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Today's Opinions: August 3, 2005
Volume 11 — Number 147
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
06 New Opinion(s) from the Tennessee Court of Appeals
10 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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


ARC LIFEMED, INC., ET AL. v. AMC-TENNESSEE, INC.

Court:TCA

Attorneys:                          

Barbara Hawley Smith, Nashville, Tennessee, Robert P. Johnson, Pro Hac
Vice, Cincinnati, Ohio, for the appellant, AMC-Tennessee, Inc.

Charles W. Cook, III, James E. Gaylord, Nashville, Tennessee, for the
appellees, ARC LifeMed, Inc., LifeTrust America. Inc. and LifeMed,
LLC.

Judge: CAIN

First Paragraph:

This is an action for breach of contract by a limited liability
company against its managing member. The other members of the LLC
joined as plaintiffs seeking recovery for breach of fiduciary duty and
negligent misrepresentation. The managing member counterclaimed
against the LLC for breach of contract and, in the alternative, sought
recovery in quantum meruit for unjust enrichment. The trial court held
the managing member to be liable to all plaintiffs on all issues and
dismissed the counterclaim. The action of the trial court is reversed
as to breach of fiduciary duty and negligent misrepresentation. The
judgment of the trial court is affirmed as to breach of contract and
as to dismissal of the counterclaim. The findings of the trial court
as to damages payable to the LLC is affirmed as is the distribution of
the assets of the LLC. Prejudgment interest is disallowed, and costs
are assessed to the managing member.

http://www.tba.org/tba_files/TCA/2005/arc8305.pdf

CITY OF JACKSON, TENNESSEE v. WALKER-HALL, INC., ET AL.

Court:TCA

Attorneys:                          

David J. Sneed, Brentwood, TN, for Appellants

J. Brandon McWherter, Lewis L. Cobb, Jackson, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This is an action to recover for damage done to personal property.
During the course of a road improvement project, the city placed some
heavy equipment and debris alongside the roadway being repaired. An
employee of the corporate owner of the land abutting the roadway
noticed the debris and an excavator parked adjacent to the roadway
during a route inspection of the property. Believing the debris and
excavator to be on his employer's land, the employee had the excavator
towed. Apparently, the towing company selected by the landowner's
property manager severely damaged the excavator during the course of
removing it. The city subsequently filed suit against the landowner
and several other defendants claiming they had negligently harmed the
city's personal property. The trial court held that the landowner was
negligent and committed a trespass against the city. The landowner
appealed, and we reverse the decision of the trial court.

http://www.tba.org/tba_files/TCA/2005/cityofjackson8305.pdf

GWENDOLYN FLOWERS v. TIMOTHY FLOWERS

Court:TCA

Attorneys:                          

Timothy Flowers, Pro se, Defendant/Appellant. 

Gwendolyn Flowers, Pro se, Plaintiff/Appellee

Judge: FARMER

First Paragraph:

Husband in this divorce action appeals from the judgment entered in
the trial court. Absent a transcript or statement of the evidence, we
affirm.

http://www.tba.org/tba_files/TCA/2005/flowersg8305.pdf

IN RE M.W.M., W.W.M., S.M.M., & A.M.M.
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Stanley K. Pierchoski, Lawrenceburg, Tennessee, for the appellant,
R.M.

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

Judge: KOCH

First Paragraph:

This appeal involves an imprisoned mother's efforts to retain her
parental rights with regard to four of her eight children. The
Tennessee Department of Children's Services filed a petition in the
Chancery Court for Lawrence County seeking to terminate the mother's
parental rights with regard to four of her children residing in
Tennessee. Following a bench trial, the court terminated the mother's
parental rights to the three older children based on abandonment under
Tenn. Code Ann. SS 36-1-113(g)(1) and 36-1-102(1)(A)(iv) (Supp. 2004)
and terminated her rights to the youngest child based on Tenn. Code
Ann. S 36-1-113(g)(6). On this appeal, the mother asserts that the
evidence does not support the trial court's conclusions that she
abandoned the three older children and that the interests of all four
children would be best served by terminating her parental rights. We
have determined that the record contains clear and convincing evidence
that the mother abandoned the three older children and that
terminating the mother's parental rights is in the best interests of
all four of the children involved in this case.

http://www.tba.org/tba_files/TCA/2005/mwm8305.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/2005/mwm_con8305.pdf

DESHAYNE FAYE NEAL v. JERRY BRENT NEAL

Court:TCA

Attorneys:                          

S.N. Garrett, Jamestown, Tennessee, for the Appellant, DeShayne Faye
Neal.

