Opinion FlashJanuary 31, 2002Volume 8 — Number 019 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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Howard H. Vogel BLOUNT COUNTY EDUCATION ASSOCIATION v. BLOUNT COUNTY BOARD OF EDUCATION, et al. Court:TCA Attorneys: Richard L. Colbert, Nashville, Tennessee, for the Appellant Blount County Education Association. David R. Duggan, Maryville, Tennessee, and Henry Haile, Nashville, Tennessee, for the Appellees Blount County Board of Education and William Gary Pack, Director of Blount County Schools. Deborah Richardson Noe, Nashville, Tennessee for Amicus Curiae Tennessee School Boards Association. Charles W. Cagle, Nashville, Tennessee, for Amicus Curiae Tennessee Organization of School Superintendents. Judge: SWINEY First Paragraph: This lawsuit arises from the unsuccessful attempt of the Blount County Education Association ("Plaintiff") and the Blount County Board of Education ("Board") to negotiate a new memorandum of agreement prior to the expiration of the existing agreement on July 1, 1999. Plaintiff claims certain subjects it sought to bargain over were mandatory subjects of bargaining and that the Board committed an unfair labor practice when it refused to bargain in good faith and thereafter unilaterally implemented changes after the agreement expired. The Board claims the subjects over which it refused to bargain were permissive subjects of bargaining, and, therefore, it had no duty to bargain over these subjects and was free to unilaterally implement changes once the agreement expired. The Board also filed a counter-claim asserting that Plaintiff committed an unfair labor practice by insisting the parties bargain over permissive subjects and conditioning an agreement on inclusion of these permissive subjects. The Trial Court held that the subjects of involuntary transfers, voluntary transfers, layoff, recall, non-discrimination, and the duration of the agreement were all permissive subjects of bargaining, dismissed the complaint, and granted the Board's counter-claim. We affirm in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/blountedu.wpd JAN K. BURNS v. JAMES F. BURNS Court:TCA Attorneys: Richard A. Schulman, Chattanooga, Tennessee, for the appellant, James F. Burns. Sandra J. Bott, Chattanooga, Tennessee, for the appellee, Jan K. Burns. Judge: SUSANO First Paragraph: In this divorce case, the husband appeals the trial court's awards of alimony pendente lite and alimony in futuro to the wife. The record before us does not demonstrate that the evidence preponderates against the trial court's judgment. Accordingly, we affirm. http://www.tba.org/tba_files/TCA/burnsjk.wpd
MONROE E. DAVIS v. STATE OF TENNESSEE, ET AL.
Court:TCA
Attorneys:
Monroe E. Davis, Petros, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; and Nichon Shannon, for the appellees, State of
Tennessee and Howard Carlton.
Judge: SUSANO
First Paragraph:
The plaintiff, Monroe E. Davis is a prisoner in state custody. He
filed a complaint with the Tennessee Claims Commission ("the Claims
Commission") against the State of Tennessee and the warden of the
facility at which he is incarcerated, seeking damages for the alleged
detention and/or conversion of his personal property by the warden.
The Claims Commission granted the defendants' motion to dismiss. We
affirm.
