Opinion Flash

October 24, 2002
Volume 8 — Number 188

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):
05 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 New Opinion(s) from the Tennessee Court of Appeals
06 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


STATE OF TENNESSEE v. CHRISTOPHER M. FLAKE

Court:TSC

OPINION DENYING PETITION FOR REHEARING 

http://www.tba.org/tba_files/TSC/flakecrehear.wpd

JACKIE MARTIN v. LEAR CORPORATION

Court:TSC

Attorneys:

Steven H. Trent and Jennifer P. Keller, Johnson City, Tennessee, for
the appellant, Lear Corporation.

James M. Davis, Morristown, Tennessee, for the appellee, Jackie
Martin.                         

Judge: DROWOTA

First Paragraph:

In this workers' compensation case, we are called upon to determine
whether the trial court may admit a form C-32 medical report obtained
by the plaintiff from the defendant's "consulting expert," a physician
who made a physical examination of the plaintiff.  The defendant
claims that the physician it hired to make an independent medical
examination of the plaintiff is protected from compelled testimony
under Tennessee Rule of Civil Procedure 26.02(4)(B). However, the
Tennessee's Workers' Compensation Law, specifically Tennessee Code
Annotated sections 50-6- 204(f) and 50-6-235(c), clearly permits the
admission of testimony, including a medical report form, of an
examining physician paid for by the employer in a workers'
compensation case.  Therefore, we hold that, pursuant to Tennessee
Code Annotated sections 50-6-204(f) and 50-6-235(c), the trial court
did not err by admitting the physician's medical report.

http://www.tba.org/tba_files/TSC/martinj.wpd

HAROLD WAYNE NICHOLS v. STATE OF TENNESSEE
(Originally filed 10/7/02, today with a correction on page 16.)

Court:TSC

Attorneys: 

Ardena J. Garth, District Public Defender, and Mary Ann Green,
Assistant Public Defender, Chattanooga, Tennessee; Donald E. Dawson,
Post-Conviction Defender, and Catherine Y. Brockenborough, Assistant
Post-Conviction Defender, Nashville, Tennessee, for the appellant,
Harold Wayne Nichols.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Gordon W. Smith, Associate Solicitor General; Gill
Robert Geldreich, Assistant Attorney General; William H. Cox, III,
District Attorney General; and C. Leland Davis, C. Caldwell Huckabay,
and Glenn R. Pruden, Assistant District Attorneys General, for the
appellee, State of Tennessee.

David M. Eldridge and Jeanne L. Wiggins, Knoxville, Tennessee, for
Amicus Curiae, The National Association of Criminal Defense Lawyers
and The Tennessee Association of Criminal Defense Lawyers.                         

Judge: ANDERSON

First Paragraph:

The petitioner, Harold Wayne Nichols, filed post-conviction petitions
seeking relief from his conviction for felony murder, his sentence of
death, and his numerous convictions for aggravated rape, first degree
burglary, and larceny upon the basis of ineffective assistance of
counsel, as well as other legal grounds.  After conducting several
evidentiary hearings, the trial court denied relief as to the felony
murder conviction and sentence of death, but granted partial relief by
ordering new sentencing hearings as to the remaining convictions.  The
Court of Criminal Appeals concluded that the trial court erred by
allowing the petitioner to assert his right against self-incrimination
during the post-conviction proceedings, yet upheld the trial court's
judgment in all other respects.

After reviewing the record and applicable authority, we conclude:  (1)
that the petitioner was not denied his right to the effective
assistance of counsel based on the failure to investigate and
challenge his confessions as false; (2) that the petitioner was not
denied his right to the effective assistance of counsel based on the
failure to challenge the legality of his arrest; (3) that the
petitioner was not denied his right to the effective assistance of
counsel at the sentencing phase of his capital trial based on the
failure to present additional mitigating evidence; (4) that the
petitioner was not denied his right to the effective assistance of
counsel at the sentencing phase of his capital trial based on the
failure to object to misconduct by the prosecution; (5) that the
petitioner was not denied his right to the effective assistance of
counsel at the sentencing phase of his capital trial based on the
failure to request mitigating instructions; (6) that the petitioner
was not denied his right to the effective assistance of counsel at the
sentencing phase of his capital trial based on the failure to raise
issues regarding the constitutionality of capital punishment; (7) that
the petitioner was not denied his right to the effective assistance of
counsel at the sentencing phase of his capital trial based on the
failure to object to the discovery of notes prepared by a defense
psychologist on self-incrimination grounds; (8) that the Court of
Criminal Appeals did not err in refusing to remand the case for
additional DNA testing; (9) that the Court of Criminal Appeals erred
by addressing the issue of whether the petitioner had a right against
self-incrimination in this post-conviction proceeding but the error
had no effect on the outcome; and (10) that the trial court's findings
were not clearly erroneous and cumulative error did not require the
reversal of the petitioner's convictions.  Accordingly, we affirm the
Court of Criminal Appeals' judgment.

