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TODAY'S OPINIONS: Thursday, September 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 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
07 - TN Court of Appeals
05 - TN Court of Criminal Appeals
01 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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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

ELEANOR BELL ET AL. v. ROGER TODD

Court: TCA

Attorneys:

Roger M. Todd, Woodbury, Tennessee, Pro Se.

R. Steven Waldron and Terry A. Fann, Murfreesboro, Tennessee, for the appellees, Eleanor Bell,Rena Bell, Clay Bell, and Ricky Bell.

Judge: KOCH

This appeal arises from a wrongful death suit filed by a murder victim‚s family against theperson accused of the murder. The victim‚s family filed suit in the Circuit Court for Cannon County seeking compensatory and punitive damages from the accused and to set aside theaccused‚s transfer of his real property to two friends following his arrest. After the accused failed to answer, the trial court granted the victim‚s family a default judgment on the question ofliability, granted a writ of attachment for the accused‚s real property after setting aside the transfer as fraudulent, and ordered a jury trial on the question of damages. Thereafter, theaccused filed a motion to set aside the default judgment, an answer, a motion to hold the trial in abeyance, and a motion to release funds to enable him to hire a lawyer. The trial court did notaddress these motions, and a jury awarded the victim‚s family $600,000 in compensatory damages and $80,000 in punitive damages. The accused murderer has appealed. We havedetermined that the judgment must be vacated because of the trial court‚s failure to address the accused murderer‚s pending motions before conducting the trial on the question of damages.

http://www.tba.org/tba_files/TCA/2005/belle91505.pdf


DEBORAH L. CARPENTER v. RICK L. CARPENTER

Court: TCA

Attorneys:

Michael W. Edwards, Russell E. Edwards, Hendersonville, Tennessee, for the appellant, Rick L.Carpenter.

Kimberley L. Reed-Bracey, Goodlettsville, Tennessee, for the appellee, Deborah L. Carpenter.

Judge: CAIN

This appeal involves the financial aspects of the dissolution of a 23-year marriage. Theissues contested on appeal include the division of the marital property, the amount and type ofalimony awarded, the satisfaction of a certain judgment, the admission of an expert‚s testimony, the denial of attorney‚s fees and the request for frivolous appeal damages. We affirm the trialcourt in all respects and deny the request for damages.

http://www.tba.org/tba_files/TCA/2005/carpenterd91505.pdf


SAMMY HARGROVE v. STATE OF TENNESSEE, DEPARTMENT OF SAFETY

Court: TCA

Attorneys:

Lindsay Carroll Barrett and Timothy Valton Potter, Dickson, Tennessee, for appellee SammyHargrove.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General;Lizabeth A. Hale, Assistant Attorney General, for the appellant, State of Tennessee, Department of Safety.

Judge: INMAN

The appellee‚s automobile was forfeited, after notice and hearing, for a violation of the DUI law.He was arrested and indicted for DUI, but an order nolle prosequi was entered. The appellee argues that the forfeiture statute cannot be enforced absent a conviction for DUI. The trial courtagreed. Judgement reversed.

http://www.tba.org/tba_files/TCA/2005/hargroves91505.pdf


KARISSA RENEE JOSEPHSON KELLEY v. JOHN MICHAEL KELLEY

Court: TCA

Attorneys:

Alfred H. Knight and Tyree B. Harris IV of Nashville for Appellant, John Michael Kelley

Thomas F. Bloom of Nashville for Appellee, Karissa Renee Josephson Kelley

Judge: CRAWFORD

This is an appeal from a final decree of divorce as it concerns the award of child support.Husband appeals and asserts that the trial court erred in the method used to calculate his child support obligation. The trial court arrived at the child support by averaging three years ofHusband‚s income as opposed to basing it upon his actual income. Since the trial court made no written finding that Husband was voluntarily underemployed before deviating from theTennessee Child Support Guidelines, we reverse and remand.

http://www.tba.org/tba_files/TCA/2005/kelleyk91505.pdf


RAYMOND T. SCHMIDT, JR. v. BARBARA J. SCHMIDT

Court: TCA

Attorneys:

Carrie W. Gasaway, Clarksville, Tennessee, for the appellant, Raymond T. Schmidt, Jr.

Kim A. McMillan, Clarksville, Tennessee, for the appellee, Barbara J. Schmidt.

Judge: KIRBY

This is a petition to modify alimony. The divorce decree required that the husband pay the wifealimony of $1,500 per month for ten years or until she remarries. The husband filed this petition to terminate his alimony obligation, asserting that there had been a material change incircumstances. The wife maintained that the alimony award was alimony in solido and, therefore, not subject to modification. The husband filed a motion for summary judgment on theissue of whether the alimony award was modifiable. The trial court held that the alimony award was alimony in solido, not subject to modification. From that order, husband now appeals. Wereverse, concluding that the award was alimony in futuro and, therefore, subject to modification.

http://www.tba.org/tba_files/TCA/2005/schmidtr91505.pdf


SREE, ET AL. v. JACQUBHAI CHAMPANERIA

Court: TCA

Attorneys:

Phillilp Leon Davidson, Nashville, Tennessee, for the appellant, SREE.

David B. Herbert, Julie Bhattacharya Peak, Nashville, Tennessee, for the appellee, JacqubhaiChampaneria.

