Opinion FlashJuly 22, 2002
Volume 8 Number 125
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.
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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_0722.wpd
STEVEN CASE v. SHELBY COUNTY CIVIL SERVICE MERIT BOARD, et al. Court:TCA Attorneys: Mark Allen, Memphis, Tennessee, for the appellant, Steven Case. Martin Zummach, Germantown, Tennessee, for the appellee, Shelby County Civil Service Merit Board and Shelby County Government. Judge: FARMER First Paragraph: Petitioner was a classified Shelby County employee who was terminated following a hearing before the County's Civil Service Merit Board. Petitioner appealed the Board's decision to chancery court, which found that Petitioner's own statements at his pretermination hearing constituted sufficient evidence to sustain the Board's action. The chancellor accordingly affirmed the decision of the Board. Petitioner appeals the chancellor's ruling, alleging he was deprived of due process and that there was no substantial evidence to support the Board's determination. We affirm. http://www.tba.org/tba_files/TCA/casesteven.wpd
NORA EDDINGS AND SYLVESTER EDDINGS v. SEARS ROEBUCK & CO. Court:TCA Attorneys: Richard L. Winchester, Jr., Memphis, for Appellants Mark W. Raines, R. Scott Vincent, Memphis, for Appellee Judge: HIGHERS First Paragraph: This appeal involves a personal injury and allegations of promissory fraud stemming from a display bed collapsing at the defendant's department store. The plaintiffs spoke with the defendant's claim adjustor following the incident and were allegedly assured that medical bills would be paid by the defendant or that the claim would be "concluded." The plaintiffs, however, were informed by the defendant's claims adjustor approximately one year after the accident that the defendant held no liability due to the lapse of the statute of limitation. The plaintiffs sued the defendant for both personal injury and promissory fraud. Both claims were eventually defeated before a trial could be held and the plaintiffs appealed. We affirm. http://www.tba.org/tba_files/TCA/eddingsnora.wpd
CITY OF GATLINBURG, TENNESSEE v. JAMES ODOM, d/b/a THOMAS KINCADE GALLERIES Court:TCA Attorneys: Boyd W. Venable III, Sevierville, Tennessee, for the appellant, James Odom, d/b/a/ Thomas Kincade Galleries. Ronald E. Sharp, Sevierville, Tennessee, for the appellee, City of Gatlinburg, Tennessee. Judge: SUSANO First Paragraph: On nine separate occasions, the defendant was cited to the Gatlinburg Municipal Court by the City of Gatlinburg for building without a permit. The citations were consolidated for trial on October 17, 2001. Following an adverse ruling, the defendant attempted to appeal to the Sevier County Circuit Court. In doing so, he filed his appeal bonds in the circuit court. The City moved to dismiss the appeals, contending that the appeal bonds should have been filed in the municipal court. The circuit court dismissed the appeal, finding that it had no jurisdiction of the appeal. We affirm. http://www.tba.org/tba_files/TCA/gatlinburgodom.wpd
RICHARD JOHN JOLLY v. LYNETTE SUZANNE JOLLY Court:TCA Attorneys: Richard John Jolly, Bethel Springs, Tennessee, Pro Se. Ken Seaton, Selmer, Tennessee, for the Appellee, Lynette Suzanne Jolly. Judge: LILLARD First Paragraph: This is a divorce case regarding the distribution of marital property. The wife moved from Tennessee to Kansas with the parties' four minor children and later filed a petition for divorce. The Kansas court awarded the wife a divorce, custody of the children, and child support but found that it did not have jurisdiction to order a division of the parties' marital property located in Tennessee. Thereafter, the wife filed this action in Tennessee seeking a division of the parties' marital property in Tennessee. The trial court ordered that the Tennessee property be sold and that the husband's share of the sale proceeds be reduced by the amount of unpaid child support. On appeal, the husband argues, inter alia, that the trial court erred in recognizing the Kansas divorce decree. We affirm, finding that the Kansas decree was entitled to full faith and credit and that the trial court did not err in dividing the parties' marital property in Tennessee. http://www.tba.org/tba_files/TCA/jollyr.wpd
