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TODAY'S OPINIONS: Monday, August 15, 2005
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 - Formal Ethics Opinions - BPR
00 - Judicial Ethics Opinions
00 - TN Attorney General Opinions
06 - TN Court of Appeals
09 - TN Court of Criminal Appeals
00 - TN Supreme Court
00 - TN Supreme Court - Rules
03 - TN Worker's Comp Appeals


STATE OF TENNESSEE ex rel. DEBORAH BELFORD v. STEVEN GREEN

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter, Stuart F. Wilson-Patton, Senior Counsel, Nashville, Tennessee, for the Appellant, State of Tennessee ex rel. Deborah Belford.

John T. Sholly, Knoxville, Tennessee, for the Appellee Steven Green.

Judge: SWINEY

The appeal involves child support arrearages incurred by Steven Green (ćFatherä) over a period spanning almost five years. For the first two years of this five-year period, Father lived in North Carolina before moving to Tennessee in December of 2000. The Juvenile Court concluded it did not have personal jurisdiction over Father sufficient to allow it to enter a judgment against him for retroactive child support for the time before Father moved to Tennessee. We conclude the Juvenile Court had personal jurisdiction over Father, reverse that portion of the final judgment, and remand for further proceedings.

http://www.tba.org/tba_files/TCA/2005/belfordd81505.pdf


KEVIN JOSEPH COSTLEY v. VICKI BROWN (COSTLEY) BENJAMIN

Court: TCA

Attorneys:

Joe H. Thompson, Gallatin, Tennessee, for the appellant, Vicki Brown (Costley) Benjamin.

James H. Flood, Lebanon, Tennessee, for the appellee, Kevin Joseph Costley.

Judge: COTTRELL

Following divorce, the mother was awarded primary custody of the partiesā two young children.Five years later, she acquiesced to letting the older child, a son, live primarily with his father. The father then petitioned the trial court for primary custody of both children. The court namedhim the primary residential parent for the older child, but left the mother as the primary residential parent for the partiesā younger child, a daughter. Less than a year later, the fatherfiled another petition for modification of the parenting arrangement regarding the daughter, asking that primary residential placement be with him. This time, the trial court granted thepetition, reasoning that the father would never relent in his efforts to obtain primary residential placement and that the parentsā continuing struggle was detrimental to the childās well-being.We reverse the trial court because we do not believe that the father has demonstrated a proper ground for modification of the prior parenting arrangement and because the proof shows that themother is more inclined than the father to encourage the childās relationship with the other parent.

http://www.tba.org/tba_files/TCA/2005/costleyk81505.pdf


MICHAEL LORD v. MEHARRY MEDICAL COLLEGE SCHOOL OF DENTISTRY

Court: TCA

Attorneys:

Troy Lee Brooks, Mt. Juliet, Tennessee, for the appellant, Michael Lord.

Charles K. Grant, Lawrence C. Maxwell, Nashville, Tennessee, for the appellee, MeharryMedical College, School of Dentistry.

Judge: COTTRELL

A former dental student appeals trial courtās dismissal of his claim against Meharry MedicalCollege wherein the student asked the court to revise a failing grade and reinstate the student in school after he had been dismissed for poor academic performance. We affirm.

http://www.tba.org/tba_files/TCA/2005/lordm81505.pdf


V.C. MORTON v. L.R. MORTON, ET AL.

Court: TCA

Attorneys:

Jerrold L. Becker and Samuel W. Brown, Knoxville, Tennessee, for the Appellant, L.R. Morton.

Rex A. Dale, Loudon, Tennessee, for the Appellants, James E. Morton and Mace W. Morton.

Carl P. McDonald and Robert N. Goddard, Maryville, Tennessee, for the Appellee, V.C. Morton.

