Opinion FlashJuly 9, 2003Volume 9 — Number 121 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 CONSOLIDATED WASTE SYSTEMS, LLC, v. SOLID WASTE REGION BOARD OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL and METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE v. SOLID WASTE DISPOSAL CONTROL BOARD, ET AL. Court:TCA Attorneys: Thomas G. Cross, John L. Kennedy and Daniel W. Champney, Nashville, Tennessee, for the appellant, The Metropolitan Government of Nashville and Davidson County. Joe W. McCaleb, Hendersonville, Tennessee and Frank M. Fly, Murfreesboro, Tennessee, for the intervenor/appellant, Sherard Caffey Edington. Thomas G. Cross, Daniel W. Champney and John L. Kennedy, Nashville, Tennessee, for the respondent/appellee, Solid Waste Region Board of The Metropolitan Government of Nashville and Davidson County. James L. Murphy, III, Nashville, Tennessee, for the petitioner/appellee, Consolidated Waste Systems, LLC. Judge: CAIN First Paragraph: This appeal involves two chancery court cases concerning the proper interpretation of Tennessee Code Annotated section 68-211-814. From a decision dismissing their counterclaims, the Metropolitan Government Solid Waste Region Board and Sherard Caffey Edington appeal. From a decision affirming the State's issuance of a Class IV landfill permit, the Metropolitan Government appeals. We affirm. http://www.tba.org/tba_files/TCA/conwaste.wpd CHARLES GARRISON, ET AL. v. JAMES C. STAMPS Court:TCA Attorneys: Lawrence Alan Poindexter, Lebanon, Tennessee, for the appellant, James C. Stamps. Frank Lannom, Lebanon, Tennessee, for the appellees, Charles Garrison by Next Friend and Mother, Glenda Garrison, and Glenda Carol Garrison, Individually. Judge: CAIN First Paragraph: Charles Garrison and James C. Stamps were involved in an automobile accident on October 10, 1998 wherein Garrison was seriously injured. Stamps was uninsured, and Garrison was beneficiary of uninsured motorists coverage under policies of insurance issued to his parents. With no suit ever filed against Stamps, Garrison and his parents reached an agreement with the uninsured motorists carriers whereby the carriers paid the limits of their uninsured motorists coverage. Charles Garrison being a minor, a Petition for court approval of the settlement was filed naming Stamps as the defendant, and an Order was entered approving the settlement. Garrison then filed suit against Stamps, which suit was met with a Summary Judgment Motion by Stamps claiming that he was released from liability by the settlement Order. Garrison filed a Tennessee Rule of Civil Procedure 60.02 Motion seeking to have the settlement Order revised to reflect the true facts of the settlement. This Motion was granted, and Stamps appeals. We hold that Stamps is without standing to assert any rights under the settlement Order and, on this basis, affirm the judgment. http://www.tba.org/tba_files/TCA/garrisoncharles.wpd HAREN CONSTRUCTION COMPANY, INC. v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Court:TCA Attorneys: Philip E. Beck and William L. Barrett, Jr., Atlanta, Georgia, for the appellant, Haren Construction Company, Inc. Thomas G. Cross and Jennifer C. Surber, Nashville, Tennessee, for the appellee, The Metropolitan Government of Nashville and Davidson County. Judge: CAIN First Paragraph: This appeal involves a contract between the Appellant Haren Construction Company, Inc. (HCCI) and the Appellee Metropolitan Government (Metro). The construction company brought suit claiming Metro breached its contract with HCCI in "constructive suspension" of work. In addition the construction company claimed that Metro interfered with the company's contract for equipment supply from a third party. The trial court granted Metro's two motions for summary judgment, the first concerning Metro's alleged liability under the Governmental Tort Liability Act, the second concerning the action for breach of contract. HCCI appeals the grant of summary judgment. We affirm. http://www.tba.org/tba_files/TCA/harenconstruction.wpd IN THE MATTER OF K.J.K.
Court:TCA
Attorneys:
Paul G. Summers, Attorney General & Reporter; Douglas Earl Dimond,
Assistant Attorney General, for the appellant, State of Tennessee,
Department of Children's Services.
Glen A. Isbell, Winchester, Tennessee, for the appellee, A.K.
