Opinion FlashSeptember 1, 2004Volume 10 — Number 169 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 WILLIAM SEALE v. CHURCH OF GOD d/b/a PATHWAY PRESS Court:TSC - Workers Comp Panel Attorneys: C. J. Barnett and Barrett M. Estep, Memphis, Tennessee, for Appellant, Church of God d/b/a/ Pathway Press. Harry F. Burnette and Kent T. Jones, Chattanooga, Tennessee, for Appellee, William Seale. Judge: THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the claim was compensable and ordered the employer to provide medical treatment of total knee surgery. The employer contends the employee's condition was the result of pre-existing condition of arthritis and did not result from the accident. Judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC_WCP/sealewillia.wpd CECIEL ROS HALPERN v. LAURENCE HALPERN Court:TCA Attorneys: Marc E. Reisman of Memphis For Appellant, Laurence Halpern Bradley J. Cordts of Memphis For Appellee, Ceciel Ros Halpern Judge: CRAWFORD First Paragraph: This is an appeal by the appellant-father from an order awarding the appellee-mother child support arrearage and setting prospective child support obligations. Because the support orders appear to deviate from the child support guidelines without specific findings by the trial court, we reverse and remand for further proceedings. http://www.tba.org/tba_files/TCA/halperncecielr.wpd H.M.R., ET AL. v. J.K.F.
Court:TCA
Attorneys:
J.K.F., Whiteville, Tennessee, Pro Se.
H.M.R. and S.M.R., Fall Branch, Tennessee, Pro Se.
Judge: SUSANO
First Paragraph:
The trial court terminated the parental rights of J.K.F. ("Father")
with respect to his minor child, S.B.R. (DOB: September 16, 1996), and
granted the petition of the child's maternal grandparents, H.M.R. and
S.M.R. ("the grandparents") to pursue adoption of the child. Father
appeals, arguing, inter alia, that the evidence preponderates against
the trial court's dual findings by clear and convincing evidence that
grounds for terminating Father's parental rights exist and that
termination is in the best interest of the child. We affirm.
http://www.tba.org/tba_files/TCA/hmr.wpd
RICHARD A. JONES and RICHARD A. JONES, JR. v. JODY W. HENDERSON Court:TCA Attorneys: Robert A. Wampler, Memphis, TN, for Appellants James E. Bingham, James O. Lockard, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This case arises from the discovery of an extramarital affair. The Appellants brought suit against Appellee, seeking damages on theories of outrageous conduct and interference with a contract. Appellee filed a motion to dismiss for failure to state a claim upon which relief can be granted. After a hearing on the motion, the trial court granted Appellee's motion to dismiss and this appeal followed. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/jonesrica.wpd SUNIL KAWATRA v. NEELAM MANTRI KAWATRA Court:TCA Attorneys: Alfred H. Knight, Tyree B. Harris IV, and Alan D. Johnson, Nashville, for Appellant Neelam Mantri Kawatra. Robert G. Ingrum, Gallatin, for Appellee Sunil Kawatra. Judge: LEE First Paragraph: This is a post-divorce parental relocation case. The Mother, who was the primary residential parent, gave notice to the Father of her plans to relocate to California with the minor child. Upon receiving this notice, the Father petitioned the court to prevent the removal of the child from the State of Tennessee. Following a bench trial, the trial court granted the Father's petition and determined that the child was spending substantially equal intervals of time with each parent pursuant to Tenn. Code Ann. S 36-6-108(c), and that the child's best interest would be served by remaining in Tennessee. The trial court denied the Father's request for attorney fees. Both parties appealed. We find that the trial court applied an incorrect legal standard in determining whether the parties actually spent substantially equal intervals of time with the child and, therefore, we reverse the trial court's judgment regarding relocation and affirm the trial court's decision denying the Father's request for attorney fees. http://www.tba.org/tba_files/TCA/kawatrasunil.wpd D.E. RYAN v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL. Court:TCA Attorneys: J. Brooks Fox and John L. Kennedy, Nashville, Tennessee, for the Appellant, The Metropolitan Government of Nashville and Davidson County, et al. George A. Dean, Nashville, Tennessee, for the Appellee, D.E. Ryan. Judge: LEE First Paragraph: This is a zoning case wherein the Metropolitan Government of Nashville and Davidson County acting by and through the Metropolitan Board of Zoning Appeals contends that the trial court erred in ruling that the Appellant was without jurisdiction to rescind its prior decisions approving a property owner's application to reestablish a nonconforming use of certain property and associated site plan after expiration of the time allowed for appealing such decisions. The