TBA YLD Presents: Who's Your Client (And Other Ethical Dilemmas)
March 29 - Memphis
March 30 - Nashville
March 21 - Knoxville

This fast-paced, three-hour ethics CLE includes presentations on
conflicts of interest and other issues relating to the representation
of elderly clients and conflicts of interest and other issues relating
to the representation of both large corporations and small businesses,
including family-owned and other closely-held corporations and their
principals.
It will also include a one-hour segment dealing with ethics in
mediation, covering topics relating to both the mediator and the
parties in mediation. Finally, it will include a short segment on the
proposed changes to the disciplinary reporting requirements and the
fee dispute rules.

Today's Opinions: February 16, 2005
Volume 11 — Number 031
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
03 New Opinion(s) from the Tennessee Court of Appeals
17 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


FRANK FETZER MILLS, JR., ET AL. v. LUIS L. WONG, M.D., ET AL.

Court:TSC

Attorneys:                          

Richard J. Myers, Memphis, Tennessee, for the appellants Frank Fetzer
Mills, Jr. and Rebecca Smith Mills.

William H. Haltom, Jr. and Joseph M. Clark, Memphis, Tennessee, for
the appellee Charter Lakeside Behavioral Health System, Inc.

Robert B.C. Hale, and John T. Moses, Memphis, Tennessee, for the
appellees Janet K. Johnson, M.D., Yvette Marion and Miriam Johnson, as
co-executors of the estate of Janet K. Johnson, M.D., and Kenneth F.
Tullis, M.D.

Michael L. Robb, and Kevin Baskette, Memphis, Tennessee, for the
appellee John F. O'Connell, M.D.

Judge: DROWOTA

First Paragraph:

The plaintiffs in this medical malpractice action filed their
complaint approximately three weeks after the three-year medical
malpractice statute of repose, Tenn. Code Ann. S 29-26-116(a)(3)
(1980), had expired.  The defendants moved to dismiss the action as
time-barred.  In response, the plaintiffs argued that their action
should not be time-barred because the primary plaintiff was mentally
incompetent during most of  the repose period.  Specifically, the
plaintiffs contended that due process requires tolling of the statute
of repose during the period of a plaintiff's mental incompetency. In
support of their contention, the plaintiffs relied on Seals v. State,
23 S.W.3d 272 (Tenn. 2000), and other precedents which provide for
tolling of the Post-Conviction Procedure Act statute of limitations,
Tenn. Code Ann. S 40-30-102(a) (2003), on the basis of a petitioner's
mental incompetency.  The lower courts granted summary judgment in
favor of  the  defendants.  We affirm.  We hold that due process does
not require tolling of the medical malpractice statute of repose
during the period of a plaintiff's mental incompetency.  The
legislature has the constitutional power to place reasonable temporal
limitations on rights of action in tort.  By contrast, a
post-conviction petition, despite its procedurally civil nature, is
available only to a person who is in custody following a criminal
conviction and sentence; such a petition thus implicates life and
liberty interests in a way that materially differentiates it from
civil actions.  Therefore, the precedents which require tolling for
mental incompetence in the context of post-conviction petitions are
inapposite to questions of tolling statutes of repose in civil tort
actions.

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

ERIN PRINTING AND PROMOTIONAL MARKETING, INC. v. CONVUM, LLC

Court:TCA

Attorneys:                          

Stephen M. Miller, Nashville, Tennessee, attorney for appellant, Erin
Printing and Promotional Marketing Inc.

No attorney on appeal for the appellee.

Judge: INMAN

First Paragraph:

The plaintiff claims that a balance is owed on a contract for the
production of catalogues.  For the reasons hereafter recited, we
affirm the dismissal of the case.

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

JOSEPH TYREE GLANTON, JR. ET AL. v. MYRTLE LORD ET AL.

Court:TCA

Attorneys:                          

Tusca R. S. Alexis, Nashville, Tennessee, for the appellants, Joseph
Tyree Glanton, Jr. a/k/a Songoleke Kotunu, Luvell L. Glanton, and
Jerry Glanton.

