Opinion FlashMarch 18, 2002Volume 8 — Number 049 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 SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/certlist_0315.wpd
STATE OF TENNESSEE EX REL. RHONDA ANDERSON v. LESTER JARRETT and STATE OF TENNESSEE EX REL. MELINDA BENSON v. HERMAN HARRIS Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, and Stuart Wilson-Patton, Assistant Attorney General, for the Appellants, State of Tennessee, ex rel. Rhonda Anderson and Melinda Benson. Judge: FARMER First Paragraph: This is a child support case concerning jurisdiction to review certain administrative decisions rendered by the Department of Human Services. In its order, the juvenile court transferred the case, concluding that section 4-5-322 of the Tennessee Code placed jurisdiction with the "appropriate chancery court." Despite its order transferring the case, the juvenile court also decided the case on the merits and ruled that the State acted in contravention to section 36-5-905 of the Tennessee Code regarding the seizure of an obligor's assets. The court further concluded that section 36-5-905 was unconstitutional. We reverse the trial court regarding its jurisdictional determination and hold that the trial court erred by reaching the constitutional issue. http://www.tba.org/tba_files/TCA/anderson.wpd FRANK D. DONOVAN v. NATIONAL COMMERCE BANK SERVICES, INC., NATIONAL COMMERCE BANCORPORATION, and NATIONAL BANK OF COMMERCE Court:TCA Attorneys: Lee L. Piovarcy and James L. Coggin, Memphis, Tennessee, for the appellant, Frank D. Donovan. Frank J. Glankler, Jr., and C. Barry Ward, Glankler Brown, PLLC, Memphis, Tennessee for the Appellees, National Commerce Bank Services, Inc., National Commerce Bancorporation, and National Bank of Commerce. Judge: LILLARD First Paragraph: This is a breach of contract case. The defendant bank hired the plaintiff as a consultant to contact supermarkets about placing branch banks in their stores. In August 1988, the parties signed a written consulting contract which expired by its own terms in November 1988. In that contract, the plaintiff was to receive a salary plus $2,000 for each branch bank placed in a store as a result of his efforts. This contract expired, but the plaintiff continued to work for the bank for about ten years with no other written agreement. The plaintiff was never paid the $2,000-per-store bonus. In 1990, the plaintiff asked the bank to pay the $2,000-per-store bonus, and this request was ignored. The plaintiff's employment was terminated in 1998. In May 1999, the plaintiff sued the bank for breach of contract, claiming that they owed him the $2,000-per-store bonus under the original contract. The trial court granted the bank summary judgment based on the applicable statute of limitations. The plaintiff now appeals. We affirm, finding that the cause of action accrued, at the latest, in 1990 when the plaintiff requested the bonus and his request was ignored. http://www.tba.org/tba_files/TCA/donovanf.wpd BRIAN ELKINS v. REX A. BERRY and WILLIAM A. BOLIN Court:TCA Attorneys: Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellants, Rex. A Berry and William A. Bolin. Charles L. Hicks, Camden, Tennessee, for the appellee, Brian W. Elkins. Judge: LILLARD First Paragraph: This case involves the right to a trial by jury. The plaintiff sued the defendants for injuries he sustained in an automobile collision that was allegedly caused by the defendants' negligence. In the plaintiff's complaint, he demanded a jury trial. The defendants also demanded a jury trial in their answers. On the eve of trial, unbeknownst to the defendants, the plaintiff withdrew his jury demand. On the morning of trial, the defendants appeared but were unrepresented by counsel. The trial court proceeded with a bench trial, and entered a judgment in favor of the plaintiff. The defendants now appeal, claiming, inter alia, that they were denied their right to a jury trial. We affirm, finding that the defendants' participation in the bench trial, without objection, constituted a waiver of their right to a jury trial under Rules 38.05 and 39.01 of the Tennessee Rules of Civil Procedure. http://www.tba.org/tba_files/TCA/elkinsb.wpd IN RE: RAGAN ELIZABETH HINSON, JAMES BRIAN HINSON v. KELLI SHANNON GATTON Court:TCA Attorneys: Marianna Williams, Dyersburg, For