January 2, 2003
Volume 9 Number 001
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):
||New Opinion(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
||New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Court of Appeals
||New Opinion(s) from the Tennessee Court of Criminal Appeals
||New Opinion(s) from the Tennessee Attorney General (PDF format)
||New Judicial Ethics Opinion(s)
||New Formal Ethics Opinion(s) from the Board of Professional Responsibility
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version.
Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.
Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.
Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.
Howard H. Vogel
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, IN THE MATTER
OF: T.K.C., T.J.C., C.B.W., T.S.W.,and T.S.C., Children Under 18
years of age
Joree G. Brownlow, Cordova, For Appellant, Tonza Williams Crawford
Paul G. Summers, Attorney General, Elizabeth C. Driver, Assistant
Attorney General, For Appellee, State of Tennessee, Department of
This is a termination of parental rights case. The mother, Tonza
Williams, appeals the order of the juvenile court terminating parental
rights to her five children. For the reasons hereinafter stated, we
affirm the juvenile court order.
ESTATE OF ZERAH FISHER, DECEASED, BY BOB MEYERS, INDIVIDUALLY & AS THE
EXECUTOR OF THE ESTATE OF ZERAH FISHER, et al. v. HOWARD E. ROGERS
John E. Dunlap, Memphis, TN, for Appellants
Kevin D. Balkwill, Memphis, TN, for Appellee
This appeal involves the transfer of a quitclaim deed for real
property. The trial court refused to set aside the quitclaim deed
after finding that the Appellants failed to prove the elements of
undue influence, fraud, or the presence of a confidential
relationship. For the following reasons, we affirm.
GLENNA M. GRISSOM v. STATE OF TENNESSEE
Stephen D. Jackson, Jackson, Tennessee, for the appellant, Glenna M.
Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, Mary M. Bers, Senior Counsel, Office of the
Attorney General and Reporter, Nashville, Tennessee, for the appellee,
State of Tennessee
This is a Claims Commission case that was dismissed for failure to
prosecute. In July 2000, the claimant filed a lawsuit with the
Tennessee Claims Commission against the State of Tennessee. The State
filed its answer in October 2000. In September 2001, the State filed
a motion to dismiss for failure to prosecute, relying on Tennessee
Code Annotated section 9-8-402(b), which provides for dismissal of a
claim with the Claims Commission if the claimant does not take action
to advance the claim for a one-year period, unless the claimant
received prior written consent from the Commission. In November 2001,
the Commission entered an order granting the State's motion to
dismiss. On appeal, the claimant argues that the one-year period
should be tolled pending a response to her complaint by the State. We
affirm, finding that the statutory one-year period began to run when
the claim was filed.
VERITEENA V. HOLLINS v. COVINGTON PIKE CHRYSLER- PLYMOUTH, INC.
Stuart B. Breakstone, Memphis, TN, for Appellant
Joseph W. Barnwell, Jr., Memphis, TN, for Appellee
Ms. Hollins filed suit against Covington Pike Chrysler-Plymouth in
general sessions court. On the day of the scheduled trial, Ms.
Hollins' counsel announced a judgment for the defendant. Both parties
agree that this judgment was announced in order to move the case from
general sessions court to circuit court. Ms. Hollins never appealed
the judgment. Eleven months later she refiled the case in general
sessions court. The sessions court dismissed the case finding it to
be res judicata. Ms. Hollins appealed this decision to circuit court.
The circuit court granted Covington Pike Chrysler- Plymouth's motion
for summary judgment on the basis of res judicata. We agree.
GINNIE LEACH, et al. v. TIM TAYLOR, et al.
Joseph R. Taggart, Jackson, For Appellant, Ginnie Leach and J. T.
Michael E. Evans, Nashville, For Appellees, Tim Taylor and Larry
Plaintiffs sued Defendants for intentional and negligent infliction of
emotional distress, stemming from comments Defendants made concerning
the condition of Plaintiffs' father's corpse. The Circuit Court,
Gibson County, granted the Defendants' Tenn. R. Civ. P. 12 Motion to
Dismiss. Plaintiffs appeal. We affirm.
GINNIE LEACH, et al. v. TIM TAYLOR, et al.
MARK VII TRANSPORTATION COMPANY, INC. v. JOSEPH BELASCO, et al.
J. Kimbrough Johnson and Craig C. Conley, Memphis, Tennessee, for the
appellant, Mark VII Transportation Co., Inc.
