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Today's Opinions: June 29, 2005
Volume 11 — Number 123
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.
03 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
09 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


CITY OF KNOXVILLE v. ENTERTAINMENT RESOURCES, LLC.
WITH CONCURRING OPINION

Court:TSC

Attorneys:                          

Angela R. Bolton and W. Morris Kizer, Knoxville, Tennessee, for the
Appellant, City of Knoxville.

Philip N. Elbert and W. David Bridgers, Nashville, Tennessee, and
Richard L. Gaines, Knoxville, Tennessee, for the Appellee,
Entertainment Resources, LLC.

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine the constitutionality of a
Knoxville city ordinance regulating the location of adult businesses.
The chancery court upheld the ordinance and enjoined operation of the
defendant's video store after finding that it fit the definition of an
adult bookstore and was located within 1,000 feet of prohibited areas
and therefore was operating in violation of the ordinance. The Court
of Appeals reversed on the grounds that the ordinance's definition of
adult bookstores is unconstitutionally vague. Because we have also
determined that the ordinance is unconstitutionally vague under the
United States and Tennessee Constitutions, we affirm the decision of
the Court of Appeals but on the separate grounds set forth herein. We
remand to the trial court for an assessment of the amount of damages
incurred by the defendant as a result of the chancery court's
injunction.

http://www.tba.org/tba_files/TSC/2005/cityknox62905.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TSC/2005/cityknox_con62905.pdf

STATE OF TENNESSEE v. PATRICK D. COLLINS

Court:TSC

Attorneys:                          

V. Michael Fox, Nashville, Tennessee, and Darren J. Scoggins, Burns,
Tennessee, for the Appellant, Patrick David Collins.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Elizabeth T. Ryan, Senior Counsel; Victor S.
(Torry) Johnson, III, District Attorney General; and Scott R.
McMurtry, Assistant District Attorney General, for the Appellee, State
of Tennessee.

Judge: ANDERSON

First Paragraph:

We granted review of this interlocutory appeal to determine whether
the defendant was sufficiently advised of the consequences of refusing
to take a breath-alcohol test. The arresting officer informed the
defendant that his license would be suspended for one year if he
refused the test, but under the provisions of Tennessee Code Annotated
section 55-10-406(a) (2000) in effect at the time, the penalty was two
years. The trial court held that the defendant was not sufficiently
advised of the consequences and barred the State from seeking any
suspension of the defendant's driver's license. The trial court also
barred the State from arguing to the jury on the DUI charge that the
defendant had refused the breath test. The Court of Criminal Appeals
reversed, holding that the defendant was adequately advised of the
consequences for refusing the test. After reviewing the record and
applicable authority, we affirm in part and reverse in part the
decision of the Court of Criminal Appeals on the separate grounds set
forth herein. We hold that although the State may request suspension
of Collins' license, the State may not seek a suspension of longer
than one year because Collins was incorrectly advised of the
consequences of refusing to take the test.

http://www.tba.org/tba_files/TSC/2005/collinsp62905.pdf

MURFREESBORO MEDICAL CLINIC, P.A. v. DAVID UDOM
WITH CONCURRING/DISSENTING OPINION

Court:TSC

Attorneys:                          

Douglas B. Janney, III, Nashville, Tennessee, for the appellant, David
Udom.

Josh A. McCreary, Murfreesboro, Tennessee, for the appellee,
Murfreesboro Medical Clinic, P.A.

Judge: BARKER

First Paragraph:

The issue presented in this case is whether a covenant not to compete
is enforceable between a physician and his former employer, a private
medical clinic. The trial court concluded that the non-compete
agreement was enforceable and enjoined the physician from establishing
a medical practice at a location within the restricted area. The Court
of Appeals affirmed the trial court's decision that the non-compete
agreement was enforceable, but reversed the grant of the temporary
injunction and remanded the case to the trial court for further
determinations with respect to the agreement's "buy-out" provision.
After a thorough review of the issues presented, including
considerations of public policy, we reverse the Court of Appeals'
judgment. We hold that except for those specifically prescribed by
statute, physicians' covenants not to compete are unenforceable and
void

http://www.tba.org/tba_files/TSC/2005/murfreesborom62905.pdf

CONCURRING/DISSENTING OPINION
http://www.tba.org/tba_files/TSC/2005/murfreesborom_con62905.pdf

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. D.W.J.

