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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

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

ARTHUR W. ANDERSON, SR., ET AL. v. JAMES W. RAYNER, ET AL.

Court: TCA

Attorneys:

Edwin C. Lenow, Memphis, TN, for Appellants.

David J. Cocke, John S. Wilson, III, Memphis, TN, for Appellees.

Judge: HIGHERS

This is the second time that this case has been on appeal. In this appeal, we are asked to determine if the trial court erred when it granted summary judgment to the defendants. The defendants assert that summary judgment was appropriate based on the claims and defenses raised at trial, including res judicata, law of the case, and statute of limitations. We affirm.

http://www.tba2.org/tba_files/TCA/2005/andersona122805.pdf


IN THE MATTER OF: FRANK G. BARTON, JR., deceased.
PATRICIA LEVINE v. ESTATE of FRANK G. BARTON, JR.


Court: TCA

Attorneys:

William M. Monroe, Mark A. Renken, Memphis, Tennessee, for claimant/appellant Patricia Levine.

Eugene J. Podesta, Jr., Lee Harris, Memphis, Tennessee, for appellee Estate of Frank G. Barton, Jr.

Judge: KIRBY

This is a claim against an estate. The claimant and the decedent had a romantic relationship. After the decedent’s death, the claimant filed a claim against the decedent’s estate, based on alleged promises of financial support by the decedent in the course of their relationship. The estate moved for summary judgment. The trial court granted the motion, ruling that the claimant could not establish the existence of an enforceable contract or a valid gift. We affirm.

http://www.tba2.org/tba_files/TCA/2005/bartonf122805.pdf


DANIEL GATES D/B/A FURNITURE WORLD v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY AND WALTER WALLACE

Court: TCA

Attorneys:

Parks T. Chastain and David M. Hannah, Nashville, Tennessee, for the appellant, State Automobile Mutual Insurance Company.

J. Brandon McWherter and Lewis L. Cobb, Jackson, Tennessee, for the appellee, Daniel Gates d/b/a Furniture World.

Judge: KIRBY

This case involves business interruption insurance. The furniture store owned by the plaintiff typically sells furniture under “rent to own” payment plans, whereby customers purchase the furniture through payments over time. The furniture store was damaged by a tornado. As a result, the store was closed for eight months for repairs. The plaintiff store owner had a business interruption insurance policy with the defendant insurance company that covered the loss of business income during the time in which the store was closed for restoration. The store owner sued the insurance company for the loss of business income it would have received during the eight-month period of restoration. Cross-motions for partial summary judgment were filed regarding how to measure the loss of income. The store owner claimed he was entitled to the entire value of sales contracts that would have been signed during the period of closure, even though most of the payments under those contracts would be due after the eight-month restoration period. The insurance company, on the other hand, claimed that the store owner was entitled only to the value of payments that actually would have been received by the store during the eight-month restoration period. The trial court granted partial summary judgment to the store owner, finding that the store owner was entitled to the entire value of the contracts that would have been signed during the restoration period. The insurance company was granted permission to file this interlocutory appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2005/gatesd122805.pdf


N. VICTORIA HOLLADAY v. CHARLES SPEED, ET AL.

Court: TCA

Attorneys:

Robert E. Craddock, Memphis, Tennessee, for the appellant, N. Victoria Holladay. Robert E. Craddock, Memphis, Tennessee, for the appellant, N. Victoria Holladay.

William Bryan Penn, Memphis, Tennessee, for the appellee, Charles Speed Contractors, Inc.

Judge: FARMER

Plaintiff homeowner filed a cause of action against Defendant builder alleging breach of express warranty, breach of implied warranty of good workmanship, misrepresentation, and violation of the Tennessee Consumer Protection Act. Plaintiff alleged damages in the amount of $15,000 and “other damages,” and also sought punitive damages. The trial court found no violation of the Consumer Protection Act and awarded Plaintiff damages in the amount of $11,103 for the cost of repairs. Plaintiff appeals and Defendant cross-appeals. We affirm in part, reverse in part, and remand.

http://www.tba2.org/tba_files/TCA/2005/holladayn122805.pdf


STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. J.A.H., JR., ET AL.

Court: TCA

Attorneys:

Robin Ruben Flores, Chattanooga, Tennessee, for the Appellant, J.A.H., Jr.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, General Civil Division, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

Judge: LEE

In this case, the biological father of a child contends that the trial court erred in terminating his parental rights. Father argues that the evidence presented is not sufficient to establish statutory grounds for termination and that the Tennessee Department of Children’s Services failed to make reasonable efforts toward reunification. Upon our finding that father was incarcerated when the petition to terminate was filed and failed to visit the child for four consecutive months immediately preceding his incarceration and our further finding that the Department made reasonable efforts atreunification, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2005/jahjr122805.pdf


VIRGINIA STARR SEGAL v. UNITED AMERICAN BANK, DAVID CHARLES SEGAL, MARTIN GRUSIN, and RHONDA DILEONARDO

Court: TCA

Attorneys:

Ed M. Hurley, Memphis, Tennessee, for Appellant Virginia Starr Segal.

