The ADA Act: The First 15 Years
May 19 - Tennessee Bar Center, Nashville

On July 26, 2005, we will celebrate the 15th Anniversary of the
signing of the Americans with Disabilities Act. This session will
cover the 1-2-3’s of the ADA as we look back on where we have come
from and envision where we are headed. The Course Offerings will
include substantive sessions in:
•Title I (Litigating Employment Discrimination cases in Tennessee)
•Title II (Panel discussion of Lane v.Tennessee from the front line
attorneys)
•Title III (Recent developments in Public Accommodation Accessibility
litigation from national experts, Fox & Robertson, P.C.)

This CLE is designed to be valuable to beginners and seasoned
practitioners alike, and will be followed by a reception for all
participants to meet the faculty and network.

Today's Opinions: May 10, 2005
Volume 11 — Number 088
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
03 New Opinion(s) from the Tennessee Court of Appeals
12 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


LENDEL L. CONLEY v. JO ANN CONLEY
CONCURRING OPINION

Court:TCA

Judge: SUSANO

First Paragraph:

I write separately to further address the trial court's judgment with
respect to the jurisdictional issue raised by Wife. I agree with the
majority's observation that, when the parties filed competing
affidavits which were later considered by the trial court, Wife's
motion was converted into one for summary judgment. See Tenn. R. Civ.
P. 12.03. It is arguable, as the majority found, that the trial court
chose to hold an "evidentiary hearing on the matter." The trial court
appears to have accepted all of the affidavits as true, even though
they contain competing facts and assertions as to where Husband was
domiciled (1) when he filed his complaint for divorce, and (2) during
the period of time preceding that filing. It should be noted that the
parties entered into a stipulation, which the trial court also
considered.

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/2005/conleyl_con51005.pdf

RHONDA LEIGH JONES ROBINSON v. RUSSELL RAYNOR ROBINSON

Court:TCA

Attorneys:                          

David E. Caywood and Holly J. Renken, Memphis, for Defendant/Appellant
Russell Raynor Robinson

Stuart B. Breakstone and Zachary M. Moore, Memphis, for
Plaintiff/Appellee Rhonda Leigh Robinson

Judge: KIRBY

First Paragraph:

This is a divorce case about dissipation of marital assets and
custody. Throughout the marriage, the wife took care of the children
while the husband provided financial support. The husband was the
owner and operator of several automobile businesses. After the wife
filed for divorce, the husband's automobile businesses failed,
resulting in the husband's father purchasing the businesses. After a
lengthy trial, the trial court found that the husband intentionally
dissipated marital assets, including the automobile businesses. The
wife was designated the children's primary residential parent. The
husband appeals. We affirm, finding that the evidence supports the
trial court's finding that the husband dissipated the businesses by
failing to preserve them, and the designation of the wife as primary
residential parent.

http://www.tba.org/tba_files/TCA/2005/robinsonr51005.pdf

BARBARA C. WATTS, ET AL. v. RANDALL LOVETT, ET AL.

Court:TCA

Attorneys:                          

Max E. Huff, Oneida, Tennessee, for the Appellants, Ferrellgas, LP,
and Ferrellgas, Inc.

C. Patrick Sexton, Oneida, Tennessee, for the Appellees, Barbara C.
Watts and Adalean Cross

Judge: LEE

First Paragraph:

In this appeal, the defendants argue that the trial court erred in the
amount of money it awarded the plaintiffs for damages incurred by the
plaintiffs when a truck owned by the defendants and operated by the
defendants' employee struck the plaintiffs' garage. The sole issue at
trial was the proper amount of damages the plaintiffs should receive
for injuries to their property. The plaintiffs introduced evidence
showing that the market value of their property as a whole - their
residence, garage and acreage - depreciated as a result of the fact
that the color of brick necessary to restore the garage to its
original condition is no longer available. Considering this evidence,
the trial court awarded the plaintiffs a judgment in the amount of
$8,000.00. The defendants contend that the trial court erred in its
award and that the proper measure of damages should have been solely
the cost of repairing the garage, which the defendants' expert
estimated to be approximately $2,000.00. We affirm the judgment of the
trial court and remand.

http://www.tba.org/tba_files/TCA/2005/wattsb51005.pdf

MONTEZ ANTUAN ADAMS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

A. Russell Larson, Jackson, Tennessee, for the Appellant, Montez
Antuan Adams.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; James G.Woodall,District Attorney General;
and Alfred Earls, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

OnFebruary 2, 1999, the petitioner, Montez Antuan Adams, filed a
petition for post-conviction relief to challenge his 1997 Madison
County Circuit Court convictions of first degree felony murder,
especially aggravated burglary, conspiracy to commit especially
aggravated burglary, and theft over $500, all of which were affirmed
on appeal. See State v. Montez Antuan Adams, No. 02C01-9709-CC-00352
(Tenn. Crim. App., Jackson, Sept. 1, 1998). The post-conviction court
appointed counsel, and after conducting an evidentiary hearing, it
denied relief. The petitioner appealed in a timely manner. Following
our review upon the record, we affirm the order denying
post-conviction relief.

