Opinion FlashSeptember 17, 2003Volume 9 — Number 169 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 ESTATE OF JOHN E. ACUFF, SR., ET AL. v. BRENDA OLINGER Court:TCA Attorneys: Bob E. Lype, Chattanooga, TN, for Appellants John W. Cleveland, Sweetwater, TN, for Appellee Judge: HIGHERS First Paragraph: This is an appeal from the granting of Appellee's motion for discretionary costs. For the following reasons, we find that the motion was not timely filed and reverse the court below. http://www.tba.org/tba_files/TCA/acuffjohne.wpd JESSE RANDALL FITTS, JR., ET AL. v. DR. DONALD ARMS d/b/a McMINNVILLE ORTHOPEDIC CLINIC, ET AL. Court:TCA Attorneys: Robert L. Huskey, Manchester, TN, for Appellant William C. Rieder, Tullahoma, TN, for Appellee Dr. Donald Arms, d/b/a McMinnville Orthopedic Clinic F. Laurens Brock, H. Blake Sims, Attorneys for Appellee Dr. William Coger Judge: HIGHERS First Paragraph: This appeal arises from a medical malpractice proceeding. The trial court granted summary judgment for both physicians, finding that Appellants' expert affidavits failed to raise a genuine issue of material fact. For the following reasons, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/fittsjesserandall.wpd DONALD COPELAND FREEMAN v. LYNN DONNELL FREEMAN Court:TCA Attorneys: Clark Lee Shaw, Nashville, For Appellant, Donald Copeland Freeman Thomas K. Bowers, Nashville, For Appellee, Lynn Donnell Freeman Judge: CRAWFORD First Paragraph: This appeal involves a former husband's attempt to modify or terminate an alimony award to his former wife because of a change of circumstances. Primarily, husband asserts that he is retired, and his income and assets have been drastically reduced to the extent that he is unable to pay the alimony awarded. Wife filed a petition to hold husband in contempt for his failure to pay the alimony installments accrued. After a non-jury hearing, the trial court dismissed husband's petition and granted wife's petition holding husband in civil contempt of court. Husband appeals. We affirm. http://www.tba.org/tba_files/TCA/freemand.wpd EDDIE M. GURLEY and JANET R. GURLEY v. HICKORY WITHE PARTNERS, L.P., ET AL. Court:TCA Attorneys: Danny R. Ellis, Jackson, TN, for Appellants Richard G. Rosser, Somerville, TN, for Appellees Judge: HIGHERS First Paragraph: This is a dispute over a sale of land in Fayette County, Tennessee. The lower court granted summary judgment in favor of the seller. Appellants raise two issues for our review. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/gurleyeddiem.wpd DWIGHT JAMES v. STATE OF TENNESSEE, ET AL. Court:TCA Attorneys: Kenneth K. Crites, Centerville, Tennessee, for the appellant, Dwight James. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Janet M. Kleinfelter, Senior Counsel, for the appellees, State of Tennessee, Department of State, Division of Election; Tennessee Highway Officials Certification Board and Brook Thompson. Judge: COTTRELL First Paragraph: This appeal involves Dwight James' unsuccessful attempt to qualify as a candidate for Hickman County Road Superintendent and be placed on the August, 2002, election ballot. The trial court granted the Tennessee Highway Officials Certification Board's summary judgment motion, finding that the Board had not acted arbitrarily, capriciously or illegally in not certifying Mr. James as qualified to run for the office of County Road Superintendent. We have determined that the appeal is moot. http://www.tba.org/tba_files/TCA/jamesd.wpd BRENDA C. KING v. DANNY F. KING Court:TCA Attorneys: Robert L. Jackson, Stanley A. Kweller, Nashville, Tennessee, for the appellant, Danny F. King. Paul T. Housch, Nashville, Tennessee, for the appellee, Brenda C. King. Judge: COTTRELL First Paragraph: Former Husband sought to accelerate former Wife's repayment of alimony overpayments that accrued between the divorce and this court's modification of the original award of alimony. Former Husband argues the trial court abused its discretion when it did not establish a reasonable repayment plan. Because we find the trial court did not abuse its discretion in fashioning a repayment plan, we affirm the trial court. http://www.tba.org/tba_files/TCA/kingb.wpd CATHY LEGGETT, ET AL. v. KRISTA MINNICK, ET AL. Court:TCA Attorneys: Damon E. Campbell, Union City, Tennessee, for the appellant, Krista Leigh Minnick. David L. Hamblen, Union City, Tennessee, for the appellees, Cathy Leggett and Tom Leggett Judge: FARMER First Paragraph: Paternal grandparents sought change of custody of grandchildren from their mother to grandparents. The trial court denied the petition but modified previously ordered visitation and mother appeals. We affirm. http://www.tba.org/tba_files/TCA/leggettcathy.wpd MARCIA DIANE McALEXANDER v. ALBERT WESLEY McALEXANDER
