Opinion Flash

March 19, 2004
Volume 10 — Number 054

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):
02 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
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

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version.
Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.

Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


RICHARD JOHN JOLLY v. LYNETTE SUZANNE JOLLY

Court:TSC

Attorneys:                          

Richard John Jolly, Bethel Springs, Tennessee, Pro Se.

Ken Seaton, Selmer, Tennessee, for the appellee, Lynette Suzanne
Jolly.

Paul G. Summers, Attorney General and Reporter; and Pamela A.
Hayden-Wood, Assistant Attorney General, for the intervenor, State of
Tennessee.

Judge: HOLDER

First Paragraph:

This appeal arises out of divorce proceedings brought in the District
Court of Johnson County, Kansas, and the Chancery Court of McNairy
County, Tennessee.  In dividing the parties' real property, the
chancery court reduced Husband's share by the amount of the child
support arrearage and discovery-related sanction assessed by the
Kansas court in its decree of divorce.  We granted permission to
appeal.  We conclude that the chancery court erred in enforcing a
decree that was not properly registered under the Uniform Interstate
Family Support Act.  Therefore, the judgment of the Court of Appeals
is reversed, and the case is remanded to the chancery court for
proceedings consistent with this opinion.

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

LARRY E. PARRISH, ET AL. v. ROBERT S. MARQUIS, ET AL.

Court:TSC

Attorneys:                          

John J. Mulrooney, Memphis, Tennessee, for the appellants, Larry E.
Parrish and Larry E. Parrish, P.C.

Frank Q. Vettori, Knoxville, Tennessee, for the appellee, Robert S.
Marquis.

Deborah C. Stevens and Summer H. Stevens, Knoxville, Tennessee, for
the appellee, Ronald C. Koksal.

Judge: HOLDER

First Paragraph:

We granted this appeal to determine whether the one-year statute of
limitations for filing a new action under Tennessee Code Annotated
section 28-1-105(a) commenced on the date of the appellate court's
judgment remanding the cause to the trial court for further
proceedings or on the date of the trial court's order of dismissal
following the remand.  We hold that the statute of limitations
commenced on the date of the trial court's order of dismissal and that
the plaintiffs' re-filing of their action was therefore timely under
the savings statute.  Accordingly, we reverse the Court of Appeals'
judgment and remand this case to the Court of Appeals for
consideration of issues pretermitted by its ruling.

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

CINDI CAREY, ET AL. v. DONALD L. MERRITT d/b/a MERRITT RESIDENTIAL AND
COMMERCIAL INSPECTIONS

Court:TCA

Attorneys:                          

Gregory C. Morton, Memphis, TN, for Appellants

Richard Glassman, Tameka Turner-Perry, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves a suit for the negligent inspection of a home
performed by the Defendant.  The Plaintiffs signed an exculpatory
clause, which released Defendant from any liability.  The trial court
below granted the Defendant's motion for summary judgment and the
Plaintiffs appeal.  For the following reasons, we reverse and remand
for further proceedings consistent with this opinion.

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

PAUL G. SUMMERS, in his capacity as ATTORNEY GENERAL AND REPORTER FOR
THE STATE OF TENNESSEE v. ESTATE OF JAMES W. FORD, M.D.

Court:TCA

Attorneys:                          

Kathleen N. Gomes, Memphis; Ruby R. Wharton, Memphis for Appellant,
Estate of James W. Ford, M.D., Deceased

Paul G. Summers, Attorney General and Reporter; Dennis J. Garvey,
Deputy attorney General; Albert L. Partee, III, Senior Counsel; George
S. Bell, III and Victor J. Domen, Jr., Assistant Attorneys General,
Nashville, For Appellee, Paul G. Summers in his official capacity as
Attorney General and Reporter for the State of Tennessee

Judge: CRAWFORD

First Paragraph:

This is an appeal from the order of the probate court on a claim filed
against an estate by the Tennessee Attorney General pursuant to the
authority granted by the Nonprofit Corporation Act.  The probate court
denied the claim in part and granted the claim in part by various
rulings concerning the existence of a nonprofit public benefit
corporation for operation of child daycare centers, the ownership of
assets thereof, and continued operation of the centers.  The estate
appeals and the Attorney General appeals.  We affirm in part, reverse
in part, and remand with directions.

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

JAMES WOHLFAHRT, ET AL. v. ARLENE SCAVUZZO 

Court:TCA

Attorneys:                          

John Thomas Feeney, Nashville, Tennessee, for the appellant, CGU
Insurance Company.

Donald Capparella and Carson W. (Bill) Beck, Nashville, Tennessee, for
the appellees, James Wohlfarht and Joni Wohlfahrt.

