Opinion Flash

April 14, 2004
Volume 10 — Number 072

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
05 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


ALICE JUNE ATKINS and CLARA OLLIE NEEDHAM v. STATE OF TENNESSEE

Court:TCA

Attorneys:                          

Mark S. Stapleton, Rogersville, Tennessee, for Alice June Atkins.

D. Scott Hurley, Knoxville, Tennessee, for Clara Needham.

W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for Appellees on Appeal
Only.

Judge: FRANKS

First Paragraph:

The Claims Commissioner awarded damages for personal injuries to
claimants on grounds the State was liable under Tennessee Code
Annotated S 9-8-307(a)(1)(I).  On appeal, we affirm.

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

NELSON KEITH FOSTER v. STATE OF TENNESSEE

Court:TCA

Attorneys:                          

Nelson Keith Foster, Whiteville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, and Tiffany Baker Cox, Assistant Attorney General,
Nashville, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

Plaintiff's civil rights action against an Assistant District Attorney
for prosecutorial misconduct was dismissed by the Chancellor.  On
appeal, we affirm.

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

HELAINE RICHBERGER v. THE WEST CLINIC, P.C., ET AL.

Court:TCA

Attorneys:                          

Al H. Thomas and Regina Guy of Memphis, For Appellant, Helaine
Richberger

David M. Cook and Gregory A. Ziskind of Memphis, For Appellees, The
West Clinic, P.C. and Sandy Miller, R.N.

Judge: CRAWFORD

First Paragraph:

Plaintiff filed medical malpractice action against clinic, treating
nurse, and supervising physician for injuries suffered as a result of
alleged negligent chemotherapy treatment.  Trial court granted summary
judgment in favor of defendants, finding that registered nurse was not
qualified as an expert on the issue of medical causation, and further
noting that the deposition testimony of lone expert physician failed
to establish that the plaintiff's injuries were caused by the
negligence of the defendants.  Plaintiff appeals.  We affirm.

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

GUY VARNADOE v. SHELTON MCGHEE, JR., ET AL.
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Adam M. Nahmias, Cordova, Tennessee, for the appellants, Shelton
McGhee, Jr. and wife, Sandra T. McGhee.

John D. Horne, Memphis, Tennessee, for the appellee, Guy Varnadoe.

Judge: FARMER

First Paragraph:

Following a remand by this Court, the trial court entered judgment in
favor of the Plaintiff in the amount of $10,464.80 plus post-judgment
interest from the time of filing of the trial court's original
judgment.  Defendants appeal.  We affirm.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/varnadoeg_dis.wpd

JAMES O. WARD v. SUSAN AMPFERER WARD

Court:TCA

Attorneys:                          

Daniel Loyd Taylor and Amy R. Harden, Memphis, For Appellant, Susan
Ampferer Ward

Larry Rice and Laura D. Rogers, Memphis, For Appellee, James O. Ward

Judge: CRAWFORD

First Paragraph:

Wife appeals trial court's ruling on remand that former husband did
not dissipate substantial marital assets through extramarital
relationship, specifically asserting that the trial court failed to
properly consider or apply the two-prong test set forth by the
appellate court for determining whether dissipation has occurred.  We
affirm.

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

STATE OF TENNESSEE v. ELIZABETH ALLISON

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Garry Brown, District Attorney General;
and William Bowen, Assistant District Attorney General, for the
appellant, the State of Tennessee.

Richard Gossum, Trenton, Tennessee, for the appellee, Elizabeth
Allison.

Judge: WOODALL

First Paragraph:

Petitioner, Elizabeth Allison, filed a petition for writ of habeas
corpus in which she alleged that her judgment of conviction was void
because the length of her sentence exceeded the range of sentence for
a Range I offender.  Relying upon the supreme court's decision in
McConnell v. State, 12 S.W.3d 795 (Tenn. 2000), the trial court
granted Petitioner habeas corpus relief.  The State now appeals and
argues that the trial court erred in granting Petitioner's petition
for writ of habeas corpus.  After a through review of this matter, we
reverse the judgment of the trial court, dismiss the petition, and
remand this matter for reinstatement of the judgment of conviction and
sentence previously imposed.

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

TIMOTHY JOHNS v. STATE OF TENNESSEE 
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Chesney Falk McAfee, Memphis, Tennessee, for the appellant, Timothy
Johns.

