Solo and Small Firm Forum
May 13 - Tennessee Bar Center, Nashville

The TBA Solo and Small Firm Conference offers a unique opportunity for
practitioners from all over the state to come together to focus on
specific issues impacting them in the practice of law. CLE course
offerings will include substantive sessions in practice areas most
common to the solo and small firm practitioner including: PERSONAL
INJURY AND WORKERS COMP LAW, JUVENILE & FAMILY LAW, WILLS, ESTATES &
PROBATE , SOCIAL SECURITY UPDATE , CRIMINAL DEFENSE, and ETHICS.
There will also be many opportunities for networking with your fellow
practitioners during this conference — including a cocktail reception
after the program.

Today's Opinions: April 19, 2005
Volume 11 — Number 073
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
02 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


VERNON GENTRY v. TERESA ALEXANDRA GENTRY

Court:TCA

Attorneys:                          

J. and DAVID R. FARMER, J., joined.

Christine Zellar Church of Clarksville, For Appellant Teresa Alexandra
Gentry Markley Runyon Gill of Erin, For Appellee Vernon Gentry

Judge: CRAWFORD

First Paragraph:

This is an appeal from a "Final Decree of Divorce" involving the entry
of a permanent parenting plan pursuant to T.C.A. S36-6-404 and
limiting factors on parenting time pursuant to T.C.A. S36-6-406.
Mother/Appellant asserts that the case should be remanded for entry of
a permanent parenting plan because the trial court entered its own
plan as opposed to one drawn by the parties. Since T.C.A.S36-6-404
does not preclude the trial court from entering its own parenting
plan, this alone does not call for a remand. However, T.C.A. S36-6-404
does require the inclusion of certain provisions in any parenting
plan. Since the trial court omitted some of these provisions, we
remand for modification of the "Final Decree of Divorce" to complywith
T.C.A.S36-6-404. The "Final Decree of Divorce" is otherwise affirmed.

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

REGINA HELDERMAN and husband, TROY HELDERMAN v. MATTHEW R. SMOLIN,
M.D., ET AL.

Court:TCA

Attorneys:                          

J. Houston Gordon, Covington, TN for Appellants

Charles M. Purcell, Andrew V. Sellers, Jackson, TN, for Appellees

Judge: HIGHERS

First Paragraph:

This appeal involves a claimfor medical malpractice. The plaintiff's
cardiologist initiallydiagnosed her as having a heart condition which
required surgery to repair. The plaintiff's cardiologist referred the
plaintiff to a cardiothoracic surgeon for surgical repair of the
condition. The plaintiff subsequently sought a second opinion, and the
second cardiologist determined that the plaintiff did not need
surgery. Thereafter, the plaintiff's original cardiologist apparently
changed his diagnosis of the plaintiff's condition. After some time
passed, the cardiothoracic surgeon performed surgery on the plaintiff,
which was ultimately determined to be unnecessary. The plaintiff sued
her original cardiologist and the cardiothoracic surgeon for medical
malpractice. Through discovery, it was determined that the
cardiothoracic surgeon did not review the plaintiff's entire medical
records prior to performing the surgery. The cardiologist filed a
motion for summary judgment arguing the cardiothoracic surgeon was the
sole proximate cause of the plaintiff's injuries. In response, the
plaintiff submitted an affidavit from her expert witness stating that
the cardiologist had a duty under the applicable standard of care to
directly communicate his changed diagnosis to the cardiothoracic
surgeon, and his actions were a "significant contributing factor" to
the plaintiff's injuries. The cardiologist filed a motion to strike
the affidavit of the plaintiff's expert as contradictory to his
deposition testimony. The trial court partially granted the
cardiologist's motion. After doing so, the trial court granted the
cardiologist's motion for summary judgment. The plaintiff appealed to
this Court, and we reverse.

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

RUSSELL ALLEN V. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Gregory D.Smith, Clarksville, Tennessee (on appeal) and Claudia S.
Jack, Columbia, Tennessee (at trial and on appeal) for the Appellant,
Russell Allen.

Paul G.Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; Mike Bottoms, District Attorney General;
and Lawrence R. Nickell, Jr., Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

In 2000, the Petitioner, Russell Allen,was convicted of aggravated
sexual battery, and was sentenced to serve eight years. Subsequently,
the Petitioner filed a petition for post-conviction relief, and the
post-conviction court dismissed the petition, concluding that his
petition was not filed within the statute of limitations. On appeal,
the Petitioner contends that the post-conviction court erred when it
dismissed his post-conviction petition. After thoroughly reviewing the
record and the applicable authorities, we affirm the post-conviction
court's judgment.

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

STATE OF TENNESSEE v. JOHN FITZGERALD BELEW

Court:TCCA

Attorneys:                          

Amanda Heard and Stephen P. Spracher, Assistant Public Defenders, for
the appellant, John Fitzgerald Belew.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and Bill R. Martin, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

AHenderson County jury convicted the defendant, John Fitzgerald Belew,
of possession of cocaine, a Class A misdemeanor; and possession of .5
grams or more of cocaine with the intent to deliver, a Class B felony.
The trial court merged the two convictions and sentenced the defendant
to twelve years as a Range I standard offender. On appeal, the
defendant contends that the evidence is insufficient to support his
conviction. Upon our close review of the evidence, we are constrained
to hold that the evidence was insufficient to prove the defendant's
intent to deliver beyond a reasonable doubt. However, we determine
that the evidence was sufficient to prove simple possession of
cocaine. Therefore, we reverse the defendant's conviction of
possession of .5 grams or more of cocaine with the intent to deliver,
and reduce it to simple possession of cocaine. We remand the case to
the trial court for sentencing consistent with this opinion.

