Opinion Flash

January 16, 2002
Volume 8 — Number 011

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.

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
03 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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


PAUL FARNSWORTH a/k/a RONNIE BRADFIELD v. RICHARD KENYA

Court:TCA

Attorneys: 

Paul Farnsworth, Henning, TN, pro se

Paul G. Summers, Attorney General & Reporter, Michael Moore, Solicitor
General, Pamela S. Lorch, Assistant Attorney General, Nashville, TN,
for Appellees

Judge: HIGHERS

First Paragraph:

This appeal arises from the Appellees' denial of the Appellant's
request to marry during the Appellant's incarceration.  The Appellant
filed a complaint in the Circuit Court of Lake County against the
Appellees for breach of contract and retaliation.  The Appellees filed
a motion to dismiss claiming that the Appellant failed to exhaust his
administrative remedies and failed to state a claim for which relief
can be granted.  The Appellees filed a motion to stay discovery.  The
Appellant filed a motion for leave to amend his complaint.  The
Appellant sought to add new defendants and additional claims that were
unrelated to his original claim.  The trial court granted the
Appellees' motion to dismiss.  On appeal, this Court found that the
trial court failed to rule on the motion to amend the original
complaint.  This Court dismissed the appeal on the basis that the
order appealed from was not a final judgment.

The trial court entered an order granting the motion to stay
discovery, denying the motion to amend the original complaint, and
dismissing the case.  The Appellant appeals the decision of the
Circuit Court of Lake County granting the motion to stay discovery,
denying the motion to amend the original complaint, and dismissing the
case.  For the reasons stated herein, we affirm the trial court's
decision.

http://www.tba.org/tba_files/TCA/farnsworthpaul.wpd

TERRI JUAN (BARRON) JACKSON v. DANNY L. JACKSON

Court:TCA

Attorneys:

Lloyd R. Tatum, Henderson, TN, for Appellant

Dennis W. Plunk, Savannah, TN, for Appellee                          

Judge: HIGHERS

First Paragraph:

This appeal involves the calculation of an obligor parent's net income
for purposes of determining whether a decrease in child support
obligations is warranted.  Appellant's motion to decrease child
support obligations was overruled by the lower court based on a
finding that no significant variance existed between the guidelines
and the amount of support currently ordered.  In calculating the
guidelines amount, the court refused to decrease Appellant's gross
income by temporary living expenses he accrued because of his job
assignment.  Appellant appealed alleging that the deduction in his
gross income should be allowed.  For the following reasons, we affirm.

http://www.tba.org/tba_files/TCA/jacksonterri.wpd

TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. FRANCES PYLE BATES

Court:TCA

Attorneys:

William Dan Douglas, Jr., Ripley, For Appellant, Frances Pyle Bates

Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond,
Assistant Attorney General, For Appellee, State of Tennessee
Department of Children's Services

Judge: CRAWFORD

First Paragraph:

This is a termination of parental rights case.  Francis Pyle Bates
(hereinafter Mrs. Bates) appeals from the final decree of the Probate
and Juvenile Court of Lauderdale County which terminated her parental
rights to her three minor children, T. M. P., born March 28, 1991; J.
R. P., born August 15, 1992; and R. D. P., born July 25, 1994.  For
the reasons hereinafter stated, we affirm the trial court's final
decree.

http://www.tba.org/tba_files/TCA/pylefra.wpd

DARIN SHAFFER, et al. v. SHELBY COUNTY, TENNESSEE

Court:TCA

Attorneys:  

Thomas J. Cullen, Jr., Ericka L. Kleiman, Baltimore, MD; Scott A.
Frick, Memphis, TN, for Appellants

Carroll C. Johnson, Memphis, TN, for Appellee, Shelby County,
Tennessee

Paul G. Summers, Attorney General & Reporter, Michael E. Moore,
Solicitor General, Laura T. Kidwell, Assistant Attorney General,
Nashville, TN, for Intervenor-Appellee, State of Tennessee

Judge: HIGHERS

First Paragraph:

This appeal involves an accident in which a mother and son were hit by
an automobile.  The mother received fatal injuries in the accident. 
The survivors brought an action against Shelby County for the wrongful
death of the mother and for negligent infliction of emotional distress
with respect to the son.  A jury found Shelby County liable for 
$12,039,049.01.  The award was reduced in accordance with the
Governmental Tort Liability Act (the GTLA) to $260,000.00 plus
discretionary costs of $5,434.55.  The plaintiffs appealed the
reduction of liability alleging that the GTLA violated the Tennessee
Constitution and should be judicially abrogated.  The plaintiffs
further allege that even if the GTLA is upheld, liability should be
capped at $350,000.00 as opposed to $260,000.00.  Shelby County also
raises several issues in this appeal.  First, Shelby County alleges
that it was performing a discretionary function, which immunizes it
from liability.  Shelby county also contends that the proof shows the
mother to be at fault and fails to show that the son suffered a
serious emotional injury.  In addition, Shelby County argues that the
verdicts were excessive and were tainted by inappropriate arguments
made during the plaintiffs' closing.  Finally, Shelby County alleges
that the trial court erred by assessing discretionary costs, which
caused the award to exceed the GTLA's statutory cap on damages.  For
the following reasons, we reverse the trial court's award of
discretionary costs and affirm the trial court in all other respects.

