Opinion Flash
December 31, 2002
Volume 8 — Number 229
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 |
| 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 |
| 18 |
New Opinion(s) from the Tennessee Court of Appeals |
| 08 |
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
BETTY R. BROWN v. MELVIN E. BROWN
Court:TCA
Attorneys:
David E. Danner, Nashville, Tennessee, for the appellant, Melvin
Eugene Brown.
James L. Curtis, Nashville, Tennessee, for the appellee, Betty Ruth
Brown.
Judge: CANTRELL
First Paragraph:
The trial court granted the wife a divorce after a marriage of
twenty-five years, and ordered the husband to pay her $300 per month
as alimony in futuro. Eight years later, the husband filed a Petition
to Modify the Final Decree and eliminate the alimony obligation,
citing a significant increase in the wife's earnings. The trial court
denied the petition. We affirm the trial court.
http://www.tba.org/tba_files/TCA/brownbr.wpd
CHRISTINA CLIBURN v. PAUL DAVID BERGERON
Court:TCA
Attorneys:
Gary N. Patton, Murfreesboro, Tennessee, for the appellant, Christina
Cliburn.
John M. Green, Murfreesboro, Tennessee, for the appellee, Paul David
Bergeron.
Judge: COTTRELL
First Paragraph:
In this consolidated appeal, we are called upon to review the trial
court's decisions on two separate but related petitions. In the
action brought by the mother, the trial court dismissed for lack of
jurisdiction a petition which sought to register and modify a 1997
foreign divorce decree granting custody and support, enforce a foreign
decree of child support, and establish parentage of a second child not
the subject of the previous orders. Because the trial court did not
have jurisdiction to modify a foreign custody decree when another
state had continuing exclusive jurisdiction and because there was no
personal jurisdiction over the alleged father, a nonresident, we
affirm the trial court's decisions. In the petition subsequently
brought by the father to register and enforce a later modification by
the foreign court granting custody to the father, the trial court
granted the requested relief. We affirm that decision because any
deficiencies in the father's petition were technicalities, and the
trial court had the entire record of the foreign court's proceedings
before it.
http://www.tba.org/tba_files/TCA/cliburnc.wpd
GRAY'S DISPOSAL CO., INC., et al. v. METROPOLITAN GOVERNMENT OF
NASHVILLE, DAVIDSON COUNTY, TENNESSEE
Court:TCA
Attorneys:
Thomas E. Stewart; Thurman T. McLean, Jr., Gallatin, For Appellants
Gray's Disposal Co., Inc., and Ray Webster, d/b/a Hermitage Hills
Sanitary Co.
John L. Kennedy; Jennifer Surber, Nashville, For Appellee, The
Metropolitan Government of Nashville and Davidson County
Judge: CRAWFOD
First Paragraph:
Garbage haulers filed suit against metro government challenging
legality of "tipping fees" imposed by government on disposal of
residential solid waste collected outside the city district and
disposed of at government-owned waste facility. This suit was
consolidated with government action against appellant-haulers for
collection of unpaid tipping fees. Court granted government's Motion
for Summary Judgment as to the action filed by appellant-haulers,
finding that the tipping fee was not a tax, a rational basis existed
for the fee, the fee did not constitute an unlawful flow control
mechanism, and the fee was authorized by T.C.A. S 68-211-835(b),
thereby immunizing the government from antitrust liability. The trial
court further granted government's Motion for Summary Judgment filed
in government's suit against haulers, finding that no genuine issue of
material fact existed as to the amount owed by appellants in unpaid
tipping fees. On appeal, haulers challenged fees on double taxation,
equal protection, and federal interstate commerce clause grounds,
asserting that the tipping fee was an illegal flow control device,
unenforceable "double tax," and violation of haulers' equal protection
rights under 42 U.S.C. S 1983, as it was discriminately applied to
haulers disposing of waste from outside the city district, and not
those disposing of waste collected within the city district. Haulers
further appealed trial court's grant of summary judgment in the
consolidated case on the basis that haulers could not be held liable
for payment of fees imposed under an unconstitutional flow control
regulation. We affirm the trial court's grant of summary judgment as
to the action filed by appellant-haulers, and vacate the summary
judgment Order entered in favor of the government in the action
initiated by appellees.
http://www.tba.org/tba_files/TCA/graydisposal.wpd
IN RE: THE ESTATE OF MARIE H. GUY, DECEASED
Court:TCA
Attorneys:
Dan E. Huffstutter, Nashville, Tennessee, for appellant, Linda Sue Guy
Minton.
