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Friday, January 26, 2007

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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.

01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
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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 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

BUILDING MATERIALS CORPORATION d/b/a GAF MATERIALS CORPORATION v. MELVIN D. BRITT

CORRECTION TO OPINION ORIGINALLY FILED ON JAN. 24, 2007

Court: TSC

Attorneys:

Ann Buntin Steiner, Nashville, Tennessee, for the appellant, Melvin D. Britt.

James H. Tucker, Jr., Nashville, Tennessee, for the appellee, Building Materials Corporation of America d/b/a GAF Materials Corporation.

Judge: HOLDER

The sole issue in this workers' compensation action is whether the employee's claim for benefits is barred by the statute of limitations. In 1997, the employee reported to his employer that he had sustained a work-related back injury, but he did not file a claim for workers' compensation benefits at that time. The employee's back pain improved following conservative treatment. In August of 2001, however, the employee informed his employer that his back pain was becoming worse. In February 2002, the employee filed a complaint seeking permanent partial disability benefits. At trial, the trial court granted the employer's motion for involuntary dismissal, holding that the employee's claim was barred by the statute of limitations because it was not made within one year of his original back injury in 1997. Based upon the last-day-worked rule, the Special Workers' Compensation Appeals Panel concluded that the employee's claim is not barred by the statute of limitations. Upon due consideration, we hold that the claim in this matter is not time-barred by the statute of limitations set forth in Tennessee Code Annotated section 50-6-203 because the statute does not begin to run until the employee is prevented from working due to the employee's injury. To the extent that our opinion in Bone v. Saturn Corp., 148 S.W.3d 69, 73 (Tenn. 2004), compels a contrary result by its abandonment of the last-day-worked rule in determining a similar but related issue, it is overruled. Therefore, we reverse the trial court's dismissal of this case and remand this case to the trial court for further proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC/2007/buildingm_correx_012607.pdf

MICHAEL HANNAN, ET AL. v. ALLTEL PUBLISHING CO., ET AL.

Court: TCA

Attorneys:

J. Lewis Kinnard, Madisonville, Tennessee, for the appellants, Michael Hannan and Elizabeth Hannan.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellee, Alltel Publishing Co.

Judge: SUSANO

The plaintiffs, Michael Hannan and his wife, Elizabeth Hannan, advertised their businesses through the local telephone directory. In 2003, the plaintiffs purchased from Alltel Publishing Co. ("Alltel") advertising space in the new directory. However, Alltel failed to include the plaintiffs' advertisement in the new directory. This prompted the plaintiffs to file suit against Alltel. Alltel filed a motion for summary judgment claiming the plaintiffs were unable to prove that they had incurred any damages as a result of Alltel's failure to include the ad in the directory. Alltel relied, in part, on tax return information showing an increase in the plaintiffs' gross income during the year the ad was missing from the directory. The trial court determined that the plaintiffs would be unable to prove that they incurred any damages. Consequently, the court granted Alltel's motion. We conclude that Alltel's filings fail to negate an essential element of the plaintiffs' claim. Accordingly, we vacate the trial court's grant of summary judgment.

http://www.tba2.org/tba_files/TCA/2007/hannanm_012607.pdf

NORMAN CHRISTIAN LINN, ET AL. v. WALTER M. HOWARD, ET AL.

Court: TCA

Attorneys:

Walter M. Howard and Donna Howard, appellants, pro se.

John McFarland, Kingston, Tennessee, for the appellees, Jan Randle, Lola Kirkpatrick, Kathy Caruthers, Hoa Burlingame, Sally Merian, and Arkay Aero, LLC.

Judge: SUSANO

This lawsuit was originally filed by a number of plaintiffs seeking to quiet title and establish their right to unlimited use of a runway easement at the Meadowlake Airpark. The trial court entered a judgment granting the plaintiffs most of the relief they requested. Well after the judgment became final, several of the plaintiffs filed a petition seeking to have defendant Walter Howard held in contempt of court because of his willful obstruction of the runway. The trial court found Mr. Howard in civil contempt. The defendants appeal challenging various rulings of the trial court contained in the final judgment, as well as the later finding of civil contempt. The defendants also challenge the jurisdiction of this Court over the appeal as it pertains to the finding of civil contempt. The plaintiffs claim this appeal is frivolous. We conclude that the appeal is frivolous because none of the issues raised by the defendants had a reasonable chance of success. We affirm the judgment of the trial court and remand for a determination as to the expenses due the plaintiffs pursuant to the provisions of T.C.A. Section 27-1-122 (2000).

http://www.tba2.org/tba_files/TCA/2007/linnnc_012607.pdf

CHARLES PELCZYNSKI, ET AL. v. SLATER REAL ESTATE COMPANY

Court: TCA

Attorneys:

Phillip L. Boyd, Rogersville, Tennessee, for the appellant, Slater Real Estate Company.

