Opinion Flash

April 23, 2004
Volume 10 — Number 079

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
01 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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


JAMES H. KELLEY, et al. v. MIDDLE TENNESSEE EMERGENCY PHYSICIANS, P.C.,
et al.

Court:TSC

Attorneys:         

C. J. Gideon, Jr., Brian Cummings, and Kenneth P. Flood, Nashville,
Tennessee, for the Appellants, John Cage, M.D. & Mid-State Cardiology
Associates, P.C.

Daniel L. Clayton, Nashville, Tennessee, and Steven R. Walker, Memphis,
Tennessee, for the Appellees, James H. Kelley, Joshlane Rachel Ware, and
Joseph Lovell Ware.

Judge: BARKER

First Paragraph:

We granted review to determine whether the trial court erred in granting
summary judgment to the defendants in this medical malpractice lawsuit. 
The trial court concluded that there was no genuine issue of material
fact and that, as a matter of law, no physician-patient relationship
existed.  The Court of Appeals reversed the judgment of the trial court.
 After careful review of the record before us and the applicable
authorities, we conclude that there are disputed issues of fact as to
the existence of a physician-patient relationship, and we therefore
affirm the decision of the Court of Appeals.  The case is remanded to
the trial court for further proceedings consistent with this opinion.

http://www.tba.org/tba_files/TSC/kelleyjh.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/serranooscar.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/wilsonw.wpd

STATE OF TENNESSEE v. ROBERT JAMES YORECK, III
STATE OF TENNESSEE v. RENNE EFREN ARELLANO
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/yoreckarellanoestrada.wpd

GLORIA WINDSOR v. DEKALB COUNTY BOARD OF EDUCATION, ET AL.

Court:TCA

Attorneys:   

Gloria Windsor, Auburntown, Tennessee, Pro Se.

Sue N. Puckett-Jernigan, Smithville, Tennessee, for the appellees,
Aubrey Turner and Weldon Parkinson.

Judge: CAIN

First Paragraph:

This appeal involves an attempt by a dismissed tenured teacher to obtain
common-law certiorari review of her dismissal.  After voluntarily
dismissing her own Petition for Review properly filed pursuant to
Tennessee Code Annotated section 49-5-513, she challenges the
chancellor's Order dismissing her Petition for Common Law Writ of
Certiorari.  We affirm the action of the trial court.

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

WILLIAM PATRICK ROBINSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

William Patrick Roberson, pro se.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor
General; David H. Findley, Assistant Attorney General; G. Robert
Radford, District Attorney General; and Eleanor C. Cahill, Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, William Patrick Roberson, pled guilty to first degree
felony murder and especially aggravated robbery.  The trial court
sentenced the Petitioner to life without the possibility of parole.  The
Petitioner did not appeal his convictions or his sentence and later
filed a petition for post- conviction relief, alleging that he was
denied effective assistance of counsel and that his guilty plea was not
knowingly and voluntarily given.  The post-conviction court summarily
dismissed the petition, holding that it failed to state a factual basis
for the grounds alleged.  Based upon our de novo review, we conclude
that the post-conviction court erred by summarily dismissing the
petition because the petition adequately states a factual basis for
ineffective assistance of counsel and the involuntariness of his guilty
plea.  Accordingly, we reverse the post-conviction court's judgment and
remand to the post-conviction court for appointment of counsel and the
opportunity for counsel to amend the petition.

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

STATE OF TENNESSEE v. MATTHEW STALCUP

Court:TCCA

Attorneys:

Donald A. Bosch and Lisa B. Morton, Knoxville, Tennessee, for the
appellant, Matthew Stalcup.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; William Paul Phillips, District Attorney
General; and John W. Galloway, Jr., Deputy District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Matthew Stalcup, pled guilty in the Union County Criminal
Court to reckless vehicular homicide, a Class C felony, and driving
under the influence (DUI), a Class A misdemeanor.  Pursuant to the plea
agreement, the trial court sentenced him to eleven months, twenty-nine
days at seventy-five percent for the DUI conviction and prohibited him
from driving for one year.  After a sentencing hearing for the reckless
vehicular homicide conviction, the trial court sentenced him to five
years to be served as one year in jail and the remainder suspended upon
his serving ten years on supervised probation.  The trial court also
prohibited him from driving for ten years, ordered that the five-year
sentence be served consecutively to the eleven-month, twenty-nine- day
sentence, and ordered that the ten-year driving prohibition be served
concurrently to the one-year prohibition.  The defendant appeals his
sentence for reckless vehicular homicide, claiming (1) that the trial
court erred by denying his request for judicial diversion, (2) that the
trial court erred by denying his request for full probation, (3) that
the trial court improperly weighed enhancement and mitigating factors,
(4) that the trial court erred by ordering that he serve the five-year
sentence consecutively to the eleven-month, twenty-nine-day sentence,
and (5) that the trial court's prohibiting him from driving for ten
years is excessive.  We affirm the sentence, except we conclude that the
defendant should be prohibited from driving for five years.

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

Constitutionality of HB 2627 Regarding Recognition of Same-Sex Civil
Unions or Domestic Partnerships

Date: April 19, 2004

Opinion Number: 04-066                         

http://www.tba.org/tba_files/AG/2004/OP66.pdf

Assessment of House Bill 2633 / Senate Bill 2594

Date: April 20, 2004

Opinion Number: 04-067                         

http://www.tba.org/tba_files/AG/2004/OP67.pdf

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