http://www.tba.org/tba_files/TCA/shafferdarin.wpd

ROBERT L. SMITH, JR. v. WARDEN LARRY CRAVEN, et al.

Court:TCA

Attorneys:

Robert L. Smith, Jr., Pro Se.

Tom Anderson, Jackson, Tennessee, for the appellees, Larry Craven and
Randy Eckman.

Judge: FARMER

First Paragraph:

Petitioner appeals from the trial court's order denying Petitioner's
petition for writ of certiorari.  We affirm.

http://www.tba.org/tba_files/TCA/smithrobertl.wpd

WILLIAM JOSEPH WILSON v. PATRICIA JEAN WILSON

Court:TCA

Attorneys:

Michael L. Robb, Memphis, Tennessee, for the appellant, William Joseph
Wilson.

Mitchell D. Moskovitz, Adam N. Cohen, Memphis, Tennessee, for the
appellee, Patricia Jean Wilson.

Judge: LILLARD

First Paragraph:

This is a divorce case in which alimony is in dispute.  At trial, the
parties stipulated to the grounds for divorce, and the issue of fault
was not considered.  The trial court awarded the wife alimony in
solido of $750 per month until she reached the age of sixty, and
specified that it was non- modifiable upon the wife's death or
remarriage.  The husband appeals.  On appeal, we affirm the trial
court's decision awarding the wife alimony in solido, and modify the
amount to $500 per month until she reaches the age of sixty.

http://www.tba.org/tba_files/TCA/wilsonwj.wpd

STATE OF TENNESSEE v. MARCUS FITZGERALD

Court:TCCA

Attorneys:

Mary C. Jermann, Memphis, Tennessee, for the appellant, Marcus
Fitzgerald.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and James Lammey, Assistant District Attorney General, for
the appellee, State of Tennessee.                        

Judge: WOODALL
 
First Paragraph:

Defendant, Marcus Fitzgerald, was convicted by a Shelby County jury of
resisting arrest, aggravated rape, and rape.  Defendant appeals his
convictions and presents the following issues for review: (1) whether
the trial court erred in granting the State's motion to consolidate;
(2) whether the trial court erred in denying Defendant's motion to
suppress a pre-trial identification; (3) whether the trial court erred
by offering an advisory opinion on a stipulation; (4) whether
Defendant was unfairly prejudiced by the trial court's comments to the
jury after extraneous contact with a third party; and (5) whether the
trial court erred by admitting mug shots of Defendant taken a few days
after his arrest.  After a thorough review of the record, we affirm
the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/fitzgeraldmarcus.wpd

STATE OF TENNESSEE v. CLIFFORD DOUGLAS PEELE 

Court:TCCA

Attorneys:

Kenneth F. Irvine, Jr., Knoxville, Tennessee (on appeal); Bob McD.
Green, Johnson City, Tennessee (on plea at trial); and H. R. Fallin,
Mountain City, Tennessee (on motion at trial) for the appellant
Clifford Douglas Peele.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; David Crockett, Assistant District Attorney General; and
Michael LaGuardia, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

The defendant appeals the trial court's denial of his motion to
withdraw his guilty plea on the ground that he received ineffective
assistance of counsel during the plea proceedings.  Initially, we
dismissed his appeal.  The supreme court granted the defendant's
application to appeal and reversed the dismissal, remanding the matter
to this Court for a determination of the merits of the appeal.  After
a thorough review of the record and applicable law, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/peelec.wpd

STATE OF TENNESSEE v. TERRANCE ROGERS

Court:TCCA

Attorneys:

George Morton Googe, District Public Defender; and Stephen P.
Spracher, Assistant Public Defender, Jackson, Tennessee, for the
appellant, Terrance Rogers.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; James G. Woodall, District Attorney
General; and Jody S. Pickens, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Terrance Rogers, appeals the revocation of his community
corrections sentence.  Defendant contends that the court erred by
revoking his sentence for failing to report a new arrest, and for the
alleged possession of cocaine.  After a thorough review of the record,
we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/rogersterrance.wpd

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