Opinion FlashFebruary 25, 2004
Volume 10 Number 037
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):
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Howard H. Vogel
STATE OF TENNESSEE v. ALLEN PRENTICE BLYE Court:TSC Attorneys: Kenneth F. Irvine, Jr., and Julie A. Rice, Knoxville, Tennessee (on appeal); Terry Jordan, Assistant Public Defender, Blountville, Tennessee (at trial and on appeal); and Mark Toohey, Kingsport, Tennessee (at trial), for the appellant, Allen Prentice Blye. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph E. Perrin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: We granted permission to appeal in this case to consider whether the Sixth Amendment entitles the defendant to participate, through counsel, in the determination of the existence of probable cause for the issuance of a warrant to seize a sample of the defendant's blood. Because we find that the defendant has no such entitlement, we affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/blyeallen.wpd
WILLIAM OWEN BARBER v. AMELIA DIANNE BARBER CHAPMAN Court:TCA Attorneys: Dan R. Alexander, Nashville, Tennessee, for the appellant, Amelia Dianne Barber Chapman. Martin A. Kooperman, Nashville, Tennessee, for the appellee, William Owen Barber. Judge: CLEMENT First Paragraph: Mother and Father divorced in South Carolina in 1989. Father gained custody of parties' two minor children. Mother was ordered to pay child support. Subsequently, both parties left South Carolina with Mother living in Tennessee and Father living in Texas. In 2002, the parties entered into an agreed order registering the South Carolina divorce decree in the Circuit Court for Davidson County, Tennessee pursuant to Tenn. Code Ann. S 36-6-229. Father then filed a petition for contempt asserting that Mother had failed to make the last twenty-four child support payments. The trial court granted Father's petition, ordering Mother to pay $10,490.67, holding Mother in criminal contempt and sentencing her to thirty days in jail. Mother filed a motion to alter or amend, asserting that the trial court lacked jurisdiction and that the punishment was excessive. Mother's motion was denied and this appeal followed. We affirm. http://www.tba.org/tba_files/TCA/barberwo.wpd
SAMUEL TIMOTHY COLLINS v. KNOX COUNTY, TENNESSEE, et al WITH CONCURRING OPINION Court:TCA Attorneys: John K. Harber, Knoxville, Tennessee, for the Appellant, Samuel Timothy Collins Arthur G. Seymour, Jr. and Robert L. Kahn, Knoxville, Tennessee, for the Appellee, NBC Bank Judge: GODDARD First Paragraph: This appeal arises out of a complaint filed by the Appellant, Samuel Timothy Collins, against the Appellee, NBC Bank, for damages he allegedly incurred as a consequence of his erroneous arrest and incarceration by the Knox County Sheriff's Department. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/collinssamuelt_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/collinssamuelt_con.wpd
JANICE FORSYTH, ET AL. v. MARY N. CROSS Court:TCA Attorneys: James Frank Wilson, Wartburg, Tennessee, Attorney for Appellant, Mary N. Cross. Joe R. Judkins, Wartburg, Tennessee, Attorney for Appellees, Janice Forsyth and Paul Forsyth. Judge: INMAN First Paragraph: This is a boundary-line case. The Defendant's survey evidence was excluded, and reputation evidence offered by the Plaintiff as to the common boundary line was admitted. Defendant appeals. We affirm. http://www.tba.org/tba_files/TCA/forsyth.wpd
STATE OF TENNESSEE, DEPT. OF HUMAN SERVICES, ex rel. BRENDA LEACH HADLEY-REDD v. MORRIS MURPHY HADLEY Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter; Warren Jasper, Assistant Attorney General, Nashville, For Appellant, State of Tennessee Department of Human Services No appearance for Appellee Judge: CRAWFORD First Paragraph: In the final decree of divorce, husband was ordered to pay child support. Husband relocated out of state. When wife located husband, she filed a UIFSA petition seeking recovery of child support arrearages, which was transferred to Louisiana. Husband then filed in this Court a petition for declaratory judgment that wife's petition is barred by the statute of limitations. The trial court ruled that wife's petition is barred by the ten-year statute of limitations in T.C.A. S 28-3-110 (2000). Wife appeals. We affirm. http://www.tba.org/tba_files/TCA/hadleyb.wpd
