Opinion Flash

August 28, 2002
Volume 8 — Number 150

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
09 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. JAMES FRANK ELKINS, JR.

Court:TSC

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, James
Frank Elkins, Jr.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Elizabeth T. Ryan, Assistant Attorney General; T.
Michael Bottoms, District Attorney General; and Richard Dunavant,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: DROWOTA

First Paragraph:

The dispositive issue in this appeal is whether the trial court erred
in failing to instruct the jury on the lesser-included offense of
child abuse.  The Court of Criminal Appeals held that no instruction
on child abuse was necessary because the jury was instructed as to
Class B misdemeanor assault, an alternative lesser-included offense. 
We conclude that child abuse is not an alternative lesser- included
offense, that the jury should have been instructed as to child abuse,
and that the erroneous failure to instruct on this offense is not
harmless beyond a reasonable doubt.  Accordingly, the defendant's
conviction of aggravated sexual battery is reversed, and the case is
remanded for a new trial.

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

CHARLES CHAPMAN v. KATHY KELLEY, et al.

Court:TCA

Attorneys:

Phillip Leon Davidson, Nashville, Tennessee, for Appellant, Charles
Chapman.

David Randall Mantooth and Jennifer L. Shymate, Nashville, Tennessee,
for Appellees, Kathy Kelley and Pam Jackson.                       

Judge: GAYDEN

First Paragraph:

This is an appeal from the trial court's dismissal of an action filed
by Plaintiff against the Maury County Circuit Court Clerk and the
Maury County Deputy Circuit Court Clerk. This case concerns the
application of the qualified judicial immunity defense and the related
question of whether the trial court abused its discretion in refusing
to allow the Plaintiff to amend the original complaint under Rule 15
of the Tennessee Rules of Civil Procedure. The gravamen of Plaintiff's
original complaint is that the Plaintiff suffered damages as a result
of negligence of the Deputy Court Clerk by her alleged negligent
administration of the criminal court docket that ultimately led to the
wrongful arrest and incarceration of the Plaintiff based on a capias
issued by the judge. The Defendant Maury County Circuit Court Clerk,
who was sued for negligent supervision, interposed the defense of
qualified judicial immunity and upon a motion to dismiss, the trial
judge dismissed the case against the Maury County Circuit Court Clerk.
 A Maury County Deputy Circuit Court Clerk was originally sued as Jane
Doe for negligent administration of the criminal court docket; when
the Deputy Clerk's  identity was revealed, the Plaintiff amended his
complaint to specifically name her. Subsequently, a second motion to
dismiss was filed by the Maury County Deputy Circuit Court Clerk,
likewise interposing the defense of qualified judicial immunity. The
Plaintiff filed a motion to alter or amend the original dismissal as
to the Maury County Circuit Court Clerk and the Plaintiff  also filed
a second motion to amend the original complaint to allege reckless
conduct on the part of the Clerk and the Deputy Clerk. The trial court
overruled the motion to alter or amend the original dismissal of the
action against the Maury County Circuit Court Clerk , granted the
motion to dismiss as to the Maury County Deputy Circuit Court Clerk,
and denied Plaintiff's motion to amend. For reasons stated below, the
court affirms the action of the trial court.

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

	ESTATE OF NAN FRANCIS, PAT LIBBY, ADMINISTRATRIX v. KARL FRANCIS

Court:TCA

Attorneys:

Charles Galbreath, Nashville, Tennessee, for the appellant, Estate of
Nan Francis, Pat Libby Administratrix.

Robert L. Perry, Jr., Ashland City, Tennessee, for the appellee, Karl
Francis.                       

Judge: COTTRELL

First Paragraph:

In this second appeal in this matter, the estate seeks a
re-determination of an issue decided previously by the trial court and
by this court: distribution of proceeds from a certificate of deposit.
 Because our prior opinion is the law of the case on this issue, we
affirm the trial court's dismissal of the estate's motion for
post-appellate relief which sought to modify the prior rulings.

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

	STATE OF TENNESSEE, et al. v. ROGER D. HAYWOOD, et al.

Court:TCA

Attorneys:

Clifton E. Darnell and Larry W. Johnson, Atlanta, Georgia, for the
Appellants, National City Mortgage Co., Morris, Schneider & Prior,
L.L.C., and Larry W. Johnson.

Robert H. Jennings, Jr., Nashville, Tennessee, and Roger Horner,
Brentwood, Tennessee, for the Appellees, State of Tennessee, on
relation of The Commissioner of the Department of Transportation, for
and on behalf of Said Department, and The City of Brentwood.                      