Frank M. Fly, Murfreesboro, Tennessee, for the appellees, Myrtle Lord,
William Glanton, Jr., Simon L. Glanton, Bobbine Wade, Bobby Smith, and
James A. Glanton.

Judge: KOCH

First Paragraph:

This consolidated appeal involves an intra-family dispute over
ancestral property.  Three brothers filed two separate suits in the
Chancery Court for Rutherford County to sell and partition real
property that had been owned by their deceased uncle and grandfather. 
They challenged the right of three of their cousins to inherit because
they were non-marital children and their paternity had not been
judicially established before their father's death.  The trial court
rejected the brothers' arguments and granted summary judgments in
favor of the cousins in both cases.  The brothers appealed both
judgments, and this court consolidated the appeals.  We affirm the
summary judgments in favor of the cousins in both cases and deny the
cousins' request for frivolous appeal damages.

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

SANDRA K. LEWIS v. MICHAEL F. LEWIS

Court:TCA

Attorneys:                          

Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Michael
F. Lewis.

Daryl M. South, Murfreesboro, Tennessee, for the appellee, Sandra K.
Lewis.

Judge: KOCH

First Paragraph:

This appeal involves a husband's obligation to provide rehabilitative
support to his former wife following the dissolution of their
twenty-one year marriage.  The wife filed a divorce complaint in the
Circuit Court for Rutherford County.  After an attempted
reconciliation failed, the husband filed an answer and counterclaim
for divorce.  The trial court conducted a bench trial and granted the
wife a divorce on the ground of adultery.  The trial court also
ordered the husband to pay the wife $1,000 per month in rehabilitative
spousal support for seven years.  The husband appealed.  We agree with
the trial court's decision to award the wife spousal support for seven
years; however we modify the judgment to clarify the support as
transitional support rather than rehabilitative.

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

ROBERT ALLEN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

William E. Phillips, II, Rogersville, Tennessee, for the appellant,
Robert Allen.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney
General; and Paige Collins, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner appeals the denial of his petition for post-conviction
relief from his convictions for aggravated robbery, aggravated
assault, and second degree murder, raising two claims: (1) that he was
denied the effective assistance of trial counsel; and (2) that his
guilty pleas were not knowing and voluntary.  Following our review, we
affirm the judgment of the post-conviction court.

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

MICHAEL BLACKBURN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Glen A. Isbell, Winchester, Tennessee, for the Appellant, Michael
Blackburn.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and Steven M. Blount, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Michael Blackburn, was convicted of first degree
premeditated murder, first degree felony murder, and aggravated
robbery, and the trial court sentenced him to life plus twenty years. 
This Court affirmed the convictions and sentences on appeal.  The
Petitioner subsequently filed a petition for post-conviction relief,
which the post-conviction court dismissed after a hearing.  On appeal,
the Petitioner contends that the post-conviction court erred because
he was denied the effective assistance of counsel.  Finding no
reversible error, we affirm the post-conviction court's judgment.

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

STATE OF TENNESSEE v. ROBERT LEWIS CARPENTER, JR.

Court:TCCA

Attorneys:                          

William S. Rhea, Somerville, Tennessee, for the appellant, Robert
Lewis Carpenter, Jr.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; and Elizabeth T. Rice, District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Robert Lewis Carpenter, Jr., filed for post-conviction
relief from his convictions for first degree murder, especially
aggravated kidnapping and especially aggravated robbery.  The trial
court dismissed the Defendant's petition as barred by the statute of
limitations.  This appeal followed.  We affirm the judgment of the
trial court.

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

EARL DAVID CRAWFORD v. RICKY BELL, Warden

Court:TCCA

Attorneys:                          

Earl David Crawford, Nashville, Tennessee, Pro Se.

