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Today's Opinions: August 23, 2005
Volume 11 — Number 161
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
05 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

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


CERTAIN UNDERWRITERS AT LLOYDS, LONDON v. TED M. ESTONE; J.B.
MCDONALD & CO.; LEONARD E. FRANKLIN; and GUARANTY NATIONAL INSURANCE
COMPANY

TED M. WINESTONE and J.B. MCDONALD & CO., V. REGIONS MORTGAGE, INC.,
GEORGE HOLLEY INSURANCE AGENCY, INC. and AL HOLLINGSWORTH 

Court: TCA

Attorneys:

Allan B. Thorp, Memphis, for plaintiff/appellant, Certain
Underwriters at Lloyds, London. 

Eugene G. Douglass, Bartlett, and Alvin A. Gordon, Memphis, for
defendant/counter-plaintiff and third party plaintiff/appellee Ted M.
Winestone and J.B. McDonald & Co. 

Michael B. Neal, Memphis, for appellee Guaranty National Insurance
Company. 

Judge: KIRBY

This is a casualty insurance case. A bank had a mortgage on
residential property.The homeowner stopped making payments on the
mortgage, abandoned the property, and allowed the homeowner,s
insurance coverage on the property to lapse.The bank, in order to
protect its interest in the property, purchased insurance coverage on
behalf of the homeowner.The bank later sold the mortgage to a third
party and cancelled the insurance coverage.The new mortgagee
purchased insurance coverage for the property.Shortly thereafter, the
property burned, resulting in a total loss.The new mortgagee,s
insurance company filed the instant lawsuit, asking for a declaratory
judgment that the prior insurance policy was still effect at the time
of the fire.The trial court held that the prior policy was not in
effect at the time of the fire. The new insurance company appealed,
arguing that, in the course of the purchase, the prior insurance
coverage had transferred to the new mortgagee as assignee of the
prior mortgage holder, and that the bank,s cancellation of the prior
insurance policy was ineffective.We affirm, finding that the prior
insurance coverage was not transferred to the new mortgage holder and
that the prior insurance policy was not in effect at the time of the
fire.

http://www.tba.org/tba_files/TCA/2005/certainu82305.pdf

JAMES C. BREER v. QUENTON WHITE 

Court: TCA

Attorneys:

James C. Breer, Pro Se 

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Pamela S.Lorch, Senior Counsel, For Appellant,
Quenton White, Tennessee Department of Correction 

Judge: CRAWFORD

Petitioner/Appellant is an inmate in the custody of the Tennessee
Department ofCorrection.This appeal arises from the Appellant,s
filing of the underlying pro se petition for common-law writ of
certiorari, seeking review of the Warden,s decision to move him from
onehousing unit to another.The trial court dismissed Inmate,s case
based upon its determination that the Warden,s decision was
administrative, as opposed to judicial, in nature and that, as
such,the common-law writ of certiorari was not the proper vehicle for
review. Inmate appeals. We affirm. 

http://www.tba.org/tba_files/TCA/2005/breerj82305.pdf

SARA H. FISCHER v. THE ELDON STEVENSON, JR. SCHOLARSHIP FUND TRUST 

Court: TCA

Attorneys:

C. Bennett Harrison, Jr.; Nashville, TN;Dan Warlick, Nashville, TN,
for Appellant 

C. Eric Stevens, Nashville, TN; Sean P. Scally, Nashville, TN, for
Appellee 

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Pamela S.Lorch, Senior Counsel, For Appellant,
Quenton White, Tennessee Department of Correction 

Judge: HIGHERS

This appeal arises from a trial court,s order granting Appellee,s
motion which was labeled amotion to dismiss but treated as a motion
for summary judgment.The trial court determined that Appellant lacked
standing to bring her cause of action, and, alternatively, was barred
frombringing her claim by the doctrine of collateral
estoppel.Appellant seeks review by this Court, and, for the following
reasons, we affirm. 

http://www.tba.org/tba_files/TCA/2005/fischers82305.pdf

EDWARD RABBIT,ET AL. v. DANIEL L. MILLS 

Court: TCA

Attorneys:

Richard H. Sforzini, Jr., Nashville, Tennessee, for the appellant,
Daniel L. Mills. 

Philip D. Irwin, Nashville, Tennessee, for the appellees, Edward
Rabbit and Janine Rabbitt. 

