Opinion Flash

June 23, 2004
Volume 10 — Number 120

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):
00 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
04 New Opinion(s) from the Tennessee Court of Appeals
10 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


DENNIS ALLEN, ET AL. v. CITY OF MEMPHIS, TENNESSEE, ET AL.

Court:TCA

Attorneys:                          

Richard L. Winchester, Jr., Memphis, TN, for Appellants Dennis Allen,
Dan Hesse, Charles Tolar and Robert Webb

John McQuiston, II, Memphis, TN, for Appellants Mid-America Apartment
Communities, L.P., and Rockcreek Plaza Apartments, L.P.

Allan J. Wade, Memphis, TN, for Appellees

Judge: HIGHERS
 
First Paragraph:

This appeal raises the validity of an ordinance passed by the City of
Memphis annexing a portion of Shelby County.  Appellants contend that
Appellees violated the Open Meetings Act when such ordinance was
passed.  All parties filed motions for summary judgment and the trial
court granted Appellees' motion.  For the following reasons, we
reverse the decision of the trial court and remand for further
proceedings consistent with this opinion.

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

IN RE:  C.K.G., C.A.G., C.L.G.

Court:TCA

Attorneys:                          

P. Edward Schell, Franklin, Tennessee, and Clark L. Shaw, Nashville,
Tennessee, for the appellant, father of the children.

Pamela M. Spicer and W. Allen Barrett, Nashville, Tennessee, for the
appellee.

Judge: CLEMENT

First Paragraph:

Unmarried couple in their forties decide to have children. Due to the
woman's concern that she may be too old to produce viable eggs, the
couple engaged the services of an in vitro fertilization clinic and
signed contracts required by the clinic, following which the clinic
obtained eggs from an anonymous female donor, which were fertilized
with the man's sperm and then implanted in the woman who carried them
full term resulting in the birth of triplets.  Thereafter, the couple
separated and the woman filed for custody.  The man answered and
asserted that the woman is not the mother or a legal parent of the
children because she was merely a gestational surrogate who has no
genetic tie to the children.  The man further asserted that the
children have no mother because the egg donor waived her parental
rights.  The trial court held that the woman is the mother of the
children, awarded joint custody to the couple and primary custody to
the woman.  The man appealed.  We affirm, finding that the woman is a
legal parent and the mother of the children based on the intent of the
parties.

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

DONALD HARGROVE, ET AL. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND
DAVIDSON COUNTY

Court:TCA

Attorneys:                          

Phillip L. Davidson, Nashville, Tennessee, for the appellants, Donald
Hargrove, Richard Hughey, Scott Sulfridge, Jimmie Knight, and Jerry
Pinkleton.

John L. Kennedy and Rita Roberts-Turner, Nashville, Tennessee, for the
appellee, Metropolitan Government of Nashville and Davidson County.

Judge: KOCH

First Paragraph:

This appeal involves a dispute regarding the procedures for returning
a formerly disabled police officer to work.  After the Employee
Benefit Board of the Metropolitan Government of Nashville and Davidson
County determined that the former officer was no longer disabled, the
Metropolitan Nashville Police Department directed him to report to a
13-week training class.  Fearing that he could lose both his
disability pension and his job if he failed the training class, the
officer filed suit in the Chancery Court for Davidson County seeking a
declaratory judgment that the Department lacked the authority to
require him to complete the training class before returning him to
work.  The trial court determined that requiring the officer to
complete the training class before returning him to active duty was
not inconsistent with Nashville's charter or ordinances.  The officer
perfected this appeal.  We affirm the trial court's conclusion that
the Department has the authority to require the officer to complete
the training before returning him to active duty.

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

IN RE THE ESTATE OF CLARICE LEE MILLER 

Court:TCA

Attorneys:                          

Thomas A. Storey, Nashville, Tennessee, for the appellants, Shirley
Petty and Mrs. Percy (Judy) Miller.

Ronald K. Nevin, Nashville, Tennessee, for the appellee, Cecil Miller,
Executor of the Estate of Clarice Lee Miller.

