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Today's Opinions:June 24, 2005
Volume 11 — Number 120
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.
04 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
01 New Opinion(s) from the Tennessee Court of Appeals
02 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


STATE OF TENNESSEE v. ANTHONY CROWE

Court:TSC

Attorneys:

Karen T. Fleet, Bolivar, Tennessee (at trial and on appeal); Pamela
Dewey-Rodgers, Selmer, Tennessee (at trial), for the appellant,
Anthony Crowe.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Rachel E. Willis, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Jerry W. Norwood,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: DROWOTA

First Paragraph:

The defendant, Anthony Crowe, entered a plea of nolo contendere to
facilitation of first degree murder and received an eighteen-year
sentence. After imposition of the sentence, but before the judgment
became final, the defendant filed a motion to withdraw his plea
alleging that the plea was not supported by a factual basis and that
the plea had not been voluntarily, knowingly, and understandingly
entered. The trial court denied the defendant's motion, and the Court
of Criminal Appeals affirmed. We granted permission to appeal to
consider whether the trial court erred in denying the defendant's
motion to withdraw. Although we conclude that Tennessee Rule of
Criminal Procedure 11(f) does not mandate that a plea of nolo
contendere be supported by a factual basis, we also conclude that the
trial court erred in denying the defendant's motion to withdraw
because the defendant established that his plea had not been
voluntarily, knowingly, and understandingly entered. Thus, permitting
withdrawal of the plea is necessary to correct manifest injustice.
Tenn. R. Crim. P. 32(f). Accordingly, we reverse the judgment of the
trial court and the judgment of the Court of Criminal Appeals, grant
the defendant's motion to withdraw his plea, vacate the conviction of
facilitation of first degree murder, and remand this case to the trial
court for further proceedings consistent with this opinion.

http://www.tba.org/tba_files/TSC/2005/crowea62405.pdf

BEVERLY MILLER, ET AL. v. UNITED AUTOMAX

Court:TSC

Attorneys:                          

Kevin A.Snider, Germantown, Tennessee, for the appellants, Beverly
Miller and Cassandra Meyer. Gary C. McCullough, Germantown, Tennessee,
for the appellee, United Automax.

Judge: BARKER

First Paragraph:

This case arises out of the sale of a used car which Plaintiffs, the
buyers of the car, maintain was damaged prior to sale despite
Defendant's denial of damage. A jury found for Plaintiffs, the buyers,
on their claims for both common law intentional misrepresentation and
for violation of the Tennessee Consumer Protection Act, Tennessee Code
Annotated section 47-18-101 et seq. (1995). Plaintiffs elected to
receive the punitive damages awarded by the jury under the common law
claim in lieu of treble damages under the Tennessee Consumer
Protection Act. When Plaintiffs then requested attorney's fees under
the Act, the trial court held that they could not receive both
punitive damages and attorney's fees. The trial court also held that
the election of remedies made by Plaintiffs had become final before
the entry of judgment and before Plaintiffs were informed of the
amount they might have received in attorney's fees under the Act and
that Plaintiffs could not amend their election of remedies. The Court
of Appeals upheld the decision of the trial court. We reverse, holding
that Plaintiffs can receive both punitive damages under the common law
misrepresentation claim and attorney's fees under the Tennessee
Consumer Protection Act. We remand to the trial court for award of
appropriate attorney's fees and costs.

http://www.tba.org/tba_files/TSC/2005/millerb62405.pdf

JERRY W. PECK v. WILLIAM B. TANNER and TANNER-PECK, LLC

Court:TSC

Attorneys:                          

William Ernest Norcross, Robert D. Flynn, and Minton P. Mayer,
Memphis, Tennessee, for the Appellants, William B. Tanner and
Tanner-Peck LLC.

Mimi Phillips and Roy H. Chockley, Jr., Memphis, Tennessee, for the
Appellee, Jerry W. Peck

Judge: BARKER

First Paragraph:

This civil action pertains to an alleged business partnership between
the individual parties. The trial court entered a judgment in favor of
the defendants, and the plaintiff appealed. While the appeal was
pending, the plaintiff filed a motion in the Court of Appeals alleging
misconduct by the chancellor during the trial proceedings and
requesting that the intermediate court "investigate and rule on
whether and how [the plaintiff's] allegations willaffect the appeal of
this matter." The Court of Appeals granted the motion and remanded the
case to the trial court, providing in its order that the trial court
would supervise the taking of discovery and that the additional
evidence then would be transmitted to the intermediate court and the
case would be set for oral argument. We hold that the procedure
adopted bythe Court of Appeals exceeded its appellate jurisdiction;
the proper remedy would have been for the plaintiff to file a motion
asking the intermediate court to remand the case to the trial court
for the filing and adjudication of a motion pursuant to Tennessee Rule
of Civil Procedure 60.

http://www.tba.org/tba_files/TSC/2005/peckj62405.pdf

ROBERT D. WALSH v. STATE OF TENNESSEE 

Court:TSC

Attorneys:

C. Michael Robbins, Memphis, Tennessee, for the appellant, Robert D.
Walsh.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Elizabeth T. Ryan, Assistant Attorney General,
for the appellee, State of Tennessee.

