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Today's Opinions: January 21, 2005
Volume 11 — Number 013
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
09 New Opinion(s) from the Tennessee Court of Appeals
08 New Opinion(s) from the Tennessee Court of Criminal Appeals
05 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 RE: ESTATE OF ROY W. BARNETT, DECEASED

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter, Sue A. Sheldon, Senior
Counsel, Nashville, TN, for Appellant, Bureau of Tenncare

C. Thomas Hooper, Brownsville, TN, for Appellee, Estate of Roy W.
Barnett

Judge: HIGHERS

First Paragraph:

This appeal arises out of a claim filed against Decedent's estate by the
Bureau of TennCare.  Decedent's estate filed an exception to the claim
arguing that such claim was barred because Decedent was not provided
with notice of the State of Tennessee's recovery provisions as required
by section 71-5-118(l) of the Tennessee Code.  The trial court found
that the Bureau of TennCare's claim was barred on the basis that no
written notice of the State's recovery provisions was provided to
Decedent or his family members.  The Bureau of TennCare brought the
instant appeal to this Court, and, for the following reasons, we
reverse.

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

ANNETTE MARIE THOMPSON BULICK v. RICHARD LEE THOMPSON, JR.
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Gail R. Sevier and Vicki J. Singh of Memphis for Appellant, Richard Lee
Thompson, Jr.

S. Denise McCrary and Mitzi C. Johnson of Memphis for Appellee, Annette
Marie Thompson Bulick

Judge: CRAWFORD

First Paragraph:

Father/Appellant filed a  Petition in Opposition to Mother's Relocation
with the Minor Child.  Trial court found that parents did not exercise
substantially equal parenting time under the Parental Relocation
Statute, T.C.A. S 36-6-108, and allowed Mother/Appellee to move with the
minor child.  Father appeals.  We affirm.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/bulickannettemt_con.wpd

NOEL CRAWLEY and JOSEPHINE CRAWLEY v. HAMILTON COUNTY, TENNESSEE

Court:TCA

Attorneys:                          

Marvin Berke, Chattanooga, Tennessee, for Appellant.

R. Dee Hobbs, Special Counsel for Hamilton County Sheriff's Department,
Chattanooga, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

Plaintiffs' action for damages against defendant was dismissed by
summary judgment on grounds that "fringe benefits" provided by defendant
was plaintiff's exclusive remedy.  We vacate the summary judgment.

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

EFFIE L. HAYES v. OPAL M. SHAW

Court:TCA

Attorneys:                          

Effie Louise Hayes, pro se Appellant.

George L. Foster, Chattanooga, Tennessee, for the Appellee Opal M. Shaw.

Judge: SWINEY

First Paragraph:

This lawsuit involves claims by Effie L. Hayes that she lost her house
after being defrauded by Roger Strutton.  Ms. Hayes has lost each and
every lawsuit wherein she has made these allegations in the past,
including two in the Hamilton County General Sessions Court, two (now
three) in the Hamilton County Circuit Court, and one in the United
States District Court for the Eastern District of Tennessee.  This is
the third appeal this Court has considered of these same claims by Ms.
Hayes.  We have issued two previous opinions affirming the dismissal of
her claims, one in 2002 and another in 2003.  The only difference in
this lawsuit and the half dozen previous lawsuits is that the property
now is owned by Ms. Opal Shaw.  Ms. Hayes does not claim Ms. Shaw did
anything wrong.  Instead, she again makes the same allegations about how
she allegedly was defrauded by Mr. Strutton, and now wants the current
owner, Ms. Shaw, to return the property to her.  The Circuit Court once
again dismissed the lawsuit based on principles of res judicata and
collateral estoppel.  We affirm ... again.

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

JOHN JAY HOOKER v. BILL PURCELL

Court:TCA

Attorneys:                          

John Jay Hooker, Nashville, Tennessee, Pro Se.

Lora Barkenbus Fox and John L. Kennedy, Nashville, Tennessee, for the
appellee, Mayor Bill Purcell.

