Opinion Flash

June 9, 2004
Volume 10 — Number 111

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
05 New Opinion(s) from the Tennessee Court of Appeals
09 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
CORRECTED OPINION

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.

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

C. VINSON ALEXANDER, JR., M.D. v. JACKSON RADIOLOGY ASSOCIATES, P.A.,
ET AL.

Court:TCA

Attorneys:                          

C. Barry Ward and Marc L. Schatten, Memphis, Tennessee, for the
appellant, C. Vinson Alexander, Jr., M.D.

Larry A. Butler, Lewis L. Cobb, Lisa A. Houston, Jackson, Tennessee,
for the appellees, Jackson Radiology Associates, P.A., Dr. Jim Ellis,
Dr. Tim Crossett, Dr. Kevin Sentell.

Judge: FARMER

First Paragraph:

The trial court imposed sanctions on Plaintiff, who undisputedly
spoiled evidence and lied in a sworn deposition, and dismissed
Plaintiff's cause of action.  On appeal, Dr. Alexander argues that
dismissal was improper.  We affirm.

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

LILLIAN E. GRIFFIS, ET AL. v. DAVIDSON COUNTY METROPOLITAN GOVERNMENT,
d/b/a DAVIDSON COUNTY BOARD OF EDUCATION

Court:TCA

Attorneys:                          

John W. Barringer, Jr. of Nashville for Appellants, Lillian E.
Griffis, Nellie Wheeler and Audrey Griffis

Karl F. Dean, Director of Law, The Department of Law of the
Metropolitan Government of Nashville and Davidson County; J. Brooks
Fox and John L. Kennedy of Nashville for Appellee, Davidson County
Metropolitan Government d/b/a Davidson County Board of Education

Judge: CRAWFORD

First Paragraph:

This is an appeal from the grant of Appellee's Motion for Summary
Judgment, involving the interpretation of a 1908 Deed, which created a
fee simple determinable with a possibility of reverter.  Finding that
the reversionary language was triggered upon the property ceasing to
be used as a classroom facility, we reverse and grant summary judgment
to the non-moving Appellants.

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

LANCE LANIER v. HUBERT BANE, ET AL.

Court:TCA

Attorneys:                          

Alan Poindexter, Lebanon, Tennessee, for the Appellant, Lance Lanier.

Jacky O. Bellar, Carthage, Tennessee, for the Appellees, Hubert Bane
and Joyce Bane, Co- Administrators of the Estate of Michael Bane,
Deceased.

Judge: CAIN

First Paragraph:

Plaintiff guest passenger appeals the trial court's denial of recovery
in his action against his host driver for injuries suffered in a one
car accident.  The jury found him to be 50% responsible for his own
injuries and upon such verdict the trial court entered judgment for
the defendant.  We affirm the action of the trial court.

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

DIANN PARNELL v. VICTOR L. IVY, PETER J. DAUSTER, HARDEE, MARTIN,
JAYNES & IVY, P.A., C. WESLEY FOWLER AND GLANKLER BROWN, PLLC

Court:TCA

Attorneys:                          

Jeffrey P. Boyd, Jackson, for the appellant Diann Parnell.

Peter J. Dauster, Jackson, pro se and for the appellees Victor L. Ivy
and Hardee, Martin, Jaynes & Ivy, P.A.

Glen G. Reid, Jr. and Jeffrey Fleishmann, Memphis, for the appellees
C. Wesley Fowler and Glankler Brown, PLLC.

Judge: KIRBY

First Paragraph:

This is a legal malpractice case.  The client filed suit in federal
court against a municipality for the death of her husband under the
Governmental Tort Liability Act and U.S.C. S 1983.  The federal court
dismissed the GTLA claim but retained the S1983 claims.  The client
dismissed her attorneys, hired new counsel and filed the GTLA claim in
state court.  The state court dismissed the GTLA claim because, while
the GTLA claim was pending in federal court, the applicable statute of
limitations expired.  The client sued her original attorneys for
malpractice.  Shortly thereafter, the client settled the remaining S
1983 claims against the municipality.  The defendant attorneys filed a
motion for summary judgment in the malpractice case, arguing that the
settlement with the municipality on the S1983 claims mandated
dismissal of the legal malpractice claim.  The trial court granted the
summary judgment motion.  The client appealed.  We reverse, holding
that the damages sought in the legal malpractice lawsuit are separate
and distinct from the damages sought in the underlying lawsuit, and
therefore settlement of the underlying lawsuit does not shield the
former attorneys from liability.