Appellant, James Brian Hinson James S. Wilkes, Jr., Dyersburg, For Appellee, Kelli Shannon Gatton Judge: CRAWFORD First Paragraph: Father filed a petition to increase visitation, for joint custody and other relief. The juvenile court modified visitation and ordered joint custody. Father appeals. We affirm. http://www.tba.org/tba_files/TCA/hinsonbrian.wpd ELIZABETH E. PETTY v. STATE OF TENNESSEE Court:TCA Attorneys: Jerrold L. Becker and Samuel W. Brown, Knoxville, Tennessee, for Appellant. Ronald C. Leadbetter, Associate General Counsel, The University of Tennessee, Knoxville, for Appellee. Judge: FRANKS First Paragraph: In this action, the Commission found no contract between the parties and dismissed the claim. On appeal, we affirm. http://www.tba.org/tba_files/TCA/pettye.wpd JOEL PETTY v. DAIMLER/CHRYSLER CORPORATION Court:TCA Attorneys: Patrick M. Ardis and Daniel K. Evans, Memphis, Tennessee, for the appellant, Joel Petty. Ernest A. Petroff, J. Randolph Bibb, Jr., and Bradley E. Trammell, for the appellee, Daimler Chrysler Corporation. Judge: FARMER First Paragraph: Plaintiff in this case alleges that Defendant violated Tennessee's motor vehicle glass safety statutes which were in effect when Plaintiff purchased his vehicle in 1998. The court below found no violation and entered judgment for Defendant. We find that Plaintiff failed to introduce evidence of injury or damages and therefore affirm judgment for Defendant. http://www.tba.org/tba_files/TCA/pettyjoel.wpd ERICA R. SLAUGHTER v. ROSETTA ROWE Court:TCA Attorneys: Lloyd A. Levitt, Chattanooga, Tennessee, for the Appellant Rosetta Rowe. Erica R. Slaughter, Appellee, pro se. Judge: SWINEY First Paragraph: Erica R. Slaughter ("Slaughter") sued Rosetta Rowe ("Rowe") for slander and harassment after an alleged physical altercation precipitated by Slaughter's affair with Rowe's husband. After the physical altercation, Slaughter filed assault charges against Rowe leading to her arrest. The assault charge was eventually dismissed. Rowe filed a counter-claim for malicious prosecution. Each party testified at trial to her version of the events. The Trial Court concluded neither party carried her burden of proof on her claim and dismissed the entire lawsuit. Rowe appeals, and we affirm. http://www.tba.org/tba_files/TCA/slaughtere.wpd GLEN TUCKER d/b/a GLEN TUCKER CONSTRUCTION v. STEVE HOWELL, et al. Court:TCA Attorneys: Carthel L. Smith, Jr., Lexington, For Appellant, Glen Tucker Edwin Townsend, Jr., Parsons, For Appellees, Steve and Lisa Howell Judge: CRAWFORD First Paragraph: Plaintiff home owner sued defendant construction company for damages resulting from defendant's failure to complete construction of plaintiffs' home. The Chancery Court of Decatur County, Tennessee entered judgment in favor of the plaintiffs in the amount of $17,057.00. Defendant has appealed. We dismiss the appeal. http://www.tba.org/tba_files/TCA/tuckerglen.wpd STATE OF TENNESSEE v. LARRY AMMONS Court:TCCA Attorneys: Gregory C. Krog, Jr., Memphis, Tennessee (on appeal); Gary F. Antrican, District Public Defender; and Julie K. Pillow, Assistant District Public Defender (at trial), for the appellant, Larry Ammons. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted in 1993 of three counts of aggravated burglary, and the trial court imposed three concurrent three-year sentences. In 1995, the defendant was convicted of one count of burglary and five counts of aggravated burglary. The trial court imposed a four-year sentence for the burglary count and six-year concurrent sentences for each of the aggravated burglary counts. The defendant's latter sentences were to be served consecutively to his previous three-year sentence, with probation granted as to all sentences. Subsequently, a petition to revoke the defendant's probation was filed, alleging that the defendant had failed to report to his probation officer and failed to pay restitution as ordered. Following a hearing, the court revoked the probation, and the defendant timely appealed. On appeal, the defendant claims that there was insufficient evidence to revoke his probation, that his due process rights were violated, and that he received ineffective assistance of counsel during his probation revocation hearing. After a thorough review of the record, we affirm the judgment of the trial court but remand for entry of a corrected order revoking probation only as to Docket No. 6112. http://www.tba.org/tba_files/TCCA/ammonslarry.wpd STATE OF TENNESSEE v. RODNEY M. BUTLER Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee, for the appellant, Rodney M. Butler. