Today's Opinions: December 29, 2004
Volume 10 — Number 248
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
10 New Opinion(s) from the Tennessee Court of Appeals
07 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


IN THE MATTER OF B.A.L. and A.E.L.

Court:TCA

Attorneys:                          

William T. Winchester of Memphis for Appellant, Craig A. Lott

Charles A. Sevier of Memphis for Appellee, Countess Jeanine Fleming

Judge: CRAWFORD

First Paragraph:

This is a child custody case. Father/Appellant appeals from the trial
court's Order, which denied Father/Appellant's Petition to change
custody from the minor children's Mother to Father. Finding that there
is not a material change in circumstances to warrant a change of
custody, we affirm.

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

DEBORAH B. HALL BYRD v. DANNY K. BYRD

Court:TCA

Attorneys:                          

J. Thomas Caldwell of Ripley for Appellant, Deborah B. Hall Byrd

T. D. Forrester of Covington for Appellee, Danny K. Byrd

Judge: CRAWFORD

First Paragraph:

This is an appeal from a decree of legal separation, involving issues
of division of marital property and debt, alimony, and attorney fees.
Wife appeals. We affirm in part, reverse in part, and remand.

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

DAVID L. ELMORE v. MARY ROSANNA ELMORE v. JERRY RALPH MONDAY, ET AL

Court:TCA

Attorneys:                          

C. Douglas Fields, Crossville, Tennessee, for the Appellant, David L.
Elmore.

David Haines Rotroff, Chattanooga, Tennessee, for the Appellees, Jerry
Ralph Monday, Brenda Joyce Monday, Melissa Renee Beaty, and David
Wayne Beaty.

Judge: LEE

First Paragraph:

This case involves a post-divorce custody dispute between the natural
father and maternal grandparents and aunt of three children. The issue
presented is whether the trial court erred in awarding custody to the
grandparents and aunt when it made no finding in its order that an
award of custody to the father posed a risk of substantial harm to the
children.  We hold that the record does not support such a finding of
substantial harm, reverse the trial court's award of custody, and,
pursuant to the father's constitutional right of privacy to rear and
have custody of his children, we award the natural father custody and
remand to the trial court to set appropriate visitation and support
for the mother.

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

ESTATE OF CLYDE M. FULLER v. SAMUEL EVANS, ET AL.

Court:TCA

Attorneys:                          

Michael E. Richardson, Chattanooga, Tennessee, for the Appellants,
Samuel and Patty Evans.

William T. Alt, Chattanooga, Tennessee, for the Appellee, Estate of
Clyde M. Fuller.

Judge: LEE

First Paragraph:

The issue in this case is whether the Counter-Plaintiff may testify at
trial regarding transactions and conversations with the deceased
Counter-Defendant when the deceased Counter-Defendant's pre-trial
discovery deposition had been taken, but was incomplete.  We hold that
the trial court, pursuant to the Dead Man's Statute, properly
prohibited the Counter-Plaintiff from testifying about transactions
and conversations with the deceased Counter-Defendant. Therefore, we
affirm the ruling of the trial court and remand.

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

PAMELA K. GINN v. AMERICAN HERITAGE LIFE INSURANCE COMPANY, ET AL

Court:TCA

Attorneys:                          

William S. Lockett, Jr., Knoxville, Tennessee, for the Appellants
American Heritage Life Insurance Company and Daryle W. Gross.

John W. Cleveland, Sweetwater, Tennessee, for the Appellee Pamela K.
Ginn.