Judge: RABBIT

This appeal involves a decision by the Davidson County Circuit Court
to grant a petition for awrit of scire facias after expiration of the
ten-year statute of limitations.In granting the petition, the trial
court first found that the debtor was equitably estopped from
asserting the defense of thestatute of limitations because of his bad
faith and willful misconduct.Next, the trial court found that the
judgment creditors timely filed their petition for a writ of scire
facias because the ten-year statute of limitations had been tolled by
debtor,s filing of a Chapter 13 bankruptcy case and also by the entry
of the Order for Payment by Installments.The debtor appealed to this
Court.The judgment of the trial court is reversed. 

http://www.tba.org/tba_files/TCA/2005/rabbite82305.pdf

LINDA DIANE STUTZ v. DAVID LARRY STUTZ 

Court: TCA

Attorneys:

Phillip C. Lawrence, Chattanooga, Tennessee, for the Appellant, Linda
Diane Stutz. 

Glenna M. Ramer, Chattanooga, Tennessee and Sarah Y. Sheppeard,
Knoxville, Tennessee, for the Appellee, David Larry Stutz. 

Judge: LEE

This case involves a divorce and the validity of a postnuptial
agreement.Mr. and Ms. Stutz were married more than twenty
years.During most of the marriage, they wanted to have children but
were unsuccessful.When a child became available for adoption, Ms.
Stutz was elated and aggressive in her actions to secure the adoption
of the child, but Mr. Stutz was opposed to the adoption of the
child.Over the course of several weeks, Ms. Stutz attempted to change
Mr. Stutz,s mind regarding the adoption.Finally, she suggested that in
exchange for his consent to the adoption, they would enter into an
agreement dividing the marital estate and in the event Mr. Stutz was
unhappy being a father they would divorce and follow the agreement
previously determined.The result was a lengthy postnuptial agreement,
which among other things, divided the marital estate giving most of
the marital property to Mr. Stutz.Within a few years of the signing
of the postnuptial agreement and the adoption, Ms. Stutz filed for
divorce.The trial court upheld the validity of the postnuptial
agreement with the exception of a section which attempted to waive
and/or significantly limit Mr. Stutz,s child support obligation. The
trial court also granted a divorce to the parties upon Mr. Stutz,s
motion without conducting an evidentiary hearing. Ms. Stutz
appeals.We hold that the postnuptial agreement is invalid as it is
contrary to public policy.We further hold that the trial court erred
in granting a divorce to the parties in the absence of a stipulation
to or proof of grounds for divorce. Accordingly, we reverse the trial
court,s decision and remand this case for a trial on the division of
the marital estate, alimony, divorce, and any remaining issues. 

http://www.tba.org/tba_files/TCA/2005/stutzl82305.pdf

THOMAS BRADEN v. RICKY BELL, WARDEN 

Court: TCCA

Attorneys:

Charles Walker, Nashville, Tennessee, for the appellant, Thomas
Braden. 

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Bret Gunn, Assistant District Attorney General;
for the appellee, State of Tennessee. 

Judge: WILLIAMS

The petitioner appeals the denial of his habeas petition, contending
that the judgments reflect thirty percent release eligibility rather
than the statutorily mandated one hundred percent service required of
multiple rapists.Because the petitioner was convicted by a jury, as
opposed to pleading guilty, we conclude that the trial court was
required to impose the one hundred percent service requirement.
Therefore, the trial court,s failure to properly mark the judgments
does not render the judgments void but should be amended as a
clerical error, pursuant to Tennessee Rule of Criminal Procedure 36.
We affirm the denial of habeas relief. 

http://www.tba.org/tba_files/TCCA/2005/bradent82305.pdf

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/2005/bradent_dis82305.pdf

STATE OF TENNESSEE v. MARTEZ TOWEN FITTS 

Court: TCCA

Attorneys:

David A. Doyle, District Public Defender, for the appellant, Martez
Towen Fitts. 

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; Lawrence R. Whitley, District Attorney
General; and Dee David Gay, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

The defendant, Martez Towen Fitts, pled guilty to sale of cocaine
over .5 grams and was sentenced as a Range I, standard offender to
eight years, all suspended except for forty-eight hours and the
balance to be served on probation, with the first six months on
intensive probation.Additionally, he was ordered to comply with
alcohol and drug assessment programs, obtain his GED, and pay a $2000
fine.The trial court subsequently revoked the defendant,s probation,
and he appealed. Following our review, we affirm the judgment of the
trial court. 

http://www.tba.org/tba_files/TCCA/2005/fittsm82305.pdf

STATE OF TENNESSEE v. TIMOTHY LLOYD 

Court: TCCA

Attorneys:

H. Marshall Judd, Assistant Public Defender, Cookeville, Tennessee,
for the appellant, Timothy Lloyd. 

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball,
Assistant Attorney General; William E. Gibson, District Attorney
General; and Thomas Tansil and Anthony Craighead, Assistant Attorneys
General, for the appellee, State of Tennessee. 