Judge: KIRBY

First Paragraph:

This case involves the rights of a survivor in a joint bank account. 
During her lifetime, the decedent sold certain real property, put the
proceeds in a separate bank account, and executed a will leaving half
of the proceeds to her niece.  The bank account in which the proceeds
were deposited was a joint account between the decedent and her
brother.  The brother had power of attorney over the decedent's
affairs and was the named executor in the her will.  After the
decedent died, the decedent's will was admitted to probate.  The
brother, as executor, filed a petition asking for instructions as to
the proper disposition of the money in the joint bank account.  The
trial court held that, when the funds were placed in the joint bank
account, the bequest to the niece was adeemed and the funds were no
longer a part of the decedent's estate.  Therefore, the trial court
determined that the brother, as the joint account holder with a right
of survivorship, was entitled to all of the proceeds.  The named
beneficiary now appeals.  We reverse, concluding that the evidence
preponderates against a finding that the bank account was a joint
tenancy with a right of survivorship.

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

STATE OF TENNESSEE v. JEFFERY BOWERS

Court:TCCA

Attorneys:                          

Linda Kendall Garner, Memphis, Tennessee, for the appellant, Jeffery
Bowers.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Jeffery Bowers, appeals his misdemeanor speeding
convictions in the Fayette County Circuit Court, claiming that the
trial court improperly denied his request for time to obtain an
attorney and, therefore, that he was denied his Sixth Amendment right
to counsel.  We affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. NATHANIEL LEE JACKSON & KENNETH L. JONES

Court:TCCA

Attorneys:                          

John P. Cauley, Franklin, Tennessee for appellant, Kenneth L. Jones
and William C. Barnes, Jr., Columbia, Tennessee, for appellant,
Nathaniel L. Jackson.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner,
Assistant Attorney General; Ron Davis, District Attorney General; and
Jeffrey Long, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

The appellants, Nathaniel Lee Jackson and Kenneth Juqan Jones, both
minors, were tried as adults in a non-jury trial and found guilty of
aggravated kidnapping, evading arrest and aggravated robbery. 
Following a sentencing hearing, each received an effective sentence of
twelve years.  Both appellants argue that the juvenile court erred in
transferring the case to circuit court.  Appellant Jackson seeks a
determination as to whether the judgment is void due to the failure of
the trial court to have a detention hearing.  Appellant Jones presents
the following additional issues: (1) whether the evidence is
sufficient on the charges of aggravated kidnapping and aggravated
robbery; and (2) whether the trial court failed to adhere to
applicable sentencing guidelines.  After a thorough review of the
record, we affirm the decision of the trial court.

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

CHARLES WILLIAM JONES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Michael A. Colavecchio, Nashville, Tennessee, for the appellant,
Charles William Jones.

Paul G. Summers, Attorney General and Reporter; Michelle R. Chapman,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Ryan Brown, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner, Charles William Jones, appeals the denial of
post-conviction relief relating to his conviction for second degree
murder.  On appeal, the petitioner contends the trial court
erroneously instructed the jury regarding the definition of
"knowingly" as applied to second degree murder.  We affirm the
judgment of the post-conviction court.

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

JOHNNY L. MCGOWAN, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Johnny L. McGowan, Jr., Pro se.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Johnny L. McGowan, Jr., pled guilty in 1994 to
aggravated arson, arson, six counts of reckless endangerment with a
deadly weapon and two counts of vandalism, and the trial court
sentenced him to twenty years in prison, to be served concurrently
with a sentence from a previous conviction.  In 2003, the Petitioner
filed two pro se petitions for writs of habeas corpus in case numbers
27902 and 27903 alleging that his guilty pleas were not entered
knowingly and voluntarily and requesting that the trial court appoint
him counsel.  The trial court summarily dismissed the petitions
because it found that the Petitioner's claims, considered in the light
most favorable to him, would at best render his convictions voidable
and not void.  On appeal, the Petitioner contends that the trial court
erred by denying his request for appointment of counsel and by
dismissing his petitions because there were "fatal variances" between
the indictments and the evidence contained in the record.  Finding no
reversible error, we affirm the trial court's judgments.

