Opinion Flash

April 22, 2004
Volume 10 — Number 078

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):
04 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


RICHARD JOHN JOLLY v. LYNETTE SUZANNE JOLLY
ORDER

Court:TSC

Judge: PER CURIAM

First Paragraph:

A Rule 39 Motion for Rehearing has been filed by Plaintiff-Appellant,
Richard John Jolly.  After consideration of the same, the Court is of
the opinion that the Motion should be and the same hereby is denied at
the cost of Richard John Jolly.

ORDER
http://www.tba.org/tba_files/TSC/jollyrj_ord.wpd

OSCAR A. SERRANO v. STATE OF TENNESSEE

Court:TSC

Attorneys:                          

Jerry Gonzalez, Nashville, Tennessee, for the appellant, Oscar A.
Serrano.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Christine M. Lapps, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Roger D. Moore,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: BIRCH

First Paragraph:

We granted permission to appeal in this case in order to determine
whether a waiver of appeal, executed as part of a post-verdict
sentencing agreement, precludes the filing of a petition for post-
conviction relief for claims of ineffective assistance of counsel that
occurred prior to the waiver.  We hold in this case that the waiver
does not extend to post-conviction relief; therefore, Serrano was not
precluded from filing a petition under the Post Conviction Relief Act.
 Further, after reviewing Serrano's post-conviction claims, we
conclude that he received effective assistance of counsel with regard
to the sentencing agreement and waiver of the right to appeal. 
Accordingly, the judgment of the Court of Criminal Appeals is reversed
in part and affirmed in part.  We remand to the trial court for a
determination of the merits of the remaining issues raised in
Serrano's petition for post- conviction relief.  In this
determination, the trial court should consider that all issues which
could have been raised on direct appeal but were not raised are waived
in post-conviction.  See Tenn. Code Ann. S 40-30-110(f).

http://www.tba.org/tba_files/TSC/serranooscara.wpd

STATE OF TENNESSEE and DEPARTMENT OF CHILDREN'S SERVICES v. WOODROW
WILSON, Jr. and DEBRA WILSON

Court:TSC

Attorneys:                          

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; and Stuart F. Wilson-Patton, Senior Counsel, for
the appellant, State of Tennessee and Department of Children's
Services.

Debra Wilson, Morrison, Tennessee, Pro se.

Woodrow Wilson, Morrison, Tennessee, Pro se. 

Judge: DROWOTA

First Paragraph:

We granted permission to appeal to determine whether the Court of
Appeals erred in holding that Tennessee Code Annotated section
37-1-151 bars the State from recovering retroactive child support more
than forty-five days prior to the filing of a petition seeking such
support.  We hold that section 37-1-151 unambiguously requires a trial
court to set child support retroactive to the date a child is placed
in State custody.  The statute does not include any limitation on the
length of time for which retroactive support may be due, and a trial
judge has no discretion to deviate from the statutorily imposed period
of retroactive support.  Retroactive child support is to be set
according to the child support guidelines, but deviation from the
guideline amount is allowable if based upon a finding that applying
the guidelines would be unjust or inappropriate.  Thus, the judgment
of the Court of Appeals is reversed, and this case is remanded to the
trial court.

http://www.tba.org/tba_files/TSC/wilsonwoodrow.wpd

STATE OF TENNESSEE v. ROBERT JAMES YORECK, III
AND
STATE OF TENNESSEE v. RENNE EFREN ARELLANO
AND
STATE OF TENNESSEE v. MARIO C. ESTRADA

Court:TSC

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Gordon W. Smith, Associate Solicitor General; and
Helen Young, Assistant District Attorney General, for the appellant,
State of Tennessee (in Yoreck).

Gregory D. Smith, Clarksville, Tennessee, for the appellee, Robert
James Yoreck, III.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Gordon W. Smith, Associate Solicitor General; T.
Michael Bottoms, District Attorney General; and Joseph L. Penrod,
Assistant District Attorney General, for the appellant, State of
Tennessee (in Arellano and Estrada).

William C. Barnes, Jr., Columbia, Tennessee, for the appellee, Renne
Efren Arellano.

Robin E. Farber, Assistant Public Defender, Columbia, Tennessee, for
the appellee, Mario C. Estrada.