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

STATE OF TENNESSEE v. MARY MARGARET BOYD

Court:TCCA

Attorneys:                          

Jay Norman, Nashville, Tennessee, for the appellant, Mary Margaret
Boyd.

Paul G. Summers, Attorney General &Reporter; Richard H.Dunavant,
Assistant Attorney General; Victor S. Johnson, District Attorney
General, and Amy Eisenbeck, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The defendant was involved in an automobile accident. When officers
arrived, she maintained that she had been the driver of the vehicle.
However, the actual driver was later apprehended. When an officer
attempted to place the defendant under arrest, she physically resisted
handcuffing. The Davidson County Grand Jury indicted the defendant for
making a false report and resisting arrest. She was found guilty of
both charges in a bench trial. The trial court sentenced the defendant
to an effective sentence of eighteen (18) months with periodic
confinement on weekends for twenty (20) days and the remainder on
probation. On appeal, the defendant argues that there was insufficient
evidence to support her convictions. We affirm the judgments of the
trial court.

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

STATE OF TENNESSEE v. ANTHONY DWAYNE BROWN

Court:TCCA

Attorneys:                          

Joseph P. Atnip, District Public Defender, for the appellant, Anthony
Dwayne Brown.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and James Cannon, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The defendant, Anthony Dwayne Brown, was convicted by jury of one
count of first degree premeditated murder, two counts of felony
murder, one count of especially aggravated robbery, two counts of
especially aggravated burglary, and theft of property valued at less
than $500. The trial court merged the two felony murder counts into
the first degree premeditated murder count and merged the theft
offense into the count of especially aggravated robbery. The trial
court also merged the two counts of especially aggravated burglary.
The defendant was sentenced to life without the possibility of parole
for the first degree premeditated murder. The defendant was sentenced
to sixty years for especially aggravated robbery and to thirty years
for especially aggravated burglary. The trial court ordered all
sentences to run concurrent with the sentence of life without the
possibility of parole. The defendant raises two issues on appeal: (1)
whether the evidence was sufficient to support his convictions; and
(2) whether the trial court erred in excluding the testimony of a
defense witness. Following our review, we affirm the judgment of the
trial court.

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

UNTE HENDERSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Larry D. Brandon, Murfreesboro, Tennessee, for the appellant, Unte
Henderson.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Senior Counsel; William C. Whitesell, Jr., District Attorney General;
and J. Paul Newman, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Unte Henderson, appeals from the Rutherford County
Circuit Court's denial of his petition for post-conviction relief from
his guilty pleas to second degree murder and conspiracy to commit
aggravated robbery and effective nineteen-year sentence. He contends
that he received the ineffective assistance of counsel because his
attorney coerced him into pleading guilty. We affirm the trial court.

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

STATE OF TENNESSEE v. DAVID ARNOLD HUMPHREY

Court:TCCA

Attorneys:                          

John Ray Phillips, Jr., Gallatin, Tennessee, for the appellant, David
Arnold Humphrey.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and Dee Gay, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, David Arnold Humphrey, entered a plea of guilt to
attempt to possess more than .5 grams of cocaine for resale. As a part
of the plea agreement, a Range II sentence of six years was imposed
and a certified question of law was reserved for appeal. See Tenn R.
Crim. P. 37 (b)(2)(i). The question, as originally approved before the
filing of the notice of appeal, is "[w]hether the initial contact and
subsequent seizure of the defendant were . . . proper, with said
seizure resulting in the seizure of a Crown Royal bag containing
cocaine." The state, with the approval of the trial court, conceded
that the issue was dispositive of the case. The judgment is affirmed.

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

ALFIO ORLANDO LEWIS v. RICKY BELL, WARDEN

Court:TCCA

Attorneys:                          

Alfio Orlando Lewis, pro se, Nashville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Elizabeth B.Marney,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Alfio Orlando Lewis, appeals from the dismissal of his
petition for the writ of habeas corpus. The State has filed a motion
requesting that the Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find
the State's motion has merit. Accordingly, the motion is granted and
the judgment of the trial court is affirmed pursuant to Rule 20, Rules
of the Court of Criminal Appeals.

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

STATE OF TENNESSEE v. DANIEL LEWIS SHIELDS

Court:TCCA

Attorneys:                          

Daniel Lewis Shields, Pro Se, Nashville, Tennessee.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and Bill Whitesell, District Attorney
General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court by memorandum opinion pursuant to Rule 20,
Rules of the Court of Criminal Appeals. The petitioner has appealed
the trial court's order summarily dismissing the petition for the writ
of habeas corpus. In that petition, the petitioner challenges the
constitutionality of the CriminalSentencing Reform Act of 1989 in
light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004).
Upon a review of the record in this case, despite the untimely notice
of appeal filed by the petitioner, we are persuaded that the trial
court was correct in summarily dismissing the habeas corpus petition
and that this case meets the criteria for affirmance pursuant to Rule
20, Rules of the Court of Criminal Appeals. Accordingly, the State's
motion is granted and the judgment of the trial court is affirmed.

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

JAMES MARIO STARNES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

James M. Starnes, Lois DeBerry Special Needs Facility 4B, Nashville,
Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; William G. Lamberth,
II, Assistant Attorney General; W. Michael McCown, District Attorney
General; and Michael Randles, and Ann Filer, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The petitioner, James Mario Starnes, appeals the Bedford County
Circuit Court's dismissal of his pro se petition for post-conviction
relief without holding an evidentiary hearing. In his petition, the
petitioner contends that he received ineffective assistance of counsel
and entered an involuntaryplea. The trial court concluded that the
factual allegations of the petition were insufficient and that the
issues were waived for failure to present them on direct appeal. We
disagree and remand the case to the trial court for an evidentiary
hearing.

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

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