http://www.tba.org/tba_files/TSC/nicholshwcorr.wpd

PERO'S STEAK AND SPAGHETTI HOUSE and LOUIS INN v. ELIZABETH JEAN
HINKLE LEE and FIRST AMERICAN NATIONAL BANK and FIRST TENNESSEE BANK
NATIONAL ASSOCIATION

Court:TSC

Attorneys: 

James S. Tipton, Jr., and W. Morris Kizer, Knoxville, Tennessee, for
plaintiffs-appellants, Pero's Steak and Spaghetti House and Louis Inn.

Stephen G. Anderson, Knoxville, Tennessee, for defendant-appellee,
First Tennessee Bank National Association.                         

Judge: DROWOTA

First Paragraph:

The issue in this appeal is whether the trial court and the Court of
Appeals erred in refusing to apply the discovery rule to the
three-year statute of limitations for conversion of negotiable
instruments and in granting the defendant's motion for partial summary
judgment as to checks allegedly converted more than three years before
the plaintiffs filed suit on August 29 and 30, 1996.   After fully and
carefully considering the record and the relevant authorities, we
conclude that the discovery rule does not apply to toll the statute of
limitations when the claim alleged is conversion of a negotiable
instrument.  This conclusion applies both to the former statute of
limitations, Tennessee Code Annotated section 28-3-105,  and the
current statute of limitations, Tennessee Code Annotated section
47-3-118(g).  Therefore, in the absence of fraudulent concealment, a
cause of action for conversion of a negotiable instrument accrues, and
the statute of limitations begins to run, when the instrument is
negotiated.  With respect to the plaintiffs' claim that the defendant
is guilty of fraudulent concealment, we are of the opinion that the
record contains no genuine issue of material fact precluding summary
judgment.  Accordingly, the judgment of the Court of Appeals affirming
the trial court's grant of partial summary judgment to the defendant
is affirmed on the separate grounds stated herein.

http://www.tba.org/tba_files/TSC/peros.wpd

LARRY DEAN SEAL v. CHARLES BLALOCK & SONS, INC., et al.
(Corrects opinion originally filed 10/11/02, correction is on page 3.)

Court:TSC

Attorneys: 

David M. Sanders, Knoxville, Tennessee, for the appellant, Travelers
Insurance Company.

James M. Davis, Morristown, Tennessee, for the appellee, Larry Dean
Seal.                         

Judge: BIRCH

First Paragraph:

In this workers' compensation case, we are asked to determine whether
the trial court erred in awarding benefits for a 93% vocational
disability to the body as a whole.  The employer contends that
compensation should be limited to an award for loss of a scheduled
member.  After reviewing the record and applicable authority, we
conclude that the evidence preponderates against the trial court's
award of benefits for disability to the body as a whole; accordingly,
we modify the judgment of the trial court to provide for an award of
100% disability to the leg.  Additionally, we find no error in the
trial court's admission of the physical therapist's testimony.

http://www.tba.org/tba_files/TSC/seallarrycorr.wpd

MARCIE D. ALLEN, et al. v. RASHID AL-QADIR, et al.

Court:TCA

Attorneys:  

Denielle VonEnde Young, Douglas S. Hale, Franklin, For Appellant,
Frank Redevelopment, LLC

Rebecca E. Byrd, Franklin, For Appellees, Marcie D. Allen and Curtis
Allen

Judge: CRAWFORD

First Paragraph:

This is an appeal from an Order entered on a jury verdict.  Plaintiffs
sued to set aside a transfer of property to Defendant-purchaser
because Plaintiffs had an pre-existing contract on the same property. 
Plaintiffs also sued the Defendant-seller for specific performance of
that pre-existing contract.  The Chancery Court entered judgment on
the jury verdict, finding, inter alia, that Defendant-purchaser was
not a bona fide purchaser for value without notice.  The court denied
Defendant-purchaser's motions for new trial and to alter or amend. 
Defendant-purchaser appeals.  We affirm.

