Opinion FlashApril 14, 2004
Volume 10 Number 072
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
ALICE JUNE ATKINS and CLARA OLLIE NEEDHAM v. STATE OF TENNESSEE Court:TCA Attorneys: Mark S. Stapleton, Rogersville, Tennessee, for Alice June Atkins. D. Scott Hurley, Knoxville, Tennessee, for Clara Needham. W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for Appellees on Appeal Only. Judge: FRANKS First Paragraph: The Claims Commissioner awarded damages for personal injuries to claimants on grounds the State was liable under Tennessee Code Annotated S 9-8-307(a)(1)(I). On appeal, we affirm. http://www.tba.org/tba_files/TCA/atkinsalicej.wpd
NELSON KEITH FOSTER v. STATE OF TENNESSEE Court:TCA Attorneys: Nelson Keith Foster, Whiteville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Tiffany Baker Cox, Assistant Attorney General, Nashville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: Plaintiff's civil rights action against an Assistant District Attorney for prosecutorial misconduct was dismissed by the Chancellor. On appeal, we affirm. http://www.tba.org/tba_files/TCA/fosternelsonk.wpd
HELAINE RICHBERGER v. THE WEST CLINIC, P.C., ET AL. Court:TCA Attorneys: Al H. Thomas and Regina Guy of Memphis, For Appellant, Helaine Richberger David M. Cook and Gregory A. Ziskind of Memphis, For Appellees, The West Clinic, P.C. and Sandy Miller, R.N. Judge: CRAWFORD First Paragraph: Plaintiff filed medical malpractice action against clinic, treating nurse, and supervising physician for injuries suffered as a result of alleged negligent chemotherapy treatment. Trial court granted summary judgment in favor of defendants, finding that registered nurse was not qualified as an expert on the issue of medical causation, and further noting that the deposition testimony of lone expert physician failed to establish that the plaintiff's injuries were caused by the negligence of the defendants. Plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/richbergerh.wpd
GUY VARNADOE v. SHELTON MCGHEE, JR., ET AL. WITH DISSENTING OPINION Court:TCA Attorneys: Adam M. Nahmias, Cordova, Tennessee, for the appellants, Shelton McGhee, Jr. and wife, Sandra T. McGhee. John D. Horne, Memphis, Tennessee, for the appellee, Guy Varnadoe. Judge: FARMER First Paragraph: Following a remand by this Court, the trial court entered judgment in favor of the Plaintiff in the amount of $10,464.80 plus post-judgment interest from the time of filing of the trial court's original judgment. Defendants appeal. We affirm. http://www.tba.org/tba_files/TCA/varnadoeg_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/varnadoeg_dis.wpd
JAMES O. WARD v. SUSAN AMPFERER WARD Court:TCA Attorneys: Daniel Loyd Taylor and Amy R. Harden, Memphis, For Appellant, Susan Ampferer Ward Larry Rice and Laura D. Rogers, Memphis, For Appellee, James O. Ward Judge: CRAWFORD First Paragraph: Wife appeals trial court's ruling on remand that former husband did not dissipate substantial marital assets through extramarital relationship, specifically asserting that the trial court failed to properly consider or apply the two-prong test set forth by the appellate court for determining whether dissipation has occurred. We affirm. http://www.tba.org/tba_files/TCA/wardjameso.wpd
STATE OF TENNESSEE v. ELIZABETH ALLISON Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Garry Brown, District Attorney General; and William Bowen, Assistant District Attorney General, for the appellant, the State of Tennessee. Richard Gossum, Trenton, Tennessee, for the appellee, Elizabeth Allison. Judge: WOODALL First Paragraph: Petitioner, Elizabeth Allison, filed a petition for writ of habeas corpus in which she alleged that her judgment of conviction was void because the length of her sentence exceeded the range of sentence for a Range I offender. Relying upon the supreme court's decision in McConnell v. State, 12 S.W.3d 795 (Tenn. 2000), the trial court granted Petitioner habeas corpus relief. The State now appeals and argues that the trial court erred in granting Petitioner's petition for writ of habeas corpus. After a through review of this matter, we reverse the judgment of the trial court, dismiss the petition, and remand this matter for reinstatement of the judgment of conviction and sentence previously imposed. http://www.tba.org/tba_files/TCCA/allisoneliz.wpd
