Opinion Flash

May 25, 2004
Volume 10 — Number 101

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


CHRIS BIRDWELL and wife, VIRGINIA BIRDWELL, v. DAVID PSIMER and PATTY
S. PSIMER

Court:TCA

Attorneys:                          

Raymond C. Conkin, Jr., Kingsport, Tennessee, for Appellants.

Rick J. Bearfield and Jason W. Blackburn, Johnson City, Tennessee, for
Appellee.

Judge: FRANKS

First Paragraph:

Action for Judgment on loan was defended on grounds defendant sold
note to plaintiffs.  The Trial Court held agreements violated statute
of frauds and plaintiff failed to prove loan.  On appeal, we reverse.

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

ANNA FAYE FLOYD, ET AL. v. JOHNNY TESAR, ET AL.

Court:TCA

Attorneys:                          

Johnny Tesar, Sevierville, Tennessee, pro se Appellant.

Marsell Tesar, Murfreesboro, Tennessee, pro se Appellant.

Wilburn Green, Sevierville, Tennessee, pro se Appellant.

R. B. Hailey, Sevierville, Tennessee, for the Appellees, Anna Faye
Floyd, Michael Everette Floyd, David Earl Floyd, by Linda Floyd,
Mother and Natural Guardian, and Robert Crocker.

Judge: SWINEY

First Paragraph:

Anna Faye Floyd, Michael Everette Floyd, and David Earl Floyd, minor
children, by and through their mother and natural guardian Linda Floyd
("Plaintiffs"), sued Johnny Tesar, Marsell Tesar, Jobey Green, Wilburn
Green, and Martha Lee ("Defendants") to quiet title to land in Sevier
County, Tennessee.  After a bench trial, the Trial Court held, inter
alia, that the minor Plaintiffs are the true owners of the land, and
that Defendants Johnny Tesar and Marsell Tesar had committed fraud
upon the Plaintiffs, knowingly clouded Plaintiffs' title, and
trespassed upon Plaintiffs' land.  The Trial Court also awarded
Plaintiffs damages and attorney's fees against Defendants Johnny Tesar
and Marsell Tesar.  Defendants appeal but raise no specific issues on
appeal and point to no error in the record.  We affirm.

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

WANDA MOODY v. TIMOTHY HUTCHISON, SHERIFF OF KNOX COUNTY

Court:TCA

Attorneys:                          

Mary Ann Stackhouse, Dean B. Farmer, and Keith L. Edmiston, Knoxville,
Tennessee, for the Appellant Timothy Hutchison, Sheriff of Knox
County.

Herbert S. Moncier, Knoxville, Tennessee, for the Appellee Wanda
Moody.

Judge: SWINEY

First Paragraph:

Knox County Commissioner Wanda Moody ("Plaintiff") made a Public
Records Act request for numerous documents in the possession of
Timothy Hutchison, the Sheriff of Knox County ("Defendant"). 
Defendant responded and provided some, but not all of the requested
documents.  Plaintiff eventually sought to have Defendant held in
criminal contempt claiming at least fifty of his responses to the
various document requests were false.  After a trial on the criminal
contempt charges, the Trial Court concluded Defendant made "at least
six" false representations which amounted to criminal contempt, and
imposed the maximum fine of $50 for each offense, for a total of $300.
 Defendant appeals claiming, among other things, that the proof failed
to establish that he was guilty beyond a reasonable doubt of criminal
contempt.  We affirm the judgment of the Trial Court.

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

LEROY MOSBY, ET AL. v. MEMPHIS AREA TRANSIT AUTHORITY, ET AL.

Court:TCA

Attorneys:                          

Irwin I. Cantor, Memphis, TN, for Appellants

John M. Moore, Memphis, TN, for Appellees

Judge: HIGHERS

First Paragraph:

This case arises out of a motor vehicle accident, which resulted in
the death of Deceased, a fare- paying passenger of a bus.  Plaintiffs,
Deceased's heirs, brought a wrongful death action against the driver
of the Cadillac in the bus/car collision and Defendants, the driver of
the bus and the Memphis Area Transit Authority.  At the close of
Plaintiffs' proof, the trial court granted Defendants' motion for
involuntary dismissal pursuant to Rule 41.02(2) of the Tennessee Rules
of Civil Procedure.  For the reasons stated below, we affirm the
decision of the trial court.

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

NICKO ALFREDO SANTIAGO, ET AL. v. JOY COOPER, ET AL.

Court:TCA

Attorneys:                          

Charles L. Hicks, Jason W. Pearcy, Camden, TN, for Appellant

B. Duane Willis, Jeffery G. Foster, Jackson, TN, for Appellees

Judge: HIGHERS

First Paragraph:

Plaintiff, a minor student, brought suit for damages arising from an
eye injury he sustained during recess at school.  The Defendants,
which are both governmental entities, moved for summary judgment,
arguing that they are immune from suit and that Plaintiff cannot, as a
matter of law, establish the elements of his negligence claim.  After
conducting a hearing, the trial court granted the Defendants summary
judgment on both grounds.  For the following reasons, we affirm the
ruling of the lower court.

