Opinion Flash

July 13, 2004
Volume 10 — Number 133

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):
01 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
07 New Opinion(s) from the Tennessee Court of Criminal Appeals
07 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


PETE HONSA v. TOMBIGBEE TRANSPORT CORP., ET AL.
AND
EDDIE GENE BROWN V. TOMBIGBEE TRANSPORT CORP.
AND
WILLIAM B. STEVENSON V. TRANSWAY, INC., ET AL.

Court:TSC

Attorneys:                          

Ricky L. Boren and Robert N. Russ, Jackson, Tennessee, for the
Appellant, Pete Honsa.

Terry Lynn Wood, Corinth, Mississippi, for the Appellant, Eddie Gene
Brown.

Curtis F. Hopper, Savannah, Tennessee, for the Appellant, William B.
Stevenson.

Amber A. Edwards and J. Arthur Crews II, Jackson, Tennessee, for the
Appellee, Tombigbee Transport Corp.

Dianne Stamey Dycus, Deputy Attorney General, Nashville, Tennessee,
for the Appellee, the Second Injury Fund.

Judge: HOLDER

First Paragraph:

The issue raised in these three workers' compensation cases,
consolidated for appeal, is whether the defendant is the employer of
the plaintiffs and thus responsible for providing workers'
compensation insurance coverage for them.  In each case, the trial
court granted the defendant's motion for summary judgment.  We hold
that under Tennessee Code Annotated section 50-6-106(1)(A), the
defendant is not, as a matter of law, the plaintiffs' employer so as
to subject the defendant to liability under the Workers' Compensation
Law.  Therefore, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TSC/tombigbee.wpd

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0712.wpd

BELLSOUTH TELECOMMUNICATIONS, INC. v. CITY OF MEMPHIS, TENNESSEE

Court:TCA

Attorneys:                          

Louis F. Allen and Earle J. Schwartz of Memphis; Guy M. Hicks of
Nashville; Dorian S. Denburg of Atlanta, Georgia; John E. Muench and
Robert M. Dow, Jr. of Chicago, Illinois for Appellant, BellSouth
Telecommunications, Inc.

Robert L. J. Spence, Jr. and Monika L. Johnson; Allan J. Wade and Lori
Hackleman Patterson of Memphis; Clarence A. West of Austin, Texas for
Appellee, City of Memphis, Tennessee

Judge: CRAWFORD

First Paragraph:

Telecommunications corporation appeals trial court's grant of summary
judgment to city, alleging that trial court incorrectly determined
that city ordinance imposing a charge of five percent of gross revenue
of the corporation was not inconsistent with T.C.A. S 65-21-103 or any
other provision of Tennessee law.  We reverse.

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

KELLIE COX v. RANDY COX

Court:TCA

Attorneys:                          

Randy Hillhouse, Lawrenceburg, Tennessee, for the appellant, Randy
Cox.

Paul A. Bates, Lawrenceburg, Tennessee, for the appellee, Kellie Cox.

Judge: CLEMENT

First Paragraph:

After  twenty-one years of marriage and raising two children, now
adults, Wife filed for divorce.  The trial court granted the divorce
and ordered Husband to pay rehabilitative alimony for three years,
awarded Wife sole possession of the marital residence and ordered
Husband to pay the mortgage as alimony in futuro until Wife remarries,
lives with a person of the opposite sex or dies.  Husband was also
required to pay Wife's attorney fees.  Husband appealed.  We modify
the trial court's order requiring Husband to pay alimony in futuro and
reconstitute it as rehabilitative alimony with a three year limit.  In
all other aspects, we affirm the trial court.

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

STATE OF TENNESSEE v. AMANDA JO GOODE

Court:TCCA

Attorneys:                          

Mark E. Stephens, District Public Defender, and Robert C. Edwards,
Assistant Public Defender, for the appellant, Amanda Jo Goode.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Zane M. Scarlett, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Amanda Jo Goode, appeals from the Knox County Criminal
Court's revoking her probation that was ordered for her sentences for
solicitation to commit felony murder; two counts of facilitation of
especially aggravated kidnapping; and two counts of facilitation of
aggravated robbery.  The defendant contends that although the trial
court was justified in determining that she violated the terms of her
probation, it erred by ordering her to serve her sentences in
confinement and consecutively to a federal sentence.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. LISA DARLENE HECK

Court:TCCA

Attorneys:                          

Stephen M. Wallace, District Public Defender; and Joseph F. Harrison,
Assistant District Public Defender, for the appellant, Lisa Darlene
Heck.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; H. Greeley Wells, Jr., District
Attorney General; and Rebecca H. Davenport, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The defendant, Lisa Darlene Heck,  pled guilty to six counts of
forgery and two counts of theft over $1,000.  The Sullivan County
trial court imposed a four-year sentence of incarceration on one of
the theft cases followed by an effective sentence of four years of
probation on the remaining convictions.  On appeal, the defendant
contends the trial court erred in imposing confinement on the theft
charge.  We affirm the judgments of the trial court; however, we
remand for entry of an amended judgment as to one of the forgery
convictions based upon a clerical error.

