Opinion Flash

September 1, 2004
Volume 10 — Number 169

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


WILLIAM SEALE v. CHURCH OF GOD d/b/a PATHWAY PRESS

Court:TSC - Workers Comp Panel

Attorneys:                          

C. J. Barnett and Barrett M. Estep, Memphis, Tennessee, for Appellant,
Church of God d/b/a/ Pathway Press.

Harry F. Burnette and Kent T. Jones, Chattanooga, Tennessee, for
Appellee, William Seale.

Judge: THAYER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  The trial
court found the claim was compensable and ordered the employer to
provide medical treatment of total knee surgery.  The employer
contends the employee's condition was the result of pre-existing
condition of arthritis and did not result from the accident.  Judgment
of the trial court is affirmed.

http://www.tba.org/tba_files/TSC_WCP/sealewillia.wpd

CECIEL ROS HALPERN v. LAURENCE HALPERN

Court:TCA

Attorneys:                          

Marc E. Reisman of Memphis For Appellant, Laurence Halpern

Bradley J. Cordts of Memphis For Appellee, Ceciel Ros Halpern

Judge: CRAWFORD

First Paragraph:

This is an appeal by the appellant-father from an order awarding the
appellee-mother child support arrearage and setting prospective child
support obligations.  Because the support orders appear to deviate
from the child support guidelines without specific findings by the
trial court, we reverse and remand for further proceedings.

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

H.M.R., ET AL. v. J.K.F.

Court:TCA

Attorneys:                          

J.K.F., Whiteville, Tennessee, Pro Se.

H.M.R. and S.M.R., Fall Branch, Tennessee, Pro Se.

Judge: SUSANO

First Paragraph:

The trial court terminated the parental rights of J.K.F. ("Father")
with respect to his minor child, S.B.R. (DOB: September 16, 1996), and
granted the petition of the child's maternal grandparents, H.M.R. and
S.M.R. ("the grandparents") to pursue adoption of the child.  Father
appeals, arguing, inter alia, that the evidence preponderates against
the trial court's dual findings by clear and convincing evidence that
grounds for terminating Father's parental rights exist and that
termination is in the best interest of the child.  We affirm.

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

RICHARD A. JONES and RICHARD A. JONES, JR. v. JODY W. HENDERSON

Court:TCA

Attorneys:                          

Robert A. Wampler, Memphis, TN, for Appellants

James E. Bingham, James O. Lockard, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case arises from the discovery of an extramarital affair.  The
Appellants brought suit against Appellee, seeking damages on theories
of outrageous conduct and interference with a contract.  Appellee
filed a motion to dismiss for failure to state a claim upon which
relief can be granted.  After a hearing on the motion, the trial court
granted Appellee's motion to dismiss and this appeal followed.  For
the following reasons, we affirm.

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

SUNIL KAWATRA v. NEELAM MANTRI KAWATRA

Court:TCA

Attorneys:                          

Alfred H. Knight, Tyree B. Harris IV, and Alan D. Johnson, Nashville,
for Appellant Neelam Mantri Kawatra.

Robert G. Ingrum, Gallatin, for Appellee Sunil Kawatra.

Judge: LEE

First Paragraph:

This is a post-divorce parental relocation case.  The Mother, who was
the primary residential parent, gave notice to the Father of her plans
to relocate to California with the minor child.  Upon receiving this
notice, the Father petitioned the court to prevent the removal of the
child from the State of Tennessee.  Following a bench trial, the trial
court granted the Father's petition and determined that the child was
spending substantially equal intervals of time with each parent
pursuant to Tenn. Code Ann. S 36-6-108(c), and that the child's best
interest would be served by remaining in Tennessee.  The trial court
denied the Father's request for attorney fees.  Both parties appealed.
 We find that the trial court applied an incorrect legal standard in
determining whether the parties actually spent substantially equal
intervals of time with the child and, therefore, we reverse the trial
court's judgment regarding relocation and affirm the trial court's
decision denying the Father's request for attorney fees.

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

D.E. RYAN v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY,
ET AL.

Court:TCA

Attorneys:                          

J. Brooks Fox and John L. Kennedy, Nashville, Tennessee, for the
Appellant, The Metropolitan Government of Nashville and Davidson
County, et al.

George A. Dean, Nashville, Tennessee, for the Appellee, D.E. Ryan.

