2nd Annual Intellectual Property Law Forum
Presented by the TBA Intellectual Property Law Section.
April 28, 29 - Tennessee Bar Center, Nashville

The program begins April 28 with afternoon presentations on the basics
of intellectual property law. On April 29, a panel of speakers —
including the Hon. David Sams, Chief Judge of the Trademark Trial and
Appeal Board — will address a wide range of advanced topics, primarily
geared to the intellectual property specialist. Ten hours of CLE
credit (including one hour of ethics) will be provided for those who
attend the entire forum. For anyone with an interest in this dynamic
area, it is not an event to be missed.

Today's Opinions: April 22, 2005
Volume 11 — Number 076
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
01 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
13 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


JOHNNIE BREWSTER v. AMERICAN RESIDENTIAL SERVICES, INC. and ZURICH
AMERICA INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:                          

Larry R. McElhaney, Arena & McElhaney PLLC, Nashville, Tennessee, for
the appellant, Johnnie Brewster.

Clancy J. Covert, Luther-Anderson, PLLP, Chattanooga, TN, for the
appellees, American Residential Services, Inc. and Zurich America
Insurance Company

Judge: SCOTT

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
S 50-6-225(e)(3) for hearing and reporting of findings of fact and
conclusions of law. The trial court found that the employee had
suffered a compensable injury to his left knee and awarded permanent
partial disability benefits of forty percent for the left lower
extremity, but denied recovery for the employee's back injury. The
employee contends that the evidence preponderates against the trial
court's conclusion that his back injury was not compensable. For the
reasons set forth below, we reverse the holding of the trial court and
remand for a determination of permanent partial disability benefits.

http://www.tba.org/tba_files/TSC_WCP/2005/brewsterjohnnie.pdf

DAVID FROUNFELKER v. IDENTITY GROUP, INC.

Court:TCA

Attorneys:                          

Jeffrey Glenn Jones, Cookeville, Tennessee; Patrick K. Cavanaugh,
Pittsburgh, Pennsylvania, for the appellant, Identity Group, Inc.

Cynthia A. Wilson, Jon Edward Jones, Cookeville, Tennessee, for the
appellee, David Frounfelker.

Judge: CAIN

First Paragraph:

This is a breach of contract case in which the controlling issue
involves the commencement and conclusion of the term of an employment
contract and, more specifically, when Plaintiff's guaranteed term of
employment ended. The trial court determined that Defendant had
breached the contract by terminating Plaintiff prior to the end of his
employment term and awarded damages, together with contract authorized
attorney fees and expenses. We affirm the judgment of the Chancellor.

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

DAVID BRUCE MYERS v. TERI LYNNE BROWN MYERS

Court:TCA

Attorneys:                          

Douglas R. Beier, Morristown, Tennessee, for appellant. 

Dennis Terry Stapleton, Morristown, Tennessee, for appellee.

Judge: FRANKS

First Paragraph:

The Trial Court enforced a mediated Settlement Agreement, reduced to
writing and signed by the parties, over the wife's objection. On
appeal, we affirm.

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

STATE OF TENNESSEE, ex rel., SHARON WHITELOW v. CRAIG JOHNSON

Court:TCA

Attorneys:                          

W. Brian Stephens, Gallatin, for Respondent/Appellant Craig Johnson.

Stuart F. Wilson-Patton, Office of the Attorney General for
Petitioner/Appellee State of Tennessee Department of Children's
Services

Judge: KIRBY

First Paragraph:

This is a child support case. The appellant is the father of eight
children who are the subject of this dispute. The State filed a
petition in the Juvenile Court alleging that the children were
dependent and neglected due to the drug use of the mother and father.
The mother and father stipulated to these charges and the children
were placed in the care of relatives. The State later filed a petition
to establish paternity and set support, seeking adjudication of
numerous issues, includingchild support. The trial court ruled on the
issue of child support, but did not rule on the other issues. Without
seeking permission for interlocutory appeal, the father appealed the
ruling on child support. We dismiss the appeal, finding that the order
from which the father appeals is not a final order and is thus not
properly before this Court.

