Opinion Flash

June 25, 2004
Volume 10 — Number 122

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
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
05 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

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


CHATTANOOGA AGRICULTURAL ASSOCIATION v. WILLIAM F. SAPP, JOY G. SAPP,
TRI-COUNTY EQUIPMENT, INC., DEERE AND COMPANY, GARY SEALS, d/b/a GARY
SEALS LIVESTOCK AND CITIZENS TRI-COUNTY BANK

Court:TCA

Attorneys:                          

Jerrold D. Farinash, and Shannon Guinade Scearce, Chattanooga,
Tennessee, for Appellant.

L. Thomas Austin and Jennifer Austin Mitchell, Dunlap, Tennessee, for
Appellees.

Judge: FRANKS

First Paragraph:

The Trial Court held defendant's purchase money security interest in
cattle had priority over plaintiffs' prior security interest.  On
appeal, we affirm.

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

STATE OF TENNESSEE EX REL. LAURA FABRIZIO v. RICHARD R. CADMUS

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter, and Warren Jasper,
Assistant Attorney General, Nashville, Tennessee, for the appellant,
State of Tennessee  ex rel. Laura Fabrizio.

James M. Moore, Knoxville, Tennessee, for the appellee, Richard R.
Cadmus.

Judge: SUSANO

First Paragraph:

In 2001, the trial court entered an order ("the 2001 order") awarding
the State of Tennessee ex rel. Laura Fabrizio ("the State") a child
support arrearage of $9,785.  Subsequently, the same court, by order
entered March 25, 2003, confirmed a referee's "Findings and
Recommendations" adding interest of $2,152.70 to the original award. 
Richard R. Cadmus ("Father") seeks to go behind the 2001 order in an
attempt to invalidate it on a number of grounds.  The State, on the
other hand, complains that the interest calculated by the referee and
approved by the trial court is incorrect.  We find no basis in the
record submitted to us for disturbing the trial court's last order. 
Accordingly, we affirm.

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

SCOTT GREER, D/B/A A-1 SEPTIC TANK v. GEORGE WILLIS, ET AL.

Court:TCA

Attorneys:                          

Robert J. Notestine, III, Nashville, Tennessee, for the appellants,
George Willis and AmSouth Bank.

Robert Evans Lee and James M. Lea, Jr., Lebanon, Tennessee, for the
appellee, Scott Greer  d/b/a A-1 Septic Tank.

Judge: KOCH

First Paragraph:

This appeal involves an action for breach of an oral contract to pump
out a swimming pool.  The Circuit Court for Wilson County conducted a
bench trial and awarded the plaintiff a judgment against both the
owner of the pool and the affiliate real estate broker who requested
the work.  We have concluded that the evidence does not support the
judgment against the property owner but affirm the judgment against
the broker.

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

RALPH E. HARWELL, INTERIM CONSERVATOR OF THE PROPERTY, ESTATE, AND
FINANCIAL AFFAIRS OF CAROLYN MITCHELL BROWN, v. JOHN H. WATSON, JR.

Court:TCA

Attorneys:                          

Gerald L. Gulley, Jr., Knoxville, Tennessee, for Appellant, John H.
Watson, Jr.

Ralph E. Harwell, Knoxville, Tennessee, pro se.

Judge: FRANKS

First Paragraph:

Conservator brought action to recover assets for the Estate of Carolyn
Brown which had been given to defendant by Brown.  The Chancellor
invoked the constructive trust doctrine and ordered assets returned to
the Estate.  On appeal, we affirm.

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

STEFAN OLARU v. STEVEN D. BROWN

Court:TCA

Attorneys:                          

Stefan Olaru, Warren, Michigan, appellant, Pro Se.

Steven D. Brown, Hixson, Tennessee, appellee, Pro Se.

Judge: SUSANO

First Paragraph:

Stefan Olaru filed an action for malpractice against his former
attorney, Steven D. Brown.  The trial court dismissed the complaint
based upon the defendant's plea of a discharge in bankruptcy.  The
plaintiff appeals.  We affirm.