Judge: FARMER

First Paragraph:

Plaintiffs' insurer appeals award of benefits to Plaintiffs under
Plaintiffs' uninsured/underinsured motorist policy.  We affirm.

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

STATE OF TENNESSEE v. TAMMY BOYD, TOSHA LOVELL, SANDRA CULPS AND
KENNETH CULPS

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General;  James G. Woodall, District Attorney
General; and Jason C. White, Assistant District Attorney General, for
the appellant, State of Tennessee.

Nathan B. Pride, Jackson, Tennessee, for the appellee, Tammy Boyd.

Joe H. Byrd, Jr., Jackson, Tennessee, for the appellees, Tosha Lovell
and Kenneth Culps.

Matthew M. Maddox, Huntingdon, Tennessee, for the appellee, Sandra
Culps.

Judge: WILLIAMS

First Paragraph:

In this Rule 9 interlocutory appeal, the State appeals the circuit
court's ruling that the defendants are entitled to the underlying
search warrant affidavit at the general sessions level.  We conclude
that the defendants are entitled to the affidavit at the preliminary
hearing in order to effectively challenge probable cause.  The
judgments of the circuit court are affirmed.

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

STATE OF TENNESSEE v. JAMES STACY CARROLL

Court:TCCA

Attorneys:                          

Benjamin Dempsey, Huntingdon, Tennessee (at trial); Guy T. Wilkinson,
District Public Defender; and Billy R. Roe, Jr., Assistant Public
Defender (on appeal), for the Appellant, James Stacy Carroll.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; G. Robert Radford, District Attorney General; and
Eleanor Cahill, Assistant District Attorney General, for the Appellee,
State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, James Stacy Carroll, appeals from his Carroll County
Circuit Court conviction of driving a vehicle in violation of a motor
vehicle habitual offender order.  He challenges the sufficiency of the
convicting evidence.  We hold that the evidence is sufficient to
support the conviction and affirm the conviction.

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

ODEAN COOPER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Rebecca S. Mills, Ripley, Tennessee, for the appellant, Odean Cooper.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey Anne Brewer, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner appeals the lower court's denial of his post-conviction
relief petition following his guilty plea to possession of less than
.5 grams of cocaine with intent to deliver.  On appeal, the petitioner
contends: (1) he received ineffective assistance of counsel; and (2)
he did not knowingly and voluntarily enter his guilty plea.  We affirm
the judgment of the post-conviction court.

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

JAMES HOWARD DAVIS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Guy T. Wilkinson, District Public Defender; Vicki S. Snyder, Assistant
District Public Defender, Camden, Tennessee, for the Appellant, James
Howard Davis.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kathy D. Aslinger, Assistant Attorney General; G.
Robert Radford, District Attorney General; and Beth Boswell and
Eleanor Cahill, Assistant District Attorneys General, for the
Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, James Howard Davis, appeals the Benton County Circuit
Court's dismissal of his petition for post-conviction relief.  Davis
pled guilty to driving under the influence ("DUI") eighth offense and
violation of the Motor Vehicle Habitual Offenders Act.  On appeal, he
asserts that he was denied the effective assistance of counsel. 
Finding no error, the judgment of the post-conviction court is
affirmed.

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

STATE OF TENNESSEE v. THELISA EMERY and MAURICE EMERY 

Court:TCCA

Attorneys:                          

Kyle Atkins, Humboldt, Tennessee, for the Appellant, Thelisa Emery;
and Shannon Jones, Alamo, Tennessee, for Appellant, Maurice Emery.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Edward L. Hardister, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendants, Thelisa Emery and Maurice Emery, sister and brother,
were each convicted in a joint jury trial of possession with intent to
sell .5 grams or more of cocaine, possession of marijuana, and
possession of drug paraphernalia.  On appeal, Thelisa Emery claims
that the convicting evidence is insufficient and that the trial court
erred in not severing the defendants' trials, in allowing testimony
about Thelisa Emery's use of cocaine, in allowing evidence of her
prior sale of cocaine, and in instructing the jury as to her guilt via
criminal responsibility for the acts of Maurice Emery.  Maurice Emery
raised some of the same issues, but because he failed to file a timely
motion for new trial, appellate review of his convictions is limited
to the sufficiency of the convicting evidence.  Discerning no
reversible error with respect to either defendant, we affirm the
judgments of the trial court.

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

QUINCY HENDERSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Larry Copeland, Jr., Memphis, Tennessee; and Paul K. Guibao, Memphis,
Tennessee, for the Appellant, Quincy Henderson.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Reginald Henderson and Michelle Kimbrill, Assistant
District Attorneys General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Quincy Henderson, appeals the Shelby County Criminal
Court's dismissal of his post-conviction petition, in which he claimed
that his second degree murder conviction was constitutionally infirm
because of ineffective assistance of trial counsel.  Upon our review
of the record, the parties' briefs, and the applicable law, we affirm
the denial of post-conviction relief.

