Opinion Flash
December 10, 2002
Volume 8 — Number 216
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):
| 00 |
New Opinion(s) from the Tennessee Supreme Court |
| 02 |
New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel |
| 00 |
New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court |
| 03 |
New Opinion(s) from the Tennessee Court of Appeals |
| 12 |
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
HAROLD J. GARTH v. SISKIN STEEL & SUPPLY COMPANY, et al.
Court:TSC - Workers Comp Panel
Attorneys:
Kent T. Jones, Chattanooga, Tennessee, attorney for appellant,
Randstand Staffing Services.
David D. Moore, Chattanooga, Tennessee, attorney for appellant, Siskin
Steel & Supply Company.
Richard H. Winningham, Chattanooga, Tennessee, attorney for appellee,
Harold J. Garth.
Judge: BYERS
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann.S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The trial
court found the plaintiff suffered 75 percent disability to his right
hand as a result of an on-the-job injury, which occurred on March 10,
2000. The defendant says the trial judge erred in not finding the
plaintiff's recovery for the injury should be limited to the thumb or
the first phalange of the thumb. The plaintiff says the trial court
properly found the plaintiff suffered an impairment to his right hand
but says the trial court should have granted a higher award. We
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TSC_WCP/garthh.wpd
DEXTER LEBRON JOSHEN v. MCKEE FOODS CORPORATION
Court:TSC - Workers Comp Panel
Attorneys:
Charles D. Lawson and J. Barlett Quinn, Chattanooga, Tennessee,
attorneys for appellant, McKee Foods Corporation.
Gary W. Starnes, Chattanooga, Tennessee, attorney for appellee, Dexter
Lebron Joshen.
Judge: BYERS
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann.S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The trial
court found the plaintiff had sustained a compensable injury to his
shoulder and fixed an award of 30 percent vocational disability to the
body as a whole. The defendant says the trial judge fixed this award
on the basis of a 6 percent medical impairment to the body rather than
on the basis of 4 percent medical impairment, which the defendant
asserts is the correct medical impairment rating. The plaintiff
responds to the defendant's claim by saying he is satisfied by the
ruling of the trial court on the award to the plaintiff. However, the
plaintiff says if we reverse the trial court's judgment he wishes us
to address the four assignments of error raised by him. These
assignments concern the treatment of the plaintiff by a Dr. Alan Odom,
who did surgery on the plaintiff's shoulder. The trial court found
the treatment by Dr. Odom was not shown to be related to the
compensable injury the plaintiff suffered while working for the
defendant. We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TSC_WCP/joshend.wpd
CARRIE MILDRED MAYER DUBE v. MICHAEL NORMAN DUBE
Court:TCA
Attorneys:
Thomas C. Jessee, Johnson City, Tennessee, for the Appellant Michael
Norman Dube.
Olen G. Haynes, Jr., and Robert D. Arnold, Johnson City, Tennessee,
for the Appellee Carrie Mildred Mayer Dube.
Judge: SWINEY
First Paragraph:
Carrie Mildred Mayer Dube ("Wife") sued Michael Norman Dube
("Husband") for a divorce. Wife is primarily a stay-at-home mother
and Husband is an emergency room physician. The Trial Court divided
the marital property with 65% of the property going to Wife. The
Trial Court awarded Wife permanent alimony of $3,200 per month after
finding Wife could not be sufficiently rehabilitated. Child support
was set based on Husband's income for 2000, during which time he
claims to have worked approximately 90 hours per week. Husband
appeals the division of marital property, award of permanent alimony,
and amount of child support which was based on his 90 hour work week.