Court:TCA

Attorneys:                          

David N. Darnell, Kingsport, Tennessee, for the Appellant, D.W.J.

Paul G. Summers, Attorney General and Reporter, and Juan G.
Villasenor, Assistant Attorney General, Nashville, Tennessee, for the
Appellee, State of Tennessee Department of Children's Services.

Judge: LEE

First Paragraph:

This is a parental rights termination case. The mother appeals the
trial court's decision terminating her parental rights to two of her
three children. On appeal, the mother argues, inter alia, that the
evidence preponderates against the trial court's finding that grounds
for termination exist and that termination is in the best interest of
the children. We conclude that the record does not contain sufficient
evidence to support the trial court's decision and therefore, we
reverse.

http://www.tba.org/tba_files/TCA/2005/dwj62905.pdf

EXXONMOBIL OIL CORP. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND
DAVIDSON COUNTY, ET AL.

Court:TCA

Attorneys:                          

Scott K. Haynes, Austin L. McMullen, Nashville, Tennessee, for the
appellant, Exxonmobil Oil Corporation.

Francis H. Young, Nashville, Tennessee, for the appellees,
Metropolitan Government of Nashville and Davidson County and
Metropolitan Beer Permit Board of the Metropolitan Government of
Nashville and Davidson County.

Judge: COTTRELL

First Paragraph:

Exxonmobil appeals the denial of a beer permit application by the Beer
Permit Board of the Metropolitan Government of Nashville and Davidson
County alleging the proximity prohibition in the local code is
contravened by Tenn. Code Ann. B 57-5-109. We agree and reverse the
trial court's denial of Exxonmobil's petition for writ of certiorari.

http://www.tba.org/tba_files/TCA/2005/exxonmobile62905.pdf

TIM LEWALLEN, ET AL. v. J.C. YORK, JR.

Court:TCA

Attorneys:                          

Max Huff, Oneida, Tennessee, for the Appellant, J.C. York, Jr.

C.Patrick Sexton, Oneida, Tennessee, for the Appellees, TimLewallenand
wife, Marietta Lewallen.

Judge: SWINEY

First Paragraph:

Tim Lewallen and Marietta Lewallen ("Plaintiffs") sued J.C. York, Jr.
("Defendant") claiming, in part, that Defendant was interfering with
their lawful right to use an easement over Defendant's land. After a
trial, the Trial Court entered an order holding, inter alia, "[t]hat
an easement exists which runs with the land and burdens the
defendant's property . . . ," and that Plaintiffs "have the use and
benefit of the aforementioned easement for the purpose of ingress and
egress." Defendant appeals claimingthat the Trial Court erred in
holding that Plaintiffs have an easement over Defendant's land, and
also that the Trial Court erred in considering parol evidence
regarding the easement. We affirm.

http://www.tba.org/tba_files/TCA/2005/lewallent62905.pdf

LINDA WAGNER v. MARK FIRESTONE

Court:TCA

Attorneys:                          

Linda Wagner, Knoxville, Tennessee, pro se, Appellant.

T. Kenan Smith and E. Michael Brezina, III, Knoxville, Tennessee, for
Appellee, Mark Firestone.

Judge: LEE

First Paragraph:

In this action involving child support, the issues are whether the
trial court erred in finding that the father provided adequate
discovery information regarding his income and assets; whether the
trial court erred in ordering the mother to pay half the cost of the
father's airfare to attend his deposition in Tennessee; whether the
court should have awarded the mother more attorney's fees than it did;
and whether the trial court erred in failing to hold the father
responsible for a hospital bill for medical treatment of the parties'
child. Finding no error, we affirm the judgment of the trial court and
remand.

http://www.tba.org/tba_files/TCA/2005/wagnerl62905.pdf

STATE OF TENNESSEE v. KEVIN BUFFORD

Court:TCCA

Attorneys:                          

Mike J. Urquhart, Nashville, Tennessee, for the appellant, Kevin
Bufford.

