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Today's Opinions: May 3, 2005
Volume 11 — Number 083
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
04 New Opinion(s) from the Tennessee Court of Appeals
07 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

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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


CLETUS M. THETFORD v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY,
ET AL.
WITH DISSENTING OPINION

Court:TSC - Workers Comp Panel

Attorneys:                          

Floyd S. Flippin and Paul B.Conley, III, Humboldt, Tennessee, for the
appellee, Cletus M.Thetford.

Deana C. Seymour and Lee R. Sparks, Jackson, Tennessee, for the
appellants, American Manufacturers Mutual Insurance Company and Tower
Automotive Products, Co., Inc.

Judge: BUTLER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated section 50-6- 225(e)(3) for hearing and
reporting to the Supreme Court of findings of facts and conclusions of
law. The trial court awarded the employee 60% permanent partial
disability to the body as a whole and found that his work activities
had advanced and anatomically changed his pre-existing arthritic
condition. The employer contends that: 1) the employee did not give
proper notice of his injuries; 2) that his work activities did not
cause an advancement of his pre-existing arthritic condition; and 3)
the disability award was excessive and unsupported by the evidence.
For the reasons set forth below, we affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TSC_WCP/2005/thetfordc50305.pdf

DISSENTING OPINION
http://www.tba.org/tba_files/TSC_WCP/2005/thetfordc_dis50305.pdf

ROBERT BEAN ET AL. v. PHIL BREDESEN ET AL.

Court:TCA

Attorneys:                          

F. Clay Bailey, Nashville, Tennessee, for the appellants, Robert Bean,
Franklin Shaffer, David Autrey, and Mack Roberts.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Elizabeth P. McCarter, Senior Counsel,
Nashville, Tennessee, for the appellees, Phil Bredesen, Governor; Paul
G. Summers, Attorney General and Reporter; Tennessee Wildlife
Resources Commission; and Gary T. Myers, Director, Wildlife Resources
Agency.

Judge: KOCH

First Paragraph:

This is the third appeal in a long-running dispute involving the
constitutionality of Tennessee's statutory ban on the private
possession of white-tailed deer. Persons challenging the ban filed
suit in the Chancery Court for Davidson County asserting that the
statutes regulating the possession of exotic animals unlawfully
delegated legislative authority to the Tennessee Wildlife Resources
Agency, were vague and overbroad, and violated the Commerce Clause of
the United States Constitution. Both the trial court and this court
initially determined that the statutes unlawfully delegated
legislative authority to the Tennessee Wildlife Resources Agency.
After the Tennessee Supreme Court reversed these decisions in Bean v.
McWherter, 953 S.W.2d 197 (Tenn. 1997), the trial court granted the
defendants' motion for summary judgment on the vagueness and
overbreadth and the Commerce Clause claims. We reversed the dismissal
of the Commerce Clause claim and remanded the case for a hearing on
whether the statutory ban on the private possession of whitetailed
deer placed an undue burden on interstate commerce. Bean v. McWherter,
24 S.W.3d 325 (Tenn. Ct. App. 1999). Following another hearing, the
trial court concluded that the ban did not place an undue burden on
interstate commerce. The plaintiffs have appealed. We have determined
that the evidence supports the trial court's conclusion that
Tennessee's interest in protecting its indigenous white-tailed deer
population outweighs the statutory ban's effect on interstate
commerce. Accordingly, we affirm the judgment.

http://www.tba.org/tba_files/TCA/2005/beanr50305.pdf

JERRY D. CARMACK, ET AL. v. TINA M. EARP, ET AL.

