Opinion Flash

May 28, 2002
Volume 8 — Number 93

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

This Issue (IN THIS ORDER):
 
01 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Court of Appeals
04 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


STATE OF TENNESSEE v. DAVID WALTER TROXELL

Court:TSC

Attorneys:

William B. (Jake) Lockert, III, District Public Defender, Twenty-Third
Judicial District, for the appellant, David Walter Troxell.

Paul G. Summers, Attorney General & Reporter; Michael Moore, Solicitor
General; Daryl J. Brand, Associate Solicitor General; Marvin E.
Clements, Jr., Assistant Attorney General; Dan Mitchum Alsobrooks,
District Attorney General; and Kim G. Menke, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: ANDERSON

First Paragraph:

The defendant, David Walter Troxell, was charged with possession with
intent to sell and/or deliver a controlled substance after officers
discovered approximately 300 grams of cocaine in the gas tank of his
pickup truck.  The trial court suppressed the evidence after finding
that the search of the undercarriage and gas tank of the defendant's
vehicle exceeded the scope of the defendant's consent to search.  The
Court of Criminal Appeals reversed the judgment of the trial court and
remanded the case for further proceedings.  After carefully
considering the record and the relevant authorities, we conclude that
the officer's search of the undercarriage and gas tank of the
defendant's vehicle violated the Fourth Amendment to the United States
Constitution and article I, S 7 of the Tennessee Constitution because
it exceeded the scope of the defendant's consent and resulted in the
prolonged and unreasonable detention of the defendant.  Accordingly,
we reverse the judgment of the Court of Criminal Appeals and reinstate
the judgment of the trial court.

http://www.tba.org/tba_files/TSC/troxell_opn.wpd

STATE OF TENNESSEE v. DAVID WALTER TROXELL

Court:TSC

DROWOTA DISSENTING

http://www.tba.org/tba_files/TSC/troxell_dis.wpd

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0527.wpd

IRENE NEIGHBORHOOD ASSOCIATION, A Tennessee Not for Profit
Corporation, DR. BURGIN E. CLAIBORNE, LAVERENE RUSSELL, and HARRY
STEWART v. QUALITY LIFE, LLC, d/b/a QUALITY LIFE COMMUNITIES, CITY OF
MEMPHIS, MEMPHIS CITY COUNCIL, COUNTY OF SHELBY, and SHELBY COUNTY
BOARD OF COMMISSIONERS

Court:TCA

Attorneys:

David Wade and Elizabeth J. Landrigan, Martin, Tate, Morrow & Marston,
P.C., of Memphis, Tennessee, for the appellants, Irene Neighborhood
Association, Inc., a Tennessee Not for Profit Corporation, Dr. Burgin
E. Claiborne, Laverene Russell, and Harry Stewart.

Nathan A. Bicks, Burch, Porter & Johnson, PLLC, of Memphis, Tennessee,
for the appellee, Quality of Life LLC d/b/a/ Quality Life Communities.

Allan J. Wade and Lori Hackleman Patterson, Baker, Donelson, Bearman &
Caldwell of Memphis, Tennessee, for the appellees, City of Memphis and
Memphis City Council.

Fred E. Jones, Jr., and Kelly Rayne Brayton of Memphis, Tennessee, for
the appellees, County of Shelby and Shelby Board of County
Commissioners.                           

Judge: LILLARD

First Paragraph:

This is a challenge by a neighborhood association to the municipal
approval of a proposed development.  Both the county commission and
the city council approved the challenged development.  The
neighborhood association filed a petition for a writ of certiorari and
for injunctive relief against the county commission, arguing that the
reconsideration of its original rejection of the development was
invalid, and against the city council, arguing that the association
did not receive proper notice of the council's vote on the
development.  The trial court granted summary judgment in favor of the
defendants.  We affirm, finding that the county commission could,
within reasonable time limits, reconsider its original vote, and that
the city council substantially complied with the applicable notice
requirements.

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

ALEXIS JOHNSON and wife, GERRY JEAN JOHNSON, v. JESSIE DAVID MALONE
and wife, NANCY MARIE MALONE, THOMAS MALONE and wife, REBECCA BETH
MALONE

Court:TCA

Attorneys:     

Hallie H. McFadden, Chattanooga, Tennessee, for Appellants.

Lynne D. Swafford, Pikeville, Tennessee, for Appellees.                     

Judge: FRANKS

First Paragraph:

Plaintiffs alleged their neighbor's chicken houses constituted a
nuisance and sought abatement.  The Chancellor determined the
operation was not a nuisance.  On appeal, we affirm.

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

DEBORAH ANN SMITH KELLER v. DONALD LABRON KELLER

Court:TCA

Attorneys: 

D. Michael Bryant, Cleveland, Tennessee, for Appellant.

Randy Sellers, Cleveland, Tennessee, for Appellee.                         

Judge: FRANKS

First Paragraph:

Appellant held in contempt by Trial Judge was ordered not to have any
guns whatsoever around the parties' minor child.  We affirm.

