Opinion Flash
March 14, 2003
Volume 9 — Number 046
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 |
| 01 |
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 |
| 10 |
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
WILLIAM ROGER SHELTON v. ADS ENVIRONMENTAL SERVICES, et al.
Court:TSC
Attorneys:
Gordon C. Aulgur, Nashville, Tennessee, for the appellants, ADS
Environmental Services and Zurich American Insurance.
Roger W. Hudson, Murfreesboro, Tennessee, for the appellee, William
Roger Shelton.
Judge: BIRCH
First Paragraph:
This workers' compensation case is before this court on interlocutory
appeal pursuant to Rule 9 of the Tennessee Rules of Appellate
Procedure. We granted interlocutory appeal in this case, as well as
in the companion case of McCall v. National Health Corp., to determine
whether the trial court has the authority to initiate temporary
workers' compensation benefits prior to trial. In accordance with the
reasoning and holding in McCall, we find that the trial court has this
authority.
http://www.tba.org/tba_files/TSC/wheltonwilliam.wpd
ELIZABETH ANN CROLEY v. LEVI STRAUSS & CO.
Court:TSC - Workers Comp Panel
Attorneys:
Wm. Landis Turner, Hohenwald, Tennessee, for the appellant, Elizabeth
Ann Croley.
Patrick Alan Ruth, Nashville, Tennessee, for the appellee, Levi
Strauss & Co.
Judge: WEATHERFORD
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law. In this case, the employee slipped and fell on a wet floor as
she was entering the workplace. The chancellor, who had presided over
the trial in this matter, left office before rendering a decision.
The employee contends that the chancellor did not have jurisdiction to
decide the case because the 60 day time period provided under
Tennessee Code Annotated S 17-1-304(b) for judges who have vacated
office to conclude pending cases had expired prior to the entry of an
order by the Chief Justice of the Tennessee Supreme Court ordering the
former chancellor to conclude the case. The employee also contends
that the trial court erred: 1) in finding that the plaintiff failed
to prove that her work-related accident caused a permanent right
shoulder injury; and 2) by designating a faxed copy of an order as the
original. We hold that the evidence does not preponderate against the
trial court's finding as to causation. We also find that the trial
court did have proper jurisdiction in this case and did not err in
designating a faxed copy of an order as the original when the original
order was lost. Accordingly, the panel has concluded that the
judgment of the trial court should be affirmed.
http://www.tba.org/tba_files/TSC_WCP/croleyeliz.wpd
CYNTHIA LEE BRATTON v. MICHAEL WAYNE BRATTON
Court:TCA
Attorneys:
Douglas R. Beier, Morristown, Tennessee, for Appellant.
Sarah Y. Sheppeard and Jason H. Long, Knoxville, Tennessee, for
Appellee.
Judge: FRANKS
First Paragraph:
In divorce action the Trial Court granted divorce, refused to enforce
a postnuptial Agreement, divided marital property, awarded alimony and
child support. On appeal, we affirm.
http://www.tba.org/tba_files/TCA/brattonc.wpd
WYLIE B. DOWLEN v. GARY MATHEWS
Court:TCA
Attorneys:
Thomas N. Bateman and Robert T. Bateman, Clarksville, Tennessee, for
the Appellant, Wylie B. Dowlen
Rodger N. Bowman, Clarksville, Tennessee, for Appellee, Gary Mathews
Judge: HARGROVE
First Paragraph:
This appeal arises from a police officer's lawsuit against a
Clarksville resident for assault, defamation, and intentional
infliction of emotional distress after the officer responded to a
noise complaint at the resident's home. The trial judge directed a
verdict for the defendant. We affirm the trial court.
http://www.tba.org/tba_files/TCA/dowlenvmatthews.wpd
KAREN GALE ENGEL V. JERRY BURTON YOUNG, SR.
Court:TCA
Attorneys:
Clark L. Shaw, Nashville, Tennessee, for the appellant, Karen Gale
Engel.
Audrey Lee Anderson, Nashville, Tennessee, for the appellee, Jerry
Burton Young, Sr.