Tim Wade Hellen, Memphis, Tennessee, and Georgia A. Robinette, Memphis, Tennessee, for Appellees United American Bank and Rhonda DiLeonardo.

James W. Surprise, Memphis, Tennessee, for Appellee David Charles Segal.

Judge: KIRBY

This is an action for conversion involving two ex-spouses. The wife was the lone signatory on two trust accounts for their daughters. Without authorization from the wife, the defendant bank transferred all of the funds in both trust accounts to the husband’s account. The wife then filed this lawsuit for conversion, fraud and breach of fiduciary duty against the bank, the bank employee who transferred the funds, and the husband. The defendants filed motions for summary judgment. As part of the plaintiff wife’s response, she admitted that she originally put the money into the trust accounts in order to defraud creditors during their divorce. The trial court granted summary judgment to the defendants, based in part on the doctrine of unclean hands. The plaintiff wife appeals. We affirm, finding that the trial court properly applied the doctrine of unclean hands.

http://www.tba2.org/tba_files/TCA/2005/segalv122805.pdf


JERRY LYNN SWIFT v. GALE JOANN (RITCHIE) SWIFT

Court: TCA

Attorneys:

Jerry W. Hamlin, Ashland City, Tennessee, for the appellant, Gale Joann Swift.

Mark A. Rassas, Julia P. North, Clarksville, Tennessee, for the appellee, Jerry Lynn Swift.

Judge: COTTRELL

This appeal involves the division of property upon divorce where there existed a valid Antenuptial Agreement that included provisions governing such distribution. Because we find that the trial court’s distribution was consistent with the terms of the agreement and supported by the record, we affirm.

http://www.tba2.org/tba_files/TCA/2005/swiftj122805.pdf


STATE OF TENNESSEE v. ANDREW BOONE

Court: TCCA

Attorneys:

Leslie I. Ballin and Gray W. Bartlett, Memphis, Tennessee, for the appellant, Andrew Boone.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

After being indicted for aggravated assault and vehicular assault, the defendant, Andrew Boone, was convicted by jury of reckless aggravated assault, a Class D felony. He was sentenced as a standard offender to four years in the county workhouse, and his driver’s license was suspended for one year for violating the implied consent statute. On appeal, he presents five issues for our review: (1) whether the trial court erred in admitting irrelevant evidence; (2) whether the trial court properly instructed the jury as to the elements of reckless aggravated assault; (3) whether the trial court erred in refusing to instruct the jury on reckless driving as a lesser-included offense of reckless aggravated assault; (4) whether the evidence was sufficient to support his conviction for reckless aggravated assault; and (5) whether the trial court erred in determining the length and the manner of service of his sentence. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/boonea122805.pdf


STATE OF TENNESSEE v. MARKETTUS L. BROYLD

Court: TCCA

Attorneys:

Markettus L. Broyld, Pro Se.

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

Judge: WELLES

The Defendant, Markettus L. Broyld, appeals the judgment of the trial court revoking his probation. Because the notice of appeal was untimely filed, this appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2005/broyldm122805.pdf


STATE OF TENNESSEE v. GARY DARRELL DICKEY

Court: TCCA

Attorneys:

Terry Abernathy, Selmer, Tennessee, for the appellant, Gary Darrell Dickey.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Cameron Williams, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

Following a bench trial, the defendant was convicted of driving under the influence (DUI) per se. See Tenn. Code Ann. § 55-10-401(a)(2). On appeal, the defendant contends: (1) the trial court erred in admitting the blood alcohol test because the test was administered almost three hours after the event of driving thereby rendering the test results unreliable; (2) this court should establish a bright line rule regarding what is a reasonable time between the event of driving and subsequent withdrawal of blood from the accused; (3) the trial court erred in denying his motion for judgment of acquittal; (4) the evidence was insufficient to support his conviction. After review of the record and the parties’ briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/dickeyg122805.pdf


STATE OF TENNESSEE v. CELESTE HALL

Court: TCCA

Attorneys:

Colombus Wade Bobo, Ashland City, Tennessee, for the appellant, Celeste Hall.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; and Dan Alsobrooks, District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Celeste Hall, pled guilty to child abuse and neglect and facilitation of the aggravated sexual battery of her minor child. The Defendant received an effective three year sentence in prison. On appeal, the Defendant argues that the trial court erred in denying alternative sentencing. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/hallc122805.pdf


STATE OF TENNESSEE v. VINCENT A. HESTER

Court: TCCA

Attorneys:

Spence R. Bruner, Kingston, Tennessee, for the appellant, Vincent A. Hester.

Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; J. Scott McCluen, District Attorney General; and Daryl Roger Delp, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

A Roane County Criminal Court jury convicted the defendant, Vincent A. Hester, of attempted first degree murder, a Class A felony, and felony reckless endangerment, a Class E felony, and the trial court sentenced him to twenty years for the attempted murder and two years for the reckless endangerment to be served concurrently in the Department of Correction. The defendant appeals, claiming that the evidence is insufficient and that the trial court failed to perform its duty as the thirteenth juror pursuant to Rule 33(f) of the Tennessee Rules of Criminal Procedure. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/hesterv122805.pdf


LAKEISHA JONES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James S. Haywood, Jr., Brownsville, Tennessee, for the Appellant, Lakeisha Jones.

Paul G. Summers, Attorney General and Reporter; Jane L. Beebe, Assistant Attorney General; Gary G. Brown, District Attorney General; Garry Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Petitioner, Lakeisha Jones, was convicted of second degree murder, and the trial court sentenced her, as a violent offender, to fifteen years in prison. The Petitioner’s conviction and sentence were affirmed by this Court. Subsequently, the Petitioner filed a pro se petition for post-conviction relief, which was later amended by appointed counsel. After a hearing, the trial court dismissed the petition. On appeal, the Petitioner contends that the trial court erred when it dismissed her petition for post-conviction relief because she received ineffective assistance of counsel at her trial. Finding that there exists no reversible error, we affirm the post-conviction court’s judgment.

http://www.tba2.org/tba_files/TCCA/2005/jonesl122805.pdf


JAMES LEATH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gerald L. Gulley, Jr., Knoxville, Tennessee (on appeal), and Timothy E. Irwin and Larry Churchwell, Knoxville, Tennessee (at trial), for the appellant, James Leath.

Paul G. Summers, Attorney General & Reporter; Leslie Price, Assistant Attorney General; and Kevin Allen, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The petitioner, James Leath, appeals the denial of his petition for post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is reversed and the cause is remanded with instructions.

http://www.tba2.org/tba_files/TCCA/2005/leathj122805.pdf


STATE OF TENNESSEE v. JAMES McKINNON

Court: TCCA

Attorneys:

Britton J. Allan, Memphis, Tennessee, for the appellant, James McKinnon.

Paul G. Summers, Attorney General and Reporter; Brian C. Johnson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Dean DeCandia, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, James McKinnon, pled guilty to aggravated burglary and especially aggravated robbery. As a result, he was sentenced to an effective sentence of seventeen years in the Tennessee Department of Correction to be served at 100%. The petitioner subsequently filed a petition for post-conviction relief. The post-conviction court denied the petition. Following our review of the record and the parties’ briefs, we affirm the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2005/mckinnonj122805.pdf


STATE OF TENNESSEE v. CHRISTOPHER PERRY

Court: TCCA

Attorneys:

Gregory Thomas Carman (on appeal), Memphis, Tennessee; and Jake Werner (at trial), Memphis, Tennessee, for the Appellant, Christopher Perry.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; William L. Gibbons, District Attorney General; Charles Bell and Alexia Fulgham, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Christopher Perry, was convicted by a Shelby County jury of the first degree murder of Stanley Johnson and was sentenced to life imprisonment. On appeal, Perry raises the following issues for our review: (1) whether the evidence was sufficient to support the verdict and (2) whether the trial court erred in denying a motion to suppress in violation of his Fifth and Sixth Amendment rights. After review, we conclude the convicting evidence supports the verdict. Moreover, we affirm the trial court’s order denying Perry’s motion to suppress his statement upon Fifth Amendment grounds. However, we vacate the trial court’s denial of Perry’s motion to suppress upon Sixth Amendment right to counsel protections because no findings were entered by the trial court upon the factual disputes presented. Accordingly, the trial court’s denial of Perry’s Motion to Suppress is vacated, as is the judgment of conviction, with remand for a suppression hearing consistent with this opinion.

http://www.tba2.org/tba_files/TCCA/2005/perryc122805.pdf


STATE OF TENNESSEE v. MELISSA ROBERTS

Court: TCCA

Attorneys:

Robert N. Meeks, Collegedale, Tennessee, for the appellant, Melissa Roberts.