Court:TCA
Attorneys:
William E. Miller, Cordova; Robert Wampler, Memphis, For Albert Wesley
McAlexander
Stevan L. Black, John C. Ryland, Vickie Hardy Jones, For Marcia Diane
McAlexander
Judge: CRAWFORD
First Paragraph:
This appeal involves two consolidated cases. The first case is a
post-divorce proceeding initiated by Wife as a Rule 60 motion and
petition for contempt to modify and enforce the final decree of
divorce as it pertains to the alimony award and division of marital
property. In these proceedings, the parties consented to arbitration
of all determinative issues, and the award of the arbitrator was
confirmed by the trial court. Husband appeals. We affirm as
modified. The second case is an appeal of the order of the trial
court granting a summary judgment from Husband's petition seeking a
sale for partition of the parties' former marital home, now held by
the parties as tenants by the entirety and with possession awarded to
Wife until she remarries. The trial court granted summary judgment
decreeing a sale for partition. Wife appeals. We affirm, as
modified, for a determination on remand of Wife's interest in the
property by virtue of the award of possessory rights awarded in the
final decree.
http://www.tba.org/tba_files/TCA/mcalexanderm.wpd
RICHARD McDONALD v. SWAIN & SONS TRANSPORTS, INC., GEORGE FILGO, AND DON FIELDS Court:TCA Attorneys: Richard McDonald, the appellant, pro se. John P. Scruggs, and Heather W. Fletcher, Memphis, Tennessee, for the appellees, Swain & Sons Transports, Inc., George Filgo, and Don Fields. Judge: KIRBY First Paragraph: This is a retaliatory discharge case. In July 1998, the plaintiff truck driver began working for the defendant trucking company. In June 1999, the truck driver was involved in a one-vehicle accident while making a delivery for the company. Soon thereafter, the truck driver was discharged. The truck driver sued the trucking company in the court below, alleging that his discharge was not because of the vehicular accident, but rather was in retaliation for refusing to participate in or remain silent about alleged illegal activity by the trucking company. The trial court found in favor of the trucking company on all issues. The plaintiff truck driver now appeals on several grounds. No transcript or statement of the evidence was filed. The issues raised by the plaintiff require a review of the proceedings below that is not possible in the absence of a transcript of the trial proceedings or a statement of the evidence. Consequently, we affirm the trial court's decision. http://www.tba.org/tba_files/TCA/mcfonaldr.wpd LESLIE ANN ROBINSON v. WILLIAM L. FULLITON AND VALERIE T. CORDER Court:TCA Attorneys: James R. Garts, Jr., and Shannon E. Holbrook, Memphis, Tennessee, for the appellant, Valerie T. Corder. Mimi Phillips, Memphis, Tennessee, for the appellant, William L. Fulliton. Ronald Krelstein and Rebecca Miller, Memphis, Tennessee, for the appellee, Leslie Ann Robinson. Judge: KIRBY First Paragraph: This case involves the trial court's refusal to expunge the records of a criminal contempt proceeding. In the underlying divorce action, the wife moved for criminal contempt sanctions against the husband's attorney. The trial court assigned a special prosecutor to investigate the criminal contempt charges against the attorney. The special prosecutor later determined that there was insufficient evidence of contempt. The attorney thereafter requested that the trial court expunge the public records relating to the charge of criminal contempt under the expungement statute, Tennessee Code Annotated S 40-32-101(a)(1). The trial court denied the attorney's request, concluding that the statute did not apply to a criminal contempt proceeding within the meaning of the statute. The attorney now appeals. Although the rules of appellate procedure do not provide for the attorney to appeal the trial court's decision relating to expungement, the appeal will be treated as a petition for a writ of certiorari. We now grant the writ and reverse the trial court's decision, concluding that the expungement statute applies insofar as the contempt charges were criminal in nature. http://www.tba.org/tba_files/TCA/robinsonla.wpd CITY OF MEMPHIS v. CIVIL SERVICE COMMISSION OF THE CITY OF MEMPHIS AND STANLEY SHOTWELL Court:TCA Attorneys: William E. Frulla, Memphis, Tennessee, for the appellant, Stanley Shotwell. Robert L. J. Spence, Jr., Memphis City Attorney, Ronald G. Wyatt, Assistant City Attorney, and Elbert Jefferson, Assistant City Attorney, Memphis, Tennessee for the appellee, City of Memphis. Judge: KIRBY First Paragraph: This case involves a Rule 60.02 motion for relief from a