CORPORATE ETHICS UPDATE CLE
Dec. 2 - Knoxville
Dec. 7 - Nashville
Dec. 9 -Memphis

Presented by Nashville Attorney Gary Brown, this three-hour seminar
will explore all these topics in an interactive format, using sample
letters, discussion of the ethics rules and cases, and audience
discussion. Topics include, Ethics - What's That?, Sarbanes-Oxley
Section 307 and SEC Rule 205, and Sarbanes-oxley and the US Sentencing
Guidelines.

Today's Opinions: November 19, 2004
Volume 10 — Number 224
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
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
06 New Opinion(s) from the Tennessee Court of Appeals
09 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

LARRY THRASHER v. CARRIER CORPORATION, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Carrier
Corporation and Insurance Company of the State of Pennsylvania.

Donald J. Ray, Tullahoma, Tennessee, for the appellee, Larry Thrasher.

Judge: WEATHERFORD

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated  S 50-6- 225(e)(3) for hearing and
reporting to the Supreme Court of findings of facts and conclusions of
law.  This case, submitted on briefs,  is before the Panel for a
second time.  In the first appeal filed by the employer, this Panel
reduced the trial court's award of 100% permanent partial disability
for work- related injuries to the employee's "two feet" to 40%
permanent partial disability to "each foot."  The employer brings a
second appeal contending that the trial court erred in interpreting
the Panel's judgment modifying the award.  The employee contends that
this is both a frivolous appeal and a bad-faith effort to avoid paying
the employee his workers' compensation benefits.  The Panel has
concluded that the judgment of the trial court is affirmed.

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

RANDEL P. CARLTON, ET AL. v. MARK L. WILLIAMS, ET AL.

Court:TCA

Attorneys:                          

William J. Brown, Cleveland, Tennessee, for the Appellants, Randel P.
Carlton and Julie S. Carlton.

Barrett T. Painter, Cleveland, Tennessee, for the Appellees, Mark L.
Williams and Sandra Kay Williams.

Judge: SWINEY

First Paragraph:

Randel P. Carlton, and Julie S. Carlton ("Plaintiffs") purchased a
house from Mark L. Williams and Sandra Kay Williams ("Defendants"). 
Plaintiffs later sued Defendants  claiming, among other things, that
Defendants knew and failed to disclose that the swimming pool was not
in good working order and that the swimming pool encroached onto a
sewer easement and neighboring property.  Plaintiffs also claimed that
Defendants had warranted that all fixtures, including the swimming
pool, were free of liens and encumbrances and had breached this
warranty.  The case was tried on the issue of whether Defendants had
warranted that all fixtures, including the pool, were free of liens
and encumbrances.  The Trial Court found and held, inter alia, that
the paragraph of the sales contract relied upon by Plaintiffs
contained no warranty and that the owner's affidavit also contained no
warranty because it merged into the deed at closing.  The Trial Court
dismissed the case against Defendants.  Plaintiffs appeal.  We affirm,
in part, reverse, in part, and remand for further proceedings.

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

CRYE-LEIKE, INC., ET AL. v. THE ESTATE OF KENNETH H. EARP, ET AL.

Court:TCA

Attorneys:                          

Arthur E. McClellan, Gallatin, Tennessee, for the appellants,
Crye-Leike, Inc., Connie Reese and Charles Haynes.

Walter H. Stubbs, Gallatin, Tennessee, for the appellee, The Estate of
Kenneth H. Earp, deceased and surviving spouse, Tina M. Earp.

Judge: CAIN

First Paragraph:

This case involves a dispute over whether a real estate listing
contract was canceled by oral agreement prior to receipt of a
full-priced offer from a buyer.  Plaintiff real estate agents claim
the contract was still in effect at the time of the offer entitling
them to their sales commission when Defendant sellers refused to sell
their property.  The trial court found that the contract was canceled
by oral agreement prior to receipt of the offer and dismissed
Plaintiffs' complaint.  Defendants counterclaimed for violations of
the Tennessee Consumer Protection Act and the Tennessee Real Estate
Broker's Licensing Act.  Defendants counterclaims were also dismissed.
 We affirm the decision of the trial court.

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

CITY OF ELIZABETHTON, TENNESSEE v. NORTH AMERICAN FIBERS, INC., et al.

Court:TCA

Attorneys:                          

Stephen G. Anderson, Knoxville, Tennessee, for the Appellant, North
American Fibers, Inc.

