TennBarU and the TBA Litigation Section present:
Quarterly Litigation Upate: Recent Developments in Litigation for
Tennessee Attorneys - Teleseminar
June 21 • Noon to 1 p.m. (Central Time) - Teleseminar

The TBA Litigation section presents this fast-paced, quarterly update
on recent developments in litigation for Tennessee attorneys. This
update will cover Tort Law. Listen in from the comfort of your own
office.

Today's Opinions: June 9, 2005
Volume 11 — Number 109
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
11 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


DAVID DEWAYNE FUNK v. THE TRAVELERS INDEMNITY COMPANY, GENLYTE THOMAS
GROUP, LLC, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Sharon E. England, Franklin, Tennessee, for appellants, Travelers
Indemnity Company and Genlyte Thomas Group, LLC.

Barry H. Medley, McMinnville, Tennessee, for appellee, David Dewayne
Funk

Judge: HARRIS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tennessee Code
Annotated S50-6-225(e)(3) for hearing and reporting to the Supreme
Court of findings of fact and conclusions of law. In this appeal, the
employer asserts that the trial court erred in awarding to the
employee a 66% vocational disability to body as a whole as a result of
his employment with Genlyte Thomas Group, LLC, in awarding temporary
total benefits and in commuting a portion of the award to a lump sum
for the plaintiff to purchase a vehicle. We conclude that the evidence
presented supports the findings of the trial judge and, in accordance
with Tenn. Code Ann. S50-6-225(e)(2), affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TSC_WCP/2005/funkd6905.pdf

BARBARA JOHNSON, ET AL. v. EDWARD PRATT, M.D.

Court:TCA

Attorneys:                          

Linda Kendall Garner of Memphis for Appellants, Barbara and Paul
Johnson

J. Kimbrough Johnson and Elizabeth Collins of Memphis for Appellees,
Edward Pratt, M.D. and Spine Memphis, a division of The Orthopaedic
Clinic

Judge: CRAWFORD

First Paragraph:

Plaintiff/Patient filed a complaint against Defendant/Doctor alleging
medical malpractice for failure to obtain her informed consent before
operating. The trial court granted summary judgment to
Defendant/Doctor on the basis that Plaintiff/Patient had failed to
meet the burden of proof required by T.C.A. B29-26-115 and T.C.A.
B29-26-118. Plaintiff appeals. We affirm.

http://www.tba.org/tba_files/TCA/2005/johnsonb6905.pdf

IN RE: M.L.D.

Court:TCA

Attorneys:                          

Larry E. Parrish, Memphis, Tennessee, for the appellants, J.M.T. and
D.C.T.

William T. Winchester, Memphis, Tennessee, for the appellee, M.A.D.

Judge: FARMER

First Paragraph:

Petitioners, Mother and her husband, brought a petition to terminate
Father's parental rights on the grounds of abandonment. The trial
court found that clear and convincing evidence did not support a
finding a willful abandonment and dismissed the petition. We affirm.

http://www.tba.org/tba_files/TCA/2005/mld6905.pdf

STATE OF TENNESSEE v. WILLIAM HARLON ADAMS

Court:TCCA

Attorneys:                          

Russ Eagle, Murfreesboro, Tennessee, for the appellant, William Harlon
Adams.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; MickeyLayne, District Attorney General;
and Jason Ponder, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, William Harlon Adams, appeals his convictions for
vandalism of less than five hundred dollars ($500) and criminal
attempt to commit resisting arrest. The following issues are presented
for our review: (1) whether the trial court erred in denying the
motion to suppress; (2) whether the trial court erred in instructing
the jury on the offense of attempt to resist arrest; (3) whether the
trial court erred in denying the motion to dismiss; (4) whether the
evidence was sufficient to support the conviction for vandalism; and
(5) whether the trial court correctly sentenced the appellant. After a
thorough review, we determine that attempt to resist arrest is not a
crime, thus, we reverse the appellant's conviction and remand the case
for any further proceedings which may be necessary. We affirm the
remainder of the judgment of the trial court, including the conviction
for vandalism.

