TennBarU & the TBA Young Lawyers Division present … Introduction to
Transactional Practice
• July 26 in Knoxville
• July 27 in Memphis
• July 27 in Nashville
• July 28 in Chattanooga

Mark your calendars for a new YLD Transactional Law CLE coming to a
city near you this summer! The six-hour seminar will provide basic
information and resources to non-litigating attorneys. Topics will
include contract drafting, estate planning, mediation, intellectual
property, real estate transactions and business entity formation.

Today's Opinions: June 13, 2005
Volume 11 — Number 111
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
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


HAL GERBER v. VIRGINIA STARR SEGAL

Court:TCA

Attorneys:                          

Ed M. Hurley, Memphis, Tennessee, for the appellant, Virginia Starr
Segal.

James D. Wilson, Memphis, Tennessee, for the appellee, Hal Gerber.

Judge: KIRBY

First Paragraph:

This is the second appeal in an action to collect attorney's fees. The
plaintiff attorney represented the defendant in her divorce action,
which lasted from 1996 to 1999. He billed the defendant approximately
$100,000 for his services. Over the course of the divorce action, the
defendant paid the plaintiff about $61,000, and still owed a balance
of about $39,000. The attorney filed this lawsuit to recover the
balance. After a two-day trial, the trial court concluded that the
plaintiff attorney's fees were fair and reasonable, and that the
defendant owed the plaintiff the fees claimed. The defendant now
appeals that decision. We affirm.

http://www.tba.org/tba_files/TCA/2005/gerberh61305.pdf

CAROL ANN PELLETT SMITH v. WILLIAM ASHBY SMITH, JR

Court:TCA

Attorneys:                          

William Ashby Smith, Jr., Nashville, Tennessee, pro se.

James Weatherly, Nashville, Tennessee, for the appellee, Carol Ann
Pellett Smith.

Judge: CAIN

First Paragraph:

In this post-divorce proceeding, Wife sought an increase in child
support based upon Husband's substantial inheritance from his mother.
She also sought relief for Husband's alleged breach of the Marital
Dissolution Agreement relative to the disposition of property. She
further sought child support based upon imputed income of Husband
because of voluntary underemployment. Husband appealed the judgment of
the trial court. Wife assigned error as to certain findings by the
trial court. We affirm as modified herein the judgment of the trial
court.

http://www.tba.org/tba_files/TCA/2005/smithc61305.pdf

TENNESSEE INSURANCE GUARANTY ASSOCIATION v. CENTRE INSURANCE COMPANY

Court:TCA

Attorneys:                          

Julie Murphy Burnstein, William Daniel Leader, Jr., Nashville,
Tennessee, for the appellant, Tennessee Insurance Guaranty
Association.

Tyree Bryson Harris, IV, Alfred H. Knight, Nashville, Tennessee, for
the appellee, Centre Insurance Company.

Judge: CAIN

First Paragraph:

Tennessee Insurance Guaranty Association, a statutory agency created
to meet certain obligations of insolvent insurance companies relative
to workers' compensation, sued Centre Insurance Company seeking
exoneration of certain workers' compensation obligations assumed by
the agency upon the insolvency of Commercial Compensation Insurance
Company. The trial judge granted summary judgment to Centre, and we
affirm the action of the trial court

http://www.tba.org/tba_files/TCA/2005/tiga61305.pdf

KAREN ANN WALTON v. WILLIAM ARTHUR TICE

Court:TCA

Attorneys:                          

M. Jeffrey Whitt, Knoxville, Tennessee, for the Appellant, William
Arthur Tice.

Virginia A. Schwamm, Knoxville, Tennessee, for the Appellee, Karen Ann
Walton.

Judge: SWINEY

First Paragraph:

Karen Ann Walton ("Mother") and William Arthur Tice ("Father") are the
parents of a minor child ("the Child"). Mother and Father never
married, but joined in filing a Petition for Legitimation averring
that Father was the Child's natural parent. In 1994, the Trial Court
entered an order finding the child support guidelines inapplicable due
to the extensive amount of co-parenting time the Child spent with each
parent. In 2003, Mother filed a petition seeking, in part, to modify
Father's child support obligation. The case was tried and the Trial
Court entered an order finding inter alia, that Father, although
unemployed, "has the ability to earn substantial income in the amount
of One Hundred and Sixty-Two Thousand Dollars ($162,000) per year and
child support shall be set in the Guidelines amount of Two Thousand
and Fifteen Dollars ($2,015.00) per month." Father appeals. We affirm.

http://www.tba.org/tba_files/TCA/2005/waltonk61305.pdf

STATE OF TENNESSEE v. DARRYL AMMONS

Court:TCCA

Attorneys:                          

Michael J. Flanagan, (on appeal) Nashville Tennessee, and James O.
Martin, (at trial) Nashville, Tennessee, for the appellant, Darryl
Ammons.

