Opinion Flash

March 14, 2003
Volume 9 — Number 046

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):
01 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
09 New Opinion(s) from the Tennessee Court of Appeals
10 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


WILLIAM ROGER SHELTON v. ADS ENVIRONMENTAL SERVICES, et al.

Court:TSC

Attorneys:

Gordon C. Aulgur, Nashville, Tennessee, for the appellants, ADS
Environmental Services and Zurich American Insurance.

Roger W. Hudson, Murfreesboro, Tennessee, for the appellee, William
Roger Shelton.                          

Judge: BIRCH

First Paragraph:

This workers' compensation case is before this court on interlocutory
appeal pursuant to Rule 9 of the Tennessee Rules of Appellate
Procedure.  We granted interlocutory appeal in this case, as well as
in the companion case of McCall v. National Health Corp., to determine
whether the trial court has the authority to initiate temporary
workers' compensation benefits prior to trial.  In accordance with the
reasoning and holding in McCall, we find that the trial court has this
authority.

http://www.tba.org/tba_files/TSC/wheltonwilliam.wpd
								
ELIZABETH ANN CROLEY v. LEVI STRAUSS & CO. Court:TSC - Workers Comp Panel Attorneys: Wm. Landis Turner, Hohenwald, Tennessee, for the appellant, Elizabeth Ann Croley. Patrick Alan Ruth, Nashville, Tennessee, for the appellee, Levi Strauss & Co. Judge: WEATHERFORD First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case, the employee slipped and fell on a wet floor as she was entering the workplace. The chancellor, who had presided over the trial in this matter, left office before rendering a decision. The employee contends that the chancellor did not have jurisdiction to decide the case because the 60 day time period provided under Tennessee Code Annotated S 17-1-304(b) for judges who have vacated office to conclude pending cases had expired prior to the entry of an order by the Chief Justice of the Tennessee Supreme Court ordering the former chancellor to conclude the case. The employee also contends that the trial court erred: 1) in finding that the plaintiff failed to prove that her work-related accident caused a permanent right shoulder injury; and 2) by designating a faxed copy of an order as the original. We hold that the evidence does not preponderate against the trial court's finding as to causation. We also find that the trial court did have proper jurisdiction in this case and did not err in designating a faxed copy of an order as the original when the original order was lost. Accordingly, the panel has concluded that the judgment of the trial court should be affirmed. http://www.tba.org/tba_files/TSC_WCP/croleyeliz.wpd
CYNTHIA LEE BRATTON v. MICHAEL WAYNE BRATTON Court:TCA Attorneys: Douglas R. Beier, Morristown, Tennessee, for Appellant. Sarah Y. Sheppeard and Jason H. Long, Knoxville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: In divorce action the Trial Court granted divorce, refused to enforce a postnuptial Agreement, divided marital property, awarded alimony and child support. On appeal, we affirm. http://www.tba.org/tba_files/TCA/brattonc.wpd
WYLIE B. DOWLEN v. GARY MATHEWS Court:TCA Attorneys: Thomas N. Bateman and Robert T. Bateman, Clarksville, Tennessee, for the Appellant, Wylie B. Dowlen Rodger N. Bowman, Clarksville, Tennessee, for Appellee, Gary Mathews Judge: HARGROVE First Paragraph: This appeal arises from a police officer's lawsuit against a Clarksville resident for assault, defamation, and intentional infliction of emotional distress after the officer responded to a noise complaint at the resident's home. The trial judge directed a verdict for the defendant. We affirm the trial court. http://www.tba.org/tba_files/TCA/dowlenvmatthews.wpd
KAREN GALE ENGEL V. JERRY BURTON YOUNG, SR. Court:TCA Attorneys: Clark L. Shaw, Nashville, Tennessee, for the appellant, Karen Gale Engel. Audrey Lee Anderson, Nashville, Tennessee, for the appellee, Jerry Burton Young, Sr. Judge: COTTRELL First Paragraph: This appeal arose after a paternity and custody proceeding was resolved by the trial court in which custody of the child was granted to Mother and visitation was granted in part to Father and in part to the child's half-siblings, Father's adult daughters. Mother appeals, arguing that the third party visitation order violates her constitutional rights as a parent and that she should have been awarded the tax deduction for the child. Because the trial court was incorrect in ordering the third party visitation, we reverse that portion of the trial court's decision which awarded visitation to the child's half-siblings. Because the trial court did not abuse its discretion in awarding the tax deduction to Father, we affirm that portion of the trial court's decision. We also decline to award Mother attorney's fees on appeal. http://www.tba.org/tba_files/TCA/engelk.wpd