Judge: BIRCH

First Paragraph:

We granted permission to appeal pursuant to Tennessee Rule of
Appellate Procedure 11 to consider whether the Court of Criminal
Appeals had the authority to vacate convictions arising out of plea
agreements when the defendants sought sentence review only.  We hold
that while the Court of Criminal Appeals had the authority to review
issues beyond the sentencing issues raised on appeal, the court erred
by finding plain error and vacating the convictions.  Additionally, we
find that the trial court had subject matter jurisdiction to accept
the guilty plea agreements in these cases. Accordingly, we reinstate
the convictions imposed by the trial court and remand the cases to the
Court of Criminal Appeals for consideration of the defendants'
sentencing issues.

http://www.tba.org/tba_files/TSC/yoreckrobertaiii.wpd

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. JUANITA
KRISTIN CULBERTSON IN THE MATTER OF W.J.R.C. AND S.D.H.

Court:TCA

Attorneys:                          

Susan E.McCown, Fayetteville, For Appellant, Juanita Kristin
Culbertson

Paul G. Summers, Attorney General and Reporter; Juan G. Villasenor,
Assistant Attorney General, For Appellee, State of Tennessee,
Department of Children's Services

Judge: CRAWFORD

First Paragraph:

This is a termination of parental rights case.  Mother appeals from
the order of the Juvenile Court of Marshall County, terminating her
parental rights. Specifically, Mother asserts that the grounds cited
for termination are not supported by clear and convincing evidence in
the record. Because we find clear and convincing evidence in the
record to support the trial court's findings, we affirm.

http://www.tba.org/tba_files/TCA/culbertsonj.wpd

HOWARD FISHER v. STATE OF TENNESSEE

Court:TCA

Attorneys:                          

Howard Fisher, Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Stephen R. Butler,
Assistant Attorney General, for the appellee, State of Tennessee.

Judge: COTTRELL

First Paragraph:

An inmate in the custody of the Department of Correction filed a claim
in the Tennessee Claims Commission for the loss of seventy-eight
cartons of cigarettes, which he alleged were removed from his prison
cell during a search. The Commission denied his claim. We affirm the
Claims Commission.

http://www.tba.org/tba_files/TCA/fisherhow.wpd

IN RE:  A.M.F AND Z.T.F, STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S
SERVICES v. LISA FRAZIER, ET AL.

Court:TCA

Attorneys:                          

Larry Samuel Patterson, Jr., Columbia, For Appellant, John Whatley

David Kozlowski, Columbia, For Appellant, Lisa Frazier

Paul G. Summers, Attorney General and Reporter, Elizabeth C. Driver,
Assistant Attorney General, for Appellee, Tennessee Department of
Children's Services

Judge: CRAWFORD

First Paragraph:

This is a termination of parental rights case.  The parents appeal
from the order of the Juvenile Court of Maury County, terminating
their parental rights. Specifically, the parents assert that the
grounds cited for termination are not supported by clear and
convincing evidence in the record. Because we find clear and
convincing evidence in the record to support the trial court's
findings, we affirm.

http://www.tba.org/tba_files/TCA/inreamf.wpd

IN RE: M.E.W. and J.W.W.

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Douglas Earl Dimond,
Assistant Attorney General, for the appellant, State of Tennessee,
Department of Children's Services.

David Kozlowski, Columbia, Tennessee, for the appellee, E. W.

Judge: COTTRELL

First Paragraph:

This appeal involves a petition filed by the Department of Children's
Services to terminate the parental rights of Mother to her two minor
children.  The trial court denied the petition, and the Department
appeals.  We have determined that the trial court's judgment must be
vacated because the trial court failed to make the specific findings
of facts and conclusions of law regarding the children's best interest
required by Tenn. Code Ann. S 36-1-113(k).

http://www.tba.org/tba_files/TCA/Inremewjww.wpd

THE LAUDERDALE COUNTY BANK v. LISA WIGGINS, ET AL.

Court:TCA

Attorneys:                          

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, The
Lauderdale County Bank.

George T. Lewis, III, Memphis, Tennessee, for the appellee, Newcourt
Financial.

Judge: FARMER

First Paragraph:

Plaintiff Lauderdale County Bank filed a declaratory judgment action
to determine the obligations of the parties arising from its payment
of a forged check.  The trial court awarded summary judgment in favor
of Defendant Newcourt Financial, holding Newcourt Financial was
entitled to the proceeds of the check.  Plaintiff appeals.  We
reverse.

http://www.tba.org/tba_files/TCA/laudfank.wpd

MONUMENTAL LIFE INSURANCE COMPANY v. LINDA ELAINE DONOHO, ET AL.