Thomas A. Peters, Kingsport, Tennessee, for the appellees, Charles Pelczynski and Barbara Pelczynski.

Judge: SUSANO

This case involves a dispute over an earnest money deposit in a real estate transaction. The trial court awarded the prospective buyers, Charles Pelczynski and his wife, Barbara Pelczynski, a $5,000 judgment against Slater Real Estate Company, which amount represents the unrefunded portion of a $30,000 deposit. The court also awarded the Pelczynskis prejudgment interest and attorney's fees. Slater Realty appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2007/pelczynskic_012607.pdff

TERRANCE E. AKINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Patrick G. Frogge (on appeal), Nashville, Tennessee; Larry Drolsum (at trial), Franklin, Tennessee, for the Appellant, Terrance E. Akins.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and Derek K. Smith, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Terrance E. Akins, appeals the dismissal of his petition for post-conviction relief by the Williamson County Circuit Court. Akins is currently serving a sentence of twenty years, as a violent offender, stemming from his conviction of especially aggravated robbery. Subsequent to his indictment, Akins was appointed counsel; however, shortly thereafter, he began communicating to the court his desire to waive his Sixth Amendment right to counsel and exercise his right to represent himself at trial. Ultimately, Akins filed a motion that he be permitted to represent himself, and, after a hearing, the trial court granted the motion permitting Akins to proceed pro se. Following his conviction, Akins filed a petition for post-conviction relief upon the ground that the "waiver of his right to counsel, and decision to proceed pro se was not intelligently, knowingly and voluntarily made." The post-conviction court denied relief, and this appeal followed. After review, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/akinst_012607.pdf

GREGORY L. ANDERSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Kimberly S. Hodde, Nashville, Tennessee, for the Appellant, Gregory L. Anderson.

Robert E. Cooper, Jr., Attorney General & Reporter; Elizabeth B. Marney, Senior Counsel Criminal Justice Division; Victor S. Johnson, III, District Attorney General; and Jennifer Tackett, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

Aggrieved of his driving under the influence (DUI), fifth offense, conviction, the petitioner, Gregory L. Anderson, sought post-conviction relief, which was denied by the Criminal Court for Davidson County after an evidentiary hearing. On appeal, the petitioner pursues his claim of ineffective assistance of trial and appellate counsel. We affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2007/andersong_012607.pdf

STATE OF TENNESSEE v. JOHN LEWIS CAREY

Court: TCCA

Attorneys:

David A. Doyle, District Public Defender, Gallatin, Tennessee, for the Appellant, John Lewis Carey.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and William Lamberth, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, John Lewis Carey, appeals the judgment of the Sumner County Criminal Court revoking his community corrections sentence. Carey pled guilty to Class C felony possession of cocaine with intent to sell and received a ten-year sentence, as a Range II offender, to be served in the Community Corrections Program. In December 2005, a warrant was issued alleging that Carey had violated the terms of his behavioral agreement by missing three office visits with his case officer, missing two home visits, and not providing a current address. Following a hearing, the trial court ordered revocation of the sentence. On appeal, Carey, although admitting that he did in fact violate the behavioral agreement, argues that the trial court "failed to exercise conscientious and intelligent judgment" in finding that a violation had occurred. Following review, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/careyjl_012607.pdf

STATE OF TENNESSEE v. TIMOTHY CARROLL CASTEEL

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Timothy Carroll Casteel.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; W. Michael McCown, District Attorney General; and Michael D. Randles and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Timothy Carroll Casteel, pled guilty to four separate charges of aggravated robbery. He was sentenced to eleven years for each conviction, with two of the sentences to be served concurrently with each other and the remaining sentences to be served consecutively to each other and consecutively to the concurrent sentences. The defendant's total effective sentence was thirty-three years in the Department of Correction. On appeal, he challenges the trial court's imposition of consecutive sentences. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/casteelt_012607.pdf