Judge: SWINEY

First Paragraph:

The Trial Court held that National City Mortgage Company ("National"),
which services the mortgage on the property at issue, and its
attorneys violated Tenn. R. Civ. P. 11.02 and imposed sanctions
against them in this condemnation proceeding.  National and its
attorneys appeal the Trial Court's Rule 11.02 sanctions.  We reverse
and remand.

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

MOHAMMAD D. HUSSAINI, et al. v. GRANGE MUTUAL CASUALTY COMPANY, et al.

Court:TCA

Attorneys:

Mohammad D. Hussaini, Nashville, Tennessee, Pro Se.

Mark S. LeVan, Nashville, Tennessee, for the appellee, Grange Mutual
Casualty.

Judge: COTTRELL

First Paragraph:

Homeowners, unsatisfied with repairs to their home following a fire,
sued their insurance company, the contractor who performed repairs on
their home, and another contractor who removed personal property for
cleaning and repair.  The homeowners settled their claims against the
insurance company and, on the day of trial, voluntarily dismissed
their claims against the contractor for cleaning of their personal
property.  The trial proceeded upon their claims against the
contractor who repaired the fire damage in their home, and the trial
court entered a judgment for $650.00 in favor of the homeowners. 
Because the appellate record includes no record of the evidence taken
at trial, we must presume the trial court's findings were supported by
the record.  Accordingly, we affirm the trial court's judgment.

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

STEVEN ALLEN JAMESON v. KATRINA LINN REDMUND

Court:TCA

Attorneys:

Charles G. Blackard III, Brentwood, Tennessee, for Appellant, Katrina
Linn Redmund.

James Robin McKinney, Jr., Nashville, Tennessee, for Appellee, Steven
Allen Jameson.                       

Judge: GAYDEN

First Paragraph:

This is an appeal from the trial court's final order denying
appellant's petition for a change of the sole care, custody and
control of the parties' three minor children and the trial court's
order denying appellant's alternative petition for an increase in
visitation.  We hold that the trial court properly denied a change of
the sole care, custody and control and properly denied appellant's
alternative petition for increased visitation. Counsel for the
appellee has petitioned this court for attorney's fees assessed for
the hearings in the trial court and for attorney's fees in the
immediate appellate case contending that the appeal is frivolous. We
decline to award attorney's fees.

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

EILEEN ANN SMITH v. ROBERT MAXWELL SMITH

Court:TCA

Attorneys:   

Mike W. Binkley, Nashville, Tennessee, for the appellant, Robert
Maxwell Smith.

Joanie L. Abernathy, Franklin, Tennessee, for the appellee, Eileen Ann
Smith.                       

Judge: FARMER

First Paragraph:

This is a divorce case.  Acting upon the stipulation of the parties,
the trial declared the parties divorced.  The court determined that
the appreciation of Husband's premarital Individual Retirement
Accounts (IRAs) was marital property.  The court also ruled that a
bond account that Husband received from his mother and later titled
jointly between the parties remained Husband's separate property. 
Finally, the court addressed marital debt and alimony.  Both parties
raise issues regarding the trial court's disposition of the case.  We
affirm in part, reverse in part, and remand the case to the trial
court.

http://www.tba.org/tba_files/TCA/smithe1.wpd

ANTONIO L. SWEATT v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:

Antonio L. Sweatt, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General; Michael E. Moore; Solicitor
General; Mark A. Hudson, Senior Counsel, for the appellee, State of
Tennessee.                         

Judge: CANTRELL

First Paragraph:

A prison inmate filed a petition for writ of certiorari, which alleged
that a prison disciplinary board acted arbitrarily, and convicted him
without sufficient evidence.  The trial court dismissed the petition
for failure to comply with the requirements of Tenn. Code Ann. S
41-21-801, et seq., because the petitioner did not pay the court costs
he owed from a prior lawsuit.  We affirm the trial court.

http://www.tba.org/tba_files/TCA/sweatta1.wpd

LARRY WILLIAMS v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:      

Larry Williams, Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Pamela S. Lorch, Assistant Attorney General; for
the appellee, Tennessee Department of Correction.                    

Judge: COTTRELL

First Paragraph:

Petitioner, a state inmate, appeals the trial court's decision to deny
his pro se petition for common law writ of certiorari challenging the
imposition of sanctions following a disciplinary board hearing and the
court's grant of the Department of Correction's Motion to Dismiss for
failure to state a claim.  He alleges that the Department failed to
follow disciplinary policies, and violated his due process and equal
protection rights.  For the reasons set forth below, we find
Petitioner's claims without merit, affirm the decision of the trial
court and remand the case for any further proceedings which may be
necessary.

