Opinion Flash

September 22, 2004
Volume 10 — Number 183

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
05 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


ROGER L. HICKMAN v. STATE OF TENNESSEE

Court:TSC

Attorneys:                          

Douglas A. Trant, Knoxville, Tennessee, for the appellant, Roger L.
Hickman

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Gordon W. Smith, Associate Solicitor General;
Randall E. Nichols, District Attorney General; and Zane M. Scarlett,
Assistant District Attorney General, for the appellee, State of
Tennessee

Judge: DROWOTA

First Paragraph:

We granted Roger L. Hickman permission to appeal to consider whether
the trial court and Court of Criminal Appeals erred in dismissing his
habeas corpus petition.  Hickman's petition, prepared with the aid of
counsel, alleged that his 1986 misdemeanor conviction, for which he
received a ten- day suspended sentence, is void because the judgment
does not affirmatively indicate that Hickman was represented by
counsel or that he waived his right to counsel.  We hold that the
trial court and Court of Criminal Appeals properly dismissed the
petition.  The petition failed to comply with the prescribed statutory
form, failed to allege that Hickman is "imprisoned or restrained of
his liberty," as required by Tennessee Code Annotated section
29-21-101 (2000), and failed to allege grounds for habeas corpus
relief.  Accordingly, we affirm the judgment of the Court of Criminal
Appeals.

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

CHARLES W. AYRHART, ET AL., v. DEWEL B. SCRUGGS, ET AL.

Court:TCA

Attorneys:                          

Gary A. Brewer, Paul A. Fassbender, Nashville, Tennessee, for the
appellants, Dewel B. Scruggs, and Connie Scruggs.

Bruce N. Oldham, Gallatin, Tennessee, for the appellees, Charles W.
Ayrhart and wife, Carrie Ayrhart.

Judge: COTTRELL

First Paragraph:

This is an interlocutory appeal of the trial court's refusal to grant
a summary judgment to the defendants in a negligence case.  We find
that the defendants have not affirmatively negated an element of this
negligence claim and that reasonable minds could differ on the
allocation of fault between the parties.  Consequently, the defendant
is not entitled to judgment as a matter of law.  We therefore agree
with the trial court and affirm the denial of summary judgment.

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

STATE OF TENNESSEE, ex rel, PAUL G. SUMMERS, in his official capacity
as the Attorney General and Reporter of Tennessee, and MILTON H.
HAMILTON, JR., in his official capacity as the Commissioner of the
Tennessee Department of Environment and Conservation, v. B&H
INVESTMENTS, INC., CHARLES R. SMITH and ALVIN G. PIERCE

Court:TCA

Attorneys:                          

Frank J. Scanlon, Nashville, Tennessee, for Appellant.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, and Elizabeth P. McCarter, Senior Counsel, Office
of the Attorney General, Nashville, Tennessee, for Appellees.

Judge: FRANKS

First Paragraph:

The Trial Court held purchaser of land responsible for prior owner's
violations of the Tennessee Water Quality Control Act.  On appeal, we
reverse in part, vacate in part and remand.

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

CARL SHOCKLEY, ET AL. v. JOSEPH F. CROSBY, ET AL.

Court:TCA

Attorneys:                          

Michael P. Mills and Aaron J. Conklin, Nashville, Tennessee, for the
appellant, Carl Shockley, d/b/a Shockley-Conner Logging and Shockley
Logging.

Thomas A. Greer, Jr., Dunlap, Tennessee and J. Hilton Conger,
Smithville, Tennessee, for the appellees, Joseph F. Crosby and Opal M.
Crosby.

Judge: CAIN

First Paragraph:

This appeal arises from a claim filed in Van Buren County Circuit
Court alleging breach of contract, outrageous conduct, and assault. 
At the close of the plaintiff's proof, the trial court granted the
defendants' motion for a directed verdict on the outrageous conduct
claim.  At the close of all the proof, the trial court granted the
plaintiff's motion for a directed verdict on the breach of contract
claim, and the parties then stipulated that the assault had occurred. 
The case went to the jury for consideration of the damages resulting
from the breach and the assault.  The jury returned a verdict of
$57,500 for the breach of contract and specifically found that the
assault did not cause injury to Carl Shockley for which compensatory
damages should be awarded.  Nonetheless the jury did find that Joseph
Crosby acted in such a way that punitive damages should be awarded. 
The trial court  refused to submit the punitive damages issue to the
jury and granted a remittitur of $7,500 on the contract claim.  Both
parties appeal.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. MICHAEL N. ALLEN, a.k.a. MICHAEL B. CARTA IN RE:
SANFORD AND SONS BAIL BONDS, INC.