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

ANNA (RUTHERFORD) PEYCHEK v. DONALD LEWIS RUTHERFORD

Court:TCA

Attorneys:                          

Jefferson D. Gilder of Southaven, Mississippi for Appellant, Donald
Lewis Rutherford

William Neal Small of Memphis for Appellee, Anna (Rutherford) Peychek

Judge:CRAWFORD

First Paragraph:

Appellant filed petition seeking credit against child support
arrearage for necessaries provided to minor children.  The trial court
granted Appellant $10,236.50 in credit toward his support arrearage. 
Appellant appeals asserting that the trial court erred in giving a
percentage of necessaries provided. Finding that the Appellant did not
meet his burden of proof in his claim for necessaries and that the
evidence in record preponderates against the trial court's findings,
we reverse in part, affirm in part and remand.

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

VENESSA BASTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jeffery H. Wicks, Kingston, Tennessee, for the appellant, Venessa
Baston.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; and Frank A. Harvey, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner appeals the denial of her post-conviction relief
petition relating to her guilty plea to felony murder for which she
received a life sentence.  On appeal, the petitioner contends: (1) she
received ineffective assistance of counsel; and (2) her guilty plea
was unknowingly and involuntarily entered.  We affirm the judgment of
the post-conviction court.

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

DEMETRIUS CURRIE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Barney Witherington, IV, Covington, Tennessee, for the appellant,
Demetrius Currie.

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

Judge: OGLE

First Paragraph:

The petitioner, Demetrius Currie, pled guilty in the Tipton County
Circuit Court to two counts of especially aggravated robbery and one
count of especially aggravated burglary.  The petitioner received a
total effective sentence of sixteen years incarceration in the
Tennessee Department of Correction.  Subsequently, the petitioner
filed for post-conviction relief, alleging that because counsel failed
to correctly inform him of his release eligibility percentage, counsel
was ineffective and the petitioner's guilty pleas were not knowingly
and voluntarily made.  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/curried.wpd

STATE OF TENNESSEE v. CORWIN FITCHPATRICK

Court:TCCA

Attorneys:                          

Garland Erguden, Assistant Public Defender, Memphis, Tennessee for the
appellant, Corwin Fitchpatrick.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; William L. Gibbons, District Attorney General; and
Glen Baity, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

The defendant, Corwin Fitchpatrick, was convicted by a Shelby County
jury of the offense of aggravated robbery.  He was sentenced to
fifteen years imprisonment as a Range II multiple offender.  In this
appeal the defendant maintains the evidence is insufficient to support
the verdict.  After a review of the record, we find no merit to the
defendant's contention; therefore the judgment of the trial court is
affirmed.

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

STATE OF TENNESSEE v. CHRISTOPHER KEVAN HEIN

Court:TCCA

Attorneys:                          

Susan E. Shipley, Knoxville, Tennessee, for the appellant, Christopher
Kevan Hein.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Randall Eugene Nichols, District Attorney
General; and Leslie R. Nassios and Leland L. Price, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Christopher Kevan Hein, was charged with the first
degree murder of his girlfriend and convicted by a Knox County
Criminal Court jury of the lesser-included offense of criminally
negligent homicide, a Class E felony.  He was sentenced by the trial
court as a Range I, standard offender to two years in the Department
of Correction, which had already been served by the conclusion of the
trial.  In this timely filed appeal as of right,  he raises the
following five issues:  (1) whether the trial court erred in
precluding the defense from introducing taped statements that an
unavailable witness, Thomas Hendrix, made to an undercover informant
and to a Tennessee Bureau of Investigation ("TBI") agent in which he
described his participation in the burning of the victim's body and
stated that the murder was committed by George Cate; (2) whether the
trial court erred in precluding the defense from introducing Cate's
statements to law enforcement officers; (3) whether the trial court
erred in allowing an officer who was not qualified as an expert
witness to express his opinion regarding the tendency of suspects
during interrogation to minimize their involvement in crimes; (4)
whether the trial court erred in precluding the defense from calling
an expert witness to rebut the officer's opinion; and (5) whether the
trial court erred in allowing the State to present evidence of the
defendant's application for food stamps, in contravention of state and
federal law.  Having reviewed the record and found no reversible
error, we affirm the judgment of the trial court.