Judge: SWINEY

V.C. Morton (ćWifeä) sued L.R. Morton (ćHusbandä) for a divorce. Wife later amended her complaint to allege that Husband had fraudulently transferred real estate and personal property to the partiesā two adult sons (ćJames and Mace Mortonä) 1 in an attempt to deprive Wife of her rights to that marital property. James and Mace Morton were added as named defendants to the suit. Prior to trial, all parties stipulated to the return of the real estate and personal property that Husband had transferred to James and Mace Morton for distribution in the divorce. After a bench trial, the Trial Court found and held, inter alia, that Husband had committed a fraud in fact by transferring the property to the sons, granted the divorce, and distributed the partiesā property. Husband appeals claiming that the property distribution was inequitable and that the Trial Court erred in ordering him to provide medical insurance coverage to Wife for the remainder of her life. James and Mace Morton also appeal claiming the Trial Court erred in depriving them of their right to a jury trial, by finding that the transactions between Husband and James and Mace Morton were a fraud in fact, and by classifying certain farm equipment and machinery as marital property. We modify the property division, and affirm as modified.

http://www.tba.org/tba_files/TCA/2005/mortonv81505.pdf


ERIC and SUZANNE MUMFORD v. STATE OF TENNESSEE

Court: TCA

Attorneys:

W.I. Howell Acuff, Cookeville, Tennessee, for appellant.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Rebecca Lyford, Assistant Attorney General, Nashville, Tennessee, for appellee.

Judge: FRANKS

Plaintiffs sued the State for alleged negligence of one of its drivers license examiners in conducting an applicantās road test which resulted in an accident. The Commissioner dismissed the case at conclusion of plaintiffsā proof. On appeal, we affirm.

http://www.tba.org/tba_files/TCA/2005/mumforde81505.pdf


WINGS MANUFACTURING CORP. v. ROY D. LAWSON, ET AL.

Court: TCA

Attorneys:

John M. Higgason, Jr., Chattanooga, Tennessee, for the appellant, Wings Manufacturing Corp.

H. Thomas Parsons, Manchester, Tennessee, for the appellee, Roy D. Lawson, d/b/a LawsonSales Company.

Judge: COTTRELL

This case involves the calculation of damages for lost profits arising from a breached contractbetween two apparel companies. The seller claimed that the trial court failed to take into account the costs it incurred manufacturing the goods, resulting in an excessive award for the buyer. Thebuyer contended that the trial court was correct in adopting the calculation of damages that the buyer presented. It appears to us that because the buyer never accepted the goods in question, itwas not obligated to pay the seller for those goods and was entitled to reimbursement for the $50,000 the seller wrongfully withdrew from the buyerās letter of credit. We accordingly affirmthe trial court.

http://www.tba.org/tba_files/TCA/2005/wings81505.pdf


BARRY L. ARMISTEAD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight E. Scott, Nashville, Tennessee, for the appellant, Barry L. Armistead.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Barry L. Armistead, appeals the Davidson County Criminal Courtās summary dismissal of his petition for post-conviction relief. He claims that the trial court erred in dismissing his petition without appointing counsel and that his due process rights were violated at his probation revocation hearing. We affirm the trial court.

http://www.tba.org/tba_files/TCCA/2005/armisteadb81505.pdf


STATE OF TENNESSEE v. ANDY BROWN

Court: TCCA

Attorneys:

Andy Brown, Sr., Pro Se, Whiteville, Tennessee

Paul G. Summers, Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the Stateās motion to affirm the judgment of the trial court by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner is appealing the lower courtās denial of habeas corpus relief.

http://www.tba.org/tba_files/TCCA/2005/browna81505.pdf


BILLY GENE FERGUSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Billy Gene Ferguson, Winchester, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; and C. Michael Layne, District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

In this case, Appellant, Billy Gene Ferguson, has appealed from the trial courtās order summarily dismissing, without an evidentiary hearing, his petition for writ of habeas corpus. The State has filed a motion for the trial courtās judgment to be affirmed pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. We grant the motion and affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/fergusonb81505.pdf


STATE OF TENNESSEE v. ANTONIO D. JONES

Court: TCCA

Attorneys:

Richard McGee, Nashville, Tennessee; and James O. Martin, Nashville, Tennessee, for the Appellant, Antonio D. Jones

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; Pamela Sue Anderson, Assistant District Attorney General; and Tammy Meade, Assistant District Attorney General, for the Appellee, the State of Tennessee.

