Opinion Flash

June 30, 2004
Volume 10 — Number 125

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
06 New Opinion(s) from the Tennessee Court of Appeals
11 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


QUINTON ARMSTRONG v. MICHAEL MAGILL, COMMISSIONER OF THE TENNESSEE
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, AND PICCADILLY
CAFETERIA

Court:TCA

Attorneys:                          

Karen W. Tyler and Webb A. Brewer, Memphis, Tennessee, for the
appellant, Quinton Armstrong.

Paul G. Summers, Attorney General & Reporter, and Warren A. Jasper,
Assistant Attorney General, Nashville, Tennessee, for the appellee,
Michael Magill, Commissioner of the Tennessee Department of Labor and
Workforce Development.

Judge: KIRBY
 
First Paragraph:

This is a claim for unemployment benefits.  The claimant was
terminated from her employment at the defendant business.  Her
separation notice indicated that she was terminated for improper
conduct and having a disrespectful attitude.  Subsequently, the
claimant filed a claim for unemployment benefits.  The agency denied
benefits.  The claimant appealed.  The appellate tribunal conducted a
telephonic hearing and affirmed the denial of benefits.  The claimant
filed the instant petition for judicial review, claiming that the
administrative proceedings were so fundamentally flawed that her
procedural due process rights were violated.  The trial court denied
the petition and affirmed the denial of benefits.  The claimant now
appeals.  We affirm, finding that the claimant's due process rights
were not violated, and that there is substantial and material evidence
to support the denial of benefits.

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

MELANIE SUE GIBSON v. ERNESTINE W. FRANCIS

Court:TCA

Attorneys:                          

H. Douglas Nichol and Harold C. Wimberly, Knoxville, Tennessee, for
the appellant, Melanie Sue Gibson.

John T. Johnson, Jr. and Deborah E. Johnson, Knoxville, Tennessee, for
the appellee, Ernestine W. Francis.

Judge: SUSANO

First Paragraph:

This tort action arises out of a two-vehicle accident.  At trial, the
defendant Ernestine W. Francis admitted liability.  The jury returned
a verdict in favor of the plaintiff Melanie Sue Gibson for property
damage in the amount of $6,900; however, the jury declined to award
her any damages on her claim for personal injuries.  On appeal, the
plaintiff argues that the trial court did not properly perform its
role as thirteenth juror; that the verdict is contrary to the weight
of the evidence; and that the trial court erred when it re-instructed
the jury in response to a question from that body.  We affirm.

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

JEFFREY LYNN MILLER v. JERRY ELLISON, ET AL.

Court:TCA

Attorneys:                          

David H. Dunaway, LaFollette, Tennessee, attorney for appellant,
Jeffrey Lynn Miller.

J. Stephen Hurst, LaFollette, Tennessee, attorney for appellee, John
D. Suttles and wife, Verda Suttles.

Judge: CATE

First Paragraph:

Plaintiff, a customer who was injured when assaulted on the premises,
brought action for damages against the owners-lessors of the premises
and others.  The Circuit Court, Campbell County, Conrad Troutman,
Judge, dismissed the action as to the owners-lessors for failure to
state a claim upon which relief could be granted, and plaintiff
appeals.  We affirm.

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

GREGOR NADLER v. MOUNTAIN VALLEY CHAPEL BUSINESS TRUST, ET AL

Court:TCA

Attorneys:                          

Scott D. Hall, Sevierville, Tennessee, for the appellant, Gregor
Nadler.

Brian T. Mansfield, Sevierville, Tennessee, for the appellees,
Mountain Valley Chapel Business Trust, Gerald H. Lucas, Sharon M.
Lucas, Gerald Richard Lucas, and Timothy Barton Lucas.

Judge: SUSANO

First Paragraph:

Gregor Nadler ("the plaintiff") took a default judgment in the amount
of $68,270.98 against Gerald H. Lucas ("Mr. Lucas") in a Florida
proceeding.  The judgment survived Mr. Lucas's subsequent bankruptcy
filing.  The plaintiff domesticated his judgment in Tennessee and then
filed suit against, inter alia, the Mountain Valley Chapel Business
Trust and Mr. Lucas, claiming (1) that Mr. Lucas had engaged in a
fraudulent conveyance when he formed the trust and (2) that the trust
was his alter ego.  Following a bench trial, the court dismissed the
plaintiff's complaint.  From this judgment, the plaintiff appeals,
challenging the trial court's rulings with respect to his fraudulent
conveyance and alter ego claims.  In addition, the plaintiff raises an
evidentiary issue.  We affirm.

