Opinion FlashJanuary 23, 2004Volume 10 — Number 015 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 CHRISTY RENEE OSBORN v. JUSTIN CHANDLER MARR Court:TSC Attorneys: Stacey M. Brackeen, Franklin, Tennessee, for the Appellant, Justin Chandler Marr. Kenneth W. Rucker, Nolensville, Tennessee, for the Appellee, Christy Renee Osborn. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth C. Driver, Assistant Attorney General, for the intervenor, State of Tennessee. Judge: HOLDER First Paragraph: We granted this appeal to determine whether Tennessee Code Annotated section 36-1-113(g)(6), which provides for the termination of parental rights when a parent is imprisoned for at least ten years due to a criminal act and the child is under the age of eight when the sentence is imposed, also requires a showing of substantial harm to the child before a parent's rights may be terminated. Because we hold that a parent does not have standing to file a petition pursuant to Tennessee Code Annotated section 36-1-113(g)(6), we lack subject matter jurisdiction to hear the merits of the appeal. Accordingly, we dismiss this case and vacate the judgments of the lower courts. http://www.tba.org/tba_files/TSC/osborncr.wpd JIMMY H. SPURLOCK v. BOILER & HEAT EXCHANGE SYSTEMS, INC. Court:TSC - Workers Comp Panel Attorneys: Ronald J. Berke, Chattanooga, Tennessee, attorney for the Appellant, Jimmy H. Spurlock. C. Douglas Dooley, Charles W. Poss and Michael D. Newton, Chattanooga, Tennessee, attorneys for Appellee, Boiler & Heat Exchange Systems, Inc. Judge: BYERS 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. The Plaintiff alleges he suffers from a occupational disease within the definition thereof contained in Tenn. Code Ann. S 50-6-301. The trial judge found the plaintiff failed to show that his lung disease was caused by or arose from his occupation as a welder with the Defendant and dismissed the case. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/spurlockj.wpd DANIEL C. BARNES v. CLINT BARNES, ET AL. Court:TCA Attorneys: David B. Hill, Newport, Tennessee, for the appellant, Daniel C. Barnes. William M. Leibrock, Newport, Tennessee, for the appellee, Clint Barnes. No appearance on behalf of appellee, Gary Williams. Judge: SUSANO First Paragraph: Daniel C. Barnes ("the Barnes son") filed a complaint against his father, Clint Barnes ("the senior Mr. Barnes"), and half brother, Gary Williams, to quiet title to, and partition, four acres of land in Cocke County ("the property") that had been purchased by the plaintiff's parents ("the Barnes"). The Barnes son claims that a tenancy in common was created when the Barnes purchased the property, due to the fact that, according to the Barnes son, his parents were not then legally married. The Barnes son argues that, when his mother died, he inherited half of her one-half interest, i.e., an undivided one-fourth interest in the property. The Barnes son asked the trial court to (1) remove the cloud from his title; (2) partition the property pursuant to Tenn. Code Ann. S 29-27-101, et seq.; and (3) in the alternative, sell the property pursuant to Tenn. Code Ann. S 29-27-201 (2000). Following a bench trial, the trial court dismissed the complaint. The Barnes son appeals. We affirm. http://www.tba.org/tba_files/TCA/barnesdc.wpd JACKIE R. CLINE v. EMILY C. PLEMMONS Court:TCA Attorneys: Jackie R. Cline, Etowah, Tennessee, pro se. Emily C. Plemmons, Knoxville, Tennessee, pro se. Judge: FRANKS First Paragraph: This is a dispute between brother and sister over the handling of the affairs as conservators of their mother. The brother appeals from the Trial Court's rulings as to compensation, attorney's fees and conservatorship. On appeal, we affirm. http://www.tba.org/tba_files/TCA/clinej.wpd STATE OF TENNESSEE, EX REL., VIKKI DAVIS v. JOHN W. DAVIS Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, and Stuart F. Wilson-Patton, Senior Counsel, Nashville, Tennessee, for the appellant, State of Tennessee ex rel. Vikki Davis. John W. Davis, pro se Judge: KIRBY First Paragraph: This case involves a judge's sua sponte decision not to enforce a Tennessee statute. The parties divorced in 1997, and the mother was awarded custody of the parties' minor daughter. The father was required to pay child support. The father failed to pay, and the State filed a petition for contempt on the mother's behalf. The father was found in contempt for his failure to pay. Sua sponte, the trial judge refused to enforce the Tennessee statute requiring the payment of a child support processing fee, citing a perceived violation of an unspecified federal law. The State appeals. We reverse, finding that the trial judge erred in refusing to apply the statute. http://www.tba.org/tba_files/TCA/davisv.wpd LLOYD E. WILLIAMS v. STATE OF TENNESSEE
Court:TCA
Attorneys:
Lloyd E. Williams, Tiptonville, Tennessee, pro se Appellant.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Tiffany Baker Cox, Assistant Attorney General,
Nashville, Tennessee, for the Appellee, State of Tennessee.
