Opinion FlashApril 23, 2004Volume 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):
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 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 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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