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March 15, 2001
Volume 7 -- Number 048
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.
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New Opinion(s) from the Tennessee Supreme Court |
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New Opinion(s) from the Tennessee Court of Appeals |
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New Opinion(s) from the Tennessee Court of Criminal Appeals |
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Lucian T. Pera
Editor-in-Chief, TBALink
JEHIEL FIELDS v. STATE OF TENNESSEE
Court:TSC
Attorneys:
James F. Logan, Jr., Cleveland, Tennessee, for the appellant, Jehiel
Fields.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General,
Nashville, Tennessee, for the appellee, State of Tennessee.
Judge: BARKER
First Paragraph:
The sole issue in this appeal is whether our decision in State v.
Burns, 6 S.W.3d 453 (Tenn. 1999), changed the standard by which
appellate courts review denials of post-conviction relief based on
allegations of ineffective assistance of counsel. The Court of
Criminal Appeals in this case affirmed the denial of the appellant's
post-conviction petition, although it expressed concern that this
Court inadvertently changed the standard of appellate review in Burns
to require a de novo review of a trial court's factual findings
regarding claims of ineffective assistance of counsel. While we
reaffirm that such claims are mixed questions of law and fact subject
to de novo review, we emphasize that Burns did not change the standard
of review in this context. Consistent with the Rules of Appellate
Procedure, our language in Burns meant only that a trial court's
findings of fact be reviewed de novo, with a presumption that those
findings are correct unless the preponderance of the evidence is
otherwise. A trial court's conclusions of law are also reviewed under
a de novo standard, although the trial court's legal conclusions are
accorded no deference or presumption of correctness on appeal.
Because the Court of Criminal Appeals correctly applied the
appropriate standard of review in this case, the judgment of that
court is affirmed, and the appellant's petition for post-conviction
relief is dismissed.
http://www.tba.org/tba_files/TSC/fieldsjehiel.wpd
MEMPHIS HOUSING AUTHORITY v. TARA THOMPSON
Court:TSC
Attorneys:
Webb M. Brewer, Debra N. Brittenum, Margaret Barr-Myers, Nancy Percer
Kessler, and Brenda Oates-Williams, Memphis, Tennessee, for the
appellant, Tara Thompson.
Gregory L. Perry, Memphis, Tennessee, for the appellee, Memphis
Housing Authority.
Drake Holliday, Legal Aid Society of Middle Tennessee, Nashville,
Tennessee and David Kozlowski, Legal Services of South Central
Tennessee, Incorporated, for the Amicus Curiae, Tennessee Association
of Legal Services.
Judge: DROWOTA
First Paragraph:
The appellee, Memphis Housing Authority brought this unlawful detainer
action seeking to evict the appellant, tenant Tara Thompson, after
drugs were discovered on the father of her child while he was inside
her apartment. The trial court granted summary judgment to the
appellee, and the Court of Appeals affirmed, finding that the lease
agreement imposes strict liability upon the appellant for the
drug-related criminal activity of her "guests and other persons under
her control." We granted permission to appeal to consider the
appropriate standard that applies when a public housing authority
seeks to evict a tenant for drug-related criminal activity. This is
an issue of first impression in Tennessee. After due consideration,
we hold that the lease agreement imposes strict liability for
drug-related criminal activity engaged in by the tenant or any
household member but permits eviction for the drug related criminal
activity of "guests and other persons under [the tenant's]
control"only if the tenant knew or should have known of the
drug-related criminal activity and failed to take reasonable steps to
halt or prevent the illegal activity. Accordingly, we reverse the
judgment of the Court of Appeals and remand this case to the trial
court for reconsideration of the appellee's motion for summary
judgment under the legal standard announced herein.
http://www.tba.org/tba_files/TSC/memphishousingauth.wpd
STATE OF TENNESSEE v. TIMOTHY WALTON
Court:TSC
Attorneys:
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Mark E. Davidson, Assistant Attorney General,
Nashville, Tennessee, for the appellant, State of Tennessee.
