With Concurring Opinion

Court: TCA

Attorneys:

Arthur F. Knight, III, Knoxville, Tennessee, for the appellant, Francis Roy, M.D.

Harold D. Balcom, Jr., Kingston, Tennessee, for the appellee, William E. Bennett, M.D.

Judge: SUSANO

This cause of action arises out of statements made by Dr. William E. Bennett to PHP Companies, Inc. (“PHP”), a health insurance company, regarding Dr. Francis Roy. Dr. Roy alleges that, in connection with PHP’s review of Dr. Roy’s application to become an approved PHP provider, Dr. Bennett made written statements that reflected poorly on Dr. Roy’s work history and qualifications. Dr. Roy claims that these statements were false and defamatory. In response to Dr. Roy’s complaint, Dr. Bennett filed a motion for summary judgment, contending, among other things, that the document containing the allegedly defamatory statements is privileged and inadmissible under the Tennessee Peer Review Law, Tenn. Code Ann. Section 63-6-219 (2004). The court granted Dr. Bennett?s motion. We affirm.

http://www.tba2.org/tba_files/TCA/2008/royf_063008.pdf

D. MICHAEL SWINEY, J., filed a separate concurring opinion.
http://www.tba2.org/tba_files/TCA/2008/royf_con_063008.pdf

Court: TCCA

Attorneys:

Michael C. Murphy, Morristown, Tennessee for the Appellant, Stephen Shawn Bunch.

Denise Terry Stapleton, Morristown, Tennessee for the Appellee, Sonya Lynn Bunch.

Judge: SUSANO

After six years of marriage, Sonya Lynn Bunch (“Wife”) sued Stephen Shawn Bunch (“Husband”) for divorce. The Trial Court, inter alia, granted Wife a divorce, awarded Wife transitional alimony, awarded Wife attorney’s fees, and divided the parties’ marital property and debts. Husband appeals the division of marital property. We affirm.

http://www.tba2.org/tba_files/TCCA/2008/bunchs_063008.pdf

Court: TCCA

Attorneys:

James Kevin Cartwright, Clarksville, Tennessee, for the appellant, Larry Glenn Cauley.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; John W. Carney, District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

http://www.tba2.org/tba_files/TCCA/2008/cauleyl_063008.pdf

Court: TCCA

Attorneys:

William B. “Jake” Lockert, III, District Public Defender; and Christopher L. Young, Assistant District Public Defender, Ashland City, Tennessee, for the Appellant, Sherrie Ann Collins.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Carey Thompson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Sherrie Ann Collins, after being granted judicial diversion, appeals, as of right, the judgment of the Dickson County Circuit Court ordering her to pay restitution of $62,000 as a condition of her probation. The plea agreement provided that Collins would enter a “no contest conditional plea under 40-35-313 [judicial diversion]” and would receive a sentence of “three years suspended to probation.” The agreement further provided that the amount of restitution would be determined by the trial court. Following a hearing, the court found the victim’s pecuniary loss was $62,000; however, based upon Collins’ financial status and lack of ability to repay, she was ordered to pay $100 per month for the 36-month duration of the probationary period. Rather than being deferred, as required by the judicial diversion statute, a judgment of conviction was entered reflecting Collins’ conviction for Class C felony theft and a three-year Department of Correction sentence, which was noted as being suspended. Contrary to the restitution order previously entered, ordering restitution of $3,600, the judgment form ordered restitution of $62,000. Collins appeals the restitution award of $62,000 as recited in the judgment form. The State agrees that Collins was ordered to pay restitution of $3,600, not $62,000. Notwithstanding, the fact that a “non-issue” is presented, we are also confronted with the jurisdictional issue that no appeal of right, as provided by Rule 3, Tennessee Rules of Appellate Procedure, exists because Collins was granted judicial diversion, and, thus, no judgment of conviction has, or should have been, entered. Accordingly, the appeal is dismissed.

http://www.tba2.org/tba_files/TCCA/2008/collinss_063008.pdf

Court: TCCA

Attorneys:

William C. Killian, Jasper, Tennessee, for the appellant, Jackie Lynn Gray.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew Hamilton Smith, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Sherry Shelton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

A Marion County Circuit Court jury convicted the defendant, Jackie Lynn Gray, of two counts of driving under the influence (DUI) and speeding. The trial court merged the DUI convictions and imposed an effective sentence of 11 months and 29 days to be suspended upon the service of 20 days’ incarceration. In this appeal, the defendant contends that the trial court erred by denying his motion to suppress the results of the breathalyser test and that the sentence of 20 days’ incarceration is excessive. Discerning no error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/grayj_063008.pdf

Court: TCCA

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Donna Marie Ikner.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and William Jeff Blevins, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Donna Marie Ikner, pled guilty in the Knox County Criminal Court to one count of aggravated burglary, three counts of burglary, one count of felony theft, one count of reckless aggravated assault, eleven counts of burglary of a vehicle, and one count of credit card fraud and, pursuant to the plea agreement, received an effective sixteen-year sentence. On appeal, the appellant contends that the trial court committed reversible error by (1) refusing to allow her to serve her effective sentence in an alternative to confinement without offering her the opportunity to withdraw her guilty pleas and (2) refusing to allow her to make a statement in her own behalf at her sentencing hearing. Based upon the record and the parties’ briefs, we conclude that the trial court was not bound by the plea agreement to order alternative sentencing but that the trial court committed reversible error by failing to warn the appellant that she would not be allowed to withdraw her pleas if the trial court did not follow the State’s recommendation that she receive alternative sentencing. We also conclude that the trial court committed reversible error by not allowing the appellant to make a statement in her own behalf. The judgments of the trial court are vacated without prejudice to further proceedings on the underlying charges, and the case is remanded.

http://www.tba2.org/tba_files/TCCA/2008/Iknerd_063008.pdf

TN Attorney General Opinions

Date: 2008-06-25

Opinion Number: 08-121

http://www.tba2.org/tba_files/AG/2008/ag_08-121.pdf