Opinion FlashJune 23, 2004Volume 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):
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 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 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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