Opinion Flash
March 4, 2003
Volume 9 — Number 038
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 |
| 16 |
New Opinion(s) from the Tennessee Court of Appeals |
| 07 |
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
AMERICAN INDEMNITY COMPANY v. IRON CITY LUMBER & PALLET, INC., et al.
Court:TCA
Attorneys:
Parks T. Chastain and Gordon C. Aulgur, Nashville, Tennessee, for the
appellant, American Indemnity Company.
Randy Hillhouse, Lawrenceburg, Tennessee, for the appellee, Iron City
Lumber & Pallet, Inc.
W. Charles Doerflinger, Lawrenceburg, Tennessee, for the appellee, All
Weigh Scale, Inc.
Judge: FARMER
First Paragraph:
This case involves an insurance company's appeal of the trial court's
decision that the company has a duty to defend its insured under a
commercial general liability policy. Applying Texas law, we find that
no such duty exists and, accordingly, reverse the decision of the
trial court.
http://www.tba.org/tba_files/TCA/americanindemnity1.wpd
JERRY T. BEECH CONCRETE CONTRACTOR, INC. v. LARRY POWELL BUILDERS,INC., et al.
Court:TCA
Attorneys:
Timothy W. Burrow, Nashville, Tennessee, for the appellant, Jerry T.
Beech Concrete Contractor, Inc.
John R. Reynolds, Nashville, Tennessee, for the appellees, Larry
Powell Builders, Inc.
Judge: CAIN
First Paragraph:
In this appeal from the trial court's award of attorneys fees,
Appellant seeks review of the trial court's refusal to award the full
amount of fees sought. We modify the trial court's findings and
affirm as to the amount of the award.
http://www.tba.org/tba_files/TCA/beechjerry.wpd
WILLIAM A. DALTON, et al. v. GERALD W. DALE, et al.
Court:TCA
Attorneys:
W. Carl Spining, Nashville, Tennessee, for the appellant, Gerald W.
Dale.
William H. Farmer, Nashville, Tennessee, for the appellees, William a.
and M. Charleston Dalton.
Judge: CAIN
First Paragraph:
Defendant appeals adverse summary judgment as to diminution in value
of a 1995 Jaguar XJ6 automobile based upon alleged undisputed expert
testimony. Judgment is reversed, and the case is remanded.
http://www.tba.org/tba_files/TCA/daltonwilliam.wpd
DORIS DENNIS v. WHITE WAY CLEANERS, L.P., et al.
Court:TCA
Attorneys:
R. Stephen Doughty, Nashville, Tennessee, for the appellant Doris
Dennis.
H. Rowan Leathers, III and Douglas B. Janney, III, Nashville,
Tennessee, for the appellee, White Way Cleaners, L.P.
Judge: CANTRELL
First Paragraph:
A supervisory employee of a dry cleaning firm filed suit against her
employer alleging she was terminated from her job and replaced by a
man. She contended that her employer's action was motivated by gender
discrimination, in violation of the Tennessee Human Rights Act, Tenn.
Code Ann. S 4-21-101. The defendant argued that her termination was
not based on discrimination, but was the result of a general
downsizing and reorganization of the work force. The trial court
granted summary judgment to the employer. We reverse, because we
believe the plaintiff raised a genuine issue of material fact as to
the reasons behind her termination.
http://www.tba.org/tba_files/TCA/dennisd.wpd
RANDY HENSLEY v. TENNESSEE DEPARTMENT OF CORRECTION
Court:TCA
Attorneys:
Randy Hensley, Mountain City, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Dawn Jordan, Assistant Attorney General, for
the appellee, State of Tennessee.
Judge: CANTRELL
First Paragraph:
An inmate in a correctional institution sought a review of the
punishment imposed by a disciplinary committee after finding that the
inmate tested positive for drugs and attempted to alter a drug screen.
The Chancery Court of Davidson County dismissed the petition for
certiorari because the punishment alleged was not atypical or did not
result in significant hardship to the petitioner. Therefore, the
petition did not state a claim on which relief could be granted. We
affirm.
http://www.tba.org/tba_files/TCA/hensleyr_opn.wpd
RANDY HENSLEY v. TENNESSEE DEPARTMENT OF CORRECTION
Court:TCA
KOCH CONCURRING AND DISSENTING
http://www.tba.org/tba_files/TCA/hensleyr_con.wpd
JOHN A. HIGGINBOTHAM v. ANNE CLEVE
Court:TCA
Attorneys:
Anne Cleve, Fayetteville, Tennessee, Pro Se.
Randall E. Self and James S. Kidd, Fayetteville, Tennessee, for the
appellee, John A. Higginbotham.