Judge: LEE

First Paragraph:

This is a zoning case wherein the Metropolitan Government of Nashville
and Davidson County acting by and through the Metropolitan Board of
Zoning Appeals contends that the trial court erred in ruling that the
Appellant was without jurisdiction to rescind its prior decisions
approving a property owner's application to reestablish a
nonconforming use of certain property and associated site plan after
expiration of the time allowed for appealing such decisions.  The
Appellant further argues that the trial court erred in holding that
the property owner's right to utilize such property  is protected
under Tenn. Code Ann. S 13-7-208.  We affirm in part, reverse in part
and remand.

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

THOMAS WAYNE STORM v. JANE ANN STORM

Court:TCA

Attorneys:                          

Jay R. Slobey, Nashville, Tennessee, for the appellant, Thomas Wayne
Storm.

Grant C. Glassford, Nashville, Tennessee, for the appellee, Jane Ann
Storm.

Judge: COTTRELL

First Paragraph:

When the parties divorced in 1999, they entered into a marital
dissolution agreement that was incorporated into the final divorce
decree.  That agreement acknowledged that the alimony payments agreed
to "more than likely may have to be modified" if Husband lost his job
or his insurance license.  In this modification of alimony proceeding,
the trial court found Husband had lost his job and was unable to find
employment with comparable income.  The court interpreted the MDA as
authorizing it to reduce the amount of monthly payments but not to
reduce the total amount due.  We interpret the agreement as allowing
modification of the total obligation and remand for reconsideration in
light of this holding.

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

KENNETH TOWNSEND v. AUTO ZONE, INC.

Court:TCA

Attorneys:                          

Nancy K. Corley, Nashville, Tennessee, for the appellant, Kenneth
Townsend.

George H. Rieger, II, Nashville, Tennessee, for the appellee, Auto
Zone, Inc.

Judge: COTTRELL

First Paragraph:

This appeal involves the grant of summary judgment to Defendant in a
slip and fall case.  The trial court found no genuine issue as to any
material fact existed and that Defendant was entitled to judgment as a
matter of law.  Because we find the summary judgment motion was
improperly granted, we reverse the judgment of the trial court.

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

IN RE:  ESTATE OF ANGULA WILSON WHITEHORN TURNER

Court:TCA

Attorneys:                          

Jack R. Whitehorn, Pro Se

Elizabeth B. Ziarko of Covington for Appellee, Estate of Angula Wilson
Whitehorn Turner

Judge: CRAWFORD

First Paragraph:

Beneficiary of will appeals the order of the chancery court awarding
attorney fees, executor fees, and other expenses.  Both factual and
legal objections are made to the awards made by the court.  The legal
objections are without merit, and the factual objections are not
well-taken, because there is no transcript or statement of the
evidence.  We affirm.

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

STATE OF TENNESSEE v. BRANDON ABERNATHY

Court:TCCA

Attorneys:                          

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Brandon
Abernathy.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Derek K. Smith, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Brandon Abernathy, pled guilty to two counts of armed
robbery.  Pursuant to Tennessee Rule of Criminal Procedure 37, the
Defendant reserved as a certified question of law the issue of whether
the trial court erred when it denied his motion to suppress.  Finding
no error, we affirm the judgments of the trial court.

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

JEFFREY E. DUNLAP v. TONY PARKER, WARDEN

Court:TCCA

Attorneys:                          

Jeffrey E. Dunlap, pro se.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant
Attorney General, for the appellee, the State of Tennessee

Judge: GLENN

First Paragraph:

The Petitioner, Jeffrey E. Dunlap, appeals the trial court's denial of
his petition for habeas corpus 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.  Because
Petitioner has failed to allege a ground for relief which would render
the judgment void, we grant the State's motion and affirm the judgment
of the lower court.

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

MARGO FRESHWATER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Robert W. Ritchie and Stephen Ross Johnson, Knoxville, Tennessee for
the appellant, Margo Freshwater.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; William L. Gibbons, District Attorney General; and
John Campbell, Assistant District Attorney General,  for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner, Margo Freshwater, was convicted of first degree murder
in 1969.  Her conviction was affirmed on direct appeal.  See
Freshwater v. State, 453 S.W.2d 446 (Tenn. Crim. App. 1969).  In 2003,
she filed a petition for writ of error coram nobis, alleging that new
evidence existed that proved her innocence, as well as complaining of
violations of Brady v. Maryland, 373 U.S. 83 (1963), and juror
misconduct that occurred at trial which necessitated a hearing and
ultimately a new trial.  Prior to a hearing, the trial court granted a
motion to dismiss the petition because the petition was, inter alia,
filed outside the statute of limitations.  The petitioner seeks a
reversal of the trial court's decision on appeal.  Because due process
requires the tolling of the statute of limitations for filing the
petition for writ of error coram nobis with respect to the
petitioner's claim of previously withheld exculpatory evidence, we
reverse the judgment of the trial court and remand the matter for an
evidentiary hearing on the petition.  As to the remaining allegations
of juror misconduct, we conclude those allegations could have and
should have been addressed in a post-conviction petition and are now
time-barred.  Thus, we affirm the portion of the trial court's order
dismissing the part of the petition for writ of error coram nobis
pertaining to those claims.

