Opinion Flash

October 17, 2002
Volume 8 — Number 183

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.

This Issue (IN THIS ORDER):
00 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06 New Opinion(s) from the Tennessee Court of Appeals
12 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


JOHN CARBINO v. PORTLAND UTILITY CONST. CO., LLC, et al.

Court:TSC - Workers Comp Panel

Attorneys:    

Bridgett A. Wohlpart, Brentwood, Tennessee, for the appellants,
Portland Utility Construction Company, LLC, and Travelers Property
Casualty Corporation

Lucius P. Hawes, Jr., Hopkinsville, Kentucky, for the appellee, John
Carbino

Judge: LOSER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  In this
appeal, the employer and its insurer question (1) the trial court's
finding that the employee's aortic dissection was an injury by
accident arising out of his employment and (2) the award of permanent
partial disability benefits based on 85 percent to the body as a whole
for the combined effects of that injury and a subsequent compensable
back injury.  As discussed below, the panel has concluded the judgment
should be affirmed.

http://www.tba.org/tba_files/TSC_WCP/carbinojohn.wpd

ARLIE L. BINGHAM v. JOHN W. DOLES, et al.

Court:TCA

Attorneys:   

J. Gilbert Parrish, Jr., Savannah, TN, for Appellant

Dennis W. Plunk, Savannah, TN, for Appellee                       

Judge: HIGHERS

First Paragraph:

This appeal arises from a boundary line dispute.  The plaintiff filed
suit against the defendant, an adjacent land owner, alleging that a
proposed addition to the defendant's home would encroach onto the
plaintiff's property.  The trial court ruled that defendant had gained
title to the disputed property under the doctrines of adverse
possession and title by acquiescence.  The plaintiff appealed
challenging the court's ruling on adverse possession.  For the
following reasons, we affirm the decision of the trial court.

http://www.tba.org/tba_files/TCA/binghama.wpd

RODNEY M. BUTLER v. MADISON COUNTY JAIL, et al.

Court:TCA

Attorneys: 

Rodney M. Butler, Pro Se

James I. Pentecost, Andrew V. Sellers, Jackson, For Appellees, Madison
county Jail and Sheriff David Woolfork

Timothy G. Wehner, L. Michelle Greenway, Jackson, For Appellee, Kelly
Ballard, M.D.                         

Judge: CRAWFORD

First Paragraph:

Inmate sued sheriff, county, and physician, claiming deprivation of
constitutional rights under 42 U.S.C. S 1983 in connection with
allegedly delayed and substandard medical treatment.  The Circuit
Court of Madison County granted summary judgment for sheriff, county,
and physician, and denied inmate's request to amend complaint and for
extension of time to conduct discovery.  Inmate appeals.  We affirm.

http://www.tba.org/tba_files/TCA/butlerra.wpd

COX OIL COMPANY, INC. v. CITY OF LEXINGTON BEER BOARD

Court:TCA

Attorneys:   

Kenneth L. Walker, Lexington, Tennessee, for the appellant, City of
Lexington Beer Board.

Stephen M. Milam, Lexington, Tennessee, for the appellee, Cox Oil
Company, Inc.                       

Judge: LILLARD

First Paragraph:

This is an action challenging the denial of a beer permit.  The
plaintiff business applied for a beer permit with the defendant beer
board.  The board denied the permit because plaintiff's location was
within 500 feet of a church.  This proximity to a church was in
violation of a city ordinance.  The plaintiff filed a writ of
certiorari in the trial court, seeking a reversal of the board's
decision because the 500-feet ordinance had been applied in a
discriminatory manner.  The trial court found that the board had
allowed another establishment that was within 500 feet of a church to
maintain its beer permit, and concluded that the board had therefore
applied the ordinance in a discriminatory manner.  Consequently, the
denial of the plaintiff's beer permit was reversed.  The board now
appeals that order.  We affirm, finding that the board had applied the
ordinance in a discriminatory manner, and that the trial court did not
err in reversing the denial of the plaintiff's beer permit.

http://www.tba.org/tba_files/TCA/coxoil.wpd

LEO CLIFFORD DAVIS, JR. v. ANGELA DAVIS

Court:TCA

Attorneys:  

James F. Butler, J. Brandon McWherter, Jackson, TN, for Appellant

Linda Sesson Taylor, Jackson TN, for Appellee                        

Judge: HIGHERS

First Paragraph:

This appeal arises from a divorce proceeding initiated by the husband.
The trial court, holding that husband had engaged in inappropriate
marital conduct, granted the divorce to the wife.  The trial court
valued and classified much of the parties' property with limited
proof.  The court further awarded wife attorney's fees and costs. 
Husband now raises several issues for our review.  For the foregoing
reasons, we affirm in part, reverse in part, and remand this case for
further proceedings.

http://www.tba.org/tba_files/TCA/davisl.wpd

RON MCCOLGAN d/b/a BIG SANDY AUTO PARTS v. AUTO-OWNERS INSURANCE
COMPANY

Court:TCA

Attorneys:   

Dwayne D. Maddox III, Huntingdon, For Appellant, Auto Owners Insurance
Company

Terry J. Leonard, Camden, For Appellee, Ron McColgan, d/b/a Big Sandy
Auto Parts                       

Judge: CRAWFORD

First Paragraph:

Appellee-insured filed a complaint against appellant-insurance company
for breach of contract and bad faith penalties when appellant refused
to pay coverage owed under an existing policy for fire damages
appellee suffered to his place of business and business personal
property.  Appellant raised an affirmative defense of arson.  Chancery
court awarded appellee policy proceeds equal to the coverage limits
provided in his policy and a twenty-five percent bad faith penalty
pursuant to T.C.A. S 56-7-105.  Appellant appeals solely on the issue
of the bad faith penalty.  We reverse in part, affirm in part and
remand.

http://www.tba.org/tba_files/TCA/mccolgan.wpd

MARGARET PARKER v. THE KROGER COMPANY

Court:TCA

Attorneys:  

Marshall L. Gerber, Memphis, For Appellant, Margaret Parker

Minton P. Mayer, Memphis, For Appellee, The Kroger Company                        

Judge: CRAWFORD

First Paragraph:

The Circuit Court, Shelby County, granted summary judgment for
Defendant in a slip and fall case.  The Court of Appeals reversed and
remanded the case.  The Supreme Court granted appeal and remanded the
case by Order dated September 23, 2002 to the Court of Appeals for the
sole purpose of determining the applicability, if any, of the Texas
Supreme Court opinion in Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812
(Tex. 2002).  On remand, the Court of Appeals withdrew the Court's
previously filed opinion and affirms the Trial Court's grant of
summary judgment.

http://www.tba.org/tba_files/TCA/parkermt.wpd

STATE OF TENNESSEE v. RICKY BRANDON and JIMMY W. BRANDON

Court:TCCA

Attorneys:    

Robert L. Huskey, Manchester, Tennessee, for the Appellants, Ricky
Brandon and Jimmy Brandon.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; C.
Michael Layne, District Attorney General; and Doug Aaron, Assistant
District Attorney General, for the Appellee, State of Tennessee.                      

Judge: HAYES

First Paragraph:

The Appellants, Ricky Brandon and Jimmy W. Brandon, were convicted by
a Coffee County jury of misdemeanor assault.  In this direct appeal of
their convictions, the Appellants argue that they received ineffective
assistance of counsel at trial and, as such, their convictions should
be vacated.  After review, we find no error and affirm the judgment.

http://www.tba.org/tba_files/TCCA/brandonjr.wpd

STATE OF TENNESSEE v. WILLIAM  ROY GRAY

Court:TCCA

Attorneys:

Vanessa D. King, Assistant Public Defender, Jackson, Tennessee, for
the appellant, William Roy Gray.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and Shaun A. Brown, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: WELLES

First Paragraph:

Following a bench trial, the Defendant, William Roy Gray, was found
guilty of possession of drug paraphernalia, a class A misdemeanor, and
resisting arrest, a class B misdemeanor.  He received consecutive
sentences of eleven months and twenty-nine days and six months,
respectively, to be served in jail.  However, approximately two months
later, the trial court entered an order allowing the Defendant to
serve his sentences at home due to the Defendant's poor health.  The
court revoked this order based on the Defendant failing to comply with
the conditions of his release from jail and the Defendant being
arrested for theft.  Moreover, the court ordered that the Defendant
not be given credit for the portion of his sentences that he served at
his home.  In this appeal as of right, the Defendant argues that the
order of the trial court denying him credit for the time he served
outside of jail serves to increase his sentence and to effectively
punish him twice for the same offense in violation of the double
jeopardy clauses of the United States and Tennessee Constitutions.  We
disagree and affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/graywr.wpd

MELVIN JOHNSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

James E. Thomas, Memphis, Tennessee, for the appellant, Melvin
Johnson.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Raymond J. Lepone, Assistant District Attorney General,
for the appellee, State of Tennessee.                         

