Headline link here
Body of ad here

Today's Opinions: August 19, 2005
Volume 11 — Number 159
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
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
09 New Opinion(s) from the Tennessee Court of Appeals
11 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


FORREST L. WHALEY,ET AL. v. JIM ANN PERKINS, ET AL. 

Court: TCA

Attorneys:

John D. Horne of Memphis for Appellants, Jim Ann Perkins, Albert
Lewis Beshires and TerryLynn Beshires

Richard M. Carter, Paul H. Morris, and Brian K. Kelsey of Memphis for
Appellees, Forrest L.Whaley and Margaret Ann Whaley 

Judge: CRAWFORD

Purchasers of real property filed suit for breach of contract,
negligence per se, intentionalmisrepresentation, breach of warranty
of title, and emotional distress against various parties, alleging
that purchasers had purchased the subject property in reliance upon
misrepresentationsby defendants as to the merchantability of title to
the property, only to discover later that the property had been
illegally subdivided by defendants. Purchasers contended that they
sufferedcatastrophic pecuniary and other loss as result of alleged
misrepresentations, due to extremely limited legal uses that could be
made of illegally subdivided parcel. At trial, jury found that eachof
the defendants had committed intentional misrepresentation, and
awarded compensatory damages in the amount of $170,000 and punitive
damages in the amount of $5,000. Defendantsappeal on numerous
grounds. Finding that the trial court erred, we vacate and remand. 

http://www.tba.org/tba_files/TCA/2005/whaleyf81905.pdf

AMERICAN HERITAGE APARTMENTS, INC. v. BILL BENNETT, TAX ASSESSOR OF
HAMILTON COUNTY, ET AL. 

Court: TCA

Attorneys:

Charles A. Trost, Michael G. Stewart, Brett R. Carter, Nashville,
Tennessee, for the appellants,American Heritage Apartments, Inc. 

Paul G. Summers, Attorney General and Reporter; and Gary R. Hotvedt
and Jonathan N. Wike,Assistant Attorney General, for the appellee,
Bill Bennett, Tax Assessor of Hamilton County; William Nobles,
Trustee of Hamilton County; County of Hamilton; and Tennessee State
Boardof Equalization. 

Judge: CLEMENT

A nonprofit corporation which owns an apartment complex that provides
housing to low-incomeindividuals applied for an exemption from ad
valorem property taxes pursuant to Tenn. Code Ann. € 67-5-212.The
Assessment Appeals Commission of the State Board of
Equalizationdetermined that the owner was not entitled to a property
tax exemption, and the Davidson County Chancery Court affirmed the
denial of exemption.The owner appealed.We affirm. 

http://www.tba.org/tba_files/TCA/2005/americanh81905.pdf

BEVERLY HEALTHCARE BRANDYWOOD v. BETTY L. GAMMON, ET AL. 

Court: TCA

Attorneys:

John Ray Phillips, Jr., Thomas J. Martin, Jr., Gallatin, Tennessee,
for the appellants, Betty L.Gammon, et al. 

Joseph P. Rusnak, Nashville, Tennessee, for the appellee, Beverly
Healthcare Brandywood. 

Judge: COTTRELL

Nursing home brought suit against former residentâs daughters seeking
to recover amounts owedfor residentâs care by setting aside alleged
fraudulent conveyances to the daughters.We affirm the judgment of the
trial court setting aside a portion of the conveyances as fraudulent.


http://www.tba.org/tba_files/TCA/2005/beverly81905.pdf

ED BRENNAN v. GILES COUNTY BOARD OF EDUCATION 

Court: TCA

Attorneys:

Matt Q. Bastian of Columbia, Tennessee For Appellant, Ed Brennan 

Joe W. Henry, Jr., of Pulaski, Tennessee For Appellee, Giles County
School Board 

Judge: CRAWFORD

Appellant requested certain records under the Public Records
Act.After an in camerareview, the trial court determined that these
records were not accessible under that Act as they fell outside the
definition of public or state records found at T.C.A. €10-7-301(6).On
appeal,Appellant contends that, by virtue of the fact that the
requested documents were made during business hours and were made or
stored on computers owned by the school system, these facts,per se,
make them ãpublic recordsä.Finding that the trial court did not err
in performing an in camera review to determine whether any of the
requested documents fell within the purview ofthe statutory
definition, we affirm. 

http://www.tba.org/tba_files/TCA/2005/brennane81905.pdf

RHONDA D. DUNCAN v. ROSE M. LLOYD,ET AL. 