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

VICTORIA LYNN BARNES v. DAVID JOSEPH BARNES

Court:TCA

Attorneys:   

Dorothy J. Pounders, Memphis, Tennessee, for the appellant, Victoria
Lynn Barnes.

Linda L. Holmes, Memphis, Tennessee, for the appellee, David Joseph
Barnes.                        

Judge: FARMER

First Paragraph:

This appeal arises from a change of custody, from the Mother to the
Father, granted by the trial court.  We affirm, with the modification
that Father be enjoined from smoking when either child is present.

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

MICHAEL WAYNE HOLEMAN v. DONNA RENE HOLEMAN

Court:TCA

Attorneys:

Henry D. Fincher, Cookeville, Tennessee, for the appellant, Michael
Wayne Holeman.

Allison M. Barker, Crossville, Tennessee, for the appellee, Donna Rene
Holeman.                         

Judge: COTTRELL

First Paragraph:

After the trial court granted the parties a divorce, awarded them
joint custody of their minor child, and granted primary physical
custody of Child to Mother for the school year, Father filed a motion
to reconsider the custody arrangement.  The trial court denied the
motion and Father appeals.  We affirm the decision of the trial court.

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

SHERRY MAE HOPKINS v. JAMES FRANKLIN HOPKINS

Court:TCA

Attorneys: 

Scarlett Allen Beaty, Knoxville, Tennessee, for the Appellant, James
Franklin Hopkins

Rebecca Denise Slone, Dandridge, Tennessee, for the Appellee, Sherry
Mae Hopkins                         

Judge: GODDARD

First Paragraph:

In this appeal from the Circuit Court for Sevier County the Appellant,
James Franklin Hopkins questions whether the Trial Court erred in
awarding alimony to the Appellee, Sherry Mae Hopkins, and in ordering
that all of Ms. Hopkins' debts be paid out of proceeds from the sale
of the marital residence.  Mr. Hopkins also asserts that Ms. Hopkins
unlawfully disposed of marital assets.  We affirm in part and modify
in part.

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

JWT, L.P. v. PRINTERS PRESS, INCORPORATED, et al.

Court:TCA

Attorneys: 

Michael K. Radford, Brentwood, For Appellant, Printers Press,
Incorporated, and Britain's, Inc.

David S. Zinn, Brentwood, For Appellees, JWT, L.P., Hillsboro Plaza
Enterprises, Hillsboro Plaza Associates, W. R. Weakley and Robert L.
Trentham

Joel M. Leeman, Nashville, For Appellees, Beckerland, Frank H. Becker,
Donna L. Nagelson and Becker Trust                         

Judge: CRAWFORD

First Paragraph:

Corporation sought compensatory and punitive damages for losses
sustained as a result of neighboring business property owner's
erection of a fence across a valid easement immediately adjacent to
appellant's business.  The chancery court denied corporation's claim
for compensatory and punitive damages, but granted injunctive relief. 
Corporation appeals.  We affirm.

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

SHELBY COUNTY DEPUTY SHERIFF'S ASSOCIATION, et al. v. SHERIFF A. C.
GILLESS, JR.

Court:TCA

Attorneys:

Alan Bryant Chambers, Memphis, Tennessee, for the appellants, Shelby
County Deputy Sheriff's Association and Sargent C.D. Booker,
President.

Louis P. Britt and Fred E. Jones, Jr., Memphis, Tennessee, for the
appellee, Sheriff A.C. Gilless, Jr.

Judge: FARMER

First Paragraph:

The plaintiff in this case alleges that the creation of the position
of civilian process server as approved by the Shelby County Civil
Service Merit Board and by the criminal court under a fee petition
violates the Shelby County Charter and the statutory duties of the
Sheriff.  The trial court dismissed the cause as being rendered moot
by the approval of the fee petition.  We reverse and remand.

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

LON WALKER v. WILLIAM A. CAMERON

Court:TCA

Attorneys:

Lon Walker, Pikeville, Tennessee, Pro Se.

Frank Q. Vettori, Knoxville, Tennessee, for appellee, William A.
Cameron.                        

Judge: KOCH

First Paragraph:

This is a legal malpractice action which was dismissed on motion for
summary judgment.  Fourteen months before suit was filed the plaintiff
sent a holographic letter to the Disciplinary Counsel complaining, in
considerable detail, of the defendant's purported shortcomings.  The
trial judge held that the action was barred by the one-year statute of
limitations.  Judgment affirmed.

