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Today's Opinions: August 16, 2005
Volume 11 — Number 156
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.
01 New Opinion(s) from the Tennessee Supreme Court
01 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
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


JANICE D ELONG v. THE VANDERBILT UNIVERSITY

Court: TCA

Attorneys:

Daniel K. Evans, Lexington, Virginia, for the appellant, Janice
DeLong.

Darrell G. Townsend and Neil M. McIntire, Nashville, Tennessee, for
the appellee, TheVanderbilt University.

Judge: KOCH

This appeal involves the collateral consequences of the dismissal of a
wrongful death claim forfailure to prosecute.The mother of a student
who fell to his death from a dormitory window filed suit in both state
and federal court against the university her son was attending.After
thestate proceedings lay dormant for over one year, the Circuit Court
for Davidson County dismissed the complaint for failure to
prosecute.Thereafter, the university moved to dismiss thefederal suit
on the ground that the dismissal of the state suit was res judicata
with regard to the federal claim.The mother filed a Tenn. R. Civ. P.
60 motion in state court requestingmodification of the dismissal order
to reflect that it was not an adjudication on the merits.The state
court denied the mother‚s request for Tenn. R. Civ. P. 60 relief and
also denied her requestfor permission to file a Tenn. R. App. P. 9
appeal.The mother has appealed both decisions.We have determined that
the trial court erred by denying the mother‚s Tenn. R. Civ. P. 60
motion.

http://www.tba.org/tba_files/TCA/2005/delongj81605.pdf

CATHY L. CHAPMAN, ET AL. v. RICK J. BEARFIELD

Court: TCA

Attorneys:

John J. Bandeian, Bristol, Tennessee, and Donald K. Vowell, Knoxville,
Tennessee, for the Appellants, Cathy L. Chapman, Brandon Chapman,
Kaylan L. Chapman, and Dana L. Chapman, Minors, by and through their
Mother and natural Guardian, Cathy L. Chapman.

Jason W. Blackburn, Johnson City, Tennessee, for the Appellee, Rick J.
Bearfield.

Judge: SWINEY

Cathy L. Chapman, Brandon Chapman, Kaylan L. Chapman, and Dana L.
Chapman („Plaintiffsš) retained attorney Rick J. Bearfield
(„Defendantš) to represent them in a medical malpractice action.
During the course of this representation, Defendant filed an amended
complaint repudiating a theory of the case originally
alleged.Plaintiffs later hired new counsel and filed a legal
malpractice action against Defendant.Defendant filed a motion for
summary judgment, which the Trial Court granted on the grounds that
Plaintiffs‚ expert‚s affidavit was deficient technically and did not
comply with the locality rule.We vacate the grant of summary judgment.

http://www.tba.org/tba_files/TCA/2005/chapmanc81605.pdf

DEBRA J. JOHNSON, PHILLIP JOHNSON and BLUE CROSS BLUE SHIELD OF
TENNESSEE v. DUPREE OIL COMPANY, INC.

Court: TCA

Attorneys:

Michael R. Campbell, Chattanooga, Tennessee, for appellant.

Thomas Crutchfield, and Barton C. Solomon, Chattanooga, Tennessee, for
appellees.

Judge: FRANKS

Plaintiff was injured in a fall and the jury returned a verdict for
damages against defendant which was approved by the Trial Court.On
appeal, we affirm.

http://www.tba.org/tba_files/TCA/2005/johnsond81605.pdf

NANCY FAYE LESTER MCDANIEL, v. HAROLD EDWARD MCDANIEL

Court: TCA

Attorneys:

John P. Chiles, Kingsport, Tennessee, and Thomas F. Bloom, Nashville,
Tennessee, for appellant.

Gene H. Tunnell, Kingsport, Tennessee, for appellee.

Judge: FRANKS

The Trial Court held appellant‚s retirement was not a material change
of circumstances so as to enable appellant to reduce his alimony
payments.On appeal, we reverse.

http://www.tba.org/tba_files/TCA/2005/mcdanieln81605.pdf

EMILY PATRICIA RUSSELL RAY v. JAMES FRANKLIN RAY, SR.

Court: TCA

Attorneys:

James Franklin Ray, Forest City, North Carolina,pro se, Appellant.

Francis X. Santore, Greeneville, Tennessee, for the Appellee, Emily
Patricia Russell Ray.