ROY JONES v. PERRY SPURLING, et al. Court:TCA Attorneys: David H. Dunaway, LaFollette, Tennessee, for the Appellant, Roy Jones Robert S. Olive, Knoxville, Tennessee, for the Appellees, Perry Spurling, Keith Adcock, Cassandra Duncan, Debbie Lively, and Conrad Strand, Members of the Morgan County Board of Education, Paul Scarbrough, Superintendent of the Morgan County Schools, and the Morgan County Board of Education. Judge: GODDARD First Paragraph: This is a suit by Roy Jones, a tenured teacher in the Morgan County School System, against Perry Spurling, Keith Adcock, Cassandra Duncan, Debbie Lively, and Conrad Strand, Members of the Morgan County Board of Education, Paul Scarbrough, Superintendent of the Morgan County Schools, and the Morgan County Board of Education. The suit seeks, by means of a writ of certiorari, to overturn a determination of the Board that Mr. Jones' employment should be terminated because of an altercation between him and a student. We vacate and remand. http://www.tba.org/tba_files/TCA/jonesroy.wpd
MACHINERY SALES COMPANY, INC., v. DIAMONDCUT FORESTRY PRODUCTS, LLC, et al. Court:TCA Attorneys: Henry L. Klein, Memphis, For Appellant, Machinery Sales Company, Inc. Glen Reid, Memphis, For Appellee, Champion International Corporation Dennis A. Cameron, Hot Springs, Arkansas, for Appellee, Diamondcut Forestry Products, LLC Thomas W. Hardin and Patrick M. Carter, Columbia, For Appellee, Columbia Trading, Inc. Judge: CRAWFORD First Paragraph: This is an action for rescission of a contract to purchase a chip mill. Purchaser sued seller and seller's alleged agent for rescission, based upon theory of fraudulent misrepresentation. Following a bench trial, the trial court entered judgment in favor of defendants. Plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/machinerysales.wpd
IN RE: MADELAINE SIERRA REDMAN, RAY H. BOWEN, JR., and MARTHA L. BOWEN, v. NATHAN SCOTT REDMAN Court:TCA Attorneys: Allan J. Coup, Mount Carmel, Tennessee, for Appellant. Leslie W. Bailey, Jr., Kingsport, Tennessee, for Appellees. Judge: FRANKS First Paragraph: The Trial Court ordered limited visitation with minor child by grandparents. On appeal, we affirm. http://www.tba.org/tba_files/TCA/redman_opn.wpd
IN RE: MADELAINE SIERRA REDMAN, RAY H. BOWEN, JR., and MARTHA L. BOWEN, v. NATHAN SCOTT REDMAN Court:TCA SUSANO CONCURRING http://www.tba.org/tba_files/TCA/redman_con.wpd
STATE OF TENNESSEE v. DIONTE TAUREAN WHITE Court:TCA Attorneys: Victoria L. Dibonaventura, Paris, For Appellant, Dionte Taurean White Paul G. Summers, Attorney General & Reporter, Braden H. Boucek, Assistant Attorney General, For Appellee, State of Tennessee Judge: CRAWFORD First Paragraph: This is an appeal of a juvenile proceeding tried before a jury in criminal court on appeal de novo from juvenile court. The juvenile was found guilty of committing delinquent acts in violation of T.C.A. S 39-17-417 (Supp. 2001) and T.C.A. S 39-17-423 (1997). Judgment was entered on the jury verdict, and the juvenile appeals. We affirm. http://www.tba.org/tba_files/TCA/whitedionte.wpd
STATE OF TENNESSEE v. CLAUDE W. CHEEKS Court:TCCA Attorneys: Bryan Henry Hoss, C. Leland Davis, and David W. Wallace, Chattanooga, Tennessee, for the appellant, Claude W. Cheeks. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; William H. Cox, District Attorney General; and Dean Ferraro and Mary Sullivan Moore, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Claude W. Cheeks, was convicted by a jury in the Hamilton County Criminal Court of one count of especially aggravated robbery and two counts of aggravated assault. The trial court sentenced the appellant to a total effective sentence of twenty-five years incarceration in the Tennessee Department of Correction. On appeal, the appellant specifically raises the following issues: (1) "whether the trial court erred in allowing the jury to consider the evidence where the State's doctors all supported the insanity defense and there was no sufficient lay testimony, nor other testimony that contradicted the insanity defense," and (2) "whether it is permissible for the State to seek the assistance of expert witnesses in the field of psychiatry, then to provide the experts the information on which to base their opinion, and then at trial to reject the State's experts and attack their results and offer no proof." Upon review of the record and the parties' briefs, we reverse the judgments of the trial court on all three counts, institute verdicts of not guilty by reason of insanity on each count, and remand for proceedings pursuant to Tenn. Code Ann. S 33-7-303 (2001). http://www.tba.org/tba_files/TCCA/cheeksc_opn.wpd