Judge: CLEMENT

First Paragraph:

Plaintiff appeals the denial of his Tenn. R. Civ. P. 60.02(3) motion by
which he sought to be relieved from a final judgment that dismissed his
complaint for failing to state a claim upon which relief could be
granted.  Plaintiff argues that the order dismissing his action was
"void" because the trial court lacked jurisdiction to dismiss his
action.  We affirm.

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

SANDRA CLAUDINE MORROW HOWARD v. MARK ANTHONY HOWARD

Court:TCA

Attorneys:                          

Randy G. Rogers, Athens, Tennessee, for Appellant.

B. Prince Miller, Jr., Cleveland, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

The Trial Court's classification, evaluation and division of marital
property was appealed by the husband.  We affirm the Judgment of the
Trial Court.

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

JACKSON ENERGY AUTHORITY v. WILLIAM T. DIAMOND, JR.

Court:TCA

Attorneys:                          

J. B. "Buddy" Glassman, Jackson, Tennessee, for the appellant, William
T. Diamond, Jr.

Timothy N. Thompson, Knoxville, Tennessee, for the appellee, Jackson
Energy Authority.

Judge: KIRBY

First Paragraph:

This case involves the timeliness of an appeal from General Sessions
Court to Circuit Court. The plaintiff utility company sued the defendant
building owner in General Sessions Court for past due utility payments. 
On July 28, 2003, the General Sessions Court entered a judgment in favor
of the plaintiff.  On August 1, 2003, the defendant filed a petition to
rehear, seeking to have the judgment set aside.  On August 6, 2003, the
General Sessions Court denied the petition to rehear.  On August 18,
2003, the defendant filed a notice of appeal for a de novo review in
Circuit Court.  The Circuit Court dismissed the appeal on the basis that
it was not filed within ten days of the final General Sessions judgment
entered on July 28, 2003.  The defendant now appeals that decision,
arguing that the ten-day time limitation was tolled by his General
Sessions petition to rehear.  We affirm, concluding that the time
limitation for filing an appeal to Circuit Court is not tolled by a
petition to rehear filed in General Sessions, because no statute grants
the General Sessions Court authority to hear such a petition to rehear.

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

J. D. LEE, ET AL. v. STATE VOLUNTEER MUTUAL INSURANCE COMPANY, INC., ET
AL.

Court:TCA

Attorneys:                          

Thomas L. Rasnic, Kingsport, Tennessee, for the appellants, J. D. Lee;
David C. Lee; and Lee, Lee & Lee.

Amelia G. Crotwell, Knoxville, Tennessee, for the appellees, L. Martin
McDonald, individually;  and L. Martin McDonald; Farrell A. Levy; and
Charles G. Taylor; III d/b/a McDonald, Levy & Taylor.

Judge: KOCH

First Paragraph:

This appeal involves a dispute among lawyers following the settlement of
a medical malpractice case.  The two lawyers originally retained to
represent the plaintiffs filed suit in the Circuit Court for Knox County
against five law firms, seven lawyers, and one insurance company
alleging, among other things, that the defendants had tortiously
interfered with their contract with their clients.  After the trial
court granted the defendants' Tenn. R. Civ. P. 12.02(6) motion to
dismiss, the plaintiff lawyers filed a "petition to rehear" requesting
permission to file a substantially pared down amended complaint against
two of the defendant lawyers and law firms.  The trial court denied the
"petition to rehear" after concluding that the proposed amended
complaint also failed to state a claim upon which relief could be
granted.  The plaintiff lawyers assert on this appeal that the trial
court erred by denying their request for a continuance prior to the
first hearing on the defendants' Tenn. R. Civ. P. 12.02(6) motions and
by denying their "petition to rehear."  We affirm both the denial of the
continuance and the denial of the "petition to rehear."  We also find
that this appeal is frivolous in accordance with Tenn. Code Ann. S
27-1-122 (2000).

