Quarterly Litigation Upate: Recent Developments in Litigation for
Tennessee Attorneys
March 25 Teleseminar

The TBA Litigation section presents this fast-paced, quarterly update
on recent developments in litigation for Tennessee attorneys. This
update will cover breaking developments in Commercial Law and Consumer
Protection, Contracts and Insurance. Listen in from the comfort of
your own office.

Today's Opinions: March 22, 2005
Volume 11 — Number 054
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
00 New Opinion(s) from the Tennessee Court of Appeals
09 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


STAUBACH RETAIL SERVICES-SOUTHEAST, LLC v. H. G. HILL REALTY CO.

Court:TSC

Attorneys:                          

Barbara Hawley Smith and Eugene N. Bulso, Jr., Nashville, Tennessee,
for the Defendant-Appellant, H. G. Hill Realty Co.

Brigid M. Carpenter and Glenn D. Tackett, Jr., Nashville, Tennessee,
for the Plaintiff-Appellee, Staubach Retail Services-Southeast, LLC.

Judge: HOLDER

First Paragraph:

We granted this appeal to determine whether an unexecuted brokerage
agreement incorporated into an executed lease constitutes an
enforceable contract, thereby requiring payment of a brokerage fee to
one of the real estate brokers who provided services pursuant to the
unexecuted agreement.  We conclude that all parties to the brokerage
agreement assented to its terms and that the brokerage agreement's
"occupancy" requirement was satisfied.  Accordingly, we hold that the
agreement is enforceable, and we affirm the Court of Appeals' award of
the unpaid commission to the real estate broker.

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

STATE OF TENNESSEE v. GUSTAVO CHAVEZ

Court:TCCA

Attorneys:                          

Guy T. Wilkinson, District Public Defender; Richard W. DeBerry,
Assistant District Public Defender, for the appellant, Gustavo Chavez.

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; Robert Radford, District Attorney General;
and Jerry W. Wallace, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The defendant, Gustavo Chavez, pled guilty to one count of aggravated
sexual battery, a Class B felony.  After conducting a sentencing
hearing, the trial court classified him as a Range I offender and
imposed a ten year sentence at 100% service in the Department of
Correction.  On appeal, the defendant challenges the length of the
sentence imposed by the trial court.  After reviewing the record and
the applicable law, we affirm the defendant's conviction.  However, in
light of Blakely v. Washington, 542 U.S. ----, 124 S. Ct. 2531 (2004),
we modify the defendant's sentence to an effective sentence of eight
years at 100% service.  We, therefore, remand the case for entry of a
judgment that is consistent with this opinion.

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

STATE OF TENNESSEE v.  STEPHEN LYNN HUGUELEY

Court:TCCA

Attorneys:                          

F. Michie Gibson, Jr. and T.J. Cross-Jones, Nashville, Tennessee, for
the appellant, Stephen Lynn Hugueley.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Michael Markham, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; Terry D. Dycus, and
Colin Campbell, Assistant District Attorneys General, for the
appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

A Hardeman County jury found the defendant, Stephen Lynn Hugueley,
guilty of first degree premeditated murder.  Following a separate
penalty phase, the jury found the presence of four statutory
aggravating circumstances and that these aggravators outweighed any
mitigating factors.  The jury subsequently imposed a sentence of
death.  On appeal, the defendant seeks review by this Court of both
his conviction for first degree murder and his sentence of death.  He
presents the following issues for review: (1) whether the trial court
erred in denying the defendant an individual and sequestered voir
dire; (2) whether the trial court erred in denying the defendant's
objection to the State's use of peremptory challenges based upon race
and gender; (3) whether the trial court erred in denying the
defendant's motion to excuse a potential juror for cause; (4) whether
the indictment failed to charge a capital offense; and (5) whether the
trial court failed to apply meaningful standards to ensure
constitutionally adequate proportionality review.  Finding no error,
we affirm the defendant's conviction of first degree murder and
sentence of death.

http://www.tba.org/tba_files/TCCA/hugueleystepl.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

STATE OF TENNESSEE v. STACY JOHNSON

Court:TCCA

Attorneys:                          

Paul K. Guibao (on appeal) and Robert Felkner (at trial), Memphis,
Tennessee, for the appellant, Stacy Johnson.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Michelle Kimbril-Parks, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Shelby County jury convicted the Defendant, Stacy Johnson, of two
counts of burglary of a building, two counts of theft of property over
$1,000, and eight counts of burglary of a motor vehicle.  The trial
court sentenced the Defendant to an effective sentence of thirty
years.  On appeal, the Defendant contends that: (1) the consolidation
of the Defendant's indictments deprived him of a fair trial; (2) the
evidence is insufficient to sustain his convictions; (3) the State
improperly used specific theft locations without proper foundation;
and (4) the trial court improperly allowed security videotape
recordings to be admitted into evidence.  Finding no reversible error,
we affirm the trial court's judgments.

