Opinion Flash

August 20, 2004
Volume 10 — Number 161

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):
02 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
03 New Opinion(s) from the Tennessee Court of Appeals
04 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

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.

Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


TOM ALBERT, ET AL.  v.  PAT FRYE, ET AL.

Court:TSC

Attorneys:                          

Randle W. Hill, Jr., Hermitage, Tennessee, and Joseph V. Ferrelli,
Nashville, Tennessee, for the appellant, Vernon W. Frye.

Joe M. Haynes, Goodlettsville, Tennessee, for the appellees, Tom
Albert, Hazel Albert, and Alcar Associates, LLC.

Judge: BARKER

First Paragraph:

The issue in this case is whether the defendant's notice of appeal was
timely filed.  The Court of Appeals held that it was not.  We
disagree.  Under Tennessee Rule of Civil Procedure 59.04, the
thirty-day time limit for filing a notice of appeal was tolled until
the trial court issued its decision on the defendant's post-trial
motion to alter or amend.  Therefore, we reverse the decision of the
Court of Appeals and remand the case to the Court of Appeals to
consider the merits of the defendant's appeal.

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

NATHAN E. BROOKS  v.  BOARD OF PROFESSIONAL RESPONSIBILITY OF THE
SUPREME COURT OF TENNESSEE

Court:TSC

Attorneys:                          

Nathan E. Brooks, Chattanooga, Tennessee, Pro Se.

James A. Vick, Nashville, Tennessee, for the appellee, Board of
Professional Responsibility.

Judge: BARKER

First Paragraph:

The issue in this case is whether the Chancery Court erred in
upholding the grant of summary judgment to the Board of Professional
Responsibility ("Board") on a petition for reinstatement filed by the
appellant, Nathan E. Brooks ("Brooks").  On Brooks' petition for
reinstatement to the practice of law, the hearing panel granted the
Board's motion for summary judgment on grounds that Brooks failed to
meet three conditions precedent for seeking reinstatement set forth in
the suspension order and the conditional guilty plea on which the
order was based: (1) failure to notify clients of his suspension as
required by Supreme Court Rule 9, section 18; (2) failure to pay costs
and expenses of the proceeding as required by Supreme Court Rule 9,
section 24.3; and (3) failure to pay restitution.  After thorough
review of the law and the facts of this case, we hold that there was
no error in the grant of summary judgment.  Additionally, we have
before us two motions - a motion to consider post-judgment facts and a
motion to vacate.  We grant in part the motion to consider
post-judgment facts but deny the motion to vacate.

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

AMERICAN CHARIOT, ET AL. v. CITY OF MEMPHIS, TENNESSEE, ET AL.

Court:TCA

Attorneys:                          

Dan M. Norwood, Memphis, Tennessee, for the appellants, American
Chariot; Memphis Carriage; Inc.; Dancing Horse Carriages, Inc.; Uptown
Carriage Tours; and Downtown Carriage Tours.

Allan J. Wade and Lori Hackleman Patterson, Memphis, Tennessee, for
the appellees, City of Memphis, Tennessee; the Memphis City Council;
Willie Herenton, Mayor of the City of Memphis, Tennessee; Richard
Merrill, City Traffic Engineer; and Walter Crews, Chief of Police.

Judge: FARMER

First Paragraph:

Plaintiffs, horse-drawn carriage operators, filed a declaratory
judgment action challenging the constitutionality of a provision of
one section of an ordinance adopted by the Memphis City Council.  The
trial court elided the provision as an unlawful delegation of the
City's police power and enforced the remainder of the ordinance. 
Plaintiffs appeal, asserting the trial court erred in its application
of the doctrine of elision.  Defendants cross-appeal, asserting the
trial court erred by finding the elided portion unconstitutional.  We
affirm.

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

CHARLES CONNER v. COMMISSIONER MICHAEL MAGILL, TENNESSEE DEPARTMENT OF
LABOR AND WORKFORCE DEVELOPMENT, ET AL.