Court:TCA

Attorneys:                          

Jerry Gonzalez, Nashville, Tennessee, for the appellant, Linda Elaine
Donoho, et al.

Frank Lannom and Melanie R. Bean, Lebanon, Tennessee, for the
appellee, Tammy K. Jones.

Amanda G. Crowell, Lebanon, Tennessee, for the appellee, Kenneth
Donoho, a minor.

Judge: CLEMENT

First Paragraph:

In this interpleader action, two former spouses of the decedent who
are mothers of the decedent's three surviving children filed
conflicting claims under two marital dissolution agreements alleging
beneficial interests in a $50,000 life insurance policy.  One claimed
an interest for herself; the other claimed an interest for her two
children.  The matters in dispute arise from inconsistencies in
marital dissolution agreements resulting from the decedent's two
divorces, and pertain to the duty of the decedent to maintain life
insurance and the beneficiary designations.  The trial court granted
one of two competing motions for summary judgment ruling against the
second wife by dividing the proceeds equally among the decedent's
three children.  We reverse and modify holding that the second wife,
not the decedent's third child, was the designated beneficiary of the
disputed policy pursuant to the second marital dissolution agreement
and that the decedent's first two children had vested interests in the
insurance proceeds as mandated by the first marital dissolution
agreement.

http://www.tba.org/tba_files/TCA/monumental.wpd

TRACIE MARIE SHIPWASH, ET AL. v. MEADOWOOD APARTMENTS

Court:TCA

Attorneys:                          

Jeffrey R. Thompson, Knoxville, Tennessee, for the appellant,
Meadowood Apartments.

T. Scott Jones, Knoxville, Tennessee, for the appellees, Tracie Marie
Shipwash and Dennis Marine

Judge: SUSANO

First Paragraph:

This is a premises liability case.  Tracie Marie Shipwash and Dennis
Marine sued Meadowood Apartments ("Meadowood") to recover for damage
done to their respective vehicles when a tree located near a parking
area at the apartment complex fell on the vehicles during a severe
storm.  At the bench trial below, the plaintiffs offered the testimony
of a tree expert, who opined that his examination of photographs of
the fallen tree revealed signs of deterioration and that the tree
should have been removed prior to the storm.  The trial court held
that the tree removal service hired by Meadowood to make an annual
inspection of the apartment property was Meadowood's agent, and that,
as a consequence of this fact, Meadowood is liable based upon its
imputed constructive notice of the dangerous condition created by the
tree's condition.  Meadowood appeals.  We reverse.

http://www.tba.org/tba_files/TCA/shipwa.wpd

RITA WERNE v. ROBERT SANDERSON, ET AL.

Court:TCA

Attorneys:                          

Daryl G. Hawkins, Columbia, South Carolina and Vincent K. Seiler,
Jackson, Tennessee, for the appellant, Rita Werne.

William W. Heaton and G. Patrick Arnoult, Memphis, Tennessee, for the
appellees, Protection Unlimited, Inc., Wayne Lowery and Linda Carter.

William W. Dunlap, Jr., Memphis, Tennessee, for the appellee, Blan R.
Nicholson.

James J. McMahon, Memphis, Tennessee, for the appellee, Estate of Anna
Sanderson, Deceased and James T. Bland, Jr., Memphis, Tennessee, for
the appellee, Anna Sanderson Trust

Judge: FARMER

First Paragraph:

The trial court found Plaintiff was the owner of disputed stock, but
had failed to prove monetary damages.  We affirm in part and remand
for further proceedings regarding damages.

http://www.tba.org/tba_files/TCA/wernerita.wpd

STATE OF TENNESSEE v. CHARLES ELDRIDGE

Court:TCCA

Attorneys:                          

David Neal Brady, District Public Defender, and H. Marshall Judd,
Assistant Public Defender, for the appellant, Charles Eldridge.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William Edward Gibson, District
Attorney General; and Benjamin W. Fann, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant appeals the revocation of his probation, arguing there
was no substantial evidence he violated the terms of his probation,
the trial court erred in allowing his probation officer to testify
that he failed a drug screen, and the reinstatement of his original
sentence resulted in too harsh a punishment under the circumstances of
his case.  Based on our review, we affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCCA/eldridgecharles.wpd

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