Tim Edwards and James F. Horner, Memphis, Tennessee, for the
appellees, Joseph Belasco and Elite Worldwide Services, Inc.
This appeal arises from a declaratory judgment action filed by Mark
VII Transportation Co., Inc., in which it sought a judgment declaring
the parties' respective rights and obligations under an asset purchase
agreement. The trial court awarded summary judgment to the
Defendant. We affirm.
JACQUELINE McKINLEY v. SAMUEL SIMHA, M.D., et al.
Buckner Wellford and John Dotson, Memphis, For Appellants, Samuel
Simha, M.D. and Health First Medical Group
William B. Raiford, III, Clarksdale, Mississippi, For Appellee,
Patient brought medical malpractice action against physician and
medical group for complications that allegedly arose from injury to
patient's right ureter suffered during total abdominal hysterectomy
performed by defendant physician. The trial court denied defendants'
Motion for Directed Verdict on the issues of cause and permanency of
patient's condition. The trial court entered judgment on jury verdict
for patient and subsequently awarded prejudgment interest to patient.
Physician and medical group appealed. We affirm the trial court's
denial of the directed verdict motion and its judgment on the jury
verdict, and reverse the court's award of prejudgment interest.
MID-AMERICA APARTMENT COMMUNITIES, L.P., a Tennessee Limited
Partnership v. COUNTRY WALK PARTNERS, et al.
Henry L. Klein, Memphis, Tennessee, for the appellant, Mid-America
Apartment Communities, L.P.
J. Cecil McWhirter and Geoffrey Gaia, Memphis, Tennessee, for the
appellee, Country Walk Partners.
Steven R. Regenwether, Memphis, Tennessee, for the appellee, Paragon
Mark W. Raines and Jay M. Atkins, Memphis, Tennessee, for the
appellee, Acuff Enterprises, Inc. d/b/a Scott Contractors and Scott
Plaintiff filed suit for damages to ponds on its property caused by
silt flowing from upstream property under development by Defendants.
The trial court found that the suit was timed barred by the three year
statute of limitations applicable to causes of actions for injuries to
property and accordingly entered judgment in favor of the defendants.
We reverse and remand.
STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. SARAH OWENS,
et al. IN THE MATTER OF S. L. O.
James S. Haywood, Jr., Brownsville, For Appellants, Frank A. Maddox
and Burnett Maddox
Paul G. Summers, Attorney General and Reporter, Dianne Stamey Dycus,
Deputy Attorney General, Nashville, for Appellee, Tennessee Department
of Children's Services
Petitioners filed a petition to intervene and for temporary custody in
a dependent and neglect proceeding filed against the adoptive parents
of the subject child. Pursuant to a later filed petition to terminate
the parental rights of the adoptive parents, the juvenile court
entered an order terminating the parental rights. The court then
ruled that the petition to intervene and temporary custody was moot on
the basis that juvenile court lacked jurisdiction over the dispute
because of the previous order terminating the parental rights of the
child's adoptive parents and granting guardianship of the child to the
state. The petitioners appealed to the circuit court for a trial de
novo, and the circuit court subsequently dismissed the appeal for lack
of jurisdiction. Petitioners appeal. We affirm the circuit court's
finding that it lacked jurisdiction to hear the appeal but amend the
order of the trial court to transfer the case to the Court of Appeals
rather than dismissal.
J. MARK SMITH v. STATE OF TENNESSEE
Farrell A. Levy, Knoxville, Tennessee, for the appellant, J. Mark
Paul G. Summers, Attorney General & Reporter, Michael E. Moore,
Solicitor General and Michael B. Leftwich, Assistant Attorney General,
for the appellee, State of Tennessee.
The plaintiff in this case filed a complaint with the Tennessee Claims
Commission pursuant to Tenn. Code Ann. S 9-8-307. The claim alleged
negligence on the part of a state trooper at an accident scene on a
state highway. The Claims Commission determined that it did not have
jurisdiction over the claim and accordingly awarded summary judgment
to the State. We reverse.
JEREMIE CHURCHILL SPARROW v. JOHN GREGORY SPARROW
Larry Rice, Laura D. Rogers, Memphis, TN; James F. Butler, Jackson,
TN, for Appellant
C. Timothy Crocker, Michael A. Carter, Milan, TN, for Appellee
This is a child support case. Although Mother received $4000 a month
in rehabilitative alimony, the trial court set her child support
obligation at nothing. Because the trial court did not fully set out
its reasoning for this deviation from the Child Support Guidelines as
required by statute, we reverse and remand.