Court: TCA

Attorneys:

Sam Wallace, Jr., Springfield, Tennessee, for the appellant, Rhonda
D. Duncan. 

Paul M. Buchanan and Julie Bhattacharya Peak, Nashville, Tennessee,
for the appellee, Rose M.Lloyd. 

Marc O. Dedman, Nashville, Tennessee, for the appellee, The
Tennessean Newspaper. 

Judge: FARMER

The trial court awarded summary judgment to Defendants based on
Plaintiffâs failure to respondto Defendantsâ statements of undisputed
facts.We affirm. 

http://www.tba.org/tba_files/TCA/2005/duncanr81905.pdf

CATHY GURLEY,ET AL. v. MATT KING, ET AL. 

Court: TCA

Attorneys:

DâLesli Davis, Nashville, Tennessee, for the appellants, Cathy Gurley
and Gurley & Company,Inc.. 

Katherine R. Cloud, William D. Martin, Nashville, Tennessee, for the
appellees, Matt King andKing of the Hill, Inc. 

Judge: CAIN

This is a breach of contract action wherein the trial court granted
summary judgment toDefendant on the grounds that the contract was too
uncertain and indefinite to be enforced.The action of the trial court
is reversed, and the case remanded for trial on its merits. 

http://www.tba.org/tba_files/TCA/2005/gurleyc81905.pdf

JAY GUINN CHRISTENBERRY v. DORIS ANNETTE CHRISTENBERRY 

Court: TCA

Attorneys:

R. Deno Cole, Knoxville, Tennessee, for the Appellant, Doris Annette
Christenberry. 

John D. Lockridge, Knoxville, Tennessee, for the Appellee, Jay Guinn
Christenberry. 

Judge: LEE

This is an appeal of a divorce action in which the Wife argues that
the trial court failed to make an equitable distribution of the
marital estate and the trial court erred in dismissing her
independent lawsuit against Husband, and a corporation owned by
Husband, for wages claimed to be earned by Wife and owing by the
corporation.We hold that the distribution of marital property should
be modified so as to award Wife sole ownership of the marital home,
subject to Husbandâs right of first refusal to purchase the home in
the event it is sold, and Husbandâs right to visit and maintain the
gravesite of the partiesâ daughter, located near the home on part of
the marital estate, upon Husbandâs providing reasonable notice to
Wife.We further find that the trial court erred in dismissing Wifeâs
lawsuit against Husband and therefore vacate the trial courtâs order
dismissing with prejudice the Wifeâs lawsuit against Husband and the
corporation.We affirm the trial courtâs ruling in all other respects.


http://www.tba.org/tba_files/TCA/2005/christenberryj81905.pdf

LINDA KISSELL d/b/a FULL MOON SPORTS BAR AND DRIVING RANGE v. McMINN
COUNTY COMMISSION, ET AL. 
WITH CONCURRING OPINION

Court: TCA

Attorneys:

John W. Cleveland, Sweetwater, Tennessee, for the Appellant, Linda
Kissell d/b/a Full Moon Sports Bar and Driving Range.

Thomas E. LeQuire and Robert C. Denny, Chattanooga, Tennessee, for
the Appellee, McMinn County Commission. 

Judge: LEE

This case involves the Petitionerâs application for a permit to sell
beer both on and off-premises of her proposed business
establishment.The trial court affirmed the Appellee McMinn County
Commissionâs decision to deny the permit, pursuant to Tenn. Code Ann.
€ 57-5-105, on grounds that Petitionerâs application contained a false
statement.Petitioner contends on appeal that she should have been
granted the permit because she did not know the statement was false
at the time she made it, and because she attempted to amend the
application to correct the false statement prior to the hearing
before the McMinn County Chancery Court.We affirm the judgment of the
trial court. 

http://www.tba.org/tba_files/TCA/2005/kisselll81905.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/2005/kisselll_con81905.pdf

CITY OF OAK RIDGE v. DIANA RUTH BROWN 

Court: TCA

Attorneys:

Charles Terry Webber, Knoxville, Tennessee, for the appellant, Diana
Ruth Brown. 