Appellant further argues that the trial court erred in holding that the property owner's right to utilize such property is protected under Tenn. Code Ann. S 13-7-208. We affirm in part, reverse in part and remand. http://www.tba.org/tba_files/TCA/ryande.wpd THOMAS WAYNE STORM v. JANE ANN STORM Court:TCA Attorneys: Jay R. Slobey, Nashville, Tennessee, for the appellant, Thomas Wayne Storm. Grant C. Glassford, Nashville, Tennessee, for the appellee, Jane Ann Storm. Judge: COTTRELL First Paragraph: When the parties divorced in 1999, they entered into a marital dissolution agreement that was incorporated into the final divorce decree. That agreement acknowledged that the alimony payments agreed to "more than likely may have to be modified" if Husband lost his job or his insurance license. In this modification of alimony proceeding, the trial court found Husband had lost his job and was unable to find employment with comparable income. The court interpreted the MDA as authorizing it to reduce the amount of monthly payments but not to reduce the total amount due. We interpret the agreement as allowing modification of the total obligation and remand for reconsideration in light of this holding. http://www.tba.org/tba_files/TCA/stormtw.wpd KENNETH TOWNSEND v. AUTO ZONE, INC. Court:TCA Attorneys: Nancy K. Corley, Nashville, Tennessee, for the appellant, Kenneth Townsend. George H. Rieger, II, Nashville, Tennessee, for the appellee, Auto Zone, Inc. Judge: COTTRELL First Paragraph: This appeal involves the grant of summary judgment to Defendant in a slip and fall case. The trial court found no genuine issue as to any material fact existed and that Defendant was entitled to judgment as a matter of law. Because we find the summary judgment motion was improperly granted, we reverse the judgment of the trial court. http://www.tba.org/tba_files/TCA/townsendken.wpd IN RE: ESTATE OF ANGULA WILSON WHITEHORN TURNER Court:TCA Attorneys: Jack R. Whitehorn, Pro Se Elizabeth B. Ziarko of Covington for Appellee, Estate of Angula Wilson Whitehorn Turner Judge: CRAWFORD First Paragraph: Beneficiary of will appeals the order of the chancery court awarding attorney fees, executor fees, and other expenses. Both factual and legal objections are made to the awards made by the court. The legal objections are without merit, and the factual objections are not well-taken, because there is no transcript or statement of the evidence. We affirm. http://www.tba.org/tba_files/TCA/turnerangula.wpd STATE OF TENNESSEE v. BRANDON ABERNATHY Court:TCCA Attorneys: Mark C. Scruggs, Nashville, Tennessee, for the appellant, Brandon Abernathy. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Brandon Abernathy, pled guilty to two counts of armed robbery. Pursuant to Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law the issue of whether the trial court erred when it denied his motion to suppress. Finding no error, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/abernathybran.wpd JEFFREY E. DUNLAP v. TONY PARKER, WARDEN Court:TCCA Attorneys: Jeffrey E. Dunlap, pro se. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General, for the appellee, the State of Tennessee Judge: GLENN First Paragraph: The Petitioner, Jeffrey E. Dunlap, 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. Because Petitioner has failed to allege a ground for relief which would render the judgment void, we grant the State's motion and affirm the judgment of the lower court. http://www.tba.org/tba_files/TCCA/dunlapjeffe.wpd MARGO FRESHWATER v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert W. Ritchie and Stephen Ross Johnson, Knoxville, Tennessee for the appellant, Margo Freshwater. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner, Margo Freshwater, was convicted of first degree murder in 1969. Her conviction was affirmed on direct appeal. See Freshwater v. State, 453 S.W.2d 446 (Tenn. Crim. App. 1969). In 2003, she filed a petition for writ of error coram nobis, alleging that new evidence existed that proved her innocence, as well as complaining of violations of Brady v. Maryland, 373 U.S. 83 (1963), and juror misconduct that occurred at trial which necessitated a hearing and ultimately a new trial. Prior to a hearing, the trial court granted a motion to dismiss the petition because the petition was, inter alia, filed outside the statute of limitations. The petitioner seeks a reversal of the trial court's decision on appeal. Because due process requires the tolling of the statute of limitations for filing the petition for writ of error coram nobis with respect to the petitioner's claim of previously withheld exculpatory evidence, we reverse the judgment of the trial court and remand the matter for an evidentiary hearing on the petition. As to the remaining allegations of juror misconduct, we conclude those allegations could have and should have been addressed in a post-conviction petition