Paul G.Summers, Attorney General &Reporter; Seth P.Kestner, Assistant
Attorney General; Victor S. Johnson, District Attorney General, and
Scott McMurtry, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Kevin Bufford, pled guilty to one (1) count of
aggravated robbery and one (1) count of carjacking while reserving a
certified question of law for appeal. In that certified question of
law, the appellant challenges the trial court's denial of a motion to
suppress the evidence obtained as the result of what the appellant
argues was an illegal arrest. Because we determine that the certified
question is not dispositive, we dismiss the appeal and remand the
matter to the trial court for any further proceedings which may be
necessary.

http://www.tba.org/tba_files/TCCA/2005/buffordk62905.pdf

ANTHONY D. FORSTER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Anthony D. Forster, Nashville, Tennessee, pro se.

Paul G.Summers, Attorney General &Reporter; Renee W.Turner, Assistant
Attorney General; and Dan Hamm, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, AnthonyD.Forster, appeals the summarydismissal of his
petition for post-conviction relief. The judgment of the
post-conviction court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/forstera62905.pdf

STATE OF TENNESSEE v. KENNETH HAYES

Court:TCCA

Attorneys:                          

Brent Horst, Nashville, Tennessee, for the Appellant, Kenneth Hayes.

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

Judge: HAYES

First Paragraph:

The Appellant, Kenneth Hayes, appeals the revocation of his probation
by the Davidson County Criminal Court. In 1997, Hayes pled guilty to
felony possession of cocaine and was sentenced to a term of eight
years with service of one year in confinement followed by supervised
probation. In 2004, a probation violation warrant was issued alleging
that Hayes violated probation by possessing cocaine. At the revocation
hearing, Hayes sought suppression of the cocaine upon grounds that it
was illegally seized. The trial court found that the police search was
valid and revoked Hayes' suspended sentence. After review, we conclude
that the cocaine was illegally seized. Notwithstanding, we further
conclude that in the absence of police harassment or that the evidence
was obtained in a particularly offensive manner, the exclusionary rule
is not applicable to probation revocation proceedings. Accordingly,
the order of revocation is affirmed.

http://www.tba.org/tba_files/TCCA/2005/hayesk62905.pdf

STATE OF TENNESSEE v. AUGUSTINE JOHN LOPEZ, III

Court:TCCA

Attorneys:                          

Nicholas D. Hare, Nashville, Tennessee, for the Appellant, Augustine
John Lopez, III.

Paul G.Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson III, District Attorney
General; Deborah Housel and Lisa Naylor, Assistant District Attorneys
General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Augustine John Lopez, III, was convicted by a Davidson
County jury of first degree felony murder and theft of property over
$1000 and subsequently received concurrent sentences of life
imprisonment and five years for the respective convictions. On appeal,
Lopez raises four issues for our review: (1) whether the evidence is
sufficient to support the convictions: (2) whether the trial court
erred in allowing testimony by a police officer concerning fingerprint
evidence; (3) whether the trial court erred in excluding the hearsay
statements of a witness which indicated her possible involvement in
the murder; and (4) whether the trial court's sequential jury
instruction was error. After review of the record, the judgments of
conviction are affirmed.

http://www.tba.org/tba_files/TCCA/2005/lopeza62905.pdf

STATE OF TENNESSEE v. LORENZO MALONE

Court:TCCA

Attorneys:                          

Kimberly Ann Parton, Knoxville, Tennessee, for the appellant, Lorenzo
Malone.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; Tom P. Thompson, Jr., District Attorney
General; and Robert N. Hibbett, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

