Opinions now available in PDF format

Beginning today, OpinionFlash is providing all opinions in PDF format.
This format is widely used on most computer platforms and the Acrobat
Reader program needed to open these files is available free. (If you
do not have the program, you can obtain it free at
http://www.adobe.com/products/acrobat/readstep2.html ). Opinions from
the Attorney General's office have been distributed in this format for
several years.

Thanks to assistance from the Administrative Office of the Courts, we
are also adding PDF versions of all Tennessee appellate court
decisions dating back to 1995. You will be able to access these
through the OpinionSearch feature on TBALink at
http://www.tba.org/tba_search/sonar.html

We believe this upgrade will enhance your use of OpinionFlash. Please
contact us at email@tnbar.org if you have any questions.

Howard Vogel
TBALink Editor in Chief

Today's Opinions: April 15, 2005
Volume 11 — Number 71
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
05 New Opinion(s) from the Tennessee Court of Appeals
02 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


STATE OF TENNESSEE v. EDWIN GOMEZ and JONATHAN S. LONDONO

Court:TSC

Attorneys:                          

Glenn R. Funk and Cynthia M.Fort, Nashville, Tennessee, attorneys for
Appellant, Edwin Gomez.

David A. Collins, Nashville, Tennessee, and James Stafford, Houston,
Texas, Attorneys for Appellant, Jonathan S. Londono.

Judge: Blackburn

First Paragraph:

We granted this appeal to determine whether the defendants are
entitled to relief on their claim that admission of testimony about a
co-defendant's oral statement violated their Sixth Amendment right to
confrontation and whether the defendants' sentences were imposed in
violation of their Sixth Amendment right to trial by jury. We conclude
that admission of testimony about a co-defendant's oral statement
violated the defendants' Sixth Amendment right to confrontation
because the defendants had no prior opportunity to cross-examine the
co-defendant. See Crawford v. Washington, __ U.S. __, 124 S. Ct. 1354
(2004). Nevertheless, we conclude that Gomez is not entitled to relief
on this claim because he has failed to preserve it for review and has
failed to establish the prerequisites for obtaining relief via plain
error review. Although Londono preserved the issue for plenary
appellate review, we conclude that he is not entitled to relief
because the constitutional error is harmless beyond a reasonable
doubt. Finally, we conclude that the defendants' sentences were not
imposed in violation of their Sixth Amendment right to jury trial. See
United States v. Booker, __ U.S. __, 125 S. Ct. 738 (2005); Blakely v.
Washington, __ U.S. __, 124 S. Ct. 2531 (2004). Thus, the defendants
are not entitled to relief on this claim. Accordingly, the judgment of
the Court of Criminal Appeals is affirmed.

http://www.tba.org/tba_files/TSC/2005/edwingomez.pdf

WITH DISSENTING OPINION
http://www.tba.org/tba_files/TSC/2005/edwingomezdissent.pdf

ROBERT BREWSTER, JR. v. FAYETTE COUNTY BOARD OF COUNTY COMMISSIONERS, ET AL.

Court:TCA

Attorneys:                          

Gregory C. Morton, Memphis, Tennessee, for the appellant, Robert
Brewster, Jr.,

Richard G. Rosser, Somerville, Tennessee, for the appellees, Fayette
County Board of County Commissioners, John W.Arnett, Floyd Bonner,
Charles D.Brewer, Sr., Joe Burnette, Jr., Odis Cox, Carl Doyle,
WillieL. German, Jr., Ronnie Graves, Ronald R.Harris, David Kelley,
Sylvester Logan, Alonzo Morman, Sr., Calvin Moore, David Morris, J. M.
Sullivan, Jr., Rhea "Skip" Taylor, Albert W. Thomas, Gordon Tomlin,
Miles Wilson, and Jim Voss, Mayor.

Judge: Farmer

First Paragraph:

The Fayette County Board of Commissioners denied Plaintiff/Appellant's
application for a change in zoning. The Chancery Court for Fayette
County affirmed. We affirm.

http://www.tba.org/tba_files/TCA/2005/brewsterrobertjr.pdf

CORY D. HOLLAND v. PACKARD'S SERVICE CENTER, LLC.