and are now time-barred. Thus, we affirm the portion of the trial court's order dismissing the part of the petition for writ of error coram nobis pertaining to those claims. http://www.tba.org/tba_files/TCCA/freshwatem.wpd ANTHONY C. LONG v. TONY PARKER, WARDEN Court:TCCA Attorneys: Anthony C. Long, Appellant, Pro Se. Paul G. Summers, Attorney General & Reporter; and Renee W. Turner, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Anthony C. Long, appeals the Lake County Circuit Court's dismissal of his petition for habeas corpus relief. We reverse the dismissal and order habeas corpus relief. http://www.tba.org/tba_files/TCCA/longantc.wpd STATE OF TENNESSEE v. ROBERT LEE MALLARD Court:TCCA Attorneys: Darwin K. Colston (on appeal) and John H. Baker, III (at hearing), Murfreesboro, Tennessee, for the appellant, Robert Lee Mallard. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Thomas F. Jackson, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant, Robert Lee Mallard, appeals the revocation of his probation relating to his convictions for attempting to tamper with evidence and resisting arrest. On appeal, the defendant contends: (1) the trial court erred in revoking his probation; (2) the drug tests administered by the probation officers constituted improper body cavity searches; and (3) the drug tests violated his right to privacy. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mallardrobert.wpd RODNEY MCKINNEY v. TONY PARKER, WARDEN Court:TCCA Attorneys: Rodney McKinney, pro se. Paul G. Summers, Attorney General & Reporter, and Richard H. Dunavant, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Rodney McKinney, appeals the trial court's summary dismissal of his claim for writ of habeas corpus. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/mckinneyrod.wpd STATE OF TENNESSEE v. MATTHEW KIRK MCWHORTER Court:TCCA Attorneys: Mandy Waldrop Denson, Clarksville, Tennessee for the appellant, Matthew Kirk McWhorter. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; Arthur Beiber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Montgomery County jury convicted the Defendant, Matthew Kirk McWhorter, of three counts of aggravated sexual battery, and the trial court imposed an eight-year sentence for each conviction, to be served consecutively. On appeal, the Defendant contends that: (1) insufficient evidence exists in the record to support his convictions; (2) the trial court erred by not requiring the State to elect the offenses it wished to submit to the jury; (3) the trial court improperly admitted a law enforcement officer's testimony about the Defendant's uncharged conduct; (4) the trial court erred by permitting a law enforcement agent to testify about a recorded recollection; (5) the trial court erred by denying the Defendant's motion to prohibit testimony of the victim; (6) reversible error occurred when the State failed to disclose, preserve and turn over a law enforcement official's notes made during the Defendant's initial interrogation; (7) the trial court erred by allowing the State to submit an insufficient Bill of Particulars and to deviate from its Bill of Particulars; (8) the trial court erred in denying the Defendant's motion to suppress his written and oral statements made to law enforcement officials in Florida; (9) the trial court erred by failing to instruct the jury on child abuse as a lesser- included offense; (10) the State's closing arguments were so improper that they infected the trial with unfairness and denied the Defendant due process; (11) the trial court erred by interrupting the natural flow of jury deliberations to give supplemental instructions; and (12) the trial court erred in ordering the Defendant to serve his sentences consecutively. After thoroughly reviewing the record, we conclude that the trial court erred by failing to require the State to elect which incident of sexual touching the State intended for the jury to consider for Count 1, aggravated sexual battery. Accordingly, we reverse the conviction and the sentence in Count 1. We affirm the remaining convictions and sentences. http://www.tba.org/tba_files/TCCA/mcwhortermk.wpd FREDDIE L. OSBORNE v. STATE OF TENNESSEE Court:TCCA Attorneys: Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant, Assistant Attorney General; John Carney, District Attorney General; and Daniel Brollier, Assistant District Attorney General, for the appellant, State of Tennessee. William L. Aldred, Jr. Clarksville, Tennessee, for the appellee, Freddie L. Osborne. Judge: SMITH First Paragraph: The petitioner was convicted for sale of a controlled substance and sentenced to 32 _ years in the Tennessee Department of Correction. The petitioner appealed his conviction to this Court. We affirmed his conviction. The petitioner then filed a Petition for Post-conviction Relief. The post- conviction court granted his petition. The State now appeals