Court:TCA

Attorneys:                          

Charles Conner, Germantown, TN, pro se

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

Lucian T. Pera, Brian S. Faughnan, Memphis, TN, for Appellee Memphis
Publishing Company

Judge: HIGHERS

First Paragraph:

This is an unemployment compensation case in which Appellant was
denied benefits by the Tennessee Department of Labor and Workforce
Development.  At all administrative levels it was determined that
Appellant was discharged for "misconduct connected with such
claimant's work" and that he was, therefore, disqualified from
receiving benefits under Tenn. Code Ann. S 50-7-303.  This ruling was
then affirmed by the lower court.  Appellant then timely filed this
appeal challenging the ruling of the lower court.  For the following
reasons, we affirm and remand for further proceedings.

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

MARY O. McINTOSH v. M. A. BLANTON, III, M.D., ET AL.

Court:TCA

Attorneys:                          

Michael W. Whitaker, Covington, Tennessee and Charles Kelly,
Dyersburg, Tennessee, for the Appellant, Mary O. McIntosh.

Timothy G. Wehner and Craig P. Sanders, Jackson, Tennessee, for the
appellee, M. A. Blanton, III, M.D.

Judge: FARMER

First Paragraph:

Plaintiff appeals the award of summary judgment to defendant physician
based on the statute of limitations for medical malpractice actions. 
We reverse and remand for further proceedings.

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

STATE OF TENNESSEE v. DONALD WAYNE BOXX

Court:TCCA

Attorneys:                          

Jeffrey Jones, Bartlett, Tennessee, for the appellant, Donald Wayne
Boxx.

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; and Lee Coffee and Brooks Yelverton,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: WADE

First Paragraph:

The defendant entered a guilty plea to driving under the influence. 
The trial court imposed a sentence of eleven months and twenty-nine
days to be served forty-eight hours of confinement followed by
probation.  As a part of the guilty plea, the defendant reserved for
appeal the trial court's denial of his motion to suppress.  See Tenn.
R. Crim. P. 37(b)(2)(i).  The judgment is affirmed.

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

MONROE BROWN v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Joe H. Walker, District Public Defender, and Walter B. Johnson, II,
Assistant Public Defender, for the appellant, Monroe Brown.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; Roger Delp, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Monroe Brown, appeals the trial court's order denying
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 fails to establish either a void judgment or an expired
sentence.  Accordingly, the state's motion is granted and the judgment
of the trial court is affirmed.

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

JAMES CLARK v. STATE OF TENNESSEE  

Court:TCCA

Attorneys:                          

James Clark, pro se.  

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General;  and Stephanie Zander Johnson, Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, James Clark, appeals the trial court's dismissal of
his motion to correct an illegal sentence.  Because the petitioner has
no appeal as of right under Tennessee Rule of Appellate Procedure
3(b), the appeal is dismissed.

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

STATE OF TENNESSEE v. JASON C. POLSTON

Court:TCCA

Attorneys:                          

Robert Brannon (at trial and on appeal) and Timothy Francavella (at
trial), Memphis, Tennessee, for the appellant, Jason C. Polston.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Emily Campbell and Michael Davis, Assistant District Attorney
Generals, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Shelby County jury convicted the Defendant, Jason C. Polston, of
reckless aggravated assault.  The trial court sentenced the Defendant
to two years in the workhouse, suspended except for 60 days to serve
on weekends, a $500.00 fine, and 200 hours of community service.  On
appeal, the Defendant contends that: (1) insufficient evidence exists
to support his conviction; (2) the trial court erred by failing to
suppress the Defendant's statement made in a telephone conversation
with a police officer because the State did not disclose the statement
prior to trial; (3) the trial court erred by instructing the jury on
flight; (4) the trial court erred by failing to charge the defenses of
necessity and duress; (5) the trial court erred by denying the
Defendant's application for judicial diversion; and (6) the trial
court erred by ordering the Defendant to serve sixty days in jail.  We
conclude that the trial court erred by failing to suppress the
Defendant's telephone conversation with a police officer because the
State did not disclose the statement to the Defendant prior to trial
in violation of Tennessee Rule of Criminal Procedure 16.  Therefore,
we reverse the Defendant's conviction and remand for a new trial.

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

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi


HomeContact UsPageFinderWhat's NewHelp
© Copyright 2004 Tennessee Bar Association