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

STATE OF TENNESSEE v. MICHAEL ARMSTRONG

Court:TCCA

Attorneys:                          

W. Mark Ward, Memphis, Tennessee, for the appellant, Michael
Armstrong.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Steve Hall, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

On May 22, 2001, the defendant, Michael Armstrong, entered a plea of
nolo contendere to the offense of operating a motor vehicle after
having been declared a habitual motor vehicle offender and banned from
driving.  He was sentenced to one year in the work house and one year
of probation.  The defendant reserved a certified question for appeal
pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i).  This
question concerns the admissibility into evidence of the defendant's
statement to police that he had driven to the police station to report
two cars stolen from his employer.  This statement was made in
response to a police officer's question as to how the defendant had
gotten to the station.  This question was asked after the police
officer had found out the defendant was an habitual motor vehicle
offender whose Tennessee driver's license was revoked, but before any
Miranda warnings were given to the defendant.  The defendant's
response to this question formed the basis of his arrest.  The trial
court denied the defendant's motion to suppress concluding that the
defendant was not in custody at the time he answered the officer's
question.  We find that the record clearly indicates the defendant was
not in custody at the time he admitted he had driven to the police
station and that therefore no Miranda warnings were required.  The
judgment of the trial court is therefore AFFIRMED.

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

STATE OF TENNESSEE v. CARY RAY DAVIS

Court:TCCA

Attorneys:                          

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Cary Ray
Davis.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; Elizabeth Rice, District Attorney General;
and Colin Campbell, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The Tipton County Grand Jury indicted the defendant for one count of
aggravated assault.  After a jury trial, the defendant was found
guilty of aggravated assault.  He was sentenced to three years as a
Range I Standard Offender.  The trial court ordered the defendant to
serve 180 days in incarceration and the balance of the sentence in
community corrections.   The defendant argues two issues in his
appeal: (1) there was insufficient evidence to convict him of
aggravated assault because he was acting in self-defense; and (2) the
trial court erred in denying the defendant full probation.  We affirm
the actions of the trial court.

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

STATE OF TENNESSEE v. CLAY JONES
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

George Morton Googe, District Public Defender, Jackson, Tennessee, for
the Appellant, Clay Jones.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Thomas E. Williams, III, Assistant Attorney
General; James G. Woodall, District Attorney General; and Shaun Brown,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Clay Jones,  appeals from the judgment of the Madison
County Circuit Court revoking his community corrections sentences.  In
May of 2001, Jones pled guilty to two counts of sale of a counterfeit
controlled substance.  Pursuant to a  negotiated plea agreement, Jones
received concurrent two-year sentences with placement in the Community
Corrections Program.  On October 22, 2002, a warrant was issued
alleging violations of his behavioral contract.  However, the warrant
only listed one indictment number.  Following a revocation hearing, he
was found in violation of his community corrections sentences under
both indictment numbers.  On appeal, Jones raises the following issues
for our review: (1) whether, prior to waiver of his right to counsel
and subsequent inculpatory admissions at the revocation hearing, due
process required the trial court to inform him that he could be
resentenced to consecutive terms if his sentences were revoked; (2)
whether lack of proper notice of revocation deprived him of due
process; and (3) whether resentencing him to consecutive terms was
proper.  After review, we affirm the trial court's revocation of
Jones' sentence in the case in which notice was received.  However,
with regard to revocation of his sentence in which no notice was
received, we find that the proceedings failed to afford fundamental
due process protections and reverse the trial court's order of
revocation.

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

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

MARVIN ANTHONY MATTHEWS, PRO SE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Marvin Anthony Matthews, pro se.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: HAYES

First Paragraph:

The Petitioner, Marvin Anthony Matthews, appeals the trial court's
summary dismissal of his petition for post-conviction relief.  The
State has filed a motion requesting that this Court affirm the trial
court's denial of relief pursuant to Rule 20, Rules of the Court of
Criminal Appeals.  The petition for post-conviction relief is barred
by the statute of limitations.  Accordingly, the State's motion is
granted and the judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. FRED ALLEN OWENS

Court:TCCA

Attorneys:                          

Brandt Davis, Knoxville, Tennessee, for the appellant, Fred Allen
Owens.

Paul G. Summers, Attorney General and Reporter; Michelle R. Chapman,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Leland Price, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Fred Allen Owens, was convicted by a jury of second
degree murder.  The trial court sentenced the Defendant as a Range II
multiple offender to thirty-five years in the Department of
Correction.  In this direct appeal, the Defendant challenges several
of the trial court's evidentiary rulings and also challenges the
sufficiency of the evidence supporting his conviction.  We affirm the
judgment of the trial court.

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

EDDIE WILLIAMS, JR., PRO SE v. DAVID MILLS, WARDEN

Court:TCCA

Attorneys:                          

Eddie Williams, Jr., pro se.

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

Judge: WILLIAMS

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court by order pursuant to Rule 20, Rules of the
Court of Criminal Appeals.  The Petitioner appeals the trial court's
denial of habeas corpus relief.  The Petitioner fails to assert a
cognizable ground for habeas corpus relief.  Accordingly, the State's
motion is granted and the judgment of the trial court is affirmed.

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

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