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

JOAN LOREVA KRETH v. TIMOTHY KERWIN KRETH

Court:TCA

Attorneys:  

David E. Caywood, Memphis, For Appellant, Timothy Kerwin Kreth

Amy J. Amundsen, Memphis, For Appellee, Joan Loreva Kreth                        

Judge: CRAWFORD

First Paragraph:

This case is before the Court on application for extraordinary appeal
pursuant to Tenn. R. App. P. 10.  The applicant-father filed a
petition to modify the final decree of divorce concerning his child
support obligation, because the minor child was currently living with
him.  Mother filed an answer stating that the child should not be
living with father and that father was violating the provisions of the
permanent parenting plan entered at the time of the divorce. 
Subsequently, Mother filed, among other things, a "Motion for
Psychological Evaluation of the Parties and Their Child."  The trial
court granted the motion and ordered such psychological evaluations as
requested.  Father has filed an application for a Rule 10 appeal.  We
grant the application and reverse the order of the trial court and
remand the case for further proceedings.

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

CONNIE J. OTIS v. LILY M. FRYE

Court:TCA

Attorneys:     

Van R. Michael, Sweetwater, Tennessee, for Appellant.

Janet L. Hogan, Knoxville, Tennessee, for Appellee.                     

Judge: FRANKS

First Paragraph:

Plaintiff claimed damages from defendant's motor vehicle sliding into
plaintiff's vehicle.  The jury returned a verdict for defendant.  On
appeal, we affirm.

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

STATE OF TENNESSEE v. CARL G. DODD

Court:TCCA

Attorneys: 

Jeffrey Harmon, Jasper, Tennessee, for the Appellant, Carl G. Dodd.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and Will Dunn, Assistant District Attorney General, for the
Appellee, State of Tennessee.                         

Judge: WITT

First Paragraph:

Carl G. Dodd appeals his rape conviction from the Rhea County Circuit
Court.  Dodd's conviction stems from a sexual assault upon a mentally
retarded adult man.  He is presently serving an eleven- year sentence
in the Department of Correction for this crime.  In this direct
appeal, he claims that the trial court erred in admitting a
psychological report as a business record even though it was not
prepared by the agency through whose employee it was admitted, that
the lower court erred in admitting evidence of the victim's statements
to a caseworker about the crime, and that he was sentenced too
harshly.  Because we are unpersuaded of harmful error, we affirm.

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

STAT E OF TENNESSEE v. CHARLES KIRBY

Court:TCCA

Attorneys: 

Shannon A. Jones, Alamo, Tennessee, for the appellant, Charles Kirby.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; Garry Brown, District Attorney General;
and Larry Hardister and William Bowen, Assistant District Attorneys
General, for the appellee, State of Tennessee.                           

Judge: MCGEE OGLE

First Paragraph:

The appellant, Charles Kirby, was found guilty of facilitation of the
sale of cocaine in the amount of .5 gram or more.  He was sentenced to
five years incarceration in the Tennessee Department of Correction. 
The appellant timely filed a notice of appeal, alleging that the
evidence is insufficient to support his conviction.  After review of
the record and the parties' briefs, we affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. STEVIE LAWSON

Court:TCCA

Attorneys:

C. Christopher Raines, Mt. Carmel, Tennessee, for the Appellant,
Stevie Lawson.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney
General; and Doug Godbee and Jack Marecic, Assistant District
Attorneys General, for the Appellee, State of Tennessee.                    

Judge: WITT

First Paragraph:

Convicted of facilitation of aggravated burglary, theft, and
contributing to the delinquency of a minor, the defendant appeals and
claims that (1) the trial court erroneously admitted the videotape
deposition of the aggravated burglary and theft victim, (2) the jury's
verdicts were inconsistent, and (3) the testimony of an accomplice was
not adequately corroborated.  On the issue of the admission of the
victim's videotape deposition that was taken to preserve his
testimony, we hold that the assistant district attorney general who
took the deposition lacked authority to administer the oath to the
deponent and that the lack of authority effectively resulted in no
deposition being taken.  However, we hold that the resulting videotape
was a hearsay statement that was admissible into evidence for lack of
a timely objection and that no plain error review is warranted.  We
also hold that the verdicts are valid despite any apparent
inconsistency among them and that the testimony of an accomplice was
adequately corroborated.  Finding no reversible error, we affirm.

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

JERMAINE A. PAINE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:   

C. Ann Tipton, Memphis, Tennessee, for the appellant, Jermaine A.
Paine.

Paul G. Summers, Attorney General; Braden H. Boucek, Assistant
Attorney General; William L. Gibbons, District Attorney General; and
Amy Weirch, Assistant District Attorney General, for the appellee,
State of Tennessee.                       

Judge: WELLES

First Paragraph:

On February 23, 1999, the Defendant, Jermaine Payne, pled guilty to
one count of second degree murder and two counts of attempted first
degree murder.  He was sentenced to twenty-five years for the second
degree murder and fifteen years for each of the attempted murders. 
The sentences were to be served concurrently.  The Defendant
subsequently filed a pro se Petition for Post-Conviction relief which
was amended with the aid of appointed counsel.  The petition alleged
that the Defendant was denied effective assistance of counsel.  A
hearing was held on the petition on January 12, 2001, and relief was
denied.  The Defendant now appeals the trial court's denial of
post-conviction relief.  We affirm the judgment of the trial court.

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

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