Opinion Flash

July 9, 2004
Volume 10 — Number 131

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
04 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


ROBERT WILLIAM ARNDTS, BY CONSERVATOR, CAROL ZELIFF, DARRELL R. SMITH,
v. VIOLET A. BONNER AND TOMMY L. RAINES

Court:TCA

Attorneys:                          

Lyn Dechman, Chattanooga, Tennessee, for Appellant.

B. Prince Miller, Jr., Cleveland, Tennessee, for Appellees.

Judge: FRANKS

First Paragraph:

Action was filed by plaintiff's Conservator to recover assets
transferred by his wife prior to her death.  The Trial Judge awarded
certain assets to plaintiff and plaintiff appealed.

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

BURTON v. FINE

Court:TCA

Attorneys:                          

William Horton and Michael A. Anderson, Chattanooga, Tennessee, for
the appellants, Elizabeth and Blake Burton.

Alaric A. Henry and Matthew Hargraves, Chattanooga, Tennessee, for the
appellees, Barth M. Fine and CNA Insurance Company

Judge: CANTRELL

First Paragraph:

Mrs. Burton and Mr. Fine had an automobile accident.  Both sides
claimed the accident was caused by the other's fault.  Mr. Fine
settled his claim with Mrs. Burton's liability carrier and gave Mrs.
Burton a general release.  Mrs. Burton's claim proceeded to trial and
she asserted that the release waived Mr. Fine's defense of comparative
fault.  The trial judge held that it did not and approved the jury's
verdict assessing the greater fault to Mrs. Burton.  We affirm.  We
also affirm the amount of discretionary costs awarded to Mr. Fine.

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

HOWARD LEVY AND SUZANNE LEVY v. JAMES C.D. AND RHONDA FRANKS, LINDSEY
BUTLER AND TENNESSEE VALLEY HOMES, INC.
CORRECTED OPINION

Court:TCA

Attorneys:                          

Peter H. Curry, Nashville, for the appellants Howard Levy and Suzanne
Levy.

James D. Kay, Jr. and Mark S. Levan, Nashville, for the appellees
James C.D. and Rhonda Franks.

Judge: KIRBY

First Paragraph:

This case involves a dispute between neighbors.  The plaintiffs owned
a one-acre parcel of property in a rural setting almost completely
surrounded by a sixteen-acre parcel of property owned by the
defendants.  The defendant larger landowners began building structures
and storing equipment in an escalating commercial use of their
property.  The plaintiff small landowners complained to county
officials that the defendants' use of their property constituted a
zoning violation.  The ensuing dispute between the two landowners was
marked by the defendants engaging in threatening and intimidating
behavior and the plaintiffs repeatedly complaining to authorities and
incessantly documenting and videotaping the defendants' activities. 
Finally, the plaintiffs sued the defendants for, among other things,
malicious harassment, outrageous conduct, civil conspiracy, and
malicious prosecution.  The trial court found in favor of the
plaintiffs on the malicious prosecution claim but declined to award
punitive damages.  The trial court dismissed the remaining claims. 
The plaintiffs appeal.  We affirm the dismissal of the plaintiffs'
claims of malicious harassment and civil conspiracy.  We reverse the
dismissal of the plaintiffs' claim for outrageous conduct, finding
that the defendants' behavior rose to the level of outrageous conduct,
and remand for an award of damages on this claim.  Finally, we reverse
the denial of an award of punitive damages on the plaintiffs'
malicious prosecution claim.

CORRECTED OPINION
http://www.tba.org/tba_files/TCA/levyhoward.wpd

MIKE WILSON, d/b/a M & M AUTO SALES v. SHANE CHAPMAN

Court:TCA

Attorneys:                          

Edward Witt Chandler of Mountain Home, Arkansas, For Appellant, Shane
Chapman

Roger A. Stone of Memphis For Appellee, Mike Wilson, d/b/a M & M Auto
Sales

Judge: CRAWFORD

First Paragraph:

This case involves a question of whether a plaintiff who brings suit
for a debt due him resulting from his agent's business activities has
standing as a real party in interest.  The trial court found that the
agent was acting on behalf of his employer, that the plaintiff had
standing to sue as a real party in interest, and granted judgment in
favor of the plaintiff.  Defendant appeals.  We affirm.

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

JESSIE JAMES AUSTIN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Langdon S. Unger, Jr. Martin, Tennessee, for the appellant, Jessie
James Austin.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner was originally indicted for aggravated robbery and
three counts of aggravated assault.  After a jury trial, the
petitioner was convicted of two counts of aggravated assault.  He
appealed his convictions to this Court.  This Court affirmed the
convictions.  The petitioner then filed a Petition for Post-conviction
Relief based upon ineffective assistance of counsel.  After a hearing,
the trial court denied the petitioner's petition.  The petitioner
appeals the trial court's decision to this Court on three issues: (1)
trial counsel failed to call the petitioner's mother as a witness; (2)
trial counsel failed to make an investigation of the crime scene,
including the failure to take pictures; and (3) lead counsel was hired
at 8:30 p.m. the night before trial, was not familiar with the case,
and was not allowed a continuance by the trial court.  We affirm the
decision of the trial court.

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

STATE OF TENNESSEE v. TIMOTHY ELLIS BALLARD

Court:TCCA

Attorneys:                          

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Timothy
Ellis Ballard.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Robert Radford, District Attorney General;
and Eleanor Cahill, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Timothy Ellis Ballard, was found to have violated the
conditions of his probation by the General Sessions Court of Carroll
County.  The general sessions court partially revoked the Defendant's
probation and ordered him to serve ninety days in jail.  The Defendant
appealed.  After a hearing, the Carroll County Circuit Court agreed
that the Defendant had violated the terms of his probation and
remanded the case to the general sessions court for enforcement of the
sentence.  In this appeal, the Defendant argues that the circuit court
erred by failing to conduct a de novo review of the sentence imposed
by the general sessions court and that his sentence was the product of
vindictive prosecution.  Because the circuit court failed to address
the sentencing options following probation revocation, we remand the
case to the circuit court for that purpose.