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

Judge: WELLES

First Paragraph:

The Defendant, Earl David Crawford, appeals from the trial court's
dismissal 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/crawfordearld.wpd

STATE OF TENNESSEE v. MARGIE JEANETTE FARLEY

Court:TCCA

Attorneys:                          

Robert S. Peters, Winchester, Tennessee, for the appellant, Margie
Jeanette Farley.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Dale Potter, District Attorney
General; and Larry Bryant, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant was convicted by a Warren County jury of facilitation of
first degree felony murder, facilitation of especially aggravated
robbery, and criminally negligent homicide, which the trial court
merged into the facilitation of felony murder conviction.  The
defendant was sentenced as a Range I, standard offender to twenty-five
years on the facilitation of felony murder conviction and twelve years
on the facilitation of especially aggravated robbery conviction, to be
served consecutively, for an effective sentence of thirty-seven years
in the Department of Correction.  On appeal, the defendant raises the
following issues: whether the evidence was sufficient to sustain her
convictions and  whether the court erred by not instructing the jury
as to accessory after the fact and in imposing consecutive sentences. 
Following our review, we affirm the judgments of the trial court but
remand for entry of corrected judgments to reflect the correct offense
date.

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

JAMES THOMAS JEFFERSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Cynthia F. Burnes, Nashville, Tennessee, for the appellant, James
Thomas Jefferson.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Roger Moore, Assistant District Attorney
General, for the appellee, the State of Tennessee

Judge: WOODALL

First Paragraph:

Appellant, James Thomas Jefferson, appeals the trial court's denial of
his petition for post-conviction relief.  On appeal, Appellant argues
the trial court should have granted his petition for post-conviction
relief because (1) his trial counsel was ineffective for failing to
request a jury instruction as to lost or destroyed evidence, and (2)
his trial counsel was ineffective for failing to challenge the chain
of custody.  Because we find these issues to be without merit, we
affirm the decision of the trial court.

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

STATE OF TENNESSEE v. JAMES C. LEVEYE

Court:TCCA

Attorneys:                          

P. Brocklin Parks, Nashville, Tennessee, (on appeal) and Jonathan
Richardson, Nashville, Tennessee, (at trial) for the appellant, James
C. Leveye.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Bret Gunn, Assistant District Attorney General,
for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, James C. Leveye, entered a plea of nolo contendere to
possession of more than 0.5 grams of marijuana with intent to sell, a
Class E felony.  The trial court imposed the recommended sentence of
four years as a Range III persistent offender.  As a part of the plea
agreement, Defendant reserved a certified question of law under Rule
37(b)(2)(i) of the Tennessee Rules of Criminal Procedure arguing that
the trial court erred in not suppressing the marijuana and drug
paraphernalia discovered during a search of Defendant's person.  We
affirm the judgment of the trial court.

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

DERRICK McCLURE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

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

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Steve Crossnoe, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The petitioner, Derrick McClure, appeals from the post-conviction
court's dismissal of his petition for post-conviction relief.  He
contends that the post-conviction court erred in concluding that his
petition was untimely filed without conducting an evidentiary hearing
to determine whether due process considerations tolled the statute of
limitations.  On appeal, we reverse the decision of the
post-conviction court and remand the case for an evidentiary hearing
consistent with this opinion

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

CECIL MOSS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Roger E. Nell, Clarksville, Tennessee, for the appellant, Cecil Moss.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; John W. Carney, District Attorney General;
and Helen O. Young, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Cecil Moss, filed a petition for writ of habeas corpus
seeking relief from an allegedly void judgment, which the trial court
summarily dismissed.  On appeal, the Petitioner contends that the
habeas corpus court erred by not holding an evidentiary hearing and
that it erred when it dismissed his petition.  Finding no error in the
judgment of the habeas corpus court, we affirm its dismissal of the
Petitioner's petition for habeas corpus relief.

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

KEVIN M. RADLEY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kevin M. Radley, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Pamela Anderson, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Kevin M. Radley, appeals from the summary dismissal of
his petition seeking post- conviction relief.  The trial court
determined that the petition was time-barred and dismissed the
petition without an evidentiary hearing.  We affirm the judgment of
the trial court pursuant to Rule 20, Rules of the Court of Criminal
Appeals.