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

STATE OF TENNESSEE v. MICHAEL W. MAPLES

Court:TCCA

Attorneys:                          

Julie A. Rice, Knoxville, Tennessee (on appeal); and Mack Garner,
District Public Defender (at trial), for the appellant, Michael W.
Maples.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and Ellen Lee Berez, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Blount County Circuit Court jury convicted the defendant, Michael W.
Maples, of two counts of especially aggravated kidnapping, a Class A
felony.  The trial court sentenced him to concurrent twenty-five-year
sentences for the two convictions.  In this appeal, the defendant
claims (1) that the evidence is insufficient to support his
convictions and (2) that his sentences are excessive.  We affirm the
judgments of the trial court.

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

ANTHONY D. MCDANIEL, PRO SE v. BRUCE WESTBROOKS

Court:TCCA

Attorneys:                          

Anthony D. McDaniel, pro se.

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

Judge: WILLIAMS

First Paragraph:

The Petitioner, Anthony D. McDaniel, 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 cognizable claim for which habeas
corpus relief may be granted.  Accordingly, the State's motion is
granted and the judgment of the trial court is affirmed.

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

EDDIE HOWARD PITTMAN v. STATE OF TENNESSEE
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

J. Mike Mosier, Jackson, Tennessee, for the appellant, Eddie Howard
Pittman.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; and Alfred L. Earls, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Eddie Howard Pittman, appeals from a judgment denying
post-conviction relief.  As grounds for a new trial, the petitioner
asserts that he was denied the effective assistance of counsel at
trial and that there was error in the instructions to the jury.  The
judgment is affirmed.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/pittmane_dis.wpd

RICCO SAINE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jake Erwin, Memphis, Tennessee, for the Appellant, Ricco Saine.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Greg Gullily, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Aggrieved that the lower court denied post-conviction relief following
an evidentiary hearing, the petitioner, Ricco Saine, appeals and
claims that his aggravated burglary conviction resulted from
ineffective assistance of counsel and an involuntary guilty plea.  We
affirm the denial of post-conviction relief.

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

STATE OF TENNESSEE v. CHRISTOPHER MICHAEL SCHMIDT

Court:TCCA

Attorneys:                          

Didi Christie, Brownsville, Tennessee, for appellant, Christopher
Michael Schmidt.

Paul G. Summers, Attorney General & Reporter; Elizabeth Bingham
Marney, Assistant Attorney General, for the appellee, State of 
Tennessee.

Judge: GLENN

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 Appellant, Christopher Michael Schmidt, appeals
the trial court's denial of a writ of habeas corpus.  The only issue
for this Court's review is whether the trial court committed error by
its order of transfer of the Appellant to the temporary custody of the
State of Delaware.  Finding no error committed by the trial court,
this Court concludes that the judgment of the trial court should be
affirmed.

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

STATE OF TENNESSEE v. LENZO SHERRON aka SALAAM SHABAZZ

Court:TCCA

Attorneys:                          

Lenzo Sherron aka Salaam Shabazz, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General;  and C. Phillip Bivens, District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was convicted of aggravated robbery, a Class B felony,
and sentenced to ten years as a standard offender.  The defendant has
filed a pro se appeal of right of his conviction, posing the following
issues for our review: 1)   Whether the evidence was sufficient
beyond a reasonable doubt to support the defendant's conviction for
aggravated robbery; 2)  Whether the State improperly withheld
exculpatory and impeachment evidence; and 3)    Whether the trial
court failed to investigate a conflict of interest before appointing
new counsel. After careful review, we affirm the conviction.

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

STATE OF TENNESSEE v. BILL L. WILLIAMS

Court:TCCA

Attorneys:                          

Bill L. Williams, pro se, Memphis, Tennessee; and Karen Massey,
Assistant Public Defender (elbow counsel), Memphis, Tennessee (at
trial); and Robert Wilson Jones, Shelby County Public Defender; and
Tony N. Brayton, Assistant Public Defender, Memphis, Tennessee (on
appeal), for the appellant, Bill L. Williams.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William L. Gibbons, District Attorney
General; and Emily Campbell, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a jury trial, Defendant, Bill L. Williams, was convicted of
theft of property over $10,000 in value, a Class C felony.  He was
sentenced as a Range II multiple offender to serve six years in the
Shelby County Workhouse.  In his sole issue on appeal, Defendant
challenges the sufficiency of the evidence to sustain his conviction. 
After a thorough review of the record and the briefs of the parties,
we affirm the judgment of the trial court.

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

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi


HomeContact UsPageFinderWhat's NewHelp
© Copyright 2004 Tennessee Bar Association