STATE OF TENNESSEE v. CHESTER FLOYD COLE
Didi Christie, Brownsville, Tennessee (on appeal), and George Morton
Googe, District Public Defender, and Stephen P. Spracher, Assistant
Public Defender (at trial and on appeal), for the appellant, Chester
Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and Jody S. Pickens, Assistant District Attorney
General, for the appellee, State of Tennessee.
The defendant appeals his conviction and sentence for rape of a child
alleging insufficient evidence and excessive punishment. The trial
court failed to apply pre-July 1995 sentencing guidelines for this
April 1995 crime, and the trial court erred in applying one
enhancement factor. After careful review, we affirm the conviction
and remand for a new sentence.
STATE OF TENNESSEE v. DANNY RAY HOLLIDAY
Clifford K. McGown, Jr., Waverly, Tennessee, and George Morton Googe
and Jeffrey Mueller, Jackson, Tennessee, for the Appellant, Danny Ray
Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; James G. Woodall, District Attorney
General; and Shaun A. Brown, Assistant District Attorney General, for
the Appellee, State of Tennessee.
Danny Ray Holliday appeals from his Madison County Criminal Court
convictions of assault and unlawful carrying or possession of a weapon
with the intent to employ it in the commission of an offense. See
Tenn. Code Ann. SS 39-13-101 (1997) (assault); 39-17-1307 (1997)
(unlawful carrying or possession). He seeks relief on claims that the
jury reached inconsistent verdicts and that the evidence does not
sufficiently support his convictions. Because we are unconvinced of
any infirmity in his convictions, we affirm.
STEVEN D. KING v. STATE OF TENNESSEE
Addie M. Burks, Memphis, Tennessee, for the appellant, Steven D. King.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Alonda Horne Dwyer, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: MCGEE OGLE
The petitioner, Steven D. King, appeals the denial of his petition for
post-conviction relief from his convictions of felony murder,
especially aggravated kidnapping, and especially aggravated robbery.
Upon review of the record and the parties' briefs, we affirm the
judgment of the post-conviction court.
ERIC D. WALLACE v. WARDEN, JAMES M. DUKES
Eric D. Wallace, Henning, Tennessee, Pro Se .
Paul G. Summers, Attorney General and Reporter, and Kim R. Helper,
Assistant Attorney General, for the appellee, State of Tennessee.
In 1995, petitioner was convicted of first degree murder and attempted
first degree murder and sentenced to consecutive sentences of life and
fifteen years, respectively. Petitioner now files for habeas corpus
relief, alleging he was convicted based on defective indictments. The
trial court summarily dismissed petitioner's claim. We affirm the
trial court's dismissal.
CHARJORAY P. WEIR v. STATE OF TENNESSEE
Brody N. Kane, Lebanon, Tennessee, for the appellant, Charjoray P.
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.
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.
STATE OF TENNESSEE v. PHILIP R. WORKMAN
John W. Pierotti and Robert L. Hutton, Memphis, Tennessee, for the
appellant, Philip R. Workman.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Joseph F. Whalen, Assistant Attorney General;
William L. Gibbons, District Attorney General; and John W. Campbell
and Jerry R. Kitchen, Assistant District Attorneys General, for the
appellee, State of Tennessee.
W. Mark Ward, Assistant Shelby County Public Defender; and Steven J.
Mulroy, Memphis, Tennessee, for the Amicus Curiae, Tennessee
Association of Criminal Defense Lawyers.
Petitioner, who received the death penalty at his original trial in
1982, now appeals the trial court's denial of his petition for writ of
error coram nobis. On appeal, he contends the trial court should have
granted relief based upon the recantation testimony of an alleged
eyewitness and a newly discovered post-mortem x-ray of the victim. He
further contends the trial court erred in prohibiting the testimony of
an original trial juror who would testify that the recantation
testimony and the newly discovered evidence would have affected the
juror's verdict in the original trial. We conclude that the trial
court's order reflects varying and sometimes inappropriate standards
of review for coram nobis proceedings; nevertheless, the actual
findings by the trial court are sufficient for this court to conclude
that the trial court found no reasonable probability that the new
evidence would have affected the jury's verdict. We affirm the
judgment of the trial court.
PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.
GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.
JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.
To join the TBA go to: http://www.tba.org/join_bar.mgi
SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.
Visit the TBALink web site at: http://www.tba.org/op-flash.mgi
UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi
Home Contact Us PageFinder What's New Help