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Today's Opinions: January 24, 2005
Volume 11 — Number 014
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
06 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

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


B. F. NASHVILLE, INC. v. CITY OF FRANKLIN, TENNESSEE

Court:TCA

Attorneys:                          

George H. Nolan; Jonathan D. Rose, Nashville, Tennessee, for the
appellant, B. F. Nashville, Inc.

Douglas Berry, Nashville, Tennessee, for the appellee, City of
Franklin, Tennessee.

Judge: COTTRELL

First Paragraph:

Three years after its free-standing advertising sign was damaged in a
thunderstorm and removed, the owner of a restaurant in Franklin
decided to erect a replacement sign.  Although the restaurant had not
proceeded with its plans to the point of applying for a permit, it was
notified by the city that it must remove the support posts remaining
from the original sign.  That notice also stated that the old sign
could not be reconstructed since it did not conform to a new sign
ordinance. The restaurant owner filed a complaint for declaratory
judgment, seeking a declaration that it had a vested right under Tenn.
Code Ann. S 13-7-208 to erect a non-conforming replacement sign.  The
trial court dismissed the complaint.  We hold that although the
protections of Tenn. Code Ann. S 13-7-208 apply generally to on-site
advertising signs, the restaurant was not entitled to a declaratory
judgment that its sign could be reconstructed without regard to the
city's sign ordinance.  We affirm the trial court.

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

CITIZENS FIRST BANK v. ANDREW N. HALL

Court:TCA

Attorneys:                          

Billy P. Sams, Oak Ridge, Tennessee, for appellant.

James Frank Wilson, Wartburg, Tennessee, for appellee.

Judge: FRANKS

First Paragraph:

The Trial Court entered Judgment for plaintiff on loan to defendant
and set off the amounts of certain forged checks on defendant's
accounts with bank against plaintiff's recovery.  We affirm.

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

JANNA SHEYA FALK v. GEARY FALK

Court:TCA

Attorneys:                          

Gary M. Williams, Hendersonville, Tennessee, for the appellant, Geary
Falk.

David W. Garrett, Nashville, Tennessee, for the appellee, Janna Sheya
Falk.

Judge: FARMER

First Paragraph:

This is a divorce case involving an invalid marriage resulting from
the existence of a subsisting previous marriage at the time of the
parties' marriage ceremony in 1995.  At the time of the parties'
marriage ceremony, the purported wife's divorce from a previous
marriage was still pending.  The wife's divorce from her prior
marriage did not become final until three and one-half months
following the parties' marriage ceremony.  The parties lived together
as husband and wife until the wife filed for divorce in 2003.  The
trial court declared the parties divorced pursuant to section
36-4-101(2) of the Tennessee Code.  The trial court then classified
the parties' "marital" and separate property, making an equitable
division of the "marital" property.  The husband appeals the trial
court's order granting a divorce and awarding certain property to the
wife.  For the reasons stated herein, we affirm in part, reverse in
part, and remand to the trial court for further proceedings consistent
with this opinion.

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

HANNAH HARRIS, ET AL. v. BAPTIST MEMORIAL HEALTH CARE CORPORATION, ET
AL.

Court:TCA

Attorneys:                          

Nancy H. Schiller, Memphis, TN, for Appellants

Harold W. McLeary, Jr., Katherine L. Frazier, Memphis, TN, for
Appellee, James A. Wilson, III, M.D.

Judge: HIGHERS

First Paragraph:

Following the death of their premature daughter, the mother and father
filed a medical malpractice lawsuit against several defendants,
including the mother's treating physician.  The trial court granted
the doctor's motion for summary judgment.  We affirm since our supreme
court has expressly stated that Tennessee does not recognize a cause
of action for loss of chance.

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

ASBERT F. JOSEPH v. EX PARTE

Court:TCA

Attorneys:                          

Asbert Joseph, pro se.

Ex parte (name change).

Judge: INMAN

First Paragraph:

The appellant filed an ex parte petition for name change, but failed
to pay a portion of the filing fee (20%).  The petition was dismissed.
 We affirm.

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

AMY OWENS v. RONNIE OWENS

Court:TCA

Attorneys:                          

W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellant, Ronnie
Owens.

David L. Hamblen, Union City, Tennessee, for the appellee, Amy Owens

Judge: FARMER

First Paragraph:

This is a divorce action.  The trial court designated Wife as the
primary residential parent of the parties' minor child and awarded
Husband visitation.  It also awarded wife alimony of $415 per month
for 16 years.  Husband appeals.  We affirm designation of Wife as the
primary residential parent and the award of visitation to Husband.  We
modify the alimony award to an award of rehabilitative alimony of $415
per month for a period of five years.

http://www.tba.org/tba_files/TCA/owensamy.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/claytondarron.wpd

STATE OF TENNESSEE v. KENNY LYNN EVANS

Court:TCCA

Attorneys:                          

Thomas H. Strawn, Dyersburg, Tennessee, for the Appellant, Kenny Lynn
Evans.

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; and C. Phillip Bivens, District Attorney
General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Kenny Lynn Evans, appeals the dismissal by the Dyer
County Circuit Court of his petition for post-conviction relief.  On
appeal, the petitioner argues that he was denied the effective
assistance of counsel at trial.  After review of the record, we affirm
the denial of post-conviction relief.