the post-conviction court's decision, arguing two issues: (1) Whether failure of trial defense counsel to follow the mandatory provisions of Rule 609 amounted to ineffective assistance of counsel at trial, and (2) whether failure of trial defense counsel to request the jury charge of facilitation amounted to ineffective assistance of counsel at trial, where that charge would now be automatically given. We reverse and remand the decision of the post-conviction court. http://www.tba.org/tba_files/TCCA/osbornefreddie.wpd STATE OF TENNESSEE v. JEFFERY BRIAN PARKS WITH DISSENTING OPINION Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal); and A. Jackson Dearing, III, Assistant Public Defender (at trial and appellate co-counsel), for the Appellant, Jeffery Brian Parks. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; W. Michael McCown, District Attorney General; and Ann L. Filer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Jeffery Brian Parks, appeals from the sentencing decision of the Lincoln County Circuit Court. In 2003, Parks pled guilty to two counts of sexual battery by an authority figure, two counts of incest, and two counts of statutory rape. After a sentencing hearing, the trial court sentenced Parks, as a Range I standard offender, to six years for each count of sexual battery by an authority figure and incest, both class C felonies, and to two years for each count of statutory rape, a class E felony. These sentences were ordered to be served concurrently in the Department of Correction. In this appeal as of right, Parks argues that the trial court erred in imposing excessive sentences with respect to each sentence and by ordering a sentence of total confinement rather than a less restrictive alternative. The State, on appeal, asserts that consecutive sentencing should be imposed by this court following de novo review. Because the trial court failed to impose a sentence in accordance with our statutory sentencing scheme, we remand the case to the trial court for a new sentencing hearing to determine the length of the Appellant's sentences, the appropriateness of consecutive sentencing, and the Appellant's suitability for an alternative sentence. http://www.tba.org/tba_files/TCCA/parksjefferyb_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/parksjefferyb_dis.wpd STATE OF TENNESSEE v. KENNETH LAMAR TUCKER Court:TCCA Attorneys: J. Al Johnson, Spencer, Tennessee, for the appellant, Kenneth Lamar Tucker. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; and Dale Potter, District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner, Kenneth Lamar Tucker, plead guilty to one count of rape of a child in exchange for a fifteen-year sentence at 100%. In this post-conviction appeal, the petitioner argues that: (1) he did not knowingly and voluntarily enter his plea of guilt; (2) he was denied effective assistance of counsel; (3) he was denied the right to a trial by jury; (4) the state withheld exculpatory evidence; (5) the newly discovered exculpatory evidence entitles him to relief; and (6) the post-conviction court erred in refusing to admit trial counsel's case file into evidence. For the following reasons, we affirm the dismissal of the post-conviction petition. http://www.tba.org/tba_files/TCCA/tuckerkenneth.wpd STATE OF TENNESSEE v. MARVIN GLENN WHITE Court:TCCA Attorneys: Robert B. French, Jr., Fort Payne, Alabama (on appeal); and William C. Killian, Jasper, Tennessee (at trial and on appeal), for the appellant, Marvin Glenn White. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; James Michael Taylor, District Attorney General; and Sherry D. Gouger, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Marion County jury convicted the defendant, Marvin Glenn White, of two counts of premeditated first degree murder for which he received concurrent life sentences. On appeal, the defendant contends: (1) the evidence was insufficient to support the convictions; and (2) the trial court erred in admitting statements which constituted double hearsay. Upon review of the record and the applicable law, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/whitemarvin.wpd ALONZO C. WILLIAMS v. STATE OF TENNESSEE Court:TCCA Attorneys: Alonzo Williams, pro se. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General, for the appellee, the State of Tennessee. Judge: GLENN First Paragraph: The Petitioner, Alonzo C. Williams, 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. Because Petitioner has failed to allege a ground for relief which would render the judgment void, we grant the State's motion and affirm the judgment of the lower court. http://www.tba.org/tba_files/TCCA/williaazc.wpd "Unclaimed" Return-Receipt Letters Date: August 31, 2004 Opinion Number: 04-141 http://www.tba.org/tba_files/AG/2004/op141.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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