Court:TCA

Attorneys:                          

August C. Winter of Brentwood for Appellants, Jerry D. Carmack,
Georgia Kay Carmack Brooks, and Brenda Gail Carmack Thomas

Brce N.Oldham of Gallatin for Appellees, Tina M.Earp, Individually and
as Executrix of the Estate of Kenneth H.Earp; Kenneth H.Earp Revocable
Living Trust, Tina M.Earp, Elizabeth J. Hammond and Charles E. Duck,
III, Trustees; and Tina M.Earp Revocable Living Trust, Tina M.Earp,
Trustee

Judge: CRAWFORD

First Paragraph:

Property owners filed suit against neighbors for trespass. Trial court
entered judgment for plaintiffs in the amount of $13,740, applying the
"mild rule" for calculation of damages for trespass. Trial court also
made rulings establishing the boundary lines between property of
plaintiffs and defendants, and confirmed the plaintiffs' continuing
right of ingress and egress through defendant's property to their own
property. On appeal, plaintiffs contend that trial court erred in
failing to award damages based on "harsh rule" rather than mild rule;
in failing to find that the boundary lines were in keeping with
plaintiffs' expert's survey; and in granting summary judgment to
defendant water utility district. We conclude that the trial court
erred in granting summary judgment to the water utility district. In
all other respects, we affirm.

http://www.tba.org/tba_files/TCA/2005/carmackj50305.pdf

LUVELL L. GLANTON v. BOB PARKS REALTY, ET AL.

Court:TCA

Attorneys:                          

Tusca R.S. Alexis; Luvell L. Glanton, Nashville, Tennessee; Charles A.
Mathis, Jr., Atlanta, Georgia, for the appellant, Luvell L. Glanton.

Douglas Berry, Nashville, Tennessee; for the appellees, Sharon
Cummings and Legacy Properties, LLC.

David W.Kious, Murfreesboro, Tennessee, for the appellees, Bob Parks
Realty and Lucy Bottorff.

Judge: COTTRELL

First Paragraph:

The plaintiff purchased a house that was marketed by the defendant
realtors. The house had been described as including over 5,800 square
feet of living space. After the purchase, the plaintiff discovered
that the actual square footage of the house was considerably less,
depending on what was included. He sued for unfair or deceptive
practices under the Tennessee Consumer Protection Act and for
intentional misrepresentation. The trial court dismissed his complaint
on summaryjudgment, and ordered the plaintiff to pay all the
defendants' attorney fees. We affirm the dismissal, but modify the
award of attorney fees.

http://www.tba.org/tba_files/TCA/2005/glantonl50305.pdf

DONALD MOORE v. TENNESSEE BOARD OF PROBATION AND PAROLE

Court:TCA

Attorneys:                          

David L. Raybin, Nashville, Tennessee, for the appellant, Donald
Moore.

Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Pamela S. Lorch, Senior Counsel, for the appellee,
Tennessee Board of Probation and Parole.

Judge: COTTRELL

First Paragraph:

Following a hearing in October of 2000, three out of seven members of
the Board of Paroles voted to parole a prisoner who was serving a life
sentence for murder. Because of a 1997 statute that requires four
members of the Board to concur on the parole of prisoners convicted of
certain grave offenses, parole was denied. The prisoner did not seek
review of that decision. Parole was again denied after a March 2003
hearing, with only two Board members voting for parole. The prisoner
filed a petition for common law writ of certiorari, contending that
the Board's refusal to release him after the 2000 Board vote violated
the constitutional prohibition against ex post facto enactments. He
argued that he was entitled to the benefit of an earlier statute which
allowed prisoners to be paroled, regardless of offense, if they could
obtain the positive votes of three members of the Board. The trial
court dismissed the petition, holding that it was untimely, and that
in any case, the application of the 1997 statute did not implicate any
ex post facto concerns. We affirm the trial court.

http://www.tba.org/tba_files/TCA/2005/moored50305.pdf

STATE OF TENNESSEE v. DERRICK LE'MON GOODE

Court:TCCA

Attorneys:                          

Donna L. Hargrove, District Public Defender, and Andrew Jackson
Dearing, III, Assistant Public Defender, for the appellant, Derrick
Le'Mon Goode.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael D. Randles and Ann L. Filer, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

On appeal, the defendant challenges the revocation of his probation;
specifically, he contends that the trial court erred in revoking his
probation based on the new charge of possession of prohibited weapons
(sawed-off shotguns) when the weapons were not entered into evidence
and their length was only estimated but never measured. Upon our
review, we conclude that the deputy's estimation of the length of the
weapons is sufficient to support revocation. Moreover, it is
uncontroverted that the defendant had an outstanding payments owed to
the court, which constitutes an additional ground for revocation. We
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/goodedl50305.pdf

CHRIS HAIRE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Charles M.Corn, District Public Defender; WilliamC.Donaldson,
Assistant Public Defender ( postconviction proceeding); and Steve
McEwen, Mountain City, Tennessee (on appeal), for the Appellant, Chris
Haire.