Joseph L. Hornick, Dickson, Tennessee, for appellee, James Hatcher
Hayes, Executor.
Judge: LILLARD
First Paragraph:
This case involves a codicil to a will. The decedent executed a valid
will, which was signed by two witnesses and included an attestation
clause. The decedent later executed a typed codicil to her will,
which was signed by two witnesses but did not include an attestation
clause. The plaintiff was a beneficiary under the will, but the
codicil removed the plaintiff as a beneficiary. Upon the decedent's
death, the plaintiff objected to the admission of the codicil into
probate. One of the witnesses to the codicil recalled signing it,
remembered the decedent stating that it was a codicil, and remembered
the second witness signing the document. The second witness to the
codicil did not remember signing it, but recognized her signature and
said that she would not have signed it unless she first saw the
decedent sign it. The probate court admitted the codicil into
probate. The plaintiff appeals, arguing that the second witness's
lack of an independent recollection of witnessing the decedent's
signature on the codicil should prevent its admission into probate.
We affirm, finding that the execution of the codicil meets the
statutory requirements, and therefore it was validly admitted into
probate.
http://www.tba.org/tba_files/TCA/guymh.wpd
HARPER ENTERPRISES, LLC, et al. v. CITY OF BEAN STATION, TENNESSEE, et al.
Court:TCA
Attorneys:
Richard C. Jessee and Lori L. Jessee, Morristown, Tennessee, for the
appellants, Harper Enterprises, LLC, and Joe Harper.
Nathan D. Rowell, Knoxville, Tennessee, and Steven Douglas Drinnon,
Dandridge, Tennessee, for the appellees, the City of Bean Station and
the Bean Station Beer Board.
Judge: SUSANO
First Paragraph:
The City of Bean Station ("the City") denied the application of the
plaintiff ("the applicant") for a permit to sell beer for off-premises
consumption. The applicant filed a petition for certiorari, naming
the City and seeking a writ of mandamus to compel it to issue the
requested permit. On cross motions for summary judgment, the trial
court granted the City summary judgment. The applicant appeals. It
contends that the City, "by actions and/or inaction," has caused its
beer ordinance, which limits beer permits within the municipality to
two, to be invalid. In the alternative, it contends that the City
"has engaged in discriminatory, arbitrary and capricious application
of the ordinance." We vacate the trial court's judgment and remand
for further proceedings.
http://www.tba.org/tba_files/TCA/harprent.wpd
GREGORY HEDGES v. TENNESSEE DEPARTMENT OF CORRECTION
Court:TCA
Attorneys:
Gregory Hedges, Mountain City, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Mark A. Hudson, Senior Counsel, Nashville,
Tennessee, for the appellee, Tennessee Department of Correction.
Judge: KOCH
First Paragraph:
This appeal involves a prisoner at the Southeast Regional Correctional
Facility who was charged with refusing to take a drug test and
attempting to alter the results of a drug test. A prison disciplinary
board sentenced the prisoner to twenty days in disciplinary
segregation and ordered him to pay a four dollar fine for attempting
to alter the test results and a twenty-five dollar fine for refusing
to take a drug test. The prisoner filed a petition for common-law
writ of certiorari in the Circuit Court for Davidson County
challenging the disciplinary board's action on the ground that the
Department had not complied with its drug testing policy. He also
challenged the twenty-five dollar fine on the ground that he had not
been convicted of refusing to take a drug test. The trial court
granted the Tennessee Department of Correction's Tenn. R. Civ. P.