Judge: WELLES

This is a direct appeal from a conviction on a jury verdict of
driving under the influence of an intoxicant (DUI), third offense, a
Class A misdemeanor.The trial court sentenced the Defendant, Timothy
Lloyd, to eleven months and twenty-nine days, with 120 days to be
served in the county jail. The Defendant now appeals, contending that
the evidence submitted at trial was insufficient to support his DUI
conviction.We affirm the judgment of the trial court. 

http://www.tba.org/tba_files/TCCA/2005/lloydt82305.pdf

STATE OF TENNESSEE v. BRIAN ERIC MCGOWEN, A.K.A. BRAD LEE O,RYAN 

Court: TCCA

Attorneys:

Jeffery Allen DeVasher (on appeal), Richard Tennent (at trial), and
Sharon Ruiz (at trial), Nashville, Tennessee, for the appellant,
Brian Eric McGowen, a.k.a. Brad Lee Ryan.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and James Todd and Michael Rohling, Assistant District
Attorneys General, for the appellee, State of Tennessee. 

Judge: OGLE

The appellant, Brian Eric McGowen, a.k.a. Brad Lee O,Ryan, was
convicted by a jury in the Davidson County Criminal Court of first
degree felony murder, especially aggravated robbery, and attempted
especially aggravated robbery.The trial court sentenced the appellant
to life imprisonment in the Tennessee Department of Correction for his
murder conviction, to forty years incarceration for his especially
aggravated robbery conviction, and to twenty years incarceration for
his attempted especially aggravated robbery conviction.On appeal, the
appellant raises numerous issues for our review, including the
sufficiency of the evidence supporting his convictions, evidentiary
issues, jury instructions, and sentencing.Upon our review of the
record, we merge the appellant,s conviction for attempted especially
aggravated robbery into his conviction for especially aggravated
robbery. We affirm the judgments of the trial court in all other
respects. 

http://www.tba.org/tba_files/TCCA/2005/mcgowenb82305.pdf

STATE OF TENNESSEE v. MORGAN ROA 

Court: TCCA

Attorneys:

Jerry Gonzalez, Nashville, Tennessee, for the appellant, Morgan Roa.


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

Judge: TIPTON

The defendant, Morgan Roa, pled guilty pursuant to a plea agreement
in the Davidson County Criminal Court to aggravated assault, a Class
C felony.The defendant was sentenced as a Range I, standard offender
to six years with the trial court to determine the manner of service
of the sentence.After a sentencing hearing, the trial court ordered
that the defendant serve his sentence in confinement.The defendant
appeals, claiming that the trial court erred in denying him
alternative sentencing.We affirm the judgment of the trial court. 

http://www.tba.org/tba_files/TCCA/2005/roam82305.pdf

STATE OF TENNESSEE v. CHARLES E. ROBINSON 

Court: TCCA

Attorneys:

Jeffrey O. Powell, Nashville, Tennessee, for the Appellant, Charles
E. Robinson.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Derek K. Smith, Assistant District Attorney General, for
the Appellee, State of Tennessee. 

Judge: WITT

The defendant, Charles E. Robinson, stands convicted of possession of
a handgun by a convicted felon, see Tenn. Code Ann. S
39-17-1307(b)(1)(B) (2003), for which he received a three-year
sentence.The defendant now brings this direct appeal of his
conviction, alleging that the evidence is insufficient to support his
conviction, that the trial court erred by allowing the state to
introduce evidence that he is a convicted felon, and that he was
denied a fair trial by the false testimony of a prosecution witness
and by statements made by the prosecution during closing arguments
that are tantamount to prosecutorial misconduct.After reviewing the
record and applicable law, we affirm the judgment of the lower court.


http://www.tba.org/tba_files/TCCA/2005/robinsonc82305.pdf

FELIX TYRONE SMITH v. STATE OF TENNESSEE 

Court: TCCA

Attorneys:

Ross E. Alderman, District Public Defender; Graham Prichard,
Assistant Public Defender; and Emma Rae Tennent, Assistant Public
Defender, Nashville, Tennessee, (on appeal); and C. Edward Fowlkes,
Nashville, Tennessee, (at trial), for the appellant, Felix Tyrone
Smith. 

