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 26, 2005
Volume 11 — Number 078
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
04 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


ALFRED EDWARDS and wife ALISA EDWARDS, v. MARTIN McPEAKE and HELMS
MOTOR COMPANY

Court:TCA

Attorneys:                          

John S. Colley, III, Columbia, Tennessee, for appellants.

John M. Lehman and Mary Beth Hagan, Nashville, Tennessee, for
Appellees.

Judge: FRANKS

First Paragraph:

In this action arising from a motor vehicle accident, plaintiffs
claimed damages for personal injuries and the jury returned a verdict
finding defendants 100% at fault for the accident, but awarded no
damages for personal injuries to plaintiffs. On appeal, we affirm.

http://www.tba.org/tba_files/TCA/2005/edwardsa42605.pdf

IN RE H.A.L.
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Billy K. Tollison, III, Sparta, Tennessee, for the appellant, R.W.L.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Michael B. Schwegler, Assistant Attorney
General, for the appellee, Tennessee Department of Children's
Services.

Judge: KOCH

First Paragraph:

This appeal involves the parental rights of a father who has been
incarcerated off and on for most of this fourteen-year-old daughter's
life. The Tennessee Department of Children's Services filed a petition
to terminate the father's parental rights in the White County Juvenile
Court while he was serving a fifteen-year-sentence for first degree
robbery. The juvenile court, relying on the grounds contained in Tenn.
Code Ann. SS 36-1-113(g)(1), (3), (9) (Supp. 2004), terminated the
father's parental rights. The father has appealed. We have determined
that the Department has presented clear and convincing evidence that
the father abandoned his daughter as proscribed by Tenn. Code Ann. S
36-1-102(1)(A)(iv) (Supp. 2004), that he failed to remedy conditions
as required by Tenn. Code Ann. S 36-1-113(g)(3)(A), and that
terminating his parental rights is in his daughter's best interests.
Accordingly, we affirm the order terminating the father's parental
rights.

http://www.tba.org/tba_files/TCA/2005/hal42605.pdf

http://www.tba.org/tba_files/TCA/2005/hal42605_con.pdf

GEORGE HUTSELL AND TERESA HUTSELL, v. JEFFERSON COUNTY BOARD OF ZONING
APPEALS

Court:TCA

Attorneys:                          

Clinton R. Anderson, Morristown, Tennessee, for appellant.

S. Douglas Drinnon, Jeffrey L. Jones, and Larry Ray Churchwell,
Dandridge Tennessee, for Appellee

Judge: FRANKS

First Paragraph:

Plaintiffs obtained a permit and built a "garage and storage building"
on their property. The zoning officer received complaints after the
building was built, and the Board of Zoning Appeals determined that
plaintiffs' use of the building was not allowed in the zoning
classification. On certiorari, the Trial Judge affirmed the Board of
Zoning Appeals' decision and enjoined plaintiffs from using the
building in violation of the zoning ordinance. On appeal, we affirm.

http://www.tba.org/tba_files/TCA/2005/hutsellg42605.pdf

SUSAN DIANE JONES v. STEVEN TRAVIS DORROUGH, ET AL.

Court:TCA

Attorneys:                          

John O. Threadgill, Knoxville, Tennessee, for the Appellants, Steven
Travis Dorrough and Jayme Dorrough

L. Caesar Stair and W. Tyler Chastain, Knoxville, Tennessee, for the
Appellee, Susan Diane Jones

Judge: LEE

First Paragraph:

This case arises out of a long-running dispute between Steven Travis
Dorrough and his former wife, Susan Diane Jones over possession of the
parties' former residence which was awarded to Ms. Jones in the
divorce, but was subsequently leased to Mr. Dorrough. Ms. Jones first
filed suit against Mr. Dorrough and his new wife for possession of the
residence and for unpaid rents, penalties, interest and attorney's
fees. The Dorroughs counterclaimed asserting that Ms. Jones had agreed
to sell them the property and that they had paid her in full and were
entitled to specific performance. The trial court granted a summary
judgment in favor of Ms. Jones, awarded her possession of the
property, judgment for unpaid rents and attorney's fees, and dismissed
the counterclaim. The Dorroughs appealed and we affirmed the trial
court's decision as to the dismissal of the Dorroughs' counterclaim
and remanded for further findings as to the funds allegedly paid by
Mr. Dorrough. The Dorroughs then filed suit against Ms. Jones and this
suit was consolidated with the remanded suit. In the second suit, the
Dorroughs alleged breach of contract, fraudulent misrepresentation,
and outrageous conduct. The trial court granted Ms. Jones' motion for
summary judgment on the contract and tort claims. The trial court held
an evidentiary hearing on the remanded issue as to whether Mr.
Dorrough was entitled to a set-off based on alleged payments by him to
Ms. Jones of $192,000. The trial court denied the set-off and awarded
judgment to Ms. Jones for rents, late fees, prejudgment interest and
attorney's fees. The Dorroughs appealed this adverse decision. After a
careful review of the record, we hold that 1) the trial court's grant
of summary judgment to Ms. Jones was proper as to the breach of
contract claim because the Dorroughs' contract claim was a compulsory
counterclaim that they were required to have presented in the original
case, 2) the trial court's grant of summary judgment was proper as to
the claims for outrageous conduct and fraudulent misrepresentation
since the claims were time barred by the applicable statutes of
limitation, 3) the evidence does not preponderate against the trial
court's finding of fact regarding the rents due, payments made by Mr.
Dorrough, and the award of attorney's fees. Accordingly, we affirm the
decision of the trial court.

http://www.tba.org/tba_files/TCA/2005/joness42605.pdf

STATE OF TENNESSEE v. JESSE LEE CREASMAN

Court:TCCA

Attorneys:                          

Ardena J. Garth, District Public Defender; and Donna Robinson Miller
(on appeal) and Danny Hill (at trial), Assistant District Public
Defenders, for the appellant, Jesse Lee Creasman.

Paul G.Summers, Attorney General &Reporter; Renee W.Turner, Assistant
Attorney General; and Rodney C. Strong, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Jesse Lee Creasman, entered a plea of guilt to burglary
of a business. Pursuant to a plea agreement, the trial court imposed a
Range I sentence of two years and ordered probationary supervision for
a period of four years. After an evidentiary hearing, the trial court
directed restitution as follows: $207.05 for the replacement of the
store window, $239.90 for stolen cigarettes, and $6,300 for increased
insurance premiums. In this appeal of right, the defendant argues that
the amount of restitution is excessive. Restitution is reduced by
$6,300 to $436.95. Otherwise, the judgment of the trial court is
affirmed.

http://www.tba.org/tba_files/TCCA/2005/creasmanj42605.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: WITT

First Paragraph:

The petitioner, Jackie F. Curry, petitioned the Johnson County Circuit
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 state's motion and affirm the order of dismissal.

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

ERIC GILMORE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Albert John Newman, Knoxville, Tennessee, for the appellant, Eric
Gilmore.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Randall E. Nichols, District
Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Eric Gilmore, appeals 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, 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/gilmoree42605.pdf

STATE OF TENNESSEE v. THEODORE F. HOLDEN
DISSENTING OPINION

Court:TCCA

Judge: WILLIAMS

First Paragraph:

I respectfully disagree with the majority's conclusion that the
defendant did not open the door to cross-examination concerning other
felonies involving dishonesty. This defendant's record is extensive,
and all but one of his thirteen convictions involve acts of
dishonesty. The defendant's credibility was an issue when he chose to
testify. For me, it is a close question of whether the questions asked
by the defendant's attorney opened the door for further examination.
By this I mean it appears that defense counsel was clearly trying to
convey the defendant's record consisted only of misdemeanor offenses.
I trust the trial court heard the inflections in defense counsel's
voice that he used to emphasize "misdemeanor" in his questioning.
Although his questions contained true statements, the inflections used
in asking the questions by defense counsel could surely place an undue
emphasis on "misdemeanor," creating a misimpression on a jury. I
believe the cavalier answers given by the defendant further opened the
door when he answered, "I guess, yeah," and "O.K." The defendant had
an extensive criminal record. His first arrest was at age nineteen,
and he is now thirty-two. The record reveals that the defendant had
never accumulated more than three years of good conduct without being
arrested. His answers to the specific questions by defense counsel
were answered in such a way that a jury could mistakenly believe that
his brushes with the law were so infrequent or minor that he had
difficulty remembering them. I believe this line of questions was
designed to convey a false impression to the jury. Tennessee Rule of
Evidence 609 envisions impeachment by the State of a criminal
defendant if he or she chooses to testify. Here, defense counsel
sought to lessen the sting of the state's impeachment or to steal the
state's thunder, a permissible tactic. However, this permissible trial
tactic must be employed with the utmost caution or the door will be
opened for the State to cross-examine on his entire record. Under the
facts of this case, I conclude the trial court was correct in ruling
that the defendant opened the door to further impeachment.
Respectfully submitted,