12.02(6) motion to dismiss the petition. In the absence of the
disciplinary board's records, we must presume the truth of the
allegations in the prisoner's petition that he was not convicted of
refusing to take a drug test. Fining a prisoner for a disciplinary
offense of which he was not convicted violates the Department's
Uniform Disciplinary Procedures and the prisoner's constitutionally
protected property interests. Therefore, we conclude that the
prisoner's petition states a claim for which relief can be granted.
http://www.tba.org/tba_files/TCA/hedgesg_opn.wpd
GREGORY HEDGES v. TENNESSEE DEPARTMENT OF CORRECTION
Court:TCA
COTTRELL CONCURRING
http://www.tba.org/tba_files/TCA/hedgesg_con.wpd
HILTON JEFFRIES v. TENNESSEE DEPARTMENT OF CORRECTION
Court:TCA
Attorneys:
Hilton Jeffries, Only, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Dawn Jordan, Assistant Attorney General, for
the appellee, Tennessee Department of Correction.
Judge: KOCH
First Paragraph:
This appeal involves a prison disciplinary proceeding. A prisoner at
the Southeast Regional Correctional Facility was charged with four
serious disciplinary infractions. He pleaded guilty to three charges,
and a prison disciplinary board found him guilty of the fourth. The
board placed the prisoner in punitive segregation for five days and
ordered him to pay $810 in restitution from his inmate trust fund
account. The prisoner filed a petition for common-law writ of
certiorari in the Chancery Court for Davidson County alleging (1) that
his guilty pleas had been coerced and (2) that he had been denied due
process on the fourth charge by the board's failure to provide him
twenty- four hours notice of the hearing and its interference with his
opportunity to present exculpatory evidence. The trial court granted
the Tennessee Department of Correction's motion for summary judgment
and dismissed the prisoner's petition. We have determined that the
trial court erred by granting the summary judgment with regard to the
$810 restitution order because the record contains material factual
disputes regarding whether the prisoner waived his right to
twenty-four hours notice of the hearing and whether the board refused
to permit him to call an exculpatory witness.
http://www.tba.org/tba_files/TCA/jeffriesh.wpd
BASIL MARCEAUX I v. GOVERNOR DON SUNDQUIST, in his official capacity, et al.
Court:TCA
Attorneys:
Basil Marceaux I, Pro Se.
Paul G. Summers, Attorney General & Reporter, and Richard H. Dunavant,
Assistant Attorney General, for the appellees, State of Tennessee, et
al.
Judge: FARMER
First Paragraph:
Appellant filed a complaint in the Davidson County Chancery Court
naming Governor Don Sundquist, all members of the United States
Congress representing Tennessee, all members of the state legislature,
all Tennessee District Attorneys General, all Tennessee Sheriff's
Departments, and others as defendants. The complaint alleged the
numerous defendants were guilty of "kidnapping, extortion, and
racketeering" through the application of laws calling for mandatory
car insurance, and the practice of routine traffic stops. The trial
court dismissed the complaint finding, inter alia, that Appellant
failed to state a claim upon which relief can be granted. We affirm.
http://www.tba.org/tba_files/TCA/marceauxb1.wpd
SUSAN ALVA ROSE NORRIS V. LESLIE RAY NORRIS
Court:TCA
Attorneys:
Clark Lee Shaw, Nashville, Tennessee, for the appellant, Leslie Ray
Norris
D. Scott Parsley, Joshua G. Strickland, Nashville, Tennessee, for the
appellee, Susan Alva Rose Norris
Judge: MALOAN
First Paragraph:
This appeal arises from a post-divorce contempt petition where the
petitioner mother alleged the respondent father failed to provide
income information required by a previous court order. The trial
court entered a judgment for past due child support in the amount of
$34,950 and awarded attorney's fees in the amount of $1,000. On this
appeal, the father contends the judgment violates the prohibition
against retroactive modification of child support, Tenn. Code Ann. S
36- 5-101(a)(5) and that the award of attorney's fees was error. We
reverse the judgment for past due child support and affirm the award
of attorney's fees.