MARK EDWARD IGOU v. DINAH CAROL IGOU Court:TCA Attorneys: Phillip C. Lawrence, Chattanooga, Tennessee, for the Appellant, Dinah Carol Igou. Steven M. Jacoway, Chattanooga, Tennessee, for the Appellee, Mark Edward Igou. Judge: SWINEY First Paragraph: Mark Edward Igou ("Husband") sued Dinah Carol Igou ("Wife) for a divorce. After trial, the Trial Court awarded Wife alimony only to the extent of requiring Husband to "pay all cost of tuition, books, fees, and other charges relating to [Wife's] obtaining a master's degree whether it's in education or any other related field which will increase her compensation" with the restrictions that Wife must complete the course of study within five years from the entry of the Trial Court's order and that Wife must achieve passing grades. Wife appeals the Trial Court's judgment as to alimony and attorney fees. We affirm. http://www.tba.org/tba_files/TCA/igoume.wpd
J.L. MAC-TN, INC. v. STATE OF TENNESSEE, ET AL. Court:TCA Attorneys: Richard J. Braun, Patricia E. Crotwell, Nashville, Tennessee, for the appellant, J.L. Mac-TN, Inc. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General, Kae Carpenter Todd, Assistant Attorney General, for the appellee, State of Tennessee and Tennessee Department of Environment and Conservation. Judge: CAIN First Paragraph: J.L. Mac-Tn, Inc. and the State contracted for J.L. Mac's provision of tire shredding services at the various county disposal facilities requiring those services. Subsequent to that contract, the state legislature established new procedures for tire disposal requiring the counties to find an end use for the shredded tires, and eventually prohibiting the land filling of shredded tires. The amount of services required of J.L. Mac under the contract were significantly reduced. J.L. Mac commenced this action seeking damages for alleged breach of the contract for shredding services. The Claims Commission granted summary judgment to the State. From that summary judgment J.L. Mac appeals. We affirm. http://www.tba.org/tba_files/TCA/jlmactn.wpd
LINDA G. JOHNSON v. MARK REINEKE, ET AL. Court:TCA Attorneys: William Allen, Oak Ridge, Tennessee, attorney for appellant, Linda G. Johnson. Paul G. Summers, Attorney General and Reporter; Warren A. Jasper, Assistant Attorney General, General Civil Division, for appellee, Department of Labor and Workforce Development. John E. Winters, Knoxville, Tennessee, attorney for appellee, Lenoir City Housing Authority. Judge: INMAN First Paragraph: The Petitioner was discharged from her executive position as Director of the Lenoir City Housing Authority for misconduct connected with her employment. The Authority was awarded McKinney Act funds, an audit of which revealed that $156,000.00 of these funds were inappropriately expended, which led to the discharge of the Petitioner. http://www.tba.org/tba_files/TCA/johnsonl.wpd
JOHN F. MCCARTHY v. UT-BATTLE, LLC Court:TCA Attorneys: Jerrold L. Becker, Knoxville, Tennessee, attorney for Appellant, John F. McCarthy.. Jeffrey S. Guilford and Alan M. Parker, Oak Ridge, Tennessee, attorneys for Appellee, UT-Battelle, LLC. Judge: INMAN First Paragraph: The Plaintiff was an at-will employee of the Defendant when he was terminated for an asserted cause. In this action he alleges that he was wrongfully terminated because the Oak Ridge National Laboratory Handbook afforded him a contractual right of peer review. The motion of the Defendants for summary judgment was granted upon a finding that the Handbook was not an employment contract. We affirm. http://www.tba.org/tba_files/TCA/mccarthy.wpd
JOSEPH SPIVEY v. TERRY PAGE, ET AL. Court:TCA Attorneys: Wade B. Cowan, Nashville, Tennessee, for the appellant, Joseph Spivey. Thomas T. Pennington; Gregory H. Oakley, Nashville, Tennessee, for the appellees, Terry Page, and Page & Associates, P.C. Judge: COTTRELL First Paragraph: This appeal involves a question of valuation of the shares of a withdrawing shareholder from a professional corporation. We reverse the trial court's determination that the shares had no value and hold that the valuation should have been made as of the date of withdrawal. We also hold that the withdrawing shareholder may recover the value of his shares from the sole remaining shareholder who removed the corporation's assets after the notice of withdrawal. http://www.tba.org/tba_files/TCA/spiveyj.wpd
ROBERT E. ALLEN v. STATE OF TENNESSEE Court:TCCA Attorneys: J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Robert E. Allen. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Richard H. Dunavant, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner, Robert E. Allen, pled guilty to aggravated assault, three counts of domestic assault, vandalism, evading arrest, public intoxication and reckless burning. The trial court sentenced him to five years in prison for the aggravated assault and eleven months and twenty-nine days on each of the other charges, with the sentences to run concurrently. The Petitioner did not perfect an appeal of his sentence, but petitioned for post-conviction relief on the grounds that he was denied effective assistance of counsel. Following a hearing on the post-conviction petition, the post-conviction court dismissed the petition. On appeal, the Petitioner contends that he was denied effective assistance of counsel for the following reasons: (1) trial counsel failed to properly advise him as to the potential sentences for all the charges covered in the plea agreement; and (2) trial counsel failed to advise him of his right to appeal the sentence imposed by the trial court. Finding no error, we affirm the post-conviction court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/allenr.wpd