Lynda W. Simmons, Livingston, Tennessee, for the appellee, Jerry Brent
Neal.

Judge: CAIN

First Paragraph:

This is an appeal from the chancery court order refusing to modify the
parties' divorce decree and permanent parenting plan. Mother filed a
Petition to Modify, and Father filed an Answer and Counter Petition
also requesting modification. The Chancellor dismissed both the
Petition and Counter Petition finding that there had not been
sufficient change in circumstances since the initial entry of the
divorce decree to justify modification. Upon review of the Permanent
Parenting Plan and Final Decree of the Chancery Court, we find that
this Permanent Parenting Plan and the judge's approval of such plan do
not meet the requirements of Tennessee law. As such, the Permanent
Parenting Plan is vacated, and the case is remanded to the trial
court.

http://www.tba.org/tba_files/TCA/2005/neald8305.pdf

PUTNAM COUNTY EDUCATION ASSOCIATION v. PUTNAM COUNTY COMMISSION, ET AL

Court:TCA

Attorneys:                          

Richard L. Colbert and W.Gregory Miller, Nashville, Tennessee, for the
appellants, Putnam County Education Association.

Daniel H. Rader III and Jeffrey G. Jones, Cookeville, Tennessee, for
the appellees, Putnam County Board of Education and Putnam County
Commission

Judge: CLEMENT

First Paragraph:

The Putnam County Educational Association filed this declaratory
judgment action contending that Putnam County Commission exercised a
line-item veto over the Putnam County Board of Education's budget,
thereby usurping the authority of the Board of Education to administer
the schools. The Association also alleged that the Board of Education,
by allowing the budget to be implemented without said line-item
expenditure, breached its agreement with the Association. The purpose
of the action was to restore $30,000 that had been allocated to fund
medical insurance premiums for retired teachers to the 2000-2001
budget, which allocation the Association and Board of Education had
agreed upon pursuant to Tenn. Code Ann. S 49-5-612. The Commission
rejected two proposed budgets submitted by the Board of Education that
included the allocation. The trial court dismissed the Association's
declaratory judgment action upon summaryjudgment. Thereafter, the
Association also contended that the Commission discussed the matters
at issue during a closed meeting in violation of Tennessee's Open
Meetings Act. The trial court found no violation of the Act. The
Association appealed. We affirm.

http://www.tba.org/tba_files/TCA/2005/putnamco8305.pdf

STATE OF TENNESSEE v. BRENDA BOWERS

Court:TCCA

Attorneys:                          

Tommy K. Hindman and J. Liddell Kirk, Knoxville, Tennessee, for the
appellant, Brenda Bowers.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General and Randall E. Nichols, District Attorney
General, for the appellee, State of Tennessee

Judge: SMITH

First Paragraph:

The appellant, Brenda Bowers, was convicted by a jury of theft of
property worth less than $500 dollars. The trial court sentenced the
appellant to eleven (11) months and twenty-nine (29) days and ordered
the appellant to serve six (6) months of the sentence in incarceration
and the remainder of the sentence on probation. After the denial of a
motion for new trial, the appellant appealed, presenting the following
issues: (1) whether the State improperly introduced evidence of a
prior bad act of the appellant; (2) whether the appellant received
ineffective assistance of counsel; and (3) whether the trial court
correctly sentenced the appellant. For the following reasons, we
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/bowersb8305.pdf

STATE OF TENNESSEE v. MARCUS CARTER

Court:TCCA

Attorneys:                          

Robert Wilson Jones, Shelby County Public Defender, and Tony N.
Brayton, Assistant Public Defender, for the appellant, Marcus Carter.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; WilliamL.Gibbons, District Attorney
General; and Lee Coffee, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Marcus Carter, pled guilty to one count of kidnapping,
a Class C felony, and was sentenced as a Range I, standard offender to
four years in the county workhouse. The issue raised on appeal is
whether the trial court erred in denying alternative sentencing. After
our review, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/carterm8305.pdf

WILLIAM LEE DRUMBARGER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

William Lee Drumbarger, Henning, Tennessee, Pro Se.

