Opinion Flash

May 20, 2003
Volume 9 — Number 091

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
10 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


STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. B.L.K. AND
E.C.C.

Court:TCA

Attorneys: 

Jim K. Petty, Chattanooga, Tennessee, for the Appellant B.L.K.

Paul G. Summers, Attorney General and Reporter, and Douglas E. Dimond,
Assistant Attorney General, Nashville, Tennessee, for the Appellee
State of Tennessee, Department of Children's Services.                         

Judge: SWINEY

First Paragraph:

The State of Tennessee, Department of Children's Services ("DCS")
obtained temporary custody of the five minor children of B.L.K.
("Mother") after Mother requested assistance from DCS because of her
inability to care for the children due to her mental and financial
condition.  DCS later sought to terminate Mother's parental rights. 
Custody of Mother's two oldest children was transferred to their
biological father.  After a trial concerning Mother's parental rights
to her three youngest children, the Juvenile Court determined there
were sufficient grounds to terminate Mother's parental rights and that
doing so was in the best interests of the children.  Mother appeals,
claiming DCS failed to prove by clear and convincing evidence that
there were sufficient grounds to terminate her parental rights. 
Mother also claims DCS failed to prove by clear and convincing
evidence that termination of her parental rights would be in the best
interests of the children.  We affirm the Juvenile Court's judgment.

http://www.tba.org/tba_files/TCA/blk.wpd

GARY LAMAR BUCK v. JOHN T. SCALF, et al.

Court:TCA

Attorneys:

Lawrence D. Wilson, Nashville, Tennessee, for the appellant, Gary
Lamar Buck.

Thomas I. Carlton, Jr., Bryan K. Williams, Nicole R. Palk, Nashville,
Tennessee, for the appellee, Hartford Underwriter's Insurance Company.                          

Judge: NEAL

First Paragraph:

This is an appeal from an order of the trial court granting a motion
for summary judgment in favor of Hartford Underwriter's Insurance
Company on the ground that plaintiff's uninsured motorist claim
against Hartford is barred by the one-year statute of limitations.  We
reverse the judgment of the trial court and remand.

http://www.tba.org/tba_files/TCA/buckvscalf2.wpd

VICKI B. CARLTON v. SHARON L. DAVIS

Court:TCA

Attorneys:

Michael K. Radford, Brentwood, Tennessee, for the appellant, Vicki B.
Carlton.

Scott A. Rhodes, Brentwood, Tennessee, for the appellee, Sharon L.
Davis.                          

Judge: CAIN

First Paragraph:

The trial court granted summary judgment to Appellee based upon
expiration of the applicable statute of limitations.  Appellant
asserts that Tennessee Code Annotated section 56-7-1201(g) tolls the
statute of limitations, or that, in the alternative, Appellee is
equitably estopped from relying upon the statute of limitations.  We
affirm the action of the trial court.

http://www.tba.org/tba_files/TCA/carltonvicki.wpd

RANDELL COOK v. FRANK HANNER, et al.

Court:TCA

Attorneys:

Dana C. McLendon, III, Franklin, Tennessee, for the appellants, Frank
Hanner, Betty Hanner, B & E Motors, ABC Auto Rentals, and Webcars,
Inc.

Michael W. Edwards, Hendersonville, Tennessee, for the appellee,
Randell Cook.                          

Judge: FARMER

First Paragraph:

This case involves allegations of an improper verdict form and jury
instructions.  As Appellants failed to make timely objections
concerning these issues, and failed to file a motion for a new trial
based on these perceived irregularities, we affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCA/cookrandell.wpd

THE STATE OF TENNESSEE IN ITS OWN BEHALF AND FOR THE USE AND BENEFIT
OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY,
TENNESSEE v. DELINQUENT TAXPAYERS AS SHOWN ON THE 1998 REAL PROPERTY
TAX RECORDS OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE, et al.

Court:TCA

Attorneys:  

Quisha A. Light, Winchester, Tennessee, for the appellant, James E.
Brown.