Judge: SWINEY
First Paragraph:
Lloyd E. Williams ("Plaintiff"), who absconded while on bond, was
tried, convicted, and sentenced on drug charges in absentia. Years
later, Plaintiff was apprehended and placed in prison. Plaintiff sued
the State of Tennessee ("the State") claiming that the trial and
sentencing violated various statutory rights of his. The State filed
a motion to dismiss. The Claims Commission ("the Commission")
granted the State's motion to dismiss. Plaintiff appeals. We affirm.
http://www.tba.org/tba_files/TCA/williamsle.wpd
STACEY F. BALDON v. STATE OF TENNESSEE Court:TCCA Attorneys: D. Michael Dunavant, Ripley, Tennessee, for the appellant, Stacey Baldon. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; and Tracey A. Brewer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Stacey Baldon, appeals from the trial court's denial of post-conviction relief. The issues presented for review are whether the petitioner was denied the effective assistance of counsel and whether the guilty pleas were knowingly and voluntarily entered. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/baldons.wpd STATE OF TENNESSEE v. LEVAR GRAY Court:TCCA Attorneys: Ross A. Sampson, Memphis, Tennessee (on appeal), and Charles Waldman, Memphis, Tennessee (at trial), for the appellant, Levar Gray. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; and Betsy Carnesdale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Levar Gray, was convicted of two counts of aggravated robbery and two counts of aggravated kidnapping. The trial court imposed sentences of twelve years for each of the four offenses. Because the trial court ordered partially consecutive sentencing, the effective sentence is twenty-four years. In this appeal of right, the defendant contends that the evidence is insufficient to support the convictions and that the sentence is excessive. Because the record does not support the imposition of maximum sentences for each conviction and because consecutive sentences were not warranted, the judgments must be modified to reflect concurrent sentences of ten years for each conviction. http://www.tba.org/tba_files/TCCA/graylevar.wpd STATE OF TENNESSEE v. STACY L. MACK and MARTRESS SHAW WITH DISSENTING OPINION Court:TCCA Attorneys: William Dan Douglas, Jr., Ripley, Tennessee, for the appellant, Stacy L. Mack. D. Michael Dunavant, Ripley, Tennessee, for the appellant, Martress Shaw. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey Anne Brewer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendants appeal their convictions of possession of more than 0.5 grams of cocaine with intent to deliver. The defendants allege error in the trial court's failure to suppress evidence seized pursuant to a search warrant and denial of their motions for judgment of acquittal. Upon review, we reverse the failure to suppress the search warrant and reverse and dismiss the convictions of both defendants. The conviction of Stacy Mack is reversed due to insufficiency of the evidence, and Martress Shaw's conviction is reversed due to insufficiency of evidence after suppression of the search warrant. http://www.tba.org/tba_files/TCCA/mackstacyl_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/mackstacyl_dis.wpd STATE OF TENNESSEE v. ATTA NAJJAR Court:TCCA Attorneys: Robert Wilson Jones, District Public Defender, and W. Mark Ward, Assistant Public Defender (on appeal), and Leslie Ballin (at trial), Memphis, Tennessee, for the appellant, Atta Najjar. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tiffani Taylor and Gail Vermaas, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of aggravated rape and aggravated robbery. He contends on appeal that 1) the evidence was insufficient to support the convictions, and 2) the trial court erred in instructing the jury as to aggravated rape. The judgment for aggravated robbery is affirmed. We conclude that a constructive amendment of the indictment for aggravated rape occurred because the jury was permitted to convict the defendant based on an element different from that which was charged or included within the indictment. Accordingly, the judgment for aggravated rape is reversed. http://www.tba.org/tba_files/TCCA/najjara.wpd FLOYD LEE PERRY, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: John M. Miles, Union City, Tennessee, for the appellant, Floyd Lee Perry, Jr. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; and Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Floyd Lee Perry, Jr., filed a petition for post-conviction relief in the Obion County Circuit Court. In his petition, the petitioner raised several issues, with his two chief complaints being that the trial court erred by failing to charge the jury on the lesser-included offenses of felony murder and that trial counsel was ineffective. Subsequent to an evidentiary hearing, the post- conviction court dismissed the petition and the petitioner timely 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/perryfl.wpd STATE OF TENNESSEE v. OCTAVIAN DEMETRIUS REEVES Court:TCCA Attorneys: Clifford K. McGown, Jr. (on appeal), Waverly, Tennessee, and George Morton Googe (at trial and on appeal), District Public Defender, for the appellant, Octavian Demetrius Reeves. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his conviction for second degree murder and the sentence of twenty-five years. After review, we conclude that the restrictions placed on the defendant's cross-examination of the witness were within the discretion of the trial court. Further, we affirm the conviction and sentence imposed. http://www.tba.org/tba_files/TCCA/reevesod.wpd STATE OF TENNESSEE v. JASON WHITE Court:TCCA Attorneys: Shawn G. Graham, Maryville, Tennessee, for the appellant, Jason White. Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; Mike Flynn, District Attorney General; and Edward P. Bailey, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: Following a bench trial appellant, Jason White, was found guilty of D.U.I. Second Offense in violation of T.C.A. 55-11-401. He was sentenced to eleven months and twenty-nine days with incarceration for forty-five days followed by probation for the balance of the sentence. The appellant appeals, contending that the evidence was not sufficient for a D.U.I. Second Offense conviction. After a review of the record we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/whitejason.wpd Vote Required for Zoning Ordinance Date: January 16, 2004 Opinion Number: 04-007 http://www.tba.org/tba_files/AG/2004/op7.pdf Authority of a Trial Court to Set Bail Bond Requirements Date: January 21, 2004 Opinion Number: 04-008 http://www.tba.org/tba_files/AG/2004/op8.pdf 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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