Opinion Flash

May 19, 2004
Volume 10 — Number 097

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
02 New Opinion(s) from the Tennessee Court of Appeals
08 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


VULCAN MATERIALS COMPANY v. CHRISTOPHER DALE WATSON

Court:TSC - Workers Comp Panel

Attorneys:                          

D. Brett Burrow, Gordon C. Aulgur, Brewer, Krause & Brooks, Nashville,
Tennessee, for the Appellant Vulcan Materials Company.

Jay R. Slobey, Blackburn & McCune, Nashville, Tennessee, for
Christopher Dale Watson

Judge: PEOPLES

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and
reporting of findings of fact and conclusions of law. The employer
claims that the trial court erred (1) in finding work-related
disability from aggravation of a back problem, (2) in denying
reimbursement of overpayment of temporary total disability benefits by
the Second Injury Fund, and (3) in ordering the employer to pay the
employee's attorney's fees.  We affirm in part and reverse in part.

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

FIRST NATIONAL OF NORTH AMERICA, LLC v. MICHAEL MARKS
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Peter H. Curry, Nashville, Tennessee, for the appellant, Michael
Marks.

Colin J. Carnahan, Nashville, Tennessee, for the appellee, First
National of North America, LLC.

Judge: CLEMENT

First Paragraph:

Plaintiff First National of North America, LLC (FNNA) brought a claim
for unjust enrichment against Michael Marks.  Marks had refinanced his
home mortgage through Morgan International, which was owned by Jerry
Levine.  The purpose of the refinancing was to pay off an existing
mortgage owing to a third party and to obtain net proceeds of
approximately $44,000 for Marks' other needs.  Unknown to Marks, the
funds for Marks' loan were provided to Levine by FNNA pursuant to a
Commercial Loan and Servicing Agreement between FNNA and Levine.  The
refinancing transaction closed and Marks received net proceeds of
$44,394 at the closing; however, Morgan International/Levine failed to
pay off the pre-existing mortgage owing to First American National
Bank.  For almost a year Marks was unaware that the pre-existing
mortgage was not paid off for Levine secretly paid the monthly
installments owing to First American.  Once Levine ceased making the
payments, First American initiated foreclosure proceedings against
Marks.  Marks paid the arrearage and maintained the mortgage with
First American.  Marks sued Levine and Morgan International.  FNNA
intervened as a party plaintiff against Levine and Marks.  FNNA
obtained a judgment based on contract against Levine but Levine was
discharged in bankruptcy without any recovery to FNNA.  Thereafter,
FNNA obtained a judgment against Marks for $38,000, on the theory of
unjust enrichment, plus pre-judgment interest.  Marks appealed
claiming he had a contractual relationship with FNNA that precluded a
recovery under unjust enrichment.  We affirm.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/fnna_dis.wpd

TONYA PETRECE RAY v. WILLIAM MARTIN RAY v. STEPHEN ERIC STAGGS

Court:TCA

Attorneys:                          

Clark Lee Shaw, Nashville, For Appellant, Stephen Eric Staggs

Randle W. Hill, Jr., Nashville, For Appellee, Tonya Petrece Ray
(Holland)

John M. L. Brown, Nashville, For Appellee, William Martin Ray

Judge: CRAWFORD

First Paragraph:

Natural father of minor twin children appeals trial court's final
order of custody and visitation on multiple grounds, alleging
primarily that (1) the trial court erred in awarding visitation to
stepfather; (2) the trial court erred in refusing to change children's
surname to that of their natural father; and (3) the trial court
improperly based its opinion on a sealed psychological report.  We
affirm in part, reverse in part, and remand.