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

ANTHONY C. LONG v. TONY PARKER, WARDEN

Court:TCCA

Attorneys:                          

Anthony C. Long, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; and Renee W. Turner,
Assistant Attorney General, Nashville, Tennessee, for the Appellee,
State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Anthony C. Long, appeals the Lake County Circuit
Court's dismissal of his petition for habeas corpus relief.  We
reverse the dismissal and order habeas corpus relief.

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

STATE OF TENNESSEE v. ROBERT LEE MALLARD

Court:TCCA

Attorneys:                          

Darwin K. Colston (on appeal) and John H. Baker, III (at hearing),
Murfreesboro, Tennessee, for the appellant, Robert Lee Mallard.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and Thomas F. Jackson, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The defendant, Robert Lee Mallard, appeals the revocation of his
probation relating to his convictions for attempting to tamper with
evidence and resisting arrest.  On appeal, the defendant contends: (1)
the trial court erred in revoking his probation; (2) the drug tests
administered by the probation officers constituted improper body
cavity searches; and (3) the drug tests violated his right to privacy.
 We affirm the judgment of the trial court.

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

RODNEY MCKINNEY v. TONY PARKER, WARDEN

Court:TCCA

Attorneys:                          

Rodney McKinney, pro se.

Paul G. Summers, Attorney General & Reporter, and Richard H. Dunavant,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Rodney McKinney, appeals the trial court's summary
dismissal of his claim for writ of habeas corpus.  The judgment of the
trial court is affirmed.

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

STATE OF TENNESSEE v. MATTHEW KIRK MCWHORTER

Court:TCCA

Attorneys:                          

Mandy Waldrop Denson, Clarksville, Tennessee for the appellant,
Matthew Kirk McWhorter.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; Arthur Beiber, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Montgomery County jury convicted the Defendant, Matthew Kirk
McWhorter, of three counts of aggravated sexual battery, and the trial
court imposed an eight-year sentence for each conviction, to be served
consecutively.  On appeal, the Defendant contends that: (1)
insufficient evidence exists in the record to support his convictions;
(2) the trial court erred by not requiring the State to elect the
offenses it wished to submit to the jury; (3) the trial court
improperly admitted a law enforcement officer's testimony about the
Defendant's uncharged conduct; (4) the trial court erred by permitting
a law enforcement agent to testify about a recorded recollection; (5)
the trial court erred by denying the Defendant's motion to prohibit
testimony of the victim; (6) reversible error occurred when the State
failed to disclose, preserve and turn over a law enforcement
official's notes made during the Defendant's initial interrogation;
(7) the trial court erred by allowing the State to submit an
insufficient Bill of Particulars and to deviate from its Bill of
Particulars; (8) the trial court erred in denying the Defendant's
motion to suppress his written and oral statements made to law
enforcement officials in Florida; (9) the trial court erred by failing
to instruct the jury on child abuse as a lesser- included offense;
(10) the State's closing arguments were so improper that they infected
the trial with unfairness and denied the Defendant due process; (11)
the trial court erred by interrupting the natural flow of jury
deliberations to give supplemental instructions; and (12) the trial
court erred in ordering the Defendant to serve his sentences
consecutively.  After thoroughly reviewing the record, we conclude
that the trial court erred by failing to require the State to elect
which incident of sexual touching the State intended for the jury to
consider for Count 1, aggravated sexual battery.  Accordingly, we
reverse the conviction and the sentence in Count 1.  We affirm the
remaining convictions and sentences.

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

FREDDIE L. OSBORNE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant,
Assistant Attorney General; John Carney, District Attorney General;
and Daniel Brollier, Assistant District Attorney General,  for the
appellant, State of Tennessee.

