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Today's Opinions: May 11, 2005
Volume 11 — Number 089
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
05 New Opinion(s) from the Tennessee Court of Criminal Appeals
03 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


KATHY McPEAK v. VIRGINIA THOMAS

Court:TCA

Attorneys:                          

John S. Anderson, Rogersville, Tennessee, for appellant. 

Mark A. Skelton, Rogersville, Tennessee, for appellee.

Judge: FRANKS

First Paragraph:

Defendant appealed from the Trial Court's Judgment in favor of
plaintiff. On appeal, appellant argues the Trial Court erred in ruling
for appellee and appellee should be estopped from gaining possession
of the property in dispute. We affirm.

http://www.tba.org/tba_files/TCA/2005/mcpeakk51105.pdf

ALLIANCE FOR NATIVE AMERICAN INDIAN RIGHTS IN TENNESSEE, INC. ET AL.
v. GERALD F. NICELY ET AL.

Court:TCA

Attorneys:                          

Joseph H. Johnston, Nashville, Tennessee, for the appellants, Alliance
for Native American Indian Rights in Tennessee, Inc., Patrick Cummins,
Sandi Perry, Toye Heape, and Marion Dunn.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, and John H. Sinclair, Jr., Assistant Attorney
General, for the appellees, Gerald F. Nicely, Commissioner of the
Tennessee Department of Transportation, and the State of Tennessee.

Judge: KOCH

First Paragraph:

This appeal involves the effect of a highway improvement project on
ancient Native American graves. After discovering the graves during
construction, the Tennessee Department of Transportation filed
petitions in the ChanceryCourts for Williamsonand Davidson Counties
seeking permission to disinter the remains and reinter them in another
location. Despite prevailing in protracted litigation with Native
American organizations and individuals,the Department voluntarily
dismissed both petitions after deciding to bury the remains in place,
to encapsulate them in reinforced concrete, and to continue
construction on top of the encapsulated graves. A Native American
organization and several Native American individuals filed this suit
in the ChanceryCourt for Davidson County asserting that the
Department's actions violated their equal protection and due process
rights under the Fourteenth Amendment to the United States
Constitution. The trial court dismissed the complaint on the ground
that it failed to state a claim upon which relief could be granted,
and the Native American parties appealed. Construction continued while
the appeal was pending because the Native American parties failed to
request the trial court or this court to stay the construction during
the appeal. Before oral argument in this appeal, the Department
completed the construction project, including the reinterment of the
remains and encapsulation of the graves in concrete. In light of these
later developments, we have determined that this appeal is now moot
and should be dismissed.

http://www.tba.org/tba_files/TCA/2005/nativeamerican51105.pdf

LOUIS HUDSON ROBERTS v. MARY ELIZABETH TODD ROBERTS

Court:TCA

Attorneys:                          

Connie Reguli, Brentwood, Tennessee, for the appellant, Mary Elizabeth
Todd Roberts.

Jon S. Jablonski, Nashville, Tennessee, for the appellee, Louis Hudson
Roberts.

Judge: CAIN

First Paragraph:

This is an appeal by the former wife from the denial of her Tennessee
Rule of Civil Procedure 60.02 Motion to Strike or Modify a Marital
Dissolution Agreement relative to marital property. We modify and
affirm the action of the trial court.

http://www.tba.org/tba_files/TCA/2005/robertsl51105.pdf

RAYMOND P. WHITE, ET AL. v. HICKMAN COUNTY, TENNESSEE

Court:TCA

Attorneys:                          

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Raymond
P. White.

Peggy L. Tolson, Catherine Schmidt, Brentwood, Tennessee, for the
appellee, Hickman County, Tennessee.

Judge: CAIN

First Paragraph:

In these consolidated cases, certain property owners in Hickman
County, Tennessee, challenged the way Hickman County imposed and
administered solid waste disposal fees, asserting the improper use of
disposal fees to retire debt incurred in closing a previous landfill
and further asserting collection of fees beyond what was necessary for
the operation of the solid waste department. Judge R.E. Lee Davies
granted a partial summaryjudgment to the County, and following trial
on the merits on the remaining issue, Judge Timothy Easter rendered
judgment for Defendant, Hickman County. We affirm the actions of both
of the trial judges.

http://www.tba.org/tba_files/TCA/2005/whiter51105.pdf

STATE OF TENNESSEE v. NATHANIEL CHAMPION

Court:TCCA

Attorneys:                          

Margaret C. Lamb, Tullahoma, Tennessee (at trial and on appeal) and
Laura D. Riddle and B. Campbell Smoot, Tullahoma, Tennessee (on
appeal) for the appellant, Nathaniel Champion.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; C. MichaelLayne, District Attorney
General; Jason Ponder, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Coffee County jury convicted the Defendant, Nathaniel Champion, of
the sale of a controlled substance, cocaine, and the trial court
sentenced the Defendant to three years. On appeal, the Defendant
contends that: (1) the evidence is insufficient to sustain his
conviction for the sale of cocaine; and (2) the trial court erred when
it denied the Defendant's motion for dismissal of appointed counsel.
Finding no reversible error, we affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/2005/championn51105.pdf

