Today's Opinions: December 22, 2004
Volume 10 — Number 245
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
04 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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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


JUDY S. PARNELL v. APCOM, INC., ET AL.

Court:TCA

Attorneys:                          

Ernest W. Williams, Franklin, Tennessee, for the appellant, Judy S.
Parnell.

Karyn C. Bryant and Jonathan Motley, Nashville, Tennessee, for the
appellees, APCOM, Inc., George Fehrmann, State Industries, Inc., John
R. Lindahl, and Herbert W. Lindahl.

Judge: CLEMENT

First Paragraph:

Forty-six year old female employee who had worked for company for
seventeen years filed this action against her employer after her
position and employment were terminated.  She claims her termination
constituted a breach of contract and violated the Tennessee Human
Rights Act.  The trial court dismissed the THRA claim on summary
judgment as time barred, holding that the savings statute did not
apply to THRA claims.  The remaining contract claims were tried and
resulted in judgment in favor of the defendants.  Plaintiff appeals. 
We find that the trial court erred by holding the savings statute
inapplicable to THRA claims against private employers.  We also find
that the plaintiff failed to establish a prima facie case of
discrimination under the THRA.  We affirm the trial court in all other
respects.

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

LOUIS HUDSON ROBERTS v. MARY ELIZABETH TODD, ET AL.

Court:TCA

Attorneys:                          

Connie Reguli, Brentwood, Tennessee, for the appellant, Mary Elizabeth
Todd.

Jon S. Jablonski, Nashville, Tennessee, for the appellee, Louis Hudson
Roberts.

Judge: FARMER

First Paragraph:

This is an appeal from a trial court's denial of a motion to set aside
a default judgment.  We affirm.

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

STATE OF TENNESSEE v. STEVEN FREDERICK BRINKLEY 

Court:TCCA

Attorneys:                          

V. Michael Fox, Nashville, Tennessee, for the appellant, Steven
Frederick Brinkley.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Jennifer Tackett, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Steven Frederick Brinkley,  was convicted of driving
under the influence of an intoxicant ("DUI"), second offense, and
violation of the implied consent law.  On appeal, the Defendant
contends that the evidence presented at trial is insufficient to
sustain his conviction for DUI because: (1) he was not in "physical
control" of his vehicle; and (2) the parking lot where his vehicle was
located was not a premises frequented by the public at large.  Finding
no reversible error, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. FREDDIE WILLIAM LEWIS

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General & Reporter; Elizabeth Bingham
Marney, Assistant Attorney General; J. Michael Taylor, District
Attorney General; and Steve Strain, Assistant District Attorney
General,  for the appellant, State of Tennessee.

David A. Doyle, District Public Defender and Mike Anderson, Assistant
Public Defender, Gallatin, Tennessee, for the appellee, Freddie
William Lewis.

Judge: SMITH

First Paragraph:

The appellee, Freddie William Lewis, was indicted for custodial
interference after allegations arose that he moved his child to
another state in violation of a juvenile court order.  The appellee
filed a motion to dismiss the indictment, arguing that a default
judgment taken against him in juvenile court on the paternity
petition, which later formed the basis for the indictment, was void. 
The trial court dismissed the indictment after a hearing.  The State
appeals, arguing that the trial court erred in dismissing the
indictment.  We determine that the trial court erred in dismissing the
indictment because the default judgment was not void, but merely
voidable.  Accordingly, we reverse the judgment of the trial court,
reinstate the indictment and remand the case for trial

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

STATE OF TENNESSEE v. JOHN RAY THOMPSON

Court:TCCA

Attorneys:                          

Merrilyn Feirman (on appeal), Nashville, Tennessee, and Jack Dearing,
III (at trial), Shelbyville, Tennessee, for the appellant.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; W. Michael McCown, District Attorney
General; Michael Randles, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, John Ray Thompson, appeals his convictions from two
separate jury trials, where he was convicted of seventeen crimes
involving his sexual contact with three minor girls.  The trial court
sentenced the Defendant to an effective sentence of eighty years for
his convictions in both trials, of which sixty-nine years must be
served at 100%.  On appeal, he contends that: (1) the evidence is
insufficient to sustain three of his convictions; (2) the State failed
to elect facts to support two of his convictions; and (3) the trial
court erred when it sentenced him.  After throughly reviewing the
record and the applicable authorities, we affirm all of the
Defendant's convictions in both trials except for two of his
convictions for sexual battery because the jury was improperly
instructed on those counts, and the instructional error was not
harmless beyond a reasonable doubt.  Further, we hold that the trial
court improperly enhanced the Defendant's sentences in light of
Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and we
reduce the Defendant's sentence in accordance with this opinion to an
effective sentence of sixty-eight years, sixty of which must be served
at 100%.  We remand the case for the entry of appropriate judgments of
conviction.

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

STATE OF TENNESSEE v. JOHN WHATLEY

Court:TCCA

Attorneys:                          

Michael A. Colavecchio, Nashville, Tennessee (on appeal), and L.
Samuel Patterson, Columbia, Tennessee (at trial), for the appellant,
John Whatley.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Senior Counsel; Mark Fulks, Assistant Attorney General; Mike Bottoms,
District Attorney General; and Joey Penrod and Christine Thompson,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: OGLE

First Paragraph:

The appellant, John Whatley, was convicted by a jury in the Maury
County Circuit Court of aggravated sexual battery.  The trial court
sentenced the appellant to twelve years in the Tennessee Department of
Correction.  On appeal, the appellant challenges the trial court's
actions as thirteenth juror, the specificity of the indictment, the
trial court's instructions regarding lesser-included offenses, the
trial court's evidentiary rulings, sentencing, and the denial of his
motion for new trial.  Upon our review of the record and the parties'
briefs, we affirm the judgment of the trial court; however, in light
of Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531 (2004), we
modify the appellant's sentence to eleven years.

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

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