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. (Torry) Johnson III, District
Attorney General; Pamela Sue Anderson, Assistant District Attorney
General; Angelita Dalton, Assistant District Attorney General; L.
Lasenez, Assistant District Attorney General; and Dumaka Shabazz,
Assistant District Attorney General, for the appellee, the State of
Tennessee.

Judge: WOODALL

Defendant, Felix Tyrone Smith, pled guilty to one count of aggravated
assault and one count of possession of more than 0.5 grams of cocaine
with intent to sell.Defendant was sentenced to an effective
eight-year sentence on supervised probation.In 2002, Defendant was
found to be in violation of the conditions of his probation but the
trial court reinstated Defendant,s probation. Approximately two years
later, after the filing of another probation violation warrant, the
trial court revoked Defendant's probation and ordered Defendant to
serve the original eight-year sentence in confinement.On appeal,
Defendant argues that the trial court erred by relying on evidence
not included in the record when revoking Defendant's probation.After
a thorough review of the record, we affirm the judgment of the trial
court. 

http://www.tba.org/tba_files/TCCA/2005/smithf82305.pdf

CALVIN O. TANKESLY v. STATE OF TENNESSEE 

Court: TCCA

Attorneys:

Charles E. Walker, Nashville, Tennessee, for the appellant, Calvin O.
Tankesly. 

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and John Zimmerman, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Calvin O. Tankesly, appeals the denial of his
petition for writ of error coram nobis, arguing that the trial court
should have granted him relief on the basis of newly discovered
evidence allegedly showing that extraneous prejudicial information
was imparted to the jury at his trial. Following our review, we
affirm the order of the trial court denying the petition. 

http://www.tba.org/tba_files/TCCA/2005/tankeslyc82305.pdf

MICHAEL BRAXTON v. STATE OF TENNESSEE 

Court: TCCA

Judge: PER CURIAM

On July 19, 2005, this court filed an order denying a petition to
rehear in the instantaction.In that order, we inadvertently stated
that the petitioner, Michael Braxton, had filed a petition to rehear
and a motion for consideration of post-judgment facts.Instead, the
State ofTennessee had filed a petition for rehearing pursuant to Rule
39(a), Tennessee Rules of Appellate Procedure. 

http://www.tba.org/tba_files/TCCA/2005/braxtonm_ord82305.pdf

STATE OF TENNESSEE v. JESSIE LEVENT THARPE 

Court: TCCA

Attorneys:

W. Jeffery Fagan, Assistant District Public Defender, Camden,
Tennessee, for the Appellant,Jessie Levent Tharpe. 

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General;Robert "Gus" Radford, District Attorney
General; and Steven L. Garrett, Assistant District Attorney General,
for the Appellee, State of Tennessee. 

Judge: HAYES

The Appellant, Jessie Levent Tharpe, was convicted by a Henry County
jury of evading arrest,possession of drug paraphernalia, and Class B
felony possession of cocaine.He was subsequently sentenced to an
effective eight-year sentence, which was suspended uponconditions of
probation.On appeal, Tharpe raises the single issue of sufficiency of
the evidence. Specifically, Tharpe challenges his convictions based
upon inconsistencies in the testimony ofthe State,s witnesses.After
review of the evidence presented, we find the evidence sufficient and
affirm the judgments of conviction. 

http://www.tba.org/tba_files/TCCA/2005/tharpej82305.pdf

GEORGE OSBORNE WADE v. STATE OF TENNESSEE 

Court: TCCA

Attorneys:

Timothy Boxx, Dyersburg, Tennessee, for the appellant, George Osborne
Wade. 

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant AttorneyGeneral; Thomas A. Thomas, District Attorney
General; and James T. Cannon, Assistant District Attorney General,
for the appellee, State of Tennessee. 

Judge: WILLIAMS

The petitioner challenges the denial of his post-conviction petition,
in which he contended, interalia, that counsel was ineffective in
failing to object to the composition of the jury pool.Upon review, we
conclude that the petitioner failed to demonstrate that the venire was
violative of hisSixth Amendment rights.As such, he has likewise failed
to prove that counsel,s failure to object to the venire amounted to
deficient performance or resulted in prejudice to him.We affirm
thejudgment of the post-conviction court. 

http://www.tba.org/tba_files/TCCA/2005/wadeg82305.pdf 

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