2004: Tennessee Supreme Court in Review
What were the key decisions coming out of the Tennessee Supreme Court
during 2004? And what do you need to learn from them for your
practice? A new TennBarU online course has the answers. Tennessee
Attorneys Memo Editor and TennBarU faculty member Virginia Mayo takes
you through the court year, analyzing cases dealing with torts,
workers' compensation, contracts, taxation, property, family law,
criminal law, criminal procedure, and post-conviction relief.

Today's Opinions: February 22, 2005
Volume 11 — Number 034
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.
02 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
05 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/millsfrankfjr.wpd

MICHAEL R. MOODY v. STATE OF TENNESSEE

Court:TSC

Attorneys:                          

Richard L. Gaines, Knoxville, Tennessee, for the Appellant, Michael R.
Moody.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Brent C. Cherry, Assistant Attorney General,
for the Appellee, State of Tennessee.

Judge: HOLDER

First Paragraph:

The petitioner, Michael Robert Moody, filed a "Motion to Correct
Errors in Judgment" in which he claimed that the two sentences
requiring him to register as a sexual offender are illegal.  The trial
court dismissed the motion, and the Court of Criminal Appeals denied
Moody's request for discretionary review through the common law writ
of certiorari. We conclude that the writ of certiorari is not
available to review the denial of a motion to correct an illegal
sentence and that a habeas corpus action, not a motion, is the proper
procedure for collaterally attacking an illegal sentence. 
Accordingly, we affirm the judgment of the Court of Criminal Appeals.

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

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_022205.wpd

RENA MAE BLAIR v. ROLLIN C. BROWNSON, ET AL.

Court:TCA

Attorneys:                          

Kelley Hinsley, Morristown, Tennessee, for the appellants, Rollin C.
Brownson and wife, Mary Ann Brownson.

Lori L. Jessee, Morristown, Tennessee, for the appellee, Rena Mae
Blair.

Judge: SUSANO

First Paragraph:

This action for specific performance was filed following a foreclosure
sale of real property.  The foreclosure was prompted by a prior
purchaser's default.  Rena Mae Blair ("the plaintiff"), the holder of
the first deed of trust in default, acting through her daughter and
substitute trustee, Linda Caraway, advertised and conducted the
foreclosure sale with the assistance of an attorney.  At the sale, the
property was sold to Rollin C. Brownson and his wife, Mary Ann
Brownson ("the defendants") for $77,642.05.  There was no writing at
the time of the sale memorializing its terms, but Mr. Brownson did
provide Ms. Caraway with an earnest money check.  Subsequent to the
sale, the attorney conducting the sale drafted a deed which purports
to set forth the terms of the sale.  The defendants refused to go
through with the sale when they learned that the property was reputed
to be worth only $50,000.  In response to the plaintiff's complaint
for specific performance, the defendants raised the statute of frauds
as an affirmative defense, contending that there was no written
memorandum reflecting the terms of the parties' oral agreement. 
Following a bench trial, the court below granted the plaintiff's
request for specific performance.  The defendants appeal.  We affirm

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

BECKY ELLIOTT v. JAMES G. NEELEY

Court:TCA

Attorneys:                          

Becky Elliott, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Warren A. Jasper,
Assistant Attorney General, for the appellee, James G. Neeley,
Commissioner of the Tennessee Department of Labor and Workforce
Development.

Judge: SUSANO

First Paragraph:

This is an unemployment compensation case.  The Tennessee Department
of Labor and Workforce Development ("the Department") denied the claim
of Becky Elliott for unemployment benefits, finding that the plaintiff
quit her job without good cause connected to her employment.  After
exhausting her administrative remedies to no avail, the plaintiff sued
James G. Neeley, the Commissioner of the Department, seeking judicial
review in the trial court, which court affirmed the Department's
denial of benefits.  The plaintiff appeals, essentially arguing that
the Department's decision is not supported by substantial and material
evidence.  We affirm.

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

VIRGIL E. RUSHING v. WALTER E. CROCKETT, SR.

Court:TCA

Attorneys:                          

Mark Allen Rassas, Clarksville, Tennessee, for appellant, Virgil E.
Rushing.

