Opinion Flash
May 12, 2003
Volume 9 — Number 086
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 |
| 01 |
New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court |
| 06 |
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
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/certlist_0512.wpd
JOHN ALLEN HESSMER v. ROSA BLANCA HESSMER
Court:TCA
Attorneys:
John Allen Hessmer, Nashville, Tennessee, Pro Se.
Rosa Blanca Hessmer, not represented.
Judge: KOCH
First Paragraph:
This appeal involves a state prisoner who is seeking a divorce from
his wife. The prisoner filed a pro se divorce complaint in the
Circuit Court for Wilson County. After the prisoner failed to obtain
service on his wife, the trial court dismissed his complaint for
failure to prosecute. On this appeal, the prisoner takes issue with
the dismissal of his complaint because the trial court clerk failed to
comply with a local court rule regarding notice before dismissing a
complaint for failure to prosecute. Even though the trial court clerk
may have failed to comply with the local rule, we have determined that
the trial court did not err by dismissing the prisoner's divorce
complaint for failure to prosecute.
http://www.tba.org/tba_files/TCA/hesshess.wpd
JOHN ALLEN HESSMER, et al. v. FERNANDO MIRANDA, et al.
Court:TCA
Attorneys:
John Allen Hessmer, Nashville, Tennessee, Pro Se.
Robert E. Parker, Nashville, Tennessee, for the appellees, Fernando
Miranda and Barbara Cardin.
Judge: KOCH
First Paragraph:
This appeal involves a state prisoner's efforts to pursue medical
malpractice and wrongful death claims arising from the death of his
mother. The prisoner filed a pro se complaint in the Circuit Court
for Davidson County against his mother's treating physician and a
nurse. The defendants filed a joint motion for summary judgment
supported by their own affidavits. The trial court granted the
prisoner additional time to obtain opposing affidavits and then
dismissed the prisoner's complaint after he was unable to do so. The
prisoner complains on appeal that his incarceration prevented him from
obtaining the opposing affidavits and asserts that the trial court
erred by declining to appoint a "special master" to aid him in the
discovery process. We have determined that the prisoner was not
entitled to the assistance of a special master and that the trial
court properly dismissed the prisoner's complaint because he failed to
demonstrate the existence of a material factual dispute that would
warrant a trial.
http://www.tba.org/tba_files/TCA/hessmmiran.wpd
CATHY M. LOVETT, et al. v. JOHN C. KELLEY, et al.
Court:TCA
Attorneys:
Thomas C. Corts and Julie Bhattacharya Peak, Nashville, Tennessee, for
the appellants, John C. Kelley and Maury County Board of Education.
Jerry C. Colley, Columbia, Tennessee, for the appellee, Cathy M.
Lovett and Carl Lovett.
Judge: CANTRELL
First Paragraph:
A woman whose car was struck by another vehicle brought suit against
the driver of a van involved in the accident as well as the driver's
employer, claiming the collision aggravated her pre-existing back
injury. The defendants did not dispute liability, but claimed that
the plaintiff's injury was relatively minor. After a hearing, the
trial court entered a $100,000 judgment against the defendants. We
reverse, because we believe the trial court's award included damages
for injuries that were not proximately caused by the defendant's
actions.
http://www.tba.org/tba_files/TCA/lovettcm.wpd
E. C. MITCHELL v. LARRY W. MITCHELL
Court:TCA
Attorneys:
David L. Parker, Nashville, Tennessee, for the appellant, E. C.
Mitchell.
Larry W. Mitchell, Nashville, Tennessee, Pro Se.
Judge: CAIN
First Paragraph:
This case comes before the Court upon consideration of the record and
Appellant's brief pursuant to this Court's order filed on April 3,
2002. Appellant, Evalina Casey Cheadle Mitchell, hereinafter referred
to as the Mother, seeks relief from the trial court's sua sponte order
requiring the parties to mediate certain issues, requiring the minor
children to attend periodic counseling and requiring the parties to
submit to counseling themselves. We reverse the trial court's order
and remand this case for a full hearing consistent with Tennessee Code
Annotated section 36-6-401, et seq.
http://www.tba.org/tba_files/TCA/mitchelled.wpd
IN THE MATTER OF: THE ESTATE OF J.C. QUEENER, DECEASED, JEFF W. POWELL
and EDWIN H. ARNOLD, v. ELAINE HELTON, KENNY STEVENS and ELIZABETH
KELLEY
Court:TCA
Attorneys:
James H. Harris, Lenoir City, Tennessee, for Appellant.
