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TODAY'S OPINIONS: Friday, September 02, 2005
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.

00 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
02 - TN Court of Appeals
06 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
RICKEY W. PENDLETON v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY

Court: TCA

Attorneys:

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Rickey Pendleton.

Kevin C. Klein and J. Brooks Fox, Nashville, Tennessee, for the appellees, The MetropolitanGovernment of Nashville and Davidson County.

Judge: FARMER

Plaintiff seeks to recover from the Metropolitan Government of Nashville and Davidson Countyfor injuries received when he was arrested by officers of the Nashville Metropolitan Police. In his complaint, Plaintiff asserts that the actions of the officers constituted an assault andbattery, and further argues that the government is vicariously liable through respondeat superior. The trial court granted summary judgment in favor of the government after finding that a standalone allegation of respondeat superior was insufficient to sustain a claim under the Tennessee Governmental Tort Liability Act for damages resulting from intentional torts. Rather, the courtheld that Plaintiff needed to plead a separate and distinct claim of negligence on the part of the Metropolitan Government. Plaintiff has appealed the ruling of the trial court. Because we findthat the trial court correctly found that the GTLA requires a plaintiff to assert separate claims of negligence against governmental entities in cases arising from intentional torts, we affirm.

http://www.tba.org/tba_files/TCA/2005/pendletonr9205.pdf


THOM SHEPHERD v. MAXIMUS ENTERTAINMENT GROUP, INC.

Court: TCA

Attorneys:

Isham B. Bradley, Brentwood, Tennessee, for the appellant, Thom Shepherd.

Auborn L. Hager, III, Nashville, Tennessee, for the appellee, Maximus Entertainment Group,Inc.

Judge: KOCH

This appeal involves a dispute between a country music songwriter and a music publishingcompany arising out of an „exclusive co-publishing agreementš relating to the song „Riding with Private Maloneš and other works. Because of the parties‚ dispute, ASCAP declined to releaseroyalties for „Riding with Private Maloneš to either the songwriter or the publisher. The songwriter filed suit in the Chancery Court for Davidson County seeking a determination that thepublishing company had breached the agreement and that he was entitled to receive the royalties held by ASCAP because all the rights to „Riding with Private Maloneš had reverted to him.Both parties filed motions for summary judgment. The trial court concluded that the songwriter was not entitled to the withheld royalties. After the trial court denied his motion to amend hiscomplaint to seek money damages, the songwriter appealed. We have concluded that the trial court erred by holding that the songwriter was not entitled to the withheld royalties and that thetrial court properly denied the songwriter‚s motion to amend his complaint.

http://www.tba.org/tba_files/TCA/2005/shepherdt9205.pdf


STATE OF TENNESSEE v. ALLEN D. BALDWIN

Court: TCCA

Attorneys:

Garland Erguden (on appeal) and Donna Armstard (at trial), Memphis, Tennessee, for the appellant, Allen D. Baldwin.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephanie Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Shelby County Criminal Court jury convicted the appellant, Allen D. Baldwin, of aggravated robbery, a Class B felony, and robbery, a Class C felony. The trial court merged the robbery conviction into the aggravated robbery conviction and sentenced the appellant to ten years in the Department of Correction. On appeal, the appellant claims that the trial court erred by ruling that the State could impeach him with his prior convictions for robbery and theft if he chose to testify. Upon review of the record and the parties‚ briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/baldwina9205.pdf


STATE OF TENNESSEE v. PHILLIP W. DAILEY

Court: TCCA

Attorneys:

Stacey Nordquist, Assistant District Public Defender, Maryville, Tennessee (at trial); and JulieA. Rice, Appellate Defender, Knoxville, Tennessee (on appeal), for the Appellant, Phillip Wayne Dailey.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant AttorneyGeneral; and Ellen L. Bereze, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Phillip W. Dailey, appeals the sentencing decision of the Blount County CircuitCourt, which resulted in the imposition of an effective three-year sentence of incarceration. On appeal, Dailey challenges the trial court‚s denial of alternative sentencing. After review of therecord, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/daileyp9205.pdf


JAMES M. LOVEDAY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James R. Hickman, Jr., Sevierville, Tennessee, for the appellant, James M. Loveday.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, James M. Loveday, appeals the dismissal of his petition for post-conviction relief, arguing that the post-conviction court erred in finding he received the effective assistance of trial counsel. Because the record reveals that the petitioner filed his petition outside the one-year statue of limitations, we conclude that this case is not properly before this court. Accordingly, we dismiss the appeal for lack of jurisdiction.

http://www.tba.org/tba_files/TCCA/2005/lovedayj9205.pdf


STATE OF TENNESSEE v. BILLY MAC MONTGOMERY

Court: TCCA

Attorneys:

Frank Deslauriers, Covington, Tennessee, for the appellant, Billy Mac Montgomery.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Walt Freeland, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Billy Mac Montgomery, pled guilty in the Tipton County Circuit Court to driving under the influence (DUI), a Class A misdemeanor. The trial court sentenced him to eleven months and twenty-nine days in the county jail, to be suspended after serving forty-eight hours, and imposed a three hundred fifty dollar fine. Pursuant to the plea agreement, the appellant reserved the right to appeal a certified question of law challenging the trial court‚s denial of his motion to suppress. The State contends that the question presented is not dispositive and, therefore, that this court is without jurisdiction over the appeal. Upon review of the record and the parties‚ briefs, we conclude that the appeal should be dismissed.

http://www.tba.org/tba_files/TCCA/2005/montgomeryb9205.pdf


JESSICA RENEE RICHARDS v. STATE OF TENNESSEE AND JENNIFER LYNNE HORINE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Randall Boston, Crossville, Tennessee, for the appellants, Jessica Renee Richards and JenniferLynne Horine.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant AttorneyGeneral; William Edward Gibson, District Attorney General; and Kevin Poore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

In this consolidated appeal, the petitioners challenge the denial of post-conviction relief,contending that their respective trial counsel were ineffective in failing to advise them of authority that indicated that their conduct fell outside the scope of the statute. On appeal, theState concedes that the petitioners received ineffective assistance of counsel. Following thorough review, we agree. Therefore, we reverse the denial of post-conviction relief, set asidethe judgments, and remand the matter to the trial court.

http://www.tba.org/tba_files/TCCA/2005/richardsj9205.pdf


STATE OF TENNESSEE v. DAVID B. WALKER

Court: TCCA

Attorneys:

P. Richard Talley, Dandridge, Tennessee, for the Appellant, David B. Walker.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; AlC. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, David B. Walker, appeals the sentencing decision of the Cocke County CircuitCourt. Walker pled guilty to reckless vehicular homicide, a Class C felony, and was sentenced as a Range I standard offender to three years in the county jail. On appeal, Walker argues thatthe trial court should have imposed an alternative sentence. After review of the record, we find that the State has failed to rebut the presumption of Walker‚s entitlement to an alternativesentence. Accordingly, we remand the case to the trial court for the imposition of an appropriate alternative sentence.

http://www.tba.org/tba_files/TCCA/2005/walkerd9205.pdf


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