http://www.tba.org/tba_files/TCA/norrissa.wpd
AUDREY J. OWEN v. WILLIAM C. MARTIN, III
Court:TCA
Attorneys:
B. Lynn Morton, Clarksville, For appellant, William C. Martin, III
R. Price Nimmo; Rabin P. Nimmo, Nashville, For Appellee, Audrey C.
Owen
Judge: CRAWFORD
First Paragraph:
This case was previously remanded by this Court for a determination of
monthly payments due to Appellee from a resulting trust. Appellant
appeals from an Order entered by the Chancery Court upon remand. The
Order set the amount of the monthly payments but set no end date for
those payments. We hold (1) that the corpus of the resulting trust is
the equity Appellee possessed in the Property and is, therefore, a
finite amount, (2) that the corpus should be reduced by rental amounts
owed to Appellant by Appellee, and (3) that the remainder of the
corpus may be paid as provided by the trial court.
http://www.tba.org/tba_files/TCA/owenaj1.wpd
LARRY E. PARRISH, et al. v. ROBERT S. MARQUIS, et al.
Court:TCA
Attorneys:
John J. Mulrooney, Memphis, Tennessee, for the Appellants, Larry E.
Parrish and Larry E. Parrish, P.C.
Deborah C. Stevens and Summer H. Stevens, Knoxville, Tennessee, for
the Appellee, Ronald C. Koksal
Frank Q. Vettori, Knoxville, Tennessee, for the Appellee, Robert S.
Marquis
Judge: GODDARD
First Paragraph:
In this appeal from the Circuit Court for Knox County the Appellants,
Larry E. Parrish and Larry E. Parrish, P.C., contend that the Trial
Court erred in dismissing their cause of action upon grounds that it
was not timely filed under T.C.A. 28-1-105(a). We affirm the judgment
of the Trial Court.
http://www.tba.org/tba_files/TCA/parrishl.wpd
PAUL R. PEAK, et al. v. TRAVELERS INDEMNITY COMPANY
Court:TCA
Attorneys:
Rick G. Mansfield, Murfreesboro, Tennessee and Larry R. McElhaney, II
and S. Alexa Whittemore, Nashville, Tennessee, for the appellants,
Paul R. Peak and Virginia M. Peak.
Marc O. Dedman and Gayle B. Lakey, Nashville, Tennessee, for the
appellee, Travelers Indemnity Company.
Judge: CAIN
First Paragraph:
The named insureds in an automobile liability insurance policy
providing $300,000 per accident liability insurance appeal a trial
court grant of summary judgment that they had effectively reduced
their uninsured motorist limits per accident to $60,000. We affirm
the judgment of the trial court.
http://www.tba.org/tba_files/TCA/peakpr.wpd
IN RE: THE ESTATE OF HARLEY TIMOTHY PRICE
Court:TCA
Attorneys:
Charles J. Gearhiser and Robin L. Miller, Chattanooga, Tennessee, for
the Appellant, Cynthia A. Price.
J. Michael Sharp, Cleveland, Tennessee and Tracy C. Wooden,
Chattanooga, Tennessee, for the Appellee, Estate of Harley Timothy
Price.
Judge: DANIEL
First Paragraph:
This case involves an appeal by Mrs. Cynthia A. Price, widow of Harley
Timothy Price, who appeals the trial court's determination that Mr.
Price was domiciled in Marion County, Tennessee thereby providing a
jurisdictional basis for the probate of his will. In responding to
this appeal, the estate of Harley Timothy Price appeals the trial
court's determination that Mrs. Cynthia A. Price has standing to
contest the jurisdiction of the Court. The trial court found that
Mrs. Price had standing to contest jurisdiction. It also found that
Mr. Price was domiciled in the State of Tennessee and, therefore, the
letters testamentary were issued. For the reasons stated in this
opinion, we affirm the trial court's decision as to both issues.
http://www.tba.org/tba_files/TCA/priceht.wpd
RIVER LINKS AT DEER CREEK, LLC v. JOSEPH MELZ, et al.
Court:TCA
Attorneys:
Phillip North and R.J. Pursell, Nashville, Tennessee, for the
appellants, Joseph Melz, Deer Creek Golf Interests, LLC and Deer Creek
Construction, Inc.