http://www.tba.org/tba_files/TCA/davisme.wpd
THELMA AGNES SMITH v. DAVID PHILLIP RILEY Court:TCA Attorneys: Robert W. White, Maryville, Tennessee, for the appellant, David Phillip Riley. J. Reed Dixon, Sweetwater, Tennessee, for the appellee, Thelma Agnes Smith. Steve Merritt, Maryville, Tennessee, for the appellees, Jerry Strickland and Wanda Strickland. Judge: SUSANO First Paragraph: The plaintiff, Thelma Agnes Smith, lived with the defendant out of wedlock for several years. When the relationship ended, she brought this action seeking to enforce two written agreements with him regarding the sale and assignment of property to her. The trial court enforced the agreements and divided the parties' property. The defendant appeals, arguing that the agreements lack consideration and are void as against public policy. We affirm. http://www.tba.org/tba_files/TCA/smithta.wpd MICHAEL SUTTON, et al. v. LARRY BARNES, et al. Court:TCA Attorneys: Steven Douglas Drinnon, Dandridge, Tennessee, for the appellants, Michael Sutton and Sandra Sutton. Douglas L. Dutton and Lisa J. Hall, Knoxville, Tennessee, for the appellees, Cocke County and the Cocke County Highway Commission. Judge: SUSANO First Paragraph: The plaintiffs, Cocke County homeowners, brought this action seeking compensation for damage caused to their home by blasting activity on their neighbors' property. In response to interrogatories, the company that did the blasting identified the Cocke County Highway Commission as the provider of the explosives. Thereafter, the plaintiffs filed an amended complaint, naming Cocke County and the Cocke County Highway Commission (collectively "the County") as additional party defendants. Upon the County's motion, the trial court dismissed the plaintiffs' complaint as to the County, holding that their action is time-barred. On appeal, the plaintiffs argue that the discovery rule applies to their action against the County, and, therefore, their claim is not time-barred. The County argues that even if the plaintiffs' action is not barred by the applicable statute of limitations, the plaintiffs have failed to state a claim upon which relief can be granted. We hold that the discovery rule applies to actions against governmental entities and that there is a genuine issue for trial as to when the plaintiffs' cause of action "ar[ose]." We further hold that the complaint adequately states a cause of action, but only as to the plaintiffs' claim of common-law negligence. Accordingly, the judgment of the trial court is affirmed in part and reversed in part. http://www.tba.org/tba_files/TCA/suttonm.wpd STATE OF TENNESSEE v. CARL DEAN BOLIN Court:TCCA Attorneys: Carrie W. Kersh, Clarksville, Tennessee (at trial); Michael R. Jones, District Public Defender, and Charles S. Bloodworth, Assistant District Public Defender (on appeal), for the appellant, Carl Dean Bolin. Paul G. Summers, Attorney General and Reporter; Russell S. Baldwin, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and James B. Crenshaw, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Carl Dean Bolin, was convicted by a Montgomery County Circuit Court jury of reckless homicide, a Class D felony. The trial court sentenced the defendant as a Range I, standard offender to four years in the Department of Correction. On appeal, the defendant contends that the trial court erred in sentencing him to the maximum of four years and by ordering that his sentence be served in the Department of Correction. After a careful review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bolincarld.wpd STATE OF TENNESSEE v. JERRY BREEDING Court:TCCA Attorneys: Michael R. Giaimo, Livingston, Tennessee, for the appellant, Jerry Breeding. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William Edward Gibson, District Attorney General; and Owen G. Burnett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his conviction of aggravated robbery for the armed robbery of the Union Bank and Trust in Rickman, Tennessee. We conclude that the defendant did not prove his claim of ineffective assistance of counsel and the record supports the trial court's finding that the defendant personally waived his right to testify. Furthermore, the record reveals that the defendant introduced evidence about an uncharged crime in order to impeach testimony by a witness for the state and, therefore, cannot challenge the introduction of such evidence on appeal. The trial court properly fulfilled its duty to act as a thirteenth juror. In addition, there is sufficient evidence to support the defendant's conviction for aggravated robbery. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/breedingj.wpd HARRY D. CLARDY v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert T. Bateman, Clarksville, Tennessee, for the appellant, Harry D. Clardy. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner in this post-conviction matter was originally convicted of theft of property over $10,000 in value, a Class C felony, and sentenced to 15 years imprisonment as a Range III persistent offender. After his conviction was affirmed on direct appeal, he sought post-conviction relief which was denied by the post-conviction court. In this appeal, the petitioner alleges trial counsel was ineffective for failing to (1) recommend he accept the state's plea offer, and (2) challenge an erroneous jury instruction on the range of punishment. After a thorough review of the record, we conclude the petitioner received ineffective assistance of counsel based upon counsel's failure to object to the erroneous range of punishment jury charge at trial and failure to argue the error on direct appeal. Accordingly, we reverse and remand for a new trial. http://www.tba.org/tba_files/TCCA/clardyhd.wpd STATE OF TENNESSEE v. DERRANN WILLIAM ESTILL Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal); Andrew J. Dearing, III, Fayetteville, Tennessee (at trial and on appeal); Curtis H. Gann, and Larry F. Wallace, Jr., Shelbyville, Tennessee (at trial), for the Appellant, Derrann William Estill. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; William Michael McCown, District Attorney General; Michael D. Randles, Assistant District Attorney General; and Hollynn L. Hewgley, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was convicted of theft of property valued between $1,000 and $10,000, a Class D felony, and criminal trespass. The trial court sentenced him as a Range II, multiple offender to six years incarceration for the theft conviction and to thirty days incarceration for the criminal trespass conviction, with the sentences to be served concurrently. The Defendant argues that insufficient evidence was presented at trial to convict him of theft or criminal trespass. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/estilldw.wpd STATE OF TENNESSEE v. REGINALD MERRIWEATHER Court:TCCA Attorneys: J. Colin Morris, for the appellant, Reginald Merriweather. Paul G. Summers, Attorney General, Mark E. Davidson, Assistant Attorney General, Jerry G. Woodall, District Attorney General, and Donald H. Allen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: CLARK First Paragraph: This case returns to this court after remand by order of the Tennessee Supreme Court. The defendant appeals his jury convictions of attempted second degree murder, aggravated assault, and especially aggravated robbery. He raises the following issues: (1) whether the trial judge erred in denying defendant's request for a mistrial based on a juror's response during voir dire; (2) whether the trial court erred in directing a witness to answer questions on cross-examination; (3) whether the evidence was sufficient to support his convictions; and (4) whether the trial court erred in failing to instruct the jury as to certain lesser-included offenses. This court initially reversed the appellant's conviction for aggravated assault, based on double jeopardy considerations, and affirmed the judgment of the trial court on all other issues. See State v. Reginald Merriweather, No. W1999- 2050-CCA-R3-CD, 2001 WL 242570 (Tenn. Crim. App., Jackson, March 6, 2001) (perm. to appeal granted). On June 5, 2001, the Supreme Court released its decision in the case of State v. Curtis Jason Ely and State v. Laconia Lamar Bowers, 48 S.W.3d 710 (Tenn. 2001). In Ely and Bowers, the Court announced new standards regarding the duty to instruct on lesser-included offenses. In light of the decision in Ely and Bowers, the Supreme Court remanded the case to this court to determine whether error in not instructing facilitation was harmless. See State v. Reginald Merriweather, No. W2001-02206-CCA-RM-CD, Madison County (Tenn., September 10, 2001). After revisiting this issue under the standards announced in Ely and Bowers, we reverse the defendant's convictions and remand this matter for a new trial. http://www.tba.org/tba_files/TCCA/merriweatherr.wpd STATE OF TENNESSEE v. HORACE DEMON PULLIAM Court:TCCA Attorneys: David A. Collins, Nashville, Tennessee, for the appellant, Horace Demon Pulliam. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret T. Gunn and Kimberly F. Cooper, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was indicted by a Davidson County Grand Jury on one count of premeditated first degree murder and two counts of attempted first degree murder. Following a jury trial, the defendant was convicted of the indicted premeditated first degree murder count and two counts of the lesser- included offense of attempted second degree murder. The defendant was sentenced to life imprisonment for premeditated first degree murder and two 11-year terms for the two counts of attempted second degree murder, with all sentences to run consecutively, for a total effective sentence of life plus 22 years. In this appeal, the defendant contends (1) the evidence was insufficient to sustain the convictions; (2) the trial court erroneously refused to charge reckless endangerment as a lesser-included offense of attempted first degree murder; and (3) the trial court erroneously sentenced the defendant to consecutive sentences. After a thorough review of the record, we conclude the trial court erroneously failed to charge reckless endangerment as a lesser-included offense of attempted first degree murder and remand for a new trial on these two counts. We affirm the conviction and life sentence for premeditated first degree murder. http://www.tba.org/tba_files/TCCA/pulliamh.wpd STATE OF TENNESSEE v. CHARLES M. THOMAS Court:TCCA Attorneys: V. Michael Fox, Nashville, Tennessee, for the appellant, Charles M. Thomas. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Derrick L. Scretchen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant, Charles M. Thomas, appeals his conviction for possession of greater than .5 grams of cocaine with the intent to sell and the trial court's order requiring his resulting ten-year sentence to be served consecutively to prior sentences. This case presents three issues for our determination: (1) whether evidence against the defendant was the fruit of an illegal detention and search; (2) whether the evidence was sufficient to support the defendant's conviction; and (3) whether the trial court erred by ordering the defendant's sentence to be served consecutively to his prior sentences. For the reasons set forth below, we conclude there is no reversible error; therefore, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/thomascm.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN TBALink! SUBSCRIBE TO OPINION FLASH! 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