STATE OF TENNESSEE v. CLAUDE W. CHEEKS Court:TCCA TIPTON DISSENTING http://www.tba.org/tba_files/TCCA/cheeksc_dis.wpd
STATE OF TENNESSEE v. HOWARD C. COVINGTON IN RE: MEMPHIS BONDING COMPANY Court:TCCA Attorneys: Michael J. Gatlin, Memphis, Tennessee, for the Appellant, Howard C. Covington. Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General; William L. Gibbons, District Attorney General; and Kimkea Harris, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Memphis Bonding Company appeals the Shelby County Criminal Court's order denying its petitions for exoneration of liability for the defendant Howard C. Covington's bail bonds for various offenses. Because the record fails to reflect that this case is properly before us as a rightful appeal, we dismiss the appeal. http://www.tba.org/tba_files/TCCA/covingtonh.wpd
STATE OF TENNESSEE v. WILLIAM J. FORD Court:TCCA Attorneys: Michael J. Gatlin, Memphis, Tennessee, for the Appellant, Howard C. Covington. Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General; William L. Gibbons, District Attorney General; and Kimkea Harris, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: SMITH First Paragraph: A Shelby County grand jury indicted the defendant for first degree murder, and the State elected to seek the death penalty in this case. Following the guilt phase of the defendant's bifurcated trial, the trial jury convicted him as charged. At the close of the sentencing phase, the trial jury further found that the evidence supported the existence of the alleged aggravating factor but concluded that this factor did not outweigh the mitigating factors. The jury, therefore, sentenced the defendant to serve a life term without the possibility of parole. Subsequently, the defendant filed a new trial motion which the trial court denied. On appeal, the defendant contends (1) that the evidence is insufficient to support his conviction; (2) that the trial court erred in barring him from the courtroom because of his outbursts in the jury's presence; (3) that the trial court erred in not declaring a mistrial after deciding that the defendant could not be present at his trial because of these outbursts; (4) that the trial court erred in admitting three letters written by the defendant; and (5) that the prosecution, in its closing argument, impermissibly shifted the burden of proof to the defense by commenting on a witness mentioned by the defense in its opening statement but not called to testify at trial. Upon reviewing these issues, we find that none merit relief and, therefore, affirm the defendant's conviction. http://www.tba.org/tba_files/TCCA/fordwilliam.wpd
JOE HIBBLER, III v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert B. Gaia, Memphis, Tennessee, for the Appellant, Joe Hibbler, III. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Thomas Hoover, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Joe Hibbler, III's petition for post-conviction relief was denied by the Shelby County Criminal Court following an evidentiary hearing. Because the record supports the lower court's determination that the petitioner did not demonstrate the ineffective assistance of counsel by clear and convincing evidence, we affirm. http://www.tba.org/tba_files/TCCA/hibblerj.wpd
STATE OF TENNESSEE v. RANDY B. LONG Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton Googe, District Public Defender (of counsel on appeal); and J. Colin Morris, Jackson, Tennessee (at trial), for the appellant, Randy B. Long. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: A Madison County deputy jailer saw a plastic bag of 2.5 grams of cocaine fall from the defendant's crotch area as he removed his clothing for a strip search after his arrest for possession of marijuana and drug paraphernalia. The defendant was subsequently convicted of possession of more than .5 grams of cocaine with the intent to sell or deliver, a Class B felony, and the introduction of contraband into a penal institution, a Class C felony. He argues on appeal that he cannot be convicted of introduction of contraband into a penal institution when his entrance into the jail was involuntary, and that the evidence was not sufficient to support his convictions. Based on our review of the record and of applicable law, we conclude that a voluntary entrance into a penal institution is not a requirement of the offense, and that the evidence was more than sufficient to support the defendant's convictions in this case. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/longrandyb.wpd