Judge: COTTRELL
First Paragraph:
This appeal arose after a paternity and custody proceeding was
resolved by the trial court in which custody of the child was granted
to Mother and visitation was granted in part to Father and in part to
the child's half-siblings, Father's adult daughters. Mother appeals,
arguing that the third party visitation order violates her
constitutional rights as a parent and that she should have been
awarded the tax deduction for the child. Because the trial court was
incorrect in ordering the third party visitation, we reverse that
portion of the trial court's decision which awarded visitation to the
child's half-siblings. Because the trial court did not abuse its
discretion in awarding the tax deduction to Father, we affirm that
portion of the trial court's decision. We also decline to award
Mother attorney's fees on appeal.
http://www.tba.org/tba_files/TCA/engelk.wpd
CHARLES R. HEAD, JR., et al. v. JAMES LYNN GIBSON, et al.
CORRECTION ON FIRST PAGE
Court:TCA
Attorneys:
George J. Duzane, Nashville, Tennessee, for the appellants, Charles R.
Head, Jr. And Donna M. Head.
Joseph B. Klockenkemper, II, Nashville, Tennessee, for the appellee,
State Farm Mutual Automobile Insurance.
Judge: CANTRELL
First Paragraph:
This is an appeal from a judgment granting a motion for summary
judgment in favor of State Farm Mutual Automobile Insurance Co. that
the uninsured motorist coverage offered to the plaintiffs was not
implicated under the circumstances of this litigation. We affirm.
http://www.tba.org/tba_files/TCA/headcorrex.wpd
IN THE MATTER OF: A.J.H., A CHILD UNDER 18 YEARS OF AGE
Court:TCA
Attorneys:
R. Steven Randolph, Cookeville, Tennessee, for the appellant, B.B.
Paul G. Summers, Attorney General and Reporter; Douglas Earl Dimond,
Assistant Attorney General, for the appellee, Department of Children's
Services.
Judge: CANTRELL
First Paragraph:
The trial court terminated the parental rights of the father of a
three-year-old boy on several statutory grounds, including abandonment
and failure to remedy conditions that prevent him from providing a
safe home for the child. See Tenn. Code Ann. S 36-1-113(g). We
affirm the trial court.
http://www.tba.org/tba_files/TCA/inthematterofajh.wpd
DAWN LARSEN NICELEY v. JAMES JACOB NICELEY, IV
Court:TCA
Attorneys:
Phillip Mark Walker, Goodlettsville, Tennessee, for the appellant,
Dawn Larsen Niceley.
Christina Brasher, Springfield, Tennessee, for the appellee, James
Jacob Niceley, IV.
Judge: COTTRELL
First Paragraph:
After a sixteen-year marriage and one child, Husband and Wife both
filed for divorce. After hearing the evidence, the trial court
fashioned a parenting plan which named Husband the primary residential
parent during the school year and named Wife the primary residential
parent during the summer and most holidays and school breaks; valued
and divided the marital property; and awarded Wife attorney's fees as
alimony in solido. We affirm the parenting plan and the distribution
of marital property but reverse the award of attorney's fees because
the trial court found Wife was not economically disadvantaged.
http://www.tba.org/tba_files/TCA/niceleyd.wpd
THE OCEANICS SCHOOLS, INC. v. CLIFFORD E. BARBOUR, JR.
Court:TCA
Attorneys:
Brian C. Quist and Jason E. Fisher, Knoxville, Tennessee, for the
appellant, Clifford E. Barbour, Jr.
J. Douglas Overbey and Ben M. Rose, Knoxville, Tennessee, for the
appellee, The Oceanics Schools, Inc.
Judge: SUSANO
First Paragraph:
The Oceanics Schools, Inc. ("the plaintiff") filed what it
characterizes as an action to enforce the judgment ("the OSC
judgment") it had previously obtained against Operation Sea Cruise,
Inc. ("OSC"). In that action, the plaintiff sued Clifford E. Barbour,
Jr., the alleged alter ego of the corporation, seeking to pierce the
corporate veil of OSC in order to enforce the OSC judgment against
Barbour. The trial court found that Barbour was in fact the alter ego
of OSC; consequently, the court allowed the plaintiff to pierce the
corporate veil to enforce the OSC judgment against Barbour. He
appeals, raising a number of issues. As modified, the judgment of the
trial court is affirmed.
http://www.tba.org/tba_files/TCA/oceanicsschools.wpd
ROBERT M. OVERHOLT, M.D., et al. v. HUGH RAY WILSON
Court:TCA
Attorneys:
David S. Wigler, Knoxville, Tennessee, for the Appellant, Hugh Ray
Wilson
Timothy E. Irwin, Knoxville, Tennessee, for the Appellees, Robert M.