Judge: CAIN
First Paragraph:
Anne Cleve appeals, pro se, the action of the trial judge in refusing
to set aside a judgment entered against her enforcing a foreign
judgment entered in the Circuit Court of Madison County, Alabama. We
affirm the action of the trial judge.
http://www.tba.org/tba_files/TCA/higginbothamj.wpd
IN RE: T.L.R. AND A.W.R.
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. SANDRA JANE RILEY
Court:TCA
Attorneys:
Mark Walker, Goodlettsville, Tennessee, for the appellant, Sandra Jane
Riley.
Paul G. Summers, Attorney General and Reporter, and Elizabeth C.
Driver, Assistant Attorney General, for the appellee, State of
Tennessee, Department of Children's Services.
Judge:
First Paragraph:
This case involves the termination of parental rights. The mother of
the two young children at issue had a history of cocaine and marijuana
abuse. In September 1999, the state department of children's services
obtained custody of the children and placed them in a foster home.
While the children were in foster care, the mother participated in
drug rehabilitation programs and attempted to obtain permanent
employment. The mother made some progress, but repeatedly relapsed
back into drug and alcohol use, and failed to procure a permanent job
or a permanent residence. In August 2001, the State filed a petition
to terminate the mother's parental rights. The trial court granted
the State's petition. The mother now appeals. We affirm, finding
clear and convincing evidence that the mother had failed to comply
with the permanency plan, that conditions that prevented the
children's safe return still persisted, and that termination of the
mother's parental rights is in the children's best interest.
http://www.tba.org/tba_files/TCA/inretlr.wpd
CLINTON LIEN v. METROPOLITAN GOVERNMENT OF NASHVILLE and DAVIDSON COUNTY, et al.
Court:TCA
Attorneys:
Gregory D. Smith, Clarksville, Tennessee, for the appellant, Clinton
Lien.
Karl F. Dean and William Michael Safley, Nashville, Tennessee, for the
appellee, Metro Government of Nashville and Davidson County.
Judge: CAIN
First Paragraph:
Chief Emmett H. Turner, of the Metropolitan Government of Nashville
and Davidson County Police Department, discharged Appellant from
employment as a police officer for certain violations of various rules
and regulations. The officer appealed his discharge and, after a
hearing, the Administrative Law Judge reduced his penalty to a thirty
day suspension. The appeal was further heard before the Civil Service
Commission, which reversed the ALJ and upheld the dismissal of the
officer. The Chancery Court of Davidson County upheld the action of
the Civil Service Commission. The officer appeals, and we affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TCA/lienclinton.wpd
JABARI ISSA MANDELA v. DONAL CAMPBELL
Court:TCA
Attorneys:
Jabari Issa Mandela, Henning, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Pamela S. Lorch, Assistant Attorney General,
for the appellee, Donal Campbell.
Judge: KOCH
First Paragraph:
This appeal involves a dispute between a prisoner and the Tennessee
Department of Correction regarding the Department's mail policy.
After the Department returned two packages addressed to him to their
respective senders and denied his request for a declaratory order, the
prisoner filed a petition in the Chancery Court for Davidson County
seeking a declaratory judgment that the Department's policy should
have been promulgated as a rule under Tennessee's Uniform
Administrative Procedures Act and that returning the packages was
inconsistent with the warden's statutory obligation to "receive" an
incarcerated prisoner's property. The trial court upheld the policy
and its application to the prisoner, and the prisoner has appealed.
We affirm.
http://www.tba.org/tba_files/TCA/mandelajl1.wpd
DAVID ANTHONY NORMAN v. MELISSA DAWN NORMAN
Court:TCA
Attorneys:
Rose Palermo, Nashville, TN, for Appellant
Maclin P. Davis, Jr., Rachelle Laisnez, Nashville, TN, for Appellee
Judge: HIGHERS
First Paragraph:
This appeal arises from a divorce proceeding. The trial court,
finding the Husband completely at fault, granted Wife a divorce. The
trial court also distributed the parties' marital property, awarded
Wife long-term alimony, set the child support amount and ordered
Husband to pay $30,000 of Wife's attorney fees. The parties raise
multiple issues on appeal. For the following reasons, we vacate in
part, reverse in part and remand.
http://www.tba.org/tba_files/TCA/normandavida.wpd
JANIS LOUISE OLIVER-GILL v. JERRY T. KROHN, et al.
Court:TCA
Attorneys:
Thomas F. Bloom, Nashville, Tennessee, for the appellant, Janis Louise
Oliver-Gill.
Richard M. Smith and H. Brent Patrick, Nashville, Tennessee, for the
appellees, Jerry T. Krohn and wife, Linda L. Krohn, d/b/a Krohn Homes,
LLC.
Judge: CAIN
First Paragraph:
This appeal involves a suit brought by the buyer of certain real
property against the builder and seller of that home seeking damages
for, inter alia, negligent construction. From a jury verdict rendered
in favor of the defendant, the plaintiff appeals. We affirm.
http://www.tba.org/tba_files/TCA/olivergillj.wpd
ROBERT PIRTLE v. TENNESSEE BOARD OF PAROLES, et al.