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

STATE OF TENNESSEE v. RANDY ANDERSON

Court:TCCA

Attorneys:                          

W. Jeffery Fagan, Assistant District Public Defender, Camden,
Tennessee, for the appellant, Randy Anderson.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Robert "Gus" Radford, District Attorney
General; and Steven L. Garrett, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Randy Anderson, pled guilty in the Henry County Circuit
Court to manufacturing methamphetamine and was sentenced to three
years, with 180 days to be served in confinement and the balance to be
served in the community corrections program.  The trial court ordered
the sentence to be served concurrently with a previous sentence in
Madison County.  The trial court subsequently revoked the appellant's
community corrections sentence and resentenced the appellant to four
years in the Tennessee Department of Correction, to be served
consecutively to sentences imposed in Weakley and Dyer Counties.  On
appeal, the appellant challenges the imposition of consecutive
sentencing.  Upon review of the record and the parties' briefs, we
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. CHRISTOPHER A. DAVIS

Court:TCCA

Attorneys:                          

Hershell Koger, for the appellant, Christopher A. Davis.

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

Judge: WELLES

First Paragraph:

The Petitioner, Christopher A. Davis, appeals the trial court's denial
of his petition for writ of error coram nobis.  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 failed to file his petition within the applicable
statute of limitations, failed to assert a claim that is cognizable in
a petition for writ of error coram nobis, and the statute of
limitations should not be tolled.  Accordingly, the State's motion is
granted and the judgment of the trial court is affirmed.

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

JAMES EDWARD DICKEN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Louis W. Oliver, III, Hendersonville, Tennessee, for the appellant,
James Edward Dicken.

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; and Sallie Wade Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, James Edward Dicken, appeals the denial of his
petition for post-conviction relief.  He contends that he was denied
the effective assistance of counsel.  The judgment of the post-
conviction court is affirmed.

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

STATE OF TENNESSEE v. DARYL EUGENE FORTNER

Court:TCCA

Attorneys:                          

Jack A. Butler, Nashville, Tennessee, for the appellant, Daryl Eugene
Fortner.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Daniel Brollier, Jr., Assistant District Attorney, for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

Following a jury trial, the defendant was convicted of two counts of
attempted first degree murder, Class A felonies.  He was also
convicted of one count of aggravated burglary, a Class C felony.  The
defendant contends on appeal that (1) the evidence was insufficient to
establish the requisite intent required for committing first degree
murder, (2) the trial court erred in instructing the jury on
diminished capacity, and (3) the sentence was excessive.  Finding no
reversible error, we affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. STEVEN GASS

Court:TCCA

Attorneys:                          

Jerry Scott, Murfreesboro, Tennessee, for the appellant, Steven Gass.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Senior Counsel; William C. Whitesell, Jr., District Attorney General;
and Paul Holcombe, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Steven Gass, was convicted by a jury in the Rutherford
County Circuit Court of rape of a child, aggravated sexual battery,
and attempted rape of a child.  The petitioner received a total
effective sentence of thirty-two years incarceration in the Tennessee
Department of Correction.  Subsequently, the petitioner filed a
petition for post-conviction relief, citing several instances of
ineffective assistance of counsel.  After a hearing, the
post-conviction court denied the petition, and the petitioner timely
appealed.  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/gasss.wpd

STATE OF TENNESSEE  v.  ANTHONY CHARLES HENDERSON

Court:TCCA

Attorneys:                          

David Brady, District Public Defender; and John B. Nisbet, III,
Assistant District Public Defender, for the Appellant, Anthony Charles
Henderson.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; William E. Gibson, District Attorney
General; John Moore, Assistant District Attorney General; and William
Locke, Assistant District Attorney General, for the Appellee, the
State of Tennessee.

Judge: WOODALL

First Paragraph:

On August 1, 2001, Defendant, Anthony Charles Henderson, entered
guilty pleas to two counts of sale of cocaine in an amount less than
.5 grams, a Class C felony.  See Tenn. Code Ann. S 39-17- 417. 
Defendant received concurrent sentences of five years for his
convictions with ninety days to be served in confinement and the
remainder to be served on supervised probation.  Defendant was also
ordered to pay $2,000 in fines.  On July 24, 2002, a violation of
probation warrant was issued.  Following an evidentiary hearing, the
trial court found that Defendant violated the conditions of his
probation and ordered Defendant to serve his original sentences in
confinement.  Defendant appeals the trial court's revocation of
probation, arguing that there was no substantial evidence to support
the revocation.  Defendant also argues that the sentences imposed
following the revocation were excessive.  After reviewing the record
on appeal, we conclude that the trial court did not abuse its
discretion in revoking Defendant's probation and ordering Defendant to
serve his original sentences in confinement.