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

DAVID JOE DOUGLAS BLAIR v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant,
David Joe Douglas Blair.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball,
Assistant Attorney General; and Michael Bottoms, District Attorney
General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

After having been indicted for the offense of first degree murder,
Petitioner, David Joe Douglas Blair, pled guilty to the lesser
included offense of second degree murder on June 6, 1999, pursuant to
a negotiated plea agreement, and received a sentence of twenty-five
years in the Department of Correction. On January 5, 2001, Petitioner
filed a "Motion for Appointment of Counsel" pertaining to this matter
and referenced a statute pertaining to the right to petition for
post-conviction relief. The trial court appointed counsel and an
amended petition for post-conviction relief was filed. The State
answered, and in its answer alleged that the petition should be
summarily dismissed because it was filed outside of the applicable
statute of limitations. The trial court granted the motion and
dismissed the petition. Petitioner appealed, and filed his brief. The
State has filed a motion for this court to affirm the dismissal
pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal
Appeals. Finding merit in the motion, we grant same and affirm the
judgment of the trial court.

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

CHICO LOPEZ CHIGANO v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Chico Lopez Chigano, Pikeville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; James Michael Taylor, District Attorney
General; James William Pope, III, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Chico Lopez Chigano, appeals from the trial court's
order dismissing his petition for writ of habeas corpus. The state has
filed a motion requesting that this court affirm the trial court's
denial of relief pursuant to Rule 20 of the Rules of the Court of
Criminal Appeals. The petition fails to establish a cognizable claim
for habeas corpus relief. Accordingly, the state's motion is granted
and the judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. EDWARD CHUMNEY

Court:TCCA

Attorneys:                          

George Morton Googe, District Public Defender; and Stephen P.
Spracher, Assistant Public Defender, Jackson, Tennessee, for the
Appellant, Edward Chumney.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and Jody S. Pickens, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Edward Chumney, appeals the revocation of his probation
by the Madison County Circuit Court. On appeal, Chumney argues that
the trial court was without authority to revoke his probation because
the violation warrants were issued after his sentence of probation had
expired. After review, we agree that three of his sentences had
expired; however, his two sentences for aggravated burglary had not.
Accordingly, we affirm revocation of his two sentences for aggravated
burglary and reverse and vacate revocation of his sentences for
misdemeanor theft, class E felony theft, and class D felony theft. The
case is remanded for correction of the records below to reflect this
holding and for other proceedings consistent with this opinion.

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

JACKIE F. CURRY v. STATE OF TENNESSEE
CORRECTED OPINION

Court:TCCA

Attorneys:                          

Jackie F. Curry, Appellant, Pro se.

Mark A. Fulks, Assistant District Attorney General, for the Appellee,
State of Tennessee.

Judge: 

First Paragraph:

The petitioner, Jackie F. Curry, petitioned the Johnson County
Criminal Court for habeas corpus relief from his three 2000 Knox
County convictions of aggravated rape. The court dismissed the
petition, and the petitioner appealed. The state has moved this court
to affirm the convictions pursuant to Tennessee Court of Criminal
Appeals Rule 20. We sustain the court's motion and affirm the order of
dismissal.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/2005/curryjackief.pdf

STATE OF TENNESSEE v. PETER L. GUYNN

Court:TCCA

Attorneys:                          

Eugene Honea, Franklin, Tennessee, for the appellant, Peter L. Guynn.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Ron Davis, District Attorney General; and
Derek Smith, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant pled guilty to aggravated robbery and was also found
guilty after a bench trial of especially aggravated kidnapping. The
trial court sentenced the Defendant as a Range II, multiple offender
to thirty-five years for the Class Afelony especially aggravated
kidnapping conviction, and to fifteen years for the Class B felony
aggravated robbery conviction. The two sentences were ordered to be
served consecutively. On appeal, the Defendant argues two issues: 1)
his conviction for especially aggravated kidnapping violated his right
to due process pursuant to State v. Anthony, 817 S.W.2d 299 (Tenn.
1991), and; 2) the trial court erred in imposing excessive sentences
and in running the sentences consecutively. We affirm the judgments of
the trial court.

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

STEVEN G. HUGHES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Steven G. Hughes, Appellant, Pro se.

Renee W. Turner, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Steven G.Hughes, petitioned the Johnson County
Criminal Court for habeas corpus relief from his Cocke County
convictions of aggravated robbery. The court dismissed the petition,
and the petitioner appealed. The state has moved this court to affirm
the convictions pursuant to Tennessee Court of Criminal Appeals Rule
20. We sustain the court's motion and affirm the order of dismissal.

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

STATE OF TENNESSEE v. MARSHAUN LUDEN, ALIAS

Court:TCCA

Attorneys:                          

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Marshaun
Luden, Alias.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Patti Cristil, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The defendant, Marshaun Luden, appeals from the trial court's order
revoking his probation and reinstating his original sentence of five
years as a Range I, standard offender in the Department of Correction.
The defendant does not contest the revocation of his probation.
Rather, he argues that the trial court erred by failing to consider
any additional alternative sentencing options. We affirm the judgment
of the trial court.

