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Today's Opinions: July 22, 2005
Volume 11 — Number 139
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
03 New Opinion(s) from the Tennessee Court of Appeals
08 New Opinion(s) from the Tennessee Court of Criminal Appeals
03 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


MARCELLA A. CHRISMAN v. VANCE L. BAKER, JR.

Court:TCA

Attorneys:                          

Stuart E. Duncan, Chattanooga, Tennessee, for appellant.

Richard M. Carter and Elizabeth J. Landrigan, Memphis, Tennessee, for
appellee.

Judge: FRANKS

First Paragraph:

The Trial Court granted defendant's Motion for Summary Judgment on
plaintiff's claim for malpractice. Defendant had represented plaintiff
in her representative capacity as conservator, and subsequently as
administrator of deceased's estate. The Trial Court held the statute
of limitations applied because she knew she had been harmed by
defendant's actions more than one year prior to the filing of this
action. On appeal, we affirm.

http://www.tba.org/tba_files/TCA/2005/chrismanm72205.pdf

REM NOBLE AND BRANDT NOBLE, INDIVIDUALLY, and D/B/A/ NOBLE, INC. v.
TOM PEASE, INDIVIDUALLY, AND CORPORATE COPY, INC.

Court:TCA

Attorneys:                          

Henry L. Klein, Memphis, for plaintiffs/appellants Rem Noble and
Brandt Noble

Robert B.C. Hale, Memphis, for defendants/counter-plaintiffs/appellees
Tom Pease and Corporate Copy, Inc.

Judge: KIRBY

First Paragraph:

This case is about the sale of a business. The owner of a copy machine
business sold the assets of the business to a competitor. The buyer
purchased the company through a promissory note that required monthly
payments. After the sale, the seller and the seller's son became
employees of the buyer. However, while employed by the buyer, the
seller continued to deal in copy machines on the side. The seller
voluntarily left employment, and his son was fired. After the buyer
learned of the seller's side dealings in copiers, the buyer stopped
making payments on the promissory note. The seller sued the buyer for
failing to make the agreed upon payments. The buyer counter-sued for
breach of contract. After a trial, the trial court rescinded the
purchase agreement. We reverse, finding that rescission was not an
appropriate remedy in this case, and remand for a determination of the
appropriate damages.

http://www.tba.org/tba_files/TCA/2005/nobler72205.pdf

DIANE WORLEY v. WHITE TIRE OF TENNESSEE, INC., and GAZAZBO, L.L.C.

Court:TCA

Attorneys:                          

Russell W. Adkins, Kingsport, Tennessee, for appellant, Gazazbo, LLC.

Mark S. Dessauer, Kingsport, Tennessee, for appellant, White Tire of
Tennessee, Inc. Shelton B. Hillman, Jr., Bristol, Tennessee, for
appellee.

Judge: FRANKS

First Paragraph:

The Trial Court entered Judgment for plaintiff for damages from
destruction of road over easement and reformed deed. On appeal, we
affirm.

http://www.tba.org/tba_files/TCA/2005/worleyd72205.pdf

STATE OF TENNESSEE v. DANIEL CLEVELAND and MATTHEW HARVILLE

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Theresa McCusker, Assistant District Attorney General,
for the appellant, State of Tennessee.

Robert Wilson Jones, District Public Defender, and Phyllis Aluko,
Assistant Public Defender, Memphis, Tennessee, for the appellees,
Daniel Cleveland and Matthew Harville.

Judge: WELLES

First Paragraph:

This is a direct appeal as of right by the State from a denial of its
petitions to have Defendants Daniel Cleveland and Matthew Harville
declared habitual offenders pursuant to the Motor Vehicle Habitual
Offender (MVHO) statute. See Tenn. Code Ann. S 55-10-601 et seq. On
appeal, the State argues that the language of section 603(2)(A) of the
MVHO statute contains an error, and therefore legislative intent and
the "entire scheme" of the statute require this Court to interpret the
provision in question by changing its conjunctive construction to
disjunctive. We disagree, and we affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/2005/clevelandd72205.pdf

STATE OF TENNESSEE v. EDDIE HATCHETT

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender, and Tony N. Brayton and
Robert C. Felkner, Assistant Public Defenders, for the appellant,
Eddie Hatchett.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and David Michael Zak, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

AShelbyCounty CriminalCourt juryconvicted the defendant, Eddie
Hatchett, of aggravated assault, a Class C felony, and the trial court
sentenced him as a Range II, multiple offender to eight years in the
Department of Correction. The defendant appeals, claiming the evidence
is insufficient because the state failed to negate his claim of
self-defense. We affirm the trial court.

http://www.tba.org/tba_files/TCCA/2005/hatchette72205.pdf

STATE OF TENNESSEE v. CHRISTOPHER KIRKENDALL

Court:TCCA

Attorneys:                          