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

MICHAEL KEITH KENNEDY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Michael Keith
Kennedy.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Jerry Woodall, District Attorney General,
and Al Earls, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner, Michael Keith Kennedy, entered a plea of nolo
contendere to numerous counts of burglary, theft, and vandalism
arising out of events that occurred in Chester and Henderson Counties.
 As a result, he was sentenced to fifteen (15) years for the Chester
County convictions and twelve (12) years for the Henderson County
convictions, to be served concurrently, for an effective sentence of
fifteen (15) years.  Pursuant to the plea agreement, the petitioner
reserved the following certified question of law for appeal: "Did the
defendant give an unequivocal, specific, intelligent, and voluntary
consent to the warrantless search of his premises and vehicles,
uncontaminated by duress or coercion?"  This Court determined that the
certified question was not dispositive as to three of the petitioner's
convictions, but determined the petitioner knowingly and voluntarily
consented to the search as to the remaining convictions.  See State v.
Michael Kennedy, No. W2001-03107-CCA-R3-CD, 2003 WL 402798 (Tenn.
Crim. App., at Jackson, Feb. 21, 2003), perm. app. denied (Tenn. May
27, 2003).  Subsequently, the petitioner filed a petition for
post-conviction relief alleging: (1) that he was denied effective
assistance of counsel; (2) that the trial court erred by imposing
restitution; (3) that the trial court erred by admitting his prior
felony convictions; and (4) that the trial court erred by failing to
appoint counsel.  After a hearing on a motion to dismiss filed by the
State, the trial court dismissed the petition without an evidentiary
hearing.  For the following reasons, we affirm in part, reverse in
part, and remand for an evidentiary hearing consistent with this
opinion.

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

WILLIE E. KYLES, JR. V. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

D. Michael Dunavant, Ripley, Tennessee, for the appellant, Willie E.
Kyles, Jr.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey Brewer, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Willie E. Kyles, Jr., filed a pro se petition for
post-conviction relief, as amended after the appointment of counsel,
arguing that he received ineffective assistance of counsel at trial. 
Specifically, Petitioner contends that his trial counsel (1) failed to
adequately investigate the facts surrounding Petitioner's case or
interview potential witnesses; (2) failed to file a motion to
suppress; and (3) failed to challenge the chain of custody of the
State's evidence introduced at trial.  After review of the record in
this matter, we affirm the trial court's dismissal of Petitioner's
petition for post-conviction relief.

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

STATE OF TENNESSEE v. JOHN RUFF

Court:TCCA

Attorneys:                          

John Ruff, Pro Se, Memphis, Tennessee.

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; William L. Gibbons, District Attorney
General, and Perry Hayes, Assistant District Attorneys General, for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner was convicted for assault in Shelby County.  During the
proceedings on these convictions, the trial court found the petitioner
in contempt of court on two occasions.  On appeal, we reversed the
petitioner's convictions for assault.  Upon remand, the State moved to
nolle prosequi the petitioner's assault charges, and the trial court
entered nolle prosequi on September 7, 1999, without cost, which
dismissed the assault charges against the petitioner without
prejudice.  These charges were later expunged.  On March 18, 2003, the
petitioner filed two petitions to expunge the contempt judgments.  The
trial court denied the petitioner's petition to expunge the contempt
convictions in January of 2004.  The petitioner filed a notice of
appeal to this Court on February 20, 2004.  The petitioner presents
five issues for review: (1) whether the trial court erred under
Tennessee's Expungement Statute by refusing to expunge the
petitioner's contempt records and the related records in general
sessions court; (2) whether the trial court clerk and the chief
administrative official of the State violated petitioner's due process
rights and the provisions of Tennessee Code Annotated section
40-32-102 by not expunging petitioner's contempt records within sixty
days of filing an expungement petition; (3) whether the trial court
and district attorney general violated the petitioner's constitutional
rights of due process and equal protection by causing petitioner to be
held in contempt; (4) whether the trial court improperly allowed
petitioner to waive counsel on December 5, 1997, in case number
97-06150; and (5) whether the trial court had jurisdiction in case
numbers 96-09407,-08 and 97-06150.  We affirm the judgment of the
trial court.

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

CLARENCE WASHINGTON V. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Clarence Washington, Henning, Tennessee, pro se.

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

Judge: WOODALL

First Paragraph:

Petitioner, Clarence Washington, appeals the trial court's denial of
his petition for writ of habeas corpus challenging the legality of his
sentence for his conviction of the offense of escape from a
penitentiary.  After a review of the record, we affirm the trial
court's dismissal of Petitioner's petition for writ of habeas corpus.

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

TERRANCE DUPREE WOODS v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

J. Colin Morris, Jackson, Tennessee, for the appellant, Terrence
Dupree Woods.

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; James G. Woodall, District Attorney
General; Alfred Earls, Assistant District Attorney General, and Shaun
A. Brown, Assistant District Attorney General,  for the appellee,
State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Terrance Dupree Woods, appeals the post-conviction court's
dismissal of his petition for post-conviction relief.  Following a
review of the record in this matter, we affirm the judgment of the
post-conviction court.

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

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