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TODAY'S OPINIONS: Monday, October 10, 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
06 - TN Court of Appeals
08 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

ELAINE M. LARSON ET AL. v. TOMMY K. HALLIBURTON

Court: TCA

Attorneys:

Jacky O. Bellar, Carthage, Tennessee, for the appellant, Tommy K. Halliburton.

Debra L. Dishmon, Lebanon, Tennessee, for the appellees, Elaine M. Larson and Larry J. Larson.

Judge: KOCH

This appeal involves a dispute over the visitation rights of the maternal grandparents of four children. After the children‚s mother died, the relationship between their father and their maternal grandparents became strained. Eventually, the grandparents filed a petition in the Circuit Court for Smith County seeking to establish their right to visit their grandchildren. Following a bench trial, the trial court granted the petition and prescribed visitation rights for the grandparents. The children‚s father has appealed. We have determined that the trial court misapplied the rebuttable presumption in Tenn. Code Ann. § 36-6-306(a)(5) (Supp. 2004) and, therefore, the order granting the visitation rights to the grandparents must be vacated.

http://www.tba.org/tba_files/TCA/2005/larsone101005.pdf


ROKETA MASON, A MINOR BY YOLANDA MASON, AS NEXT FRIEND AND NATURAL MOTHER, AND YOLANDA MASON,INDIVIDUALLY v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE
CORRECTED OPINION - ORIGINALLY ISSUED 10-3-2005

Court: TCA

Attorneys:

John L. Kennedy and Lora Barkenbus Fox, Nashville, Tennessee, for the appellant, MetropolitanGovernment of Nashville and Davidson County, Tennessee.

Joseph P. Bednarz, Sr., and Joseph P. Bednarz, Jr., Nashville, Tennessee, for the appellees,Roketa Mason and Yolanda Mason.

Judge: CLEMENT

Plaintiff, a tenth grade high school student, was attacked while riding the school bus. She wasseriously injured by another student using a razor provided by the school as part of the cosmetology curriculum. Plaintiff filed this action against the school system alleging negligencefor failure to properly supervise students using dangerous instructional instruments and for violation of the school‚s zero tolerance policy by permitting students to take razors to and fromschool, thereby permitting the attacker to have the razor on the school bus where the attack occurred. Following a bench trial, plaintiff was awarded a judgment of $80,000 from whichdefendant appeals. Finding the school system is not liable for the injuries suffered by the plaintiff, we vacate the judgment and remand with instructions to enter an order dismissing theaction.

CORRECTED OPINION
http://www.tba.org/tba_files/TCA/2005/masonr101005.pdf


MARK JAY SCOTT McLEAN v. BOURGET‚S BIKE WORKS, INC.

Court: TCA

Attorneys:

G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Mark Jay Scott McLean.

Jeffrey M. Beemer and Trajan H. Carney, IV, Nashville, Tennessee, for the appellee, Bourget‚s Bike Works, Inc.

Judge: KOCH

This appeal involves a dispute arising from the sale of a used motorcycle. After discovering that the motorcycle was not new, the purchaser filed suit and then settled with the dealer from whom he had purchased the motorcycle. Later, the purchaser filed suit against the motorcycle‚s manufacturer in the Circuit Court for Davidson County alleging that the motorcycle‚s aluminum frame was defective. The trial court granted the manufacturer‚s summary judgment motion and dismissed the purchaser‚s products liability and Tennessee Consumer Protection Act claims. The purchaser has appealed. We have determined that the manufacturer was entitled to a summary judgment on grounds other than those relied upon by the trial court.

http://www.tba.org/tba_files/TCA/2005/mcleanm101005.pdf


CITY OF MEMPHIS, a Municipal Corporation v. THE CIVIL SERVICE COMMISSION OF THE CITY OF MEMPHIS, ET AL.

Court: TCA

Attorneys:

Sara L. Hall, City Attorney, and Carmalita Carletos-Drayton, Assistant City Attorney, for theAppellant, City of Memphis.

Thomas E. Hansom, Memphis, Tennessee, for the appellee, Jack Vincent.