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

FRANK CHESTER BRIGHT, JR. v. STATE OF TENNESSEE
CORRECTED OPINION WITH ORDER

Court:TCCA

Attorneys:                          

Peter T. Skeie, Nashville, Tennessee, for the Appellant, Frank Chester
Bright.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and John C. Zimmerman,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Davidson County jury convicted the Petitioner, Frank Chester Bright,
Jr., of possession with intent to deliver over twenty-six grams of a
substance containing cocaine, a Class B felony, and facilitation of
possession of a deadly weapon, a Class A misdemeanor.  The trial court
sentenced the Petitioner as a career offender to thirty years in
prison on the possession count and eleven months and twenty- nine days
in prison on the facilitation count, with the sentences to run
concurrently.  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 filed a petition
seeking post-conviction relief in the trial court, which the court
dismissed.  On appeal, the Petitioner asserts that the post-
conviction court erred when it dismissed his petition finding that
there was no merit to his claims that: (1) he was denied effective
assistance of counsel at his sentencing hearing; (2) the prosecutor
committed prosecutorial misconduct at the sentencing hearing; and (3)
the trial court's instructions to the jury violated his due process
rights.  Finding no error, we affirm the post-conviction court's
dismissal of the petition.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/brightfc.wpd

ORDER
http://www.tba.org/tba_files/TCCA/brightfc_ord.wpd

HOWARD EUGENE BUCHANAN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Reese Holley, Dickson, Tennessee, for the appellant, Howard Eugene
Buchanan.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Suzanne Lockert, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Howard Eugene Buchanan, was convicted by a jury in the
Dickson County Circuit Court of aggravated kidnapping, assault, and
evading arrest.  He received a total effective sentence of eighteen
years incarceration in the Tennessee Department of Correction. 
Subsequently, the petitioner filed a petition for post-conviction
relief, alleging that the trial court erred in failing to instruct the
jury as to the defense of alibi and that he received the ineffective
assistance of counsel.  After a hearing, the post-conviction court
denied the petition, and the petitioner appeals.  Upon review of the
record and the parties' briefs, we affirm the judgment of the
post-conviction court.

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

STATE OF TENNESSEE v. BOBBY R. DYER

Court:TCCA

Attorneys:                          

Eugene Honea, Franklin, Tennessee, for the Appellant, Bobby R. Dyer.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Lee Dyer, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT
 
First Paragraph:

Bobby R. Dyer appeals from his Williamson County Circuit Court
convictions of aggravated burglary and theft of property valued at
$1,000 to $9,999.  He claims that his theft conviction is not
supported by sufficient evidence and that he was improperly sentenced.
 Because we are unconvinced of reversible error, we affirm.

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

STATE OF TENNESSEE v. JARRET A. GUY
WITH ORDER

Court:TCCA

Attorneys:                          

John G. Oliva, Nashville, Tennessee, for the appellant, Jarret A. Guy.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; and Dan Hamm and Katrin Miller, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Jarret A. Guy, was convicted of facilitation of first
degree premeditated murder, felony murder, and robbery.  The trial
court merged the facilitation of premeditated first degree murder
conviction into the conviction for felony murder and, after finding
the existence of five aggravating circumstances, the jury imposed a
sentence of life without the possibility of parole.  The trial court
imposed a concurrent sentence of fifteen years for the robbery
conviction.  In this appeal, the defendant asserts that (1) the
evidence is insufficient to support his convictions; (2) the trial
court included erroneous definitions of "knowing" and "intentional" in
its instructions to the jury; (3) the trial court erred by severing
his trial from that of his co-defendant, Jacob Edward Campbell;  (4)
the sentence is excessive; and (5) the cumulative effect of the errors
at trial require reversal.  The judgments of the trial court are
affirmed.

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

ORDER
http://www.tba.org/tba_files/TCCA/guyjarreta_ord.wpd

STATE OF TENNESSEE v. SHAWN EDWARD HAZELTINE

Court:TCCA

Attorneys:                          

Hayley E. Fults, Shelbyville, Tennessee (on appeal) and Andrew Hoover,
Pulaski, Tennessee (at trial) for the appellant, Shawn Edward
Hazeltine.