Jonathan C. Stewart, Nashville, Tennessee, for the appellee, Jackie
Rich.                        

Judge: FARMER

First Paragraph:

This case involves the question of whether the statutory right of
redemption enjoyed by the owner of property sold to recover delinquent
taxes may be conveyed to a third party who may then exercise that
right and redeem the property.  We affirm the decision of the trial
court, finding that the statutory right of redemption may be conveyed.

http://www.tba.org/tba_files/TCA/delinquenttaxpayers.wpd

NEIL M. FRIEDMAN v. LYNN W. BROWN

Court:TCA
                        
Judge: SUSANO

First Paragraph:

I concur in Judge Franks' well-reasoned opinion because I believe it
correctly states the controlling law and because I believe that when
that law is applied to the facts of this case, the inescapable
conclusion is that the plaintiff's complaint "fail[s] to state a claim
upon which relief can be granted."  Tenn. R. Civ. P. 12.02(6).  Having
said all of this, I feel constrained to state that given the
allegations of the complaint pertaining to (1) the expiration of the
plaintiff's sentence when the judge re-incarcerated him; (2) the
prosecutor's agreement with defense counsel, apparently stated in open
court, that the judge did not have the authority to send the plaintiff
to jail for violating probation on a sentence that, by then, had
expired; and (3) an alleged corrupt motive for the judge's action in
this case, persuade me that while the result in this case may be a
correct one, it is far from what "the man or woman on the street"
would perceive to be a just one.  This troubles me.  However, as a
judge, I recognize that I must follow the law, regardless of my
personal feelings with respect to the general concept of justice. 
Accordingly, I concur.

http://www.tba.org/tba_files/TCA/friedmannc_con.wpd

JOHNNY GANT v. SUNCOM WIRELESS

Court:TCA

Attorneys:

Johnny Gant, Nashville, Tennessee, Pro Se.  

Ronald G. Harris, Nashville, Tennessee, for the appellee, Suncom
Wireless.

Judge: CAIN

First Paragraph:

Plaintiff filed pro se a civil warrant in General Sessions Court in
Davidson County against Defendant on November 27, 2001.  The case was
set for February 1, 2002 and at that time was dismissed by the General
Sessions Court.  Pro se Plaintiff timely appealed to the Circuit Court
where Defendant filed a Motion to Dismiss.  On August 30, 2002, the
Motion to Dismiss was granted and pro se Plaintiff appealed.  We
affirm the action of the trial court.

http://www.tba.org/tba_files/TCA/gantjohnny.wpd

MARCUS N. LEWIS v. TENNESSEE DEPARTMENT OF CORRECTION, et al.
WITH CONCURRING OPINION

Court:TCA

Attorneys:   

Marcus N. Lewis, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Arthur Crownover
II, Senior Counsel, for the appellee, Tennessee Department of
Correction.                       

Judge: KOCH

First Paragraph:

This appeal involves a disciplinary proceeding at the South Central
Correctional Facility.  After being sentenced to five days
disciplinary segregation for interfering with an officer's duties, the
prisoner filed a petition for a common-law writ of certiorari in the
Chancery Court for Davidson County.  The trial court granted the
Department of Correction's motion for summary judgment and dismissed
the petition.  We affirm the dismissal of the prisoner's petition,
although on different grounds than those relied upon by the trial
court.

http://www.tba.org/tba_files/TCA/lewismn_opn.wpd

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/lewismn_con.wpd

JAMIE CHE'REE ROBINSON, et al. v. DONALD SUNDQUIST, et al.

Court:TCA

Attorneys: 

Mariah L. Collier, Pro se.

Paul G. Summers, Attorney General and Reporter and Elizabeth C.
Driver, Assistant Attorney General, for the appellee, State of
Tennessee.

David Haines, Clarksville, Tennessee, for the appellees, Lavoyed
Hudgins and Clarksville Police Department.                         