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

RUBY TUESDAY, INC. v. GERALD LARGEN

Court:TCA

Attorneys:                          

Gerald Largen, Kingston, Tennessee, pro se.

R. Louis Crossley, Jr., Knoxville, Tennessee, for the appellee Ruby
Tuesday, Inc.

Judge: CANTRELL

First Paragraph:

This case started out as a dispute over the title to a twenty to
thirty-five foot wide strip along a state highway.  The Chancery Court
of Roane County held that the defendant held the title, but that the
plaintiff had an access easement over the property.  The defendant
asserts on appeal that the Court erred because the plaintiff never
claimed an easement in its pleadings and that the Court simply created
one.  The plaintiff asserts that the Court erred in finding that the
defendant held the title to the property.  We affirm.

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

MARY RACHEL BROWN WILLIAMS v. JEWELINE R. CRENSHAW

Court:TCA

Attorneys:                          

Newton P. Allen, Malinda C. Allen, Memphis, TN, for Appellant

Thomas Barnett, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

Plaintiff brought suit on a defectively executed joint will, arguing
that, despite its infirmities as a testamentary instrument, it is
still enforceable as a contract for the benefit of a third party.  In
her suit, Plaintiff sought to recover certain property, purportedly
covered by the defective joint will, that Decedent had devised to
Defendant in a subsequent will.  The lower court granted Defendant's
motion for summary judgment, finding that the defective joint will
does not constitute an enforceable contract.  For the following
reasons, we affirm.

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

STATE OF TENNESSEE v. LARRY ARNELL ADAMS

Court:TCCA

Attorneys:                          

Bruce E. Poston, Knoxville, Tennessee, for the appellant, Larry Arnell
Adams.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and G. Scott Green and Leland Price, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Larry Arnell Adams, was convicted by a jury in the Knox
County Criminal Court of one count of especially aggravated
kidnapping, one count of aggravated spousal rape, one count of
assault, and two counts of rape.  He received a total effective
sentence of thirty-seven years incarceration in the Tennessee
Department of Correction.  On appeal, the appellant raises numerous
issues for our review, including consolidation and sufficiency.  Upon
review of the record and the parties' briefs, we affirm the judgments
of the trial court.

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

STATE OF TENNESSEE v. RENNE EFREN ARELLANO

Court:TCCA

Attorneys:                          

William C. Barnes, Jr., Columbia, Tennessee, for the Appellant, Renne
Efren Arellano.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; T.
Michael Bottoms, District Attorney General; and Joseph L. Penrod,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

This case presents an appeal to this court after remand by order of
the Tennessee Supreme Court.  The Appellant, Renne Efren Arellano,
appeals from the sentencing decision of the Maury County Circuit
Court.  In a negotiated plea agreement, Arellano pled guilty to arson,
eight counts of aggravated assault, and felony possession of a weapon
and received an effective twelve-year sentence as a Range I standard
offender.  The manner of service was to be determined by the trial
court.  Following a sentencing hearing, the trial court denied any
form of alternative sentencing and imposed total incarceration for the
twelve-year sentence.  On appeal, Arellano contends that the trial
court erred in not sentencing him to any form of alternative
incarceration.  Finding no error, the sentences of the trial court are
affirmed.

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

FRANK A. BARNARD v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Frank A. Barnard, Turney Center Industrial Prison, Only, Tennessee,
Pro Se.

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

Judge: GLENN

First Paragraph:

The petitioner, Frank A. Barnard, was convicted in 1992 of first
degree murder, aggravated robbery, and aggravated sexual battery, for
which he was sentenced, respectively, to sentences of life, eight
years, and ten years, with the latter sentence to be served
consecutively to the first two.  In a petition for writ of habeas
corpus, he claimed that the trial court was without jurisdiction to
impose judgment for the murder conviction.  The trial court dismissed
the petition, and this timely appeal followed.  After review, we
affirm the dismissal.