Charles S. Kelly, Dyersburg, Tennessee, for the appellee, Timothy
Walton.
Judge: BARKER
First Paragraph:
The primary issue in this case is whether the appellee was subjected
to custodial interrogation in violation of the requirements of Miranda
v. Arizona, 384 U.S. 436 (1966), when officers questioned him in
response to his volunteered, but unwarned, statements. The Dyer
County Circuit Court found that although the appellee was placed in
custody, his statements to the police as to the location of stolen
property were spontaneous, voluntary, and not the result of
interrogation. The appellee then entered a conditional guilty plea,
reserving for appeal the question of whether he was subjected to
custodial interrogation. The Court of Criminal Appeals reversed,
finding that the greater weight of the evidence established that the
appellee's statements were a result of interrogation, and it
suppressed the appellee's statements and the physical evidence derived
from his statements. The State then requested permission to appeal to
this Court on the issue of whether the appellee was subjected to
custodial interrogation in violation of Miranda. We agree with the
intermediate court that the appellee was placed in custody and
subjected to interrogation, but we decline to suppress the physical
evidence recovered by the officers absent any evidence that his
statements were the product of actual coercion. Because the
appellee's plea was made with the expectation that his statements were
admissible as evidence, we remand this case to the Dyer County Circuit
Court to give the appellee the opportunity to withdraw his plea should
he so desire.
http://www.tba.org/tba_files/TSC/waltontim.opn.wpd
DISSENTING OPINION
http://www.tba.org/tba_files/TSC/waltontim.dis.wpd
ALMEDA ZOLIA GREEN v. EUGENE I. SACKS
Court:TCA
Attorneys:
John D. Drake, Murfreesboro, Tennessee, for the appellant, Almeda
Zolia Green.
Thomas Pinckney and Andy Rowlett, Nashville, Tennessee, for the
appellee, Eugene I. Sacks.
Judge: KOCH
First Paragraph:
This appeal involves a dispute between a patient and her physician
regarding the surgical insertion of an Angelchik prosthesis to control
a chronic gastric reflux condition. Almost five years after her
surgery, the patient filed suit in the Circuit Court for Davidson
County against her physician and the Angelchik's manufacturer. The
case was removed to federal court, but the federal proceedings were
eventually dismissed after the patient voluntarily dismissed her
claims against the manufacturer. After the case was returned to the
trial court, the physician moved for a summary judgment on the ground
that the patient's claim was barred by the statute of repose in Tenn.
Code Ann. S 29-26- 116(a)(3) (2000) and the statute of limitations in
Tenn. Code Ann. S 29-26-116(a)(1), (2). The patient responded that
her physician's fraudulent concealment tolled the running of the
statute of repose and that she filed suit within one year of
discovering her injury. The trial court granted the physician's
summary judgment motion. The patient asserts on this appeal that the
physician has not demonstrated that he is entitled to a judgment as a
matter of law on either defense. We agree. There is a material
factual dispute regarding whether the physician's failure to inform
his patient of the manner in which he inserted the Angelchik device
amounts to fraudulent concealment for the purpose of tolling the
statute of repose. Likewise, the patient demonstrated that she filed
suit within one year after discovering her injury Accordingly, we
reverse the summary judgment.
http://www.tba.org/tba_files/TCA/greenaz.wpd
WALTER JACOB HANSELMAN, JR. v. LINDA ELLEN HANSELMAN
Court:TCA
Attorneys:
Neal Lovlace, Centerville, Tennessee, for the appellant, Walter Jacob
Hanselman, Jr.
Douglas Thompson Bates, III, Centerville, Tennessee, for the appellee,
Linda Ellen Hanselman.