TIMOTHY JOHNS v. STATE OF TENNESSEE WITH CONCURRING OPINION Court:TCCA Attorneys: Chesney Falk McAfee, Memphis, Tennessee, for the appellant, Timothy Johns. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and William Bond, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals from the denial of his post-conviction petition. The petitioner had pled guilty to rape of a child under age thirteen in exchange for a sentence of fifteen years at 100%. On appeal, the petitioner claims that he received ineffective assistance of counsel. The petitioner also contends that the post-conviction court erred by denying his request to call two witnesses and by denying his request to make an offer of proof regarding the testimony of those witnesses. The post-conviction court also excluded certain medical records of the victim. After thorough review, we reverse the post-conviction court's judgment and remand the case to the post-conviction court for a new hearing. At the new hearing, the post-conviction court should admit the testimony of the petitioner's two witnesses and the victim's medical records. Should the court exclude certain portions of the testimony, offers of proof shall be allowed in accordance with Tennessee Rule of Evidence 103. http://www.tba.org/tba_files/TCCA/johnstimothy_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/johnstimothy_con.wpd
STATE OF TENNESSEE v. MARIO McNEAL Court:TCCA Attorneys: Robert Wilson Jones, District Public Defender; Tony N. Brayton, Assistant Public Defender; Donna Armstard, Assistant Public Defender; and Dominique Gutierrez, Assistant Public Defender, for the appellant, Mario McNeal. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; William L. Gibbons, District Attorney General; Steve Crossnoe, Assistant District Attorney General; and Andre Thomas, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Mario McNeal, was convicted by a jury of five counts of aggravated robbery and one count of aggravated assault. Defendant was sentenced to ten years confinement for each of the aggravated robbery convictions and three years confinement for his aggravated assault conviction. The sentences were ordered to be served concurrently, resulting in an effective sentence of ten years. In this appeal as of right, Defendant challenges the sufficiency of the convicting evidence. After a review of the entire record, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/mcnealmario.wpd
STATE OF TENNESSEE v. TERRY S. PORTER Court:TCCA Attorneys: William D. Massey (at trial and on appeal), Lorna S. McClusky (at trial), and Gerald Skahan (at trial), Memphis, Tennessee, for the appellant, Terry S. Porter. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee V. Coffee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Shelby County jury convicted the defendant of arson, a Class C felony, and two counts of reckless homicide, Class D felonies. The trial court sentenced the defendant as a Range II multiple offender to ten years confinement for the arson conviction and seven years for each reckless homicide conviction with all sentences to run consecutively, for an effective sentence of twenty-four years. The defendant challenges his sentence on appeal, arguing the trial court's consideration of enhancement factors was improper and his sentences should run concurrently. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/porterts.wpd
DONNA JEAN SEXTON v. STATE OF TENNESSEE Court:TCCA Attorneys: Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Donna Jean Sexton. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Kenneth Carson Baldwin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Donna Jean Sexton, appeals from the judgment of the Carter County Circuit Court denying her post-conviction relief from her convictions for first degree murder and aggravated robbery. The petitioner contends that (1) the post-conviction court erred by concluding that her amended, comprehensive petition was invalid because it was not properly verified under oath; (2) she received the ineffective assistance of counsel because her attorneys misinformed her as to the length of her sentence for first degree murder; and (3) her nolo contendere pleas were not knowingly, intelligently, and voluntarily made because the trial court never informed her that she was waiving constitutional rights and there was an insufficient factual basis for the petitioner's pleas. Although we conclude that the amended petition was not properly verified, we conclude the trial court correctly proceeded on all issues raised by the petitioner. We also hold that the trial court's findings and conclusions relative to the petitioner's claims are affirmed. http://www.tba.org/tba_files/TCCA/sextondonnajean.wpd
STATE OF TENNESSEE v. AMY DENISE SUTTON Court:TCCA Attorneys: Benjamin S. Dempsey, Huntingdon, Tennessee (on appeal); Guy T. Wilkinson, District Public Defender; Billy R. Roe, Jr., Assistant District Public Defender (at trial), for the appellant, Amy Denise Sutton. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was convicted of theft of property valued over $1,000. The defendant was sentenced as a Range I standard offender to three years in the Tennessee Department of Correction with one year of incarceration and the remainder to be served on community corrections. On appeal, the defendant challenges the sufficiency of the evidence to support her conviction and raises issues regarding the length and manner of service of her sentence. We remand to delete the reference to the Department of Correction but otherwise affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/suttona.wpd
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