Judge: LEE

In this divorce case, husband argues that the trial court erred in
awarding wife rehabilitative alimony and attorney‚s fees and contends
that a post-judgment change in circumstances warrants termination of
alimony.Because husband failed to submit a transcript or statement of
evidence, failed to support his argument with citations of authority
and appropriate references to the record, and failed to raise the
issue of post- judgment change of circumstances prior to appeal, we
affirm the judgment of the trial court and remand.

http://www.tba.org/tba_files/TCA/2005/raye81605.pdf

TIMOTHY V. RILEY and SARAH RILEY v. RICHARD O. WHYBREW, SANDRA K
PARKER, MARINA C. PARKER, FIVE JOHN DOES and FIVEJANE DOES

Court: TCA

Attorneys:

Barry W. Kuhn and Dwight T. Moore, Memphis, for plaintiffs/appellants
Timothy V. RileyandSarah Riley

Gary R. Wilkinson and C. Michael Becker,Memphis, for
defendant/appellee Richard O.Whybrew

Judge: KIRBY

This case is about nuisance and infliction of emotional distress. The
plaintiff homeowners andtheir minor child lived in a house in a
subdivision.The defendant landowner owned a house next door to the
plaintiffs‚ home.The defendant landowner rented his house to
tenants.The tenantsallegedly began to engage in disturbing conduct,
including illegal drug use, discharging firearms, and harassment.The
plaintiffs sued the tenants and the defendant landowner for nuisance
and forintentional and negligent infliction of emotional distress.The
defendant landowner filed a motion for summary judgment, asserting
that the plaintiffs had no medical evidence of their
emotionaldistress.Counsel for the plaintiffs did not respond to the
motion for summary judgment and did not notify the plaintiffs of the
pending motion.The trial court granted summary judgment infavor of the
landowner. The plaintiffs later got a new attorney and filed a motion
to set aside this judgment.The trial court set aside the grant of
summary judgment, to enable the plaintiffs to filea response.After the
plaintiffs filed a response, the trial court again granted summary
judgment in favor of the landowner.We affirm the grant of summary
judgment as to the claim ofintentional infliction of emotional
distress, and reverse as to claims of nuisance and negligent
infliction of emotional distress.

http://www.tba.org/tba_files/TCA/2005/rileyt81605.pdf

STATE OF TENNESSEE v. DANA LYNN ARMSTRONG

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender; and Leslie S. Hale,
Assistant Public Defender, Blountville, Tennessee, for the appellant,
Dana Lynn Armstrong.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; Robert H. Montgomery, Jr., Assistant District Attorney
General; and Barry P. Staubus, Assistant District Attorney General,
for the appellee, the State of Tennessee.

Judge: WOODALL

Following a revocation hearing, the trial court revoked the probation
of Defendant, Dana Lynn Armstrong, and ordered him to serve the
remainder of his sentence in confinement.In his appeal, Defendant
argues that the trial court erred in finding that he had violated the
terms of his probation, and in revoking his probation and ordering
that the sentence be served by incarceration.After a review of this
matter, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/armstrongd81605.pdf

STATE OF TENNESSEE v. HAROLD HOLLOWAY, JR.

Court: TCCA

Attorneys:

Ardena J. Garth, District Public Defender; and Donna Robinson Miller,
Assistant District Public Defender, Chattanooga, Tennessee, for the
Appellant, Harold Holloway, Jr.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William H. Cox, District Attorney General;
and Lila Statom, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Harold Holloway, Jr., was convicted by a Hamilton
County jury of second degree murder, attempted theft over $10,000,
attempted aggravated robbery, and attempted carjacking. After a
sentencing hearing, Holloway was sentenced to an effective forty-year
sentence in the Department of Correction.On appeal, Holloway raises
seven issues for our review: (1) whether the trial court erred in
refusing to hear an ex parte motion for the appointment of a forensic
psychiatrist and a neuropsychological examiner; (2) whether the
convictions for attempted aggravated robbery and attempted theft over
$10,000 violate double jeopardy principles; (3) whether the evidence
is sufficient to support the conviction for attempted carjacking; (4)
whether the court erred in failing to instruct the jury on any lesser
included offenses of carjacking; (5) whether the court erred in
allowing the State to question a defense expert in addiction medicine
regarding prior bad acts committed by Holloway which were enumerated
in reports relied upon by the expert; (6) whether the State improperly
impeached a defense witness by questioning the witness regarding prior
convictions which were not admissible under Tenn. R. Evid. 609; and
(7) whether the trial court properly sentenced Holloway.After review
of the record, we conclude that the convictions for attempted
aggravated robbery and attempted theft over $10,000 violate principles
of double jeopardy. The Appellant‚s remaining issues are without
merit.Accordingly, the judgments of conviction and resulting sentences
for second degree murder, attempted aggravated robbery, and attempted
carjacking are affirmed.The judgment of conviction for attempted theft
over $10,000 is merged with the Appellant‚s conviction for attempted
aggravated robbery, and the sentence for attempted theft is vacated.