We affirm.
http://www.tba.org/tba_files/TCA/dubec.wpd
KIMBERLY G. LEWIS (HARMON) v. TIMOTHY E. LEWIS
Court:TCA
Attorneys:
David W. Blankenship, Kingsport, for the Appellant, Timothy E. Lewis
Jeffrey P. Miles, Johnson City, for the Appellee, Kimberly G. Harmon
Judge: GOODARD
First Paragraph:
In this divorce case, Timothy E. Lewis ("Husband") appeals the Trial
Court's decision, arguing that it erred in classifying certain assets
as marital rather than his separate property. Husband asserts that
"the failure of the Trial Court to properly characterize separate
property versus marital property [resulted in] an inequitable division
of the parties' assets." We find that several of the assets
classified by the Trial Court as marital property should have been
classified as Husband's separate property. We also find that a
portion of the Husband's credit card debt, which was incurred during
the marriage, should be assigned to Kimberly G. Harmon ("Wife"). We
affirm the Trial Court's judgment in all other respects.
http://www.tba.org/tba_files/TCA/lewiskim.wpd
JAMES L. THOMPSON v. KNOXVILLE TEACHERS FEDERAL CREDIT UNION, et al.
Court:TCA
Attorneys:
C. Mark Troutman, LaFollette, Tennessee, for the Appellant James L.
Thompson.
Sam H. Poteet, Jr., Fred C. Statum, III, and Jeffrey S. Price,
Nashville, Tennessee, for the Appellees Knoxville Teachers Federal
Credit Union and Cumis Insurance Society, Inc.
Judge: SWINEY
First Paragraph:
James L. Thompson ("Plaintiff") was the principal stockholder,
director, and officer of People Personnel Industrial Corporation.
Plaintiff began kiting checks when the corporation started having
financial difficulties. Plaintiff's actions resulted in a substantial
monetary loss to Knoxville Teachers Federal Credit Union ("Credit
Union"). After both the corporation and Plaintiff filed for
bankruptcy, the parties entered into an agreement whereby the Credit
Union agreed not to pursue or assist any other party in pursuing a
cause of action against Plaintiff based on the check kiting.
Thereafter, Plaintiff was prosecuted in federal court. The Credit
Union supplied information to the United States Government pertaining
to the amount of its financial losses. After Plaintiff pled guilty in
federal court to defrauding the Credit Union, he was ordered to serve
a small amount of time in prison and pay restitution of $74,417.29 to
the Credit Union. Plaintiff brought this lawsuit claiming the Credit
Union pursued the order of restitution in the criminal proceeding and
thereby violated the terms of the settlement agreement. The Trial
Court granted summary judgment to Defendants, and Plaintiff appeals.
We affirm.
http://www.tba.org/tba_files/TCA/thompsonjl.wpd
MICHAEL CAPERS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Michael Capers, Coleman, Florida, Pro Se.
Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Roger Moore, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Michael Capers, pled guilty to procuring prostitution
in 1986. In 2001 he filed a petition for writ of error coram nobis
alleging that his 1986 guilty plea was constitutionally invalid. The
trial court denied relief and this appeal followed. We affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/capersm.wpd
STATE OF TENNESSEE v. DARREN A. DEWALT
Court:TCCA
Attorneys:
AC Wharton, Jr., Shelby County Public Defender; Garland Erguden,
Assistant Public Defender; Phyllis Aluko, Assistant Public Defender;
and Marty McAfee, Assistant Public Defender, Memphis, Tennessee, for
the appellant, Darren A. Dewalt.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Karen Cook, Assistant District Attorney General; Scott
Gordon, Assistant District Attorney General; and Kevin Rardin,
Assistant District Attorney General, for the appellee, State of
Tennessee.
Judge: WOODALL
First Paragraph:
Defendant, Darren A. Dewalt, appeals as of right from the trial
court's order revoking his probation and reinstating his original
sentence to be served in the Shelby County Correction Center.
Defendant contends that the trial court erred by revoking his
probation based upon an unidentified and unsubstantiated laboratory
report indicating that Defendant had used drugs in violation of his
probation. Based upon a review of the entire record, we affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/dewalt.wpd
JAMES E. JACKSON v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Dwight E. Scott, Nashville, Tennessee, for the appellant, James E.