Judge: SWINEY

First Paragraph:

Pamela K. Ginn ("Plaintiff") purchased a $50,000 life insurance policy
on her husband through American Heritage Life Insurance Company
("American Heritage").  When applying for the insurance, Plaintiff
told the insurance salesman, Daryle Gross ("Gross"), that her husband
was in "basic good health."  Plaintiff's husband died a few weeks
after the life insurance went into effect.  American Heritage denied
Plaintiff's demand for the life insurance proceeds, claiming Plaintiff
had materially misrepresented her husband's health.  Plaintiff sued
American Heritage and Gross ("Defendants").  The jury found Defendants
breached their contract with Plaintiff.  The jury also found that the
refusal to pay was done in bad faith, assessing a 25% bad faith
penalty.  The jury also concluded Defendants had violated the
Tennessee Consumer Protection Act ("TCPA") and assessed compensatory
damages under the TCPA at $110,000, which was remitted by the Trial
Court to $73,855.15.  Pursuant to the TCPA, the Trial Court then
trebled the damages and awarded attorney fees.  When all was said and
done, the amount of the judgment awarded to Plaintiff totaled
$284,980.60.  Both Plaintiff and Defendants appeal various aspect of
the Trial Court's Judgment.  The Judgment of the Trial Court is
reversed in part and affirmed in part, and judgment is entered in
favor of Plaintiff in the total amount of $73,415.15.

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

WILLIAM (BILL) GRAVES, ET UX. v. JEREMY S. JETER, ET AL

Court:TCA

Attorneys:                          

Mimi Phillips and R. H. "Chip" Chockley of Memphis for Appellants,
William Graves and Tressie Lavelle Graves

Nicholas E. Bragorgos and Jonathan W. McCrary of Memphis for
Appellees, Jeremy Jeter and Hubert Jeter

Judge: CRAWFORD

First Paragraph:

This is a personal injury case arising from an automobile accident. 
Defendant/Appellee was traveling at an excessive rate of speed and
attempted to pass Plaintiffs/Appellants' vehicle in a no pass zone as
Plaintiffs/Appellants were making a left-hand turn into their
driveway.   Following a bench trial, the trial court found
Plaintiff/Appellant driver 40% at a fault for the accident and
Defendant/Appellee 60% at fault. Plaintiffs/Appellants appeal on
issues of fault and damages. We affirm as modified herein.

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

IN THE MATTER OF N.P., W.N., AND C.N., Children Under the Age of 18
Years

Court:TCA

Attorneys:                          

Barbara A. Deere, Dyersburg, TN, for Appellant

Paul G. Summers, Attorney General & Reporter, Douglas Earl Dimond,
Senior Counsel, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal involves the termination of the parental rights of Mother
and Father to their children.  After a hearing, the Lauderdale County
Juvenile Court terminated Mother's parental rights over W.N. and C.N.
on the grounds of abandonment for failure to support and severe child
abuse.  Further, the trial court found that termination of Mother's
parental rights is in the best interest of the children.  Mother now
seeks review by this Court, and we affirm.

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

IN THE MATTER OF S.L.R, ET AL., CHILDREN UNDER 18 YEARS OF AGE

Court:TCA

Attorneys:                          

Elizabeth Earl McDonald, Sparta, TN, for Appellants

Paul G. Summers, Attorney General & Reporter, Douglas Earl Dimond,
Senior Counsel, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves a lengthy and protracted attempt by the Department
of Children's Services and numerous other social services agencies to
assist the biological parents of five children with creating an
acceptable environment for the children.  After five years and
repeated efforts, the Department of Children's Services filed a
petition to terminate the parental rights of mother and father
alleging the grounds of abandonment by failure to provide support,
abandonment by failure to provide a suitable home, failure to
substantially comply with the permanency plans, and persistent
conditions.  The department also alleged that termination of the
parental rights was in the best interest of the children.  Following a
hearing on the petition, the juvenile court entered an order
terminating the parental rights of the natural parents.  The mother of
four of the children and the father of all five children filed an
appeal to this Court.  After reviewing the entire record, we affirm.

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

JOHN RALPH WOOD v. JUDITH A. (GRANDE) WOOD

Court:TCA

Attorneys:                          

Mary Frances Lyle; David Lyle, Nashville, Tennessee, for the
appellant, Judith A. (Grande) Wood.

Christi L. Dalton, Hartsville, Tennessee, for the appellee, John Ralph
Wood.