Daniel Lynch Nolan, Jr. And Michael R. McDonner, Clarksville,
Tennessee, for intervener/appellee, Bi-County Solid Waste Management.

Judge: INMAN

First Paragraph:

This appeal questions the apportionment of attorney fees and costs. 
The plaintiff suffered a compensable on-the-job injury and by the
negligence of a third party.  He recovered workers' compensation
benefits, and settled his tort action thereafter.  The employer's
subrogation  rights were stipulated, but the parties could not agree
upon a proportional allocation of fees.

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

STEVEN L. ANDERSON v. WARDEN GLEN TURNER AND STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Steven L. Anderson, pro se.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: HAYES

First Paragraph:

The Petitioner Steven L. Anderson 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.  
Petitioner has failed to allege any ground that would render the
judgment of conviction void.  Accordingly, we grant the State's motion
and affirm the judgment of the lower court.

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

RANDALL EDWIN COBB v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Randall Edwin Cobb, Northwest Correctional Complex, Tiptonville,
Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and James Cannon, Assistant District Attorney, for the
appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The petitioner, Randall Edwin Cobb, appeals pro se from the order of
the Obion County Circuit Court dismissing his petition for habeas
corpus relief for failure to state a claim.  The petitioner pled
guilty in June 2000 to one count for possession of cocaine, a Schedule
II controlled substance, with the intent to sell within 1000 feet of a
school zone, a Class B felony, and on two counts for sale of a
controlled substance within 1000 feet of a school zone, each a Class B
felony.  In this appeal, he challenges: (1) whether the trial court
properly dismissed his habeas corpus petition; (2) whether the
petition stated a claim for relief; (3) whether the judgments are
void; and (4) whether the indictments were defective.  After reviewing
the matter, we affirm the decision of the trial court, but remand for
entry of corrected judgments.

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

KENNETH B. WHITE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Theresa McCusker and Steven Jones, Assistant District
Attorneys General, for the appellant, State of Tennessee.

James E. Thomas (on appeal) and Lee Gerald (at trial), Memphis,
Tennessee, for the appellee, Kenneth B. White.

Judge: WILLIAMS

First Paragraph:

The petitioner challenges the trial court's denial of a delayed appeal
by which to present his petition for writ of error coram nobis.  Upon
review of the record, we conclude that the petitioner's due process
right to appeal was not violated simply because he failed to take
action to secure representation.  The record reflects that the
petitioner was not declared indigent and that the onus in obtaining
representation rested with him.  His coram nobis petition was outside
the applicable statute of limitations and was properly dismissed.  We
affirm.

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

MARQUEZ WINTERS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

James E. Thomas, Memphis, Tennessee, for the appellant, Marquez
Winters.

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

Judge: OGLE

First Paragraph:

The petitioner, Marquez Winters, was found guilty by a jury in the
Shelby County Criminal Court of attempted first degree murder and
aggravated kidnapping.  He received a total effective sentence of
thirty-seven years incarceration in the Tennessee Department of
Correction.  Subsequently, the petitioner filed a petition for
post-conviction relief, claiming that he received the ineffective
assistance of trial and appellate counsel.  The post-conviction court
denied the petition, and the petitioner now appeals that ruling.  Upon
review of the record and the parties' briefs, we affirm the judgment
of the post-conviction court.

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

STATE OF TENNESSEE v. MICHAEL WOODS
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Gerald Skahan, Memphis, Tennesssee, Attorney for the Appellant,
Michael Woods.

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

Judge: HAYES

First Paragraph:

The Appellant, Michael Woods, was convicted by a Shelby County jury of
second degree murder and sentenced to twenty-five years imprisonment. 
On appeal, Woods raises four issues for our review:  (1) whether the
evidence is sufficient to support the conviction; (2) whether the
trial court erred by allowing the State to use Woods' prior criminal
convictions for purposes of impeachment when the convictions were more
than ten years old; (3) whether the trial court erred by refusing to
allow Woods to present proof that two other co-defendants had been
convicted of the crime; and (4) whether the sentence is excessive. 
After review of the record, we find that because Woods' motion for new
trial was not timely filed, issues 2 and 3 are waived.  After review
of issues 1 and 4, we find no error and affirm the conviction and
resulting sentence.

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

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

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