Opinion FlashApril 22, 2004Volume 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):
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 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 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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