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Mark your calendars for a new YLD Transactional Law CLE coming to a
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Today's Opinions: June 6, 2005
Volume 11 — Number 106
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
02 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

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


THEODORE CARL WILHOIT v. WAL-MART DISTRIBUTION CENTER, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

John T. Milburn Rogers, Rogers, Laughlin, Nunnally, Hood & Crum,
Greeneville, Tennessee for Appellant Theodore Carl Wilhoit

Robert M. Asbury, Allen, Kopet & Associates, PLLC, Knoxville,
Tennessee for the Appellee Wal-Mart Distribution Center, Inc.

Judge: PEOPLES

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 S 50-6-225(e)(3) for hearing and
reporting of findings of fact and conclusions of law. The employee
asserts he is permanently and totally disabled and appeals a finding
of 80 percent permanent partial disability. We modify the award.

http://www.tba.org/tba_files/TSC_WCP/2005/wilhoitt6605.pdf

GARY FLANARY, ET AL. v. CARL GREGORY DODGE OF JOHNSON CITY, LLC

Court:TCA

Attorneys:                          

Gordon Ball, Knoxville, Tennessee, for the appellant, Gary Flanary, on
behalf of himself and all others similarly situated.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellee, Carl
Gregory Dodge of Johnson City, LLC.

Judge: SUSANO

First Paragraph:

Gary Flanary filed suit against Carl Gregory Dodge of Johnson City,
LLC ("the dealership") and alleged that the dealership, without
negotiation and without his knowledge or consent, had charged him with
an "administrative fee" in connection with his purchase of a vehicle.
Flanary claimed that this practice violated, inter alia, the Tennessee
Consumer Protection Act ("the TCPA"). He sought class action
certification. The dealership filed a motion for summary judgment,
relying upon the arbitration agreement ("the Agreement") signed by
Flanary at the time he purchased the vehicle. It contended that
Flanary was bound to arbitrate any claims he had against the
dealership. The trial court stated that it personally did not believe
an agreement to arbitrate under the circumstances of this case was
fair; but, nevertheless, it opined that it felt compelled by the
current state of the law to hold that arbitration was mandated by the
terms of the Agreement. Flanary appeals the trial court's order
requiring him to submit to arbitration. We affirm the judgment below
to the extent the trial court, albeit reluctantly, held that the
Agreement, on its face, is enforceable. However, based upon our
determination that the Agreement was never accepted by the dealership,
we vacate so much of the trial court's judgment as holds that the
parties entered into a contract to arbitrate. Accordingly, we remand
for further proceedings on Flanary's complaint.

http://www.tba.org/tba_files/TCA/2005/flanaryg6605.pdf

LANCE GRIGSBY, ET AL. v. CITY OF PLAINVIEW

Court:TCA

Attorneys:                          

Michael G. Hatmaker, Jacksboro, Tennessee, for the Appellants Lance
Grigsby, Lori Grigsby and Wanda Cherry Evans.

Jon G. Roach, Knoxville, Tennessee, for the Appellee City of
Plainview.

Judge: SWINEY

First Paragraph:

East Tennessee Pioneer Oil Company owned and operated a Spur
convenience store in Plainview, Tennessee. As part of a bankruptcy
proceeding, the Spur was sold at public auction. Potential purchasers
were informed prior to the sale that the Spur was being sold with an
active beer permit so long as the purchaser retained Wanda Cherry
Evans ("Evans") as manager. In September of 2002, Lance and Lori
Grigsby purchased the Spur, retained Evans as manager, and continued
to sell beer after renaming the store the All American Market and
Deli. On February 20, 2003, the beer board (the "Board") for the City
of Plainview voted to revoke the beer permit. On July 3, 2003, the
Grigsbys and Evans ("Plaintiffs") filed a complaint requesting the
Trial Court grant a writ of certiorari and review the action of the
beer board in revoking the beer permit. The City of Plainview (the
"City") filed a motion to dismiss claiming that the Trial Court lacked
subject matter jurisdiction because the complaint was not filed within
sixty days from the entry of the Board's order or judgment and,
therefore, the complaint was time barred. The Trial Court agreed and
dismissed the complaint. We vacate the judgment of the Trial Court and
remand for further proceedings.

http://www.tba.org/tba_files/TCA/2005/grigsbyl6605.pdf

STATE OF TENNESSEE v. PATRICK LAMONT BARKER

Court:TCCA

Attorneys:                          

Russell A. Church (at hearing) and Roger E. Nell (on appeal)
Clarksville, Tennessee, for the appellant, Patrick Lamont Barker.

Paul G.Summers, Attorney General and Reporter; Elizabeth B.Marney,
Assistant Attorney General; John W. Carney, Jr., District Attorney
General; and Daniel Brollier, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Patrick Lamont Barker, pled guilty to two counts of the
sale of .5 grams or more of a schedule II controlled substance. The
trial court sentenced him to eight years on each conviction and
ordered that the sentences run concurrently and be served in community
corrections. The Defendant violated the terms of his community
corrections sentence, and the trial court ordered the Defendant to
serve the remainder of his sentence in prison. The Defendant now
appeals. Finding no error in the judgment of the trial court, we
affirm the Defendant's sentence.

http://www.tba.org/tba_files/TCCA/2005/barkerp6605.pdf

STATE OF TENNESSEE v. ELLIS J. BURNETT

Court:TCCA

Attorneys:                          

David Wayne Piper, Woodbury, Tennessee (at trial) and Daryl M.South,
Murfreesboro, Tennessee (at trial and on appeal), for the appellant,
Ellis J. Burnett.