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

DAMIEN M. JACKSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Eric S. Carter, Nashville, Tennessee, for the appellant, Damien M.
Jackson.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General;  Victor S. (Torry) Johnson, III, District
Attorney General; and Roger D. Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals from his denial of post-conviction relief.  He
alleges ineffective counsel and error by the post-conviction judge. 
After careful review, we conclude that the petitioner failed to prove
ineffective counsel.  Accordingly, we affirm the denial of relief.

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

STATE OF TENNESSEE  v.  CARL E. LEGGETT, SR.
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Glen A. Isbell, Winchester, Tennessee, for the appellant, Carl E.
Leggett, Sr.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; Steven M. Blount, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Carl E. Leggett, Sr., was indicted by the Franklin
County Grand Jury for possession of .5 grams or more of cocaine with
the intent to sell or deliver.  Following a jury trial, the Defendant
was convicted of facilitation of possession with intent to sell over
.5 grams of cocaine.  The Defendant was sentenced as a Range II
multiple offender to serve nine years in confinement and ordered to
pay a $70,000 fine.  In this appeal as of right, the Defendant
challenges the sufficiency of the convicting evidence.  The Defendant
also challenges his sentence.  After a careful review of the record,
we reverse the judgment of the trial court on sufficiency grounds and
dismiss the charges against the Defendant.

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

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

STATE OF TENNESSEE v. STEVEN A. MEYER

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee (on appeal); Steven A. Meyer,
Pro Se, and Edward DeWerff, Clarksville, Tennessee (at trial), for the
appellant, Steven A. Meyer.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; John W. Carney, Jr., District Attorney
General; and Helen O. Young, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

At his first trial, the defendant, Steven A. Meyer, was convicted of
first degree murder and the trial court, sua sponte, overturned the
jury verdict, concluding that it was against the weight of the
evidence.  At the second trial, the jury again found the defendant
guilty of first degree premeditated murder, and he was sentenced to
life imprisonment.  On appeal, he argues that the evidence was
insufficient to sustain his conviction.  Following our review, we
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. ERIC C. PENDLETON
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

In this case, the petitioner has filed a timely petition to rehear. 
After having fully reviewed the petition, it is respectfully denied.

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

TERRY L. SHROPSHIRE, PRO SE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Terry Shropshire, pro se.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Terry Shropshire, 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 has failed to establish by a preponderance of the evidence
that his conviction is void or his term of imprisonment has expired. 
Accordingly, the State's motion is granted and the judgment of the
trial court is affirmed.

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

JOHN W. SMITH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Ronald E. Munkeboe, Jr., Attorney, for the appellant, John W. Smith.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General; and Roger Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, John W. Smith, appeals the denial of his petition for
post-conviction relief.  The single issue presented for review is
whether the petitioner was denied the effective assistance of counsel
at trial.  The judgment is affirmed.

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

STATE OF TENNESSEE v. JOSEPH CHI-CHOI WONG

Court:TCCA

Attorneys:                          

J. Todd Faulkner, Nashville, Tennessee, for the appellant, Joseph
Chi-Choi Wong.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. Johnson, District
Attorney General; and Tammy Meade, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Joseph Chi-Choi Wong, was convicted by a jury on three
counts of promoting prostitution and three counts of money laundering.
 As a result, he was sentenced to an effective sentence of twenty-four
(24) years.  In this direct appeal, the appellant challenges: (1) the
trial court's decision to admit certain evidence that was found in the
appellant's apartment; (2) the trial court's failure to dismiss the
indictment due to the asserted unconstitutionality of the Tennessee
prostitution and money laundering statutes; (3) the trial court's
failure to sever the prostitution counts from the money laundering
counts; (4) the trial court's failure to suppress the evidence
procured from the appellant's apartment as a result of the search
warrant; (5) the trial court's imposition of an excessive sentence;
and (6) the trial court's failure to mitigate the appellant's
sentence.  After a thorough review of the record, we affirm the
judgments of the trial court.

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

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