http://www.tba.org/tba_files/TCCA/2005/adamsw6905.pdf

STATE OF TENNESSEE v. DEREK BATES

Court:TCCA

Attorneys:                          

Derek Bates, pro se (at trial); and W. Mark Ward, Assistant Shelby
County Public Defender, Memphis, Tennessee, for the appellant, Derek
Bates.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Jim Lammey, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Derek Bates, was convicted by a jury of two counts of
aggravated robbery, which the trial court subsequently merged into a
single conviction. The trial court sentenced the Defendant as a Range
I, standard offender to nine years in the Department of Correction. In
this direct appeal, the Defendant challenges the sufficiency of the
evidence and the constitutionality of his sentence. We affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/batesd6905.pdf

TERRY LEE CLIFTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Terry Lee Clifton, Pro Se, Appellant.

Paul G. Summers, Attorney General & Reporter; and David H. Findley,
Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Terry Lee Clifton pleaded guilty to one count of forgery in June 1977,
five counts of forgery in September 1977, and three counts of forgery
in 1981. Additionally, he was convicted of grand larceny in 1983.
Based on the petitioner's criminal history, he was sentenced as a
habitual offender after his 1983 conviction and therefore is currently
serving a life sentence. Since his incarceration, the petitioner has
challenged his convictions and sentences multiple times. See Terry Lee
Clifton v. State, No. 02C01-9110-CC-00234 (Tenn. Crim. App.,
Nashville, Apr. 13, 1994) (Clifton IV); State v. Terry Lee Clifton,
C.C.A. No. 26 (Tenn. Crim. App., Jackson, Nov. 7, 1990) (Clifton III);
State v. Terry Lee Clifton, C.C.A. No. 8 (Tenn. Crim. App., Jackson,
Feb. 19, 1986) (Clifton II); State v. Terry Lee Clifton, C.C.A. No. 22
(Tenn. Crim. App., Jackson, May 31, 1984) (Clifton I). In his current
pro se appeal, the petitioner challenges the lower court's dismissal
of his habeas corpus petition, which alleges that his life sentence is
void. After a thorough review of the record and applicable law, we
affirm.

http://www.tba.org/tba_files/TCCA/2005/cliftont6905.pdf

GREGORY EIDSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Gregory Eidson, pro se, Clifton, Tennessee.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and Joe James, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Gregory Eidson, filed a petition for wit of habeas
corpus seeking relief from allegedly void judgments, which the trial
court summarily dismissed. On appeal, the Petitioner contends that the
habeas corpus court erred when it dismissed his petition. Finding that
there exists reversible error in the judgment of the habeas corpus
court, we reverse its dismissal of the Petitioner's petition for
habeas corpus relief, and we remand the case for the appointment of
counsel and an evidentiary hearing.

http://www.tba.org/tba_files/TCCA/2005/eidsong6905.pdf

STATE OF TENNESSEE v. JAQUECE FITZGERALD

Court:TCCA

Attorneys:                          

F. Shayne Brasfield, Franklin, Tennessee, for the appellant, Jacquece
Fitzgerald.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Mary Katherine White, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The appellant, Jaquece Fitzgerald, appeals the revocation of his
probation bythe WilliamsonCounty Circuit Court. On appeal, the
appellant presents the single issue of whether the trial court erred
in revoking his probation without hearing the testimony of defense
witnesses. After reviewing the issue, we affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCCA/2005/fitzgeraldj6905.pdf

STATE OF TENNESSEE v. PAUL FRIEDMAN

Court:TCCA

Attorneys:                          

John E. Herbison, Nashville, Tennessee, for the appellant, Paul
Friedman.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; Mike Bottoms, District Attorney General;
Beverly J. White, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Paul Friedman, pled guilty to one count of promoting
prostitution. Pursuant to Tennessee Rule of Criminal Procedure 37, the
Defendant reserved as a certified question of law the issue of whether
Tennessee Code Annotated section 39-13-512 (2003), et seq., under
which he was indicted, was unconstitutional. We conclude that this
statute is constitutional, and the judgment of the trial court is
therefore affirmed.

http://www.tba.org/tba_files/TCCA/2005/friedmanp6905.pdf

DENNIS HARMON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Daryl A. Colson, Livingston, Tennessee, for the appellant, Dennis
Harmon.