Overholt, M.D., Joe W. Black, M.D., and Michael D. Price
Judge: GODDARD
First Paragraph:
In this suit, Plaintiffs Robert M. Overholt, Joe W. Black, and Michael
D. Price sue Defendant Hugh Ray Wilson, seeking possession of a
portrait of long-time University of Tennessee football coach, General
Robert R. Neyland. The suit also sought injunctive relief as to a
proposed sale of the portrait by Mr. Wilson in connection with a
bankruptcy sale of assets of a corporation owned by him. Mr. Wilson's
sole defense of the suit was that it was barred by T.C.A. 28-3-105(2),
the three-year statute of limitations for recovery of personal
property. The Trial Court submitted to the jury a single question
regarding the only material factual dispute, and upon receipt of the
jury's finding held that the statute of limitations was not a viable
defense and granted judgment in favor of the Plaintiffs. Mr. Wilson
appeals and raises four issues, hereinafter set out, for our
consideration. We find that they are without merit and affirm.
http://www.tba.org/tba_files/TCA/overholtrob.wpd
DAVID J. WILLIAMS v. TENNESSEE DEPARTMENT OF CORRECTION
Court:TCA
Attorneys:
David J. Williams, Mountain City, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter, and Abigail Turner,
Assistant Attorney General, for the appellee, Tennessee Department of
Correction.
Judge: KOCH
First Paragraph:
This appeal involves a dispute between a prisoner and the Department
of Correction regarding the expiration date of his Class X life
sentence for aggravated rape. After unsuccessfully petitioning the
Department for a declaratory order, the prisoner filed a petition for
declaratory judgment in the Chancery Court for Davidson County
asserting that the Department's Disciplinary Punishment Guidelines
require the Department to treat his life sentence as one that fully
expires in thirty years. The trial court granted the Department's
Tenn. R. Civ. P. 12.02(6) motion, and the prisoner has appealed. We
have determined that the trial court properly determined that the
prisoner had failed to state a claim upon which relief can be granted.
Accordingly, we affirm the judgment dismissing the prisoner's
complaint.
http://www.tba.org/tba_files/TCA/williamsdj.wpd
STATE OF TENNESSEE v. MELISSA ANN BREWER
Court:TCCA
Attorneys:
Bethel Campbell Smoot, Jr., District Public Defender, and Rachel E.
Willis, Assistant Public Defender, for the appellant, Melissa Ann
Brewer.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Charles Michael Layne, District Attorney
General; and Kenneth J. Shelton, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant appeals her sentence of three years imprisonment for the
sale of less than .5 grams of cocaine, a Class C felony. The
defendant argues she is a favorable candidate for alternative
sentencing. The record supports the defendant's assertion that she is
entitled to an alternative sentence. The defendant is sentenced to
three years in split confinement, with thirty (30) days incarceration
and the remainder on supervised probation. We remand this judgment to
determine if the defendant continues to hold full-time employment. If
the defendant is employed full-time, she is to serve her thirty (30)
days in periodic confinement.
http://www.tba.org/tba_files/TCCA/brewerma.wpd
STATE OF TENNESSEE v. MARIO C. ESTRADA
Court:TCCA
Attorneys:
Claudia S. Jack, District Public Defender; Robin Farber, Assistant
Public Defender, Columbia, Tennessee, for the Appellant, Mario C.
Estrada.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Renee W. Turner, Assistant Attorney General; T.
Michael Bottoms, District Attorney General; and Joseph L. Penrod,
Assistant District Attorney General, for the Appellee, State of
Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Mario C. Estrada, appeals the sentencing decision of
the Maury County Circuit Court imposing a sentence of twelve years
incarceration in the Department of Correction. The sentence arose
from guilty pleas by Estrada to one count of arson, eight counts of
aggravated assault, and one count of possession of a prohibited
weapon. The indictment returned against Estrada charged him with one
count of aggravated arson, eight counts of attempted first degree
murder, and one count of possession of a prohibited weapon. In this
appeal, Estrada raises the issue of whether the trial court erred by
ordering that his sentence be served in total confinement. After
review, we find that plain error dictates that the convictions be
vacated and the case remanded for further proceedings because
aggravated assault is not a lesser included offense of attempted first
degree murder.
http://www.tba.org/tba_files/TCCA/estradamarioc.wpd
STATE OF TENNESSEE v. CINDY GENTRY
Court:TCCA
Attorneys:
William B. Lockert, III, District Public Defender; and Christopher L.