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

STATE OF TENNESSEE v. BERNARD J. HENRY
CONCURRING OPINION TO OPINION ORIGINALLY ISSUED 12/9/2004

Court:TCCA

Judge: HAYES

First Paragraph:

I join in affirming the defendant's convictions and the majority's
conclusion that the defendant's sentences require modification.

The majority opines that modification is compelled by the holding of
Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004).  For those
reasons expressed in State v. Carlos Eddings, No W2003-02255-CCA-R3-CD
(Tenn. Crim. App. at Jackson, June 2, 2004) (Hayes, J., dissenting), I
find any sentencing challenge under Blakely is now waived for failure
to object to the sentencing error at the trial level.  Tenn. R. App.
P. 36(a).  Irrespective of the defendant's reasons for not objecting,
it is abundantly clear that trial counsel may not forgo an objection
to a trial defect "simply because he thought objection would be
futile."  Engle v. Isaac, 456 U.S. 107, 130 n.35, 102 S. Ct. 1558,
1573 n.35 (1982) (citations omitted).  Futility cannot constitute
cause if it means simply that a claim was unacceptable to that
particular court at that particular time.  Id. Even a state court that
has previously rejected a constitutional argument may decide, upon
reflection, that the contention is valid.  Id. at 130, 102 S. Ct. at
1573.  Certainly the practice of presenting previously rejected claims
is clearly implanted in capital case litigation in this state.  I see
no valid reason to abandon well-established rules of appellate
procedure to accommodate an Apprendi/Blakely violation, particularly
in view of the Supreme Court's recent decision in United States v.
Cotton, 535 U.S. 625, 631-34, 122 S. Ct. 1781, 1785-87 (2002), which
held, post-Apprendi, that the defendant's claim of right to a trial
and finding by a jury on a fact to enhance the defendant's sentence
was forfeited because it was not raised at trial.  Nonetheless, after
de novo review, I find that the trial court's application of enhancing
factors (3), leader in the commission of the offense, (5) victim was
particularly vulnerable due to her age, and (6), victim's treatment
was exceptionally cruel, were applied in error.  The majority
concludes, and I agree, that factor (7) is also inapplicable. Although
the proof supports the application of factor (16), abuse of a position
of trust, I find that a sentence of twenty years for each conviction
is justified by the sentencing proof.

CONCURRING OPINION TO OPINION ORIGINALLY ISSUED 12/9/2004
http://www.tba.org/tba_files/TCCA/henrybernardj_con.wpd

STATE OF TENNESSEE v. MICHAEL E. JOHNSON, JR.

Court:TCCA

Attorneys:                          

John H. Henderson, District Public Defender, and Eugene Honea,
Assistant Public Defender, for the appellant, Michael E. Johnson, Jr.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Derek K. Smith, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals the trial court's denial of probation.  The
defendant pled guilty to a reduced charge of possession of marijuana
for resale and agreed to a six-year sentence as a Range I offender. 
Following a hearing to determine the manner of service, the trial
court denied probation and ordered the defendant to serve his sentence
in confinement.  Upon careful review, we affirm the trial court's
denial of probation; however, we remand the matter for the limited
purpose of entry of a corrected judgment.

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

SHAMAIN JOHNSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Charles E. Walker, Nashville, Tennessee, for the Appellant, Shamain
Johnson.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; and Roger
Moore, Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Shamain Johnson, appeals the dismissal of his petition
for post-conviction relief.  On appeal, Johnson collaterally
challenges his convictions for class B felony possession of cocaine
and two counts of sale of a counterfeit controlled substance, class E
felonies.  In support of his arguments, Johnson contends that:  (1)
his community corrections sentences, resulting from these convictions,
were not statutorily authorized; (2) his plea agreement, with regard
to his convictions for sale of a counterfeit controlled substance,
"constitutes a plea to a non-existent offense and is therefore void;"
and (3) his guilty pleas to the offenses were not knowingly or
voluntarily entered.  After review, we affirm the dismissal.

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

STACY DEWAYNE RAMSEY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Stacy Dewayne Ramsey, pro se, for the appellant.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; and John Wesley Carney, Jr., District
Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Appellant, Stacy Dewayne Ramsey, filed a petition for post-conviction
relief challenging his conviction for first degree murder and sentence
of life without the possibility of parole.  The petition was timely
filed.  Approximately two months after the petition was filed, the
post-conviction court entered an order summarily dismissing the
petition without a hearing.  Appellant has appealed from this order,
and the State concedes that the matter should be reversed and remanded
for proceedings in accordance with Post-Conviction Procedure Act.  We
agree and accordingly,  reverse the judgment of the post-conviction
court and remand this matter for proceedings in accordance with the
Post-Conviction Procedure Act.

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

RONNIE WEDDLE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); and Brigitte
Tubbs-Jones, Jackson, Tennessee (at trial and of counsel on appeal),
for the Appellant, Ronnie Weddle.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General; James G. Woodall, District Attorney
General; and Al Earls and Angela R. Scott, Assistant District
Attorneys General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Ronnie Weddle, appeals the dismissal by the Madison
County Circuit Court of his petitions for post-conviction relief.  On
appeal, the petitioner argues that he was denied the effective
assistance of counsel in connection with a previously negotiated plea
agreement that disposed of two narcotics-related offenses.  Upon
review of the record, we affirm the denial of post-conviction relief.

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

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