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

RANDY D. HURLEY v. HOWARD CARLTON, WARDEN

Court:TCCA

Attorneys:                          

Randy D. Hurley, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Brent C. Cherry,
Assistant Attorney General, for the appellee, Howard D. Carlton,
Warden.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the trial court's dismissal of his petition for
writ of habeas corpus.  We agree with the habeas court that the
petitioner has failed to state a facially valid claim for habeas
corpus relief.  We affirm the habeas court's dismissal of the
petitioner's application for the writ of habeas corpus.

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

STATE OF TENNESSEE v. ROBERT WAYNE MARLER, aka BOBBY MARLER

Court:TCCA

Attorneys:                          

Larry R. Dillow, Kingsport, Tennessee, for the appellant, Robert W.
Marler, aka Bobby Marler.

Paul G. Summers, Attorney General and Reporter; Elizabeth Ryan, Senior
Counsel; Randall E. Nichols, District Attorney General; and James F.
Goodwin, Assistant  District Attorney General, for the appellee, State
of Tennessee.

Judge: WILLIAMS

First Paragraph:

A jury found the defendant guilty of two counts of reckless homicide,
Class D felonies, and one count of especially aggravated robbery, a
Class A felony.  He contends on appeal that (1) the evidence was
insufficient to corroborate the unindicted accomplice's testimony, (2)
the trial court erred in refusing to grant a continuance in order to
locate a material witness, and (3) he received ineffective assistance
of counsel.  The evidence is sufficient for any rational trier of fact
to have found the essential elements of the offenses beyond a
reasonable doubt.   Upon consideration of the factors enumerated in
State v. Howell, 672 S.W.2d 442, 445-46 (Tenn. Crim. App. 1984), we
cannot conclude that the trial court abused its discretion in denying
the continuance.  The defendant's claim of ineffective assistance of
counsel has been waived.  We affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. JAMES F. MONK

Court:TCCA

Attorneys:                          

Julie A. Rice, Knoxville, Tennessee (on appeal), and Stephen M.
Wallace, District Public Defender, and Richard A. Tate, Assistant
Public Defender (at trial), for the appellant, James F. Monk.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
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: TIPTON

First Paragraph:

A Sullivan County Criminal Court jury convicted the defendant of
driving under the influence (DUI), fourth offense, and the trial court
sentenced him as a Range II, multiple offender to four years in the
Department of Correction and ordered him to pay a $3,000 fine.  The
defendant appeals, claiming (1) that the evidence is insufficient to
support his conviction and (2) that the trial court improperly applied
enhancement factors (11) and (17) in T.C.A. S 40-35-114 and denied his
request for alternative sentencing.  Although we conclude that the
trial court should not have applied factor (17), we affirm the
judgment of conviction.

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

STATE OF TENNESSEE v. RAYMOND DOUGLAS MYERS, SR.
CORRECTED OPINION

Court:TCCA

Attorneys:                          

John Appman, Jamestown, Tennessee, for the appellant, Raymond Douglas
Myers, Sr.

Paul G. Summers, Attorney General and Reporter; Elizabeth Marney,
Assistant Attorney General; Clement Dale Potter, District Attorney
General; and Larry G. Bryant, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Raymond Douglas Myers, Sr., was found guilty by a jury
of three counts of first degree murder, two counts of felony murder,
one count of aggravated arson, and one count of conspiracy to commit
murder.  The trial court merged the convictions for felony murder and
conspiracy to commit murder into the three first degree murder
convictions.  After a sentencing hearing, the trial court imposed
consecutive sentences of life without the possibility of parole for
each murder conviction, and a consecutive twenty-four year sentence
for the aggravated arson conviction.  In this direct appeal, the
Defendant argues that the evidence is insufficient to support his
convictions, that Tennessee's first degree murder sentencing statute
is unconstitutional, and that the trial judge improperly instructed
the jury regarding the State's burden of proof.  We affirm the
judgments of the trial court.

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

THOMAS JEFFREY PERKEY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Nat H. Thomas, Kingsport, Tennessee, for the appellant, Thomas Jeffrey
Perkey.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Teresa Smith, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Thomas Jeffrey Perkey, appeals from 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/perkeythomas.wpd

Juvenile Court's Subject Matter Jurisdiction to Award Joint Custody

Date: July 9, 2004

Opinion Number: 04-106                         

http://www.tba.org/tba_files/AG/2004/op106.pdf

School Purchases -- Local Option Financial Management System Act --
Conflicts

Date: July 9, 2004

Opinion Number: 04-107                         

http://www.tba.org/tba_files/AG/2004/op107.pdf

West Tennessee River Basin Authority - Proposed Stokes Creek Project

Date: July 9, 2004

Opinion Number: 04-108                         

http://www.tba.org/tba_files/AG/2004/op108.pdf

Request for Clarification of Opinion No. 03-133 regarding Forfeitures
Based on Casual Exchange of Controlled Substances

Date: July 9, 2004

Opinion Number: 04-109                         

http://www.tba.org/tba_files/AG/2004/op109.pdf

Extending Sewer Service to Rural Area

Date: July 9, 2004

Opinion Number: 04-110                         

http://www.tba.org/tba_files/AG/2004/op110.pdf

Constitutionality of a Specialty License Plate for DUI Offenders

Date: July 9, 2004

Opinion Number: 04-111                         

http://www.tba.org/tba_files/AG/2004/op111.pdf

Interstate Movement of Captive Wildlife Through Tennessee Airports

Date: July 9, 2004

Opinion Number: 04-112                         

http://www.tba.org/tba_files/AG/2004/op112.pdf

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