Young, Assistant District Public Defender, for the appellant, Cindy
Gentry.
Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Dan M. Alsobrooks, District
Attorney General; and Kim G. Menke, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The defendant was convicted of aggravated assault, a Class C felony,
and was sentenced by the trial court as a Range I, standard offender
to three years in the Department of Correction, with the sentence to
be suspended and the defendant placed on probation after one year in
the county workhouse. She raises two issues on appeal: (1) whether
the evidence was sufficient to support her conviction; and (2) whether
the trial court erred in ordering that she serve one year of her
sentence in the county workhouse. Based on our review, we affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/gentrycindy.wpd
DENNIS J. HUGHES v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Charles R. Ray, Nashville, Tennessee, for the Appellant, Dennis J.
Hughes
Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General;
and John Zimmerman, Assistant District Attorney General, for the
Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
Dennis J. Hughes appeals the Davidson County Criminal Court's denial
of his petition for post- conviction relief. He claims on appeal that
the lower court erred in (1) denying his claim that his constitutional
rights were abridged by the state's failure to disclose evidence
against him prior to trial as part of the bill of particulars, and (2)
ruling that he could not impeach the prosecutor from the conviction
proceedings with the prosecutor's own alleged prior bad acts. Because
we are unpersuaded of reversible error, we affirm the post-conviction
court's denial of relief.
http://www.tba.org/tba_files/TCCA/hughesdennisj.wpd
SHARON R. HURT v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Peter J. Strianse, Nashville, Tennessee, for the appellant, Sharon R.
Hurt.
Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Kathy Morante, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: WOODALL
First Paragraph:
Petitioner, Sharon R. Hurt, was convicted by a jury of first degree
murder and conspiracy to commit first degree murder. The trial court
sentenced Petitioner to serve consecutive sentences of life
imprisonment and twenty-four years. On direct appeal, this court
affirmed Petitioner's convictions and sentences. State v. James
Murray, Marcie Murray and Sharon R. Hurt, No. 01C01-9702-CR- 00066,
1998 Tenn. Crim. App. LEXIS 1323, 1998 WL 934578 (Tenn. Crim. App.,
filed at Nashville, Dec. 30, 1998), perm. to app. denied (Tenn., June
28, 1999). On September 4, 2001, Petitioner filed a petition for
post-conviction relief, in which she alleged the existence of new
scientific evidence establishing her actual innocence. The State
sought to dismiss the petition. The trial court dismissed the
petition, finding that Petitioner failed to show the existence of new
scientific evidence, and the petition was therefore barred by the
statute of limitations. After a review of the record, we affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/hurtsharonr.wpd
STATE OF TENNESSEE v. CHARLES EUGENE JONES
Court:TCCA
Attorneys:
Richard A. Spivey, Kinsport, Tennessee, for appellant, Charles Eugene
Jones.
Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; Greeley Wells, District Attorney General;
and Lewis Combs, Assistant District Attorney General; for appellee,
State of Tennessee.
Judge: SMITH
First Paragraph:
The defendant, Charles E. Jones, pled guilty to possession of
marijuana with intent to sell or deliver, possession of drug
paraphernalia, and unlawful possession of a weapon. For these
convictions, the trial court classified the defendant as a Range I
standard offender and ordered him to serve an aggregate one year
sentence, consisting of concurrent sentences of one year for his
possession of marijuana with intent to sell or deliver conviction,
eleven months and twenty-nine days for his possession of drug
paraphernalia conviction, and thirty days for his unlawful possession
of a weapon conviction. The state agreed to suspend the two latter
sentences, and the trial court sentenced the defendant to serve four
years of probation and one year of incarceration, which was to be
suspended after the defendant served ninety days in the county jail.
The defendant now appeals his sentence, alleging (1) that the trial
court erroneously modified his plea agreement with the state after it
had been submitted to the trial court for approval, (2) that the trial
court improperly denied his request to serve the entirety of his
sentence on probation, and (3) that the trial court improperly weighed
and applied various enhancement and mitigating factors. After
reviewing the record, we find that none of the defendant's allegations
merit relief and therefore affirm the defendant's sentence.
http://www.tba.org/tba_files/TCCA/jonescharleseugene.wpd
MICHAEL ANTHONY SCRUGGS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Stacey M. Brackeen, Franklin, Tennessee, for the appellant, Michael
Anthony Scruggs.