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

STATE OF TENNESSEE v. MARIO C. ESTRADA

Court:TCCA

Attorneys:                          

Claudia S. Jack, District Public Defender; Robin Farber, Assistant
Public Defender, Columbia, Tennessee, for the Appellant, Mario C.
Estrada.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Renee W. Turner, Assistant Attorney General; T.
Michael Bottoms, District Attorney General; and Joseph L. Penrod,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

This case presents an appeal to this court after remand by order of
the Tennessee Supreme Court.  The Appellant, Mario C. Estrada, appeals
the imposition of a sentence of twelve years confinement in the
Department of Correction.  The sentence arose from a guilty plea
entered by Estrada to one count of arson, eight counts of aggravated
assault, and one count of possession of a prohibited weapon.  In this
appeal, Estrada raises the issue of whether the trial court erred by
ordering a sentence of total confinement rather than a less
restrictive alternative.  After review, we find no error. 
Accordingly, the judgment is affirmed.

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

STATE OF TENNESSEE v. STEPHEN KEITH FRAZIER

Court:TCCA

Attorneys:                          

Richard W. DeBerry, Savannah, Tennessee, for the appellant, Stephen
Keith Frazier.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; G. Robert Radford, District Attorney
General; John Overton, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Hardin County jury convicted the Defendant, Stephen Keith Frazier,
of vehicular homicide and two counts of driving while under the
influence of an intoxicant or drug ("DUI").  The trial court merged
the two DUI convictions and sentenced the Defendant to ten years for
vehicular homicide, and eleven months and twenty-nine days for the DUI
conviction, with both sentences to run concurrently.  On appeal, the
Defendant contends that: (1) the evidence was insufficient to support
the convictions; and (2) the trial court erred in sentencing the
Defendant by improperly applying enhancement factor (17) to increase
the length of the sentence and in not imposing alternative sentencing.
 Based upon our review, we affirm the conviction for vehicular
homicide and vacate the conviction for DUI, this offense being merged
into the conviction for vehicular homicide.  Additionally, we affirm
the Defendant's sentence for his vehicular homicide conviction, and we
vacate the Defendant's sentence for his DUI conviction.  We therefore
remand to the trial court for the entry of a single judgment in
accordance with this opinion.

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

STATE OF TENNESSEE v. BRIAN FRENCH

Court:TCCA

Attorneys:                          

Roger Eric Nell, District Public Defender; and Russel A. Church,
Assistant District Public Defender, for the appellant, Brian French.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Helen O. Young, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The defendant, Brian French, appeals the revocation of his probation. 
We dismiss the appeal due to the untimely filing of the notice of
appeal.

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

STATE OF TENNESSEE v. THADDAEUS MEDFORD

Court:TCCA

Attorneys:                          

Clifford K. McGowan, Jr., Waverly, Tennessee (on appeal), Gary F.
Antrican and Julie K. Pillow, Somerville, Tennessee (at trial), for
the appellant Thaddeaus Medford.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; Tracey Brewer, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Thaddeaus Medford, was convicted of three counts
involving the delivery and attempted delivery of cocaine.  In his
first appeal, the Defendant contended, in part, that the State used a
peremptory challenge to exclude a potential juror based on race.  We
remanded the case for the trial court to determine whether the State's
challenge was based upon a racially-neutral reason.  On remand, the
trial court determined that the State's challenge was based upon a
racially-neutral reason, and the Defendant appeals, contending that
this finding by the trial court is in error.  Finding no error, we
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. FELICIA MURPHY

Court:TCCA

Attorneys:                          

David Brady, Public Defender; and John B. Nisbet, III, Assistant
Public Defender, Cookeville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; David H. Findley,  Assistant Attorney General;
William Gibson, District Attorney General; and William Locke,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The appellant, Felicia Murphy, appeals the sentencing decision of the
DeKalb County Circuit Court following revocation of her probation.  In
December 2001, Murphy pled guilty to misdemeanor reckless endangerment
and received a sentence of eleven months and twenty days, which was to
be suspended after service of ten days.  While on probation Murphy was
found to be in violation of her probation, resulting in the extension
of her probationary period for an additional six months.  On the day
before this extended period was to expire a violation warrant was
issued, which alleged numerous violations of conditions of her
probation.   Following a hearing, the trial court revoked her
probation and ordered reinstatement of her original sentence.  On
appeal, she argues that the trial court "acted too harshly" by
revoking her sentence and, instead, should have extended her
probationary period for one year.  Finding no merit to Murphy's claim,
the judgment of the trial court revoking her probation and ordering
reinstatement of her original eleven-month and twenty- nine-day
sentence is affirmed.