Judge: BARKER

First Paragraph:

This case comes before us on appeal from a denial of post-conviction
relief. The petitioner sought relief from his conviction for
aggravated sexual battery, raising several claims including that he
was denied his right to a fair and impartial jury trial because of an
improper communication by a court officer to the jury during
deliberations. During the hearing on the post-conviction petition, the
court heard testimony from a juror regarding the content of the
communication and also the subjective effect of the officer's
statement upon the juror. At the close of the hearing, the trial court
found that the improper communication had not influenced the verdict
and therefore denied the petition for post-conviction relief. Upon
review, the Court of Criminal Appeals affirmed. In this Court, the
petitioner challenges admission of the juror's testimony relating to
the effect of the court officer's statement on the juror. After
thorough consideration, we reverse the Court of Criminal Appeals. We
hold that Tennessee Rule of Evidence 606(b) prohibits introduction of
juror testimony concerning the effect on the juror of an improper
communication by a court officer during jury deliberations.

http://www.tba.org/tba_files/TSC/2005/walshr62405.pdf

PAULINE BOYD v. ROSA E. CRUZE, ET AL.

Court:TCA

Attorneys:                          

Robert W. Wilkinson, Oak Ridge, Tennessee, for the appellant, Jalisco
Mexican Restaurant. 

Harry L. Lillard, Oak Ridge, Tennessee, for the appellee, Pauline Boyd.

Judge: SUSANO

First Paragraph:

This litigation focuses on a judgment creditor's efforts to collect
her money judgment by garnishment. On October 13, 2003, the trial
court entered an "Order for Judgment and Costs" against the garnishee,
Jalisco Mexican Restaurant ("Jalisco"), for $100,000. Jalisco
appealed. We remanded the case to the trial court "for a determination
of the proper record" on appeal. In response to the remand, the trial
court determined and held that the statement of the evidence filed by
Jalisco was the correct record of the proceedings below; however, the
court went further and made a number of findings and decrees,
including its holding that "no proof ha[d] been introduced with
respect to the amount of wages that were or should have been paid" to
the judgment debtor. We hold that the trial court exceeded the
parameters of the remand when it made additional findings and decrees
beyond its designation of the proper record on appeal. The trial
court, in so doing, exceeded its jurisdiction as defined in and by the
order of remand. We further hold (1) that the response filed by
Jalisco is sufficient to constitute an answer and rebut the statutory
presumption that Jalisco is "indebted to the [judgment debtor] to the
full amount of the [judgment creditor's] demand"; and (2) that Tenn.
Code Ann. S 26-2-209 (2000) is not implicated by the facts of this
case. Accordingly, we reverse and hold for naught (1) the trial
court's findings of November 12, 2004; and (2) the decrees in its
order of January 13, 2005, except to the extent of the court's decree
that "[t]he Statement of the Proceedings submitted by [the judgment
debtor] is adopted by the [c]ourt." We reverse the trial court's order
of October 13, 2003, and dismiss the garnishment served on Jalisco,
having concluded that the evidence fails to show that a judgment in
any amount against Jalisco is warranted.

http://www.tba.org/tba_files/TCA/2005/boydp62405.pdf

STATE OF TENNESSEE v. RONALD BENJAMIN IRWIN

Court:TCCA

Attorneys:                          

John D. Parker, Jr., Kingsport, Tennessee, for the Appellant, Ronald
Benjamin Irwin.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Greeley Wells, District Attorney
General; Kent Chitwood, Assistant District Attorneys General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Ronald Benjamin Irwin, was convicted by a jury of
aggravated robbery. As a result, the appellant was sentenced as a
Range I, standard offender to a nine-year sentence. On appeal, the
appellant challenges the sufficiency of the evidence and his sentence
as excessive. Because we determine that the evidence was sufficient to
support the conviction and that the trial court did not err in
sentencing the appellant to serve nine (9) years in incarceration, we
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/irwinr62405.pdf

THOMAS WRAY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

B. Jeffery Harmon, Jasper, Tennessee, for the appellant Thomas Wray.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; James W. Pope, III, Assistant District Attorneys General, for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Thomas Wray, appeals from the denial of his petition
for the writ of habeas corpus wherein he alleges that his guilty pleas
and sentences in the Hamilton County Criminal Court to two (2)
offenses committed while he was a juvenile are void. For the reasons
stated below we find that the habeas court properly denied habeas
corpus relief and we therefore affirm the decision of the lower court.

http://www.tba.org/tba_files/TCCA/2005/wrayt62405.pdf

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