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/2005/holdentf42605_dis.pdf

STATE OF TENNESSEE v. BROOKS JONATHAN LEE

Court:TCCA

Attorneys:                          

William Cameron, Cookeville, Tennessee, for the appellant, Brooks
Jonathan Lee.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William E. Gibson, District Attorney
General; and Thomas Tansil, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant was found guilty by jury verdict of second offense
driving under the influence of an intoxicant (DUI), simple possession
of marijuana, and possession of drug paraphernalia, all Class A
misdemeanors. He was sentenced to concurrent sentences of eleven
months and twentynine days with eighty-five days to be served, had his
driver's license suspended for two years, and was fined a total of
$3,150. The Defendant now appeals his DUI conviction claiming: 1) the
trial court erred in admitting testimony from an expert witness; and
2) the evidence was insufficient to support his DUI conviction. We
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/leeb42605.pdf

STATE OF TENNESSEE v. FRANK PETER PINCHAK

Court:TCCA

Attorneys:                          

Jerry H. Summers, Chattanooga, Tennessee, for the appellant, Frank
Peter Pinchak.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William H. Cox, III., District Attorney
General; and Steven H. Strain, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The defendant, Frank Peter Pinchak, entered a nolo contendere plea to
vehicular assault, aggravated assault, and violation of the implied
consent law. The trial court deferred the imposition of two concurrent
two-year sentences for vehicular assault and aggravated assault,
placing the defendant on judicial diversion for a term of six years.
For violating the implied consent law, the trial court suspended the
defendant's license for one year. The trial court then dismissed sua
sponte the implied consent law violation, noting that the indictment
failed to charge a criminal offense. The State appeals the single
issue of whether the trial court erred in dismissing the implied
consent violation and argues that diversion is inappropriate if the
offense is reinstated. Concluding that an indictment is not a
necessary prerequisite to adjudication of a civil implied consent law
violation, we reverse the trial court's dismissal of the charge,
remand the case for reinstatement of the trial court's original
imposition of a one-year suspension of the defendant's driver's
license, and conclude that diversion is not appropriate for this civil
offense.

http://www.tba.org/tba_files/TCCA/2005/pinchakf42605.pdf

STATE OF TENNESSEE v. ROBERT WAYNE PRYOR

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee (on appeal) and Andrew
Jackson Dearing, III., Assistant Public Defender (at trial), for the
appellant, Robert Wayne Pryor.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
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:

A Bedford County jury convicted the defendant, Robert Wayne Pryor, of
robbery, a Class C felony. Following a sentencing hearing, the trial
court sentenced him as a Range I, standard offender to five years and
six months in the Department of Correction consecutive to sentences in
another case for which he was on probation. In this appeal, the single
issue presented for our review is whether the evidence was sufficient
to support the conviction. We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/pryorr42605.pdf

STATE OF TENNESSEE v. CHARLES TAWWATER

Court:TCCA

Attorneys:                          

Norris A. Kessler, III, and Joseph S. Bean, Jr., Winchester, Tennessee
(on appeal), and Michelle M. Benjamin, Winchester, Tennessee (at
trial), for the appellant, Charles Tawwater.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and William Bobo Copeland, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Charles Tawwater, pled guilty in Franklin County
Circuit Court to facilitation of the manufacture of methamphetamine, a
Class D felony, and received two years probation in the Community
Corrections Program. The defendant appeals upon certified questions of
law from the denial of his motion to suppress evidence seized pursuant
to a warrantless search of his car. He claims the trial court should
have granted his motion because (1) the officers lacked probable cause
or reasonable suspicion to believe he had committed a criminal offense
when stopping his vehicle; (2) his consent to the search of his car
was not voluntary; and (3) statements made by him to officers during
his detention were inadmissible because he was not advised of his
rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
We affirm the trial court.

http://www.tba.org/tba_files/TCCA/2005/tawwaterc42605.pdf

JAMES WILLIAM TAYLOR, a/k/a LUTFI SHAFQ TALAL v. STATE OF TENNESSEE
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

Appellant, James William Taylor, has timely filed a Petition to
Rehear. Upon review of this petition, it is denied.

ORDER
http://www.tba.org/tba_files/TCCA/2005/taylorj42605_ord.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