Judge: HAYES

Following a bench trial, the Appellant, Antonio D. Jones, was convicted of one count of Class B felony possession of cocaine, one count of simple possession of marijuana, and one count of criminal trespass. The Appellant was sentenced to twelve years for felony possession of cocaine, eleven months and twenty-nine days for possession of marijuana, and thirty days for trespassing. All sentences were ordered to run concurrently for an effective sentence of twelve years. On appeal, the Appellant argues that the evidence presented at trial was insufficient to establish his guilt of possession of over .5 grams of cocaine with intent to sell. He also argues that the trial court erred by denying his motion to suppress evidence seized during a warrantless search. After review, we conclude that the trial court erred in denying Jonesā motion to suppress. Accordingly, the judgments of conviction for possession of marijuana and felony possession of cocaine are reversed and remanded for a new trial. Jonesā conviction for criminal trespass is affirmed.

http://www.tba.org/tba_files/TCCA/2005/jonesa81505.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/2005/jonesa_con81505.pdf

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/2005/jonesa_dis81505.pdf


STATE OF TENNESSEE v. MORRIS LAMONTE MARSH

Court: TCCA

Attorneys:

Following a bench trial, the Appellant, Antonio D. Jones, was convicted of one count of Class B felony possession of cocaine, one count of simple possession of marijuana, and one count of criminal trespass. The Appellant was sentenced to twelve years for felony possession of cocaine, eleven months and twenty-nine days for possession of marijuana, and thirty days for trespassing. All sentences were ordered to run concurrently for an effective sentence of twelve years. On appeal, the Appellant argues that the evidence presented at trial was insufficient to establish his guilt of possession of over .5 grams of cocaine with intent to sell. He also argues that the trial court erred by denying his motion to suppress evidence seized during a warrantless search. After review, we conclude that the trial court erred in denying Jonesā motion to suppress. Accordingly, the judgments of conviction for possession of marijuana and felony possession of cocaine are reversed and remanded for a new trial. Jonesā conviction for criminal trespass is affirmed.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Brett Gunn and Roger Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Morris Lamonte Marsh, was convicted of four counts of first degree felony murder, two counts of second degree murder, two counts of attempted second degree murder, and one count of aggravated assault. After merging two of the first degree felony murder convictions and the two second degree murder convictions into the first two felony murder convictions and merging the aggravated assault conviction into one of the attempted second degree murder convictions, the trial court ordered the defendant to serve a total effective sentence of two life sentences plus forty years. On appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to support his convictions; (2) whether the trial court erred in instructing the jury on the law governing criminal responsibility; and (3) whether the trial court erred in sentencing the defendant. Upon review, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/marshm81505.pdf


STATE OF TENNESSEE v. MARVIN NORTON

Court: TCCA

Attorneys:

William R. Underhill, Springfield, Tennessee, for the appellant, Marvin Norton.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Dent Morriss and Joel Perry, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Robertson County Circuit Court jury convicted the appellant, Marvin Norton, of possessing twenty-six grams of cocaine with the intent to sell, and the trial court sentenced him to twelve years in the Department of Correction. In this appeal, the appellant claims (1) that the evidence is insufficient to support the conviction and (2) that he received the ineffective assistance of trial counsel. Upon review of the record and the partiesā briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/nortonm81505.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/2005/nortonm_con81505.pdf


STATE OF TENNESSEE v. VICTOR L. POWELL

Court: TCCA

Attorneys:

Larry B. Felts, Nashville, Tennessee, for the appellant, Victor L. Powell.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Tammy Meade, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

Following a bench trial, the defendant, Victor L. Powell, was convicted of driving under the influence (DUI), violating the implied consent law, and resisting arrest. He received a sentence of eleven months, twenty-nine days for DUI and a concurrent sentence of six months for resisting arrest. For his violation of the implied consent law, the defendantās license was suspended for one year. On appeal, the defendant argues the sufficiency of the convicting evidence. Upon review of the record and the partiesā briefs, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/powellv81505.pdf


