Opinion Flash

July 19, 2004
Volume 10 — Number 137

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
09 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


SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0719.wpd

SHERRY PEARSON As Next of Kin of Addie Pearson, Deceased v. VENCOR
NURSING CENTER LIMITED PARTNERSHIP, ET AL.

Court:TCA

Attorneys:                          

Jerry D. Kizer, Jr. and Patrick W. Rogers of Memphis for Appellant,
Jackson-Madison County General Hospital District

Christopher L. Taylor of Memphis for Appellee, Sherry Pearson as next
of kin of Addie Pearson, deceased

Judge: CRAWFORD

First Paragraph:

Plaintiff sued defendant nursing home located in Carroll County for
damages for the injuries and death of plaintiff's decedent while a
patient in the nursing home.  Defendant-nursing home, in its answer,
alleged comparative fault on the part of Jackson-Madison County
General Hospital, a governmental entity.  Plaintiff amended her
complaint to allege fault on the part of the hospital.  The hospital
then filed a motion to dismiss for improper venue which was denied by
the trial court.  The case is before this Court on a Rule 9
Interlocutory Appeal.  We reverse and remand.

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

THE REALTY STORE, INC., ET AL v. TARL PARTNERSHIP, L.P., ET AL

Court:TCA

Attorneys:                          

D. Scott Hurley, Knoxville, Tennessee, for Appellants.

Boyd W. Venable, III, Sevierville, Tennessee, for Appellee, The Realty
Store, Inc., and Judy Jones.

Judge: FRANKS

First Paragraph:

The Trial Court awarded plaintiffs commission for lease of real estate
pursuant to Agreement between the parties.   Defendants appealed - we
affirm.

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

GARY L. WEST, ET AL. v. EAST TENNESSEE PIONEER OIL CO., d/b/a EXXON
CONVENIENCE STORE

Court:TCA

Attorneys:                          

Gregory F. Coleman and Michael A. Myers, Knoxville, Tennessee, for the
Appellants Gary L. West and Michell B. Richardson.

Clint J. Woodfin and Gary T. Dupler, Knoxville, Tennessee, for the
Appellee East Tennessee Pioneer Oil Co., d/b/a Exxon Convenience
Store.

Judge: SWINEY

First Paragraph:

Gary L. West and Michell B. Richardson ("Plaintiffs") sued East
Tennessee Pioneer Oil Co., d/b/a Exxon Convenience Store ("Defendant")
asserting claims based on negligence, negligent entrustment, and
negligence per se.  Plaintiffs allege that Brian Lee Tarver ("Tarver")
was visibly intoxicated when he stopped at Defendant's store to
purchase beer and gasoline.  Pursuant to company policy, Defendant's
employees refused to sell Tarver beer because he was intoxicated, but
did sell him $3.00 of gasoline.  One or more of Defendant's employee
then assisted Tarver with operating the gasoline pump.  Shortly after
leaving Defendant's store, Tarver was involved in an automobile
accident resulting in serious personal injuries to Plaintiffs. 
Plaintiffs offered expert proof that had Tarver not obtained the $3.00
worth of additional gasoline, he would have run out of gas before
reaching the accident site.  The Trial Court granted Defendant's
motion for summary judgment on all three of Plaintiffs' claims.  We
affirm the grant of summary judgment on Plaintiffs' claims for
negligent entrustment and negligence per se.  We reverse the grant of
summary judgment on Plaintiffs' negligence claim.

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

STATE OF TENNESSEE v. TERRY LYNN BYINGTON

Court:TCCA

Attorneys:                          

George Todd East, Kingsport, Tennessee, for the appellant, Terry Lynn
Byington.

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

Judge: GLENN

First Paragraph:

The defendant, Terry Lynn Byington, was convicted of DUI, fourth
offense, and sentenced as a Range II, multiple offender to three years
in the Department of Correction, with 150 days to be served
day-for-day.  On appeal, the defendant argues that (1) the evidence
was insufficient to support his conviction; (2) his sentence is
excessive; (3) the trial court erred in allowing the State to
introduce evidence of a prior conviction which was more than ten years
old; and (4) the trial judge erred in not recusing herself.  After
review, we affirm the judgment of the trial court.

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

CHRISTOPHER L. DETHROW v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Colin Morris, Jackson, Tennessee, for the appellant, Christopher L.
Dethrow.

Paul G. Summers, Attorney General & Reporter; Kathy Denise Aslinger,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The Petitioner, Christopher L. Dethrow, appeals the trial court's
denial of his petition for post- conviction 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.  A review of the record supports the State's position. 
Accordingly, the State's motion is granted and the judgment of the
trial court is affirmed.

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

STATE OF TENNESSEE v. JOE W. FRANCE

Court:TCCA

Attorneys:                          

Edward C. Miller, Public Defender (on appeal), and Susanne Bales,
Assistant Public Defender (at trial), for the appellant, Joe W.
France.