Nancy S. Jones and Caroline Thomas Trost, Nashville, Tennessee, for
the appellee, River Links at Deer Creek, LLC.
Judge: CANTRELL
First Paragraph:
The developer of a golf course brought a fraud complaint against the
property owner who furnished the land for the course, and against the
companies he controlled. The defendants argued that the plaintiff's
remedies were limited by the arbitration clauses in two of the three
contracts that defined the relationship between them. The trial court
ruled that the arbitration clauses were not applicable to the
plaintiff's claims. We affirm the trial court.
http://www.tba.org/tba_files/TCA/riverlinks.wpd
VANDERBILT UNIVERSITY
vs.
TECHGEM DIAMOND TOOLS, INC., TECH-GEM CORP., S.S. GUPTA, a/k/a S.S.
KANDELWAL, and SURESH GUPTA
Court:TCA
Attorneys:
lan Dale Johnson and Alfred H. Knight, Nashville, Tennessee, for the
Appellant, Tech-Gem Corp.
Katharine R. Cloud, Nashville, Tennessee, for the Appellee, Vanderbilt
University.
Judge: DANIEL
First Paragraph:
This is an appeal by Tech-Gem Corporation from a default judgment
entered by the Chancery Court of Davidson County as a sanction for
non-compliance with discovery orders. Prior to trial, the Chancellor
granted Vanderbilt University's Motion for a Default Judgment against
Tech-Gem as to all four issues of liability alleged in Vanderbilt's
complaint because of repeated failures to comply with discovery
requests. Over one year later, the Chancellor heard the case and
found that Vanderbilt was entitled to a judgment, jointly and
severally against the defendants TechGem Diamond Tools, Inc. and
Tech-Gem, in the amount of $22,731.00 plus pre-judgment interest.
After the trial, Tech-Gem filed a Motion to Set Aside the Default
Judgment. The Chancellor denied the motion and found that Vanderbilt
would be prejudiced if the Motion to Set Aside were granted. We agree
with the trial court and affirm its decision for the reasons stated
herein.
http://www.tba.org/tba_files/TCA/techgem.wpd
MR. SAMMY W. VEST, et al. v. DR. FRANCIS GOSWITZ, et al.
Court:TCA
Attorneys:
Edward A. Slavin, Jr., St. Augustine, Florida, for the Appellants,
Sammy W. Vest, Anglia M. Somner, Cheryl D. Travis and Danny W. Vest
Debra A. Thompson, Knoxville, Tennessee, for the Appellees, Francis
Goswitz, M.D., and Helen Vodopick, M.D.
Judge: GODDARD
First Paragraph:
This is a medical malpractice case filed on January 3, 2000, and
amended on January 11 of the same year. The suit was by Sammy W. Vest
and his adult children, Anglia M. Somner, Cheryl D. Travis, and Danny
W. Vest, against Dr. Francis Goswitz and Dr. Helen Vodopick. The suit
seeks damages for the Defendants' failure to refer Mr. Vest to a
specialist, resulting in an injury to him as well as to his children.
The Trial Judge sustained a motion by the Defendants to dismiss the
children as parties Plaintiff, and later a motion for summary judgment
as to Mr. Vest's suit. He further granted sanctions pursuant to Rule
11.03 against counsel for the Plaintiff. We affirm.
http://www.tba.org/tba_files/TCA/vests.wpd
DENVER J. WADDELL v. LAWRENCE M. OGLEDZINKSKI
Court:TCA
Attorneys:
April Carroll Meldrum, Clinton, Tennessee, for the Appellant, Denver
J. Waddell
James S. MacDonald, Knoxville, Tennessee, for the Appellee, Lawrence
M. Ogledzinkski
Judge: GODDARD
First Paragraph:
In this appeal from the Knox County Circuit Court the Appellant,
Denver J. Waddell, contends that the Trial Court erred in dismissing
his case by grant of summary judgment upon grounds that the cause of
action against the Appellee, Lawrence M. Ogledzinkski, is precluded by
T.C.A. 50-6- 108(a). We affirm the judgment of the Trial Court.
http://www.tba.org/tba_files/TCA/waddel.wpd
LISA H. WADE v. WILLIAM HOWELL WADE, II
Court:TCA
Attorneys:
Gregory D. Smith, Clarksville, Tennessee, for the appellant, William
Howell Wade, II.