Judge: FARMER

The City of Memphis terminated the employment of Jack Vincent, a police officer. The CivilService Commission reversed, and Memphis appealed to the Shelby County Chancery Court under a writ of certiorari. The chancery court affirmed the decision of the Commission, andMemphis appeals. We reverse.

http://www.tba.org/tba_files/TCA/2005/memphis101005.pdf


CLIFFORD W. RUSSELL, ET AL. v. SUSAN I. RUSSELL

Court: TCA

Attorneys:

Luther Wright, J. and Joycelyn Stevenson of Nashville, Tennessee for Appellants, Clifford W Russell and John Hall Russell

Carrol D. Kilgore of Nashville, Tennessee for Appellee, Susan I. Russell

Judge: CRAWFORD

This case involves the contest of a will on the grounds of lack of testamentary capacity. The Probate Court, Davidson County, found that the evidence failed to establish that the Testator lacked the requisite testamentary capacity to execute his will. We affirm.

http://www.tba.org/tba_files/TCA/2005/russellc101005.pdf


GARY EDWIN BENNETT, ET AL. v. TREVECCA NAZARENE UNIVERSITY

Court: TCA

Attorneys:

Timothy T. Ishii, Nashville, Tennessee, for the appellants, Gary Edwin Bennett and Thomas W. Cantley.

Peggy L. Tolson, Brentwood, Tennessee, for the appellee, Trevecca Nazarene University.

Judge: CAIN

Plaintiffs, certified low voltage electricians, filed a personal injury action against university for negligently informing them that university‚s switchgear cabinet was low voltage, when in fact, it was high voltage, for failing to provide a conspicuous high voltage warning sign on the high voltage switchgear and for obscuring the manufacturer‚s identifying product plate. Plaintiffs suffered injuries as a result of university‚s alleged negligence. The Circuit Court of Davidson County, Tennessee, Judge Walter C. Kurtz granted university‚s motion for summary judgment and Plaintiffs appealed. The decision of the trial court is reversed and case remanded.

http://www.tba.org/tba_files/TCA/2005/trevecca101005.pdf


ERICK BAILEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Richard D. Dumas, Jr., Nashville, Tennessee, for the appellant, Erick Bailey.

Paul G. Summers, Attorney General and Reporter; and Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, Erick Bailey, was found guilty of second degree murder and felony murder. His conviction of second degree murder was merged into his conviction of felony murder, and he was sentenced to life imprisonment. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel were ineffective. The post-conviction court denied the petition, and the petitioner appeals. Upon review of the record and the parties‚ briefs, we affirm the judgment of the post-conviction court.

http://www.tba.org/tba_files/TCCA/2005/baileye101005.pdf


JOHN E. CARTER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John E. Carter, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General,for the Appellee, State of Tennessee.

Judge: WITT

The petitioner, John E. Carter, appeals from the trial court's order construing his untitledpleading as one for writ of habeas corpus and denying relief. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20 of the Rulesof the Court of Criminal Appeals. The petitioner has failed to establish that he is entitled to habeas corpus relief. Accordingly, the state's motion is granted and the judgment of the trialcourt is affirmed.

http://www.tba.org/tba_files/TCCA/2005/carterj101005.pdf


KEVIN JERRON COOK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Cynthia M. Fort, Nashville, Tennessee, for the appellant, Kevin Jerron Cook.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

In this post-conviction action the petitioner contends that: (1) trial counsel was ineffective in failing to advise him of the effect his plea would have on his eligibility for rehabilitative programs and less restrictive forms of confinement during his federal sentence; and (2) his plea was involuntary and unknowing. Following our review, we conclude that counsel was not ineffective for failing to advise the petitioner of a collateral consequence of his plea and that his plea was knowingly and voluntarily entered. Therefore, we affirm the denial of post-conviction relief.

http://www.tba.org/tba_files/TCCA/2005/cookk101005.pdf


STATE OF TENNESSEE v. ROBERT L. GIBSON

Court: TCCA

Attorneys:

Frank Lannom and Melanie R. Bean, Lebanon, Tennessee, for the appellant, Robert Louis Gibson.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Robert N. Hibbett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The Wilson County Grand Jury indicted the defendant, Robert Louis Gibson, on one count of sexual battery, a Class E felony. The defendant filed an application for pretrial diversion, which the prosecutor denied. On petition for writ of certiorari, the trial court affirmed the prosecutor‚s decision to deny pretrial diversion. In this interlocutory appeal, the defendant contends that the prosecutor abused his discretion in denying his application for pretrial diversion by improperly and unfairly weighing the factors used to determine whether diversion should be granted. Based upon our review, we affirm the order of the trial court.