STATE OF TENNESSEE v. GEORGE W. LUCAS Court:TCCA Attorneys: Tony N. Brayton, Assistant Public Defender, Memphis, Tennessee, for appellant, George Lucas. Paul G. Summers, Attorney General & Reporter, P. Robin Dixon, Jr., Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Goodman, Assistant District Attorney General for appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant pled guilty to the offense of carjacking and was sentenced to 7.2 years in the Tennessee Department of Correction. In this appeal he claims that he was improperly denied probation because the trial judge mistakenly held that individuals convicted of carjacking were statutorily ineligible for probation. We hold that the legislature has allowed individuals convicted of carjacking and sentenced to eight (8) years or less to remain eligible for probation. Moreover, the trial judge also erred in determining that the use of a weapon in a carjacking was, standing alone, sufficient reason to deny the defendant probation. We therefore reverse the judgment of the trial court and remand for re-sentencing in accordance with this opinion. http://www.tba.org/tba_files/TCCA/lucasgeorge.wpd
STATE OF TENNESSEE v. DELANEY E. MARCUM Court:TCCA Attorneys: John H. Henderson, District Public Defender, Franklin, Tennessee, for the Appellant, Delaney E. Marcum. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General; Ronald L. Davis, District Attorney General; and Lee Dryer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Delaney E. Marcum, appeals from the sentencing decision of the Williamson County Circuit Court. Marcum entered guilty pleas to one count of aggravated burglary, a class C felony, and one count of theft of property over $1,000.00, a class D felony. Under the terms of the agreement, Marcum received concurrent sentences of five years for aggravated burglary and four years for theft. Following a sentencing hearing, the trial court ordered that Marcum's sentences be served in the Department of Correction and, additionally, he was ordered to pay restitution on both counts. On appeal, Marcum contends that the trial court erred in (1) not sentencing him to probation or any other alternative to incarceration, and (2) ordering restitution in conjunction with total confinement. Finding no error, the judgment of the Williamson County Circuit Court is affirmed. http://www.tba.org/tba_files/TCCA/marcumd.wpd
TIMOTHY ROBERSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Shannon A. Jones, Alamo, Tennessee, for the appellant, Timothy Roberson. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Garry G. Brown, District Attorney General; and William D. Bowen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner, Timothy Roberson, was convicted in 1995 of first degree murder and especially aggravated robbery, receiving respective sentences, to be served consecutively, of life without parole and fifteen years as a Range I, standard offender. Following an unsuccessful direct appeal of his conviction, he filed a petition for post-conviction relief, alleging ineffective assistance of counsel at trial. The post-conviction court dismissed the petition following a hearing, and the petitioner timely appealed. We affirm the order denying the petition. http://www.tba.org/tba_files/TCCA/robersont.wpd
STATE OF TENNESSEE v. DEBRA KAY THOMAS Court:TCCA Attorneys: Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Debra Kay Thomas. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Debra Kay Thomas, appeals the Henry County Circuit Court's resentencing her upon revocation of her community corrections sentence. She claims that the trial court erred in failing to give her credit for the time she served in confinement and in the community corrections program under her original sentence. The state agrees. We hold that the defendant was improperly sentenced and remand the case for resentencing. http://www.tba.org/tba_files/TCCA/thomasd1.wpd
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