William L. Aldred, Jr. Clarksville, Tennessee, for the appellee,
Freddie L. Osborne.

Judge: SMITH

First Paragraph:

The petitioner was convicted for sale of a controlled substance and
sentenced to 32 _ years in the Tennessee Department of Correction. 
The petitioner appealed his conviction to this Court.  We affirmed his
conviction.  The petitioner then filed a Petition for Post-conviction
Relief.  The post- conviction court granted his petition.  The State
now appeals the post-conviction court's decision, arguing two issues:
(1) Whether failure of trial defense counsel to follow the mandatory
provisions of Rule 609 amounted to ineffective assistance of counsel
at trial, and (2) whether failure of trial defense counsel to request
the jury charge of facilitation amounted to ineffective assistance of
counsel at trial, where that charge would now be automatically given. 
We reverse and remand the decision of the post-conviction court.

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

STATE OF TENNESSEE v. JEFFERY BRIAN PARKS
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee (on appeal); and A. Jackson
Dearing, III, Assistant Public Defender (at trial and appellate
co-counsel), for the Appellant, Jeffery Brian Parks.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Thomas E. Williams, III, Assistant Attorney
General; W. Michael McCown, District Attorney General; and Ann L.
Filer, Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Jeffery Brian Parks, appeals from the sentencing
decision of the Lincoln County Circuit Court.  In 2003, Parks pled
guilty to two counts of sexual battery by an authority figure, two
counts of incest, and two counts of statutory rape.  After a
sentencing hearing, the trial court sentenced Parks, as a Range I
standard offender, to six years for each count of sexual battery by an
authority figure and incest, both class C felonies, and to two years
for each count of statutory rape, a class E felony.  These sentences
were ordered to be served concurrently in the Department of
Correction.  In this appeal as of right, Parks argues that the trial
court erred in imposing excessive sentences with respect to each
sentence and by ordering a sentence of total confinement rather than a
less restrictive alternative.  The State, on appeal, asserts that
consecutive sentencing should be imposed by this court following de
novo review.  Because the trial court failed to impose a sentence in
accordance with our statutory sentencing scheme, we remand the case to
the trial court for a new sentencing hearing to determine the length
of the Appellant's sentences, the appropriateness of consecutive
sentencing, and the Appellant's suitability for an alternative
sentence.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/parksjefferyb_dis.wpd

STATE OF TENNESSEE v. KENNETH LAMAR TUCKER

Court:TCCA

Attorneys:                          

J. Al Johnson, Spencer, Tennessee, for the appellant, Kenneth Lamar
Tucker.

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

Judge: SMITH

First Paragraph:

The petitioner, Kenneth Lamar Tucker, plead guilty to one count of
rape of a child in exchange for a fifteen-year sentence at 100%.  In
this post-conviction appeal, the petitioner argues that: (1) he did
not knowingly and voluntarily enter his plea of guilt; (2) he was
denied effective assistance of counsel; (3) he was denied the right to
a trial by jury; (4) the state withheld exculpatory evidence; (5) the
newly discovered exculpatory evidence entitles him to relief; and (6)
the post-conviction court erred in refusing to admit trial counsel's
case file into evidence.  For the following reasons, we affirm the
dismissal of the post-conviction petition.

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

STATE OF TENNESSEE v. MARVIN GLENN WHITE

Court:TCCA

Attorneys:                          

Robert B. French, Jr., Fort Payne, Alabama (on appeal); and William C.
Killian, Jasper, Tennessee (at trial and on appeal), for the
appellant, Marvin Glenn White.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and Sherry D. Gouger, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

A Marion County jury convicted the defendant, Marvin Glenn White, of
two counts of premeditated first degree murder for which he received
concurrent life sentences.  On appeal, the defendant contends: (1) the
evidence was insufficient to support the convictions; and (2) the
trial court erred in admitting statements which constituted double
hearsay.  Upon review of the record and the applicable law, we affirm
the judgments of the trial court.

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

ALONZO C. WILLIAMS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Alonzo Williams, pro se.

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

Judge: GLENN

First Paragraph:

The Petitioner, Alonzo C. Williams, appeals the trial court's denial
of his petition for habeas corpus 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. 
Because Petitioner has failed to allege a ground for relief which
would render the judgment void, we grant the State's motion and affirm
the judgment of the lower court.

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

"Unclaimed" Return-Receipt Letters

Date: August 31, 2004

Opinion Number: 04-141

http://www.tba.org/tba_files/AG/2004/op141.pdf

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