Paul G. Summers, District Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Scott McCluen, District Attorney General; and Frank Harvey, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, Melissa Roberts, was convicted of driving under the influence and was also found to have violated the implied consent law. See Tenn. Code Ann. §§ 55-10-401, -406 (2003). For the driving under the influence offense, the trial court imposed a sentence of eleven months and twenty-nine days to be suspended after the service of four days of confinement, with supervision until payment of fine and costs. Her driver's license was suspended for one year. The trial court imposed a concurrent one-year suspension of her driver's license for her violation of the implied consent law. In this appeal as of right, the defendant argues that the evidence was insufficient to support her convictions. The judgment of the trial court is affirmed but modified to the extent that violation of the implied consent law is not a criminal conviction or a Class A misdemeanor.

http://www.tba2.org/tba_files/TCCA/2005/robertsm122805.pdf


JOSEPH B. THOMPSON v. TONY PARKER, WARDEN

Court: TCCA

Attorneys:

Joseph B. Thompson, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Joseph B. Thompson, appeals from the circuit court’s summary dismissal of his pro se petition for writ of habeas corpus. Following our review of the parties’ briefs and applicable law, we affirm the circuit court’s judgment.

http://www.tba2.org/tba_files/TCCA/2005/thompsonj122805.pdf


STATE OF TENNESSEE v. JOSEPH VERMEAL

Court: TCCA

Attorneys:

Phillip T. Clemons, McMinnville, Tennessee, for the appellant, Joseph Vermeal.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Dale Potter, District Attorney General; and Thomas J. Miner, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Joseph Vermeal, was convicted by a jury in the Warren County Circuit Court of attempted aggravated sexual battery and was sentenced to four years incarceration in the Tennessee Department of Correction. On appeal, the appellant complains that the evidence is insufficient to support his conviction, the trial court erred in refusing to permit his expert witness to testify, and the trial court erred in imposing consecutive sentencing. Upon our review of the record and the parties’ briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/vermealj122805.pdf


STATE OF TENNESSEE v. PAUL WILSON

Court: TCCA

Attorneys:

Phyllis Aluko (on appeal), Memphis, Tennessee, and Robert Wilson Jones, Chief Public Defender, and Karen Massey (at trial), Memphis, Tennessee, for the appellant, Paul Wilson.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Michelle Park, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Paul Wilson, was found guilty by a Shelby County jury of aggravated robbery and sentenced to thirty years at sixty percent as a career offender. On appeal, he argues that the trial court erred by: (1) refusing to accept his guilty plea; and (2) removing him from the courtroom and refusing to grant a mistrial following his outburst. After review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2005/wilsonp122805.pdf


STATE OF TENNESSEE v. TIMOTHY WRIGHT

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender; David S. Stockton, Assistant District Public Defender (at trial); and J. Barney Witherington, IV, Covington, Tennessee (on appeal), for the Appellant, Timothy Wright.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Elizabeth Rice, District Attorney General; and James Walter Freeland, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

The defendant, Timothy Wright, appeals from his Tipton County Circuit Court jury conviction of aggravated assault, which resulted in a four-year sentence to be served through 220 days’ confinement, with the defendant placed in a community corrections program for the balance of the sentence. The defendant’s single issue on appeal is his claim that the trial court erred in permitting the victim/prosecuting witness “to remain in the courtroom and testify last at trial.” Because we discern no reversible error in the proceedings in the circuit court, we affirm the conviction.

http://www.tba2.org/tba_files/TCCA/2005/wrightt122805.pdf


Consequences of Advertising an “Absolute Auction”

TN Attorney General Opinions

Date: 2005-12-28

Opinion Number: 05-182

http://www.tba2.org/tba_files/AG/2005/OP182.pdf

Effect of Public Chapter No. 394, Public Acts of 2005, on ex parte Orders of Protection and Domestic Abuse Bail Conditions

TN Attorney General Opinions

Date: 2005-12-28

Opinion Number: 05-183

http://www.tba2.org/tba_files/AG/2005/OP183.pdf

2005 Tenn. Public Acts, ch. 197: Waiver of Lien

TN Attorney General Opinions

Date: 2005-12-28

Opinion Number: 05-184

http://www.tba2.org/tba_files/AG/2005/OP184.pdf

TODAY'S NEWS

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index.cfm?section_id=51&screen=news&news_id=46805
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A Tennessean editorial calls for the state to beef up its funding for public defenders.
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Site of first TBA convention saved from development
Environmentalists have stepped in to preserve a stand of white oaks on the site of the Bon Aqua resort where the Tennessee Bar Association held its first convention in 1882, the Tennessean reports.
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Online CLE
Disaster Recovery: Your Ethical Duty
Tornados, fires and hurricanes happen. This new TennBarU online course will help you prepare for and respond to a disaster with the purpose of improving your chance to successfully recover from it.
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TennBarU CLE Programs
TennBarU End-of-Year CLE Blowout offers 150+ courses
If you still need a few hours of CLE credit to meet your 2005 obligations, TennBarU is ready to help. Now through Dec. 30, TennBarU will be showing videos of our top CLE programs from 7 a.m. to 7 p.m. every day. Drop in and take as many hours as you need. Four programs will be showing at all times.
endofyear_2005.html

 
 
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