Paul G.Summers, Attorney General &Reporter; Brent C. Cherry, Assistant
Attorney General; Jerry N.Estes, District Attorney General; and
WilliamReedy, Assistant District Attorney General, for the Appellee,
State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Chris Haire, appeals the McMinn County Circuit Court's
dismissal of his petition for post-conviction relief. After a thorough
review of the record and applicable law, we affirm.

http://www.tba.org/tba_files/TCCA/2005/hairec50305.pdf

STATE OF TENNESSEE v. MICHAEL LEE HOGAN

Court:TCCA

Attorneys:                          

Michael Lee Hogan, Wartburg, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Suzanne Lockert, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Michael Lee Hogan, pled guilty to one count of selling
less than .5 grams of a schedule II controlled substance, cocaine. In
accordance with the plea agreement, the trial court sentenced the
Defendant to twelve years in prison, as a Range II offender at
thirty-five percent. The Defendant filed a motion to withdraw his
guilty plea, which the trial court denied. The Defendant now appeals,
contending that: (1) the trial court erred when it denied his motion
to withdraw his guilty plea because his guilty plea was not knowingly
and voluntarily entered; and (2) his sentence is illegal. Because the
trial court erroneously determined that it lacked jurisdiction to hear
the Defendant's motion to withdraw his guilty plea and, therefore,
summarily denied the motion, we reverse and remand to the trial court
for further proceedings.

http://www.tba.org/tba_files/TCCA/2005/hoganm50305.pdf

DOUGLAS HAYDEN KIRKHAM, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Douglas Hayden Kirkham, Jr., Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and Thomas B. Dean, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the summary dismissal of his habeas corpus
petition. Specifically, he alleges fatal deficiencies in the
indictment; an involuntary, unintelligent, and unknowing guilty plea;
an illegal and void sentence; and ineffective assistance of counsel.
Upon review, we conclude that the petitioner has not presented any
claims that justify habeas corpus relief. Therefore, we affirm the
summary dismissal of the habeas corpus petition.

http://www.tba.org/tba_files/TCCA/2005/kirkhamd50305.pdf

STATE OF TENNESSEE v. TIMOTHY D. PRINCE

Court:TCCA

Attorneys:                          

Judson Wheeler Phillips, Nashville, Tennessee, for the appellant,
Timothy D. Prince.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General; Ron Davis, District Attorney General, and
Mary Katherine White, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Timothy D. Prince, was indicted by the Williamson
County Grand Jury for one count of possession of marijuana. Prior to
trial, the appellant filed a motion to suppress the evidence. The
trial court denied the motion and found the appellant guilty of
possession of marijuana after a bench trial. As a result, the trial
court sentenced the appellant to serve eleven (11) months and
twenty-nine (29) days in the county jail. After the denial of a motion
for new trial and an amended motion for new trial, the appellant filed
a timely notice of appeal. On appeal, the appellant challenges: (1)
the trial court's denial of the motion to suppress; (2) the
sufficiency of the evidence despite the possibility of missing
evidence; and (3) the sentence imposed by the trial court. We affirm
the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/princet50305.pdf

REARNO VAUGHN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Tim R. Rector, Gallatin, Tennessee, for the Appellant, Rearno Vaughn.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
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, Rearno Vaughn, was convicted of one count of first
degree murder, two counts of attempted first degree murder, two counts
of attempted second 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
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/vaughnr50305.pdf

MATTHEW DWIGHT WEBB v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Thompson G. Kirkpatrick, Manchester, Tennessee, for the appellant,
Matthew Dwight Webb.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Senior Counsel; Charles Michael Layne, District Attorney General;
Jason Michael Ponder, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Matthew Dwight Webb, appeals as of right the dismissal
of his petition for postconviction relief by the Coffee County Circuit
Court. He seeks relief from his conviction for rape and sentence of
eight years. The petitioner contends that he received the ineffective
assistance of counsel and that his guilty plea was not voluntary. We
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/webbm50305.pdf

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