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

STATE OF TENNESSEE v. RICKY ALLEN FRAZIER

Court:TCCA

Attorneys:                          

Cary C. Taylor, Kingsport, Tennessee, for the appellant, Ricky Allen
Frazier.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman
McIntire, Assistant Attorney General; and Joseph Eugene Perrin,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WADE

First Paragraph:

The defendant, Ricky Allen Frazier, entered pleas of guilt to
possession of Oxycodone, a Class A misdemeanor; possession of more
than one-half ounce of marijuana for resale, a Class E felony;
manufacturing marijuana, a Class E felony; possession of drug
paraphernalia, a Class A misdemeanor; possession of open title, a
Class C misdemeanor; violation of the registration law, a Class C
misdemeanor; speeding, a Class C misdemeanor; and maintaining a
dwelling where a controlled substance is used or sold, a Class D
felony.  The trial court imposed an effective sentence of six years. 
As a part of the plea agreement, the defendant reserved a certified
question of law under Rule 37(b)(2)(i) of the Tennessee Rules of
Criminal Procedure.  The single question presented for review is
whether the search and seizure of the defendant and his vehicle
violated the Fourth Amendment to the United States Constitution and
Article 1, Section 7 of the Tennessee Constitution.  The judgments are
affirmed.

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

STATE OF TENNESSEE v. J. D. JONES

Court:TCCA

Attorneys:                          

James D. Estep, III, Tazewell, Tennessee; and Dirk A. Daniels,
Rutledge, Tennessee, for the appellant, J. D. Jones.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William Paul Phillips, District Attorney
General; Jared Effler, Assistant District Attorney General; and Todd
Longmire, Assistant District Attorney General, for the appellee, State
of Tennessee.

Judge: WOODALL

First Paragraph:

Following a jury trial, Defendant, J. D. Jones, was convicted of
attempted second degree murder, a Class B felony, and the unlawful
possession of a weapon, a Class C misdemeanor.  At the conclusion of
Defendant's sentencing hearing, the trial court sentenced Defendant to
ten years for the attempted second degree murder conviction and thirty
days for the misdemeanor conviction.  The trial court ordered
Defendant's sentences to run concurrently.  On appeal, Defendant
argues (1) that the evidence was insufficient to support his
convictions; (2) that the prosecution engaged in improper conduct
during Defendant's cross-examination; (3) that the trial court erred
in failing to order a gunshot residue test of the samples taken from
Defendant's hands; (4) that the trial court erred in not considering
Defendant's health as a mitigating factor in determining Defendant's
sentence; and (5) that the trial court erred in its instruction to the
jury on the mens rea element of the offense of attempted second degree
murder.  After a thorough review of the record in this case, we affirm
the judgments of the trial court.

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

STATE OF TENNESSEE v. KAWISHA PRICE

Court:TCCA

Attorneys:                          

Periann S. Houghton, Assistant Public Defender, Trenton, Tennessee for
the appellant, Kawisha Price.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Gary Brown, District Attorney General; and
Elaine Gwinn Todd, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Kawisha Price, was indicted for aggravated child abuse.
 She entered a best-interest plea to aggravated assault with a
sentence of eight years as a Range II multiple offender, with the
trial court to determine the manner of service of the sentence.  The
trial court subsequently ordered her to serve the sentence in
confinement.  She appeals, arguing that the trial court decided the
manner of service of the sentence before any proof was offered on her
behalf and erred in ordering her to serve the sentence in confinement.
 For the following reasons, we affirm the judgment of the trial court.

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

RHODNEY ROBERSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Barney Witherington, IV, Covington, Tennessee, for the appellant,
Rhodney Roberson.

Michael E. Moore, Solicitor General; Jennifer L. Bledsoe, Assistant
Attorney General; Garry G. Brown, District Attorney General; and
Elaine Gwinn Todd, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: TIPTON
 
First Paragraph:

The petitioner, Rhodney Roberson, appeals the Gibson County Circuit
Court's denial of his petition for post-conviction relief from his
conviction for first degree murder and resulting life sentence.  The
petitioner claims that he received the ineffective assistance of
counsel because his attorney (1) failed to call an expert to testify;
(2) failed to call other critical witnesses; (3) failed to request a
severance from his codefendant wife at trial; and (4) used an
unworkable trial strategy.  We affirm the trial court's denial of the
petition.

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

STATE OF TENNESSEE v. ANTHONY TONY WOODS

Court:TCCA

Attorneys:                          

Clifford K. McGown, Waverly, Tennessee, on appeal, and Rickey Griggs,
Assistant Public Defender, Somerville, Tennessee, at trial and on
appeal, for the appellant, Anthony Tony Woods..

Paul G. Summers, Attorney General & Reporter; Elizabeth Ryan,
Assistant Attorney General; Elizabeth Rice, District Attorney General;
and Joe Van Dyke, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Anthony Tony Woods, also known as Dogman, was found
guilty by a jury of aggravated assault and aggravated criminal
trespass charges.  The trial court sentenced the appellant to six
years on the aggravated assault charge and dismissed the aggravated
criminal trespass charge.  In this direct appeal, the appellant
challenges the sufficiency of the evidence.  For the following
reasons, we affirm the decision of the trial court.

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

STATE OF TENNESSEE v. ROBERT JAMES YORECK, III
CORRECTED OPINION

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

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

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