Judge: KOCH
First Paragraph:
This appeal involves a father's effort to reduce his child support and
spousal support obligations. Approximately one year after the parties
were divorced, the father filed a petition in the Hickman County
Chancery Court seeking a downward modification of his support
obligations because his income had declined due to his employer's
cutbacks in the availability of overtime work. Following a bench
trial, the trial court denied the father's petition because he had
failed to establish a significant variance in his child support
obligations and because he had failed to demonstrate that a
substantial and material change in the parties' circumstances
warranting a reduction in spousal support had occurred. We agree with
the trial court's findings and affirm the judgment.
http://www.tba.org/tba_files/TCA/hanselmanwj.wpd
MEMPHIS PUBLISHING CO., et al. v. CHEROKEE CHILDREN & FAMILY SERVICES,
INC., et al.
Court:TCA
Attorneys:
Allan J. Wade, Lang Wiseman, Lori Hackleman Patterson, Memphis,
Tennessee, for the appellant, Cherokee Children & Family Services.
Lucian T. Pera, Kathy Laughter Laizure and Brian S. Faughnan, Memphis,
Tennessee, for the appellee, Memphis Publishing Company and Mike Kerr.
Judge: CANTRELL
First Paragraph:
The publisher and assistant managing editor of The Commercial Appeal,
a Memphis newspaper, sued a non-profit corporation seeking access to
the corporation's books and records under the Tennessee Public Records
Act. The Circuit Court of Shelby County held that the corporation's
contract with the State made virtually all of its records State
property. We reverse the judgment of the trial court and reject the
appellee's alternative argument that the corporation is a State
agency. Therefore the appellee is not entitled to free access to the
corporation's records.
http://www.tba.org/tba_files/TCA/memphispub.wpd
JOHN MORGAN, etc. v. CHEROKEE CHILDREN & FAMILY SERVICES, INC.
Court:TCA
Attorneys:
Allan J. Wade, Lang Wiseman, and Lori Hackleman Patterson, Memphis,
Tennessee, for the appellant, Cherokee Children & Family Services,
Inc.
Paul J. Summers, Attorney General & Reporter; Albert L. Partee, III,
Senior Counsel, for the appellee, John Morgan, in his official
capacity as Comptroller of the Treasury of the State of Tennessee.
Judge: CANTRELL
First Paragraph:
The State Comptroller sued Cherokee Children & Family Services, Inc.
seeking access to Cherokee's records for an audit of the company's
affairs. The Chancery Court of Davidson County held that the
company's contract with the State, and Chapter 960 of the Public Acts
of 2000, gave the State the right to conduct the audit. Based on our
opinion in Memphis Publishing Company, et al. v. Cherokee Children &
Family Services, et al., released simultaneously with this opinion, we
hold that the company's contracts with the State do not make all their
records public records. We also hold that to apply Chapter 960
retroactively would violate the constitutional prohibition against
retrospective legislation. We therefore reverse the lower court's
judgment.
http://www.tba.org/tba_files/TCA/morganj.wpd
ROGERS GROUP, INC. v. T. W. COMER, et al.
Court:TCA
Judge: CANTRELL
Order:
In accordance with the opinion of this court in Elizabeth Nicoll
Doramus, et al. v. Rogers Group, Inc., and T. W. Comer, No.
M1998-00918-COA-R3-CV (Tenn. Ct. App. Feb. 28, 2001), the judgment of
the court below is affirmed and the cause is remanded to the Chancery
Court of Sumner County for any further proceedings that may become
necessary.
Tax the costs on appeal to the appellant, James V. Doramus, on behalf
of Elizabeth Nicoll Doramus and Victoria Lynn Doramus.
http://www.tba.org/tba_files/TCA/rogersgroup.wpd
DANA HOPE DAVIS THURMON (SCOTT), INDIVIDUALLY AND AS SURVIVING NATURAL
PARENT OF DALTON THURMON, A MINOR , et al. v. EDWARD SELLERS, et al.
Court:TCA
Attorneys:
Tim Edwards and James F. Horner, Memphis, Tennessee, for the
Appellant, Dana Hope Davis Thurmon Scott.
Charles Abbott, Memphis, Tennessee, for the Appellants, Shane Thurmon
and Tiffany Thurmon.