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

Judge: MCLIN

First Paragraph:

The defendant, Darryl Ammons, was indicted and tried for one count of
attempt to commit first degree murder and aggravated assault. He was
subsequently convicted by a jury of attempted criminally negligent
homicide and aggravated assault. The trial court merged the conviction
for attempted criminally negligent homicide into the conviction for
aggravated assault and sentenced the defendant to ten years as a Range
II multiple offender. Upon review, we vacate the defendant's
conviction for attempted criminally negligent homicide but affirm his
conviction for aggravated assault.

http://www.tba.org/tba_files/TCCA/2005/ammonsd61305.pdf

STATE OF TENNESSEE v. JOHNNY QUENT CRUDUP

Court:TCCA

Attorneys:                          

Jerry Gonzalez, Nashville, Tennessee, for the appellant, Johnny Quent
Crudup.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Tom P. Thompson, Jr., District Attorney
General; Brian W. Fuller, Assistant District Attorney General; and
Robert N. Hibbett, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Johnny Quent Crudup, was indicted on two counts of theft of
property of more than $1,000 but less than $10,000, a Class D felony,
and two counts of theft of property of more than $10,000 and less than
$60,000, a Class C felony. Defendant filed an application for pretrial
diversion which was subsequently denied by the district attorney
general. The trial court denied the writ of certiorari and affirmed
the district attorney general's decision. Defendant was granted
permission to take an interlocutory appeal pursuant to Rule 9 of the
Tennessee Rules of Appellate Procedure. Defendant contends that the
district attorney general abused his discretion in denying Defendant's
application, and that the denial was improperly made by an assistant
district attorney instead of the district attorney. We affirm the
trial court's order denying pretrial diversion.

http://www.tba.org/tba_files/TCCA/2005/crudupJ61305.pdf

STATE OF TENNESSEE v. JEFFREY LYNN CULLEY

Court:TCCA

Attorneys:                          

Joe L. Finley, Jr., Assistant Public Defender, for the appellant,
Jeffrey Lynn Culley.

Paul G. Summers, Attorney General &Reporter; Richard H.Dunavant,
Assistant Attorney General; and John A. Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Jeffrey Lynn Culley, was convicted of attempted
burglary, a Class E felony, and vandalism under $500, a Class
Amisdemeanor. See Tenn. Code Ann. SS 39-14-402, -408. The trial court
ordered concurrent sentences of four years for the attempted burglary
and eleven months, twenty-nine days for the vandalism. In this appeal
of right, the defendant argues that the evidence was insufficient and
that his attempted burglary sentence is excessive. The judgments of
the trial court are affirmed.

http://www.tba.org/tba_files/TCCA/2005/culleyj61305.pdf

STATE OF TENNESSEE v. MARK RAY DELASHMIT

Court:TCCA

Attorneys:                          

J. Barney Witherington, IV, Covington, Tennessee, for the appellant,
Mark Ray Delashmit.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; James Walter Freeland, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Mark Ray Delashmit, entered pleas of guilt to
manufacturing methamphetamine, a Schedule II drug, and to possessing
methamphetamine with the intent to deliver. The trial court imposed
concurrent, four-year sentences in a community corrections program. As
part of the plea agreement, the defendant reserved a certified
question of law pursuant to Rule 37(b)(2)(i) of the Tennessee Rules of
Criminal Procedure. The question that has been certified for review by
the trial court is "[w]hether the search warrant executed upon
Defendant's residence was supported by probable cause. Specifically,
whether there is an adequate showing of the reliability and
credibility of the informant." The judgments are affirmed.

http://www.tba.org/tba_files/TCCA/2005/delashmitm61305.pdf

RICKY THOMAS HUGHES, II v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

David M. Hopkins, Nashville, Tennessee, for the appellant, Ricky
Thomas Hughes, II.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, III., District Attorney
General; and Roger Moore, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The petitioner, Ricky Thomas Hughes, II, appeals from the
post-conviction court's denial of post-conviction relief. On appeal,
he contends that he received the ineffective assistance of counsel
when his trial counsel failed to properly investigate and prepare his
case for trial and failed to advise him of the consequences of
proceeding to trial. The petitioner also contends that his sentences
are invalid under Blakely v. Washington, 542 U.S. ----, 124 S.Ct. 2531
(2004). Following our review, we affirm the judgment of the
post-conviction court denying post-conviction relief.

http://www.tba.org/tba_files/TCCA/2005/hughesr61305.pdf

JAMES P. HYDE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

James P. Hyde, Mountain City, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; C. Berkely Bell, Jr., District Attorney
General, for the Appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The pro se petitioner, James P. Hyde, appeals from the trial court's
order denying the petitioner's motion to reopen his post-conviction
petition. The states moves the court to affirm the judgment of the
trial court pursuant to Rule 20 of this court's rules. The motion was
properly denied for lack of merit. Accordingly, the state's motion is
granted and the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/hydej61305.pdf

STATE OF TENNESSEE v. SCOTT MCCLAIN

Court:TCCA

Attorneys:                          