Court:TCA
Attorneys:
Robert Pirtle, Tiptonville, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter, and John R. Miles,
Nashville, Tennessee, for the appellees, Tennessee Board of Paroles,
Charles Traughber, John A. Greer, Darlene Millson, Dawn Chase, and Tom
Biggs.
Judge: KOCH
First Paragraph:
This appeal involves a dispute between a prisoner and the Tennessee
Board of Paroles regarding the revocation of his parole. After
exhausting his administrative remedies, the prisoner filed a petition
for common-law writ of certiorari in the Chancery Court for Davidson
County asserting that he did not commit the crime that triggered the
revocation of his parole. The trial court eventually dismissed the
petition on the ground that it was not timely filed, and the prisoner
has appealed. While his appeal was pending, the prisoner was released
from the Department of Correction. Accordingly, because this appeal
is now moot, we vacate the trial court's order and remand the case
with directions to dismiss the prisoner's petition.
http://www.tba.org/tba_files/TCA/pirtler.wpd
JOHN DAVID RHOADES, II, et al. v. MICHAEL L. TAYLOR, et al.
Court:TCA
Attorneys:
Wayne Detring, Hendersonville, Tennessee, for the appellants, John
David Rhoades, II, et al.
Joe M. Haynes, Goodlettsville, Tennessee, for the appellees, Michael
L. Taylor, et al.
Judge: COTTRELL
First Paragraph:
This appeal involves a conflict between neighbors over whether the
Taylors have a right to use a gravel driveway located on property
owned by the Rhoades to access their property. The trial court found
that an implied easement was proved. The Rhoades appeal that judgment
to this court arguing that the Taylors failed to prove two elements
necessary for a finding of an implied easement. We affirm the trial
court's judgment.
http://www.tba.org/tba_files/TCA/rhoadesjd.wpd
CHARLES WAYNE ROOKER v. DONAL CAMPBELL
Court:TCA
Attorneys:
Charles Wayne Rooker, Pikeville, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Stephanie R. Reevers, Senior Counsel, for the
appellee, Donal Campbell.
Judge: KOCH
First Paragraph:
This appeal involves a dispute between a prisoner and the Department
of Correction over his release eligibility date. Dissatisfied with
the response to his petition for a declaratory order, the prisoner
filed a petition for a declaratory judgment in the Chancery Court for
Davidson County, asserting that the extension of his release
eligibility date violated the Department's policy regarding punishment
for escape and the terms of his plea agreement. He also claimed that
the Department had wrongfully deprived him of sentence reduction
credits. The trial court dismissed the petition, and the prisoner has
appealed. We affirm.
http://www.tba.org/tba_files/TCA/rookercw.wpd
CITY OF SEVIERVILLE v. BILL GREEN, et al.
Court:TCA
Attorneys:
Linda J. Hamilton Mowles, Knoxville, Tennessee, for the Appellant,
City of Sevierville
Robert L. Ogle, Sevierville, Tennessee, for the Appellees, Bill Green,
Claudine Green, Dallas Coffman, and Jean Coffman
Judge: GODDARD
First Paragraph:
This appeal from the Sevier County Circuit Court questions whether the
Trial Court erred in awarding landowners compensation for incidental
damages to their property because the City of Sevierville changed the
frontage access to their property from unlimited access to restricted
access. We affirm the judgment of the Trial Court.
http://www.tba.org/tba_files/TCA/sevierv1.wpd
LEROY SMITH v. RONALD W. GOURLEY
Court:TCA
Attorneys:
Louis W. Oliver, III, Hendersonville, Tennessee, for the appellant,
Ronald W. Gourley.
Bruce N. Oldham, Gallatin, Tennessee, for the appellee, Leroy Smith.
Judge: CANTRELL
First Paragraph:
The Chancery Court of Sumner County denied enforcement of a lease with
an option to purchase. On appeal the lessee argues that the
chancellor erred in refusing to allow a copy of the lease/option to be
introduced into evidence after he testified that the original had been
lost. We find that the chancellor refused to allow the lease/option
into evidence because of a lack of trustworthy proof regarding its
execution. Therefore, we affirm.
http://www.tba.org/tba_files/TCA/smithl.wpd
STATE OF TENNESSEE v. JESSE WAYNE BAKER
Court:TCCA
Attorneys:
Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Jesse
Wayne Baker.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Eleanor Cahill, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The defendant, Jesse Wayne Baker, pled guilty to introduction of a
controlled substance into a penal institution, a Class C felony. The
trial court sentenced the defendant to four years to be served
consecutively with a previous sentence. On appeal, the defendant
argues that his sentence is excessive and the trial court erred in
denying alternative sentencing and in imposing consecutive sentencing.