Charlton R. Devault, Jr., Knoxville, Tennessee, for the Appellee, City
of Elizabethton, Tennessee.

Judge: LEE

First Paragraph:

This appeal arises out of a cause of action filed by a municipality
against a corporate landowner for breach of a sewer easement which the
municipality purchased as a path for its underground sewer line. The
municipality alleged that after construction of the sewer line, the
landowner's long- standing practice of depositing fly ash and cinders
over the area of the easement rendered the line inaccessible and
necessitated the construction of an alternate sewage system for which
the municipality requested compensation. The municipality also sought
to hold the landowner's president and chief executive officer liable
as the alter ego of the landowner.  The trial court decreed that the
landowner had unreasonably burdened the easement, awarded the
municipality compensatory damages, and decreed that although the
landowner's president was an alter ego of the landowner, he was not
personally liable. On appeal the landowner argues that the
municipality's cause of action was barred under the statute of
limitations and equitable doctrines of estoppel and laches, that under
the rule of practical construction the easement allowed the landowner
to dump material over the sewer line, that the trial court erred in
its award of damages, and that the court erred in refusing to strike
findings with respect to the landowner's president. We affirm the
judgment of the trial court as rendered and remand.

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

STATE EX REL KARL F. DEAN v. JOHN AARON NELSON, ET AL.

Court:TCA

Attorneys:                          

John E. Herbison, Nashville, Tennessee, for John Aaron Nelson and 1231
Corporation.

Karl F. Dean and J. Douglas Sloan, III, Nashville, Tennessee, for the
State of Tennessee.

Judge: KOCH

First Paragraph:

This extraordinary appeal involves the efforts of the Metropolitan
Government of Nashville and Davidson County to close an adult business
where acts of prostitution and lewdness were allegedly occurring.  At
the City's request, the Criminal Court for Davidson County issued an
ex parte temporary restraining order immediately padlocking the
business.  Following a hearing one week later, the trial court entered
a second order stating that the temporary restraining order would
"remain binding and in effect pending a trial."  The owner of the
adult business filed a Tenn. R. App. P. 10 application with this
court.  We have concluded that the trial court departed from the
accepted and usual course of judicial proceedings in two respects. 
First, the court violated Tenn. Code Ann. S 29- 3-106(a) (2000) by
issuing the temporary restraining order without five days written
notice.  Second, the trial court violated Tenn. R. Civ. P. 65.03(5) by
allowing the temporary restraining order to remain in effect pending
the trial.  Accordingly, we grant the owner's Tenn. R. App. P. 10
application and vacate the order padlocking the premises.

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

RELIANCE INSURANCE COMPANY v. EDWARD MACKEY, M.D. 

Court:TCA

Attorneys:                          

Branch H. Henard, III, Nashville, Tennessee, and  Stephen R. Harris, 
Patricia Proctor, and Michael C. Kochkodin, Philadelphia,
Pennsylvania, for the appellant, Reliance Insurance Company.

Noel F. Stahl and Jeffrey Zager, Nashville, Tennessee, for the
appellee, Edward Mackey, M.D.

Judge: CLEMENT

First Paragraph:

Workers' compensation insurance carrier filed a subrogation action
against a physician who allegedly committed malpractice while treating
an injured worker.  The action was filed almost three years after the
cause of action accrued.  The physician moved to dismiss the action as
time barred.  The workers' compensation carrier insisted the action
was timely filed, claiming it was afforded two extensions on the
statute of limitations, one of which was a six-month extension
pursuant to Tenn. Code Ann. S 50-6-112(d)(2).   The trial court held
that the insurance carrier was not entitled to the six month extension
and the action was time barred.  We affirm.

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

TARECO PROPERTIES, INC. v. STEVE MORRISS

Court:TCA

Attorneys:                          

Jeffrey A. Greene, Daniel W. Small, Nashville, Tennessee, for the
appellant, Tareco Properties, Inc.

John Konvalinka, Chattanooga, Tennessee; Roger Reid Street, Jr.,
Franklin, Tennessee, for the appellee, Steve Morriss.

Judge: COTTRELL

First Paragraph:

The assignee of a judgment rendered by a federal district court in
Texas attempted to enforce that judgment in Tennessee. The trial court
entered an order granting summary judgment to the plaintiff and
enforcing the judgment. The defendant subsequently filed a Tenn. R.
Civ. P. 60 motion for relief, arguing that the judgment of the federal
court was void.  The trial court agreed and set aside its previous
order.  After the Texas federal court that had rendered the original
judgment reached the opposite conclusion, the plaintiff filed a Tenn.
R. Civ. P. 60 motion asking the trial court to set aside its earlier
order setting aside the summary judgment enforcing the Texas judgment.
 The trial court denied this motion.  By final order, the trial court
dismissed the plaintiff's action to enforce the Texas judgment.  We
reverse the trial court on this issue and also vacate the order of
expungement granted to Mr. Morriss related to a holding of criminal
contempt.