Judge: RILEY

First Paragraph:

The Shelby County Criminal Court dismissed the petition for
post-conviction relief filed by the petitioner, Melvin Johnson, as
untimely under the one-year statute of limitations.  In this appeal,
the sole issue before this court is whether the petitioner's
allegation that he was housed in a therapeutic community with limited
access to legal information tolls the statute of limitations.  Upon
review of the record, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/johnsonm1.wpd

STATE OF TENNESSEE v. GREGORY KEY

Court:TCCA

Attorneys:

Darrell L. Scarlett, Murfreesboro, Tennessee, for the appellant,
Gregory Key.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and John W. Price, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Gregory Key, was indicted by the Rutherford County Grand
Jury on two counts of aggravated sexual battery.  During a hearing on
several pretrial motions, defense counsel, Darrell Scarlett, advised
the trial court of a joint business venture between himself and
Detective Lawson, an investigating officer in the case.  The court
entered an Order disqualifying Defendant's attorney from further
representation, finding that the relationship constituted an
appearance of impropriety.  Pursuant to Rule 9 of the Tennessee Rules
of Appellate Procedure, Defendant appeals the trial court's
disqualification of his attorney and argues that he waived any
conflict or appearance of impropriety after full disclosure.

http://www.tba.org/tba_files/TCCA/keygregory.wpd

WILLIE JOSEPH LAGANO v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Bruce Poag, Nashville, Tennessee, for the appellant, Willie Joseph
Lagano.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. Johnson, III,
District Attorney General; and Pam Anderson, Assistant District
Attorney General, for the appellee, State of Tennessee.                      

Judge: WOODALL

First Paragraph:

Petitioner, Willie Joseph Lagano, filed a petition for writ of habeas
corpus in the trial court.  The trial court summarily dismissed the
petition without an evidentiary hearing.  Petitioner appealed.  After
a thorough review of the record, we affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/laganowilliejoseph.wpd

STATE OF TENNESSEE v. WILLIAM A. MARSHALL 

Court:TCCA

Attorneys:

Walter H. Stubbs, Gallatin, Tennessee, for the Appellant, William A.
Marshall.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and Sallie Wade Brown, Assistant District Attorney General,
for the Appellee, State of Tennessee.                       

Judge: WITT

First Paragraph:

The defendant, William A. Marshall, appeals the Sumner County Criminal
Court's revocation of his probation of a two-year sentence for sexual
battery.  Because we disagree with the trial court's view of whether
the defendant satisfied a condition of his probation by "completing" a
sexual offender treatment program, we reverse the revocation and
dismiss the warrant.

http://www.tba.org/tba_files/TCCA/marshallwilliama.wpd

STATE OF TENNESSEE v. NELSON EDWARD MEEKS

Court:TCCA

Attorneys:

Philip A. Condra, Jasper, Tennessee, for the Appellant, Nelson Edward
Meeks.

Paul G.  Summers, Attorney General & Reporter; Mark A. Fulks,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and Sherry Gouger, Assistant District Attorney General, for
the Appellee, State of Tennessee.                        

Judge: WITT

First Paragraph:

Nelson Edward Meeks appeals the sentence imposed for three convictions
for  third offense driving under the influence, reckless driving, and
driving on a revoked license.  He claims that the lower court erred in
(1) failing to consider the statutory sentencing principles and
considerations, and (2) imposing a sentence not authorized by law. 
Because we disagree in both respects, we affirm.

http://www.tba.org/tba_files/TCCA/meeksnelsone.wpd

ANTONIO M. MILLER v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:       

John D. Drake, Murfreesboro, Tennessee, for the Appellant, Antonio M.
Miller.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and Paul A. Holcombe, III, Assistant District
Attorney General, for the Appellee, State of Tennessee.                   

Judge: WITT

First Paragraph:

Antonio M. Miller appeals from the Rutherford County Circuit Court's
denial of his petition for post-conviction relief.  Miller is
presently serving an effective nineteen-year sentence for convictions
of second-degree murder, six counts of aggravated burglary, and one
count of felony drug possession.  He claims that two of his trial
counsel provided ineffective assistance.  The lower court ruled
against the petitioner, and upon review of the record, we affirm that
ruling.

http://www.tba.org/tba_files/TCCA/millerantoniom.wpd

STATE OF TENNESSEE v. RICHARD ODOM, a/k/a OTIS SMITH

Court:TCCA

Attorneys:

Robert C. Brooks (at trial and on appeal) and Edward Chandler (at
trial), Memphis, Tennessee, for the appellant, Richard Odom.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Phillip Gerald Harris and Amy Weirich, Assistant District
Attorneys General, for the appellee, State of Tennessee.                         

