Opinion Flash

January 13, 2004
Volume 10 — Number 008

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


JERRY NEAL CARPENTER v. STATE OF TENNESSEE
WITH CONCURRING OPINION

Court:TSC

Attorneys:                          

Mark E. Stephens, District Public Defender, and John Halstead,
Assistant Public Defender, Knoxville, Tennessee, for the Appellant,
Jerry Neal Carpenter.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Mark A. Fulks, Assistant Attorney General, for
the appellee, State of Tennessee.

Judge: HOLDER

First Paragraph:

The sole issue before the Court in this post-conviction proceeding is
whether the petitioner, Jerry Neal Carpenter, was denied his
constitutional right to the effective assistance of appellate counsel.
 At trial, the jury was given instructions on first degree
premeditated murder, first degree felony murder, and robbery.  The
trial court declined trial counsel's request to provide the jury with
lesser- included offense instructions, and Carpenter was convicted of
first degree felony murder.  Carpenter argues that he was denied the
effective assistance of counsel on direct appeal because appellate
counsel failed to challenge the trial court's refusal to instruct the
jury on second degree murder as a lesser-included offense.  After
reviewing the record and applicable authority, we hold that Carpenter
has failed to establish his claim of ineffective assistance of
appellate counsel.  We therefore affirm the Court of Criminal Appeals'
judgment denying post-conviction relief.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TSC/carpenterj_con.wpd

LOUIS ERNEST CUNNINGHAM v. CHERYL LYNNE CHEATHAM CUNNINGHAM

Court:TCA

Attorneys:                          

Kay Farese Turner and Rachael Emily Putnam, Memphis, Tennessee, and
Jerry Charles Cox, Jackson, Tennessee, for the appellant, Louis Ernest
Cunningham.

Mary Jo Middlebrooks, Jackson, Tennessee, for the appellee, Cheryl
Lynne Cheatham Cunningham.

Judge: FARMER

First Paragraph:

This is the second appeal of this divorce case.  On the first appeal,
we remanded the case for a revaluation of Husband's medical practice
and reconsideration of the division of marital property and alimony
awards.  On remand, the trial court reduced the valuation of Husband's
medical practice and recalculated the alimony awards, but made no
change to the division of marital property and refused Husband's
request for a downward deviation from the child support guidelines. 
The court further ordered Husband to refinance the marital home. 
Husband appeals.  We affirm.

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

EASTMAN CHEMICAL COMPANY v. LOREN L. CHUMLEY

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Michael W. Catalano, Associate Solicitor
General, for the appellant, Loren L. Chumley, Commissioner of Revenue
of the State of Tennessee.

Charles A. Trost, Michael G. Stewart, and Brett R. Carter, Nashville,
Tennessee, for the appellee, Eastman Chemical Company.

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a chemical manufacturer and the
Tennessee Department of Revenue concerning whether the use tax
exemption for industrial machinery covers the catalysts used in its
manufacturing processes.  The manufacturer paid use tax during 1995,
1996, and 1997 and then sought a refund for those three tax years. 
After the Department denied its claim for a refund, the manufacturer
filed suit in the Chancery Court for Davidson County seeking a refund
of $1.25 million.  The court determined that the catalysts qualified
as industrial machinery and awarded the manufacturer a refund of the
use taxes paid on the catalysts.  The Department has appealed.  We
have determined that the catalysts do not fit within the industrial
machinery exemption in Tenn. Code Ann. S 67-6-102(a)(13)(A) (1998),
and, therefore, we reverse the trial court.

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

IN RE: ESTATE OF RICHARD L. LEATH, DECEASED, ET AL. v. DAVID K. LEATH

Court:TCA

Attorneys:                          

Charles M. Cary, Bolivar, Tennessee, for the appellant, David Leath.

John S. Wilder, Sr. And Lee S. Saunders, Somerville, Tennessee, for
the appellees, Michael Tapp, Bryant Tapp, Raymond Tapp, Richard Leath
and Sara Jane Leath.

Judge: FARMER

First Paragraph:

The pivotal dispute in this case concerns the payment of taxes,
including penalties and interest, incurred by the estate.  We dismiss
the appeal, finding that it is not an appeal from a final order.