Paul G.Summers, Attorney General and Reporter; Elizabeth T.Ryan and
John H.Bledsoe, Assistant Attorneys General; William Edward Gibson,
District Attorney General; and Owen G. Burnett, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Dennis Harmon, appeals the dismissal of his petition
for post-conviction relief, alleging that his counsel was ineffective
and that his guilty plea was not knowingly and voluntarily entered.
After an evidentiary hearing, the post-conviction court dismissed the
petition, and the petitioner appealed. Upon review of the record and
the parties' briefs, we affirm the judgment of the post-conviction
court.

http://www.tba.org/tba_files/TCCA/2005/harmond6905.pdf

STATE OF TENNESSEE v. COREY HUDDLESTON

Court:TCCA

Attorneys:                          

Michael J. Flanagan, Nashville, Tennessee (on appeal), and Mitchell
B.Dugan, Dickson, Tennessee (at trial), for the appellant, Corey
Huddleston.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Kim Menke and Suzanne Lockert, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Corey Huddleston, was convicted of multiple counts of
theft of property valued under $500, vandalism of property valued
under $500, and criminal trespass. He received sentences of eleven
months and twenty-nine days for each of his theft and vandalism
convictions and thirty days for each of his criminal trespass
convictions. On appeal, the appellant challenges the trial court's
imposition of consecutive sentencing. Upon our review of the record
and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/huddlestonc6905.pdf

STATE OF TENNESSEE v. SHAWNTA LAMONT MARSH

Court:TCCA

Attorneys:                          

Fannie J. Harris, Nashville, Tennessee, for the appellant, Shawnta
Lamont Marsh.

Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant
Attorney General; and Ann L. Filer and Michael D. Randles, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Shawnta Lamont Marsh, pled guilty to six counts of sale
or delivery of cocaine over .5 grams. The trial court merged all but
three of the convictions and ordered the defendant to serve
consecutive sentences of eight years and one month for each offense.
The effective sentence is twenty-four years and three months. In this
appeal of right, the defendant contends that the trial court erred by
ordering consecutive sentencing. The judgments of the trial court are
affirmed.

http://www.tba.org/tba_files/TCCA/2005/marshs6905.pdf

LARRY C. STRONG v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Larry C. Strong, West Tennessee State Penitentiary, Henning,
Tennessee, Pro Se.

Paul G.Summers,Attorney General and Reporter; Preston Shipp, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General;
and Pamela Anderson, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The pro se petitioner, Larry C. Strong, appeals the dismissal of his
petition for post-conviction relief as time-barred, arguing that he
should have been afforded an evidentiary hearing to present proof of
his timely filing of the petition. Following our review, we affirm the
post-conviction court's summary dismissal of the petition.

http://www.tba.org/tba_files/TCCA/2005/strongl6905.pdf

JOHNNIE M. TALLEY, III v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Tony L. Maples, Murfreesboro, Tennessee, and Mark M. Mizell, Franklin,
Tennessee, for the appellant, Johnnie M. Talley, III.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper and
Renee W. Turner, Assistant Attorneys General; Ronald L. Davis,
District Attorney General; and Derek K. Smith, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

After a bench trial, the Williamson County Criminal Court convicted
the petitioner, Johnnie M. Talley, III, of five counts of making a
false report and sentenced him to an effective sentence of eight years
in the Department of Correction (DOC). Subsequently, the petitioner
filed a petition for post-conviction relief, alleging (1) that his
counsel was ineffective for failing to have him evaluated by a
psychologist and (2) that he did not knowingly and voluntarily waive
his rights to a jury trial or to testify. After an evidentiary
hearing, the post-conviction court dismissed the petition, and the
petitioner now appeals. Upon review of the record and the parties'
briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/talleyj6905.pdf

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