Court:TCCA

Attorneys:                          

Charles G. Currier, Knoxville, Tennessee, for the appellant, Michael
N. Allen, a.k.a. Michael B. Carta, In re:  Sanford and Sons Bail
Bonds, Inc.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General;  and Joe C. Crumley, Jr., District
Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

Sanford and Sons Bail Bonds, Inc., the appellant, appeals from the
trial court's denial of relief from final forfeiture of its bond.  At
the hearing set to determine whether final forfeiture of the bond
should occur, the appellant did not appear and the trial court entered
a judgment against the appellant declaring final forfeiture.  The
appellant then sought relief from the final forfeiture judgment,
pursuant to Rule 60.02 of the Rules of Civil Procedure, Tennessee Code
Annotated section 40-11- 201(b), and sought a stay of execution of the
judgment.  Because the notice of appeal was not timely filed in this
matter, we are without jurisdiction to determine whether the trial
court erred in entering a final forfeiture against the appellant based
upon its claim under Tennessee Code Annotated section 40-11-201(b). 
We further conclude that the trial court did not abuse its discretion
in refusing to grant a stay of execution or relief under Rule 60.02 of
the Tennessee Rules of Civil Procedure.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. SEAN ANTHONY

Court:TCCA

Attorneys:                          

Ross A. Sampson, Memphis, Tennessee, for the appellant Sean Anthony.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; William L. Gibbons, District
Attorney General; Glen Baity, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Sean Anthony, was tried and convicted of four counts of
aggravated robbery.  On appeal he contends that: (1) the trial court
improperly refused to accept his guilty plea; (2) the trial court
should have suppressed his statement to police; and (3) the evidence
is insufficient to sustain his convictions.  Finding no error, we
affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. JOHN MARK BURNS

Court:TCCA

Attorneys:                          

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, John
Mark Burns.

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

Judge: WADE

First Paragraph:

While initially indicted on three counts of attempted first degree
murder, the defendant, John Mark Burns, was convicted on three counts
of attempted second degree murder.  The trial court imposed sentences
of eleven years for each offense, all of which are to be served
concurrently.  In this appeal of right, the defendant challenges the
sufficiency of the evidence, he argues that the trial court erred in
several of its instructions to the jury, and he contends that the
sentence is excessive.  Because the trial court erred in its
application of certain enhancement factors, the defendant's sentences
are modified to three concurrent nine-year terms.  Otherwise, the
judgments of the trial court are affirmed.

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

STATE OF TENNESSEE v. TONY HARP

Court:TCCA

Attorneys:                          

J. Thomas Caldwell, Ripley, Tennessee, for the Appellant, Tony Harp.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Tony Harp, was convicted in the Lauderdale County
Circuit Court of one count of theft of property valued between $ 1,000
and $ 10,000, a class D felony.  Following a sentencing hearing, the
trial court imposed a thirty-month community corrections sentence,
with service of ninety days in the county jail.  On appeal, Harp
asserts that: (1) the evidence is insufficient to sustain the
conviction and (2) the trial court erred in denying him full
probation.  After review of the record, we find no error and affirm
the judgment of conviction and resulting sentence.

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

STATE OF TENNESSEE v. TONY O. JOHNSON

Court:TCCA

Attorneys:                          

Garland Ergueden and Robert Wilson Jones, Memphis, Tennessee (on
appeal); and William Yonkowski and Timothy Albers, Memphis, Tennessee
(at trial), for the appellant, Tony O. Johnson.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Reginald Henderson and Scott Bearup, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Tony O. Johnson, was convicted by a jury in the Shelby
County Criminal Court of second degree murder.  Following the
appellant's conviction, the trial court imposed a sentence of
twenty-five years incarceration in the Tennessee Department of
Correction.  On appeal, the appellant challenges the sufficiency of
the evidence supporting his conviction and the trial court's
application of certain enhancement factors.  Upon our review of the
record and the parties' briefs, we affirm the judgment of the trial
court.

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

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