http://www.tba.org/tba_files/TCCA/2005/adamsm51005.pdf

STATE OF TENNESSEE v. JERRY BELL

Court:TCCA

Attorneys:                          

Tony N. Brayton, Assistant Public Defender (on appeal); and Pam
Skelton, Assistant Public Defender (at trial), Memphis, Tennessee, for
the Appellant, Jerry Bell.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Jennifer Nichols, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Jerry Bell, was convicted by a Shelby County jury of
two counts of theft of property under $500, one count of aggravated
burglary, two counts of kidnapping, and two counts of rape. As a
result of these convictions, Bellreceived an effective sentence of
fourteen years, eleven months, and twenty-nine days. On appeal, Bell
raises the following issues for our review: (1) whether the evidence
is sufficient to support his convictions, (2) whether the trial
court's ruling permitting introduction of his juvenile record was
error, (3) whether the fines imposed by the trial court are excessive,
and (4) whether he was sentenced in violation of Blakely v.
Washington. After review of the record, we affirm.

http://www.tba.org/tba_files/TCCA/2005/bellj51005.pdf

STATE OF TENNESSEE v. ROBERT BRADLEY, JR. In Re: CLARENCE KEELEY d/b/a
A-BAIL BOND COMPANY

Court:TCCA

Attorneys:                          

Joel H. Moseley, Sr., Nashville, Tennessee; and Rebecca S. Mills,
Ripley, Tennessee, Attorneys for the Appellant.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey A. Brewer Walker, Assistant District Attorney
General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Clarence Keeley, d/b/a A-Bail Bond Company, appeals the
order of the Lauderdale County Circuit Court denying his petition for
reimbursement of the bond in the case of State of Tennessee v. Robert
Bradley, Jr. On appeal, Keeley argues that the trial court erred in
denying reimbursement of the $10,000 bail bond because (1) the circuit
court was without jurisdiction to enter a forfeiture on the bond which
secured Bradley's appearance in the general sessions court and (2)
Bradley's guilty pleas to the charges released A-Bail Bond Company
from its surety obligations. After review, we hold that the circuit
court was without jurisdiction to enforce the bail bond. Accordingly,
the judgment of the trial court is reversed, and reimbursement of the
bond is ordered as provided below.

http://www.tba.org/tba_files/TCCA/2005/bradleyr51005.pdf

STATE OF TENNESSEE v. KENNETH CARTER

Court:TCCA

Attorneys:                          

Ronald T. Riggs, Memphis, Tennessee, for the appellant, Kenneth
Carter.

Paul G. Summers, Attorney General &Reporter; Rachel E. Willis,
Assistant Attorney General; and Dennis Johnson and Paul Goodman,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: WADE

First Paragraph:

The defendant, Kenneth Carter, was indicted along with the
co-defendant, Varnard Wheeler,for theft of property over $60,000. By
agreement with the state, the defendant pled guilty to a reduced
charge of attempt to commit theft of property over $60,000, a Class C
felony with a Range I sentence of six years. The trial court denied
judicial diversion and ordered a sentence of ninety days in jail
followed by supervised probation. In this appeal of right, the
defendant argues that the trial court erred first by denying judicial
diversion and second by denying immediate probation.

http://www.tba.org/tba_files/TCCA/2005/carterk51005.pdf

ERIC BERNARD CHISM v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

C. Anne Tipton, Memphis, Tennessee, for the Appellant, Eric Bernard
Chism.

Paul G. Summers, Attorney General &Reporter; Preston Shipp, Assistant
Attorney General; James G. Woodall, District Attorney General; and Al
Earls, Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Eric Bernard Chism, appeals from the Madison County
Circuit Court's dismissal of his petition for post-conviction relief,
through which he had attacked his Madison County jury convictions of
felony murder, especially aggravated kidnapping, aggravated rape, and
aggravated sexual battery. The post-conviction court determined that
the petitioner failed to establish his claims of ineffective
assistance of trial counsel. We conclude that the record supports this
adjudication and affirm the order.

http://www.tba.org/tba_files/TCCA/2005/chisme51005.pdf

STATE OF TENNESSEE v. SHONDA KAY GARCIA

Court:TCCA

Attorneys:                          

Joseph P. Atnip, District Public Defender, for the appellant, Shonda
Kay Garcia.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and James T. Cannon and Kevin D. McAlpin, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Shonda Kay Garcia, pled guilty to child abuse and
neglect of a child six years of age or less, a Class D felony, in
exchange for a two-year sentence as a Range I, standard offender, with
the manner of service to be determined by the trial court. Finding
that the defendant lacked remorse and that a pattern of child abuse
and neglect had been established, the trial court denied the
defendant's request for alternative sentencing and ordered that she
serve her sentence in the Department of Correction. The defendant
appeals the denial of alternative sentencing. Following our review, we
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/garcias51005.pdf

