Opinion FlashDecember 19, 2003Volume 9 — Number 232 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 v. CLARENCE W. CARTER Court:TSC Attorneys: C. Edward Fowlkes and John E. Herbison, Nashville, Tennessee, for the appellant, Clarence W. Carter. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; John Zimmermann, Assistant Attorney General; and Ana Escobar, Assistant Attorney General, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: The defendant, Clarence W. Carter, was tried and convicted of conspiracy to sell cocaine and possession of cocaine with intent to manufacture, deliver or sell, and the defendant was sentenced as a Range Two multiple offender to consecutive sentences of thirty-six and sixteen years. The Court of Criminal Appeals affirmed both the convictions and sentences. Although there are several issues in this case, we granted permission to appeal primarily to determine whether the trial court committed reversible error in sentencing the defendant as a Range Two multiple offender when the only notice of intent to seek enhanced punishment filed by the State was in relation to an indictment that was superseded by the indictment upon which the defendant was tried. Additionally, the defendant argues on appeal that the indictment for possession with intent to deliver was insufficient to charge anything more than simple possession because it failed to contain the language that the defendant possessed the cocaine "with intent to deliver." Upon review, we conclude that the notice of intent to seek enhanced sentencing was sufficient as to the possession charge, but was not sufficient as to the conspiracy charge because conspiracy was not charged in the original indictment for which notice was given. We also hold that the indictment was sufficient to charge the offense of possession with intent to deliver. Finally, we hold that the defendant's remaining arguments regarding the sufficiency of the evidence and length of sentence are without merit. The case is therefore remanded to the trial court for re-sentencing on the conviction for conspiracy to sell cocaine. http://www.tba.org/tba_files/TSC/cartercw.wpd STANLEY A. GUNTER v. LABORATORY CORPORATION OF AMERICA, d/b/a LABCORP, ET AL. Court:TSC Attorneys: William E. Godbold, III, and Cherie D. Jewell, Chattanooga, Tennessee, and Thomas J. Dement, II, Nashville, Tennessee, for the appellant, LabCorp. August C. Winter, Brentwood, Tennessee, for the appellee, Stanley A. Gunter. Judge: BIRCH First Paragraph: We granted permission to appeal to determine the applicable statute of limitations in this action against a laboratory that analyzes blood for purposes of providing evidence in paternity cases. The trial court ruled that the case was "governed by the applicable one year statute of limitations" in Tennessee Code Annotated sections 28-3-104 and 29-26-116, which refer to injuries to the person and medical malpractice claims, and dismissed the action because the suit was filed outside the one- year limitation. The intermediate court applied the three-year statute of limitations applicable to suits for recovery of monetary damages for injuries to personal property and, thereby, reversed the trial court's ruling. We conclude that this action sounds in negligence rather than medical malpractice. Further, we conclude that the economic loss sustained by the plaintiff is an injury to property rather than to the person. Thus, we hold that the three-year statute of limitations for injury to personal property applies. Accordingly, we affirm the judgment of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/gunters.wpd BETTY FRAZIER v. SATURN CORPORATION Court:TSC - Workers Comp Panel Attorneys: J. Anthony Arena, Arena & McElhaney, Nashville, Tennessee, for the appellant, Betty Frazier Thomas H. Peebles, IV, and Terrence O. Reed, Nashville, Tennessee, for the appellee, Saturn Corporation Judge: LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employee insists the trial court erred in determining the date of her injury for the purpose of determining her average weekly wage and that the evidence preponderates against the trial court's findings as to the extent of her permanent disability. As discussed below, the panel has concluded the judgment should be modified with respect to the worker's compensation rate. http://www.tba.org/tba_files/TSC_WCP/frazierbetty.wpd JAMES BOYD v. BILLY RILEY, ET AL. Court:TCA Attorneys: James R. Boyd, Clifton, Tennessee, Pro Se. Tom Anderson, Jackson, Tennessee, for the appellees, Billy Riley and John Crunk. Judge: CAIN First Paragraph: This appeal, filed pro se, involves two separate law suits that were filed and pursued in the trial court without consolidation and heard without consolidation on appeal. One complaint alleges negligence, and the other complaint alleges malpractice. The trial court dismissed both actions, and we affirm the actions of the trial court. http://www.tba.org/tba_files/TCA/boydj.wpd