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

Judge: WEDEMEYER

First Paragraph:

A Marshall County jury convicted the Defendant, Shawn Edward
Hazeltine, of three counts of aggravated assault and three counts of
reckless endangerment.  The trial court merged the reckless
endangerment convictions with the aggravated assault convictions and
then sentenced the Defendant to an aggregate seven years and seven
months in prison.  On appeal, the Defendant contends that: (1)
insufficient evidence exists to support the convictions; (2) the trial
court erred in not consolidating the three counts of reckless
endangerment; and (3) the trial court erred by not ordering
alternative sentencing and by ordering consecutive sentencing.  We
conclude that sufficient evidence exists in the record to support the
Defendant's convictions and that the trial court did not err in
sentencing the Defendant.  However, we conclude that the trial court
erred by failing to consolidate the three reckless endangerment
convictions into one conviction. We further conclude that the trial
court erred by entering a judgment form for Count 2 showing a
conviction for reckless aggravated assault, because the trial court
dismissed Count 2 of the indictment.  Therefore, we remand the case to
the trial court for further proceedings consistent with this opinion.

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

STATE OF TENNESSEE v. JEFFERY LEE MASON
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Jeffery Lee
Mason.

Paul G. Summers, Attorney General & Reporter; Jennifer Bledsoe,
Assistant Attorney General; and Patrick Butler and Beverly White,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: WADE

First Paragraph:

The defendant, Jeffery Lee Mason, was indicted for attempted first
degree murder, felony escape and theft over $1000.  He was convicted
by a jury of attempted voluntary manslaughter and theft over $1000. 
He entered a plea of guilty to felony escape.  The trial court imposed
sentences of four years for attempted voluntary manslaughter, four
years for theft over $1000, and two years for felony escape, to be
served consecutively for an effective sentence of ten years.  In this
appeal of right, he asserts (1) that the evidence is insufficient to
support the convictions for attempted voluntary manslaughter and theft
over $1000; (2) that the trial court erred by instructing the jury on
attempted voluntary manslaughter as a lesser included offense of
attempted first degree murder; and (3) that the sentence is excessive.
The judgments of the trial court are affirmed.

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

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

LEON TERRELL PHILLIPS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Leon Terrell
Phillips.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael David Randles, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Leon Terrell Phillips, pled guilty in the Bedford
County Circuit Court to attempted first degree murder and received a
sentence of thirty years incarceration in the Tennessee Department of
Correction, which sentence was to be served at thirty percent. 
Subsequently, the petitioner filed a petition for post-conviction
relief, alleging that he received the ineffective assistance of
counsel.  The post-conviction court dismissed the petition, and the
petitioner appeals.  Finding no error, we affirm the judgment of the
post-conviction court.

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

STATE OF TENNESSEE v. TIMMY REAGAN

Court:TCCA

Attorneys:                          

Larry M. Warner, Crossville, Tennessee, for the appellant, Timmy
Reagan.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and Owen G. Burnett, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Timmy Reagan, appeals as of right from his convictions
by a jury in the Overton County Circuit Court for first degree,
premeditated murder and first degree murder by placing or discharging
a destructive device or bomb.  The defendant was sentenced to life in
prison for each conviction, and the trial court ordered that his
sentences be merged.  He contends that: (1) the evidence is
insufficient to support the convictions; (2) the trial court erred by
denying his motion to suppress pictures of the victim; (3) the trial
court erred by denying his motion for a change of venue; (4) the trial
court erred by denying his motion for the appointment of a jury
selection expert; (5) the trial court erred by not using the jury
questionnaire that he prepared; (6) the trial court erred by admitting
the victim's statements as dying declarations; (7) the trial court
erred by allowing Dr. Charles Harlan to testify about the location of
the dynamite when it detonated; (8) the trial court erred by allowing
Agent Richard Campbell to testify; (9) the trial court erred by
admitting into evidence a weather report for the date of the
explosion; (10) Tennessee Code Annotated S 39-13- 202(a)(3) is
unconstitutional; (11) the judgments of conviction for premeditated
murder and murder by the illegal placing of an explosive device should
have been merged; and (12) the defendant is entitled to relief based
on cumulative errors.  We hold that the defendant's conviction for
first degree murder should be affirmed.  We also hold that in
attempting to merge the first degree murder convictions, the trial
court incorrectly entered two judgments of conviction instead of one
that notes the merger of the counts.  This case is remanded to correct
the judgments.

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

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