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General. Judge: WELLES First Paragraph: The Defendant, Rodney M. Butler, was indicted by a Madison County grand jury for one count of unlawfully driving or being in physical control of a motor vehicle while under the influence of an intoxicant, one count of unlawfully driving or controlling a motor vehicle with a blood or breath alcohol concentration of .10% or more, and one count of driving under the influence, fourth offense. The Defendant was convicted on all three counts. The trial court merged counts one and two into count three, and, after a sentencing hearing, sentenced the Defendant as a Range II offender to four years in the Department of Correction and reduced the jury-imposed fine of $15,000 to $10,000. On appeal, the Defendant contends that the evidence was insufficient to prove that he was in physical control of the motor vehicle and also contends that he was improperly sentenced. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/butlerrm.wpd STATE OF TENNESSEE v. ANTONIO COACH Court:TCCA Attorneys: Antonio Coach, Pro Se, Tiptonville, Tennessee. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General; C. Phillip Bivens, District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Antonio Coach, appeals from the Lake County Circuit Court's denial of his pro se petition for writ of habeas corpus. On appeal, Coach asserts that the trial court's summary dismissal of his petition for writ of habeas corpus without requiring the State to file a responsive pleading was error. Coach further asserts that his sentence is void because the juvenile court failed to make findings of fact before his transfer to circuit court. After review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/coachanonio.wpd TIMMY FULTON v. STATE OF TENNESSEE Court:TCCA Attorneys: D. Michael Dunavant, Ripley, Tennessee, for the Appellant, Timmy Fulton. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey C. Brewer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Timmy Fulton, appeals from the Lauderdale County Circuit Court's dismissal of his petition for post-conviction relief. In October of 1996, Fulton was convicted of second degree murder and sentenced to twenty-two years in the Department of Correction. On appeal, Fulton contends that he received ineffective assistance of counsel at trial based upon: (1) trial counsel's failure to investigate and determine his competency to stand trial or to investigate a diminished capacity defense; and (2) trial counsel's failure to adequately investigate the facts and interview material factual witnesses "in preparation of a possible factual defense." After review, we affirm. http://www.tba.org/tba_files/TCCA/fultontimmy.wpd STATE OF TENNESSEE v. RAYMOND GRIFFIN Court:TCCA Attorneys: Harry E. Sayle III, Memphis, Tennessee, for the Appellant, Raymond Griffin. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General; William L. Gibbons, District Attorney General; and Charles Bell and Lorraine Craig, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Raymond Griffin, was convicted after a trial by jury of twenty-five offenses; two especially aggravated kidnappings, sixteen aggravated robberies, five aggravated burglaries, and two aggravated assaults. Griffin received an effective two-hundred and seventy-year sentence. On appeal, Griffin raises the following issues for our review: (1) whether the trial court erred in admitting his statements into evidence; (2) whether the trial court erred in joining the eight separate criminal episodes for trial; (3) whether the confinement of the victims was essentially incidental to accomplishment of the aggravated robberies and, therefore, sufficient to support separate convictions for especially aggravated kidnapping; (4) whether the evidence was sufficient to support his convictions; and (5) whether the trial court erred in ordering him to serve his sentences consecutively. After review, we find that the trial court erred in joining the eight criminal episodes