Judge: CAIN
First Paragraph:
In this unusual appeal, the State seeks review of the trial court's
Order granting the appellee Mother's Petition for Contempt. We
reverse the trial court's finding of criminal contempt and award of
visitation.
http://www.tba.org/tba_files/TCA/kjk.wpd
ALAN MILLER, ET AL. v. CITY OF MURFREESBORO, ET AL. Court:TCA Attorneys: Susan Emery McGannon, Murfreesboro, Tennessee, for the appellant, City of Murfreesboro. Terry A. Fann, Murfreesboro, Tennessee, for the appellees, Alan Miller, Ken Roberts and John Singleton. Judge: CAIN First Paragraph: In this retaliatory demotion case, the City of Murfreesboro appeals the action of the trial court in denying a Motion for Summary Judgment as to all issues. We find no material evidence in the record to establish that the articulated reason for the demotion of these three police officers, all of whom are established by the record to be honest and competent officers, is pretextual. The judgment of the trial court is reversed, and summary judgment entered for Defendant as to all issues. http://www.tba.org/tba_files/TCA/milleralan.wpd NEW COVENANT BAPTIST CHURCH v. PANTHER SARK, ET AL. WITH DISSENTING OPINION Court:TCA Attorneys: Thomas M. Hale, Knoxville, Tennessee, for the Appellants, Panther Sark, Carter Rome Eddleman Real Estate, LLC, Subland, LLC, and Koontz, Loy & Taylor, LLC George W. Morton, Knoxville, Tennessee, for the Appellee, New Covenant Baptist Church Judge: GODDARD First Paragraph: The origin of this appeal was a suit for declaratory judgment filed by New Covenant Baptist Church against Panther Sark, Carter Rome Eddleman Real Estate, LLC, Vincon, LLC, Subland, LLC, Rufus H. Smith & Co., John T. Hart, and Koontz, Loy & Taylor, LLC, owners of property in the Technology Park West Subdivision in Knox County. The suit sought a declaration that the restrictive covenants applicable to the subdivision did not preclude the church from using it as an entrance driveway to a new church the membership proposed to build on adjacent property. The Trial Court found that such use would not be a violation of any restrictive covenant. This determination was appealed and, by an opinion of this Court filed in Knoxville on February 28, 2002, we reversed the Trial Court's determination and held the lot owned by New Covenant could not be used in such a manner. Upon remand the Defendants moved to recover their attorney fees pursuant to a restrictive covenant as to lots in the subdivision. The Trial Court found in favor of New Covenant, resulting in this appeal. We affirm. http://www.tba.org/tba_files/TCA/newcove_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/newcove_dis.wpd SHELLEY SACKETT v. HAL ROSEMAN Court:TCA Attorneys: Larry Hayes, Jr., Nashville, Tennessee, for the appellant, Shelley Sackett. Gregory D. Smith, Nashville, Tennessee, for the appellee, Hal Roseman Judge: CAIN First Paragraph: This interlocutory appeal was brought to determine whether the trial court properly exercised subject matter jurisdiction pursuant to the Uniform Child Custody Joint Enforcement Act (UCCJEA). http://www.tba.org/tba_files/TCA/sackett.wpd STATE OF TENNESSEE v. GENE BOOKER Court:TCCA Attorneys: Edwin C. Lenow, Memphis, Tennessee, for the appellant, Gene Booker. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephen P. Jones, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Appellant was convicted of aggravated robbery by a jury in the Criminal Court for Shelby County, and the trial court sentenced him to sixteen years of confinement as a Range II Multiple Offender. The Appellant raises the following issues on appeal: (1) whether sufficient evidence was presented at trial to convict the Appellant of the charged offense, and (2) whether the trial court erred in failing to charge the jury on the lesser-included offenses of robbery and theft. Finding no reversible error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bookerg.wpd TERRELL BURGESS v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert Little, Maplewood, New Jersey, for the appellant, Terrell Burgess. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; William L. Gibbons, District Attorney General; James Morton Lammey, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Terrell Burgess, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his guilty pleas to first degree felony murder, aggravated robbery, and two counts of aggravated assault and his resulting effective sentence of life plus ten years in the Department of Correction (DOC). He contends (1) that he received the ineffective assistance of counsel and (2) that his attorney coerced him into pleading guilty. We affirm the trial court's denial of the petition. http://www.tba.org/tba_files/TCCA/burgesst.wpd STATE OF TENNESSEE v. ERICA J. HARTWELL Court:TCCA Attorneys: C. Michael Robins, Massey, McClusky & Robbins, Memphis, Tennessee, for appellant, Erica J. Hartwell. Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Elizabeth Rice, District Attorney General, for appellee, State of Tennessee. Judge: SMITH First Paragraph: In this appeal the appellant, Erica J. Hartwell, contends that the Circuit Court of Tipton County, Tennessee, erred in denying her a writ of certiorari to review and vacate the orders of the Tipton County General Sessions Court revoking the appellant's probation. She maintains that the general sessions court conducted the probation revocation hearing without proper notice and without informing her of her right to an attorney at the hearing and her right to appeal. We hold that under the circumstances the writ of certiorari is not available. The judgment of the circuit court is therefore AFFIRMED. http://www.tba.org/tba_files/TCCA/hartwell.wpd STATE OF TENNESSEE v. LAWRENZO MENTON Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, for the appellant, Lawrenzo Menton. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was indicted for two counts of aggravated robbery and two counts of aggravated kidnapping. Following a trial, the Defendant was convicted of two counts of aggravated robbery and two counts of simple kidnapping. The trial court sentenced the Defendant as a Range I, standard offender to twelve years' incarceration for each aggravated robbery conviction and to six years' incarceration for each kidnapping conviction. It ordered that the sentences for aggravated robbery be served consecutively and that the sentences for kidnapping be served concurrently with each other and with the aggravated robbery sentences. In this appeal as of right, the Defendant argues (1) that insufficient evidence was presented to support his convictions; (2) that the trial court erred by consolidating the separate counts for trial; and (3) that the trial court erred by ordering him to serve his sentences for aggravated robbery consecutively. We affirm the Defendant's convictions. However, we reverse the trial court's imposition of consecutive sentences and remand to the trial court solely for its determination, consistent with this opinion and the factors set forth in Tennessee Code Annotated S 40-35-115, of its basis for imposing consecutive sentences. http://www.tba.org/tba_files/TCCA/mentonl.wpd STATE OF TENNESSEE v. TIMOTHY MURRELL Court:TCCA Attorneys: Didi Christie, Brownsville, Tennessee, for the appellant, Timothy Murrell. Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant (defendant), Timothy Murrell, was convicted by a Madison County jury of the offenses of possession of cocaine with the intent to sell, possession of cocaine with intent to deliver, and possession of drug paraphernalia. The two (2) felonious possession of cocaine convictions were merged. The trial court sentenced the defendant to twenty (20) years in the Department of Correction for these offenses and eleven months and twenty-nine days for the drug paraphernalia conviction. These sentences were to run concurrently for a total effective sentence of twenty years. In this appeal the defendant raises five issues for our review: (1) whether the evidence is sufficient to support the convictions for felonious possession of cocaine; (2) whether the trial court erred in declining to give the jury a missing witness instruction; (3) whether the trial court erred in allowing police officers to testify that the cocaine found in the defendant's possession was for re-sale; (4) whether the trial court erred in refusing to admit certain evidence for impeachment; and (5) whether the trial court erred in declining to apply a mitigating factor offered by the defendant at sentencing. After a thorough review of the record and applicable authorities, we find no reversible error. Therefore, the judgments of the trial court are AFFIRMED. http://www.tba.org/tba_files/TCCA/murrellt.wpd STATE OF TENNESSEE v. TOMMY FRANKLIN POE Court:TCCA Attorneys: Didi Christie, Brownsville, Tennessee, for the Appellant, Tommy Franklin Poe. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Jerry W. Norwood, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Tommy Franklin Poe, pled guilty to second degree murder, a class A felony, and was sentenced to twenty-five years to be served at 100% in the Department of Correction. In addition, the trial court ordered that this sentence be served consecutively to "any unserved sentence." On appeal, Poe contends that his sentence was improper because the trial court's decision provides no rationale for imposition of consecutive sentences or for service of his sentence at 100%. Finding no error, the judgment of the McNairy County Circuit Court is affirmed. http://www.tba.org/tba_files/TCCA/poet.wpd STATE OF TENNESSEE v. MAURICE PRUITT Court:TCCA Attorneys: Harold R. Guinn, Humboldt, Tennessee, for the appellant, Maurice Pruitt. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Garry G. Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Maurice Pruitt, appeals from his conviction by a jury in the Gibson County Circuit Court for the sale of one-half gram or more of cocaine, a Class B felony. The trial court sentenced him as a Range II, multiple offender to eighteen years in the Department of Correction to be served consecutively to a ten-year sentence from another county. The defendant contends that (1) the pretrial identification procedures were suggestive and violated due process and (2) the trial judge erred by entering the jury room. We affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/pruittma.wpd STATE OF TENNESSEE v. ALORRA D. PUCKETT WITH DISSENTING OPINION Court:TCCA Attorneys: Ardena J. Garth, District Public Defender; and Donna Robinson Miller (on appeal) and Lorrie Dawn Miller (at hearing), Assistant District Public Defenders, for the appellant, Alorra D. Puckett. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; William H. Cox, III, District Attorney General; and Carl Thomson Huskins, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: In a certified question of law, the defendant challenges the traffic stop that resulted in her plea of nolo contendere to DUI, first offense. We hold the stop was unlawful and reverse the trial court's judgment. http://www.tba.org/tba_files/TCCA/puckettalorrad_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/puckettalorrad_dis.wpd STATE OF TENNESSEE v. JOSEPH HAROLD RUCKER Court:TCCA Attorneys: Joe H. Walker, Harriman, Tennessee (on appeal); and Walter B. Johnson, II, Harriman, Tennessee (at trial and on appeal); for the Appellant, Joseph Harold Rucker. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; J. Scott McCluen, District Attorney General; and Frank Harvey, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Joseph Harold Rucker, appeals the Roane County Criminal Court's imposition of a 23-year Department of Correction sentence for the second-degree murder of his girlfriend, Tommy Jean Trinkle. Because we determine that the length of the Class A, Range I sentence is supported in the record, we affirm. http://www.tba.org/tba_files/TCCA/rucker.wpd STATE OF TENNESSEE v. CALVIN SCOTT Court:TCCA Attorneys: Robert Wilson Jones, Shelby County Public Defender; W. Mark Ward, Assistant Shelby County Public Defender, Memphis, Tennessee, for the Appellant, Calvin Scott. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Glen Baity, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Calvin Scott, was found guilty by a Shelby County jury of aggravated robbery, two counts of especially aggravated robbery, and two counts of first degree murder. The trial court sentenced Scott to an effective sentence of life plus twenty-two years. In this appeal as of right, Scott raises the following issues for our review: (1) whether the State asserted sufficient race-neutral explanations to support its exercise of peremptory challenges against four African-American jurors; and (2) whether the trial court, after concluding that the State's exercise of a peremptory challenge was improper, should have dismissed the entire panel rather than reseating the juror. We conclude that the State's use of its peremptory challenges was proper, and the trial court did not err by reseating the challenged juror. Accordingly, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/scottcal.wpd STATE OF TENNESSEE v. ERIC JAMES TAYLOR, ALIAS Court:TCCA Attorneys: Susan Shipley, Knoxville, Tennessee, for the appellant, Eric James Taylor. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Eric James Taylor, Alias, was convicted by a jury of first degree premeditated murder and aggravated assault. The Defendant now appeals as of right from his murder conviction, alleging seven errors: (1) the trial court should have allowed him to cross-examine a prosecution witness about pending theft charges; (2) the trial court should have instructed the jury about the State's duty to preserve evidence; (3) the prosecutor impermissibly shifted the burden of proof to the Defendant during closing argument; (4) the trial court should have instructed the jury on the lesser- included offense of vehicular homicide; (5) the trial court should have allowed him to cross-examine a prosecution witness about the victim's pre-offense surgery; (6) the evidence is not sufficient to support his murder conviction; and (7) a police officer testifying for the State improperly referred to prior contacts with the Defendant. Finding no merit to the Defendant's contentions, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/taylorej.wpd PLEASE FORWARD THIS E-MAIL! 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