CHARLES R. HEAD, JR., et al. v. JAMES LYNN GIBSON, et al. CORRECTION ON FIRST PAGE Court:TCA Attorneys: George J. Duzane, Nashville, Tennessee, for the appellants, Charles R. Head, Jr. And Donna M. Head. Joseph B. Klockenkemper, II, Nashville, Tennessee, for the appellee, State Farm Mutual Automobile Insurance. Judge: CANTRELL First Paragraph: This is an appeal from a judgment granting a motion for summary judgment in favor of State Farm Mutual Automobile Insurance Co. that the uninsured motorist coverage offered to the plaintiffs was not implicated under the circumstances of this litigation. We affirm. http://www.tba.org/tba_files/TCA/headcorrex.wpd
IN THE MATTER OF: A.J.H., A CHILD UNDER 18 YEARS OF AGE Court:TCA Attorneys: R. Steven Randolph, Cookeville, Tennessee, for the appellant, B.B. Paul G. Summers, Attorney General and Reporter; Douglas Earl Dimond, Assistant Attorney General, for the appellee, Department of Children's Services. Judge: CANTRELL First Paragraph: The trial court terminated the parental rights of the father of a three-year-old boy on several statutory grounds, including abandonment and failure to remedy conditions that prevent him from providing a safe home for the child. See Tenn. Code Ann. S 36-1-113(g). We affirm the trial court. http://www.tba.org/tba_files/TCA/inthematterofajh.wpd
DAWN LARSEN NICELEY v. JAMES JACOB NICELEY, IV Court:TCA Attorneys: Phillip Mark Walker, Goodlettsville, Tennessee, for the appellant, Dawn Larsen Niceley. Christina Brasher, Springfield, Tennessee, for the appellee, James Jacob Niceley, IV. Judge: COTTRELL First Paragraph: After a sixteen-year marriage and one child, Husband and Wife both filed for divorce. After hearing the evidence, the trial court fashioned a parenting plan which named Husband the primary residential parent during the school year and named Wife the primary residential parent during the summer and most holidays and school breaks; valued and divided the marital property; and awarded Wife attorney's fees as alimony in solido. We affirm the parenting plan and the distribution of marital property but reverse the award of attorney's fees because the trial court found Wife was not economically disadvantaged. http://www.tba.org/tba_files/TCA/niceleyd.wpd
THE OCEANICS SCHOOLS, INC. v. CLIFFORD E. BARBOUR, JR. Court:TCA Attorneys: Brian C. Quist and Jason E. Fisher, Knoxville, Tennessee, for the appellant, Clifford E. Barbour, Jr. J. Douglas Overbey and Ben M. Rose, Knoxville, Tennessee, for the appellee, The Oceanics Schools, Inc. Judge: SUSANO First Paragraph: The Oceanics Schools, Inc. ("the plaintiff") filed what it characterizes as an action to enforce the judgment ("the OSC judgment") it had previously obtained against Operation Sea Cruise, Inc. ("OSC"). In that action, the plaintiff sued Clifford E. Barbour, Jr., the alleged alter ego of the corporation, seeking to pierce the corporate veil of OSC in order to enforce the OSC judgment against Barbour. The trial court found that Barbour was in fact the alter ego of OSC; consequently, the court allowed the plaintiff to pierce the corporate veil to enforce the OSC judgment against Barbour. He appeals, raising a number of issues. As modified, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCA/oceanicsschools.wpd
ROBERT M. OVERHOLT, M.D., et al. v. HUGH RAY WILSON Court:TCA Attorneys: David S. Wigler, Knoxville, Tennessee, for the Appellant, Hugh Ray Wilson Timothy E. Irwin, Knoxville, Tennessee, for the Appellees, Robert M. Overholt, M.D., Joe W. Black, M.D., and Michael D. Price Judge: GODDARD First Paragraph: In this suit, Plaintiffs Robert M. Overholt, Joe W. Black, and Michael D. Price sue Defendant Hugh Ray Wilson, seeking possession of a portrait of long-time University of Tennessee football coach, General Robert R. Neyland. The suit also sought injunctive relief as to a proposed sale of the portrait by Mr. Wilson in connection with a bankruptcy sale of assets of a corporation owned by him. Mr. Wilson's sole defense of the suit was that it was barred by T.C.A. 28-3-105(2), the three-year statute of limitations for recovery of personal property. The Trial Court submitted to the jury a single question regarding the only material factual dispute, and upon receipt of the jury's finding held that the statute of limitations was not a viable defense and granted judgment in favor of the Plaintiffs. Mr. Wilson appeals and raises four issues, hereinafter set out, for our consideration. We find that they are without merit and affirm. http://www.tba.org/tba_files/TCA/overholtrob.wpd