final judgment. The plaintiff police officer was terminated from his position at the police department. The officer appealed his termination to the civil service commission, which reversed the officer's termination and ordered his reinstatement. The city appealed to the court below. In 1995, the trial court reversed the commission's decision and upheld the officer's termination. The officer appealed to this court, which affirmed the termination decision in 1997. In 1998, after the appeal had been adjudicated, the officer filed a motion in the trial court for relief from its 1995 judgment, pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court rejected the motion, determining that it was filed outside the one-year time limitation provided in Rule 60.02. The officer now appeals that decision. We affirm the decision of the trial court, finding that the one-year time limitation provided in Rule 60.02 begins to run on the date of entry of the order from which the movant seeks relief. http://www.tba.org/tba_files/TCA/shotwells.wpd STATE OF TENNESSEE, EX REL. WANDA THEUS v. BERNARD WOODS Court:TCA Attorneys: Paul G. Summers, Attorney General & Reporter, and Stuart F. Wilson-Patton, Senior Counsel for the Office of the Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee on behalf of Wanda Theus. Bernard Woods, appellee, pro se. Judge: KIRBY First Paragraph: This is a paternity suit involving the State's request to establish child support payments from the defendant father. The mother filed suit to establish paternity and to have the child's name changed. The evidence established that the defendant was the child's father. At the hearing before the juvenile court referee, the mother requested that child support not be set, because the father was voluntarily providing support. The State objected, insisting that child support payments be established under the guidelines, because the mother's right to such support was assigned to the State when she accepted state financial assistance. The juvenile court referee declined to establish child support, because neither the mother nor the father wanted support payments to be set. The State requested a hearing on the matter before a juvenile court judge. At a brief hearing, the juvenile court judge summarily affirmed the conclusion of the referee, citing the fact that neither parent wanted support to be set. The State now appeals. We reverse the decision of the juvenile court and remand with instructions to conduct a de novo evidentiary hearing, pursuant to Tennessee Code Annotated S 37-1-107(e). http://www.tba.org/tba_files/TCA/theusw.wpd LORENZO C. WHITE, ET AL. V. CAROLYN FIELDS HAYES, ET AL. Court:TCA Attorneys: Vernon R. White, Akron, Ohio, appellant, Pro Se. L. Daniel Johnson, Memphis, Tennessee, for appellees, Celia Welch, Beverly Welch Williams, Kenneth Welch and Russell Welch. America E. Nelson, Kalamazoo, Michigan, appellee, Pro Se. Judge: KIRBY First Paragraph: This is a will construction case. The testator's will devised his estate to his children, then to his grandchildren, then to his great-grandchildren. When the great-grandchildren became of age, the estate was to be divided "as law directs." The plaintiffs, great-grandchildren of the testator, filed this action seeking interpretation of the will and a statement of each party's interests. The trial court found that the will in question violated the Rule Against Perpetuities and ordered that the estate be divided among the testator's living heirs as tenants in common and per stirpes. The plaintiffs appeal. We vacate the decision of the trial court and remand for consideration of the cause in light of the Tennessee Uniform Statutory Rule Against Perpetuities, T.C.A. SS 66-1-201 to -208. http://www.tba.org/tba_files/TCA/whitelc.wpd SYLVESTER YOUNG v. LEAH LISA BARROW, ET AL. Court:TCA Attorneys: Sylvester Young, Nashville, Tennessee, Pro Se. Scott A. Rhodes, Brentwood, Tennessee, for the appellees, Harrison Brothers Insurance and Leah Barrow. Judge: KOCH First Paragraph: This appeal arises out of a minor intersection accident. The complaints of the driver and passenger of one of the motor vehicles against the driver of the second motor vehicle were consolidated in the Circuit Court for Davidson County. The trial court granted a directed verdict against the plaintiff driver at the close of the plaintiffs' proof. Thereafter, the plaintiff driver filed a second lawsuit against the defendant driver and her insurer. The trial court dismissed the second suit on the ground of res judicata and granted the insurer's motion for a judgment on the pleadings. The plaintiff driver has perfected this appeal. We affirm the dismissal of his second complaint. http://www.tba.org/tba_files/TCA/youngs.wpd STATE OF TENNESSEE v. REGINALD DERELL BALDON Court:TCCA Attorneys: D. Michael Dunavant, Ripley, Tennessee, for the appellant, Reginald Derell Baldon. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Lauderdale County jury convicted the Defendant, Reginald Derell Baldon, of three counts of burglary, three counts of vandalism over $1,000, one count of theft over $1,000, one count of vandalism over $500, and four counts of misdemeanor theft stemming from three separate break-ins. He was sentenced to an effective term of twenty years. On appeal, the Defendant argues: (1) the evidence was insufficient to support his convictions; (2) the State failed to provide proper discovery pursuant to Tennessee Rule of Criminal Procedure 16; (3) the trial court erred in denying a motion for mistrial due to the prosecutor's reference to the Defendant's failure to testify; and (4) the trial court erred in refusing to instruct the jury on aggravated criminal trespass as a lesser-included offense of burglary. We also address whether lost evidence deprived the Defendant of a fair trial. We modify the judgment on one of the vandalism convictions to properly reflect the jury's verdict, although this modification does not change the effective sentence of twenty years. Otherwise, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/baldonrd.wpd STATE OF TENNESSEE v. ROBERT KERN HOLLOWAY Court:TCCA Attorneys: Michael J. Flanagan, Nashville, Tennessee, for the appellant, Robert Kern Holloway. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Suzanne Lockert, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: A Dickson County jury convicted the defendant, Robert Kern Holloway, of second degree murder, a Class A felony, and he was sentenced to forty years to be served at 100% as a violent offender. On appeal, he argues: the evidence was insufficient to support his conviction; the trial court improperly instructed the jury regarding the mens rea element of second degree murder; and the trial court abused its discretion in ruling on his pro se motion for a new trial which alleged ineffective assistance of counsel. Upon review, we affirm the judgment of the trial court as to the defendant's conviction but vacate its ruling as to the pro se ineffective assistance of counsel claim. http://www.tba.org/tba_files/TCCA/hollowayrobertk.wpd STATE OF TENNESSEE v. DONALD RAY LOVELL Court:TCCA Attorneys: Peter J. Strianse, Nashville, Tennessee (at trial and on appeal), and Dale M. Quillen, Nashville, Tennessee (at trial), for the appellant, Donald Ray Lovell. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Janice H. Bossing and John Zimmermann, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Davidson County Grand Jury indicted the Defendant for aggravated gambling promotion. The trial judge denied the Defendant's preliminary motion to suppress certain evidence, and a Davidson County jury found the Defendant guilty as charged. The court sentenced him to two years of probation, a $1,000 fine, and five hours of unpaid community service per month for twenty-four months. He now appeals claiming: (1) that the trial court erred in failing to suppress physical evidence gathered during and incriminating statements made as a result of a warrantless search; and (2) that the evidence was insufficient to support a conviction for aggravated gambling promotion. Finding no reversible error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lovelldr.wpd STATE OF TENNESSEE v. BARBARA SUE MOORE, ALIAS BARBARA S. MOORE, ALIAS BARBARA ADAMS Court:TCCA Attorneys: Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher (on appeal) and Amy D. Harwell (at trial), Assistant District Public Defenders, for the appellant, Barbara Sue Moore, alias Barbara S. Moore, alias Barbara Adams. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Bret Thomas Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Barbara Sue Moore, pled guilty in the Davidson County Criminal Court to theft of property valued $60,000 or more, a Class B felony, and theft of property valued $1,000 or more but less than $10,000, a Class D felony. Pursuant to the plea agreement, the defendant received concurrent sentences of eight and two years, respectively, with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court denied the defendant's request for alternative sentences and ordered that she serve her sentences in the Department of Correction. The defendant appeals, claiming that the trial court erred by ordering that she serve her sentences in confinement. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/moorebarbarasue.wpd STATE OF TENNESSEE v. WILLIAM A. PAYNE, JR. Court:TCCA Attorneys: Nancy C. Meyer, Assistant Public Defender, Clinton, Tennessee, for the appellant, William Payne, Jr. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; James N. Ramsey, District Attorney General; and Janice G. Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant entered a plea of guilty to the charges of second degree murder and aggravated arson, reserving a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The trial court sentenced him to fifteen years of incarceration on both counts and ordered that the sentences run concurrently. In this appeal, the Defendant presents the following reserved question of law: "Was [the] Defendant in custody when he gave an incriminating statement such that said statement should be suppressed for violation of [the] Defendant's constitutional rights under [the] Fifth and Fourteenth Amendments?" We hold that the Defendant was in custody at the time he made the statements and, thus, that he was entitled to Miranda warnings. As such, the incriminating statements that he made prior to receiving Miranda warnings must be suppressed. Accordingly, we reverse the Defendant's conviction. http://www.tba.org/tba_files/TCCA/paynewp.wpd ANTHONY PHILLIPS v. STATE OF TENNESSEE Court:TCCA Attorneys: Anthony Phillips, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Emily B. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner appeals the summary dismissal of his post-conviction relief petition based upon the expiration of the statute of limitations. He argues: (1) due process required the post-conviction court to hear his petition because of his attorney's inaction even though it was filed outside the statute of limitations; and, regardless, (2) his convictions should be set aside because they are based on void indictments. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/phillipsanthony.wpd JASON REAVES v. STATE OF TENNESSEE Court:TCCA Attorneys: Joseph S. Ozment, Memphis, Tennessee, for the appellant, Jason Reaves. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; Lee Coffee, Assistant District Attorney General; and W. Chris Scruggs, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was convicted in general sessions court of Driving While Under the Influence and "Refusal to Submit." He appealed his convictions and sentences to the Criminal Court for Shelby County. The Defendant failed to appear for his initial court hearing in criminal court, and a capias was issued for his arrest. The Defendant was arrested on the capias, posted bond, and subsequently appeared one hour late for a hearing in criminal court. The criminal court dismissed the appeal and remanded the case to general sessions court for the execution of the original judgments. This appeal ensued, in which the Defendant argues (and the State concedes) that the criminal court erred by dismissing the appeal and remanding the case to general sessions court. We agree and reverse the judgment of the criminal court. http://www.tba.org/tba_files/TCCA/reavesj.wpd JOSEPH SHEPHERD v. STATE OF TENNESSEE Court:TCCA Attorneys: Richard L. Burnett, Knoxville, Tennessee, for the appellant, Joseph Shepherd. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Jerry N. Estes, District Attorney General; and William Reedy, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: Prior to this appeal, the petitioner, Joseph Shepherd, was convicted of involuntary manslaughter in one proceeding, and, in a separate proceeding, he was convicted of felony murder and aggravated assault. He is currently serving a life sentence. The petitioner filed a petition for post-conviction relief in each case, raising several issues, including ineffective assistance of counsel. The post- conviction court denied relief in both cases and the petitioner appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/shepherdj.wpd STATE OF TENNESSEE v. OSCAR C. WELLS Court:TCCA Attorneys: Robert Wilson Jones and Garland Ergueden, Memphis, Tennessee (on appeal); and Larry Nance, Memphis, Tennessee (at trial), for the appellant, Oscar C. Wells. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jennifer Nichols and David Pritchard, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Oscar C. Wells, was convicted in the Shelby County Criminal Court of one count of first degree murder and one count of especially aggravated robbery. The appellant received a total effective sentence of life plus ten years. On appeal, the appellant challenges his arrest without a warrant and the trial court's failure to suppress the appellant's statement which was taken after his arrest. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/wellsoc.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! 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