A Wilson County jury convicted the defendant, Lorenzo Malone, for
first degree felony murder under the theory of criminal
responsibility. The trial court sentenced him to life with the
possibility of parole. On appeal, he argues that the trial court erred
by: (1) refusing to strike a potential juror for cause; (2) admitting
photographs of the victim and a videotape into evidence; and (3)
failing to grant a mistrial based upon impropriety in the State's
closing argument. We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/malonel62905.pdf

STATE OF TENNESSEE v. MICHAEL RICARDO MARTIN

Court:TCCA

Attorneys:                          

Michael A. Colavecchio, Nashville, Tennessee, for the appellant,
Michael Ricardo Martin.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; Victor S. Johnson, District Attorney
General, and Derrick Scretchen, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

On March 25, 2002, the defendant, Michael Ricardo Martin, was indicted
by the Davidson County Grand Jury on two (2) counts of rape for an
incident that occurred on November 27, 2001. A jury trial was held and
the defendant was convicted of one (1) count of rape and one (1) count
of sexual battery. The trial court sentenced the defendant to
concurrent sentences of ten (10) years for the rape conviction and two
(2) years for the sexual battery conviction. On appeal the defendant
argues that the trial court erred by not granting his motion for
judgment of acquittal, by granting the State's motion in limine
regarding evidence concerning a prior hymenal injury sustained by the
victim and by sentencing the defendant to a ten (10) year effective
sentence. We affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/martinm62905.pdf

STATE OF TENNESSEE V. JAMES ERSKIN MCCULLOUGH

Court:TCCA

Attorneys:                          

Ardena J. Garth and Donna Robinson Miller, Chattanooga, Tennessee, for
the Appellant, James Erskin McCullough.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Bates W. Bryan, Jr., Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, James Erskin McCullough, pled guilty to various
offenses, and, while he was on probation for these convictions, a
probation violation report was filed, stating that the Defendant
failed to report to his probation officer and was arrested for theft.
After a hearing, the trial court revoked the Defendant's probation,
and it ordered that the Defendant serve the remainder of his sentence
in prison. On appeal, the Defendant contends that the evidence is
insufficient to revoke the Defendant's probation, and, therefore, the
trial court abused its discretion by revoking his probation. After
thoroughly reviewing the record and the applicable authorities, we
affirm the trial court's judgment.

http://www.tba.org/tba_files/TCCA/2005/mcculloughj62905.pdf

STATE OF TENNESSEE v. JASON ALLEN RUIZ

Court:TCCA

Attorneys:                          

John S. Colley, III, Columbia, Tennessee, for the Appellant, Jason
Ruiz.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
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, Jason Allen Ruiz, appeals the sentencing decision of
the Marshall County Circuit Court denying his motion for suspension of
his sentence. Following a guilty plea to Class B felony sale of
cocaine, Ruiz received an eight-year sentence with service of one year
in confinement. At the sentencing hearing, Ruiz refused to name his
drug sources. At the conclusion of the hearing, the trial court
informed Ruiz that after serving 120 days in jail, the remainder of
his incarceration period would be suspended if he revealed the names
of those who supplied him drugs. Ruiz petitioned for suspension of his
sentence after serving 120 days in confinement. He persisted, however,
in his refusal to identify his drug sources because he feared
retaliation. Ruiz's motion for suspension of his sentence was denied.
After de novo review, we conclude that the trial court improperly
considered Ruiz's refusal to reveal his drug sources. Accordingly, the
judgment of the trial court is reversed, and the balance of the
Appellant's sentence of incarceration is suspended.

http://www.tba.org/tba_files/TCCA/2005/ruizj62905.pdf

QUINTON G. STEWART v. RICKY BELL, WARDEN

Court:TCCA

Attorneys:                          

Quinton G. Stewart, Riverbend Maximum Security Institution, Nashville,
Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Victor S. Johnson, III., District Attorney
General; and Bret Gunn, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The petitioner appeals from the trial court's dismissal of his pro se
petition for writ of habeas corpus. Following our review, we affirm
the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/stewartq62905.pdf

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