Based upon our review, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/bakerj.wpd
STATE OF TENNESSEE v. JARED MICHAEL CHRISTEIN
Court:TCCA
Attorneys:
Mark D. Slagle, Johnson City, Tennessee, for the appellant, Jared
Michael Christein.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Doug Godbee, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The appellant, Jared Michael Christein, was convicted by a jury in the
Sullivan County Criminal Court of second degree murder, felony murder,
and especially aggravated robbery. The appellant's second degree
murder conviction was merged into his felony murder conviction and he
was sentenced to life imprisonment in the Tennessee Department of
Correction. The trial court also sentenced the appellant to
twenty-five years incarceration for the especially aggravated robbery
conviction. On appeal, the appellant raises the following issues for
our review: whether sufficient evidence existed to support his
convictions and whether the trial court properly charged the jury on
the appropriate lesser-included offenses. Upon review of the record
and the parties' briefs, we affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/christeinj.wpd
J.D. HICKMAN v. TENNESSEE BOARD OF PROBATION AND PAROLE
Court:TCCA
Attorneys:
J.D. Hickman, Mountain City, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Arthur Crownover II,
Senior Counsel, for the appellee, Tennessee Board of Probation and
Parole.
Judge: COTTRELL
First Paragraph:
Inmate filed a motion for declaratory relief regarding his rights to
access certain materials held by the Board of Probation and Parole and
sought an order from the trial court mandating the production of those
materials at the expense of the Board. The trial court denied the
motion for summary judgment filed by the inmate and dismissed the
action in its entirety because the requirements for a mandatory
injunction had not been met, but stated that the inmate was not
prohibited from again seeking the materials by identifying the
specific documents he wanted copied and paying in advance for the
copies. We affirm the trial court's decision to deny the motion for
summary judgment, but reverse the dismissal and remand.
http://www.tba.org/tba_files/TCCA/hickmanjd1.wpd
STATE OF TENNESSEE v. DARYL ADRIAN BENJAMIN INGRAM
Court:TCCA
Attorneys:
Ramsdale O'DeNeal, Jr., Jackson, Tennessee, for the appellant, Daryl
Adrian Benjamin Ingram.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; James G. (Jerry) Woodall, District
Attorney General; and Shaun A. Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
The defendant entered "open" guilty pleas to eight counts of
aggravated robbery and two counts of attempted aggravated robbery.
The trial court imposed an effective forty-year sentence. On appeal,
the defendant argues: (1) his sentences are excessive; and (2) the
trial court erred in imposing partial consecutive sentencing. We
affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/ingramd.wpd
STATE OF TENNESSEE v. CHRISTOPHER K. KNIGHT
Court:TCCA
Attorneys:
Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Christopher
K. Knight.
Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and John W. Overton, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
A Hardin County jury convicted the defendant of two counts of
aggravated assault. On appeal, he contends: (1) the trial court erred
by refusing to grant a mistrial during jury voir dire; (2) the trial
court erred in denying the defendant's motion for new trial based on
alleged juror misconduct; and (3) the evidence was not sufficient to
support his convictions. We affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/knightc.wpd
TONY S. WALKER v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
J. Mark Johnson, Trenton, Tennessee, for the appellant, Tony S.
Walker.
Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Garry G. Brown, District Attorney
General; and Ted Neumann, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner appeals the denial of his petition for post-conviction
relief from his conviction for first degree felony murder, for which
he was sentenced to life imprisonment. He argues that: (1) he
received ineffective assistance of counsel; and (2) the
post-conviction court erred in finding that his statement taken by law
enforcement officers did not violate his constitutional rights.
Following our review, we affirm the post-conviction court's denial of
the petition.
http://www.tba.org/tba_files/TCCA/walkert.wpd
STATE OF TENNESSEE v. CHARLES W. WELLMAN
Court:TCCA
Attorneys:
Steve McEwen, Mountain City, Tennessee (on appeal); Raymond Mack
Garner, District Public Defender; and George H. Waters, Assistant
District Public Defender (at trial), for the appellant, Charles W.
Wellman.
Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Michael L. Flynn, District Attorney
General; and Ellen L. Berez, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: GELNN
First Paragraph:
The defendant was convicted of assault, a Class A misdemeanor, in
violation of Tennessee Code Annotated section 39-13-101 and sentenced
to eleven months, twenty-nine days, with ninety days to be served in
the county jail and the remainder on supervised probation. On appeal,
in addition to challenging the sufficiency of the evidence, he argues
that the trial court imposed an excessive sentence and erred by
ordering that he serve ninety days in confinement. We conclude that
the evidence is sufficient to support the conviction and the record
supports the trial court's sentencing determinations. Accordingly, we
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/wellmancw.wpd
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