Mark Ledbetter, Memphis, Tennessee, for the Appellant, Carl J. Fuhs.
Robert L. Moore and John H. Dotson, Memphis, Tennessee, for the
Appellees, Edward D. Sellers and Donald Sellers.
Judge: FARMER
First Paragraph:
This is a personal injury and wrongful death case arising from a
collision between a pickup truck and a tractor trailer truck. The
five-year-old son of plaintiffs Dana Scott and Shane Thurmon died as a
result of the accident. The driver of the car was an "on call"
employee of his father's business at the time. The plaintiffs sued
the driver of the car and his father, alleging vicarious liability
under the doctrine of respondeat superior and under the family purpose
doctrine. Plaintiff Dana Scott also sued for consortium-type damages
for the loss of her son. Although referring to it as a directed
verdict, the trial court, pursuant to Rule 41.02 of the Tennessee
Rules of Civil Procedure, entered an involuntary dismissal in favor of
the defendants on the vicarious liability issue, under both respondeat
superior and the family purpose doctrine, and on the loss of filial
consortium claim. The trial court awarded damages, inter alia, to
Dana Scott for the wrongful death of her son and to Carl Fuhs for
personal injuries based upon his negligent infliction of emotional
distress claim. We hold the following: (1) employer is not
vicariously liable under the doctrine of respondeat superior for acts
or omissions of "on call" employee when employee is not acting within
the course and scope of his employment; (2) the requirements of the
family purpose doctrine were met and defendant Donald Sellers, Sr. is
vicariously liable under this theory; (3) parents may recover filial
consortium damages in wrongful death actions for the death of their
child; (4) the trial court's wrongful death award to Dana Scott was
supported by the evidence; (5) Carl Fuhs sufficiently established a
claim for negligent infliction of emotional distress; and (6) the
personal injury award to Carl Fuhs is affirmed.
http://www.tba.org/tba_files/TCA/thurmondana.wpd
STATE OF TENNESSEE v. SUZANNE C. DOUGLAS
Court:TCCA
Attorneys:
Michael J. Flanagan, Nashville, Tennessee, for the appellant, Suzanne
C. Douglas.
Paul G. Summers, Attorney General and Reporter; Glen C. Watson,
Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney
General; and Suzanne M. Lockert, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The defendant appeals from her conviction for driving under the
influence, contesting the sufficiency of the indictment. We affirm
the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/douglassc.wpd
BILLY J. GROOMS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Billy J. Grooms, Pro Se.
Paul G. Summers, Attorney General & Reporter; R. Stephen Jobe,
Assistant Attorney General; Al Schmutzer, Jr., District Attorney
General; and James B. Dunn, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: WADE
First Paragraph:
The petitioner, Billy J. Grooms, appeals the trial court's denial of a
pro se petition to correct an illegal judgment/sentence. The trial
court's order of dismissal is affirmed.
http://www.tba.org/tba_files/TCCA/groomsbilly.wpd
STATE OF TENNESSEE v. CHRISTOPHER KNIGHTON
Court:TCCA
Attorneys:
Jon A. Anderson, Maryville, Tennessee, for the appellant, Christopher
Knighton.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Counsel; Michael L. Flynn, District Attorney General; Kirk Andrews and
Edward P. Bailey, Jr., Assistant District Attorneys General, for the
appellee, State of Tennessee.
Judge: ACREE
First Paragraph:
The defendant was convicted by a jury of aggravated rape, aggravated
burglary and theft. In his direct appeal, he presents six issues for
review. Three of those issues concern the jury selection process, one
issue is an evidentiary issue, and the other issues concern the
sufficiency of the indictment and the sufficiency of the evidence.