Judge: COTTRELL

First Paragraph:

After a marriage of over twenty-six years, the parties were divorced. 
The trial court granted the divorce to both parties pursuant to Tenn.
Code Ann. S 36-4-129, incorporated their property division agreement
into the final decree, and declared that the husband would not be
required to pay any alimony.  The wife contends on appeal that the
trial court should have awarded her alimony in futuro and attorney
fees.  In light of the duration of the marriage and the relative
economic circumstances of the parties after divorce, we believe the
wife is entitled to alimony.  We accordingly modify the divorce decree
and order the husband to pay the wife alimony of $1,200 per month.  We
also order him to pay one-half of the wife's attorney fees at trial
and on appeal.

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

FRED H. WRIGHT, Ph.D v. TENNESSEE BOARD OF EXAMINERS IN PSYCHOLOGY

Court:TCA

Attorneys:                          

Erskine P. Mabee, Chattanooga, TN, for Appellant

Paul G. Summers, Attorney General & Reporter, Sue A. Sheldon, Senior
Counsel, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

The Tennessee Board of Examiners in Psychology received a complaint
from the patient of a psychologist alleging the psychologist breached
the ethical duty of confidentiality by disclosing information to the
patient's sister.  During the course of the investigation, the
psychologist revealed that he had disclosed confidential information
about the same patient to another psychologist romantically involved
with the patient.  The board filed charges against the psychologist
alleging violations of the ethical rules governing confidentiality and
documentation of therapy.  Following an administrative hearing, the
board placed the psychologist's license on probation for two years
subject to two conditions: (1) he complete twenty hours of continuing
education training and (2) his practice be supervised during the two
year probationary period by another psychologist.  In addition, the
board assessed a $1,000.00 civil penalty against the psychologist. 
The psychologist appealed the board's decision to the Chancery Court
of Davidson County which affirmed the board's decision.  The
psychologist appealed to this Court.  We affirm.

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

DONALD BRANCH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Lance R. Chism, Memphis, Tennessee, for the appellant, Donald Branch.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Stephanie Johnson, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Donald Branch, appeals the denial of his petition for
post-conviction relief from his aggravated vehicular homicide
convictions, arguing that trial and appellate counsel were ineffective
for failing to cite reported criminal law cases when arguing for a
jury instruction on proximate causation and that appellate counsel was
ineffective for failing to supplement his appellate brief with State
v. Farner, 66 S.W.3d 188 (Tenn. 2001), and for failing to raise as an
issue on direct appeal the trial judge's refusal to recuse himself. 
While the post-conviction appeal was pending, the petitioner sought
and received permission to raise as an additional issue the impact of
the United States Supreme Court's Blakely v. Washington opinion on the
sentencing in his case.  Having thoroughly reviewed the record, we
conclude that the petitioner has not met his burden of demonstrating
either a deficiency in counsel's representation or  resulting
prejudice to his case.  We further conclude that Blakely does not
apply retroactively to cases on collateral appeal.  Accordingly, we
affirm the post-conviction court's denial of the petition.

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

MIKO T. BURL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

C. Anne Tipton, Memphis, Tennessee, for the appellant, Miko T. Burl.

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Emily Campbell, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Miko T. Burl, was convicted of aggravated assault,
aggravated burglary, and especially aggravated robbery, and the trial
court sentenced him to an effective sentence of twenty-five years.  On
direct appeal, this Court vacated the Petitioner's aggravated assault
conviction, but affirmed all of the Petitioner's other convictions. 
The Petitioner subsequently filed a petition for post-conviction
relief alleging, among other things, ineffective assistance of
counsel.  After a hearing, the post-conviction court dismissed the
Petitioner's petition.  On appeal, the Petitioner contends that the
post-conviction court erred because the Petitioner's trial counsel was
ineffective.  Finding no reversible error, we affirm the judgment of
the post-conviction court.

