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October 15, 1999
Volume 5 -- Number 143
What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts.
- This Issue (IN THIS ORDER):
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New Opinion(s) from the Tennessee Supreme Court |
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New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel |
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New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court |
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New Opinion(s) from the Tennessee Court of Appeals |
| 06 |
New Opinion(s) from the Tennessee Court of Criminal Appeals |
| 00 |
New Judicial Ethics Opinion(s) |
| 00 |
New Formal Ethics Opinion(s) from the Board of Professional Responsibility |
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Lucian T. Pera
Editor-in-Chief, TBALink
LEON DISHMON
VS.
SHELBY STATE COMMUNITY COLLEGE
Court:TCA
Attorneys:
For Plaintiff/Appellee: For Defendant/Appellant:
Harold D. Archibald Paul G. Summers
Archibald & Halmon Attorney General and Reporter
Memphis, Tennessee
Mary E. Walker
Assistant Attorney General
Judge:KOCH
First Paragraph:
This appeal involves a dispute over back pay between Shelby State
Community College and its Dean of Student Affairs. After the college
president reinstated him approximately three years following his
termination, the dean filed a petition under the Tennessee Uniform
Administrative Procedures Act in the Chancery Court for Davidson
County seeking back pay. The trial court conducted a bench trial and
concluded that the dean was entitled to back pay. The college asserts
on this appeal that its decision not to grant the dean back pay was
not arbitrary and that the dean had not proved that he suffered any
economic loss as a result of his termination. We have determined that
the trial court did not have subject matter jurisdiction over this
claim, and, therefore, we vacate the judgment and remand the case with
directions that it be dismissed.
http://www.tba.org/tba_files/TCA/Dishmonl_opn.wpd
LORETTA FOWLER
VS.
RONNIE DALE FOWLER
Court:TCA
Attorneys:
For Plaintiff/Appellee: For Defendant/Appellant:
Daryl M. South Patrick J. McHale
Murfreesboro, Tennessee Murfreesboro, Tennessee
Judge: KOCH
First Paragraph:
This appeal involves the division of the marital estate following a
relatively short marriage. The husband asserts that the manner in
which the Chancery Court for Rutherford County valued and divided the
marital property and marital debts was inequitable and unsupported by
the evidence. We have determined that the trial court's disposition
of the economic issues in this case is amply supported by the
evidence, and therefore, we affirm the divorce decree in accordance
with Tenn. Ct. App. R. 10(b).
http://www.tba.org/tba_files/TCA/fowlerl_opn.wpd
PHILLIP HALL
VS.
TENNESSEE BOARD OF PAROLES
Court:TCA
Attorneys:
For the Appellant: For the Appellee:
PHILLIP HALL PAUL G. SUMMERS
Pro Se Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
STEPHANIE R. REEVERS,
Senior Counsel
Civil Rights & Claims Division
425 Fifth Avenue North
Second Floor, Cordell Hull Building
Nashville, TN 37243
Judge: SWINEY
First Paragraph:
Phillip Hall (Appellant), a prison inmate, filed a Writ of Common Law
Certiorari and Statutory Certiorari in the Circuit Court of Davidson
County seeking relief from a decision of the Board of Paroles denying
him parole. Appellant also filed in the Trial Court a Motion For
Appointment Of Counsel. The Trial Court granted Appellee's Motion To
Dismiss and denied Appellant's Motion For Appointment Of Counsel.
Appellant, upon receipt from the Davidson County Circuit Court Clerk's
office of a Statement Of Due And Unpaid Court Costs, filed his Motion
To Vacate Judgment And Bill Of Costs which was denied by the Trial
Court. Appellant filed this appeal where we are faced with two
issues: (1) Whether the Trial Court erred in denying Appellant's
Motion To Vacate Judgment And Bill Of Costs; and (2) Whether the Trial
Court erred in denying Appellant's Motion For Appointment Of Counsel.
For the reasons stated in this Opinion, we affirm the judgment of the
Trial Court.
http://www.tba.org/tba_files/TCA/HallP_opn.wpd
JAMES L. JACKSON
VS.
TENNESSEE DEPARTMENT OF CORRECTIONS, DONAL CAMPBELL, COMMISSIONER
Court:TCA
Attorneys:
James L. Jackson, Pro Se
S.T.S.R.C.F.
Route 4, Box 600
Pikeville, TN 37367
Petitioner
Paul G. Summers
Attorney General and Reporter
AND
Arthur Crownover, II
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0488
Attorneys for Respondent
Judge: GODDARD
First Paragraph:
This is a petition seeking a writ of certiorari filed by James L.
Jackson, an inmate of the Penal System of this State, Pro Se. The
caption lists as Respondents "Tennessee Dept. of Corrections, Donal
Campbell (Commissioner), Respondent." The case proceeded, however, as
if only the Department of Corrections was a party Defendant and our
opinion will be based on this assumption.
http://www.tba.org/tba_files/TCA/jacksonj_opn.wpd
TIMOTHY SCOTT McCAIN
VS.