LEWIS GREGORY LANGLEY v. SARAH ROUNDS LANGLEY Court:TCA Attorneys: Michael W. Binkley, Nashville, Tennessee, attorney for appellant, Lewis Gregory Langley. Rose Palermo, Nashville, Tennessee, attorney for appellee, Sarah Rounds Langley. Judge: INMAN First Paragraph: Husband's proposed division of marital assets was adopted by the trial court. Wife received more than one-half of the assets, amounting to one and one-quarter million dollars, mostly liquid. Husband was nevertheless ordered to pay substantial alimony, both in solido and in futuro, together with attorney fees and certain expenses, including the maintenance of a three-quarter million dollar policy of life insurance with Wife as beneficiary. The alimony in solido award is affirmed, and the remaining awards are vacated. http://www.tba.org/tba_files/TCA/langley.wpd GOVINDASWAMY NAGARAJAN v. SANDRA SCHEICK, ET AL. Court:TCA Attorneys: Govindaswamy Nagarajan, Hermitage, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and William J. Marett, Jr., Assistant Attorney General, for the appellees, Sandra Scheik, Bobby Lovett, Augustus Bankhead, James Hefner, Tennessee State University, and the Tennessee Board of Regents. Robert L. Smith, Nashville, Tennessee, for the appellees, Yolanda McCall, Theodore Krotuiski, Camelia Mitchell, and Soumayah Walton. Judge: KOCH First Paragraph: This appeal is an outgrowth of complaints filed by a group of Tennessee State University students regarding the performance of their physics professor. After the students complained to the university, the professor filed a pro se complaint in the Chancery Court for Davidson County against the Tennessee Board of Regents, the university, four university administrators, and twenty-four students, alleging breach of contract, defamation, intentional infliction of emotional distress, and discrimination based on age, race, and national origin. The trial court dismissed the professor's complaint in its entirety in response to motions to dismiss filed by the university defendants and a number of the student defendants. The professor then filed serial "motion[s] to vacate the order of dismissal for just cause." The trial court denied the first motion and, treating the second motion as a Tenn. R. Civ. P. 60.02(2) motion, also denied the second. On this appeal, the professor seeks to raise twelve issues regarding the merits of his claim. However, the only matter properly before us is the denial of his second "motion to vacate the order of dismissal for just cause." We have determined that the trial court properly denied this motion. We have also determined that this appeal is frivolous. http://www.tba.org/tba_files/TCA/nagara.wpd TOWN OF NOLENSVILLE v. RONALD M. KING Court:TCA Attorneys: Robert J. Notestine, III, Nashville, Tennessee, for the appellant, Town of Nolensville. John E. Herbison, Nashville, Tennessee, for the appellee, Ronald M. King. Judge: KOCH First Paragraph: This appeal arises from the enforcement of the Town of Nolensville's ordinance outlawing the storage of abandoned or unusable automobiles and storage trailers within its city limits. After the Nolensville City Court entered a judgment against him for $18,600 for repeated, flagrant violations of the ordinance, a town resident petitioned the Circuit Court for Williamson County for a common- law writ of certiorari seeking to set aside the city court's judgment because he had been deprived of his right to a jury trial. The trial court granted the writ and set aside the city court's judgment based on its conclusion that Tenn. Const. art. VI, S 14 guarantees the right to a jury trial for fines in excess of fifty dollars. After this court vacated the trial court's order, the resident filed a Tenn. R. App. P. 11 application with the Tennessee Supreme Court. The Court granted the application and remanded the case to this court with directions to reconsider the case in light of City of Chattanooga v. Davis, 54 S.W.3d 248 (Tenn. 2001). We have determined that the resident was not deprived of his right to have a jury assess his fine because Tenn. Code Ann. S 27-5-101 (2000) affords him an absolute right to a de novo trial in circuit court where he may obtain a jury trial if he wants one. http://www.tba.org/tba_files/TCA/nolensv.wpd KENNETH ROBERT DANIELS v. HOWARD CARLTON, WARDEN Court:TCCA Attorneys: Kenneth Robert Daniels, Nashville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Kenneth Robert Daniels, appeals as of right the Johnson County Circuit Court's dismissal of his petition for habeas corpus relief. In this pro se appeal, the petitioner contends that he should be granted habeas corpus relief because his judgment of conviction for especially aggravated robbery is void. The state contends that the trial court properly dismissed the petition for failure to state a claim. We affirm the trial court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/danielskennethr.wpd STATE OF TENNESSEE v. KELVIN HOBSON Court:TCCA Attorneys: Glenn R. Funk and Cynthia M. Fort (on appeal), Nashville, Tennessee, for the appellant, Kelvin Hobson. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Brian Keith Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Davidson County Criminal Court jury convicted the defendant, Kelvin Hobson, of two counts of aggravated sexual battery, a Class B felony, and the trial court sentenced him as a violent offender to concurrent ten-year sentences. The defendant appeals his convictions, claiming that (1) the evidence is insufficient; (2) the trial court improperly allowed the state to cross-examine him about prior bad acts; (3) the trial court improperly allowed state witnesses to give rebuttal testimony about his prior bad acts and his character for truthfulness; (4) the trial court improperly refused to give a curative instruction after the state shifted the burden of proof during closing argument; and (5) the trial court should have granted his new trial motion because the jury foreman mistakenly told other jurors during deliberations that the defendant would serve only probation for his aggravated sexual battery convictions. We conclude that the trial court committed reversible error by allowing state witnesses to testify on rebuttal about the defendant's prior bad acts and his character for truthfulness. Accordingly, we reverse the judgments of the trial court and remand the case for a new trial. http://www.tba.org/tba_files/TCCA/hobsonkelvin.wpd STATE OF TENNESSEE v. TREACY F. LEWIS Court:TCCA Attorneys: William B. Lockert, III, District Public Defender; and Richard D. Taylor, Jr., Assistant Public Defender, for the appellant, Treacy F. Lewis. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Lisa C. Donegan, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Treacy F. Lewis, entered a plea of nolo contendre to the offense of murder in the second degree. Following a sentencing hearing, the trial court sentenced Defendant to twenty-three years in the Tennessee Department of Correction. Defendant appeals the length of her sentence, arguing that the trial court misapplied enhancement factor (4), the victim was particularly vulnerable because of age and physical disabilities, and failed to give sufficient consideration to the applicable mitigating factors. Defendant does not challenge the application of enhancement factor (9), based upon the use of a gun in the commission of the offense. Based on a review of the record, we conclude that the trial court improperly applied enhancement factor (4) in its sentencing determinations. Accordingly, we modify the judgment of the trial court to reduce the sentence to twenty-two years. http://www.tba.org/tba_files/TCCA/lewistreacyf.wpd JASON EUGENE MIZE v. STATE OF TENNESSEE Court:TCCA Attorneys: Jason Eugene Mize, Pro Se, Pikeville, Tennessee. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy D. Aslinger, Assistant Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Jason Eugene Mize, proceeding pro se, appeals the summary dismissal of his petition for writ of habeas corpus, which alleges that his effective eight-year sentence is illegal. The trial court, acting pursuant to Tennessee Code Annotated S 41-21-807 (2003), ordered Mize to make a partial payment of the filing fee within twenty days and dismissed the petition when Mize failed to do so. Because Mize did not have sufficient funds in his prison trust fund account to make a partial payment of the filing fee, we conclude that the trial court erred by dismissing his petition. Accordingly, the judgment of the Davidson County Criminal Court is reversed and remanded for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/mizejasone.wpd STATE OF TENNESSEE v. JOHN E. TURNER Court:TCCA Attorneys: Joe M. Brandon, Jr., Smyrna, Tennessee, for the Appellant, John E. Turner. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, John E. Turner, appeals his conviction by a Rutherford County jury for especially aggravated robbery, a class A felony. The single issue for our review is whether the trial court erred by not suppressing Turner's statement to the police and the victim's gun, which was discovered as a result of his statement. After a review of the record, we conclude that the Appellant's statement was obtained in violation of his Fifth Amendment right to remain silent. Moreover, we conclude that the stolen weapon is also inadmissible unless, upon remand, the State can show either that the police had an independent, untainted source for the information leading to the gun or that the gun would have been inevitably discovered through routine police investigation. Accordingly, the judgment of conviction is reversed and the case is remanded for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/tunerjohne.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! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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