Opinion Flash

October 8, 2004
Volume 10 — Number 195

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

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

TRUMAN CLOUSE, ET AL. v. MARC FLOYD WHICHER

Court:TCA

Attorneys:                          

Henry D. Fincher, Cookeville, Tennessee, for the appellants, Truman
Clouse and Sue Clouse.

Tom Beesley, Crossville, Tennessee, for the appellee, Marc Floyd
Whicher.

Judge: CANTRELL

First Paragraph:

This appeal involves a boundary dispute between neighboring landowners
over a strip of land between six and nine feet wide.  The parties
submitted conflicting surveys in support of their respective claims to
the disputed strip, but both agree the original subdivision plat is
flawed.  In addition, the defendant claims title to the disputed strip
based on adverse possession.  The trial court set the boundary line in
accordance with the defendant's expert's survey and the plaintiffs
appealed.  We affirm.

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

NANCY RENEE (MCREYNOLDS) DELBRIDGE v. ROBERT IRVING MCREYNOLDS

Court:TCA

Attorneys:                          

R. Steven Waldron, Murfreesboro, Tennessee, for the appellant, Nancy
Renee (McReynolds) Delbridge.

John H. Norton, III, Shelbyville, Tennessee, for the appellee, Robert
Irving McReynolds.

Judge: COTTRELL

First Paragraph:

Mother appeals from the trial court's order modifying a prior agreed
custody order concerning school placement for the parties' two minor
children.  Mother argues that there was no material change of
circumstances that warranted the trial court's decision.  Because we
determine that the evidence does not preponderate against the trial
court's findings that a material change in circumstances occurred and
that the modification of the school placement arrangement was in the
best interests of the children, we affirm the decision of the trial
court.

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

J. HOWARD JOHNSON, ET AL. v. MICHAEL R. ALLISON, ET AL.

Court:TCA

Attorneys:                          

Joseph L. Lackey, Jr., Nashville, Tennessee, for the appellants, J.
Howard Johnson, George W. Holder, Jr., individually and/or As
Attorney-In-Fact for Wesley Holder, III, and Robert F. Lance, all
d/b/a Gateway Development.

Kenneth L. Campbell, Nashville, Tennessee, for the appellees, Michael
R. Allison and Diane A. Allison.

Judge: COTTRELL

First Paragraph:

The parties entered into an option contract for the sale and purchase
of a piece of land.  The bargained-for option had a limited duration,
with the buyer entitled to extend the option for additional
consideration if it exercised that right within an agreed-upon time
frame.  The buyer paid for several extensions, but did not exercise
the option before the final option deadline had passed.  The sellers
subsequently refused to sell, and the buyer sued for breach of
contract and specific performance.  The sellers filed a motion for
summary judgment, which the trial court granted.  We affirm the trial
court.

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

MARY RUTH WILLIS, as Surviving Mother of and Administratrix for the
Estate of JENNIE LEE EDDLEMON, deceased v. UNIVERSITY HEALTH SYSTEM,
INC., d/b/a THE UNIVERSITY OF TENNESSEE MEDICAL CENTER, TEAM HEALTH,
INC., SOUTHEASTERN EMERGENCY PHYSICIANS, INC., and RALF JOFFE, D.O.

Court:TCA

Attorneys:                          

Linda G. Welch, Knoxville, Tennessee, for Appellant.

Heidi A. Barcus and Hillary B. Jones, Knoxville, Tennessee, for
Appellee, Ralf Joffe, D.O.

Judge: FRANKS

First Paragraph:

Plaintiff added defendant to suit pursuant to Tenn. R. App. P. Rule 15
after statute of limitations expired.  The Trial Court granted
defendant summary judgment.  On appeal, we affirm.

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

STATE OF TENNESSEE v. JONATHAN B. CUTSHAW

Court:TCCA

Attorneys:                          

Susanna Laws Thomas, Newport, Tennessee, for the Appellant, Jonathan
B. Cutshaw.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and James B. Dunn, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Jonathan B. Cutshaw, pleaded guilty in the Cocke County
Criminal Court to one count of burglary, in violation of Tennessee
Code Annotated section 39-14-402, and to one count of vandalism, in
violation of Tennessee Code Annotated section 39-14-408.  Pursuant to
his plea agreement with the state, he accepted joint and several
liability for restitution, along with others involved in the
vandalism, and he received an effective sentence of three years, with
the manner of service of the sentences to be determined by the trial
court.  After a sentencing hearing, the trial court ordered the
defendant to serve his sentences in confinement and to pay
restitution.  It is from this order that the defendant appeals.  We
modify the judgment of the trial court as to manner of service of the
sentences and remand for further findings regarding the appropriate
amount of restitution.

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

STATE OF TENNESSEE v. CARLOS EDDINGS
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Garland Erguden, Memphis, Tennessee, for the appellant, Carlos
Eddings.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William L. Gibbons, District Attorney
General; David Zak, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Carlos Eddings, was tried and convicted for aggravated
robbery, and the trial court sentenced the Defendant to ten years in
prison.  The Defendant appeals contending that:  (1) the trial court
permitted improper closing argument by the State; and (2) the trial
court improperly applied enhancement factors when sentencing the
Defendant.  In a supplemental pro se letter, the Defendant asks this
Court to consider whether the trial court improperly gave the jury an
instruction after it began deliberating.  After a through review of
the record and applicable case law, we conclude that, based on Blakely
v. Washington, the sentence must be modified to a term of eight years.
 Otherwise the judgments of the trial court are affirmed.

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

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

STATE OF TENNESSEE  v.  WILLIE NORMAN

Court:TCCA

Attorneys:                          

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Willie
Norman.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Jerald Campbell, Assistant District Attorney General, for the
appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Willie Norman, was indicted for possession of over .5 grams
of cocaine with intent to sell or deliver, resisting arrest, and two
counts of assault.  Defendant pled guilty to possession of cocaine
with intent to sell or deliver, and the remaining counts were
dismissed.  Defendant entered his guilty plea, reserving for appeal,
as a certified question of law, the issue of whether the search of his
vehicle violated his constitutional rights.  We conclude that the
certified question of law was properly reserved for appeal.  We also
conclude that the trial court properly denied Defendant's motion to
suppress.  Accordingly, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. WILEY YAVEL SMITH

Court:TCCA

Attorneys:                          

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

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Boyd M. Patterson, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Wiley Yavel Smith, pled guilty in the Hamilton County
Criminal Court to attempted especially aggravated robbery, a Class B
felony, and the trial court sentenced him as a Range I, standard
offender to nine years in confinement.  The defendant appeals,
claiming that his sentence is excessive and that he should receive an
alternative sentence.  We hold that the trial court improperly
enhanced the defendant's sentence and modify the sentence to eight
years.  We conclude that alternative sentencing is not appropriate in
this case.

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

STATE OF TENNESSEE v. ROBBIE CHET WALLEY

Court:TCCA

Attorneys:                          

James T. Powell, Union City, Tennessee, for the appellant, Robbie Chet
Walley.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Thomas A. Thomas, District
Attorney General; and James T. Cannon, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Robbie Chet Walley, was convicted of possession of drug
paraphernalia and was sentenced to eleven months, twenty-nine days,
all suspended except for sixty days.  On appeal, he argues that the
trial court erred in denying alternative sentencing.  Based upon our
review, we affirm the judgment of the trial court.

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

Use of tobacco products in local jail facilities

Date: October 5, 2004

Opinion Number: 04-151

http://www.tba.org/tba_files/AG/2004/op151.pdf

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