Paul G.Summers, Attorney General and Reporter; Brent Cherry, Assistant
Attorney General; Victor S. (Torry) Johnson, III, District Attorney
General; and Pamela Anderson, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the trial court's denial of his untitled
petition, treated by the trial court as a petition for writ of habeas
corpus. Upon our review, we affirm the denial of habeas relief and
further conclude that the petitioner's claim was not cognizable as a
petition for writ of certiorari. Therefore, we affirm the judgment of
the habeas court, pursuant to Tennessee Court of Criminal Appeals Rule
20.

http://www.tba.org/tba_files/TCCA/2005/drumbargerw8305.pdf

STATE OF TENNESSEE v. TONEY JASON HALE

Court:TCCA

Attorneys:                          

N. Andy Myrick, Jr., Fayetteville, Tennessee (on appeal), and Richard
A. Cawley, Shelbyville, Tennessee (at trial), for the appellant, Toney
Jason Hale.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael D. Randles and Ann L. Filer, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Toney Jason Hale, pled guilty in the Bedford County
Circuit Court to three counts of burglary of an automobile, a Class E
felony, and escape from a penal institution, a Class E felony. He
committed these offenses while serving an effective ten-year sentence
on probation for crimes committed in Marshall County. The defendant
was sentenced as a Range I, standard offender to one year, six months
for each conviction, pursuant to a negotiated plea agreement, with the
issue of consecutive sentencing to be decided by the trial court.
After a sentencing hearing, the trial court ordered two of the three
sentences for the burglary convictions to be served concurrently with
each other but consecutively to the sentence for the third conviction.
The trial court further ordered these sentences to run consecutively
to his sentence for the escape offense and consecutively to his
previous ten-year sentence, for an effective sentence of fourteen
years, six months in the Tennessee Department of Correction. On
appeal, the defendant contends that the trial court erred by ordering
consecutive sentences. We affirm the trial court.

http://www.tba.org/tba_files/TCCA/2005/halet8305.pdf

STATE OF TENNESSEE v. PRENTISS HOLLOWAY

Court:TCCA

Attorneys:                          

Garland Erguden and Robert Wilson Jones (on appeal) and Robert Trent
Hall and Tim Albers (at trial), Memphis, Tennessee, for the appellant,
Prentiss Holloway.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Alanda Dwyer and Michelle Parks, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

A Shelby County Criminal Court jury convicted the appellant, Prentiss
Holloway, of aggravated robbery and attempted aggravated robbery, and
the trial court sentenced himto consecutive sentences of eleven and
five years, respectively, in the Department of Correction. In this
appeal, the appellant claims that the trial court improperly enhanced
his sentences in light of Blakely v. Washington, 542 U.S. 296, 124 S.
Ct. 2531 (2004), and improperly ordered consecutive sentencing. Based
upon the record and the parties' briefs, we affirm the judgments of
the trial court.

http://www.tba.org/tba_files/TCCA/2005/hollowayp8305.pdf

STATE OF TENNESSEE v. CHARLES HENRY JENKINS

Court:TCCA

Attorneys:                          

Joe Harsh, Gallatin, Tennessee (at trial), and Gregory D. Smith,
Clarksville, Tennessee (on appeal), for the appellant, Charles Henry
Jenkins.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Lawrence R. Whitley, District Attorney
General; and Dee Gay, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Charles Henry Jenkins, was convicted by a Sumner County
jury of one count of possession of more than .5 grams of cocaine with
the intent to sell or deliver, a Class B felony, and one count of
evading arrest, a Class Amisdemeanor. He was sentenced by the trial
court as a Range I, standard offender to ten years for the cocaine
conviction and eleven months, twenty-nine days for the evading arrest
conviction, with the sentences ordered to run concurrently. The
defendant raises the following issues in this appeal: (1) whether the
evidence was sufficient to sustain his cocaine conviction; (2) whether
the trial court erred in excluding from his trial exculpatory
tape-recorded statements made by the confidential informant involved
in the case; and (3) whether the United States Supreme Court's
decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004), precluded the trial court from applying an enhancement factor
to increase his cocaine sentence beyond the minimum in the range.
Following our review, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/jenkinsc8305.pdf

STATE OF TENNESSEE v. THOMAS LEE PHILLIPS

Court:TCCA

Attorneys:                          