http://www.tba.org/tba_files/TCCA/2005/hollowayh81605.pdf

STATE OF TENNESSEE v. DAVID GENE HOOPER

Court: TCCA

Attorneys:

Ardena J. Garth, District Public Defender, and Donna Robinson Miller,
Assistant Public Defender, for the appellant, David Gene Hooper.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Mary Sullivan Moore, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

A Hamilton County Criminal Court Jury convicted the defendant, David
Gene Hooper, of rape, a Class B felony, and incest, a Class C felony,
and the trial court sentenced him to concurrent terms of eight years
for therape and three years for the incest to be served on community
corrections after serving eleven months and twenty-nine days in the
county workhouse.The defendant appeals, claiming the trial court erred
(1) in failing to grant a mistrial based upon the state‚s failure to
disclose exculpatory evidence until the middle of trial and in
prohibiting him from cross-examining the victim concerning the
exculpatory evidence; (2) in repeatedly admitting testimony which
bolstered the victim‚s complaint through multiple witnesses; (3) in
allowing testimony from various witnesses concerning the fact that
victims of sexual abuse frequently delay reporting an attack; (4) in
allowing the state to cross-examine the defendant concerning his
possession of marijuana on the day he was arrested, approximately two
years after the crime; and (5) in failing to instruct the jury on the
lesser included offenses of attempted rape, attempted sexual battery,
and assault pursuant to State v. Burns, 6 S.W.3d 453 (Tenn. 1999).We
conclude that although the trial court should have allowed the
defendant to cross-examine the victim concerning the evidence the
state failed to disclose until trial, the error was harmless.We affirm
the trial court.

http://www.tba.org/tba_files/TCCA/2005/hooperd81605.pdf

EUGENE J. KOVALSKY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Rex A. Dale, Loudon, Tennessee, for the Appellant, Eugene J. Kovalsky.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Kathy
D. Aslinger, Assistant Attorneys General, for the Appellee, State of
Tennessee.

Judge: TIPTON

The petitioner, Eugene J. Kovalsky, appeals from the trial court's
order dismissing his petition for writ of habeas corpus. The state has
filed a motion requesting that this court affirm the trial court's
denial of relief pursuant to Rule 20 of the Rules of the Court of
Criminal Appeals. The petitioner has failed to establish that he is
entitled to habeas corpus relief.Accordingly, the state's motion is
granted and the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/kovalskye81605.pdf

PATRICK DESHUN PARIS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Brandon Raulston, Chattanooga, Tennessee (on appeal), and Jeffrey
Schaarschmidt, Chattanooga, Tennessee (at trial), for the appellant,
Patrick Deshun Paris.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi,
Assistant Attorney General; William H. Cox, III, District Attorney
General; Boyd Patterson, Assistant District Attorney, Lila Statom,
Assistant District Attorney General; and Dean C. Ferraro, Assistant
District Attorney General, for the appellee, the State of Tennessee.


Judge: WOODALL

Petitioner, Patrick Deshun Paris, filed a petition for post-conviction
relief, which was subsequently amended.Following an evidentiary
hearing, the petition for post-conviction relief was dismissed. On
appeal, Petitioner argues that the post-conviction court erred in not
stating its findings of fact and conclusions of law in its order
denying Petitioner post-conviction relief. Petitioner also alleges
that he received ineffective assistance of counsel at trial and on
appeal because his counsel (1) failed to request the removal of juror,
Daisy Foster; (2) questioned Marco Brooks about his family‚s criminal
history to the detriment of Petitioner‚s case; (3) failed to
adequately investigate Petitioner‚s case and prepare for trial; and
(4) failed to object to the prosecutor‚s leading questions during Mr.
Brooks‚ direct examination.After a thorough review of the record, we
affirm the judgment of the postconviction court.

http://www.tba.org/tba_files/TCCA/2005/parisp81605.pdf

ANTHONY LAMONT SINGLETON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Mark D. Harris, Kingsport, Tennessee, for the appellant, Anthony
Lamont Singleton.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Kent Chitwood, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Anthony Lamont Singleton, appeals from the post-conviction
court‚s denial of his petition for post-conviction relief.In his
appeal, Petitioner argues that his Alford pleas in case No. S45,328
and case No. S47, 632 were involuntarily entered into, that his trial
counsel provided ineffective assistance in connection with the
negotiation and entry of his Alford pleas, and that the trial court
improperly appointed trial counsel to represent him in case No.
47,632.After a review of the record, we affirm the judgment of the
post-conviction court.

