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Today's Opinions: January 18, 2005
Volume 11 — Number 010
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.
01 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
11 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. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • 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


JOHN DOE 1 EX REL. JANE DOE 1, ET AL. v. ROMAN CATHOLIC DIOCESE OF
NASHVILLE, ET AL.

Court:TSC

Attorneys:                          

John A. Day, Brentwood, Tennessee, and John J. Hollins, Jr.,
Nashville, Tennessee, for the appellants, John Doe 1 by next friend
Jane Doe 1, Jane Doe 1, and John Doe 2.

Thomas F. Mink, II, Nashville, Tennessee, Keith W. Blair, Nashville,
Tennessee, and L. Gino Marchetti, Jr., Nashville, Tennessee, for the
appellee, Roman Catholic Diocese of Nashville.

Judge: DROWOTA

First Paragraph:

In two separate civil actions, the plaintiffs, John Doe 1, Jane Doe 1
and John Doe 2 brought claims of reckless infliction of emotional
distress against the defendant, the Roman Catholic Diocese of
Nashville.  The lawsuits were consolidated for certain pretrial
purposes and also for purposes of appellate review.  The trial court
denied in part the plaintiffs' motion to compel the defendant to
provide answers to discovery and ultimately granted the defendant
summary judgment as to all plaintiffs.  On appeal, the Court of
Appeals, holding that reckless infliction of emotional distress must
be based on conduct that was directed at the plaintiff, affirmed
summary judgment for the defendant.  The Court of Appeals also
declined to consider the plaintiffs' appeal of the partial denial of
their motion to compel, regarding the issue as moot.  We granted the
plaintiffs' application for permission to appeal.  After carefully
considering the relevant authority, we hold that to be actionable,
reckless infliction of emotional distress need not be based upon
conduct that was directed at a specific person or that occurred in the
presence of the plaintiff.  Applying this holding, we conclude that
the defendant is not entitled to summary judgment.  Furthermore, in
light of our holding, we vacate the trial court's denial of the
plaintiffs' motion to compel.  We remand this case to the trial court
for further proceedings consistent with this opinion, including
reconsideration of the plaintiffs' discovery requests.

http://www.tba.org/tba_files/TSC/romancatholicdiocese.wpd

MICHAEL K. HOLT v. C. V. ALEXANDER, JR., M.D., and JACKSON RADIOLOGY
ASSOCIATES

Court:TCA

Attorneys:                          

Everett B. Gibson, Memphis, Tennessee, for the appellant, Michael K.
Holt.

Floyd S. Flippin and Paul B. Conley, III, Humboldt, Tennessee, for the
appellees, C. V. Alexander, Jr., M.D., and Jackson Radiology
Associates.

Judge: KIRBY

First Paragraph:

This is a medical battery case.  The plaintiff went to the hospital
suffering from a kidney stone, and was admitted for observation.  The
next morning, the plaintiff was told that he was scheduled to undergo
a procedure to remove the stone.  Soon, the defendant physician came
to see the plaintiff and told him that he would be performing an
invasive procedure which required significant recovery time. 
According to the plaintiff, the plaintiff then asked the defendant
physician whether his treating urologist had approved of the
procedure.  The defendant physician responded that he had spoken with
the urologist and that the urologist had approved the procedure.  The
plaintiff then signed a consent form, and the procedure was performed.
 The plaintiff later learned that the defendant physician had not
spoken with his urologist, and that the urologist did not approve the
procedure.  The plaintiff sued the defendant physician and his medical
group for medical battery.  The trial court granted summary judgment
in favor of the defendants.  The plaintiff now appeals.  We reverse,
finding that a genuine issue of material fact exists as to whether the
plaintiff's consent to surgery was vitiated by the defendant
physician's alleged misrepresentation of fact.

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

MICHAEL LYNN MARTINDALE v. MARGO MILLER MARTINDALE

Court:TCA

Attorneys:                          

Mark L. Agee and Jason C. Scott, Trenton, for the appellant Michael
Lynn Martindale

Mary Jo Middlebrooks and Betty Stafford Scott, Jackson, for the
appellee Margo Miller Martindale

Judge: KIRBY

First Paragraph:

This is a post-divorce alimony case. The parties were divorced in 1995
and the mother was awarded  rehabilitative alimony for seven years. 
In 2003, the trial court extended the rehabilitative alimony until the
youngest of the parties' four children graduated from high school. 
The extension of alimony was based on the demands of being the primary
residential parent for the parties' four young sons, two of whom were
found to have learning disabilities.  The father appealed the
extension of rehabilitative alimony.  We affirm.