Kenneth R. Krushenski, City Attorney, and Tammy M. Dunn, Senior Staff
Attorney, Oak Ridge, Tennessee, for the appellee, City of Oak Ridge,
Tennessee. 

Judge: SUSANO

Diana Ruth Brown (ãthe defendantä) was stopped by a City of Oak Ridge
police officer and cited for speeding.Following an adverse decision in
municipal court, the defendant appealed to the trial court.The trial
court ruled that the defendant could not pursue, in the trial court,
her assertion and defense that the posted speed limit of 45 mph was
not legally established.Subsequently, that court found her guilty of
speeding and imposed its judgment.The defendant appeals.Both sides
raise issues.We vacate and remand for further proceedings.

http://www.tba.org/tba_files/TCA/2005/oakridge81905.pdf

STATE OF TENNESSEE v. ARTHUR BUFORD 

Court: TCCA

Attorneys:

Ross Sampson, Memphis, Tennessee, for the appellant, Arthur Buford.

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

Judge: WADE

The defendant, Arthur Buford, who was indicted for aggravated
perjury, was convicted of perjury. The trial court imposed a sentence
of eleven months and twenty-nine days.In this appeal, the defendant
asserts (1) that the evidence is insufficient to support the
conviction; (2) that the state failed to make a proper election of
offenses; and (3) that the trial court erred by permitting the
defendant's former attorney to testify as a witness for the state.The
judgment of the trial court is reversed and the cause is remanded for
a new trial. 

http://www.tba.org/tba_files/TCCA/2005/buforda81905.pdf

JASON DWIGHT KING v. STATE OF TENNESSEE 

Court: TCCA

Attorneys:

Richard L. Finney, Jackson, Tennessee for the appellant, Jason Dwight
King. 

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and Al Earls, Assistant District Attorney General, for the appellee,
State of Tennessee. 

Judge: SMITH

The petitioner, Jason Dwight King, pled guilty to DUI, driving on a
suspended license, felony evading arrest, reckless endangerment, and
reckless driving.The petitioner pled nolo contendere to theft over
$1,000 and theft under $500.As a result, he received an effective
sentence of two-and-ahalf (2 1/2) years.The petitioner filed a pro se
petition for post-conviction relief alleging ineffective assistance of
counsel.After a hearing, the post-conviction court dismissed the
petition.We affirm the dismissal of the petition. 

http://www.tba.org/tba_files/TCCA/2005/kingj81905.pdf

STATE OF TENNESSEE v. MALCOLM C. WHITESIDE 

Court: TCCA

Attorneys:

George Morton Googe, District Public Defender (on appeal) and Stephen
P. Spracher, Assistant District Public Defender (at trial), for the
appellant, Malcolm C. Whiteside. 

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner,
Assistant Attorney General; and Jody Pickens, Assistant District
Attorney General, for the appellee, State of Tennessee. 

Judge: WADE

The defendant, Malcolm Whiteside, entered pleas of guilty to forgery,
assault, resisting arrest, aggravated burglary, two counts of evading
arrest, and four counts of theft under $500.The trial court imposed
an effective sentence of seven years to be served in the community
corrections program.A violation warrant was filed less than one month
after the defendant was placed on community corrections.A second
violation warrant was filed three years later.At a hearing held six
years after the filing of the second warrant, the trial court revoked
the community corrections sentence and ordered service of the balance
of the sentence in the Department of Correction.In this appeal, the
defendant asserts that the trial court erred by revoking community
corrections and ordering service of the sentence.The judgment of the
trial court is affirmed. 

http://www.tba.org/tba_files/TCCA/2005/whitesidem81905.pdf

TONY WILLIS v. TONY PARKER, WARDEN 

Court: TCCA

Attorneys:

Tony Willis, Tiptonville, Tennessee, pro se, appellant. 

Paul G. Summers, Attorney General & Reporter; David E. Coenen,
Assistant Attorney General; C. Phillip Bivens, District Attorney
General, for the appellee, State of Tennessee. 

Judge: WADE

The petitioner, Tony Willis, appeals from the trial court's denial of
habeas corpus relief.The single issue presented for review is whether
the trial court erred by summarily dismissing the petition.The
judgment is affirmed.

http://www.tba.org/tba_files/TCCA/2005/willist81905.pdf

STATE OF TENNESSEE v. RAYMOND G. MCCARTER

Court: TCCA

Attorneys:

Lloyd A. Levitt, Chattanooga, Tennessee, for the appellant, Raymond
G. McCarter 

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General;Bill Cox, District Attorney General; Parke
Masterson, Assistant District Attorneys General, for the appellee,
State of Tennessee.