LISA MARIE GRIM
Court:TCA
Attorneys:
For Plaintiff/Appellee: For Defendant/Appellant:
Phillip M. George Charles G. Ward
Smyrna, Tennessee Murfreesboro, Tennessee
Judge: KOCH
First Paragraph:
This appeal presents a post-divorce dispute over the custody of two
children. When the parties were divorced in 1994 in the Chancery
Court for Rutherford County, the father agreed that the mother should
have sole custody of the children. Three years later, after learning
that the mother and her new husband planned to move to North Carolina,
the father petitioned for a change of custody. Following a bench
trial, the trial court concluded that there had been a material change
in the children's circumstances and that the father was comparatively
more fit to have custody of the children. Accordingly, the trial
court changed the custody of the children to the father. The mother
asserts on this appeal that the evidence does not support the trial
court's decision to change custody. We agree and, therefore, reverse
the trial court's order awarding custody of the children to the
father.
http://www.tba.org/tba_files/TCA/McCaints_opn.wpd
ISHAAQ (A/K/A ALONZO STEWART)
VS.
TENNESSEE DEPARTMENT OF CORRECTION
Court:TCA
Attorneys:
ISHAAQ (Fsn. Alonzo Stewart)
#98868, RMSI., U3-D-207
7475 Cockrill bend Ind. Road
Nashville, Tennessee 37209-1010
pro se
PAUL G. SUMMERS, Attorney General and Reporter,
MICHAEL E. MOORE, Solicitor General, and
MICHAEL L. HAYNIE, Assistant Attorney General
Civil Rights and Claims Division
425 Fifth Avenue North
Second Floor, Cordell Hull Building
Nashville, Tennessee 37243-0488
Attorney for Respondent-Appellee
Judge: FRANKS
First Paragraph:
In this action an inmate petitioned "for declaratory judgment/judicial
review" and alleged "that 'in-house' policies fall short" of official
policies required by law, i.e., he was deprived of having proper food
handlers and was deprived of all the meals he was entitled. Also, a
grievance "that he filed" had been lost.
http://www.tba.org/tba_files/TCA/stewarti_opn.wpd
STATE OF TENNESSEE
VS.
JAMES FRAZIER
Court:TCCA
Attorneys:
For Appellant For Appellee
Scott Daniel John Knox Walkup
P.O. Box 960 Attorney General and Reporter
Murfreesboro, TN 37133 425 Fifth Avenue North
Nashville, TN 37243-0493
Daryl J. Brand
Associate Solicitor General
425 Fifth Avenue North
Nashville, TN 37243-0493
David Puckett
Assistant District Attorney General
303 Rutherford County Judicial
Building
Murfreesboro, TN 37130
Judge: OGLE
First Paragraph:
On January 17, 1997, the appellant, James Frazier, was indicted by a
Cannon County Grand Jury for twenty-four counts of raping his minor
daughter, GF, and twelve counts of incest with his daughter, the
offenses occurring in 1995. On August 28, 1997, the appellant
submitted a petition to enter pleas of guilt to six counts of incest
in return for the State's dismissal of the remaining counts of the
indictment and in return for consecutive sentences of three years for
each conviction of incest. The parties agreed that the trial court
would determine whether the appellant should receive a sentencing
alternative to incarceration. Following a sentencing hearing, the
trial court accepted the plea agreement, imposing an effective
sentence of eighteen years in the Tennessee Department of Correction,
but declined to grant alternative sentencing. On appeal, the
appellant challenges both the imposition of consecutive sentencing and
the trial court's denial of an alternative sentence. Following a
thorough review of the record, we affirm the judgment of the trial
court.
http://www.tba.org/tba_files/TCCA/frazierjr_opn.WPD
STATE OF TENNESSEE
VS.
JASON KENNEDY FRAZIER
Court:TCCA
Attorneys:
FOR THE APPELLANT:
THOMAS E. NANCE
200 East Depot Street
P.O. Box 103
Shelbyville, TN 37162
FOR THE APPELLEE:
PAUL G. SUMMERS
Attorney General and Reporter
ELIZABETH B. MARNEY
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM MICHAEL McCOWN
District Attorney General
MICHAEL D. RANDLES
Assistant District Attorney General
Bedford County Courthouse
One Public Square, Suite 100
Shelbyville, TN 37160- 3953
Judge: RILEY
First Paragraph:
A Bedford County jury found defendant guilty of theft of property over
$1,000, a Class D felony. In this appeal as of right, defendant
claims the evidence was insufficient to sustain the conviction. We
find the evidence is sufficient to support the verdict and AFFIRM the
judgment below.
http://www.tba.org/tba_files/TCCA/FRAZIER_wpd.WPD
AVERY HASTON NORRIS, JR.
