Opinion Flash

November 12, 2003
Volume 9 — Number 207

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
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
04 New Opinion(s) from the Tennessee Court of Appeals
07 New Opinion(s) from the Tennessee Court of Criminal Appeals
05 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


RICHARD W. FELDMAN, M.D. v. TENNESSEE BOARD OF MEDICAL EXAMINERS

Court:TCA

Attorneys:                          

Frank J. Scanlon, William R. O'Bryan, Jr., Richard C. Rose, Nashville,
TN, Attorneys for Appellant

Paul G. Summers, Attorney General & Reporter, Sue A. Sheldon, Senior
Counsel, Nashville, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This is an appeal from a Chancery Court's review of an administrative
hearing concerning violations of the Tennessee General Rules and
Regulations Governing the Practice of Medicine for advertising.  For
the following reasons, we affirm the decision of the Tennessee Board
of Medical Examiners.

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

THAD GUERRA, ET AL. v. LEONARD PEEKS, ET AL.

Court:TCA

Attorneys:                          

Timothy W. Burrow and Christopher D. Cravens, Nashville, Tennessee,
attorneys for appellants, Thad Guerra and Darlene Guerra.

John T. Gwin, Mr. Juliet, Tennessee, attorney for appellees, Leonard
Peek and K&P, Inc.

David B. Scott, Nashville, Tennessee, attorney for appellees, Jim
Sellers and Crye-Leike, Inc.

Judge: INMAN

First Paragraph:

The permit for a sewage disposal system required that the driveway be
constructed along the lot line and be no wider than ten feet.  The
plaintiffs, during the course of constructing a residence on their
lot, did not locate the driveway along the lot line as required, and
made it twenty-five feet wide.  The system was disapproved by the
State unless the plaintiffs obtained a duplicate area, i.e., procured
by easement or purchase square footage equivalent to the footage
utilized by the mis-located, widened driveway.  The complaint was
filed more than three years after the disapproval by the State, the
date on when the cause of action accrued, and the action was
dismissed.  We affirm.

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

JUDY LONGMIRE, ET UX, v. THE KROGER COMPANY, D/B/A KROGER STORE NO.
581, ET AL.
CORRECTED OPINION

Court:TCA

Attorneys:                          

James T. Shea, IV, Knoxville, Tennessee, for Appellants.

Archie R. Carpenter, Knoxville, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

In this action for damages for injuries suffered when plaintiff fell
on defendant's premises, the Trial Court granted defendant summary
judgment.  On appeal, we vacate and remand.

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

PHILLIP WATSON, ET AL. v. METRO GOVT OF NASHVILLE AND DAVIDSON CO.,
TN., ACTING BY AND THROUGH THE NASHVILLE ELECTRIC SERVICE POWER BOARD
(NES), ET AL.

Court:TCA

Attorneys:                          

Thurman Thurston McLean, Madison, Tennessee, attorney for Appellants,
Phillip Watson and Linda Watson.

Aubrey B. Harwell, III, Aubrey B. Harwell, Jr., Eugene W. Ward, Gerald
Neenan and Laura Isreal Smith, Nashville, Tennessee, attorneys for
Appellee, Metropolitan Government of Nashville and Davidson County,
Tennessee, acting by and through the Nashville Electric Service Power
Board (NES).

Judge: INMAN

First Paragraph:

A truck snagged a cable television service line and tore it, together
with the power lines of NES which were directly above the television
line, from the plaintiffs' residence.  Liability was sought to be
fastened on NES on the theory that its service power lines were too
low.  NES relied on its immunity from suit under Tennessee Code
Annotated S 29-20-204(b) because it had no actual or constructive
notice of any alleged "dangerous or defective condition of a structure
or public improvement."  The trial court ruled that the response to
the motion was insufficient and dismissed the suit.  We affirm.

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

WAYFORD DEMONBREUN JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Gregory D. Smith, Franklin, Tennessee, Attorney for Appellant, Wayford
Demonbreun.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and Pamela Anderson, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Wayford Demonbreun Jr. appeals the Davidson County Criminal Court's
denial of his petition for post-conviction relief.  Claiming he did
not receive the effective assistance of counsel at trial and on
appeal, he requests a delayed appeal.  Because we are unpersuaded that
counsel rendered prejudicial ineffective assistance and because a
direct appeal is not the appropriate remedy for the claimed errors, we
affirm the lower court's denial of the claim.

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

STATE OF TENNESSEE v. JOSHUA A. FELTS

Court:TCCA

Attorneys:                          

John H. Henderson, District Public Defender, and Gene Honea, Assistant
Public Defender, for the appellant, Joshua A. Felts.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Ronald L. Davis, District
Attorney General; and Derek K. Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, Joshua A. Felts, was indicted for forty-four felonies
in three separate indictments, including nineteen counts of aggravated
burglary, a Class C felony; three counts of burglary, a Class D
felony; three counts of theft over $10,000, a Class C felony;
seventeen counts of theft over $1,000, a Class D felony; and two
counts of theft over $500, a Class E felony.  He entered an open plea
of guilty to all counts, in exchange for being sentenced as a Range I,
standard offender, and was sentenced to five years for each Class C
felony, three years for each Class D felony, and one year for each
Class E felony; the sentences of the same crimes, within the same
indictment, to run concurrently but consecutively to all other crimes,
for an effective sentence of twenty-one years.  The trial court
ordered the defendant's sentences in Indictment Nos. II-1201-398A and
II-202-072 to be served concurrently but consecutively to Indictment
No. II-1001-308 and a prior eighteen-year Rutherford County sentence. 
The defendant appeals, arguing that the trial court abused its
discretion in ordering consecutive sentences.  Following our review,
we affirm the judgments of the trial court but remand for entry of
corrected judgments in Indictment Nos. II-1201-398A and II-202-072.

