Opinion FlashJuly 13, 2004Volume 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel 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 PLEASE FORWARD THIS E-MAIL! 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