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
RICHARD McGEE PAUL G. SUMMERS
601 Woodland Street Attorney General & Reporter
Nashville, TN 37206
LUCIAN D. GEISE
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
JOHN C. ZIMMERMAN
Assistant District Attorney General
222 Second Avenue North, Suite 500
Nashville, TN 37201-1649
Judge: GLENN
First Paragraph:
The petitioner, Avery Haston Norris, Jr., appeals as of right from the
denial of his petition for post-conviction relief by the Davidson
County Criminal Court in which he claimed violation of his
constitutional right to effective assistance of counsel as provided by
both the Sixth Amendment to the Constitution of the United States and
Article I, Section 9 of the Constitution of the State of Tennessee.
Petitioner argues his judgment should be overturned because he was
misinformed by his attorney as to the class and range of punishment of
one of the six felony counts for which he was indicted and to which he
pleaded guilty; and that counsel failed to represent him zealously
during plea negotiations and at the sentencing hearing. Based upon
our review of the record, we affirm the ruling of the trial court
denying the petition.
http://www.tba.org/tba_files/TCCA/NORRISAH_wpd.WPD
DANIEL LeMAY SANDERS
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY D. SMITH PAUL G. SUMMERS
One Public Square, Suite 121 Attorney General & Reporter
Clarksville, TN 37040
GEORGIA BLYTHE FELNER
Asst. Attorney General
John Sevier Bldg.
425 Fifth Ave., North
Nashville, TN 37243-0493
JOHN W. CARNEY
District Attorney General
DENT MORRISS
Asst. District Attorney General
500 South Main St.
Springfield, TN 37172
Judge: PEAY
First Paragraph:
Pursuant to plea negotiations, the petitioner pled guilty to
first-degree murder and received an agreed sentence of life without
parole. He timely filed a petition for post-conviction relief,
arguing that his plea was unknowing and involuntary due to the
ineffective assistance of trial counsel. After a hearing, the
post-conviction court found that the petitioner received effective
assistance of counsel and that his plea was knowingly and voluntarily
entered. The petitioner now appeals. Finding no merit to his
argument, we affirm the post-conviction court's order.
http://www.tba.org/tba_files/TCCA/SANDERSD_wpd.WPD
ALVIN L. SMITH
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JULIE A. MARTIN PAUL G. SUMMERS
P. O. Box 426 Attorney General & Reporter
Knoxville, TN 37901-0426
(On Appeal) ELIZABETH B. MARNEY
Assistant Attorney General
DONNA L. HARGROVE 425 Fifth Avenue North
District Public Defender Nashville, TN 37243-0493
ANDREW J. DEARING, III WILLIAM MICHAEL McCOWN
Assistant Public Defender District Attorney General
105 South Main Street
P. O. Box 1119 WEAKLEY E. BARNARD
Fayetteville, TN 37334-1119 Assistant District Attorney General
(At Trial) 215 East College Street
P. O. Box 878
Fayetteville, TN 37334-0878
Judge: GLENN
First Paragraph:
On September 16, 1987, a Lincoln County jury convicted the petitioner,
Alvin L. Smith of aggravated rape, aggravated kidnapping, armed
robbery with a deadly weapon, and perpetration of a crime against
nature. This Court affirmed the petitioner's conviction and modified
his sentence on August 22, 1989. The Tennessee Supreme Court denied
permission to appeal on November 6, 1989. The petitioner filed a
petition for post-conviction relief on March 9, 1998. On June 23,
1998, the trial court dismissed the petition for failure to file
within the statute of limitations. The petitioner appeals this
decision, claiming the statue of limitations was tolled because he was
not legally competent for any meaningful period from November 6, 1989
to March 9, 1998. Based on our review of this matter, we affirm the
decision of the trial court.
http://www.tba.org/tba_files/TCCA/SMITHAL_wpd.WPD
RICHARD LEE WALINE
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Thomas H. Potter Paul G. Summers
100 Thompson Lane Attorney General and Reporter
Nashville, TN 37211 425 Fifth Avenue North
Nashville, TN 37243-0493
Lucian D. Geise
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243-0493
Judge: OGLE
First Paragraph:
The petitioner, Richard Lee Waline, appeals the dismissal of his
petition for post-conviction relief by the Davidson County Criminal
Court on May 18, 1998. On July 13, 1995, the petitioner pled guilty
in the Davidson County Criminal Court to attempted rape of a child and
aggravated sexual battery, the offenses occurring in 1994. Pursuant
to a plea agreement, the trial court imposed consecutive, Range I
sentences of eight years incarceration in the Tennessee Department of
Correction. On May 20, 1996, the petitioner filed the instant
petition for post-conviction relief. The post-conviction court
appointed counsel and conducted an evidentiary hearing prior to
denying the petitioner relief. Having thoroughly reviewed the record
and the parties' briefs, we conclude that this is an appropriate case
for affirmance pursuant to Ct. of Crim. App. Rule 20.
http://www.tba.org/tba_files/TCCA/walineri_opn.wpd
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