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

STATE OF TENNESSEE v. STEVEN RAY CHANCE

Court:TCCA

Attorneys:                          

Steven Ray Chance, pro se, Whiteville, Tennessee.

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

Judge: SMITH

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court by memorandum opinion pursuant to Rule 20,
Rules of the Court of Criminal Appeals.  The appellant  has appealed
the trial court's order summarily dismissing the appellant's
"Affidavit of Specific Negative Averment."  In that document the
petitioner apparently desired to set aside his guilty plea because it
failed to comply with certain provisions of the Uniform Commercial
Code.  Upon a review of the record in this case we are persuaded that
the trial court was correct in summarily dismissing the "Affidavit of
Specific Negative Averment" and that this case meets the criteria for
affirmance pursuant to Rule 20, Rules of the Court of Criminal
Appeals.  Accordingly, the State's motion is granted and the judgment
of the trial court is affirmed.

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

SUSAN DAUGHERTY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jack Howell Davis, Jr., Nashville, Tennessee for the appellant, Susan
Daugherty

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court by memorandum opinion pursuant to Rule 20,
Rules of the Court of Criminal Appeals.  The appellant has appealed
the trial court's order summarily dismissing the appellant's petition
for writ of habeas corpus.  Upon a review of the record in this case
we are persuaded that the trial court was correct in summarily
dismissing the habeas corpus petition and that this case meets the
criteria for affirmance pursuant to Rule 20, Rules of the Court of
Criminal Appeals.  Accordingly, the State's motion is granted and the
judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. MICHAEL A. DRAKE

Court:TCCA

Attorneys:                          

Gary Vandever, Lebanon, Tennessee, for the appellant, Michael A.
Drake.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; Tom P. Thompson, Jr., District Attorney
General; and Jerry Hunt, Assistant District Attorney General,  for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Michael A. Drake, was indicted on two counts of
vehicular homicide and two counts of aggravated vehicular homicide.  A
jury found the appellant guilty of two counts of vehicular homicide by
intoxication.  In the second phase of the trial, the jury found the
appellant guilty of two counts of aggravated vehicular homicide based
on one prior DUI conviction and a blood alcohol level of .20 or more
at the time of the present offense.  On appeal, the appellant
challenges the sufficiency of the indictment by arguing that it only
gave notice that the State sought to convict him of aggravated
vehicular homicide based on two prior DUI offenses.  We determine that
the indictment is misleading and deprives the appellant of adequate
notice of the charges against him in violation of the 6th amendment to
the United States Constitution and Article 1, section 9 of the
Tennessee Constitution.   The indictment indicated that the State
sought the aggravated vehicular homicide convictions solely on the
basis of the appellant's two prior DUI convictions pursuant to
Tennessee Code annotated section 39-13-218(1)(a), rather than one
prior DUI and a blood alcohol of .20 or more at the time of the
offense, pursuant to Tennessee Code Annotated section 39-13- 218(3).  
Thus, we are forced to dismiss the aggravated vehicular homicide
conviction, modify the conviction to vehicular homicide under
Tennessee Code Annotated section 39-13-213 and remand the case for
resentencing.

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

STATE OF TENNESSEE v. SAMUEL L. GIDDENS

Court:TCCA

Attorneys:                          

Ernest W. Williams and Anna E. Freeman, Franklin, Tennessee, for the
appellant, Samuel L. Giddens.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Ron Davis, District Attorney General; and
Lee E. Dryer, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: WELLES
 
First Paragraph:

Following a jury trial, the Defendant, Samuel L. Giddens, was
convicted of facilitation of possession of heroin with the intent to
sell or deliver and possession of cocaine with the intent to sell or
deliver.  In this appeal as of right, the Defendant raises the
following four issues: (1) whether the trial court erred by allowing
law enforcement officers to testify regarding factual indications that
a person possesses drugs with the intent to sell, rather than for
personal use; (2) whether the trial court erred by admitting testimony
regarding prior drug transactions conducted by the Defendant; (3)
whether the evidence is sufficient to sustain his two convictions; and
(4) whether he was entitled to a mistrial due to a statement made by
the prosecutor during closing argument.  We affirm the judgment of the
trial court.