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

LARRY WILLIAMS v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

KOCH CONCURRING

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

ERIC T. WOODRUFF v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:  

Eric Woodruff, Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Stephanie R. Reevers, Associate Deputy Attorney
General, for the appellee, Tennessee Department of Correction.                        

Judge: COTTRELL

First Paragraph:

Petitioner, an inmate in the custody of the Tennessee Department of
Correction, filed the underlying pro se petition for common law writ
of certiorari, seeking review of a prison disciplinary board decision
and resulting sanctions that he alleges were made in violation of his
constitutional rights to due process and equal protection under the
laws.  Specifically, Petitioner alleges that the disciplinary board
violated Department policies by not providing the Petitioner with an
adequate statement of reasons prior to his placement in administrative
segregation.  The trial court dismissed the suit for failure to state
a claim.  We affirm in part, reverse in part, and remand the case to
the trial court with the direction that the trial court issue the
writ.

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

 SHANNA DEAN ALDER  v.  STATE OF TENNESSEE 

Court:TCCA

Attorneys:

Herbert S. Moncier, Knoxville, Tennessee, for the appellant, Shanna
Dean Alder.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Patricia A. Cristil, Assistant District Attorney General,
for the appellee, State of Tennessee.                          

Judge: RILEY

First Paragraph:

The petitioner appeals the denial of her petition for habeas corpus
relief.  She contends the trial court was without authority to revoke
her judicial diversion after her diversionary probation expired,
absent the issuance of a revocation warrant prior to its expiration. 
She, therefore, argues the trial court was without jurisdiction when
it revoked judicial diversion, was consequently without jurisdiction
when it sentenced her to additional years of probation, and was
without jurisdiction when it subsequently issued a probation
revocation warrant.  We agree and reverse the denial of habeas corpus
relief.

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

STATE OF TENNESSEE v. JAMES ALLEN BAILEY

Court:TCCA

Attorneys:

Edward C. Miller, District Public Defender (at hearing); and Susanne
Bales, Assistant District Public Defendant (on appeal), for the
appellant, James Allen Bailey.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and Ronald C. Newcomb, Assistant District Attorney General,
for the appellee, State of Tennessee.                          

Judge: RILEY

First Paragraph:

The defendant pled guilty to six counts of arson, Class C felonies,
and one count of setting fire to personal property, a Class E felony. 
The trial court ordered an effective sentence of fifteen years
incarceration followed by five years of probation.  On appeal, the
defendant argues: (1) the trial court  erred in conducting an
independent investigation into pyromania; (2) the length of his
individual sentences is excessive; (3) the trial court erred in
imposing consecutive sentencing; and (4) the trial court improperly
denied alternative sentencing.  We modify the defendant's sentences to
an effective term of ten years in the Department of Correction.

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

STATE OF TENNESSEE v. JAMES ALLEN BAILEY

Court:TCCA

WELLES DISSENTING

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

STATE OF TENNESSEE v. MICHAEL E. OWENBY

Court:TCCA

Attorneys:

James Greenlee, Sevierville, Tennessee, for the appellant, Michael E.
Owenby.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Al Schmutzer, Jr., District
Attorney General; and Steve Hawkins, Assistant District Attorney
General, for the appellee, State of Tennessee.                        

Judge: WELLES

First Paragraph:

The Defendant, Michael E. Owenby, appeals as of right from his
conviction by a jury of theft of property over $1,000, a Class D
felony.  He was sentenced to three years as a Range I standard
offender, with ninety days to be served in confinement and the balance
to be served in the Community Corrections program.  He argues as his
sole issue on appeal that there was not sufficient evidence presented
at trial to support his conviction of theft.  We affirm the judgment
of the trial court but remand to the trial court for entry of an
amended judgment deleting the "day for day" requirement relating to
the ninety days of confinement.

http://www.tba.org/tba_files/TCCA/owenbymev

STATE OF TENNESSEE v. WILLIAM C. SMITH

Court:TCCA

Attorneys:

James Greenlee, Sevierville, Tennessee, for the appellant, William C.
Smith.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Al Schmutzer, Jr., District Attorney
General; and Charles E. Atchley, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, William C. Smith, pled guilty to burglary, a class D
felony, and theft under $500, a class A misdemeanor.  Pursuant to the
Defendant's plea agreement, he was sentenced as a Range I standard
offender with the sentences to run concurrently.  The parties left the
length, method, and manner of service to the trial judge's discretion.
 After a sentencing hearing, the trial court sentenced the Defendant
to four years in the Department of Correction for the burglary and a
concurrent sentence of 11 months and 29 days at 75% for the
misdemeanor theft.  The Defendant now appeals as of right.  We affirm
the judgment of the trial court.

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

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