Louis Hofferbert, Knoxville, Tennessee, for Appellee, Elaine Helton.
Kenneth W. Holbert, Knoxville, Tennessee, for Appellee, Kenny Stevens.
Charles Dungan, Maryville, Tennessee, for Appellee, Elizabeth Kelley.
Judge: FRANKS
First Paragraph:
Trial Court entered Judgments against Estate for claimants on theories
of resulting and/or constructive trusts, finding decedent's intent
from a draft copy of Will never executed. On appeal, we affirm in
part and reverse in part.
http://www.tba.org/tba_files/TCA/queenerj.wpd
PAUL EDDIE SEIBERS v. MELISSA SUSAN CUNNINGHAM
Court:TCA
Attorneys:
J. Hilton Conger, Smithville, Tennessee, for the appellant, Melissa
Susan Cunningham.
Paul Eddie Seibers, Tampa, Florida, Pro Se.
Judge: KOCH
First Paragraph:
This appeal stems from a parental dispute over the custody of a
16-year-old boy and a 12-year-old girl. Their father filed suit in
the DeKalb County Juvenile Court seeking to remove the children from
their mother's custody because they were dependent and neglected. The
juvenile court granted the father custody of his son but decided that
his daughter should remain with her maternal grandmother in the
custody of the Department of Children's Services. The father pursued
a de novo appeal to the Circuit Court for DeKalb County. After the
children's mother moved to dismiss the appeal on the ground that it
was untimely, the father filed a Tenn. R. Civ. P. 60.02(1) motion
seeking relief from his untimely notice of appeal. The circuit court
granted the father the requested relief and, following a bench trial,
granted the father custody of both children. The mother asserts on
this appeal that the circuit court lacked authority to grant the
father relief from his untimely notice of appeal and, in the
alternative, that the father was not entitled to Tenn. R. Civ. P.
60.02(1) relief for excusable neglect. We have determined that the
trial court lacked subject matter jurisdiction to consider the
father's Tenn. R. Civ. P. 60.02(1) motion and, therefore, that the
father's appeal to the circuit court should have been dismissed
because it was untimely.
http://www.tba.org/tba_files/TCA/seiberspe.wpd
MELVIN E. BEARD v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
George M. Allen, Brentwood, Tennessee, for the appellant, Melvin E.
Beard.
Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Ronald L. Davis, District
Attorney General; and Derek K. Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WOODALL
First Paragraph:
Petitioner, Melvin E. Beard, appeals from the denial of his petition
for post-conviction relief. In his appeal, Petitioner alleges that
his trial counsel rendered ineffective assistance of counsel in
connection with the negotiation and entry of Petitioner's best
interest plea to the charge of sale and delivery of cocaine, that his
best interest plea was involuntary, and that the factual basis
presented by the State was insufficient to support his plea. After a
careful review of the record in this matter, we conclude that the
evidence does not preponderate against the trial court's findings of
fact. We therefore affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/beardmelvine.wpd
STATE OF TENNESSEE v. KENNETH JORDAN
Court:TCCA
Attorneys:
Michael A. Colavecchio, Nashville, Tennessee, for the appellant,
Kenneth Jordan.
Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; and Brett Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: WADE
First Paragraph:
The defendant, Kenneth Jordan, entered pleas of guilt to aggravated
burglary and aggravated assault. The trial court imposed Range I
sentences of six years for each offense to be served concurrently. At
the conclusion of a sentencing hearing, the trial court imposed a
sentence of one year with split confinement. The defendant was given
the choice of serving one year with work release and the balance on
probation, or participating in a Lifeline Therapeutic Community
Program with the opportunity to apply for early release. In this
appeal of right, the defendant argues that the trial court failed to
adequately consider the statutory guidelines and should have granted
probation. The judgments of conviction are affirmed and the effective
sentence is modified to require 90 days in jail with work release
followed by supervised probation.
http://www.tba.org/tba_files/TCCA/jordank.wpd
BRYAN C. PEARSON v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Bryan C. Pearson, Pikeville, Tennessee, pro se.
Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; J. Michael Taylor, District Attorney
General, for appellee, State of Tennessee.
Judge: SMITH
First Paragraph:
The pro se appellant appeals from the summary dismissal of his
petition for the writ of habeas corpus. Finding that summary
dismissal was appropriate under the circumstances of this case, we
affirm the judgment of the lower court.
http://www.tba.org/tba_files/TCCA/pearson.wpd
STATE OF TENNESSEE v. TERRANCE W. PRICE
Court:TCCA
Attorneys:
Dale M. Quillen and Michael J. Flanagan, Nashville, Tennessee, for the
appellant, Terrance W. Price.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; John Zimmerman, Assistant District Attorney General; and
Tammy Meade, Assistant District Attorney General, for the appellee,
State of Tennessee.
Judge: WOODALL
First Paragraph:
Pursuant to a negotiated plea agreement, Defendant, Terrance W. Price,
pled guilty to fifteen counts of money laundering, a Class B felony,
and one count of conspiracy to commit money laundering, a Class C
felony. He pled guilty reserving the right to appeal a certified
question of law pursuant to Rule 37(b)(2)(i) of the Tennessee Rules of
Criminal Procedure. The certified question of law on appeal is
whether Tennessee Code Annotated sections 39-14-901, - 903, Money
Laundering Act of 1996, violates Article XI, Section 8 or Article I,
Section 8 of the Tennessee Constitution by exempting from its
application violation of gambling laws, found in Tenn. Code Ann. S
39-17-501 et seq. After a careful review, we conclude that the
statutes do not violate the Tennessee Constitution, and therefore
affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/priceterrancew.wpd
STATE OF TENNESSEE v. DENNIS PYLANT
Court:TCCA
Attorneys:
James Robin McKinney, Jr., and John David Moore, Nashville, Tennessee,
for the appellant, Dennis Pylant.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Robert S. Wilson, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The appellant, Dennis Pylant, was found guilty in the Cheatham County
Circuit Court of felony murder committed in the perpetration of
aggravated child abuse. The appellant received a sentence of life
imprisonment in the Tennessee Department of Correction. On appeal,
the appellant raises several issues for our consideration, namely the
sufficiency of the evidence, evidentiary issues, and a complaint
regarding the jury instructions. Upon review of the record and the
parties' briefs, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/pylantd.wpd
STATE OF TENNESSEE v. JULIA M. WARD
Court:TCCA
Attorneys:
David S. Wigler, Knoxville, Tennessee, for the appellant, Julia M.
Ward.
Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; Jennifer H. Welch, Patricia Cristil and Steven C. Garrett,
Assistant District Attorneys General, for the appellee, State of
Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Defendant, a teacher, was indicted for three counts of assault
against one of her students. She offered to enter a plea of nolo
contendere on Count II in exchange for judicial diversion and the
dismissal of the remaining two counts. The State rejected the
Defendant's plea of nolo contendere and maintained that the Defendant
would have to plead guilty in order to receive judicial diversion.
The Defendant refused the offer and requested pretrial diversion. The
State denied the Defendant's request. The Defendant filed a petition
for writ of certiorari to the Knox County Criminal Court. The trial
court denied the petition. The trial court then filed an order
permitting interlocutory appeal to this Court. This Court granted the
Defendant's application for interlocutory review. In this appeal, the
Defendant argues that the State abused its discretion by denying the
Defendant pretrial diversion. We affirm the judgment of the trial
court.
http://www.tba.org/tba_files/TCCA/wardjmv
STATE OF TENNESSEE v. PHILLIP THOMAS WILCOX
Court:TCCA
Attorneys:
Joseph E. Ford, Winchester, Tennessee, for the appellant, Phillip
Thomas Wilcox.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; and Charles Michael Layne, District
Attorney General, for the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant contends the trial court erred in revoking his
probation. He claims the trial court improperly considered evidence
of probation violations, because he was not given proper notice of the
violations by the probation revocation warrant. He further claims
that the evidence adduced at the probation revocation hearing was
insufficient to revoke his probation. The trial court heard evidence
of probation violations that were not included in the probation
warrant, but the trial court specifically stated it did not consider
such evidence in revoking the defendant's probation. Because
sufficient evidence exists to prove the defendant violated Rule One of
his Rules of Probation, we affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/wilcoxpt.wpd
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