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

STATE OF TENNESSEE v. WILLIAM GLENN ROGERS

Court:TCCA

Attorneys:                          

Brock Mehler, Nashville, Tennessee and Jerome M. Converse,
Springfield, Tennessee, for the appellant, William Glenn Rogers.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Assistant Attorney General; Angele M. Gregory, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and C.
Daniel Brollier and Lance A. Baker, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, William Glenn Rogers, appeals his convictions by a jury
for first degree premeditated murder, first degree felony murder in
the perpetration of a kidnapping, first degree felony murder in the
perpetration of a rape, especially aggravated kidnapping, rape of a
child, and two counts of criminal impersonation.  The felony murder
convictions were merged into the first degree premeditated murder
conviction.  Following a separate sentencing hearing, the jury found
that the proof supported four aggravating circumstances beyond a
reasonable doubt:  the murder was committed against a person less than
twelve years of age and the defendant was eighteen years of age or
older; the defendant had previously been convicted of one or more
felonies, the statutory elements of which involve the use of violence
to the person; the murder was committed for the purpose of avoiding,
interfering with or preventing a lawful arrest or prosecution of the
defendant or another; and the murder was knowingly committed,
solicited, directed, or aided by the defendant while the defendant had
a substantial role in committing or attempting to commit, or was
fleeing after having a substantial role in committing or attempting to
commit, any rape or kidnapping.  See T.C.A. S 39-13-204(i)(1), (2),
(6), and (7).  The jury further determined that the aggravating
circumstances outweighed any mitigating circumstances beyond a
reasonable doubt and sentenced the defendant to death for the murder. 
He received an effective consecutive sentence of forty-eight years in
confinement for the other offenses.  The defendant raises the
following issues for review: (1) whether the evidence is sufficient to
convict and to support a sentence of death; (2) whether the trial
court erred in failing to grant the defendant's motion for a change of
venue; (3) whether the trial court erred by not suppressing the
defendant's statements to the police; (4) whether the trial court
erred by not suppressing the defendant's statements to third parties;
(5) whether the trial court erred by excluding two jurors for cause;
(6) whether the trial court erred by limiting the cross-examination of
Jeremy Beard; (7) whether the trial court erred in admitting a
photograph of the victim's skull and a photograph of the victim taken
during her life; (8) whether the trial court erroneously instructed
the jury on the definition of "intentional" in the first degree murder
charge; (9) whether the trial court erred by failing to instruct
vehicular homicide as a lesser included offense of first degree
murder; (10) whether T.C.A. SS 39-13-204(f) and 39-13-204(h) are
unconstitutional; (11) whether the proportionality review mandated by
T.C.A. S 39-13-206 is inadequate because it fails to apply meaningful
standards for determining whether a death sentence is
disproportionate; and (12) whether the death penalty is
unconstitutional because it is imposed in a discriminatory manner.  We
conclude that the evidence is sufficient to support the jury's verdict
and sentencing, that no errors requiring reversal exist, and that the
sentence of death is proportional to the penalty imposed in similar
cases, considering the nature of the crimes and the defendant. 
Accordingly, we affirm the convictions and the sentence of death.
 
http://www.tba.org/tba_files/TCCA/rogerswilliamglenn.wpd

STATE OF TENNESSEE v. MARSHA KAREN YATES

Court:TCCA

Attorneys:                          

Stephen M. Wallace, District Public Defender; and William A. Kennedy,
Assistant District Public Defender, Blountville, Tennessee, (on
appeal); and Carey Taylor, Kingsport, Tennessee, (at hearing), for the
appellant, Marsha Karen Yates.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and William B. Harper, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a revocation hearing, the trial court revoked the probation
of Defendant, Marsha Karen Yates, and ordered her to spend the
remainder of her sentence in confinement. On appeal, Defendant argues
that the trial court abused its discretion in revoking her probation.
After a careful review of the record in this matter, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. ROBERT JAMES YORECK, III

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Robert
James Yoreck, III..

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; and Helen Young,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

This case presents an appeal to this court after remand by order of
the Tennessee Supreme Court.  The Appellant, Robert James Yoreck, III,
pled guilty to aggravated assault, a class C felony.  Following a
sentencing hearing, the trial court sentenced Yoreck, as a Range II
multiple offender, to nine years in the Department of Correction. On
appeal, Yoreck argues that his sentence was excessive.  After a review
of the record, we affirm the sentence as imposed by the Montgomery
County Circuit Court

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

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