STATE OF TENNESSEE v. DOUGLAS E. COPELAND

Court:TCCA

Attorneys:                          

David Neal Brady, District Public Defender, and H. Marshall Judd,
Assistant Public Defender, for the appellant, Douglas E. Copeland.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; WilliamEdward Gibson, District Attorney
General; and David Alan Patterson and Marty S. Savage, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Douglas E. Copeland, was convicted by a Putnam County
Criminal Court jury of driving under the influence of an intoxicant
(DUI), a Class A misdemeanor, and driving on a suspended license, a
Class B misdemeanor. The trial court imposed a sentence of eleven
months, twenty-nine days for the DUI conviction, with probation after
ten days in jail, to be served concurrently with his sentence of six
months on probation for the driving with a suspended license
conviction. The trial court also ordered that the defendant pay fines
totaling $860.00. On appeal, the defendant contends that the evidence
was insufficient to support his DUI conviction and that the trial
court erred by failing to instruct the jury that his inoperable
vehicle was a defense to the DUI offense. We affirm the trial court.

http://www.tba.org/tba_files/TCCA/2005/copelandd51105.pdf

WILLIE TOM ENSLEY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Dwight E. Scott, Nashville, Tennessee, for the appellant, Willie Tom
Ensley.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and John Zimmerman, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals from the dismissal of his Post-Conviction DNA
Analysis Petition. Dismissal followed an unfavorable result for the
petitioner after DNA analysis of a portion of the evidence. Upon
review, we affirm the dismissal.

http://www.tba.org/tba_files/TCCA/2005/ensleyw51105.pdf

STATE OF TENNESSEE v. LEONARD DALE KINCER

Court:TCCA

Attorneys:                          

J. Al Johnson, Spencer, Tennessee (on appeal), and Billy K. Tollison,
III, McMinnville, Tennessee (at trial), for the Appellant, Leonard
Dale Kincer.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; C. Dale Potter, District Attorney General;
and Larry G. Bryant, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Van Buren County Jury found the Defendant, Leonard Dale Kincer,
guilty of facilitation of the manufacture of one hundred grams or more
of a substance containing methamphetamine. The trial court sentenced
the Defendant to four years. On appeal, the Defendant contends that:
(1) the evidence is insufficient to support his conviction; (2) the
trial court erred in its instruction to the jury on facilitation; (3)
the State committed prosecutorial misconduct by introducing
prejudicial information during its closing argument; and (4) the
statute under which the Defendant was convicted is unconstitutional.
After thoroughly reviewing the record and the applicable authorities,
we affirm the Defendant's conviction and sentence, and remand for
entry of an amended judgment in Count one

http://www.tba.org/tba_files/TCCA/2005/kincerl51105.pdf

STATE OF TENNESSEE v. TERRY WAYNE MITCHELL

Court:TCCA

Attorneys:                          

Bruce E. Myers, Livingston, Tennessee, for the appellant, Terry Wayne
Mitchell.

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

Judge: WEDEMEYER

First Paragraph:

The Defendant, Terry Wayne Mitchell, pled guilty to burglary of an
automobile and theft of property over $500.00, in case number 5504,
and possession of a schedule IV controlled substance, in case number
5505. The trial court sentenced the Defendant to three years and six
months, as a Range II offender, for each of the convictions in case
5504, and it sentenced the Defendant to eleven months and twenty-nine
days for the conviction in case 5505. The trial court further ordered
that the two sentences in case 5504 would be served consecutively, and
the sentence in 5505 would run concurrently. On appeal, the Defendant
contends that: (1) the trial court erred by not recusing itself; and
(2) the trial court erred when it sentenced the Defendant. After a
thorough review of the record, we affirm the Defendant's convictions
and sentences.

http://www.tba.org/tba_files/TCCA/2005/mitchellt51105.pdf

Senate Bill 1971/House Bill 1666 - Display of the American Flag -
Restrictive Covenants - Constitutionality

Date: May 9, 2005

Opinion Number: 05-074

http://www.tba.org/tba_files/AG/2005/op74.pdf

Powers of Legislature to Delegate Power to an Executive Committee

Date: May 9, 2005

Opinion Number: 05-075

http://www.tba.org/tba_files/AG/2005/op75.pdf

Conduct of proposed legislation's "public adjuster" may constitute
unauthorized practice of law

Date: May 10, 2005

Opinion Number: 05-076

http://www.tba.org/tba_files/AG/2005/op76.pdf

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