Court:TCA

Attorneys:                          

T. Holland McKinnie, Franklin, Tennessee, for the appellant, Cory D.
Holland.

Todd A. Bricker, Nashville, Tennessee, for the appellee, Packard's
Service Center, LLC.

Judge: Clement

First Paragraph:

Plaintiff claims that his 1990 Nissan with over 200,000 miles was
rendered inoperable due to Defendant's installation of a faulty
alternator.  He seeks damages for the diminution in the value of the
vehicle, wages he allegedly lost while the vehicle was inoperable, and
damages under Tennessee's Consumer Protection Act.  Plaintiff's claims
under Tennessee's Consumer Protection Act were dismissed upon summary
judgment.  During the trial, the court granted competing motions
excluding both parties' expert witnesses.  The jury returned a verdict
for the defendant on the remaining claims.  Plaintiff appeals.  We
affirm.

http://www.tba.org/tba_files/TCA/2005/hollandcoryd.pdf

In The Matter of:  M.J.J.

Court:TCA

Attorneys:                          

Joe McLerran, Cookeville, Tennessee, for the appellant, H.F.H.

Paul G. Summers, Attorney General and Reporter and Juan G. Villasenor,
Assistant Attorney General, for the appellee, State of Tennessee,
Department of Children's Services.

Judge: Farmer

First Paragraph:

In this termination of parental rights case, the juvenile court
terminated the parental rights of the mother and father, and the
mother appeals.  We affirm.

http://www.tba.org/tba_files/TCA/2005/inremjj.pdf

IN RE  M.J.M., JR., L.P.M., & C.A.O.M. 

Court:TCA

Attorneys:                          

Elizabeth Earl McDonald, Sparta, Tennessee, for the appellant, D.M.

Paul G. Summers, Attorney General and Reporter, and Juan G.
Villasenor, Assistant Attorney General, for the appellee, State of
Tennessee, Department of Children's Services.

Judge: Koch

First Paragraph:

This appeal involves a mother's efforts to prevent the termination of
her parental rights to her three children while she completes her
treatment for methamphetamine addiction.  After the Tennessee
Department of Children's Services took custody of the children, it
devised a permanency plan obligating the mother to address her drug
addiction and to complete other remedial tasks within twelve months. 
However, after six months of the mother's failed attempts to restore
order to her life, the Department filed a petition in the White County
Juvenile Court to terminate the mother's parental rights.  Between the
filing of the Department's petition and the hearing, the mother made
significant steps toward completing the tasks in the permanency plan. 
Despite the mother's progress, the juvenile court terminated her
parental rights on the grounds of abandonment, failure to comply with
the permanency plan, and failure to remedy the conditions that had
required the children's removal.  The mother has appealed.  We have
determined that the Department has failed to present clear and
convincing evidence of one or more grounds for terminating the
mother's parental rights.

http://www.tba.org/tba_files/TCA/2005/inremjm.pdf

WITH TWO CONCURRING OPINIONS
http://www.tba.org/tba_files/TCA/2005/inremjmconcur_cain.pdf
http://www.tba.org/tba_files/TCA/2005/inremjmconcur_cottrell.pdf

GEORGE HASKEL STEWART v. DEMPLE L. SEWELL, ET AL.

Court:TCA

Attorneys:                          

Hudson Owen Maddux, Chattanooga, Tennessee, and John Mark Stewart,
Winchester, Tennessee,  for the appellant, George Haskel Stewart.

Judge: Clement

First Paragraph:

Plaintiff, stepson of Clara Stewart, contends that attorneys-in-fact
of Mrs. Stewart acted in violation of Tenn. Code Ann. 34-6-108(c)(6)
and their confidential relationship with Mrs. Stewart, which deprived
him of inheriting real property formerly owned by his father under the
will of Mrs. Stewart.  The attorneys-in-fact (Fiduciaries) are the
daughter and son of Mrs. Stewart.  They sold the property while their
mother was mentally and physically incapacitated, living in a nursing
home.  The property was sold for substantially less than the appraised
value to a daughter and son-in-law of one of the Fiduciaries and two
of their friends.  Mrs. Stewart, who inherited the property from
Plaintiff's father, was the sole owner of the property at the time of
the sale.  The Fiduciaries, however, invested the proceeds in
certificates of deposit with themselves identified as co-owners with
Mrs. Stewart with right of survivorship.  The Fiduciaries became sole
owners of the entire sales proceeds upon the death of Mrs. Stewart. 
During the administration of Mrs. Stewart's estate, the Fiduciaries,
now executors, advised Plaintiff that his devise adeemed by
extinction.  Plaintiff brought this action to recover the real
property or the fair market value thereof from the Fiduciaries and/or
the buyers.  The trial court dismissed the complaint without making
findings, stating only that it was not sustained by the proof. 
Plaintiff appealed.  We reverse finding that the Fiduciaries acted in
contravention of the power of attorney and Tenn. Code Ann.
34-6-108(c)(6) and breached their fiduciary duties to Mrs. Stewart,
and award Plaintiff a judgment against the Fiduciaries for the net
proceeds resulting from the sale of the devised property plus
pre-judgment interest from the date of sale.

http://www.tba.org/tba_files/TCA/2005/stewartgeorgeh.pdf

STATE OF TENNESSEE v. ELIJAH HAMMOND

Court:TCCA

Attorneys:                          

Charles M.Corn, District Public Defender; and Richard Hughes,
Assistant District Public Defender, for the Appellant, Elijah Hammond.

Paul G. Summers, Attorney General & Reporter; William G. Lamberth, II,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Stephen D. Crump, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: Ross

First Paragraph:

Following a bench trial before the Bradley County Criminal Court, the
defendant, Elijah Hammond, was found guilty of aggravated child abuse
by use of a deadly weapon and of aggravated assault involving his
minor daughter, ST. The court merged the convictions and sentenced the
defendant to serve 12 years in the Department of Correction. On appeal, the
defendant contends that the evidence is insufficient to support his
aggravated child abuse conviction and that he was improperly
classified and sentenced as a Range II, multiple offender. After an
extensive review of the record, the briefs of the parties, and
applicable law, we conclude that the evidence supports his aggravated
child abuse conviction and that, pursuant to an amended judgment of
conviction, the defendant was properly sentenced as a Range I,
standard offender to serve an incarcerative, 12-year sentence.


http://www.tba.org/tba_files/TCCA/2005/hammondelijah.pdf

STATE OF TENNESSEE v. MICHAEL LYNN STANTON

Court:TCCA

Attorneys:                          

Mark E. Stephens, District Public Defender; and John Halstead and
Robert C. Edwards, Assistant District Public Defenders, for the
appellant, Michael Lynn Stanton.

Paul G.Summers, Attorney General &Reporter; Kathy D.Aslinger,
Assistant Attorney General; and Phillip Morton and Paula Hamm,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: Liebowitz

First Paragraph:

The defendant, Michael Lynn Stanton, was convicted of first degree
murder, attempted first degree murder, and two counts of aggravated
burglary. The jury returned a verdict of life without parole for the
murder conviction. See Tenn. Code Ann. S 39-13-204. The trial court
imposed sentences of sixty years for the attempted murder conviction
and fifteen years for each of the aggravated burglary convictions. The
trial court ordered consecutive service, but with the aggravated
burglary sentences to be served concurrently to one another, for an
effective sentence of life without parole plus seventy-five years. In
this appeal of right, the defendant asserts that the trial court erred
by (1) permitting evidence of prior bad acts; (2) denying his motion
for judgment of acquittal on the first degree murder charges; (3)
admitting an audiotape recording of a hospital interview with the
victim; (4) limiting impeachment of a state witness; (5) failing to
declare a mistrial after the state attempted to call a bailiff as a
witness; and (6) failing to grant a judgment of acquittal on the
aggravated burglary charge contained in count 5 of the indictment or,
in the alternative, failing to merge the two aggravated burglary
convictions. Because the defendant was entitled to a judgment of
acquittal on the aggravated burglary charge of count 5, that
conviction is reversed and the charge is dismissed. Otherwise, the
judgments of the trial court are affirmed.

http://www.tba.org/tba_files/TCCA/2005/stantonmichaellynn.pdf

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi

TBALink HomeContact UsPageFinderWhat's NewHelp

© Copyright 2005 Tennessee Bar Association