Judge: FARMER

First Paragraph:

The trial court dismissed this action for failure to state a claim. 
We affirm.

http://www.tba.org/tba_files/TCA/robinsonjamie.wpd

ROBERT W. SMITH v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:

Robert W. Smith, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General & Reporter and Nichon Shannon,
Assistant Attorney General, for the appellee, Tennessee Department of
Corrections.                          

Judge: CAIN

First Paragraph:

Plaintiff, an inmate with the Department of Corrections, appeals the
action of the trial court in dismissing his complaint pursuant to
Tennessee Code Annotated section 41-21-812.  We affirm the judgment.

http://www.tba.org/tba_files/TCA/smithrobertw.wpd

STATE OF TENNESSEE v. DOUGLAS R. BEECHAM

Court:TCCA

Attorneys:

Jay Norman, Nashville, Tennessee, for the appellant, Douglas R.
Beecham.

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: OGLE

First Paragraph:

After pleading guilty in the Cheatham County Circuit Court to felony
possession of a firearm, the appellant, Douglas R. Beecham, was placed
on probation.  Immediately after the institution of probation, the
appellant submitted a falsified urine sample to his probation officer
to use in a drug screen.  Based upon the falsified sample, the trial
court revoked the appellant's probation and ordered the appellant to
serve a portion of his sentence in confinement and the balance on
probation.  On appeal, the appellant complains that the trial court
erred in revoking his probation.  Upon review of the record and the
parties' briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/beechamd.wpd

STATE OF TENNESSEE v. HUGHES D. CADWELL

Court:TCCA

Attorneys:

J. Timothy Street, Franklin, Tennessee, for the appellant, Hughes D.
Cadwell.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Lee Dryer, Assistant District Attorney General, for the
appellee, State of Tennessee.                          

Judge: WOODALL

First Paragraph:

Defendant, Hughes D. Cadwell, was convicted in the Williamson County
General Sessions Court for driving on a suspended license on December
23, 1997.  He received a ninety-day suspended sentence and six months
probation.  On June 22, 1998, a probation violation warrant was
issued, alleging that Defendant had failed to maintain monthly contact
with his probation officer and that he had failed to pay probation
fees and respond to a written request for action.  Defendant was not
arrested on the warrant until February 6, 2002.  At the February 13,
2002, hearing in Williamson County General Sessions Court, Defendant
pled true to the probation violation, and the court ordered him to
serve the ninety-day sentence.  Defendant appealed to the Williamson
County Circuit Court on February 15, 2002.  The circuit court
conducted a hearing to determine whether to reinstate Defendant's
probation.  The court then dismissed the appeal on the basis that it
lacked jurisdiction because Defendant had pled true to the probation
violation.  We conclude that the circuit court had jurisdiction to
hear Defendant's appeal from the general sessions court, de novo, and
therefore, we remand the case to the circuit court for proceedings
consistent with this opinion.

http://www.tba.org/tba_files/TCCA/cadwellhughesd.wpd

RANDALL CARVER v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Randall Carver, Northwest Correctional Complex, Tiptonville,
Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; and Lawrence Ray Whitley,
District Attorney General, for the appellee, State of Tennessee.                          

Judge: GLENN

First Paragraph:

On February 9, 2002, the petitioner pled guilty to aggravated assault
and attempted especially aggravated kidnapping and was sentenced,
respectively, to concurrent six- and eight-year sentences.  On October
22, 2002, he filed a pro se "Petition for Writ of Error Coram Nobis
and/or Writ of Habeas Corpus," seeking relief because of newly
discovered evidence that, at the time of his pleas of guilty, the
victim "was under numerous felony charges," which "information was
flagrantly kept from the defense," and because he pled guilty to
aggravated assault which is not a lesser-included offense of attempt
to commit first degree murder, for which he was indicted. 
Additionally, he argues on appeal that the post-conviction court erred
in dismissing his petition without appointing counsel or conducting an
evidentiary hearing.  Following our review, we affirm the
post-conviction court's dismissal of the petition.

http://www.tba.org/tba_files/TCCA/carverandall.wpd

STATE OF TENNESSEE  v.  CLARA JEAN NEBLETT

Court:TCCA

Attorneys: 

Gregory D. Smith, Clarksville, Tennessee (on appeal) and Roger Nell,
District Public Defender; and Ann Kroeger, Assistant Public Defender,
Clarksville, Tennessee (at trial) for the appellant, Clara Jean
Neblett.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Dent Morriss, Assistant District Attorney General, for
the appellee, the State of Tennessee.                         