With respect to the jury selection process, we hold: the failure to
raise the issue of a Batson violation during jury selection
constitutes a waiver of that issue; the failure to swear the jury
before voir dire is not reversible error unless it is shown that a
juror did not truthfully answer the questions as the result of not
being sworn; and the trial court did not abuse its discretion in
refusing to dismiss two jurors for cause. Additionally, we hold that
felony drug crimes are crimes involving dishonesty and are relevant to
the issue of credibility under Tenn. R. Evid. 609, and that under the
facts of this case, the unfair prejudicial effect did not outweigh the
probative value of the impeaching convictions. Finally, we hold that
the indictment charging the defendant with aggravated rape was legally
sufficient, and that the evidence was sufficient to support the
verdict of the jury for that offense.
http://www.tba.org/tba_files/TCCA/knightonc.wpd
STATE OF TENNESSEE v. DAVID CALVIN MITCHELL
Court:TCCA
Attorneys:
Nancy Meyer, Assistant Public Defender, for the Appellant, David
Calvin Mitchell.
John Knox Walkup, Attorney General & Reporter; Sandy C. Patrick,
Assistant Attorney General; James Ramsey, District Attorney General;
Jan Hicks, Assistant District Attorney General, for the Appellee,
State of Tennessee.
Judge: WITT
First Paragraph:
The defendant, David Calvin Mitchell, appeals the manner of service of
his sentence for second offense DUI. Notwithstanding Anderson
County's lack of a work release program for jail inmates, he claims
that he is statutorily and constitutionally entitled to work release
during the mandatory, 45- day period of jail confinement for his
crime. Because we hold that the defendant was not statutorily
entitled to work release consideration and that there was no equal
protection violation, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/mitchelldc.wpd
STATE OF TENNESSEE v. DEANDRADE PHILLIPS
Court:TCCA
Attorneys:
John B. Nisbet, III, Cookeville, Tennessee (on appeal); Stephen M.
Wallace, Public Defender and Leslie S. Hale, Assistant Public Defender
(on appeal and at trial), for the appellant, Deandrade Phillips.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Gregory Alan Newman, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The defendant appeals from his conviction for selling less than
one-half gram of cocaine, contesting the sufficiency of the evidence,
the trial court's restrictions of his examinations of witnesses, the
trial court's failure to require the state to elect the offense for
which it sought a conviction, and the jury instructions. We affirm
the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/phillipsd.wpd
STATE OF TENNESSEE v. JULIANN LYNN WHITEHEAD
Court:TCCA
Attorneys:
Mack Garner, Maryville, Tennessee, and Julie A. Rice, Knoxville,
Tennessee, for the appellant, Juliann Lynn Whitehead.
Paul G. Summers, Attorney General and Reporter, R. Stephen Jobe,
Assistant Attorney General, Michael L. Flynn, District Attorney
General, and Kirk Andrews and Edward P. Bailey, Jr., Assistant
District Attorneys General, for the appellee, State of Tennessee.
Judge: McGEE OGLE
First Paragraph:
The appellant, Juliann Lynn Whitehead, pled guilty in the Blount
County Circuit Court to one count of burglary, a class D felony, and
one count of theft under $500, a class A misdemeanor. The trial court
sentenced the appellant to four years incarceration in the Tennessee
Department of Correction for the burglary conviction and to eleven
months and twenty-nine days incarceration in the Blount County Jail
for the theft conviction. The trial court ordered that these
sentences run concurrently, and allowed the appellant to serve her
sentences on intensive probation. During a random drug screen
conducted by the appellant's probation officer approximately three
months after sentencing, the appellant tested positive for cocaine.
Additionally, the appellant admitted to her probation officer that she
had left the state without permission. Pursuant to a probation
revocation hearing, the trial court revoked the appellant's probation
and ordered her to serve the balance of her sentences in the Tennessee
Department of Correction and recommended that she be placed into a
Special Needs Facility to assist with her substance abuse and mental
health problems. On appeal, the appellant raises the following issue
for our review: whether the trial court erred in sentencing the
appellant to serve the balance of her sentences in the Tennessee
Department of Correction after revoking her probation. Upon review of
the record and the parties' briefs, we affirm the judgment of the
trial court.
http://www.tba.org/tba_files/TCCA/whiteheadjaffd.wpd
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