CHARLES G. SUMMERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Charles G. Summers, Pro se.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; and Ronald L. Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Charles G. Summers, filed an application for writ of habeas corpus in the Hickman County Circuit Court. The habeas corpus court summarily dismissed the petition, and the petitioner timely appealed. Upon review of the record and the partiesā briefs, we reverse the habeas corpus courtās dismissal of the petition and remand for further proceedings consistent with this opinion.

http://www.tba.org/tba_files/TCCA/2005/summersc81505.pdf


STATE OF TENNESSEE v. KEITH WRADY

Court: TCCA

Attorneys:

Jeffry S. Grimes, Clarksville, Tennessee, for the appellant, Keith Wrady.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and John Finklea, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Keith Wrady, appeals the Montgomery County Circuit Courtās denial of probation following his guilty plea to the offense of failure to appear, a Class E felony. He argues that the trial court improperly weighed statutory mitigating and aggravating factors and failed to consider all relevant factors when ordering him to serve his sentence in the Department of Correction. We affirm the judgment.

http://www.tba.org/tba_files/TCCA/2005/wradyk81505.pdf


DONALD COHEA v. JERRY THAXTON d/b/a JD CONSTRUCTION

Court: TWCA

Attorneys:

Gordon C. Aulgur, Nashville, Tennessee, for the appellant, Jerry Thaxton, d/b/a JD Construction.

Stanley A. Davis, Nashville, Tennessee, for the appellee, Donald Cohea.

Judge: HARRIS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer asserts that the trial court erred in its finding that the employee had sustained an 85% permanent partial disability to the whole body and in awarding 237.1 weeks of temporary total disability for an inguinal hernia sustained in the course of his employment with JD Construction. Because the employee had not reached maximum medical improvement and had not received surgical treatment as required by Tennessee Code Annotated section 50-6-212, we find the award of permanent partial disability to be premature and reverse. The trial courtās award of temporary total disability benefits is modified to award temporary partial disability benefits, and the cause is remanded to the trial court for further proceedings.

http://www.tba.org/tba_files/TSC_WCP/2005/cohead81505.pdf


RICHARD MASON v. ATLANTIC SOFT DRINK COMPANY, INC., ET AL.

Court: TWCA

Attorneys:

Michael R. Giaimo, Livingston, Tennessee, for the appellant, Richard Mason.

John R. Lewis, Nashville, Tennessee, for the appellees, Atlantic Soft Drink Company, Inc., and Transcontinental Insurance Company.

Richard M. Murrell, Nashville, Tennessee, for the appellee, Second Injury Fund.

Judge: HARRIS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employee asserts that the trial court erred in its finding that the employee suffered 55% permanent partial disability to the whole person as the result of a back injury and only an 85% permanent partial disability to the right lower extremity as the result of a knee injury, both injuries occurring in the course of appellant's employment with the Atlantic Soft Drink Company, Inc., a/k/a Pepsi Cola Company. We conclude that the evidence presented supports the findings of the trial judge and, in accordance with Tennessee Code Annotated section 50-6-225(e)(2), affirm the judgment of the trial court.

http://www.tba.org/tba_files/TSC_WCP/2005/masonr81505.pdf


GLORIA JEAN SMITH v. V.F. IMAGEWEAR (WEST), INC.

Court: TWCA

Attorneys:

Aubrey T. Givens, Nashville, Tennessee, for the appellant, Gloria Jean Smith.

Bree A. Taylor, Nashville, Tennessee, for the appellee, V.F. ImageWear (West) Inc.

Judge: HARRIS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employee asserts that the trial court erred in finding that she failed to prove by a preponderance of the evidence that she sustained a work-related injury during the course of her employment with V.F. ImageWear (West), Inc., that would entitle her to benefits under the workers' compensation laws. We conclude that the evidence presented supports the findings of the trial judge and, in accordance with Tennessee Code Annotated section 50-6-225(e)(2), affirm the judgment of the trial court.

http://www.tba.org/tba_files/TSC_WCP/2005/smithg81505.pdf


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