STATE OF TENNESSEE v. JEREMY S. CROSBY

Court: TCCA

Attorneys:

Michael Colavecchio, Nashville, Tennessee, (on appeal); and Ross E. Alderman, District Public Defender; Rebecca Warfield, Assistant Public Defender; and J. Michael Engle, Assistant Public Defender, Nashville, Tennessee, (at trial), for the appellant, Jeremy S. Crosby.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; Amy H. Eisenbeck, Assistant District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Jeremy S. Crosby, was convicted of possession of over .5 grams of cocaine with intent to sell and unlawful possession of drug paraphernalia. He was sentenced to serve eighteen years in the Department of Correction for the cocaine conviction and eleven months, twenty-nine days for the paraphernalia conviction, for an effective sentence of eighteen years. On appeal, he argues that the trial court erred in failing to grant his motion to suppress, and that he received ineffective assistance of counsel. After a review of the record, the judgments of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2007/crosbyj_012607.pdf

STATE OF TENNESSEE v. THOMAS EDWARD HOGUE

Court: TCCA

Attorneys:

Paul J. Bruno, Nashville, Tennessee, for the Appellant, Thomas Edward Hogue.

Robert E. Cooper, Jr., Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Lisa Naylor, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

Before the court is petitioner Thomas Edward Hogue's appeal from the Davidson County Criminal Court's dismissal of his October 2005 "Petition to Set Aside Guilty Plea and to Issue a Writ of Error Coram Nobis." Based upon an untimely filing of the petition, we affirm the order of dismissal.

http://www.tba2.org/tba_files/TCCA/2007/hoguet_012607.pdf

STATE OF TENNESSEE v. LAQUETTA MONIQUE MARSH

Court: TCCA

Attorneys:

David Allen Doyle, District Public Defender, for appellant, Laquetta Monique Marsh.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Thomas B. Dean, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

In August 2002, the defendant, Laquetta Monique Marsh, pled guilty to one count of identity theft, a Class D felony; four counts of forgery, a Class E felony; and driving on a revoked license, a Class B misdemeanor. She received an effective total sentence of six years on probation. In April 2006, the trial court revoked the defendant's probation on the basis that she had violated the terms and conditions of her probation. The defendant appeals her probation revocation, arguing that the trial court failed to exercise conscientious and intelligent judgment. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/marshlaquett_012607.pdf

LAWRENCE WARREN PIERCE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dwight Scott, Nashville, Tennessee, for the Appellant, Lawrence Warren Pierce.

Robert E. Cooper, Jr., Attorney General & Reporter; C. Daniel Lins, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Eisenbeck, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

Aggrieved of his kidnapping and sexual battery convictions, the petitioner, Lawrence Warren Pierce, sought post-conviction relief, which was denied by the Davidson County Criminal Court after an evidentiary hearing. On appeal, the petitioner presents several issues of the ineffective assistance of counsel. We affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2007/piercel_012607.pdf

STATE OF TENNESSEE v. THOMAS REGINALD SALLEE

Court: TCCA

Attorneys:

Peter J. Strainse, Nashville, Tennessee, for the appellant Thomas Reginald Sallee.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Tommy Thompson, District Attorney General; and David Durham, Assistant District Attorney General, Lebanon, Tennessee, for the appellee, State of Tennessee.

Judge: WOODALL

Defendant, Thomas Reginald Sallee, appeals the trial court's denial of his request for judicial diversion. After a thorough review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/salleet_012607.pdf

STATE OF TENNESSEE v. JASON PAUL SHERWOOD

Court: TCCA

Attorneys:

Ross E. Alderman, District Public Defender; Rebecca Warfield, Assistant Public Defender; Jeffrey DeVasher, Assistant Public Defender; James P. McNamara, Assistant Public Defender; Patrick Frogge, Assistant Public Defender; and Glenn Dukes, Assistant Public Defender, Nashville, Tennessee, for the appellant, Jason Paul Sherwood.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; Bret Gunn, Assistant District Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Jason Paul Sherwood, was convicted of two counts of premeditated first degree murder, two counts of felony first degree murder, and one count of attempted premeditated first degree murder. The trial court merged Defendant's two convictions of felony murder with his convictions for premeditated murder, and sentenced Defendant to life with the possibility of parole for each premeditated murder conviction. Following a sentencing hearing, the trial court sentenced Defendant as a Range I, standard offender, to twenty-five years for his attempted first degree murder conviction. The trial court ordered Defendant to serve his three sentences consecutively. In his appeal, Defendant argues that (1) the trial court erred in denying his motion to suppress the evidence discovered in his vehicle and residence; (2) the trial court erred in allowing the admission of certain evidence because the State failed to establish a chain of custody; (3) the evidence is insufficient to support his convictions; (4) the trial court erred in not declaring a mistrial; and (5) the trial court erred in imposing consecutive sentencing. After a thorough review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/sherwoodj_012607.pdf