Judge: SMITH

The appellant, Raymond G. McCarter, pled guilty to a violation of the
light law and a violationof the registration law prior to being found
guilty by a jury of driving under the influence (ãDUIä).After trial,
the appellant conceded that he had two (2) prior DUI offenses, and
thismade a bifurcated hearing to determine whether the appellant was
guilty of DUI third offense unnecessary.The trial court sentenced the
appellant to eleven (11) months and twenty-nine (29)days on the third
offense DUI conviction, but suspended all of the sentence except for
120 days. The trial court sentenced the appellant to thirty (30) days
for the violation of the light law andthirty (30) days for violation
of the registration law, to be served concurrently to the sentence
for DUI.After the denial of a motion for new trial, the appellant
filed a timely notice of appeal.Onappeal, the appellant challenges
the sufficiency of the evidence and the trial courtâs decision to
allow a hearing-impaired person to sit on the jury.Because the
evidence is sufficient to supportthe conviction and because the
appellant failed to properly preserve the juror issue for appeal, the
judgment of the trial court is affirmed. 

http://www.tba.org/tba_files/TCCA/2005/mccarterr81905.pdf

STATE OF TENNESSEE v. JERRY LYNN MONROE 

Court: TCCA

Attorneys:

Mark E. Stephens, District Public Defender; and John Halstead,
Assistant District PublicDefender, for the Appellant, Jerry Lynn
Monroe. 

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General;Randall E. Nichols, District Attorney
General; and Jo Helm, Assistant District Attorney General, for the
Appellee, State of Tennessee. 

Judge: WITT

The defendant, Jerry Lynn Monroe, appeals his Knox County effective
incarcerative sentence ofseven years on his guilty-pleaded
convictions for attempted aggravated robbery, Class D theft, and
misdemeanor evading arrest.The defendant had sought a probationary
sentence or someform of alternative sentencing, which the trial court
rejected.Our review of the record discloses no basis to disturb the
trial courtâs sentencing decision, and we affirm the judgments. 

http://www.tba.org/tba_files/TCCA/2005/monroej81905.pdf

WILLIAM MATNEY PUTMAN v. STATE OF TENNESSEE 

Court: TCCA

Attorneys:

James T. Bowman, Johnson City, Tennessee, for the appellant, William
Matney Putman. 

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball,
Assistant AttorneyGeneral; Joe C. Crumley, Jr., District Attorney
General; and Kenneth C. Baldwin, Assistant District Attorney General,
for the appellee, State of Tennessee. 

Judge: GLENN

In 1995, the petitioner, William Matney Putman, pled guilty to first
degree murder andaggravated robbery and was sentenced to concurrent
terms of life without parole and twenty years, respectively.In 2004,
the post-conviction court resentenced the petitioner to life with
thepossibility of parole for the murder conviction.On appeal, the
petitioner argues the court erred in resentencing him to life with
parole after vacating the illegal sentence of life without parole.We
affirm the post-conviction courtâs sentencing of the petitioner. 

http://www.tba.org/tba_files/TCCA/2005/putmanw81905.pdf

BRONZO GOSNELL, JR. V. STATE OF TENNESSEE 

Court: TCCA

Attorneys:

Paul Whetstone, Mosheim, Tennessee, for the appellant, Bronzo
Gosnell, Jr. 

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant AttorneyGeneral; C. Berkeley Bell, Jr., District Attorney
General; and Eric Christiansen, Assistant District Attorney General,
for the appellee, State of Tennessee. 

Judge: WEDEMEYER

A Greene County jury convicted the Petitioner, Bronzo Gosnell, Jr.,
of second degree murder,and the trial court sentenced him to
twenty-five years in prison.This Court affirmed the Petitionerâs
conviction on direct appeal, and the Tennessee Supreme Court denied
permission toappeal.The Petitioner filed a petition for
post-conviction relief, which the post-conviction court summarily
dismissed as time-barred.Because we agree that the petition is
time-barred, weaffirm. 

http://www.tba.org/tba_files/TCCA/2005/gosnellb81905.pdf

TYRIS LEMONT HARVEY V. STATE OF TENNESSEE 

Court: TCCA

Attorneys:

Julie A. Rice, Knoxville, Tennessee, for the appellant, Tyris Lemont
Harvey. 