DAVID J. WILLIAMS v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: David J. Williams, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Abigail Turner, Assistant Attorney General, for the appellee, Tennessee Department of Correction. Judge: KOCH First Paragraph: This appeal involves a dispute between a prisoner and the Department of Correction regarding the expiration date of his Class X life sentence for aggravated rape. After unsuccessfully petitioning the Department for a declaratory order, the prisoner filed a petition for declaratory judgment in the Chancery Court for Davidson County asserting that the Department's Disciplinary Punishment Guidelines require the Department to treat his life sentence as one that fully expires in thirty years. The trial court granted the Department's Tenn. R. Civ. P. 12.02(6) motion, and the prisoner has appealed. We have determined that the trial court properly determined that the prisoner had failed to state a claim upon which relief can be granted. Accordingly, we affirm the judgment dismissing the prisoner's complaint. http://www.tba.org/tba_files/TCA/williamsdj.wpd
STATE OF TENNESSEE v. MELISSA ANN BREWER Court:TCCA Attorneys: Bethel Campbell Smoot, Jr., District Public Defender, and Rachel E. Willis, Assistant Public Defender, for the appellant, Melissa Ann Brewer. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Charles Michael Layne, District Attorney General; and Kenneth J. Shelton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals her sentence of three years imprisonment for the sale of less than .5 grams of cocaine, a Class C felony. The defendant argues she is a favorable candidate for alternative sentencing. The record supports the defendant's assertion that she is entitled to an alternative sentence. The defendant is sentenced to three years in split confinement, with thirty (30) days incarceration and the remainder on supervised probation. We remand this judgment to determine if the defendant continues to hold full-time employment. If the defendant is employed full-time, she is to serve her thirty (30) days in periodic confinement. http://www.tba.org/tba_files/TCCA/brewerma.wpd
STATE OF TENNESSEE v. MARIO C. ESTRADA Court:TCCA Attorneys: Claudia S. Jack, District Public Defender; Robin Farber, Assistant Public Defender, Columbia, Tennessee, for the Appellant, Mario C. Estrada. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; T. Michael Bottoms, District Attorney General; and Joseph L. Penrod, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Mario C. Estrada, appeals the sentencing decision of the Maury County Circuit Court imposing a sentence of twelve years incarceration in the Department of Correction. The sentence arose from guilty pleas by Estrada to one count of arson, eight counts of aggravated assault, and one count of possession of a prohibited weapon. The indictment returned against Estrada charged him with one count of aggravated arson, eight counts of attempted first degree murder, and one count of possession of a prohibited weapon. In this appeal, Estrada raises the issue of whether the trial court erred by ordering that his sentence be served in total confinement. After review, we find that plain error dictates that the convictions be vacated and the case remanded for further proceedings because aggravated assault is not a lesser included offense of attempted first degree murder. http://www.tba.org/tba_files/TCCA/estradamarioc.wpd
STATE OF TENNESSEE v. CINDY GENTRY Court:TCCA Attorneys: William B. Lockert, III, District Public Defender; and Christopher L. Young, Assistant District Public Defender, for the appellant, Cindy Gentry. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Kim G. Menke, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of aggravated assault, a Class C felony, and was sentenced by the trial court as a Range I, standard offender to three years in the Department of Correction, with the sentence to be suspended and the defendant placed on probation after one year in the county workhouse. She raises two issues on appeal: (1) whether the evidence was sufficient to support her conviction; and (2) whether the trial court erred in ordering that she serve one year of her sentence in the county workhouse. Based on our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/gentrycindy.wpd