Judge: GLENN

First Paragraph:

The defendant, Richard Odom, was convicted in 1996 for first degree
murder and sentenced to death. Our supreme court affirmed the
conviction but remanded for a resentencing hearing, which resulted in
a jury's again sentencing the defendant to death, after finding, as an
aggravating circumstance, that the defendant previously had been
convicted of one or more violent felonies.  He appealed that sentence,
alleging, inter alia, that the indictment failed to charge a capital
offense; and that the trial court erred in denying his motion for a
continuance; denying his motion to apply the version of Tenn. Code
Ann.  S 39-13-204 in effect at the time of his offense; allowing as
exhibits photographs of the victims of the crimes; and denying his
motion to allow the jury to impose a sentence of life without parole. 
Following our review, we affirm the imposition of death.

http://www.tba.org/tba_files/TCCA/odomr.wpd

STATE OF TENNESSEE v. ANDRE DEALTO PERKINS

Court:TCCA

Attorneys:

Guy T. Wilkinson, District Public Defender; W. Jeffery Fagan,
Assistant District Public Defender (on appeal); and Victoria
DiBonaventura, Paris, Tennessee (at trial), for the appellant, Andre
Dealto Perkins.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General;  G. Robert "Gus" Radford, District
Attorney General; and Steven L. Garrett, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: RILEY

First Paragraph:

The defendant appeals his jury conviction for possession of a
controlled substance with the intent to manufacture, deliver, or sell.
 He argues the evidence is insufficient to support his conviction.  We
find this issue is waived because the defendant has failed to include
a trial transcript in the record.  The judgment of the trial court is
affirmed.

http://www.tba.org/tba_files/TCCA/perkinsa.wpd

STATE OF TENNESSEE v. JERRY WAYMON TRAVIS, aka JERRY WAYMON RAY

Court:TCCA

Attorneys:

Guy T. Wilkinson, District Public Defender, and W. Jeffery Fagan,
Assistant Public Defender, for the appellant, Jerry Waymon Travis.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; G. Robert Radford, District
Attorney General; and Steven L. Garrett, Assistant District Attorney
General, for the appellee, State of Tennessee.                        

Judge: WILLIAMS

First Paragraph:

The defendant claims it was error for the trial court to sentence him
to the Department of Correction for three years, then order one-year
split confinement with the balance on Community Corrections.  The
defendant contends that a one-year split confinement sentence will
require him to serve 1.2 months longer in confinement than a
three-year sentence at 30% to the Department of Correction.  We
conclude the sentence imposed did not violate the principles of
sentencing and, accordingly, affirm the judgment from the trial court
as modified.

http://www.tba.org/tba_files/TCCA/travisj.wpd

STATE OF TENNESSEE v. MARQUEZ WINTERS

Court:TCCA

Attorneys:

Garland Erguden, Assistant Public Defender, Memphis, Tennessee (on
appeal); Timothy J. Albers and William Yonkowski, Assistant Public
Defenders, Memphis, Tennessee (at trial), for the appellant, Marquez
Winters.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William L. Gibbons, District Attorney
General; and Reginald Henderson, Assistant District Attorney General,
for the appellee, State of Tennessee.                      

Judge: WEDEMEYER

First Paragraph:

The Shelby County Grand Jury indicted the Defendant for two counts of
especially aggravated kidnapping and for one count of criminal attempt
to commit first degree murder.  The Defendant was subsequently
convicted of one count of aggravated kidnapping and of one count of
criminal attempt to commit first degree murder.  The trial court
sentenced the Defendant to consecutive maximum sentences totaling
thirty-seven years.  The Defendant now appeals his sentences, arguing
that the trial court erred in its application of enhancement factors,
that the trial court improperly imposed maximum sentences for both
convictions, and that the trial court erred in ordering the sentences
to be served consecutively.  Although the trial court erred in its
application of certain enhancement factors, we conclude that it
properly considered other enhancement factors which warranted
sentencing the Defendant to consecutive maximum terms.  Therefore, we
affirm the sentences imposed by the trial court.

http://www.tba.org/tba_files/TCCA/wintersm.wpd

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