Judge: CAIN

The plaintiffs appeal the action of the trial court in granting Defendant‚s Motion for SummaryJudgment on the basis of res judicata. Specifically, Plaintiffs complain of the action of the trialcourt in allowing Defendant to belatedly amend his answer in order to assert res judicata as a defense. Plaintiffs sought attorney‚s fees which the trial court denied. We affirm the action ofthe trial court.

http://www.tba.org/tba_files/TCA/2005/sree91505.pdf


CATHY LEE BARNES WILLIAMS v. RODNEY LEE WILLIAMS

Court: TCA

Attorneys:

Tyree B. Harris, Alfred H. Knight, Nashville, Tennessee, for the appellant, Cathy Lee Williams.

Phillip Robinson, Philip E. Smith, Nashville, Tennessee, for the appellee, Rodney Lee Williams.

Judge: CAIN

Former wife, Cathy Williams, appeals the action of the trial court in reducing the alimony infuturo obligation of former husband, Rodney Williams, from $4,000 per month to $2,000 per month based on a finding that a substantial and material change in circumstances sufficient tojustify the decrease had occurred. The judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCA/2005/williamsc91505.pdf


STATE OF TENNESSEE v. BOBBY SHANE HURLEY

Court: TCCA

Attorneys:

Guy T. Wilkinson, District Public Defender; and Richard DeBerry, Assistant District Public Defender, for the Appellant, Bobby Shane Hurley.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

Convicted by a jury of possession of cocaine with intent to manufacture, sell, or deliver, a Class B felony, and sentenced to a Department of Correction term of ten years as a Range I offender, the defendant, Bobby Shane Hurley, appeals, challenging the sufficiency of the evidence, the severity of his sentence, and the failure of the trial court to grant a sentencing alternative to incarceration. We affirm the judgment of the trial court

http://www.tba.org/tba_files/TCCA/2005/hurleyb91505.pdf


STATE OF TENNESSEE v. STEPHAN M. REYNOLDS, ALIAS

Court: TCCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant AttorneyGeneral; Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney General, for the appellant, State of Tennessee.

Ralph E. Harwell and Tracy Jackson Smith, Knoxville, Tennessee, for the appellee, Stephan M.Reynolds, Alias.

Judge: WILLIAMS

The defendant was indicted for possession with intent to sell over one-half ounce of marijuanawithin 1000 feet of a school (a Class D felony); possession with intent to deliver over one-half ounce of marijuana within 1000 feet of a school (a Class D felony); and possession of drugparaphernalia (a Class A misdemeanor). The trial court granted the defendant‚s motion to suppress after a hearing. The State now appeals the suppression of evidence. After carefulreview, we affirm the trial court‚s order of suppression.

http://www.tba.org/tba_files/TCCA/2005/reynoldss91505.pdf


STATE OF TENNESSEE v. ERIC RICE

Court: TCCA

Attorneys:

David H. Crichton, Assistant Public Defender, for the appellant, Eric Rice.

Paul G. Summers, Attorney General and Reporter; Brian C. Johnson, Assistant Attorney General; James G. Woodall, District Attorney General; and Jim Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Eric Rice, pled guilty to one count of statutory rape, a Class E felony, and applied for judicial diversion pursuant to Tennessee Code Annotated section 40-35-313. The trial court denied the application for judicial diversion and sentenced the defendant as a standard offender. On appeal, the defendant argues that the trial court erred in denying judicial diversion. After our review, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/ricee91505.pdf


STATE OF TENNESSEE v. DARRELL TOOMES

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender; and Julie K. Pillow, Assistant Public Defender, Somerville, Tennessee, for the appellant, Darrell Toomes

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Darrell Toomes, was convicted of delivery of less than 0.5 grams of cocaine. He was sentenced to seven years in the Department of Correction as a Range II, multiple offender. The trial court denied Defendant‚s motion for new trial. On appeal, Defendant argues that the evidence presented at trial was insufficient to establish his guilt beyond a reasonable doubt. After a thorough review of the record, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/toomesd91505.pdf


STATE OF TENNESSEE v. MICKEY LEE WILLIAMS

Court: TCCA

Attorneys:

Edward C. Miller, Public Defender, Dandridge, Tennessee, for the Appellant, Mickey LeeWilliams.

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

Judge: HAYES

The Appellant, Mickey Lee Williams, was convicted by a Grainger County jury of second degreemurder and arson and received an effective sentence of twenty-three years imprisonment. On appeal, Williams raises the following issues for our review: (1) whether the trial court erred byallowing the State to introduce character evidence of his propensity for violence; (2) whether the testimony of a prosecution witness should have been excluded due to the State‚s untimely noticeto the defense that the witness would be testifying at trial; (3) whether the trial court misinstructed the jury on self-defense; (4) whether the evidence was sufficient to support hisconvictions; and (5) whether his sentences violate Blakely v. Washington. After review of the record, we conclude that because Williams‚ motion for new trial was not timely filed, issues (1),(2), and (3) are waived. After review of issues (4) and (5), we find no error and affirm the judgments of conviction. Notwithstanding our holding of no error, the record reflects that thetrial court, on June 7, 2004, initially imposed an effective sentence of twenty-four years for second degree murder. On November 8, 2004, the trial court reduced this sentence by one year.As asserted by the State on appeal, because Williams‚ sentence for second degree murder became final thirty days after its entry, the trial court was without jurisdiction to modify orreduce the sentence. Accordingly, we remand for reinstatement of Williams‚ initial sentence of twenty four years for second degree murder. Williams‚ sentence of five years for arson isaffirmed.

http://www.tba.org/tba_files/TCCA/2005/williamsm91505.pdf


Qualifications for Employment of Surgical Technologists, Tenn. Code Ann. §§ 68-57-101, et seq.

TN Attorney General Opinions

Date: 2005-09-13

Opinion Number: 05-142

http://www.tba.org/tba_files/AG/2005/op142.pdf

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