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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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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
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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
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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
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