http://www.tba.org/tba_files/TCCA/2005/singletona81605.pdf

KEVIN WHITE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Charles G. Wright, Jr., Chattanooga, Tennessee, for the appellant,
Kevin White.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; William H. Cox, III, District Attorney
General; Lila Statom and Rodney C. Strong, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Kevin White, appeals the trial court‚s denial of
post-conviction relief.In this appeal as of right, the petitioner
presents one issue for review: whether the trial court erred in
refusing to exclude his trial counsel from the courtroom during his
testimony at the post-conviction hearing. The judgment of the trial
court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/whitek81605.pdf

GARY RANDALL YARNELL v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert M. Cohen, Maryville, Tennessee, for the Appellant, Gary Randall
Yarnell.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and Rocky Young, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

Gary Randall Yarnell, the petitioner, appeals the Blount County
Circuit Court‚s denial of his petition for post-conviction relief.The
lower court found his allegations of ineffective assistance of counsel
and unknowing and involuntary guilty pleas unsupported by the evidence
and denied relief.Because we are unpersuaded of error, we affirm.

http://www.tba.org/tba_files/TCCA/2005/yarnellg81605.pdf

STATE OF TENNESSEE. v. ROGER KNOBLOCK

Court: TCCA

Attorneys:

H. Gene Bell, Knoxville, Tennessee, for the appellant, Roger Knoblock.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; Kevin J. Allen, Assistant District Attorney General, and Jim
Bush, Assistant District Attorney General, for the appellee, the State
of Tennessee.

Judge: WOODALL

Defendant, Roger Knoblock, was convicted, following a jury trial, of
aggravated sexual battery.On appeal, he argues that the trial court
erred by allowing evidence of a prior conviction for aggravated sexual
battery to be introduced during Defendant's testimony on
cross-examination.After a thorough review of the record, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/knoblockr81605.pdf

STATE OF TENNESSEE v. ANTHONY CROWE
ORDER

Court: TSC

Judge: PER CURIAM

The State of Tennessee has filed a petition for rehearing of the
opinion of this Court filedon June 23, 2005.Upon due consideration,
the petition is DENIED.

http://www.tba.org/tba_files/TSC/2005/crowe_ord81605.pdf

FREDERICK J. LANG v. NISSAN NORTH AMERICA, INC.

Court: TWCA

Attorneys:

Compensation Appeals Panel), for the appellant Nissan North America,
Inc. Compensation Appeals Panel), for the appellant Nissan North
America, Inc.

Branch H. Henard, III, Nashville, Tennessee (on appeal to the Supreme
Court), and Mark A. Baugh, Nashville, Tennessee (at trial and on
appeal to the Special Workers‚ Compensation Appeals Panel), for the
appellee Frederick J. Lang.

Terry L. Hill, Nashville, Tennessee (on appeal to the Supreme Court),
for amicus curiae the National Federation of Independent Business
Legal Foundation.

Judge: DROWOTA

In this case, an employee suffered work-related binaural hearing loss
which has resulted in a 22% to 26% permanent medical impairment
rating.The employeehas missed no work as a result of this
impairment.Focusing on the employee‚s continued ability to work, the
trial court awarded the employee 9% of 150 weeks for loss of hearing
as a scheduled member.On appeal, the Special Workers‚ Compensation
Appeals Panel increased the employee‚s award to 45% of 150 weeks.
Based on our independent review of the preponderance of the evidence,
see Tenn. Code Ann. § 50-6225(e)(2) (1999), we conclude that the trial
court improperly discounted the extent of both the anatomical
impairment and the vocational disability suffered by the employee.In
our view, the evidence preponderates against the trial court‚s award
of 9% disability benefits for loss of hearing and in favor of the
Panel‚s 45% award; we therefore adopt the Panel‚s modification of the
trial court‚s award and affirm the trial court‚s award of benefits to
the employee as so modified. However, in the course of explaining its
decision, the Panel referred to the employee‚s „loss of his ability to
enjoy normal, everyday activities.šWe vacate the Panel‚s decision
insofar as the Panel may have recognized the loss of enjoyment of
life, or hedonic damages, as a basis for the recovery of workers‚
compensation benefits.For the purpose of establishing anatomical or
vocational disability in workers‚ compensation cases, it is
appropriate to consider how a work-related injury affects an
employee‚s capacity to engage in normal, everyday activities; however,
we hold that Tennessee workers‚ compensation law does not recognize
hedonic damagesųdamages for the loss of enjoyment of lifeųas a basis
for the recovery of benefits.

http://www.tba.org/tba_files/TSC_WCP/2005/langf81605.pdf

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