EMERY SINCLAIR v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Stanley K. Pierchoski, Lawrenceburg, Tennessee, for the Appellant, Emery Sinclair.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney General; Mike Bottoms, District Attorney General; and James G. White, II, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WITT

Aggrieved of his guilty-pleaded voluntary manslaughter conviction, the petitioner, Emery Sinclair, sought post-conviction relief, which was denied by the Circuit Court of Lawrence County after an evidentiary hearing. On appeal, the petitioner presents one issue of ineffective assistance of counsel related to trial counsel's failure to move to gain suppression of a statement given by the petitioner to law enforcement officers. We affirm the denial of post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2007/sinclaire_012607.pdf

STATE OF TENNESSEE v. TERESA SUE SKIPPER

CORRECTION TO OPINION ORIGINALLY POSTED ON JANUARY 25, 2007

Court: TCCA

Attorneys:

Kent L. Booher, Lenoir City, Tennessee, for the appellant, Teresa Sue Skipper.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; James Scott McCluen, District Attorney General; and Roger Delp, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Teresa Sue Skipper, was convicted of assault, resisting arrest, and obstruction of the execution of an arrest warrant. The Defendant filed a timely motion for a new trial, asserting that the trial judge infringed upon her constitutional rights by not properly instructing the jury. The motion for a new trial was denied. On appeal, the Defendant continues to assert that the jury instructions were erroneous. Furthermore, the Defendant now argues that her constitutional rights were violated because the law enforcement officers entered her home unlawfully and, but for the illegal entry of the officers, she would not have used force against them to protect and defend herself. We conclude that the trial judge properly instructed the jury and that the Defendant waived any claims regarding an unlawful search. Accordingly, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/skippert_012607.pdf

STATE OF TENNESSEE v. JAMES GENO TEMPLEMAN

Court: TCCA

Attorneys:

Edward Cantrell Miller, District Public Defender, and Amber D. Haas, Assistant Public Defender, for the appellant, James Geno Templeman.

Robert E. Cooper. Jr., Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and John D. Sellers, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, James Geno Templeman, appeals the sentence of the Circuit Court for Sevier County in which his driver's license was suspended for a period of two years as a result of his conviction for violating the implied consent law. It is undisputed that the defendant had a prior driving under the influence (D.U.I.) conviction which was used by the trial court in sentencing the defendant. On appeal, the defendant urges this court to impose the ten-year limitation contained in the D.U.I. statute to the implied consent statute to bar the use of any prior D.U.I. conviction more than ten years old. The State argues that the plain language of the statute contains no such limitation on the use of prior D.U.I. offenses, and we agree. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/templemanjg_012607.pdf

JOHN WHATLEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan D. Brown, Columbia, Tennessee, for the Appellant, John Whatley.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Mike Bottoms, District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, John Whatley, appeals the judgment of the Maury County Circuit Court denying post-conviction relief. Whatley is currently serving an eleven-year sentence in the Department of Correction as a result of his conviction for aggravated sexual battery. On appeal, Whatley argues that he was denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that trial counsel was ineffective in: (1) "failing to adequately consult with and prepare [Whatley] for trial"; (2) failing to present a potential defense witness at trial; (3) opening the door for the introduction of prejudicial testimony; and (4) failing to properly preserve a conflict of interest issue for appeal. After review, the judgment of the post-conviction court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/whatleyj_012607.pdf

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Moving to partisan elections for judges who serve statewide would be a mistake, Tennessee Supreme Court Justice Mickey Barker told the Chattanooga Civitan Club on Friday. Barker said judges "are under pressure like they have never seen before. There are more and more groups trying to influence the decisions of the courts."

Read about it in the Chattanoogan.com

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Law firm associate bonuses generally were flat in 2006 compared with the year before, despite brisk business and strong competition for attracting and keeping good associate help. A National Law Journal report suggests it may be because of recent increases in associate salaries.