W. Mark Ward (on appeal) and Trent Hall (at trial), Assistant Public
Defenders, for the appellant, Christopher Kirkendall.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General; and Reginald Henderson, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Christopher Kirkendall, was convicted of facilitation
of attempted second degree murder and two counts of facilitation of
aggravated robbery. On appeal, this court affirmed the convictions but
modified the sentences, holding that enhancement factors (3), (10),
and (21) were applied in violation of the United States Supreme
Court's ruling in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531
(2004). The state filed an application for permission to appeal to our
supreme court pursuant to Rule 11 of the Tennessee Rules of Appellate
Procedure. The supreme court granted the state's application and
remanded the case to this court for reconsideration as a result of its
opinion in State v. Edwin Gomez and Jonathan S. Londono, ___S.W.3d
___, No. M2002-01209- SC-R11-CD (Tenn. Apr. 15, 2005). Based upon the
Gomez decision, the judgments of the trial court must be affirmed.

http://www.tba.org/tba_files/TCCA/2005/kirkendallc72205.pdf

STATE OF TENNESSEE v. PHILIP NAVEL

Court:TCCA

Attorneys:                          

C. Timothy Crocker, Milan, Tennessee, for the appellant, Philip Navel.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; and Gary Brown, District Attorney General,
for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This is a direct appeal of the sentence imposed for an aggravated
sexual battery conviction entered pursuant to a guilty plea. The
Defendant was sentenced as a Range I, standard offender to twelve
years to be served in the Tennessee Department of Correction (TDOC).
He now challenges his sentence, raising three issues: 1) the trial
court erred in admitting the testimony of a witness at the conclusion
of the sentencing hearing who had not been sequestered during prior
testimony, 2) the trial court erred in applying one enhancement factor
because it was also an element of the offense, and 3) the sentence was
improperly enhanced in violation of Blakely v. Washington, 542 U.S.
__, 124 S. Ct. 2531 (2004). We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/navelp72205.pdf

WALTER EARL PRESTON v. DAVID MILLS, WARDEN

Court:TCCA

Attorneys:                          

Walter Earl Preston, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; and Elizabeth T. Rice, District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Walter Earl Preston, appeals the Lauderdale County
Circuit Court's summary dismissal of his petition for writ of habeas
corpus. He claims that his sentences are illegal, thereby rendering
his judgments of conviction void. We affirm the trial court.

http://www.tba.org/tba_files/TCCA/2005/prestonw72205.pdf

STATE OF TENNESSEE v. STEVEN ANDREW TIDWELL

Court:TCCA

Attorneys:                          

Ramsdale O'DeNeal, Jr., Jackson, Tennessee, for the appellant, Steven
Andrew Tidwell.

Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant
Attorney General; and Jody S. Pickens, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Steven Andrew Tidwell, tried for aggravated burglary
and theft of property between $500 and $1,000, was convicted of theft.
The trial court imposed a two-year sentence to be served in the
Department of Correction. In this appeal of right, the defendant
argues that the evidence was insufficient, that the trial court erred
by ruling that the state could cross-examine him with a prior burglary
offense for which he had received judicial diversion, and that the
sentence is excessive. The judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/tidwells72205.pdf

STATE OF TENNESSEE v. BILLY DEWAYNE WALKER

Court:TCCA

Attorneys:                          

Paul G.Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; and Elizabeth T. Rice, District Attorney
General, for the appellant, State of Tennessee.

James N. Adams, Jr., Selmer, Tennessee, for the appellee, Billy
Dewayne Walker.

Judge: TIPTON

First Paragraph:

The state appeals the McNairy County Circuit Court's order suppressing
drug-related evidence seized from the home of the defendant, Billy
Dewayne Walker, pursuant to a search warrant. The state contends that
the trial court erred in finding that the information contained in the
affidavit accompanying the search warrant was insufficient to
establish probable cause for the search. We agree and reverse the
trial court's ruling.

http://www.tba.org/tba_files/TCCA/2005/walkerb72205.pdf

STATE OF TENNESSEE v. JEFFERY YATES

Court:TCCA

Attorneys:                          

Chris J. Lareau (on appeal) and Michael E. Scholl (at trial), Memphis,
Tennessee, for the appellant, Jeffery Yates.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Jennifer Nichols and Steve Jones, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Jeffery Yates, was convicted by a jury of aggravated
robbery. The trial court sentenced him as a Range III, career offender
to thirty years in the Department of Correction. In this direct
appeal, the Defendant raises the following challenges to his
conviction: (1) the sufficiency of the evidence; (2) the trial court's
handling of the victim's statement to the police; (3) the trial
court's admission of testimony regarding the Defendant's involvement
in a prostitution sting; (4) the trial court's refusal to allow the
Defendant to cross-examine his co-defendant about gang affiliation;
(5) the trial court's decision to allow the State to cross-examine the
Defendant about prior convictions; and (6) the trial court's failure
to instruct the jury on the lesser-included offense of theft. Finding
no reversible error in the issues raised by the Defendant, we affirm
the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/yatesj72205.pdf

Activation of Tennessee State Guard and Members' Liability 

Date: July 18, 2005

Opinion Number: 05-112

http://www.tba.org/tba_files/AG/2005/op112.pdf

Applicability of Tenn. Code Ann. S 4-51-113(g)

Date: July 19, 2005

Opinion Number: 05-113

http://www.tba.org/tba_files/AG/2005/op113.pdf

Inability of the State to Deny a Pension to Legislators Who Became
Members of T.C.R.S. Before the Enactment of Tenn. Code Ann. SS
8-35-124(a)(1) and (2)

Date: July 19, 2005

Opinion Number: 05-114

http://www.tba.org/tba_files/AG/2005/op114.pdf

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