UNDERSTANDING THE NEW CHILD SUPPORT GUIDELINES
This new TennBarU course will help you learn just what the new Child
Support Guidelines will mean to your clients and your practice. Each
seminar location features presentations by the most knowledgeable
people in the field and will also include two panel discussions
involving local judges and practitioners. Dec. 6 in Memphis, Dec. 7 in
Jackson, Dec. 8 in Nashville, Dec. 9 in Chattanooga, Dec. 10 in
Knoxville and Dec. 14 in Johnson City.

Today's Opinions: November 2, 2004
Volume 10 — Number 211
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.
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
02 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

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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.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

RANDALL BILBREY, ET AL. v. GARY WORLEY, ET AL.

Court:TCA

Attorneys:                          

Jon E. Jones, Cookeville, Tennessee, and Amy V. Hollars, Livingston,
Tennessee, for the appellants, Randall Bilbrey, as Executor of the
Estate of Agnes Bilbrey, deceased, and the Bilbrey Family Partnership
and Randall Bilbrey as General Partner of the Bilbrey Family Limited
Partnership.

Onnie Winebarger, Byrdstown, Tennessee, for the appellees, Gary Worley
and Larry Worley.

Judge: CAIN

First Paragraph:

This is a landlord/tenant case involving abandonment and surrender by
the tenant of the leased premises and whether or not the surrender was
accepted by the landlord so as to prevent the landlord from collecting
rents for the unexpired term of the lease.  The chancellor first held
for the landlord on the issue but thereafter came to believe himself
bound by an unreported decision of this court and reversed his
position to hold for Appellee.  We find the first judgment of the
chancellor to have been correct and reinstate his original judgment.

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

In re: B.L., R.L., V.A., and R.A.

Court:TCA

Attorneys:                          

Kelli Barr Summers, Brentwood, Tennessee, for the appellant, [S.A.]

Paul G. Summers, Attorney General & Reporter; Russell T. Perkins,
Deputy Attorney General, and Daniel W. Champney, for the appellee,
Tennessee Department of Children's Services.

Thomas H. Miller, Franklin, Tennessee, for the guardian ad litem,
Thomas H. Miller.

Judge: CAIN

First Paragraph:

This appeal involves the termination of a mother's parental rights
regarding her four children.  Three of the children were removed in
August 2000 and the fourth child was removed at birth in January of
2001.  A Petition to Terminate Parental Rights was filed in March
2003, and after a hearing on June 16, 2003, the trial court terminated
mother's parental rights for abandonment in failing to support her
children and pursuant to Tennessee Code Annotated section
36-1-113(g)(3) for persistent  conditions or other conditions which
prevent safe return of the children in the near future.  We find that
there was clear and convincing evidence for termination of mother's
parental rights under section 36-1-113(g)(3) of the Code and that
termination was in the best interest of the children.  We affirm the
trial court's decision to terminate mother's parental rights.

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

STATE OF TENNESSEE v. ROBERT BANKS

Court:TCCA

Attorneys:                          

James W. Hodges, Jr., and R. Price Harris, Memphis, Tennessee, for the
appellant, Robert Banks.

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

Judge: GLENN

First Paragraph:

The defendant, Robert Banks, was convicted in the General Sessions
Court of Shelby County of the misdemeanor offense of patronizing
prostitution, fined $1000, and sentenced to twenty days in the county
correctional center, to be served on weekends.  He then appealed to
the Shelby County Criminal Court, where, following a bench trial, he
was convicted of patronizing prostitution within a mile and a half of
a school, a Class A misdemeanor, ordered to pay a $100 fine, and
sentenced to eleven months, twenty-nine days, with forty-five days to
be served consecutively in the county workhouse and the remainder on
supervised probation.  On appeal to this court, the defendant raises
two issues: (1) whether the evidence is sufficient to sustain his
conviction; and (2) whether the trial court erred in denying his
motion for a jury trial based on his claim of ineffective assistance
of general sessions counsel.  We conclude the evidence is sufficient
to sustain the conviction and the trial court did not err in denying
the defendant's untimely request for a jury trial, made after his
notice of appeal had already been entered.  Accordingly, we affirm the
judgment of the trial court, but modify the fine imposed from $100 to
$1000, in accordance with the provisions of Tennessee Code Annotated
section 39-13-514(b)(3) (2003), and remand for entry of a corrected
judgment to reflect the defendant's conviction offense which was
omitted from the judgment form.

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

STATE OF TENNESSEE v. KEVIN MAGNESS
CORRECTED OPINION WITH CORRECTION MEMO

Court:TCCA

Attorneys:                          

Steven R. Roller, McMinnville, Tennessee, and Donald Capparella,
Nashville, Tennessee, for the appellant, Kevin Magness.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Clement Dale Potter, District
Attorney General; and Larry G. Bryant, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Warren County Circuit Court jury convicted the defendant, Kevin
Magness, of manufacturing more than one hundred grams of
methamphetamine, a Class B felony, and the trial court sentenced him
as a Range I, standard offender to eight years in confinement.  The
defendant appeals, claiming that (1) the evidence is insufficient to
support his conviction, and (2) the trial court erred by allowing into
evidence the manner by which the state calculated the weight of the
substance containing methamphetamine.  We hold that the evidence is
sufficient to show felonious manufacturing but that an incorrect
standard was used to calculate the weight of the controlled substance.
 We modify the defendant's conviction to reflect a conviction for a
Class C felony, and we remand the case to the trial court for
resentencing.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/magnesskevin.wpd

CORRECTION MEMO
http://www.tba.org/tba_files/TCCA/magnesskevin_mem.wpd

KEVIN L. MARSHALL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kevin L. Marshall, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Charles Michael Layne, District
Attorney General; and Kenneth J. Shelton, Jr., Deputy District
Attorney, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner, Kevin L. Marshall, appeals the dismissal of his motion
to correct an illegal sentence.  Because this is not the appropriate
context for this appeal and because we conclude that the record
supports the trial court's determination that the petitioner failed to
set forth a factual or legal basis on which to justify relief, we
affirm the dismissal of the post-conviction petition.

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

STATE OF TENNESSEE v. BENNIE NELSON THOMAS, JR.

Court:TCCA

Attorneys:                          

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Tom W.
Crider, District Public Defender; and Periann S. Houghton, Assistant
Public Defender (at trial and on appeal), for the appellant, Bennie
Nelson Thomas, Jr.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Larry Hardister and Elaine G. Todd, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Bennie Nelson Thomas, Jr., was convicted of sale of a
Schedule II controlled substance, crack cocaine, a Class C felony, and
sentenced as a Range I, standard offender to six years in the
Department of Correction.  He was also fined $2000.  He raises two
issues on appeal: (1) whether the evidence was sufficient to sustain
his conviction; and (2) whether the trial court erred in refusing to
declare a mistrial after the improper reference at trial to a prior
drug sale by an undercover informant.  Based on our review, we affirm
the judgment of the trial court but remand for entry of a corrected
judgment to reflect the defendant's fine of $2000.

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

STATE OF TENNESSEE v. LUCY THOMPSON

Court:TCCA

Attorneys:                          

John P. Partin and Michael D. Galligan, McMinnville, Tennessee, for
the defendant, Lucy Thompson.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and David Puckett, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant, Lucy Thompson, contends that the trial court erred in
overruling her motion for judicial diversion.  Specifically, she
contends that the court accorded controlling weight to the deterrence
value and the circumstances of the case, while it ignored other
factors that it was required to consider.  Because we conclude that
the trial court did not abuse its discretion, the judgment is
affirmed.

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

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