Jackson.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Jon P. Seaborg, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The petitioner, James E. Jackson, appeals the trial court's denial of
his petitions for writ of error coram nobis and post-conviction relief
from his conviction for first degree murder. In regard to the
petition for writ of error coram nobis, the petitioner claims that
newly discovered evidence entitles him to a new trial. In regard to
the petition for post-conviction relief, he contends that he received
the ineffective assistance of counsel because his trial attorney
failed to call certain witnesses to testify and did not investigate
and present a diminished capacity defense. We affirm the trial
court's denial of the petitions.
http://www.tba.org/tba_files/TCCA/jacksonjamese.wpd
STATE OF TENNESSEE v. GEORGE J. JOHNSON
Court:TCCA
Attorneys:
John H. Henderson, District Public Defender; Douglas P. Nanney,
Assistant Public Defender, Franklin, Tennessee, for the Appellant,
George J. Johnson.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Helena Walton Yarbrough, Assistant Attorney
General; Ronald L. Davis, District Attorney General; and Mary K.
Harvey, Assistant District Attorney General, for the Appellee, State
of Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, George J. Johnson, pled guilty to one count of felony
reckless endangerment, one count of vandalism over $1,000, and one
count of vandalism over $500. Following a sentencing hearing, the
trial court imposed an effective two-year community corrections
sentence. On appeal, Johnson contends that the trial court erred in
failing to grant judicial diversion. After review, we find that the
trial court failed to consider all the relevant factors in denying
diversion. Accordingly, we reverse the judgment of the trial court
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/johnsongeorgej.wpd
JAVONNI JONES v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Roger Eric Nell, District Public Defender; and Fred W. Love, Assistant
District Public Defender, for the appellant, Javonni Jones.
Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Lance A. Baker, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
The petitioner, Javonni Jones, appeals the dismissal of his petition
for post-conviction relief as being barred by the statute of
limitations. We affirm the judgment of the post-conviction court.
http://www.tba.org/tba_files/TCCA/jonesjavonni.wpd
STATE OF TENNESSEE v. CLARK DOUGLAS LIVELY
Court:TCCA
Attorneys:
Michael J. Flanagan, Nashville, Tennessee, for the appellant, Clark
Douglas Lively.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Robert S. Wilson, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
The defendant pled guilty to attempted second degree murder, and the
trial court imposed a ten-year sentence. He appeals his sentence,
arguing he should have received the minimum sentence of eight years
with alternative sentencing. We affirm the judgment of the trial
court.
http://www.tba.org/tba_files/TCCA/livelyclark.wpd
STATE OF TENNESSEE v. SHIRLEY MASON
Court:TCCA
Attorneys:
Donna Leigh Hargrove, District Public Defender; Andrew Jackson
Dearing, III, Assistant District Public Defender (at hearing and on
appeal); and Merrilyn Feirman, Nashville, Tennessee (on appeal), for
the appellant, Shirley Mason.
Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; W. Michael McCown, District
Attorney General; and Michael D. Randles, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
The defendant pled guilty to delivery of cocaine under .5 grams. The
trial court imposed a Range II eight-year sentence in the Department
of Correction. The defendant appeals her sentence, arguing it was
excessive and she should have received alternative sentencing. We
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/masonshirley.wpd
STATE OF TENNESSEE v. TIMOTHY MAURICE REYNOLDS
Court:TCCA
Attorneys:
Gregory D. Smith, Clarksville, Tennessee (on appeal); Claudia S. Jack,
District Public Defender; and Robert H. Stovall, Jr., Assistant
District Public Defender, for the appellant, Timothy Maurice Reynolds.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Mike Bottoms, District Attorney General;
and Richard H. Dunavant and Patrick S. Butler, Assistant District
Attorneys General, for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
A Giles County jury convicted the defendant, Timothy Maurice Reynolds,
of aggravated robbery, and the trial court sentenced the defendant to
twenty years as a Range II multiple offender. On direct appeal, the
defendant raises the following issues: (1) whether the evidence was
sufficient to support the conviction for aggravated robbery; (2)
whether the trial court erred in prohibiting defense counsel, during
cross-examination and closing arguments, from referring to the United
States Attorney General's comments on eyewitness identification; and
(3) whether the trial court erred in finding the defendant to be a
Range II multiple offender. We affirm the conviction; however,
because essential exhibits relating to sentencing are missing from the
record without fault of the parties, we remand for resentencing.