Judge: WOODALL

First Paragraph:

Appellant, Clara Jean Neblett, was indicted by the Robertson County
Grand Jury for aggravated assault and unlawful possession of a weapon.
 A jury found Appellant guilty of both counts.  Appellant was
sentenced to four years for her aggravated assault conviction and
thirty days for her possession of a weapon conviction, to be served
concurrently.  In this appeal, Appellant challenges: (1) the trial
court's ruling that defense counsel could not impeach the victim's
testimony using extrinsic evidence of a prior bad act; (2) the trial
court's denial of post-trial diversion; and (3) the trial court's
refusal to apply mitigating factors to Appellant's sentence.  After a
careful review of the record, we affirm the judgments of the trial
court.

http://www.tba.org/tba_files/TCCA/neblettclarajean.wpd

STATE OF TENNESSEE v. REYNALDO QUINTANILLA

Court:TCCA

Attorneys: 

Eric L. Davis, Franklin, Tennessee, for the appellant, Reynaldo
Quintanilla.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Georgia Felner, Assistant District
Attorney General, for the appellee, State of Tennessee.                         

Judge: WADE

First Paragraph:

The defendant, Reynaldo Quintanilla, was convicted of driving with a
blood alcohol concentration greater than .10 percent.  See Tenn. Code
Ann. S 55-10-401(a)(2).  The trial court imposed a sentence of eleven
months, twenty-nine days, all but forty-eight hours suspended.  In
this appeal of right, he argues that the trial court erred by failing
to suppress certain of the evidence acquired by the police and that
the evidence was otherwise insufficient to support the conviction. 
The judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/quintanillareynaldo.wpd

TRACY LEBRON VICK v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Cynthia Lecroy-Schemel, Chattanooga, Tennessee, for the Appellant,
Tracy Lebron Vick.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
William H. Cox, III, District Attorney General; and Rodney C. Strong,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                          

Judge: HAYES

First Paragraph:

The Appellant, Tracy Lebron Vick, appeals the Hamilton County Criminal
Court's dismissal of his petition for post-conviction relief.  Vick
pled guilty to second-degree murder and received a forty- year
sentence, as a range II multiple offender.  On appeal, Vick challenges
the validity of his guilty plea upon grounds of voluntariness and
ineffective assistance of counsel.  Following a review of the record,
we affirm the judgment of the post-conviction court dismissing the
petition.

http://www.tba.org/tba_files/TCCA/vicktracyl.wpd

STATE OF TENNESSEE v. WESLEY D. WHITTINGTON

Court:TCCA

Attorneys:

C. Diane Crosier, Franklin, Tennessee, for the appellant, Wesley D.
Whittington.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
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:

Defendant, Wesley D. Whittington, entered guilty pleas to the charges
of possession of marijuana with the intent to sell or deliver, a Class
E felony, and possession of drug paraphernalia, a Class A misdemeanor.
 Defendant and the State agreed to sentences of one year for the
felony conviction and eleven months and twenty-nine days for the
misdemeanor conviction, to be served concurrently.  The negotiated
plea agreement further stated that the trial court would determine the
manner in which Defendant would serve his sentences.  Following a
sentencing hearing, the trial court ordered Defendant's sentences to
be served in confinement.  Defendant appeals the trial court's refusal
to order alternative sentencing.  After a careful review of the
record, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/whittingtonwesleyd.wpd

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