Paul G. Summers, Attorney General & Reporter; Braden H. Boucek,
Assistant Attorney General; and Sharon Guffee, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: WADE
First Paragraph:
The petitioner, Michael Anthony Scruggs, pled guilty to forgery and
theft under $500. The trial court ordered concurrent sentences of six
years for the forgery and eleven months, twenty-nine days, for the
theft. No appeal was taken. Later, the petitioner filed a petition
for post-conviction relief alleging ineffective assistance of counsel.
After a hearing, the post-conviction court denied relief, finding
that the petitioner had failed to prove that his appointed counsel
fell below the required level of competency. The judgment of the
post-conviction court is affirmed.
http://www.tba.org/tba_files/TCCA/scruggsmichael.wpd
STATE OF TENNESSEE v. JAMES MARIO STARNES
Court:TCCA
Attorneys:
Larry F. Wallace, Jr., Shelbyville, Tennessee, (on appeal) for the
Appellant, James Mario Starnes.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; David H. Findley, Assistant Attorney General;
William Michael McCown, District Attorney General; and Michael
Randles, Assistant District Attorney General, for the Appellee, State
of Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, James Mario Starnes, was indicted by the Bedford County
Grand Jury for first degree murder and especially aggravated robbery.
Starnes pled guilty to attempted second degree murder and especially
aggravated robbery. Following a sentencing hearing, Starnes received
concurrent sentences of ten years, nine months for attempted second
degree murder and twenty-five years for especially aggravated robbery.
Starnes now appeals his especially aggravated robbery conviction,
contending that the evidence is insufficient to establish his guilt
for that offense. Because the error complained of was waived as a
matter of law by Starnes' plea of guilty, this issue is not reviewable
upon direct appeal. Accordingly, this appeal is dismissed.
http://www.tba.org/tba_files/TCCA/starnesjamesmario.wpd
MICHAEL LYNN WALTON v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
David M. Hopkins, Nashville, Tennessee, for the appellant, Michael
Lynn Walton.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; Pamela Anderson, Assistant District Attorney General; and
Kathy Morante, Assistant District Attorney General, for the appellee,
State of Tennessee.
Judge: WOODALL
First Paragraph:
Petitioner, Michael Lynn Walton, appeals the trial court's denial of
relief under his post-conviction petition. Petitioner alleged he
received ineffective assistance of counsel at trial based on counsel's
failure (1) to adequately advise Petitioner of the consequences of
proceeding to trial; (2) to adequately cross-examine the victim; (3)
to require the State to elect which offenses it was relying upon to
support Petitioner's convictions; and (4) to appeal the State's
failure to make an election. Based upon a thorough review of the
record, we affirm the judgment of the post-conviction court denying
Petitioner's claim for relief based on counsel's failure to adequately
advise Petitioner about the potential consequences resulting from two
rape convictions and failure to specifically address the victim's
inconsistent statements at the second trial. However, we disagree
with the post- conviction court's finding that counsel's failure to
require an election of offenses was not deficient conduct and that
Petitioner was not prejudiced by such conduct. Accordingly, the
judgment is reversed, Petitioner is granted post-conviction relief,
and the case is remanded to the trial court for retrial on the two
counts of rape.
http://www.tba.org/tba_files/TCCA/waltonmichaellynn.wpd
REGINOL L. WATERS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Ross E. Alderman, District Public Defender, and Jeffrey A. DeVasher,
Assistant Public Defender, for the appellant, Reginol L. Waters.
Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Kathy Morante, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner, Reginol L. Walters, was convicted of aggravated
robbery, aggravated burglary, and two counts of aggravated rape and,
while his direct appeal was pending, filed a petition pursuant to
Tennessee Code Annotated section 40-30-403 requesting forensic
analysis of DNA evidence. The post-conviction court dismissed the
petition, as well as a petition to reconsider, concluding that the
petitioner could not proceed with his petition while his direct appeal
was pending. Following our review, we conclude that the applicable
statute does not prohibit the petitioner from proceeding
simultaneously with a direct appeal and a petition for analysis of DNA
evidence. Accordingly, we reverse the order of the post-conviction
court and remand for consideration of the petition.
http://www.tba.org/tba_files/TCCA/watersreginoll.wpd
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