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

STATE OF TENNESSEE  v.  RONALD BOWMAN
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender; Garland Ergueden (on
appeal), Assistant Public Defender; and Trent Hall (at trial),
Assistant Public Defender, for the appellant, Ronald Bowman.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and David Pritchard, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Ronald Bowman, was indicted for identity theft with the
intent to avoid a court appearance.  Defendant was convicted by a jury
of the charged offense.  Defendant was sentenced as a Range I standard
offender to serve three years in the workhouse.  In this appeal,
Defendant argues that: (1) the trial court erred by not instructing
the jury as to any lesser included offenses of identity theft; and (2)
the evidence is insufficient to support his conviction.  After a
thorough review, we affirm the judgment of the trial court.

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

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

STATE OF TENNESSEE v. RECARDO DALE

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender; Tony N. Brayton,
Assistant Public Defender; and Trent Hall, Assistant Public Defender,
for the appellant, Recardo Dale.

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

Judge: WOODALL

First Paragraph:

Following a jury trial, Defendant, Recardo Dale, was convicted of one
count of especially aggravated robbery and one count of attempted
first degree murder.  The trial court sentenced Defendant as a Range I
standard offender to twenty-five years for the especially aggravated
robbery conviction and twenty-five years for the criminal attempt
conviction.  The trial court ordered Defendant's sentences to be
served consecutively for an effective sentence of fifty years. 
Defendant appeals the sufficiency of the convicting evidence, the
lengths of his sentences, and the imposition of consecutive
sentencing.  Since the filing of the briefs, Defendant has also asked
us to consider the impact of the ruling in Blakely v. Washington, 542
U.S. ___, 124 S. Ct. 2531 (2004) on the lengths of his sentences. 
After a thorough review of the record, we affirm Defendant's
convictions and the imposition of consecutive sentencing.  Pursuant to
the holding in Blakely, we modify each sentence to twenty-two years,
for an effective sentence of forty-four years.

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

STATE OF TENNESSEE v. IMMANUEL ELDRIDGE HARNEY

Court:TCCA

Attorneys:                          

Keith R. Peterson, Pulaski, Tennessee (on appeal) and Lucy D. Henson,
Pulaski, Tennessee (at trial), for the appellant, Immanuel Eldridge
Harney.

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

Judge: TIPTON

First Paragraph:

The defendant, Immanuel Eldridge Harney, pled guilty to six counts of
sale of one-half gram or more of cocaine, a Class B felony, and
pursuant to a plea agreement, the Giles County Circuit Court sentenced
him to twelve years incarceration for five of the counts and three
years incarceration for the sixth count.  The court ordered that the
defendant serve one of his twelve-year sentences consecutively to the
other four and that he also serve the three-year sentence
consecutively to the five twelve-year sentences for an effective
sentence of twenty-seven years in the Department of Correction (DOC). 
The defendant appeals from the Giles County Circuit Court order
reducing his sentences by six months, claiming that the trial court
abused its discretion in failing to grant him a greater reduction. 
The state appeals, contending that the trial court was without
jurisdiction to reduce the defendant's sentence.  We hold the trial
court was without jurisdiction to reduce the defendant's sentence.  We
reverse the judgment of the trial court and remand the case for the
entry of a corrected judgment.

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

STATE OF TENNESSEE v. DOUGLAS V. KILLINS

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Douglas
V. Killens.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; John Carney, District Attorney General;
and Arthur Beiber, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This is an appeal as of right from a conviction of second degree
murder.  The Defendant, Douglas V. Killins, was indicted for first
degree murder and found guilty by jury verdict of the lesser-included
offense of second degree murder.  The trial court sentenced the
defendant as a Range II violent offender to thirty-eight years to be
served in the Department of Correction. On appeal, the Defendant
claims there was insufficient evidence for the jury to find him guilty
of second degree murder.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. GREGORY L. LOFTON
OPINION ON PETITION TO REHEAR

Court:TCCA

Judge: SMITH

First Paragraph:

In July of 1999, the appellant, Gregory Lofton, was convicted by a
jury of two counts of aggravated sexual battery and two counts of
sexual battery, for which he received an effective twelve (12) year
sentence.  The trial court sentenced the appellant to ten (10) years
on each count of aggravated sexual battery and one (1) year on each
count of sexual battery.  The trial court ordered the appellant to
serve the two ten-year sentences concurrently and ordered the two
one-year sentences to be served consecutive to each other and
consecutive to the concurrent ten-year sentences, for an effective
sentence of twelve (12) years.