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

AARON MCFARLAND v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant,
Aaron McFarland.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Paul Hagerman, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Aaron McFarland, appeals the judgment of the Shelby
County Criminal Court denying his petition for post-conviction relief
from his conviction for first degree murder.  The petitioner contends
that he was denied effective assistance of counsel.  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/mcfarlanda.wpd

ROBERT LEE MORRIS v. HOWARD CARLTON, WARDEN and the STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Robert Lee Morris, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
John H. Bledsoe, Assistant Attorney General, for the appellee, State
of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Robert Lee Morris, appeals the trial court's denial of
his petition for writ of habeas corpus. The state has filed a motion
requesting that this court affirm the trial court's denial of relief
pursuant to Rule 20, Tenn. Ct. Crim. App. R. The petition presents no
cognizable claim for habeas corpus relief.  Accordingly, the state's
motion is granted and the judgment of the trial court is affirmed.

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

MACK A. O'BANER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Claiborne H. Ferguson, Memphis, Tennessee for the appellant, Mack A.
O'Baner

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

Judge: SMITH

First Paragraph:

The petitioner, Mack A. O'Baner, was convicted by a Shelby County jury
of the offense of first degree murder.  He was sentenced to life
imprisonment.  On direct appeal this Court affirmed the convictions. 
See State v. Mack A. O'Baner, No.  W2001-00815-CCA-R3-CD, Shelby
County, (filed March 15, 2002, at Jackson).  On February 6, 2003, the
petitioner filed a post-conviction petition alleging that his due
process rights were violated by a jury instruction on second degree
murder which failed to specify that second degree murder committed
through a "knowing killing of another" was strictly a
"result-of-conduct offense."  See State v. Page, 81 S.W.3d 781, 790
(Tenn. Crim. App. 2002).  The petition also alleged that his trial and
appellate counsel were ineffective in failing to challenge the jury
instructions given as being violative of the holding in Page.  The
trial court summarily dismissed the petition finding inter alia that,
because he was convicted of first degree murder the petitioner could
not establish prejudice as a result of his claims.  After a review of
the record and the applicable authorities we affirm the judgment of
the trial court.

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

MARIO PERRY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Lance R. Chism, Memphis, Tennessee, for the appellant, Mario Perry.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Senior Counsel; William L. Gibbons, District Attorney General; and
Betsy Lynn Carnesale, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Mario Perry, appeals the Shelby County Criminal
Court's denial of his petition for post-conviction relief from his
guilty plea to second degree murder and resulting sentence of twenty-
two years.  He contends that he received the ineffective assistance of
counsel because his trial attorney failed to explain lesser included
offenses and possible defenses with him.  We affirm the trial court.

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

STATE OF TENNESSEE  v.  JASON D. WALKER

Court:TCCA

Attorneys:                          

Steve McEwen, Mountain City, Tennessee, (on appeal); Mack Garner,
District Public Defender, (at trial), for the appellant, Jason D.
Walker.

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

Judge: WOODALL

First Paragraph:

On December 17, 2001, Defendant, Jason D. Walker, entered a guilty
plea in the Blount County Circuit Court to statutory rape.  Defendant
was sentenced as a Range I offender to two years to be suspended on
supervised probation.  Defendant was ordered, as a condition of his
probation, to attend a sex offender treatment program, establish
paternity of the child resulting from the offense, and pay child
support.  A probation violation warrant was issued.  Following a
revocation hearing, Defendant was sentenced to serve thirty days of
his sentence in confinement and the remainder on probation. 
Additional probation violation warrants were subsequently issued. 
Following another revocation hearing, the trial court revoked
Defendant's probation and ordered that Defendant serve the balance of
his original sentence in confinement.  Defendant appeals the trial
court's revocation of probation.  After reviewing the record, we
affirm the judgment of the trial court.

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

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