DENNIS J. HUGHES v. STATE OF TENNESSEE Court:TCCA Attorneys: Charles R. Ray, Nashville, Tennessee, for the Appellant, Dennis J. Hughes Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and John Zimmerman, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Dennis J. Hughes appeals the Davidson County Criminal Court's denial of his petition for post- conviction relief. He claims on appeal that the lower court erred in (1) denying his claim that his constitutional rights were abridged by the state's failure to disclose evidence against him prior to trial as part of the bill of particulars, and (2) ruling that he could not impeach the prosecutor from the conviction proceedings with the prosecutor's own alleged prior bad acts. Because we are unpersuaded of reversible error, we affirm the post-conviction court's denial of relief. http://www.tba.org/tba_files/TCCA/hughesdennisj.wpd
SHARON R. HURT v. STATE OF TENNESSEE Court:TCCA Attorneys: Peter J. Strianse, Nashville, Tennessee, for the appellant, Sharon R. Hurt. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Sharon R. Hurt, was convicted by a jury of first degree murder and conspiracy to commit first degree murder. The trial court sentenced Petitioner to serve consecutive sentences of life imprisonment and twenty-four years. On direct appeal, this court affirmed Petitioner's convictions and sentences. State v. James Murray, Marcie Murray and Sharon R. Hurt, No. 01C01-9702-CR- 00066, 1998 Tenn. Crim. App. LEXIS 1323, 1998 WL 934578 (Tenn. Crim. App., filed at Nashville, Dec. 30, 1998), perm. to app. denied (Tenn., June 28, 1999). On September 4, 2001, Petitioner filed a petition for post-conviction relief, in which she alleged the existence of new scientific evidence establishing her actual innocence. The State sought to dismiss the petition. The trial court dismissed the petition, finding that Petitioner failed to show the existence of new scientific evidence, and the petition was therefore barred by the statute of limitations. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hurtsharonr.wpd
STATE OF TENNESSEE v. CHARLES EUGENE JONES Court:TCCA Attorneys: Richard A. Spivey, Kinsport, Tennessee, for appellant, Charles Eugene Jones. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; Greeley Wells, District Attorney General; and Lewis Combs, Assistant District Attorney General; for appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Charles E. Jones, pled guilty to possession of marijuana with intent to sell or deliver, possession of drug paraphernalia, and unlawful possession of a weapon. For these convictions, the trial court classified the defendant as a Range I standard offender and ordered him to serve an aggregate one year sentence, consisting of concurrent sentences of one year for his possession of marijuana with intent to sell or deliver conviction, eleven months and twenty-nine days for his possession of drug paraphernalia conviction, and thirty days for his unlawful possession of a weapon conviction. The state agreed to suspend the two latter sentences, and the trial court sentenced the defendant to serve four years of probation and one year of incarceration, which was to be suspended after the defendant served ninety days in the county jail. The defendant now appeals his sentence, alleging (1) that the trial court erroneously modified his plea agreement with the state after it had been submitted to the trial court for approval, (2) that the trial court improperly denied his request to serve the entirety of his sentence on probation, and (3) that the trial court improperly weighed and applied various enhancement and mitigating factors. After reviewing the record, we find that none of the defendant's allegations merit relief and therefore affirm the defendant's sentence. http://www.tba.org/tba_files/TCCA/jonescharleseugene.wpd