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

STATE OF TENNESSEE v. JASON FISHER

Court:TCCA

Attorneys:

Mack Garner, District Public Defender, Maryville, Tennessee, for the
appellant, Jason Fisher.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and Edward P. Bailey, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.                        

Judge: WITT

First Paragraph:

The defendant pleaded guilty to six counts of forgery and was
sentenced as a Range I, standard offender to an effective term of two
years, which was suspended and ordered to be served on probation. 
Various probation violation warrants were filed, alleging that the
defendant had failed to comply with the conditions of probation and,
in general, was uncooperative with those in charge of supervising his
sentence.  Following a hearing on the fourth such warrant, the trial
court revoked the defendant's probation and ordered him to serve the
sentence originally imposed.  The defendant appealed.  Upon review of
the record, we detect no abuse of the trial court's discretion and
affirm the judgment.

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

STATE OF TENNESSEE v. KEVIN ISLAND

Court:TCCA

Attorneys:

Donna Armstard and Garland Ergaden, Assistant Public Defenders,
Memphis, Tennessee, for the appellant, Kevin Island.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Camille McMullen, Assistant District Attorney General,
for the appellee, State of Tennessee.                       

Judge: WELLES

First Paragraph:

The Defendant, Kevin Island, was convicted by a jury of especially
aggravated kidnapping, a class A felony, and aggravated robbery, a
class B felony.  After a sentencing hearing, the trial court sentenced
the Defendant as a Range II offender to concurrent sentences of
twenty-five years and twelve years, respectively, to be served in the
Department of Correction.  In this appeal, the Defendant contends that
the evidence is not sufficient to sustain his convictions.  We affirm
the judgment of the trial court.

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

STATE OF TENNESSEE v. CORRIE J. JOHNSON

Court:TCCA

Attorneys:    

Richard W. Deberry, Assistant Public Defender, Camden, Tennessee, for
the appellant, Corrie J. Johnson.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Robert Radford, District Attorney General;
and John W. Overton, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Corrie J. Johnson, was convicted by a jury of selling
cocaine, a Class C felony.  The trial court sentenced the Defendant as
a Range II multiple offender to eight years, to be served
consecutively to two other sentences, for which the Defendant was on
probation.  The trial court also revoked the Defendant's probation on
the two prior convictions.  In this appeal as of right, the Defendant
presents three issues: whether the evidence was sufficient to sustain
his conviction, whether the trial court erred in its application of
enhancing and mitigating factors when deciding the Defendant's
sentence, and whether the trial court erred by revoking the
Defendant's probation.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/johnsoncj1.wpd

STATE OF TENNESSEE v. BOBBY L. MARSHALL

Court:TCCA

Attorneys:

Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Bobby L.
Marshall.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Katrina U. Earley, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Shelby County Criminal Court jury convicted the defendant, Bobby L.
Marshall, of sexual battery, a Class E felony.  The defendant was
sentenced as a Range I, standard offender to sixteen months in the
workhouse and fined two thousand dollars.  The defendant appeals his
conviction, claiming that the trial court erred by refusing to
instruct the jury on consent.  We affirm the judgment of the trial
court.

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

STATE OF TENNESSEE v. DONALD R. MOBBLEY

Court:TCCA

Attorneys:

AC Wharton, Jr., District Public Defender; Tony N. Brayton, Assistant
Public Defender (on appeal); and Mary Katherine Kent, Assistant Public
Defender (at trial), for the appellant, Donald R. Mobbley.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Stephen P. Jones, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: TIPTON

First Paragraph:

A Shelby County Criminal Court jury convicted the defendant, Donald R.
Mobbley, of burglary, a Class D felony, and the trial court sentenced
him as a Range I, standard offender to two years in the workhouse. 
The defendant appeals, claiming that the evidence is insufficient to
support his conviction and that the trial court erred by failing to
instruct the jury on theft of property as a lesser included offense. 
We hold that the evidence is sufficient and that theft is not a lesser
included offense of burglary.  We affirm the judgment of the trial
court.

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

KELVIN LEE YOUNG, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Carthel L. Smith, Jr., Lexington, Tennessee, for the appellant, Kelvin
Lee Young, Jr.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and Alfred Earls, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: WILLIAMS

First Paragraph:

Petitioner was convicted by jury of one count of first degree murder
and sentenced to life imprisonment with the possibility of parole.  
Petitioner filed for post-conviction relief, alleging ineffective
assistance of counsel.  Petitioner now appeals from the denial of
relief from the post- conviction court.  We affirm the denial of
relief.

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

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