Paul G. Summers, Attorney General & Reporter; Elizabeth Ryan, Senior
Counsel; and Charles L. Murphy, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Joe W. France, pled guilty to the sale of cocaine in
excess of .5 grams.  A Range II, 12-year sentence was imposed but the
defendant was granted probation supervised under a Community
Corrections program after a term in jail.  After the issuance of a
revocation warrant, the defendant agreed to an increase of the
sentence to 20 years in exchange for continued probation supervised by
the Community Corrections program.  Later, the defendant violated the
terms of the agreement and was ordered to serve the 20-year sentence. 
In this appeal, the defendant complains that even though he entered
into the sentence modification by agreement, he was entitled to a
hearing before  the sentence was increased.  The judgment of the trial
court is reversed.  Because both the original plea agreement and the
amended agreement provided for illegal sentences, the conviction must
be set aside and the cause remanded for trial.

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

THOMAS EUGENE HARGIS v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Thomas Eugene Hargis, Pikeville, Tennessee, pro se. 

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; James Michael Taylor, District Attorney
General; James W. Pope, III, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Thomas Eugene Hargis, appeals the trial court's
dismissal of his petition for writ of habeas corpus. 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 petition presents no cognizable claim for habeas corpus
relief.  Accordingly, the State's motion is granted and the judgment
of the trial court is affirmed.

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

STATE OF TENNESSEE v. TAMMY KINCANNON

Court:TCCA

Attorneys:                          

Charles B. Hill, II, Kingston, Tennessee, for the appellant, Tammy
Kincannon.

Paul G. Summers, Attorney General and Reporter; Michelle R. Chapman,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; and D. Roger Delp and Frank A. Harvey, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

Following a jury trial, the defendant, Tammy Kincannon, was convicted
of aggravated sexual battery, a Class B felony, and sentenced as a
violent offender to eight years in the Tennessee Department of
Correction.  On appeal, she argues that the evidence was insufficient
to support her conviction and that the trial court erred in not
requiring the State to make an election of the offenses and in not
instructing the jury as to the lesser-included offenses of aggravated
sexual battery.  Following our review, we agree that the State failed
to make an election and reverse the judgment of the trial court.

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

BRYAN PEARSON v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Bryan Pearson, Pikeville, Tennessee, pro se.   

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Randall E. Nichols, District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Bryan Pearson, appeals the trial court's dismissal of
his petition for writ of habeas corpus. The state has filed a motion
requesting that this court affirm the trial court's denial of relief
pursuant to Rule 20, Tenn. Ct. Crim. App. R.  The petitioner has not
established that  the challenged judgment is void or that his sentence
has expired.  Accordingly, the motion for summary affirmance is
granted and the judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. MICHAEL WAYNE POE

Court:TCCA

Attorneys:                          

Ardena J. Garth, District Public Defender; and Donna Robinson Miller
(on appeal), Karla Gothard (at trial), and William Dobson (at trial),
Assistant District Public Defenders, for the appellant, Michael Wayne
Poe.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; and Yolanda Mitchell, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

Indicted for aggravated child abuse, the defendant, Michael Wayne Poe,
was convicted by a jury of child abuse, a Class D felony.  The trial
court sentenced the defendant to four years, with all but 11 months,
29 days suspended.  In this appeal of right, the defendant argues that
the evidence was insufficient, that the sentence was excessive, and
that the trial court erred by denying full probation.  The sentence is
modified to three years; otherwise, the judgment of the trial court is
affirmed.

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

STATE OF TENNESSEE v. JULIUS E. SMITH

Court:TCCA

Attorneys:                          

Ardena J. Garth, District Public Defender, and Donna Robinson Miller,
Assistant District Public Defender, for the appellant, Julius E.
Smith.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; and Parke Masterson, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Julius E. Smith, entered pleas of guilty to two counts
of driving under the influence, third offense, and four counts of
vehicular assault.  As to the first driving under the influence
offense, the trial court imposed a sentence of eleven months and
twenty-nine days, to be suspended to probation after the service of
120 days of confinement.  The second was merged into the convictions
for vehicular assault.  The trial court imposed consecutive sentences
of three years for each vehicular assault conviction. The sentences
were ordered to be served consecutively to the sentence for driving
under the influence, third offense.  The effective sentence is,
therefore, twelve years, eleven months, and twenty-nine days.  In this
appeal, the defendant asserts that the effective sentence for the
vehicular assault convictions is excessive.  It is our judgment that
the misapplication of an enhancement factor to three of the four
vehicular assault convictions warrants a reduction to two years for
each of those crimes.  Otherwise, the judgments of the trial court,
including the imposition of consecutive terms, are affirmed.

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

STATE OF TENNESSEE v. ALEX DEWAYNE WELLS

Court:TCCA

Attorneys:                          

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal), Gary F.
Antrician, Somerville, Tennessee (on appeal), and Shana McCoy-Johnson,
Somerville, Tennessee (on appeal and at trial), for the appellant,
Alex Dewayne Wells.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Senior Counsel; Elizabeth T. Rice, District Attorney General; and
Terry Dycus, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Alex Dewayne Wells, pled guilty in the Fayette County
Circuit Court to numerous counts of aggravated burglary, burglary, and
theft.  He received a total effective sentence of thirty years
incarceration in the Tennessee Department of Correction.  On appeal,
the appellant challenges the trial court's imposition of consecutive
sentencing.  Upon review of the record and the parties' briefs, we
affirm the judgments of the trial court.

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

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