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

WILLIAM OSEPCZUK v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant,
William Osepczuk.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; T. Michael Bottoms, District Attorney
General; and James G. White, II, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, William Osepczuk, was convicted of attempted first
degree murder and sentenced to confinement for twenty-five years. 
After his conviction and sentence were affirmed on direct appeal, he
filed a petition for post-conviction relief, alleging that trial
counsel had been ineffective.  Following an evidentiary hearing, the
post-conviction court denied the petition, and this timely appeal
resulted.  After review, we affirm the denial of the petition.

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

MANDRALL PORTER, PRO SE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Mandrall Porter, pro se.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General, for the appellee, State of  Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Mandrall Porter, appeals the trial court's denial of
his petition for habeas corpus relief.  The State has filed a motion
requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals.  After a
review of the record, this court determines that petitioner's claims
must fail.  Petitioner has failed to present any evidence that his
sentence has expired or that his conviction for especially aggravated
robbery is void.  Accordingly, the State's motion is granted and the
judgment of the trial court is affirmed.

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

FRANK SUMNER, PRO SE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Frank Sumner, pro se.

Paul G. Summers, Attorney General & Reporter; Elizabeth Bingham
Marney, Assistant Attorney General, for the appellee, State of 
Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner, Frank Sumner, appeals the trial court's denial of his
petition for habeas corpus relief.  The State has filed a motion
requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals.  The
Petitioner fails to assert a cognizable claim for which habeas corpus
relief may be granted.  Accordingly, the State's motion is granted and
the judgment of the trial court is affirmed.

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

TIMOTHY J. TAYLOR v. KEVIN MYERS, Warden

Court:TCCA

Attorneys:                          

Timothy J. Taylor, CCA/SCCF, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; and Helena Walton
Yarbrough, Assistant Attorney General, for the appellee, State of
Tennessee.

Judge: GLENN

First Paragraph:

The defendant was convicted in 1998 of a series of felonies, receiving
an effective sentence of five years and six months.  He was released
on parole in 1999, and his parole was revoked in 2002, resulting in
his reincarceration.  Subsequently, he filed a petition for writ of
habeas corpus, asserting that his five-year-six-month sentence had
expired.  The post-conviction court dismissed the petition; and,
following our review, we affirm the dismissal

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

STATE OF TENNESSEE v. DEE W. THOMPSON

Court:TCCA

Attorneys:                          

David A. Collins, Nashville, Tennessee, for the appellant, Dee W.
Thompson.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Senior Counsel; Victor S. Johnson, III, District Attorney General; and
Pamela Anderson and Carlton Drumwright, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Dee W. Thompson, was convicted by a jury in the
Davidson County Criminal Court of three counts of aggravated rape.  He
was sentenced to life imprisonment without the possibility of parole. 
On appeal, the appellant challenges the sufficiency of the evidence
supporting his convictions, the trial court's rulings regarding the
admissibility of prior testimony, and the qualification of a witness
to testify as an expert.  Upon review of the record and the parties'
briefs, we affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. MICHAEL WARD, II

Court:TCCA

Attorneys:                          

Anthony Avery, Knoxville, Tennessee, for the appellant, Michael Ward,
II.

Paul G. Summers, Attorney General and Reporter; Elizabeth Marney,
Assistant Attorney General; C. Michael Layne, District Attorney
General; and Jason Ponder, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Michael Ward, II, was convicted by a jury of attempted
second degree murder, aggravated spousal rape, especially aggravated
kidnapping, aggravated robbery, and aggravated burglary.  In this
direct appeal, the Defendant raises five issues: (1) whether the
evidence is sufficient to sustain his five convictions; (2) whether
double jeopardy bars multiple convictions that all require proof of
the element of serious bodily injury; (3) whether the trial court
erred by admitting evidence of the Defendant's prior bad acts; (4)
whether the Defendant was prejudiced by the State's failure to provide
him with discovery items; and (5) whether the Defendant is entitled to
a new trial based on the cumulative effect of the alleged trial
errors.  We affirm the judgments of the trial court.

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

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