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

MICHAEL UNDERWOOD v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:                          

Michael Underwood, appellant, pro se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Michael B. Schwegler, Assistant Attorney General,
Nashville, Tennessee, for the appellee, Tennessee Department of
Correction.

Judge: KIRBY

First Paragraph:

This is a petition for certiorari seeking review of the department's
disciplinary proceedings.  The petitioner, a prisoner, was disciplined
for abuse of his telephone privileges.  He appealed the disciplinary
charges against him through the administrative process, with no success.
 He then filed the petition for certiorari in the trial court below,
seeking review of the adverse administrative decisions against him.  The
trial court dismissed the petition for certiorari, because it was not
verified and it did not allege that it was the first application for the
writ as required under T.C.A. S 27-8-106.  The petitioner now appeals
that decision.  We affirm.

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

STATE OF TENNESSEE, ex RELATION of DARRON CLAYTON v. TONY PARKER, WARDEN

Court:TCCA

Attorneys:                          

Charles Ronald Curbo, Memphis, Tennessee, for the appellant, Darron
Clayton.

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

Judge: MCLIN

First Paragraph:

The Petitioner, Darron Clayton, appeals the trial court's denial of his
petition for 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.  Because
Petitioner has failed to show either that his sentence has expired or
that the trial court was without jurisdiction, we grant the State's
motion and affirm the judgment of the lower court.

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

ROBERT GENTRY GALBREATH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Richard McGee and Jodie A. Bell, Nashville, Tennessee, for the
Appellant, Robert Gentry Galbreath.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William M. McCown, District Attorney
General; and Michael D. Randles, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Robert Gentry Galbreath, was convicted by a jury of
twelve counts of obtaining a prescription drug by fraud.  The trial
court sentenced the Petitioner to thirty-six years, as a career
offender at sixty percent. On direct appeal, this Court affirmed the
Petitioner's convictions and sentence.  The Petitioner filed a
petition for post-conviction relief, which the post-conviction court
dismissed.  The Petitioner now appeals, contending that the
post-conviction court erred because: (1) the trial court improperly
failed to instruct the jury on the lesser-included offense of
facilitation; (2) his trial counsel was ineffective; (3) his appellate
counsel was ineffective; and (4) his sentence amounts to cruel and
unusual punishment. Because we have concluded that the Petitioner's
counsel was ineffective at trial and on appeal, for failing to request
a jury instruction on the lesser-included offense of facilitation and
failing to appeal the jury instruction issue; we reverse the
post-conviction court's dismissal of the Petitioner's petition for
post-conviction relief, reverse the original convictions, and remand
for a new trial.

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

STATE OF TENNESSEE v. FRANK D. GRUNDY

Court:TCCA

Attorneys:                          

William Bradley Lockert, III, District Public Defender; and
Christopher L. Young, Assistant District Public Defender, for the
appellant, Frank D. Grundy.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General, and Dan Mitchum Alsobrooks, District
Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

The trial court found that Defendant, Frank D. Grundy, violated the
terms of his eight-year community corrections sentence.  It ordered
him to serve one year "day for day" in the county jail before serving
the remainder of his community corrections sentence.  On appeal,
Defendant argues the trial court's imposition of "day for day"
sentencing was improper.  We conclude the trial court imposed an
illegal sentence and remand for entry of an appropriate amended order.

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

STATE OF TENNESSEE v. JOEL OLIN KNIGHT

Court:TCCA

Attorneys:                          

Joe L. McLerran, Cookeville, Tennessee, for the appellant, Joel Olin
Knight.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and Benjamin W. Fann, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

On appeal, the defendant asserts a breach of due process based on the
absence of the violation warrant from the record at the time of his
probation violation hearing.  After careful review, we conclude that a
copy of the warrant was admissible, under Tennessee Rule of Evidence
1003, to prove the defendant had notice of the claimed violations and
the evidence against him.  We affirm the judgment of the trial court.