MICHAEL ANTHONY SCRUGGS v. STATE OF TENNESSEE Court:TCCA Attorneys: Stacey M. Brackeen, Franklin, Tennessee, for the appellant, Michael Anthony Scruggs. Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, Assistant Attorney General; and Sharon Guffee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Michael Anthony Scruggs, pled guilty to forgery and theft under $500. The trial court ordered concurrent sentences of six years for the forgery and eleven months, twenty-nine days, for the theft. No appeal was taken. Later, the petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel. After a hearing, the post-conviction court denied relief, finding that the petitioner had failed to prove that his appointed counsel fell below the required level of competency. The judgment of the post-conviction court is affirmed. http://www.tba.org/tba_files/TCCA/scruggsmichael.wpd
STATE OF TENNESSEE v. JAMES MARIO STARNES Court:TCCA Attorneys: Larry F. Wallace, Jr., Shelbyville, Tennessee, (on appeal) for the Appellant, James Mario Starnes. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H. Findley, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael Randles, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, James Mario Starnes, was indicted by the Bedford County Grand Jury for first degree murder and especially aggravated robbery. Starnes pled guilty to attempted second degree murder and especially aggravated robbery. Following a sentencing hearing, Starnes received concurrent sentences of ten years, nine months for attempted second degree murder and twenty-five years for especially aggravated robbery. Starnes now appeals his especially aggravated robbery conviction, contending that the evidence is insufficient to establish his guilt for that offense. Because the error complained of was waived as a matter of law by Starnes' plea of guilty, this issue is not reviewable upon direct appeal. Accordingly, this appeal is dismissed. http://www.tba.org/tba_files/TCCA/starnesjamesmario.wpd
MICHAEL LYNN WALTON v. STATE OF TENNESSEE Court:TCCA Attorneys: David M. Hopkins, Nashville, Tennessee, for the appellant, Michael Lynn Walton. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Pamela Anderson, Assistant District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Michael Lynn Walton, appeals the trial court's denial of relief under his post-conviction petition. Petitioner alleged he received ineffective assistance of counsel at trial based on counsel's failure (1) to adequately advise Petitioner of the consequences of proceeding to trial; (2) to adequately cross-examine the victim; (3) to require the State to elect which offenses it was relying upon to support Petitioner's convictions; and (4) to appeal the State's failure to make an election. Based upon a thorough review of the record, we affirm the judgment of the post-conviction court denying Petitioner's claim for relief based on counsel's failure to adequately advise Petitioner about the potential consequences resulting from two rape convictions and failure to specifically address the victim's inconsistent statements at the second trial. However, we disagree with the post- conviction court's finding that counsel's failure to require an election of offenses was not deficient conduct and that Petitioner was not prejudiced by such conduct. Accordingly, the judgment is reversed, Petitioner is granted post-conviction relief, and the case is remanded to the trial court for retrial on the two counts of rape. http://www.tba.org/tba_files/TCCA/waltonmichaellynn.wpd
REGINOL L. WATERS v. STATE OF TENNESSEE Court:TCCA Attorneys: Ross E. Alderman, District Public Defender, and Jeffrey A. DeVasher, Assistant Public Defender, for the appellant, Reginol L. Waters. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner, Reginol L. Walters, was convicted of aggravated robbery, aggravated burglary, and two counts of aggravated rape and, while his direct appeal was pending, filed a petition pursuant to Tennessee Code Annotated section 40-30-403 requesting forensic analysis of DNA evidence. The post-conviction court dismissed the petition, as well as a petition to reconsider, concluding that the petitioner could not proceed with his petition while his direct appeal was pending. Following our review, we conclude that the applicable statute does not prohibit the petitioner from proceeding simultaneously with a direct appeal and a petition for analysis of DNA evidence. Accordingly, we reverse the order of the post-conviction court and remand for consideration of the petition. http://www.tba.org/tba_files/TCCA/watersreginoll.wpd

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