http://www.tba.org/tba_files/TCCA/reynoldstimothy.wpd
MICHAEL A. RHODES v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Christopher K. Thompson, Murfreesboro, Tennessee, for the Appellant,
Michael A. Rhodes.
Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and J. Paul Newman, Assistant District Attorney
General, for the Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
The petition of Michael A. Rhodes for post-conviction relief was
denied by the Rutherford County Circuit Court following an evidentiary
hearing. Because the record supports the post-conviction court's
determination that the petitioner had failed to establish ineffective
assistance of counsel, we affirm.
http://www.tba.org/tba_files/TCCA/rhodesma1.wpd
OSCAR A. SERRANO v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Jerry Gonzalez, Nashville, Tennessee, for the appellant, Oscar A.
Serrano.
Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Roger D. Moore, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The petitioner, Oscar A. Serrano, appeals the Davidson County Criminal
Court's denial of his petition for post-conviction relief from his
conviction for attempted second degree murder and sentence of nine
years. He contends (1) that he received the ineffective assistance of
counsel because his trial attorney failed to have an interpreter
explain the concept of waiving his right to appeal before he entered
into a sentencing agreement with the state; (2) that as a result of
his receiving the ineffective assistance of counsel, he did not
knowingly and voluntarily waive his right to appeal his conviction;
and (3) that the trial court improperly refused to consider various
other grounds for his receiving the ineffective assistance of counsel
at trial. We affirm the trial court's denial of the petition.
http://www.tba.org/tba_files/TCCA/serranooscara.wpd
DONALD WALLACE v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Richard McGee, Nashville, Tennessee; and James O. Martin, III,
Nashville, Tennessee, for the Appellant, Donald Wallace.
Michael E. Moore, Solicitor General; David H. Findley, Assistant
Attorney General; Dan Alsobrooks, District Attorney General; and
Robert S. Wilson, Assistant District Attorney General, for the
Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
Pursuant to the grant of a delayed appeal, the defendant, Donald
Wallace, seeks a new trial in connection with his homicide conviction
arising from the 1996 shooting death of Melinda Sue Perrin.
Previously, the defendant obtained relief on direct appeal when his
first-degree murder conviction was reduced to second-degree murder.
State v. Donald Wallace, No. 01C01-9711-CC- 00526 (Tenn. Crim. App.,
Nashville, Sept. 30, 1998). After review, we conclude that the lower
court lacked statutory authority to grant a delayed appeal, which, in
turn, deprives this court of jurisdiction to hear the appeal.
Accordingly, we dismiss the defendant's appeal.
http://www.tba.org/tba_files/TCCA/wallaced1.wpd
ROBERT LEWIS WILKS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Robert Lewis Wilks, pro se, Mountain City, TN.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; David H. Findley, Assistant Attorney General; John
Wesley Carney, Jr., District Attorney General; and Dent Morriss,
Assistant District Attorney General, for the Appellee, State of
Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Robert Lewis Wilks, appeals from the judgment of the
Robertson County Circuit Court summarily dismissing his petition for
post-conviction relief. In 1989, Wilks pled guilty to multiple felony
and misdemeanor offenses, resulting in an effective sentence of
twenty-seven years, eleven months, and twenty-nine days. The
post-conviction court dismissed Wilks' petition, finding it barred by
the statute of limitations. Finding no error, the judgment of the
post-conviction court is affirmed.
http://www.tba.org/tba_files/TCCA/wilksrl.wpd
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