STATE OF TENNESSEE v. DANNY WAYNE ARNOLD Court:TCCA Attorneys: Larry F. Wallace, Jr., Shelbyville, Tennessee, for the appellant, Danny Wayne Arnold. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was convicted of robbery under a theory of criminal responsibility for the conduct of another. The defendant contends the evidence was insufficient to sustain his conviction. We conclude a reasonable jury could have inferred the defendant's intent to assist in the robbery based upon his contemporaneous assault on the victim. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/arnolddanny.wpd
STATE OF TENNESSEE v. PAUL ANTHONY BUCKNER Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Paul Anthony Buckner. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Christopher R. Buford and Sarah N. Davis, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant pled guilty to two counts of attempted second degree murder. Following a sentencing hearing, the trial court imposed two consecutive ten-year sentences. The defendant contends on appeal the trial court erred in imposing consecutive sentences. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/bucknerpaul.wpd
STATE OF TENNESSEE v. TAVARUS LA'TRENT MARTINDALE Court:TCCA Attorneys: J. Christopher Williams, Lawrenceburg, Tennessee, for the appellant, Tavarus La'Trent Martindale. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; T. Michel Bottoms, District Attorney General; and Robert C. Sanders and Patrick S. Butler, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Tavarus La'Trent Martindale, was convicted by a jury in the Giles County Circuit Court of murder in the first degree and sentenced to life in prison without the possibility of parole. In this appeal as of right, the defendant contends (1) that the evidence is insufficient to convict him of murder in the first degree, (2) that the trial court erred by not excluding the autopsy evidence, and (3) that the trial court's sentencing instructions to the jury were unclear as to the standard for imposing life in prison without the possibility of parole or for imposing life in prison. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/martindaletavarusl.wpd
STATE OF TENNESSEE v. CECIL MOSS Court:TCCA Attorneys: William B. Lockert, III, District Public Defender; and Chris L. Young, Assistant Public Defender, Ashland City, Tennessee, for the appellant, Cecil Moss. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Kim Menke, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Cecil Moss, appeals from the trial court's order revoking his probation and reinstating his original sentence to be served in the Tennessee Department of Correction. Defendant argues that the trial court erred by failing to consider any alternative sentencing options other than incarceration. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mosscecil.wpd
JOSEPH D. TAYLOR v. STATE OF TENNESSEE Court:TCCA Attorneys: N. Andy Myrick, Jr., Fayetteville, Tennessee, for the appellant, Joseph D. Taylor. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Joseph Taylor, filed a petition for post-conviction relief which was subsequently amended. Following an evidentiary hearing, the trial court dismissed the petition. On appeal, Petitioner argues that his trial counsel rendered ineffective assistance of counsel because he (1) failed to adequately meet with Petitioner prior to trial; (2) failed to interview and call certain witnesses to testify; (3) failed to request a jury instruction on assault as a lesser-included offense of attempted rape; and (4) failed to object to the classification of Petitioner as a career offender when the trial court sentenced Petitioner for attempted rape. Petitioner also alleges that his appellate counsel rendered ineffective assistance of counsel when he failed to appeal the classification of Petitioner as a career offender for purposes of sentencing. After a thorough review of the record, the judgment of the trial court is affirmed in part and reversed in part, and this case is remanded to the trial court for a new sentencing hearing in accordance with this opinion. http://www.tba.org/tba_files/TCCA/taylorjosephd.wpd
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