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

MARCELLUS HAZELITT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Marcellus Hazelitt, pro se, Nashville, Tennessee.

Paul G. Summers, Attorney General & Reporter; Elizabeth Bingham
Marney, Assistant Attorney General, for the appellee, State of
Tennessee.

Judge: SMITH

First Paragraph:

This matter is before the Court upon the State's motion to dismiss the
appellant's appeal, or in the alternative, affirm the judgment of the
trial court by memorandum opinion pursuant to Rule 20, Rules of the
Court of Criminal Appeals.  The appellant filed a motion for
correction or reduction of sentence that the trial court denied
without benefit of a hearing.  After reviewing the record in this
case, we find the State's motion to affirm the judgment of the trial
court by memorandum has merit.  Accordingly, the motion is granted and
the appeal is affirmed pursuant to Rule 20, Rules of the Court of
Criminal Appeals.

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

STATE OF TENNESSEE v. GARY LEE JOHNSON

Court:TCCA

Attorneys:                          

Claudia S. Jack, District Public Defender, and R. H. Stovall, Jr.,
Assistant Public Defender, for the appellant, Gary Lee Johnson.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; T. Michael Bottoms, District Attorney
General; and Patrick S. Butler, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

Following a jury trial, the defendant, Gary Lee Johnson, was convicted
of aggravated assault, assault,  and resisting arrest.  He was
sentenced as a Range I, standard offender to six years in the
Department of Correction for the aggravated assault and eleven months,
twenty-nine days for each of  the assault and resisting arrest
convictions.  All sentences were to be served concurrently.  He
appeals only the aggravated assault conviction, arguing that the
evidence is insufficient to support the conviction.  After review, we
affirm the convictions but remand for entry of corrected judgments in
Counts 1 and 2.

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

STATE OF TENNESSEE v. DARLENE MULLICAN

Court:TCCA

Attorneys:                          

John B. Nisbet, Cookeville, Tennessee, for the appellant, Darlene
Mullican.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Bill Gibson, District Attorney General;
and William Locke, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Darlene Mullican, pled guilty to attempted manufacture
of methamphetamine, a Class D felony.  See Tenn. Code Ann. SS
39-17-417(a)(1), (c)(2)(A); 39-17-408(d)(2); 39-12-107(a).  She was
sentenced as a Range I standard offender to three years, to be served
on probation.  A probation violation warrant was subsequently filed
and, after a hearing, the trial court revoked the Defendant's
probation, ordering her to serve her sentence in confinement.  The
Defendant now appeals.  We affirm the judgment of the trial court.

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

CHARLES SPEED v. KEVIN MYERS, WARDEN, STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Charles Speed, pro se, Clifton, Tennessee.

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

Judge: SMITH

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court by memorandum opinion pursuant to Rule 20,
Rules of the Court of Criminal Appeals.  The petitioner has appealed
the trial court's order summarily dismissing the petition for the writ
of habeas corpus.  In that petition the petitioner alleges that the
indictment charging the petitioner with one count of felony murder and
one count of first degree murder is void because the counts therein
fail to allege sufficient facts to vest jurisdiction in the trial
court.  Upon a review of the record in this case we are persuaded that
the trial court was correct in summarily dismissing the habeas corpus
petition and that this case meets the criteria for affirmance pursuant
to Rule 20, Rules of the Court of Criminal Appeals.  Accordingly, the
State's motion is granted and the judgment of the trial court is
affirmed.

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

SAMMIE L. TAYLOR v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Sammie Lee Taylor, pro se, Clifton, Tennessee.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court by memorandum opinion pursuant to Rule 20,
Rules of the Court of Criminal Appeals.  The petitioner has appealed
the trial court's order summarily dismissing the petition for the writ
of habeas corpus.  In that petition the petitioner sought a writ of
habeas corpus to release him from his conviction for especially
aggravated robbery.  We are persuaded that the trial court was correct
in summarily dismissing the habeas corpus petition and that this case
meets the criteria for affirmance pursuant to Rule 20, Rules of the
Court of Criminal Appeals.  Accordingly, the State's motion is granted
and the judgment of the trial court is affirmed

http://www.tba.org/tba_files/TCCA/taylorsammie.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

TBALink HomeContact UsPageFinderWhat's NewHelp

© Copyright 2004 Tennessee Bar Association