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

TIMOTHY TYRONE SANDERS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Haley E. Fults, Nashville, Tennessee, for the Appellant, Timothy
Tyrone Sanders.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
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, Timothy Tyrone Sanders, was convicted of possession of
over 0.5 grams of cocaine with the intent to sell.  This Court
affirmed his conviction and sentence on direct appeal.  The Petitioner
filed a petition for post-conviction relief, claiming that he received
ineffective assistance of counsel when, during jury selection at
trial, his trial counsel failed to object to a racially motivated
peremptory challenge by the State.  The post-conviction court
dismissed the petition, and we affirm the judgment of the
post-conviction court.

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

RICHARD SIMON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Richard
Simon.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Arthur Bieber, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Richard Simon, filed a "Petition for Declaratory Judgment
and/or Equitable Relief" and a pro se "Petition Seeking Nunc Pro Tunc
Order" requesting the trial court to modify or correct his sentence to
grant him retroactive sentence reduction credits.  The trial court
concluded that it was without jurisdiction to modify Defendant's
sentence, and dismissed his petitions.  Because there is no right of
appeal from the trial court's dismissal of Defendant's motions, we
dismiss the appeal.

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

DENICE SMITH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jason S. Randolph, Dandridge, Tennessee, and Lorraine Raymond,
Chattanooga, Tennessee, for the appellant, Denice Smith.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Al C. Schmutzer, Jr., District
Attorney General; and James B. Dunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner appeals the denial of her petition for post-conviction
relief from her first degree murder conviction, arguing that the
post-conviction court erred in finding that she received the effective
assistance of trial counsel.  She also contends she was denied the
effective assistance of post-conviction counsel.  Following our
review, we affirm the denial of the post-conviction petition

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

STATE OF TENNESSEE v. KELSEY DARWIN TREECE

Court:TCCA

Attorneys:                          

Gary F. Antrican, District Public Defender, Somerville, Tennessee, for
the appellant, Kelsey Darwin Treece.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; and Elizabeth T. Rice, District Attorney
General, for the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

Following a jury trial, the defendant, Kelsey Darwin Treece, was
convicted of one count of delivery of a Schedule II controlled
substance (hydromorphone) and was sentenced to serve fifty months as a
Range I offender in the Department of Correction.  On appeal, the
defendant argues that the evidence is insufficient to support his
conviction.  Upon review of the record and the parties' briefs, we
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. FERNANDO DEANDRA VAUGHN

Court:TCCA

Attorneys:                          

Charles R. Bobbitt, Jr., Hendersonville, Tennessee, for the appellant,
Fernando Deandra Vaughn.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; Lawrence R. Whitley, District Attorney
General; and Dee Gay, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Fernando Deandra Vaughn, appeals the revocation of his
probation, arguing that the trial court erred by not waiting for the
disposition of the drug charges against him before revoking his
probation on the basis of those charges.  Following our review, we
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. RODNEY WELCH

Court:TCCA

Attorneys:                          

Tom W. Crider, District Public Defender, Trenton, Tennessee, for the
appellant, Rodney Welch.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General;  Garry G. Brown, District Attorney
General; and William Bowen, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The defendant, Rodney Welch, pled guilty to unlawful possession of .5
grams or more of cocaine with the intent to sell, a Class B felony,
and was sentenced to eight (8) years, as a Range I standard offender,
with six (6) months to be served in confinement and the balance to be
served in the Community Corrections Program.  The trial court
subsequently revoked the defendant's community corrections sentence
and re-sentenced the defendant to eleven (11) years in the Tennessee
Department of Correction.  On appeal, the defendant challenges the
trial court's revocation of his community corrections sentence and
re-sentence of eleven (11) years in the Tennessee Department of
Correction.  Upon review, we affirm the judgment of the trial court

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

STATE OF TENNESSEE v. PRESTON WILLIAMS

Court:TCCA

Attorneys:                          

Brett B. Stein, Memphis, Tennessee, for the Appellant, Preston
Williams.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Thomas Henderson, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Preston Williams pleaded guilty to six crimes, for which he was
sentenced as a Range I, standard offender and received an effective
eight-year sentence.  Aggrieved of the trial court's refusal to
suspend his sentence, the defendant now appeals his sentence.  After a
thorough review of the record and applicable law, we affirm the
decision of the lower court.

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

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