OPINION ON PETITION TO REHEAR
http://www.tba.org/tba_files/TCCA/loftongregory.wpd

JESSIE D. McDONALD v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jessie D. McDonald, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; Victor S. (Torry) Johnson III, District
Attorney General; and Kathy Morante, Assistant District Attorney
General, for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

In 1973, Appellant, Jessie D. McDonald, was convicted, following a
jury trial, of the offense of obtaining property by false pretenses. 
Appellant filed a petition for writ of habeas corpus in the Criminal
Court of Davidson County, Tennessee in May 2004, attacking his
conviction.  According to his petition, the sentence for the
conviction expired in May 1979.  Upon direct appeal from the
conviction, the Court of Criminal Appeals reversed the conviction. 
However, the Supreme Court of Tennessee reversed the Court of Criminal
Appeals and reinstated the judgment.  See State v. McDonald, 534
S.W.2d 650 (Tenn. 1976).  Appellant has appealed from the trial
court's summary dismissal of his petition for writ of habeas corpus
relief.  The State has filed a motion for this court to affirm the
dismissal pursuant to Rule 20 of the Rules of the Tennessee Court of
Criminal Appeals.  Finding merit in the motion, we grant same and
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. LAWRENZO MENTON
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Brett B. Stein, Memphis, Tennessee, for the appellant, Lawrenzo
Menton.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Betsy Lynn Carnesale, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Shelby County jury convicted the defendant, Lawrenzo Menton, of two
counts of aggravated robbery and two counts of kidnapping, and the
trial court sentenced him to twelve years for each robbery with the
second count to be served consecutively to the first and six years for
each kidnapping with both counts to be served concurrently with each
other and with the second robbery count for an effective total
sentence of twenty-four years in the Department of Correction.  On
direct appeal, the defendant contended, among other things, that the
trial court erred in ordering consecutive sentencing.  This court
agreed and remanded the case to the trial court for a determination of
the basis for the imposition of consecutive sentences.  State v.
Lawrenzo Menton, No. W2002-00267-CCA-R3-CD, Shelby County, slip op. at
1 (Tenn. Crim. App. July 2, 2003), app. denied (Tenn. Dec. 15, 2003). 
At the resentencing hearing, the trial court once again ordered that
the defendant serve his robbery sentences consecutively.  The
defendant appeals, claiming that the trial court abused its discretion
in ordering consecutive sentencing and that the trial court's
imposition of consecutive sentences violates the rule announced in
Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004).  We hold
that the record is insufficient to justify the trial court's
imposition of consecutive sentences and that because the defendant's
case is still on direct appeal, plain error requires us to modify the
defendant's sentences in light of Blakely to eight years and six
months for each aggravated robbery conviction and three years and six
months for each kidnapping conviction.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/mentonlawrenzo_con.wpd

ALI ALVDU MOHAMMAD v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

David R. Whittaker, Nashville, Tennessee, for the appellant, Ali Alvdu
Mohammad.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; and Roger Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Ali Alvdu Mohammad, appeals the trial court's denial
of post-conviction relief.  The issues presented for review are
whether the petitioner's plea of guilt was knowingly and voluntarily
entered and whether the petitioner was denied the effective assistance
of counsel.  The judgment is affirmed.

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

KYNASTON SCOTT a.k.a. KYNASTON L. OLAWUMI v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jefre S. Goldtrap, Nashville, Tennessee, for the appellant, Kynaston
Scott a.k.a Kynaston L. Olawumi.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Lisa A. Naylor, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the dismissal of his petition for
post-conviction relief in which he asserted various instances of
ineffective assistance of counsel.  We affirm the dismissal of the
post-conviction petition because the record supports the
post-conviction court's findings.

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

TARUS A. SIRCY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Tarus A. Sircy, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General and Reporter; Victor S. Johnson, District
Attorney General; and Roger Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Tarus A. Sircy, appeals from the trial court's denial
of his petition seeking habeas corpus relief.  The State has filed a
motion requesting that this Court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. 
The State's motion is granted.  The judgment of the trial court is
affirmed.

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

DERRICK TAYLOR v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Paul J. Springer, Memphis, Tennessee, for the appellant, Derrick Taylor.

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

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Derrick Taylor, was indicted for, and pled guilty to,
aggravated assault.  The trial court sentenced him to seven years, as
a multiple offender, at thirty-five percent.  The Petitioner filed a
pro se petition for post-conviction relief, which the post-conviction
court dismissed.  The Petitioner now appeals contending that the
post-conviction court erred when it dismissed his petition because:
(1) his guilty plea was not knowingly and voluntarily entered; and (2)
he received ineffective assistance of counsel.  Finding no error in
the judgment of the post-conviction court, we affirm its dismissal of
the Petitioner's petition for post-conviction relief.

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

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