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

STATE OF TENNESSEE v. ROMELUS CARAWAY

Court:TCCA

Attorneys:                          

Paul K. Guibao (on appeal) and Joseph S. Ozment (at trial), Memphis,
Tennessee, for the appellant, Romelus Caraway.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Steve Jones, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Romelus Caraway, was indicted for felony Escape.  A
Shelby County Jury convicted the Defendant of the indicted offense,
and the trial court sentenced the Defendant to six years, after it
determined the Defendant was a career offender.  On appeal, the
Defendant contends that the trial court erred when it denied him a new
trial because: (1) the indictment against the Defendant was fatally
defective and the trial court allowed the State to use this defective
indictment to prove essential elements of the offense for which he was
charged; and (2) the evidence is insufficient to sustain his
conviction.  Finding no reversible error, we affirm the trial court's
judgment.

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

STATE OF TENNESSEE v. KENNETH M. HOLLIDAY

Court:TCCA

Attorneys:                          

Gray W. Bartlett, Memphis, Tennessee, for the Appellant, Kenneth M.
Holliday.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Nicole Duffin,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Kenneth M. Holliday, appeals the sentencing decision of
the Shelby County Criminal Court.  On appeal, Holliday argues that the
trial court erred by refusing to grant his request for alternative
sentencing.  After review of the record, we affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. HARRY JAMIESON

Court:TCCA

Attorneys:                          

Robert Wilson Jones, Shelby County Public Defender; W. Mark Ward,
Assistant Public Defender (on appeal); and Robert J. Ross, II,
Memphis, Tennessee (at trial), for the appellant, Harry Jamieson.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Betsy L. Carnesale, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Harry Jamieson, was convicted by a Shelby County jury
of one count of aggravated robbery and two counts of aggravated
assault.  Following a hearing, the trial court sentenced the appellant
to an effective sentence of nine years in the Tennessee Department of
Correction.  The appellant now appeals, challenging the sufficiency of
the evidence and the sentence imposed by the trial court.  In light of
the United States Supreme Court's decision in Blakely v. Washington,
__ U.S. __, 124 S. Ct. 2531 (2004), we modify the appellant's sentence
for aggravated robbery to eight years and the sentences for aggravated
assault to three years each, for an effective sentence of eight years
incarceration.  We otherwise affirm the judgments of the trial court.

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

JAMES WILLIAM PARSONS, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Douglas A. Trant, Knoxville, Tennessee, for the appellant, James
William Parsons, Jr.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; and C. Berkley Bell, District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, James William Parsons, Jr., appeals the summary
dismissal of his petition for writ of habeas corpus.  In 1999, he pled
guilty to theft of property over $1000, arson, consuming alcohol while
under the age of twenty-one, and possession of a weapon in the
commission of an offense and was sentenced to an effective sentence of
two years and one day, with all but 120 days to be served on
probation.  He was subsequently convicted on separate charges in
federal court and sentenced to the federal penitentiary.  The
petitioner filed a petition for writ of habeas corpus in the Greene
County Criminal Court, claiming that his state plea agreement was
illegal and void and therefore it was improper for the federal court
to use the state convictions to enhance his federal sentence.  The
trial court dismissed the petition without a hearing on the matter,
and the petitioner appealed.  Based upon our review, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. STACY MCKINLEY TAYLOR alias RONALD LEE TAYLOR
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Stephen M. Wallace, District Public Defender; Richard Tate, Assistant
District Public Defender (at trial and on appeal); and Steve McEwen,
Mountain City, Tennessee (on appeal), for the Appellant, Stacy
McKinley Taylor.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and William Harper, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Stacy McKinley Taylor, was convicted of aggravated
assault, criminal impersonation, theft, speeding, and evading arrest
he received following a jury trial in the Sullivan County Criminal
Court.  On appeal, he claims that the aggravated assault conviction is
unsupported by sufficient evidence and that the trial court erred in
sentencing him.  Following our review of the record, the parties'
briefs, and the applicable law, we affirm the conviction of aggravated
assault but modify the sentences.

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

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

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