Opinion FlashMay 20, 2003Volume 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel 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 PLEASE FORWARD THIS E-MAIL! 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