for trial; however, such error was harmless. We also reverse and dismiss one conviction for especially aggravated kidnapping because the confinement of the victim was essentially incidental to the accomplishment of the aggravated robbery, thereby reducing Griffin's sentence to an effective two-hundred and forty years. Griffin's remaining issues are without merit. Accordingly, the judgments of the Shelby County Criminal Court in all other respects are affirmed. http://www.tba.org/tba_files/TCCA/griffinraymond_opn.wpd WADE CONCURRING AND DISSENTING http://www.tba.org/tba_files/TCCA/griffinraymond_con.wpd STATE OF TENNESSEE v. ROGER NEAL JAMES and GEORGE OSBORNE WADE Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Colin Johnson, Dresden, Tennessee, (at trial and on appeal), for the Appellant, Roger Neal James. Mary Ellen Stevens, Union City, Tennessee, for the Appellant, George Osborne Wade. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: Following a consolidated trial, an Obion County Jury convicted Defendant Roger Neal James of the delivery of a controlled substance within 1,000 feet of a school. The jury convicted Defendant George Osborne Wade of the sale of a controlled substance within 1,000 feet of a school. The trial court sentenced Defendant James to twenty-five years incarceration and Defendant Wade to twenty- three years incarceration. Both Defendants now appeal. Defendant James contests the sufficiency of the convicting evidence, the admission at trial of evidence concerning a second drug transaction that took place after the transaction in this case, and the length of his sentence. Defendant Wade also contests the sufficiency of the convicting evidence. In addition, he argues that the trial court erred by refusing to grant a continuance of the case and that the Drug-Free School Zone Act is unconstitutional as applied to his case. After review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/james.wpd STATE OF TENNESSEE v. MACK A. O'BANER Court:TCCA Attorneys: A.C. Wharton, Jr., District Public Defender; Tony N. Brayton and W. Mark Ward, Assistant Public Defenders, Memphis, Tennessee, for the appellant, Mack A. O'Baner. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; William L. Gibbons, District Attorney General; and W. Mark Ward, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Mack A. O'Baner, was convicted of first degree murder and sentenced to life imprisonment. On appeal, the Defendant contends that the evidence presented at trial is insufficient to support a finding of guilty of first degree murder beyond a reasonable doubt. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/obanerma.wpd STATE OF TENNESSEE v. RAMON LAMONT TAYLOR Court:TCCA Attorneys: David L. Hamblen, Union City, Tennessee, for the Appellant, Ramon Lamont Taylor. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James Cannon, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Ramon Lamont Taylor, was convicted of one count of Class B felony possession of cocaine with the intent to sell and of two counts of felony possession of weapons. See Tenn. Code Ann. SS 39-17-417(c)(1) and 39-17-1307(b)(1)(B). The cocaine and weapons were seized during the execution of a search warrant which was obtained based upon a canine sniff indicating the presence of drugs in a storage unit leased to Taylor. On appeal, Taylor contends that the affidavit lacks probable cause because it fails to establish that the police dog was, in fact, a drug dog adequately trained in the detection of drugs. After review, we agree and find that the search warrant was issued without probable cause. Accordingly, the convictions are reversed and the case is remanded to the trial court. http://www.tba.org/tba_files/TCCA/taylorramonl.wpd QUANTREAL UNDERWOOD v. STATE OF TENNESSEE Court:TCCA Attorneys: Glenn I. Wright, Memphis, Tennessee, for appellant, Quantreal Underwood. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephanie Johnson, Assistant District Attorney, for appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Quantreal Underwood, was convicted of second degree murder and two counts of aggravated robbery. He received a Range I sentence of twenty-five years for the murder conviction and two concurrent eight year terms for the robbery convictions. His convictions and sentences were affirmed by this Court on direct appeal. State v. Quantreal Underwood, No. 02C01-9604-CR-00120, 1997 Tenn. Crim. App. Lexis 1018 (Tenn. Crim. App. at Jackson Oct. 9, 1997). The appellant filed a post-conviction petition in May, 1999, wherein he alleged that his trial counsel was ineffective and thus deficient within the meaning of the Sixth Amendment to the United States Constitution. That petition was denied, and the appellant now brings the instant appeal. We have reviewed the record and find no error. Therefore, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/underwoodq.wpd STATE OF TENNESSEE v. CYNTHIA C. WARREN Court:TCCA Attorneys: A.C. Wharton, Jr., Public Defender; and Karen L. Massey (at trial) and W. Mark Ward (on appeal), Assistant District Public Defenders, for the appellant, Cynthia C. Warren. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy L. Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Shelby County jury found the defendant guilty of driving under the influence. In this appeal, the defendant alleges (1) the evidence was insufficient to sustain her conviction; (2) the trial judge erroneously allowed the arresting officer to opine the defendant's blood alcohol level was greater than .10%; and (3) the trial court erroneously failed to charge adult driving while impaired as a lesser-included offense of DUI. After review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/warrencc.wpd STATE OF TENNESSEE v. ALFONZO WILLIAMS Court:TCCA Attorneys: A.C. Wharton, Jr., Public Defender; and Robert L. Parris (at trial), Trent Hall (at trial), and Tony N. Brayton (on appeal), Assistant Public Defenders, for the appellant, Alfonzo Williams. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and James M. Lammey, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was indicted for one count of first degree murder during the perpetration of an attempted robbery and one count of premeditated first degree murder. A Shelby County jury found the defendant guilty of felony murder in count one and the lesser-included offense of second degree murder in count two. The trial court merged the second degree murder conviction into the conviction for felony murder, and the defendant was sentenced to life imprisonment. In this appeal, the defendant alleges: (1) the evidence was insufficient to sustain his convictions; (2) the trial court erroneously neglected to charge the jury on the offenses of second degree murder, voluntary manslaughter, reckless homicide, and criminally negligent homicide as lesser-included offenses of felony murder; and (3) the trial court failed to perform its duties as the "thirteenth juror." After a thorough review of the record, we conclude the trial court erred by failing to charge lesser-included offenses of felony murder. We affirm the guilty verdict for second degree murder; we reverse the conviction for felony murder and remand that count for a new trial with special instructions relating to the second degree murder verdict. http://www.tba.org/tba_files/TCCA/williamsa.wpd STATE OF TENNESSEE v. ANTOINE JACQUES WILLIAMSON Court:TCCA Attorneys: Gary F. Antrican, District Public Defender, Somerville, Tennessee, for the Appellant, Antoine Jacques Williamson. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Kim Linville, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Antoine Jacques Williamson, pled guilty to one count of theft of property over $1,000, a class D felony, and received, pursuant to a negotiated plea agreement, a sentence of two years as a range I offender. Williamson's entitlement to judicial diversion was reserved for determination by the trial court. Following a hearing, the court imposed a sentence of split confinement which required Williamson to serve 30 days in the Tipton County jail and the balance on supervised probation. On appeal, Williamson argues that the trial court erred in denying judicial diversion. After review, we find that the trial court failed to consider all the relevant factors. Accordingly, we reverse the judgment of the trial court denying diversion and remand the case for deferment of further proceedings as provided by Tennessee Code Annotated S 40-35-313 (2001). http://www.tba.org/tba_files/TCCA/williamsona.wpd PLEASE FORWARD THIS E-MAIL! 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