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

STATE OF TENNESSEE v. HOWARD GLIDEWELL

Court:TCCA

Attorneys:                          

Robert Stovall, Columbia, Tennessee, for the Appellant, Howard
Glidewell.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner,
Assistant Attorney General;  Mike Bottoms, District Attorney General;
and Daniel Runde, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Howard Glidewell, appeals the Maury County Circuit
Court's revocation of his probation.  Because the lower court's
decision to revoke probation was grounded within that court's
discretion, we affirm the revocation.

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

STATE OF TENNESSEE v. SPIKE HEDGECOTH

Court:TCCA

Attorneys:                          

Larry M. Warner, Crossville, Tennessee, for the appellant, Spike
Hedgecoth.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Gary McKenzie and Anthony Craighead,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: WADE

First Paragraph:

The defendant, Spike Hedgecoth, was convicted of three counts of theft
of property valued at greater than $10,000, class C felonies, and two
counts of theft of property valued at greater than $1,000, class D
felonies.  See Tenn. Code Ann. SS 39-14-103, -105(3), (4).  The trial
court imposed a Range II sentence of ten years on each of the class C
felonies and eight years on each of the class D felonies.  The trial
court ordered that all of the class C felony sentences and one of the
class D felony sentences be served concurrently.  The remaining class
D felony sentence was to be served consecutively, for an effective
sentence of eighteen years.  In this appeal as of right, the defendant
alleges (1) that the evidence is insufficient to support his
convictions; (2) that the trial court erred by admitting into evidence
audio recordings of telephone calls placed by the defendant from the
Cumberland County jail; (3) that due to his intoxication, the
defendant was unable to assist in his defense; and (4) that the
sentence is excessive.  The judgments of the trial court are affirmed.

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

MARSHALL MOFFETT v. KEVIN MEYERS, WARDEN

Court:TCCA

Attorneys:                          

Marshall Moffett, pro se, Clifton, Tennessee.

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; and  Mike Bottoms, District Attorney
General, for the appellee, Kevin Myers, Warden.

Judge: SMITH

First Paragraph:

The pro se appellant appeals from the dismissal of his petition for
the writ of habeas corpus.  Finding that summary dismissal was
appropriate under the circumstances of this case, we affirm the
judgment of the lower court.

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

STATE OF TENNESSEE v. JOSEPH L. ROBINSON, JR.

Court:TCCA

Attorneys:                          

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher,
Assistant Public Defender (on appeal); and Jonathan Farmer, Assistant
Public Defender (at trial), for the appellant, Joseph L. Robinson, Jr.

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

Judge: GLENN

First Paragraph:

The defendant appeals the revocation of his probation, arguing that
the evidence was insufficient for the revocation and the trial court
erroneously considered as evidence both the victim's preliminary
hearing testimony and an earlier written statement she had made.  We
agree that the trial court erred in considering the victim's written
statement but conclude the error was harmless because other evidence,
including her preliminary hearing testimony, provided sufficient basis
to revoke the defendant's probation.  Accordingly, we affirm the order
of the trial court.

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

STATE OF TENNESSEE v. RANDALL LEE WILMOTH

Court:TCCA

Attorneys:                          

Edward Dewerff (at trial), Clarksville, Tennessee, and Patricia L.
Snyder (on appeal), Nashville, Tennessee, for the Appellant, Randall
Lee Wilmoth.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Helen Young, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Following a Montgomery County Circuit Court jury conviction of
attempted second-degree murder, the defendant, Randall L. Wilmoth,
appeals and claims that his conviction resulted from the denial of
effective assistance of counsel, that insufficient evidence supports
the conviction, and that cumulative errors deprived him of a fair
trial.  Discerning no errors or violations of the defendant's rights,
we affirm the judgment of the trial court.

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

Salary Increases for Local Legislative Bodies and Boards

Date: November 7, 2003

Opinion Number: 03-140                         

http://www.tba.org/tba_files/AG/2003/op140.pdf

Alternative Misdemeanor Jail Facilities

Date: November 7, 2003

Opinion Number: 03-141                         

http://www.tba.org/tba_files/AG/2003/op141.pdf

County Building Inspectors: Residential Rental Property

Date: November 7, 2003

Opinion Number: 03-142                         

http://www.tba.org/tba_files/AG/2003/op142.pdf

Probate Court Clerk in Unicoi County

Date: November 7, 2003

Opinion Number: 03-143                          

http://www.tba.org/tba_files/AG/2003/op143.pdf

Claiborne County Utility District

Date: November 7, 2003

Opinion Number: 03-144                        

http://www.tba.org/tba_files/AG/2003/op144.pdf

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