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

MICHAEL S. NEELY v. RICKY BELL, Warden

Court:TCCA

Attorneys:                          

Michael S. Neely, Riverbend Maximum Security Institution, Nashville,
Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Pamela S. Anderson, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner appeals the summary dismissal of his petition for writ
of habeas corpus, arguing that the trial court imposed a sentence
which was illegal and void because it was ex post facto; that trial
counsel was ineffective; and that his pleas of guilty were not
voluntary and knowing.  Following our review, we affirm the judgment
of the trial court dismissing the petition

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

STATE OF TENNESSEE v. LINDA H. OVERHOLT

Court:TCCA

Attorneys:                          

Ardena J. Garth, District Public Defender; Karla Gothard, Assistant
District Public Defender; and Donna Robinson Miller, Assistant
District Public Defender (on appeal), for the Appellant, Linda H.
Overholt.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman
McIntire, Assistant Attorney General; William H. Cox, III, District
Attorney General; and Mary Sullivan Moore, Assistant District Attorney
General, for the Appellee, State of Tennessee

Judge: WITT

First Paragraph:

Convicted of five counts of selling marijuana, the defendant, Linda H.
Overholt, appeals and challenges the sufficiency of the convicting
evidence, the prosecutor's trial conduct, various evidentiary rulings
of the trial court, the denial of judicial diversion, and the trial
court's sentencing determinations.  Because the record supports the
judgments of the trial court, we affirm the convictions and sentences.

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

RALPH E. SCATES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Ralph E. Scates, pro se, Beaver, West Virginia.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; and Randall E. Nichols, District Attorney
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Ralph E. Scates, pled guilty to two counts of theft,
attempted misdemeanor theft, and simple possession of marijuana.  He
was placed on unsupervised probation for eleven (11) months and
twenty-nine (29) days.  In January of 2004, the appellant filed a
petition to expunge and seal records in both the cases in which he
pled guilty and in previous cases, including several that had been
dismissed or in which the grand jury had not returned a true bill. 
The trial court dismissed the petition.  The appellant filed a timely
notice of appeal challenging the trial court's dismissal of the
petition.  Because the trial court properly denied the petition for
expungement as to the cases which resulted in convictions, we affirm
that portion of the trial court's judgment.  Because the trial court
improperly denied expungement of the records relating to cases which
were dismissed or where a no true bill was returned by the grand jury,
we remand the case to the trial court for expungement of those
records.  Accordingly, we affirm in part, reverse in part, and remand
the case to the trial court.

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

STATE OF TENNESSEE v. MICHAEL EDWARD THOMASON

Court:TCCA

Attorneys:                          

William B. Lockert, III, District Public Defender; and Steve Stack,
Assistant Public Defender, for the appellant, Michael Edward Thomason.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney
General; and Robert S. Wilson, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Michael Edward Thomason, was convicted by a Cheatham
County Circuit Court jury of first degree premeditated murder and
sentenced to life imprisonment.  In a timely appeal to this court, he
argues that the trial court erred in its instructions on self-defense;
the evidence was insufficient to show a premeditated murder; and the
prosecutor made an improper comment in his closing arguments to the
jury.  Finding no reversible error, we affirm the judgment of the
trial court.

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

Sale of Memphis Light, Gas and Water

Date: January 20, 2005

Opinion Number: 05-006

http://www.tba.org/tba_files/AG/2005/op6.pdf

Compensation of Gibson County Juvenile Court Clerk

Date: January 20, 2005

Opinion Number: 05-007

http://www.tba.org/tba_files/AG/2005/op7.pdf

Process to Issue for Juvenile Delinquents' Escape

Date: January 20, 2005

Opinion Number: 05-008

http://www.tba.org/tba_files/AG/2005/op8.pdf

Court Jurisdiction After the Defendant Is Bound Over to the Grand Jury

Date: January 20, 2005

Opinion Number: 05-009

http://www.tba.org/tba_files/AG/2005/op9.pdf

Incest

Date: January 20, 2005

Opinion Number: 05-010

http://www.tba.org/tba_files/AG/2005/op10.pdf

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