SAMMIE NETTERS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Juni Samrat Ganguli, Memphis, Tennessee, for the appellant, Sammie
Netters.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Andre J. Thomas, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, SammieNetters, appeals the ShelbyCounty Criminal
Court's dismissal of his petition for post-conviction relief from his
conviction for aggravated robbery, a Class B felony. He claims that he
received the ineffective assistance of counsel because his attorney
failed to investigate his case adequately. We affirm the trial court.

http://www.tba.org/tba_files/TCCA/2005/netterss51005.pdf

ANTHONY NORFLEET v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Robert C. Brooks, Memphis, Tennessee, for the appellant, Anthony
Norfleet.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Stephanie Johnson, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Anthony Norfleet, appeals the denial of his petition
for post-conviction relief from his aggravated robbery conviction,
arguing that the post-conviction court erred in finding he received
effective assistance of trial counsel. Following our review, we affirm
the denial of the petition.

http://www.tba.org/tba_files/TCCA/2005/norfleeta51005.pdf

STATE OF TENNESSEE v. ANTHONY D. PARR

Court:TCCA

Attorneys:                          

Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Anthony D.
Parr.

Paul G.Summers, Attorney General and Reporter; Rachel
E.Willis,Assistant Attorney General; and C. Phillip Bivens, District
Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Anthony D. Parr, was convicted by a Dyer County jury of
the sale of over .5 grams of a Schedule II controlled substance,
cocaine, a Class B felony, and was sentenced as a Range I, standard
offender to ten years in the Department of Correction. On appeal, he
asserts: (1) the evidence was insufficient to sustain his conviction;
(2) the State failed to establish evidentiary chain of custody; and
(3) the prosecutor made prejudicial comments in the State's opening
arguments. Following our review, we affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/2005/parra51005.pdf

STATE OF TENNESSEE v. BILLY RAY SANLIN

Court:TCCA

Attorneys:                          

Robert Wilson Jones, Chief Shelby County Public Defender and W.Mark
Ward, Assistant Shelby County Public Defender, for the appellant,
Billy Ray Sanlin.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Amy Weirich, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The defendant, BillyRay Sanlin, was convicted by jury of two counts of
aggravated robbery and two counts of especially aggravated kidnapping.
On appeal he contends that: (1) he was substantially prejudiced when
the trial court improperly allowed the State to call his codefendant
to testify after the codefendant previously indicated his
unwillingness to testify; (2) the trial court erred in refusing to
allow his defense counsel to argue the difficulties inherent in
cross-racial identification in closing argument; and (3) the evidence
relating to the defendant's identification as the perpetrator of the
offenses was insufficient to support his convictions. Because we
determine that reversible error occurred in the State's direct
examination of the codefendant as a witness, we reverse the judgments
of the trial court and remand for a new trial consistent with this
opinion.

http://www.tba.org/tba_files/TCCA/2005/sanlinb51005.pdf

ALBERT SMITH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Britton J. Allan, Memphis, Tennessee, for the appellant, Albert Smith.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Dean DeCandia, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Albert Smith, appeals the denial of his petition for
post-conviction relief as timebarred. He contends that Blakely v.
Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), announced a new rule
of constitutional law that applies retroactively to his case, thereby
creating an exception to the one-year statute of limitations for
filing a post-conviction petition. He further contends that the
post-conviction court should have held an evidentiary hearing to
determine the reason for his late filing of the petition. We conclude
that the petitioner has not demonstrated that a valid exception to the
one-year statute of limitations exists in his case or that the
post-conviction court erred by denying the petition without an
evidentiary hearing. Accordingly, we affirm the post-conviction
court's summary denial of the petition.

http://www.tba.org/tba_files/TCCA/2005/smitha51105.pdf

STATE OF TENNESSEE v. STEVE CORNELL SNIPES

Court:TCCA

Attorneys:                          

Michael W. Whitaker, Covington, Tennessee, for the appellant, Steve
Cornell Snipes.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Garry Brown, District Attorney General;
and Jerald M. Campbell, Jr., Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Steve Cornell Snipes, pled guiltyin the Haywood County
Circuit Court to possession of over .5 grams of a Schedule II
controlled substance with the intent to deliver or sell, a Class B
felony, and was sentenced as a Range I, standard offender to eight
years in the Tennessee Department of Correction. As a condition of his
guilty plea, the defendant sought to reserve as a certified question
of law whether the trial court erred in finding that the affidavit
supporting the search warrant set forth sufficient facts establishing
the credibility of the confidential informant. Based on our review, we
affirm the order of the trial court.

http://www.tba.org/tba_files/TCCA/2005/snipess51005.pdf

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