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

Judge: WILLIAMS

First Paragraph:

The petitioner appeals from the denial of his post-conviction
petition.  The petitioner had pled guilty to rape of a child under age
thirteen in exchange for a sentence of fifteen years at 100%.  On
appeal, the petitioner claims that he received ineffective assistance
of counsel.  The petitioner also contends that the post-conviction
court erred by denying his request to call two witnesses and by
denying his request to make an offer of proof regarding the testimony
of those witnesses. The post-conviction court also excluded certain
medical records of the victim.  After thorough review, we reverse the
post-conviction court's judgment and remand the case to the
post-conviction court for a new hearing.  At the new hearing, the
post-conviction court should admit the testimony of the petitioner's
two witnesses and the victim's medical records.  Should the court
exclude certain portions of the testimony, offers of proof shall be
allowed in accordance with Tennessee Rule of Evidence 103.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/johnstimothy_con.wpd

STATE OF TENNESSEE  v.  MARIO McNEAL

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender; Tony N. Brayton,
Assistant Public Defender; Donna Armstard, Assistant Public Defender;
and Dominique Gutierrez, Assistant Public Defender, for the appellant,
Mario McNeal.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Steve Crossnoe, Assistant District Attorney General; and
Andre Thomas, Assistant District Attorney General, for the appellee,
the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Mario McNeal, was convicted by a jury of five counts of
aggravated robbery and one count of aggravated assault.  Defendant was
sentenced to ten years confinement for each of the aggravated robbery
convictions and three years confinement for his aggravated assault
conviction.  The sentences were ordered to be served concurrently,
resulting in an effective sentence of ten years.  In this appeal as of
right, Defendant challenges the sufficiency of the convicting
evidence.  After a review of the entire record, we affirm the
judgments of the trial court.

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

STATE OF TENNESSEE v. TERRY S. PORTER

Court:TCCA

Attorneys:                          

William D. Massey (at trial and on appeal), Lorna S. McClusky (at
trial), and Gerald Skahan (at trial), Memphis, Tennessee, for the
appellant, Terry S. Porter.

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

Judge: RILEY

First Paragraph:

A Shelby County jury convicted the defendant of arson, a Class C
felony, and two counts of reckless homicide, Class D felonies.  The
trial court sentenced the defendant as a Range II multiple offender to
ten years confinement for the arson conviction and seven years for
each reckless homicide conviction with all sentences to run
consecutively, for an effective sentence of twenty-four years.  The
defendant challenges his sentence on appeal, arguing the trial court's
consideration of enhancement factors was improper and his sentences
should run concurrently.  We affirm the judgments of the trial court.

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

DONNA JEAN SEXTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Donna
Jean Sexton.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Kenneth Carson Baldwin, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Donna Jean Sexton, appeals from the judgment of the
Carter County Circuit Court denying her post-conviction relief from
her convictions for first degree murder and aggravated robbery.  The
petitioner contends that (1) the post-conviction court erred by
concluding that her amended, comprehensive petition was invalid
because it was not properly verified under oath; (2) she received the
ineffective assistance of counsel because her attorneys misinformed
her as to the length of her sentence for first degree murder; and (3)
her nolo contendere pleas were not knowingly, intelligently, and
voluntarily made because the trial court never informed her that she
was waiving constitutional rights and there was an insufficient
factual basis for the petitioner's pleas.  Although we conclude that
the amended petition was not properly verified, we conclude the trial
court correctly proceeded on all issues raised by the petitioner.  We
also hold that the trial court's findings and conclusions relative to
the petitioner's claims are affirmed.

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

STATE OF TENNESSEE v. AMY DENISE SUTTON

Court:TCCA

Attorneys:                          

Benjamin S. Dempsey, Huntingdon, Tennessee (on appeal); Guy T.
Wilkinson, District Public Defender; Billy R. Roe, Jr., Assistant
District Public Defender (at trial), for the appellant, Amy Denise
Sutton.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; G. Robert Radford, District Attorney
General; and Eleanor Cahill, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The defendant was convicted of theft of property valued over $1,000. 
The defendant was sentenced as a Range I standard offender to three
years in the Tennessee Department of Correction with one year of
incarceration and the remainder to be served on community corrections.
 On appeal, the defendant challenges the sufficiency of the evidence
to support her conviction and raises issues regarding the length and
manner of service of her sentence.  We remand to delete the reference
to the Department of Correction but otherwise affirm the judgment of
the trial court.

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

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