
to the condition of the premises.  Lexington paid the proceeds for the
loss of the building to RMR/Gower, less amounts paid to Chili's for
loss of personal property.  RMR/Gower submitted an additional claim
for damages it incurred for the loss of rental income and other
charges it would have otherwise collected from Chili's.  This claim
was denied by Lexington.  RMR/Gower then submitted a claim to its
insurer Charter Oak Fire Insurance Company ("Charter Oak") for the
loss of rental income, which Charter Oak paid.  After Lexington
refused to reimburse Charter Oak for the amounts it paid RMR/Gower for
the loss of rental income, Charter Oak filed suit against Lexington
for breach of contract under the theory of third party beneficiary. 
Parties filed cross motions for summary judgment.  On June 26, 2002,
the trial court granted Lexington's summary judgment motion and denied
Charter Oak's motion.  Notice of this appeal soon followed.  For the
reasons set forth below, the order of the trial court is reversed in
part and affirmed in part.

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

ALBERT THOMPSON v. PATRICIA CHAFETZ

Court:TCA

Attorneys:                          

Warner Hodges, III of Germantown For Appellant, Albert Thompson

Eugene J. Podesta, Jr. of Memphis For Appellee, Patricia Chafetz

Judge: CRAWFORD

First Paragraph:

This is an appeal from an Order denying Appellant's Tenn. R. Civ. P.
60 Motion, which sought relief from the grant of Appellee's Motion for
Summary Judgment.  Appellant's attorney failed to set the Motion for
hearing until some nineteen (19) months after the entry of the Order
granting summary judgment.  The trial court found that the attorney's
failure to prosecute resulted in prejudice to Appellee and denied the
Rule 60 Motion.  We affirm

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

CATHERINE CLAIRE WILLCUTTS v. JOHN FRANCIS WILLCUTTS

Court:TCA

Attorneys:                          

Clark Lee Shaw, Nashville, For Appellant, John Francis Willcutts

Debera Bell-Beam, Linden, For Appellee, Catherine Claire Willcutts

Judge: CRAWFORD

First Paragraph:

This is an appeal of a final decree of divorce primarily as it
concerns custody of the parties' children.  The trial court awarded
custody to mother and provided for a supervised visitation to father. 
Father appeals and, in addition to the custody issue, also presents
issues pertaining to the trial court's out-of-court interview with the
children and the mental examination of the parties.  We affirm.

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

STATE OF TENNESSEE v. TROY D. BILLINGSLEY

Court:TCCA

Attorneys:                          

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the
appellant, Troy D. Billingsley.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Helena Walton Yarbrough, Assistant Attorney
General; W. Michael McCown, District Attorney General; and Robert
Crigler, Assistant District Attorney General, for the appellee, State
of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Troy D. Billingsley, pled guilty to Driving After Being
Declared an Habitual Motor Vehicle Offender, Felony Driving Under the
Influence of an Intoxicant ("DUI") and Failure to Appear in the
Circuit Court for Moore County.  After a sentencing hearing, the trial
court imposed an aggregate sentence of fifteen years in prison. On
appeal, the Defendant contends that his sentence was excessive and
contrary to law.  Finding no reversible error, we affirm the trial
court's judgments.

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

STATE OF TENNESSEE v. BOBBY BLAIR
CORRECTED OPINION

Court:TCCA

Attorneys:                          

William B. "Jake" Lockert, III, District Public Defender, for the
appellant, Bobby Blair.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney
General; and Lisa Carol Donegan, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Humphreys County Circuit Court jury convicted the defendant, Bobby
Blair, of manufacturing methamphetamine, a Class B felony, and the
trial court sentenced him as a Range I, standard offender to twelve
years in the Department of Correction.  The defendant appeals,
claiming that (1) the evidence is insufficient to support his
conviction; (2) the trial court erred by refusing to grant a
continuance when the state announced a few days before trial that it
was going to call an expert witness to testify; (3) the trial court
erred by denying the defendant's motion to suppress and exclude
evidence because the defense was not able to examine and test the
equipment and chemicals found at the crime scene; (4) the trial court
erred by allowing the state's expert to testify that the defendant was
not manufacturing methamphetamine for personal use; (5) the trial
court erred by failing to instruct the jury on the lesser included
offense of simple possession of methamphetamine; and (6) the trial
court erred by refusing to instruct the jury on "immediate precursor."
 We conclude that no error occurred, and we affirm the judgment of the
trial court.

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

CORRECTION MEMO
http://www.tba.org/tba_files/TCCA/blairb_memo.wpd

STATE OF TENNESSEE v. JAMES LEE FOREMAN, II

Court:TCCA

Attorneys:                          

Roger Eric Nell, District Public Defender; and Russel A. Church,
Assistant Public Defender, for the appellant, James Lee Foreman, II.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Arthur F. Bieber, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Montgomery County Circuit Court jury convicted the defendant, James
Lee Foreman, II, of two counts of rape, a Class B felony.  The trial
court merged the convictions and sentenced the defendant as a violent
offender to ten years in confinement.  The defendant appeals, claiming
that his sentence is excessive.  Having determined that we lack
jurisdiction in the case, the defendant's appeal is dismissed.

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

DEXTER P. JONES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jack D. Lowery, Lebanon, Tennessee, for the appellant, Dexter P.
Jones.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Tom P. Thompson, Jr., District Attorney
General; and Robert N. Hibbett, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Dexter P. Jones, appeals from the Wilson County
Criminal Court's denial of post-conviction relief from his four
convictions for assault, a Class A misdemeanor, and resulting
consecutive eleven-month, twenty-nine-day sentences.  He contends that
his guilty pleas were not knowingly, voluntarily, and intelligently
made because the trial court did not advise him that he was waiving a
double jeopardy claim.  We affirm the trial court's denial of the
petition.

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

TONY G. SMITH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Tony G. Smith, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Stephen Douglas Thurman, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Tony G. Smith, appeals as of right from the order of
the Davidson County Criminal Court holding that his petition for
post-conviction relief was barred by the statute of limitations and
dismissing the petition without appointing counsel or holding an
evidentiary hearing.  The petitioner is seeking relief from his
convictions for attempted first degree murder and stalking and his
effective twenty-nine-year sentence.  The petitioner contends that the
trial court erred in its finding that the petitioner did not allege
any circumstances that would qualify as an exception to the one-year
statute of limitations for filing post-conviction relief.  We affirm
the trial court's dismissal of the petition.

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

CARLOS WILLIAMS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Carlos Williams, Pro Se, Tiptonville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Braden H. Boucek, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Emily B. Campbell,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Carlos Williams, appeals the summary dismissal of his
pro se petition for post- conviction relief.   On appeal, Williams
acknowledges that the instant petition was not timely filed; however,
he alleges that a prior petition was timely delivered to the
appropriate prison official for filing but apparently never received
by the Shelby County Criminal Court Clerk.  For this reason, we find
it necessary to vacate the post-conviction court's ruling and remand
for a determination of whether Williams' prior petition was timely
filed.

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

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