http://www.tba.org/tba_files/TCCA/2005/gibsonr101005.pdf


TERRANCE B. SMITH v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jeffery L. Stimpson, Munford, Tennessee, for the Appellant, Terrance B. Smith.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant AttorneyGeneral; Elizabeth T. Rice, District Attorney General; and James Walter Freeland, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Terrance B. Smith, appeals the denial of his petition for post-conviction relief bythe Tipton County Circuit Court. In 1998, Smith was convicted by a jury of first degree murder and sentenced to life in prison. On appeal, he argues that he was denied the effective assistanceof counsel based upon: (1) trial counsel‚s conflicts in representing different interests at trial and (2) the denial of his fundamental right to testify. After review of the record, Smith‚s claim ofconflicts of interest is without merit; however, we conclude that Smith was denied his right to testify at trial. Nonetheless, after review, we find the error harmless. Accordingly, the judgmentof the post-conviction court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/smitht101005.pdf


STATE OF TENNESSEE v. ROBERTO VASQUES, LUIS D. VIDALES ROMERO, KEVIN JOEL HERNANDEZ, LUIS MARTIN VASQUEZ, HECTOR ALONZO, AND VICTOR HUGO GARZA

Court: TCCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General, Victor S. (Torry) Johnson, III, District Attorney General; and John C. Zimmerman, Assistant District Attorney General, for the appellant, State of Tennessee.

Jerry Gonzalez, Nashville, Tennessee, for the appellee, Roberto Vasques; C. LeAnn Smith, Nashville, Tennessee, for the appellee, Luis D. Vidales Romero; James O. Martin, III, Nashville, Tennessee, for the appellee, Kevin Joel Hernandez; John G. Oliva, Nashville, Tennessee, for the appellee, Luis Martin Vasquez; David M. Hopkins, Nashville, Tennessee, for the appellee, Hector Alonzo; and Dwight E. Scott, Nashville, Tennessee, for the appellee, Victor Hugo Garza.

Judge: TIPTON

A Davidson County Criminal Court jury convicted the defendants of conspiracy to possess with intent to sell more than seventy pounds of marijuana within one thousand feet of a school zone, a Class A felony, and the trial court sentenced each of them to fifteen years confinement at one hundred percent in the Department of Correction. The defendants appealed their convictions, with various defendants claiming that the evidence was insufficient, that the Tennessee Drug Free School Zone Act was unconstitutional, that the trial court erred in instructing the jury, that the state‚s continued reference to the defendants‚ ethnicity was overly prejudicial, that the state‚s introduction of evidence concerning the presence of weapons was irrelevant and overly prejudicial, and that the jury‚s verdict lacked unanimity. However, before oral argument, this court stayed the appellate proceedings based upon the defendants filing petitions for coram nobis relief in the trial court. The trial court thereafter granted the petitions for coram nobis relief and vacated the defendants‚ convictions, and the state now appeals, claiming the trial court improperly granted coram nobis relief to each defendant. In these consolidated cases, we affirm the trial court‚s coram nobis judgment as to the defendants Luis Vasquez and Victor Garza but reverse the judgment as to the other defendants. On direct appeal of the underlying convictions, we hold the trial court erred in not instructing the jury about facilitation but that the error did not affect a substantial right of Roberto Vasques, Luis D. Vidales Romero, Kevin Joel Hernandez, or Hector Alonzo, and we affirm their convictions.

http://www.tba.org/tba_files/TCCA/2005/vasquesr101005.pdf


STATE OF TENNESSEE v. LORENZO BENE WARE

Court: TCCA

Attorneys:

George H. Thompson, III, Nashville, Tennessee, for the appellant, Lorenzo Bene Ware.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Lorenzo Bene Ware, was convicted by a Davidson County jury of two counts of sexual battery by an authority figure, class C felonies. The trial court denied the defendant‚s request for probation and sentenced him to serve concurrent terms of three years in confinement. On appeal, the defendant argues that the trial court erred in denying his request for probation. After considering the record and the relevant authorities, we conclude the defendant has waived this issue and affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/warel101005.pdf


STATE OF TENNESSEE v. JOHN L. WRIGHT

Court: TCCA

Attorneys:

Michael D. Cox (on appeal) and Bobby Sands (at trial) , Columbia, Tennessee, for the Appellant, John L. Wright.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; T. Michel Bottoms, District Attorney General; Dan Runde, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, John L. Wright, was convicted of driving under the influence („DUIš), fifth offense, and of violating the implied consent law. The Defendant now appeals, contending that: (1) the trial court erred when it denied his motion to suppress statements the Defendant made to the police; (2) the trial court improperly concluded that the Defendant‚s arrest was lawful; and (3) the evidence is insufficient to sustain his DUI conviction. Finding that there exists no reversible error, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/2005/wrightj101005.pdf


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