Scott Pratt, Johnson City, Tennessee, for the appellant, Scott
McClain.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Joe Crumley, District Attorney
General; and Stan Widener and Janet Hardin, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Scott McClain, pled guilty in the Washington County
Criminal Court to driving under the influence (DUI) with a blood
alcohol content greater than .20. He received a sentence of eleven
months and twenty-nine days incarceration in the Washington County
Jail. As a condition of his plea, the appellant reserved certified
questions of law concerning the suppression of the results of his
blood alcohol test. 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/mcclains61305.pdf

STATE OF TENNESSEE v. BOBBY NELSON

Court:TCCA

Attorneys:                          

B. Jeffery Harmon, Assistant Public Defender, Jasper, Tennessee, for
the appellant, Bobby Nelson.

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

Judge: WELLES

First Paragraph:

The Defendant, Bobby Nelson, upon his plea of guilty, was convicted of
arson, a Class C felony. Pursuant to the plea agreement, the trial
court was to establish the length and manner of service of the
Defendant's sentence. The sentence for arson was to be served
concurrently with another sentence the Defendant was already serving
for prior convictions. Following a sentencing hearing, the trial court
found the Defendant was a Range I, standard offender, sentenced him to
four and a half years, and ordered the Defendant serve his entire
sentence with the Tennessee Department of Correction (TDOC). On
appeal, the Defendant argues two issues pertaining to sentencing: (1)
the trial court erred by imposing an excessive sentence, and (2) the
trial court erred in denying probation or alternative sentencing. We
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/nelsonb61305.pdf

STATE OF TENNESSEE v. CHRIS EDWARD PORTER

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee; and Andrew Jackson Dearing,
Shelbyville, Tennessee, for the Appellant, Chris Edward Porter.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; W. Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Chris Edward Porter, appeals the sentencing decision of
the Marshall County Circuit Court which resulted in the imposition of
an effective ten-year sentence of incarceration. On appeal, Porter
challenges the trial court's denial of alternative sentencing. After
review of the record, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/porterc61305.pdf

STATE OF TENNESSEE v. JOSE LUIS QUINTERO
CORRECTED OPINION WITH MEMO

Court:TCCA

Attorneys:                          

Gregory D. Smith (on appeal), Clarksville, Tennessee, William Cather
(at trial and on appeal), Lebanon, Tennessee, Comer Donnell, (at
trial), Lebanon, Tennessee, and Michie Gibson (at trial), Nashville,
Tennessee, for the appellant, Jose Luis Quintero.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Tom P. Thompson, District Attorney
General; and David Durham, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

After a bench trial, the Defendant, Jose Luis Quintero, was convicted
of the first degree murders of Meceia Nelson and Darius Boleyjack. The
Defendant waived a sentencing hearing and agreed to a sentence of two
concurrent terms of life imprisonment without the possibility of
parole. In this direct appeal, the Defendant contends that 1) the
evidence is not sufficient to support his convictions; 2) the
Defendant's statement to the police should have been suppressed; and
3) the trial court erred in allowing a witness to testify about
statements made to her by one of the victims. Finding no errors
entitling the Defendant to a reversal, we affirm the judgments of the
trial court.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/2005/quinteroj61305.pdf

MEMO
http://www.tba.org/tba_files/TCCA/2005/quinteroj_mem61305.pdf

HAROLD LINDELL SCHARKLEY V. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

William F. Kroeger, Springfield, Tennessee, for the appellant, Harold
Lindell Scharkley.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; John W. Carney, Jr., District Attorney
General; and Dent Morriss, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Harold Lindell Scharkley, filed a petition for
post-conviction relief contending that his guilty pleas were
involuntary and unknowing because he received ineffective assistance
of counsel and because the trial court failed to follow the
requirements of Rule 11 of the Tennessee Rules of Criminal Procedure.
After a hearing, the post-conviction court denied the Petitioner's
request for post-conviction relief. Finding no reversible error, we
affirm the judgment of the postconviction court.

http://www.tba.org/tba_files/TCCA/2005/sharkleyh61305.pdf

JAMES ROBERT WILSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Dwight E. Scott, Nashville, Tennessee, for the appellant, James Robert
Wilson.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney
General; and Amy H. Eisenbeck, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the denial of post-conviction relief,
contending that trial counsel was ineffective in: (1) declining a
curative instruction following a witness' characterization of the
petitioner as "a robber;" (2) failing to object to the untimely
disclosure of audiotapes containing statements made by the petitioner
to a key prosecution witness; (3) failing to argue that the term
"recklessly" was statutorily inapplicable to the petitioner, and
because the term was included in the indictment, failing to get a jury
instruction on reckless homicide. Upon review, we affirm the denial of
post-conviction relief.

http://www.tba.org/tba_files/TCCA/2005/wilsonj61305.pdf

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi

TBALink HomeContact UsPageFinderWhat's NewHelp

© Copyright 2005 Tennessee Bar Association