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):
 
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
06 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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