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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