Timothy P. Webb, Jacksboro, Tennessee, for the Appellant, Thomas Lee
Phillips.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner,
Assistant Attorney General; William Paul Phillips, District Attorney
General; and Scarlett W. Ellis, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

A Campbell County jury convicted the defendant, Thomas Lee Phillips,
of two counts of child endangerment and violation of the implied
consent law by refusing to submit to drug/alcohol testing. See Tenn.
Code Ann. BB 55-10-414(1), -10-406(a)(3) (2004). On appeal, the
defendant contests the sufficiency of the convicting evidence and the
method of sentencing. Finding the evidence sufficient, we affirm but
merge the two child endangerment convictions pursuant to the Double
Jeopardy Clause. We also affirm the trial court's sentencing as
modified by the merger of the child endangerment convictions, and we
remand the judgment for the implied consent violation for correction
and for entry of a lawful sanction.

http://www.tba.org/tba_files/TCCA/2005/phillipst8305.pdf

STATE OF TENNESSEE v. ALFRED WILLIAM SMITH

Court:TCCA

Attorneys:                          

R. Joshua McKee, Athens, Tennessee, for the Appellant, Alfred William
Smith.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner,
Assistant Attorney General; Randall E. Nichols, District Attorney
General, Pro Tem; and Phil Morton, Assistant District Attorney
General, Pro Tem, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Alfred William Smith, appeals from his 2004 McMinn
County jury conviction of first degree premeditated murder, for which
the trial court imposed a life sentence. On appeal, the defendant
challenges the sufficiency of the convicting evidence and the
admission of statesponsored testimony. Discerning no reversible error,
we affirm.

http://www.tba.org/tba_files/TCCA/2005/smitha8305.pdf

STATE OF TENNESSEE v. CHRIS EDWARD SMITH

Court:TCCA

Attorneys:                          

Charles M. Corn, District Public Defender; and William Carter
Donaldson, Assistant Public Defender, for the appellant, Chris Edward
Smith.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Charles W. Pope, Jr., Assistant District Attorney General, for the
appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Chris Edward Smith, was convicted of the sale of less than
0.5 grams of cocaine, a Class C felony, and was sentenced as a Range
III, persistent offender to ten years imprisonment. On appeal,
Defendant argues (1) that the evidence was insufficient to support his
conviction; (2) that the trial court erred in overruling Defendant's
objection to the prosecutor's peremptory challenge of the only
African-American prospective juror in the venire; and (3) that the
trial court erred when it mistakenly informed the jury that Defendant
was also charged with possession of drug paraphernalia. Defendant does
not challenge his sentence on appeal. Following a thorough review of
the record, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/smithc8305.pdf

STATE OF TENNESSEE v. WILLIAM DONALD SMITH

Court:TCCA

Attorneys:                          

Roger E. Nell, District Public Defender; and Russell Church, Assistant
District Public Defender, for the Appellant, William Donald Smith.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; John Carney, District Attorney General;
and Helen Young, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, William Donald Smith, pleaded guilty to three counts
charging aggravated sexual battery, a Class B felony, and five counts
charging child rape, a Class Afelony. The plea agreement provided for
the trial court to determine the sentences, except that the agreement
provided that the aggregate sentence would not exceed 50 years and no
more than one child rape sentence would be ordered served
consecutively with any other sentence. The trial court sentenced the
defendant to the following Department of Correction terms: for
aggravated sexual battery, concurrent sentences of eight, 10, and 12
years, respectively; and for child rape, two sentences of 20 years
each and three sentences of 25 years each. The trial court ran the two
20-year sentences concurrently to each other and to the aggregate
12-year sentence for aggravated sexual battery. It imposed the three
25-year sentences to run concurrently with each other but
consecutively to the other five sentences, for a net aggregate
sentence of 45 years. On appeal, the defendant challenges the trial
court's sentencing determinations. After review, we affirm the
judgments as modified.

http://www.tba.org/tba_files/TCCA/2005/smithw8305.pdf

Purchasing Requirements Under Municipal Charters and Private Acts 

Date: July 29, 2005

Opinion Number: 05-120

http://www.tba.org/tba_files/AG/2005/op120.pdf

Detention of Juveniles Transferred to Criminal Court to be Dealt with
as Adults

Date: July 29, 2005

Opinion Number: 05-121

http://www.tba.org/tba_files/AG/2005/op121.pdf

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