Paul G.Summers, Attorney General and Reporter; Elizabeth B.Marney,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and David L. Puckett, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Ellis J. Burnett, was convicted by a jury in the Cannon
County Circuit Court of aggravated arson. He received a sentence of
twenty-three years incarceration in the Tennessee Department of
Correction. On appeal, the appellant challenges the sufficiency of the
evidence, the jury instructions, the prosecutor's closing argument,
the trial court's evidentiary rulings, and alleges the ineffective
assistance of counsel. Upon our review of the record and the parties'
briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/burnette6605.pdf

KELVIN WADE CLOYD v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kelvin Wade Cloyd, Appellant, Pro Se.

Paul G.Summers, Attorney General &Reporter; and KathyD.Aslinger,
Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Kelvin Wade Cloyd, appeals the Johnson County Criminal
Court's summary dismissal of his petition for habeas corpus relief.
Following our review upon the record, we vacate the order and remand
for further proceedings.

http://www.tba.org/tba_files/TCCA/2005/cloydk6605.pdf

STATE OF TENNESSEE v. CHARLES DRAKE

Court:TCCA

Attorneys:                          

Patrick T. Phillips, Knoxville, Tennessee; and Tommy Hindman,
Knoxville, Tennessee, for the Appellant, Charles Drake.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Zane Scarlett, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Charles Drake, stands convicted of aggravated assault
with a deadly weapon and DUI. For the aggravated assault conviction,
the trial court sentenced the defendant to four years, split
confinement with supervised probation after service of six months'
confinement. For the DUI conviction, the trial court imposed a
sentence of 11 months and 29 days with a release eligibility at 75
percent. On appeal, the defendant asserts (1) that the evidence is
insufficient to support his conviction of aggravated assault; (2) that
the trial court committed reversible error in prohibiting the defense
from presenting to the jury an animation of the automobile collision
giving rise to the charges against the defendant; (3) that the trial
court committed reversible error in admitting the results of a blood
toxicology test; and (4) that his sentence is excessive. After
thoroughly reviewing the record and applicable authorities, we find
sufficient evidence to support the conviction, no error in the
admission or exclusion of evidence at trial, and appropriate
sentencing. We, therefore, affirm the convictions and sentences.

http://www.tba.org/tba_files/TCCA/2005/drakec6605.pdf

STATE OF TENNESSEE v. DAVE LONG

Court:TCCA

Attorneys:                          

B. Jeffery Harmon, Jasper, Tennessee, for the appellant, Dave Long.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; and J. Michael Taylor, District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

After entering a plea of guilty, the Defendant, Dave Long, was
convicted of one count of burglary, a Class D felony. Pursuant to a
plea agreement, the Defendant was to be sentenced to six years as a
Range II, multiple offender, with the trial court to establish the
manner of service. Following a sentencing hearing, the trial court
ordered the Defendant serve his entire sentence with the Tennessee
Department of Correction (TDOC). On appeal, the Defendant argues that
the trial court erred in denying him probation or other alternative
sentencing. We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/longd6605.pdf

JONATHAN MALCOLM MALONE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jonathan Malcolm Malone, pro se.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi,
Assistant Attorney General; and William C. Whitesell, District
Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Jonathan Malcolm Malone, pled guilty to several
offenses in two separate cases, the second of which was for an offense
committed while he was out on bail for the first offenses. The trial
court sentenced him to consecutive sentences, and awarded pretrial
jail credit towards the sentences in the first case. The Defendant
petitioned for the jail credit to be applied toward the sentence in
his second case, and the trial court denied his request. The Defendant
now appeals. Because we have concluded that the Tennessee Rules of
Appellate Procedure do not provide the Defendant a Rule 3 Appeal as of
Right, we dismiss the Defendant's appeal.

http://www.tba.org/tba_files/TCCA/2005/malonej6605.pdf

STATE OF TENNESSEE v. COURTNEY MEANS

Court:TCCA

Attorneys:                          

Robert Wilson Jones, Shelby County Public Defender; W. Mark Ward,
Assistant Public Defender (on appeal); and Trent Hall, Assistant
Public Defender (at trial), for the appellant, Courtney Means.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Paul Hagerman and Alexa Fulgham, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Courtney Means, was convicted by a Shelby County
Criminal Court jury of eight counts of aggravated robbery, a Class B
felony, based on three separate incidents involving four victims.
After merging the separate counts involving the same victim, the trial
court sentenced the defendant as a Range I, standard offender to nine
years for each of the remaining four convictions, with two of the
sentences to be served consecutively, for an effective sentence of
eighteen years in the Department of Correction. In this timely appeal
as of right, the defendant challenges both the trial court's
application of enhancement factors to increase his sentences beyond
the eight-year minimum for his range and its imposition of consecutive
sentencing. Following our review, we affirm the judgments of the trial
court.

http://www.tba.org/tba_files/TCCA/2005/meansc6605.pdf

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