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

ROY MCPHERSON v. FORTIS INSURANCE COMPANY, ET AL.

Court:TCA

Attorneys:                          

Michael M. Castellarin, Nashville, Tennessee, attorney for appellant,
Roy McPherson.

Louis Marshall Albritton and Laura C. Elliott, Nashville, Tennessee,
attorneys for appellee, Fortis Insurance Company.

Winston N. Harless, attorney for appellee, John Rutledge, Jr.

Judge: INMAN

First Paragraph:

An application for a policy of health insurance was filled out by a
secretary in the office of the agent for the insurance company
following a conversation by telephone with the plaintiff who later
signed the application without reading it.  Four of the questions were
concerned with the plaintiff's health history, all of which were
answered 'No', which were incorrect.  The company rescinded the policy
because of the misrepresentations.  In the meantime, the plaintiff
developed back problems, underwent surgery, and incurred considerable
medical expenses.  He filed this action, insisting that he answered
all questions truthfully, but that the secretary noted his answers
differently.  Summary  judgment was granted on motion of the
defendant.  We affirm.

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

PEGGY PISTOLE v. STEPHANIE D. HAYES, ET AL.

Court:TCA

Attorneys:                          

Joseph P. Bednarz, Jr., Nashville, Tennessee, for the Appellant, Peggy
Pistole

William G. McCaskill and W. Carl Spinning, Nashville, Tennessee, for
the Appellees, Stephanie D. Hayes and Jennifer C. Penney

Judge: GODDARD

First Paragraph:

In this appeal from the Circuit Court for Davidson County the
Plaintiff/Appellant, Peggy Pistole, argues that the Trial Court erred
in excluding witness testimony upon grounds that their identity   was
not disclosed in Ms. Pistole's response to interrogatories.  We
reverse the judgment of the Trial Court and remand.

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

STATE OF TENNESSEE v. HOWARD COLEMAN

Court:TCCA

Attorneys:                          

Juni S. Ganguli (on appeal), and Coleman W. Garrett and Kevin Reed (at
trial), Memphis, Tennessee, for the appellant, Howard Coleman.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Patience R. Branham and Dan Woody, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals his convictions for first degree murder and
especially aggravated robbery on the grounds of the insufficiency of
the evidence to support the convictions.  We conclude that the
evidence abundantly supported the convictions and affirm the same.

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

STATE OF TENNESSEE v. BARRY GRAHAM

Court:TCCA

Attorneys:                          

Gerald L. Melton, District Public Defender, and Russell N. Perkins,
Assistant District Public Defender, for the appellant, Barry Graham.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
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: GLENN

First Paragraph:

The defendant, Barry Graham, was convicted by a Rutherford County
Circuit Court jury of aggravated burglary, a Class C felony, and theft
of property under $500, a Class A misdemeanor.  He was sentenced by
the trial court as a Range III, persistent offender to concurrent
sentences of thirteen years for the aggravated burglary conviction,
and eleven months, twenty-nine days for the theft conviction, to be
served consecutively to a sentence in a previous case.  The sole issue
the defendant raises on appeal is whether the circumstantial evidence
at trial was sufficient to establish his guilt of the offenses.  We
conclude the evidence was sufficient for a rational jury to find him
guilty of aggravated burglary and theft under $500 beyond a reasonable
doubt.  Accordingly, we affirm the judgments of the trial court.

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

WHEATLEY JAMAR GRAHAM, III v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Benjamin C. Mayo, Jackson, Tennessee, for the appellant, Wheatley
Jamar Graham, III.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and Alfred Earls, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Wheatley Graham, appeals the trial court's denial of
his petition for post-conviction relief alleging that he was denied
the effective assistance of counsel.  The judgment of the post-
conviction court is affirmed.

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

MacARTHUR ENGLISH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Paul G. Whetstone, Mosheim, Tennessee, for the appellant, MacArthur
English.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney
General; and Victor J. Vaughn, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner appeals the denial of his petition for post-conviction
relief from his guilty pleas to two counts of felony reckless
endangerment, arguing that the post-conviction court erred in finding
he received the effective assistance of counsel and that his guilty
pleas were knowingly, voluntarily, and intelligently entered. 
Following our review, we affirm the denial of the petition.

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

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