Paul G. Summers, Attorney General and Reporter; Blind Akrawi,
Assistant Attorney General;Michael L. Flynn, District Attorney
General; and Robert C. Sawyer, Assistant District Attorney General,
for the appellee, State of Tennessee. 

Judge: WEDEMEYER

The Petitioner, Tyris Lemont Harvey, pursuant to a negotiated plea
agreement, pled guilty toburglary and theft of property valued over
$500.Pursuant to the plea agreement, the trial court sentenced the
Petitioner to an effective four-year sentence, as a Range II
offender, and orderedthat the Petitionerâs sentences run
consecutively to a prior sentence.The Petitioner filed a petition for
post-conviction relief, alleging that he received ineffective
assistance of counsel andthat his guilty plea was involuntary and
unknowing.The post-conviction court dismissed the petition, and the
Petitioner now appeals.Finding no reversible error, we affirm the
judgment ofthe post-conviction court. 

http://www.tba.org/tba_files/TCCA/2005/harveyt81905.pdf

JOSEPH A. MAINE v. STATE OF TENNESSEE 

Court: TCCA

Attorneys:

Jason S. Randolph, Dandridge, Tennessee, for the appellant, Joseph A.
Maine. 

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General;Al C. Schmutzer, Jr., District Attorney
General; and James B. Dunn, Assistant District Attorney General, for
the appellee, State of Tennessee. 

Judge: GLENN

The petitioner, Joseph A. Maine, appeals the dismissal of his
petition for post-conviction relief,arguing that his guilty pleas
were not knowing or voluntary and that his trial counsel was
ineffective for, among other things, erroneously advising him that he
would be eligible forrelease after serving only twenty-five years of
his life sentence.1Because the record reflects that the petitioner
was similarly misinformed by the trial court as to the release
eligibility date for hislife sentence, we conclude that his pleas
were not knowing or voluntary.Accordingly, we reverse the
post-conviction courtâs dismissal of the petition and remand the case
for thepetitioner to withdraw his pleas of guilty. 

http://www.tba.org/tba_files/TCCA/2005/mainej81905.pdf

YOLANDO ODOM v. STATE OF TENNESSEE 

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the Appellant, Yolando
Odom. 

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant AttorneyGeneral; Randall E. Nichols, District Attorney
General; and Marsha Mitchell, Assistant District Attorney General,
for the Appellee, State of Tennessee. 

Judge: HAYES

The Appellant, Yolando Odom, appeals the Knox County Criminal Courtâs
denial of his petitionfor post-conviction relief.Under the terms of a
plea agreement, Odom pled guilty to one count of robbery and accepted
an eight-year sentence as a Range II offender, despite only meeting
thestatutory criteria for a Range I offender.On appeal, Odom contends
that his plea was not knowingly and voluntarily entered due to trial
counselâs ineffectiveness in failing to inform himof possible
defenses at trial and in failing to review the proof with respect to
the elements of the indicted offense of aggravated robbery.Following
review of the record, we affirm the denial ofthe petition. 

http://www.tba.org/tba_files/TCCA/2005/odomy81905.pdf

WAUSAU INSURANCE COMPANY v. VIVIAN ALVINA DORSETT 

Court: TWCA

Attorneys:

John E. Anderson and John Paul Nefflen, Nashville, Tennessee, for the
Appellant, Wausau Insurance Company. 

Eric J. Burch, Manchester, Tennessee, for the Appellee, Vivian Alvina
Dorsett. 

Judge: DROWOTA

We granted this interlocutory appeal to determine whether the trial
court erred in awarding the employee temporary total disability
benefits in excess of 400 weeks where the employee had not attained
maximum medical improvement within the 400-week period.We hold that
the statutory ãmaximum total benefitä of 400 weeks applies to
temporary total disability benefits.Therefore, we reverse the
judgment of the trial court and hold that the employerâs liability
for temporary total disability benefits is statutorily limitedto 400
weeks.We remand this case to the trial court for further proceedings
consistent with this opinion. 

http://www.tba.org/tba_files/TSC_WCP/2005/wausau81905.pdf

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi

TBALink HomeContact UsPageFinderWhat's NewHelp

© Copyright 2005 Tennessee Bar Association