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

JOHNNY L. MCGOWAN, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Johnny L. McGowan, Jr., pro se, Petros, TN 37845

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
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 appellant has appealed the
trial court's order summarily dismissing his motion to withdraw his
guilty plea. In that motion, the appellant argued that his guilty plea
resulted in a void sentence because it was ordered to run concurrent
to a prior unrelated offense that the appellant was out on bond for at
the time of the commission of the offenses which resulted in the
guilty plea. Upon a review of the record in this case, we are
persuaded that the trial court was correct in summarily dismissing the
motion 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/mcgowanjohnnyl.pdf

STATE OF TENNESSEE v. JOSE LUIS QUINTERO

Court:TCCA

Attorneys:                          

Gregory D. Smith (on appeal), Clarksville, Tennessee, William Cather
(at trial and on appeal), Lebanon, Tennessee, Comer Donnell, (at
trial), Lebanon, Tennessee, and Michie Gibson (at trial), Nashville,
Tennessee, for the appellant, Jose Luis Quintero.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Tom P. Thompson, District Attorney
General; and David Durham, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

After a bench trial, the Defendant, Jose Luis Quintero, was convicted
of the first degree murders of Meceia Nelson and Darius Boleyjack. The
Defendant waived a sentencing hearing and agreed to a sentence of two
concurrent terms of life imprisonment without the possibility of
parole. In this direct appeal, the Defendant contends that 1) the
evidence is not sufficient to support his convictions; 2) the
Defendant's statement to the police should have been suppressed; and
3) the trial court erred in allowing a witness to testify about
statements made to her by one of the victims. Finding no errors
entitling the Defendant to a reversal, we affirm the judgments of the
trial court.

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

DERRICK SAWYERS v. KEVIN MYERS, WARDEN

Court:TCCA

Attorneys:                          

Derrick Sawyers, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; David Edward Coenen,
Assistant Attorney General; and Mike Bottoms, District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Derrick Sawyers, 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/2005/sawyersderrick.pdf

JAMES A. VAUGHN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Cynthia Hall Templeton, Gallatin, Tennessee, for the Appellant, James
A. Vaughn.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and Sallie Wade Brown, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, James A. Vaughn, was convicted of one count of first
degree murder, three counts of attempted first degree murder, and one
count of reckless endangerment, and the trial court sentenced him to
an effective sentence of life plus twenty-two years. This Court
affirmed the Petitioner's 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 judgment of the post-conviction court.

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

STATE OF TENNESSEE v. KENNETH LEE WESTON

Court:TCCA

Attorneys:                          

Kenneth Lee Weston, Wartburg, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner,
Assistant Attorney General; Randall E. Nichols, District Attorney
General, for the appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Kenneth Lee Weston, appeals the trial court's
dismissal of his petition for postconviction 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 petition was properly dismissed as barred by the statute
of limitations. Accordingly, the State's motion is granted and the
judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. VINCENT MARCEL WILLIAMS, ALIAS VINCENT MARCEL
WILKES

Court:TCCA

Attorneys:                          

Ardena J. Garth, District Public Defender; Donna Robinson Miller,
Assistant Public Defender (on appeal); and Christian John Coder and
Myrlene Marsa, Assistant Public Defenders (at trial), for the
appellant, Vincent Marcel Williams, alias Vincent Marcel Wilkes.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; William H. Cox, III, District
Attorney General; and Yolanda Mitchell and Boyd M. Patterson, Jr.,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: TIPTON

First Paragraph:

A Hamilton County Criminal Court jury convicted the defendant, Vincent
Marcel Williams, of aggravated child abuse, a Class A felony, and
reckless homicide, a Class D felony. The trial court sentenced him as
a Range I, standard offender to concurrent sentences of twenty-five
years for the aggravated child abuse conviction and four years for the
reckless homicide conviction. The defendant appeals, claiming that (1)
the evidence is insufficient to support his convictions; (2) the trial
court erred by denying his motion to suppress evidence obtained in
violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966);
(3) his right to a fair trial was violated when a police officer
testified at trial concerning a polygraph test and the defendant's
prior convictions; (4) the burden of proof was improperlyshifted from
the state to the defendant by the prosecutor's statements during
closing argument; and (5) the trial court erred by refusing to apply
or give sufficient weight to mitigating factors and by improperly
applying enhancement factors in light of Blakely v. Washington, 542
U.S. __, 124 S. Ct. 2531 (2004). We affirm the defendant's convictions
and sentences.

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

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