Debra A. Wall, Clarksville, Tennessee, for the appellee, Lisa H. Wade.
Judge: FARMER
First Paragraph:
This appeal arises from a change in child support, increasing the
Appellant's monthly support obligation and awarding Appellee one half
of all un-reimbursed medical and dental expenses while Appellant is in
the military. Concerning child support, we affirm in part, with
modification, and reverse and remand in part. Concerning
un-reimbursed medical and dental expenses, we affirm.
http://www.tba.org/tba_files/TCA/wadelh.wpd
ERVIN LEE HAYES v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Mike J. Urquhart, Nashville, Tennessee, for the appellant, Ervin Lee
Hayes.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Roger Moore, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Petitioner was indicted for two counts of attempted first degree
murder. Following a jury trial, the Petitioner was convicted of both
counts of attempted first degree murder. The trial court sentenced
the Petitioner as a Range II, multiple offender to thirty-five years
for each count and ordered that the sentences be served consecutively.
The Defendant appealed, and this Court affirmed the judgment of the
trial court. The Tennessee Supreme Court denied permission to appeal.
The Petitioner then filed a pro se motion for post-conviction relief.
The trial court found that the Petitioner failed to state any grounds
for which relief could be granted and ordered that the Petitioner
respond within fifteen days. Receiving no response, the trial court
dismissed the petition. Eventually, with permission from the trial
court based on extenuating circumstances, the Petitioner filed an
amended pro se petition, alleging ineffective assistance of counsel.
Following an evidentiary hearing, the trial court denied the petition.
The Petitioner now appeals the denial of his petition for
post-conviction relief. Finding no error, we affirm the judgment of
the trial court.
http://www.tba.org/tba_files/TCCA/hayesel.wpd
STATE OF TENNESSEE v. RUFUS STEVEN JOHNS
Court:TCCA
Attorneys:
John Mitchell, Murfreesboro, Tennessee, for the appellant, Rufus
Steven Johns.
Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; and William C. Whitesell, Jr.,
District Attorney General, for the appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Rufus Steven Johns, entered a nolo contendere plea to
illegally registering to vote, a class E felony. After a sentencing
hearing, the trial court sentenced the Defendant as a Range I standard
offender to eighteen months to be served on probation. In this appeal
as of right, he raises three issues: (1) whether the district attorney
general abused his discretion by denying the Defendant pretrial
diversion, (2) whether the trial court abused its discretion by
refusing to grant judicial diversion, and (3) whether the trial court
imposed an excessive sentence. We affirm the judgment of the trial
court.
http://www.tba.org/tba_files/TCCA/johnsrs.wpd
STATE OF TENNESSEE v. ROBERT S. LUTRICK
Court:TCCA
Attorneys:
Claudia Jack (at trial), Pulaski, Tennessee; and R. H. Stovall, Jr.
(on appeal), Columbia, Tennessee, for the Appellant, Robert S.
Lutrick.
Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; T. Michel Bottoms, District Attorney
General; and Richard H. Dunavant and Patrick Butler, Assistant
District Attorneys General, for the Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
After a Giles County Circuit Court jury convicted the defendant,
Robert S. Lutrick, of aggravated assault, a Class C felony, he applied
to the court for an order of diversion. The trial court denied the
request and sentenced the defendant to the minimum Range I sentence of
three years, to be served on probation. The defendant now appeals the
denial of judicial diversion. Upon review, we affirm.
http://www.tba.org/tba_files/TCCA/lutrickroberts.wpd
JEREMY KYLE MASSEY v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
William J. Eledge, Lawrenceburg, Tennessee, for the Appellant, Jeremy
Kyle Massey.
Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; Mike Bottoms, District Attorney General;
and James G. White II, Assistant District Attorney General, for the
Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
The petitioner, Jeremy Kyle Massey, appeals the Lawrence County
Circuit Court's denial of his petition for post-conviction relief. He
challenges his conviction pursuant to a plea agreement with the state
and contends that he received ineffective assistance of counsel and
that his guilty plea was involuntary and constitutionally deficient.
He further complains that the post-conviction court erroneously
excluded certain testimony as irrelevant. We affirm the denial of
post-conviction relief.
http://www.tba.org/tba_files/TCCA/masseyjeremykyle.wpd
STATE OF TENNESSEE v. RICKY E. PULLEN
Court:TCCA
Attorneys:
Gerald L. Melton, District Public Defender, and Russell N. Perkins,
Assistant District Public Defender, for the appellant, Ricky E.
Pullen.
Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and John W. Price, III, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The defendant, Ricky E. Pullen, was indicted by a Rutherford County
Grand Jury on one count of rape of a child and one count of aggravated
sexual battery. After a jury trial, the defendant was convicted of
aggravated sexual battery and acquitted of child rape. The trial
court sentenced him as a violent offender to eight years in the
Department of Correction. Only one issue is raised on appeal:
whether the evidence was sufficient to convict the defendant of
aggravated sexual battery. We conclude that the evidence was
sufficient and affirm the conviction.
http://www.tba.org/tba_files/TCCA/pullenrickye.wpd
TERRY DAVID STEPHENS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Jesse N.H. Bacon, Madison, Tennessee, for the appellant, Terry David
Stephens.
Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Victor S. Johnson, III, District
Attorney General; and Roger Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner was convicted in 1996 of aggravated rape and sentenced
to confinement for twenty years as a Range I, standard offender. The
conviction was affirmed on direct appeal and, subsequently, he filed a
timely petition for post-conviction relief. The post-conviction court
dismissed the petition following a hearing, and the petitioner timely
appealed, alleging that trial counsel was ineffective for failing to
convey settlement offers and to request jury instructions as to
lesser-included offenses. The post-conviction court dismissed the
petition following a hearing, and we affirm that dismissal.
http://www.tba.org/tba_files/TCCA/stephensterrydavid.wpd
CHARJORAY P. WEIR v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Brody N. Kane, Lebanon, Tennessee, for the appellant, Charjoray P.
Weir.
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Tom P. Thompson, Jr., District Attorney
General; and Robert Hibbett, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Petitioner was indicted for first degree murder. Pursuant to a
plea agreement, he pled guilty to second degree murder, and received a
sentence of fifteen years to serve in the Tennessee Department of
Correction. The Petitioner then filed a petition for post-conviction
relief, alleging that he was denied effective assistance of counsel
resulting in an unknowing and involuntary guilty plea. The trial
court dismissed the petition based on its untimely filing. However,
our Court reversed that finding. The Petitioner filed an amended
petition, and following an evidentiary hearing, the trial court denied
the request for post-conviction relief. The Petitioner now appeals,
arguing that the trial court erred by denying him post-conviction
relief. Finding no error, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/weircp1.wpd
PATRICK WINGATE v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
James Patrick Wingate, pro se.
Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; William Michael McCown, District Attorney General;
and Robert G. Crigler and Ann L. Filer, Assistant District Attorneys
General, for the Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
Patrick Wingate appeals the Bedford County Circuit Court's summary
dismissal of his petition for post-conviction relief. He is serving
sentences of life and 25 years in the Department of Correction as a
result of his 1998 convictions of first-degree murder and arson. This
court affirmed the convictions. See State v. Patrick Wingate, No.
M1999-00624-CCA-R3-CD (Tenn. Crim. App., Nashville, May 25, 2000),
perm. app. denied (Tenn. 2000). Wingate's post-conviction petition
challenged (1) the effectiveness of his trial counsel's assistance and
(2) the sufficiency of the convicting evidence. On April 30, 2001,
the post-conviction court entered an order dismissing the petition on
grounds that it contained mere conclusions of law and bare,
unsupported factual allegations. Because we agree that the
post-conviction petition was properly dismissed, we affirm.
http://www.tba.org/tba_files/TCCA/wingatepatrick.wpd
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