MICHAEL WAYNE HOWELL v. STATE OF TENNESSEE
WITH TWO IN PART CONCURRING AND DISSENTING OPINIONS
Court:TSC
Attorneys:
Paul R. Bottei and Kelley J. Henry, Nashville, Tennessee, for the
appellant, Michael Wayne Howell.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Jennifer L. Smith, Senior Counsel, for the
appellee, State of Tennessee.
Judge: BARKER
First Paragraph:
This case comes before us on a motion to reopen a petition for
post-conviction relief. The petitioner alleges that he is mentally
retarded as defined in Tennessee Code Annotated section 39-13- 203(a)
(2003), and therefore ineligible for the death penalty under State v.
Van Tran, 66 S.W.3d 790 (Tenn. 2001) and Atkins v. Virginia, 536 U.S.
304 (2002). The trial court denied the motion, finding that the
petitioner failed to make a prima facie showing of mental retardation
sufficient to support reopening his post-conviction proceeding, and
the Court of Appeals affirmed the denial. We reverse the Court of
Appeals, holding that under the specific facts of this case, in which
a petitioner is able, for the first time in his motion to reopen his
petition for post-conviction relief, to claim ineligibility for the
death penalty due to mental retardation under Van Tran or Atkins, the
motion should be considered under the "colorable claim" evidentiary
standard rather than the "clear and convincing" standard. We also
hold that Tennessee Code Annotated section 39-13-203(a) (2003) clearly
and unambiguously requires the defendant to have an I.Q. of seventy or
below to be considered mentally retarded. We conclude that the
petitioner's motion to reopen his post-conviction hearing set out a
colorable claim, thus entitling him to an evidentiary hearing, without
a jury, on the issue of mental retardation.
http://www.tba.org/tba_files/TSC/howellmichaelw_opn.wpd
CONCURRING/DISSENTING OPINION 1
http://www.tba.org/tba_files/TSC/howellmichaelw_dis1.wpd
CONCURRING/DISSENTING OPINION 2
http://www.tba.org/tba_files/TSC/howellmichaelw_dis2.wpd
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES
v. B.B.M.
Court:TCA
Attorneys:
Scott A. Hodge, Morristown, Tennessee, for the Appellant B.B.M.
Paul G. Summers, Attorney General and Reporter, and Douglas Earl
Dimond, Senior Counsel, Nashville, Tennessee, for the Appellee State
of Tennessee, Department of Children's Services
Judge: SWINEY
First Paragraph:
This appeal involves the Juvenile Court's termination of the parental
rights of B.B.M. ("Mother") to her four children. After a trial, the
Juvenile Court held there was clear and convincing evidence that DCS
had made a reasonable effort to assist Mother to reunite with her
children. The Juvenile Court also concluded that DCS had proven by
clear and convincing evidence that Mother's parental rights should be
terminated on three separate grounds. Finally, the Juvenile Court
held there was clear and convincing evidence that termination of
Mother's parental rights was in the children's best interest. The
record on appeal is lacking in many respects and does not contain even
the permanency plans developed by DCS to assist Mother in the
unsuccessful attempt to reunite her with her children. We conclude
the record, such as it is, does not contain sufficient evidence to
support the Juvenile Court's conclusion that there was clear and
convincing evidence that DCS had made a reasonable effort to assist
Mother to reunite with her children. The judgment of the Juvenile
Court is, therefore, reversed.
http://www.tba.org/tba_files/TCA/bbm.wpd
DWAYNE S. BYRD, JULIE DICHTEL BYRD, J. WILSON ROOP, JR., Individually
and as Representatives of Getwell West Residents Association; GETWELL
WEST RESIDENTS ASSOCIATION, as Representatives of Property Owners
within the Annexed Area; GERALD D. McLEMORE, WYNN PATTON, ROXIE BOYCE,
WILLIAM C. PORTER, HARRY GILLESPIE, WENDELL B. WILLIAMS, MATTIE
BOOKER, MABLE DURHAM, GENE CUMMINGS, JIM GAITHER, BERICE JOHNSON,
CAROLE H. NELLUMS, and ROBERT E. BUIE, Individually and as
Representatives of their Respective Subdivisions v. CITY OF MEMPHIS;
RICHARD C. HACKETT, Mayor of Memphis; MEMPHIS CITY COUNCIL, Composed
of Present Members: A. D. ALISSANDRATOS, BILL DAVIS, OSCAR H.
EDMONDS, JR., DR. JAMES FORD, MICHAEL A. HOODS, FLORENCE LEFFLER, TOM
MARSHALL, MARY ROSE McCORMICK, JIMMY MOORE, RICKEY PEETE, JACK
SAMMONS, BARBARA SONNENBURG, PAT VANDER SCHAAF, and Retiring Members
BILLY HYMAN, ROBERT B. JAMES, MINERVA JOHNICAN, J. O. PATTERSON, JR.,
and WILLIAM GIBBONS
Court:TCA
Attorneys:
Dwayne S. Byrd and Julie D. Byrd, Memphis, Tennessee, for the
appellants.
Jonathan C. Hancock, Ashlee B. Ellis, and Sara Hall, Memphis,
Tennessee, for the appellee, City of Memphis.
Judge: KIRBY
First Paragraph:
This case involves a dismissal for failure to prosecute. In January
1988, the plaintiff residents filed this lawsuit against the defendant
municipal officials for allegedly enacting an unconstitutional and
unreasonable annexation ordinance. In 2003, after the case had been
on the trial court's docket for fifteen years with little activity,
the trial court clerk filed a motion to dismiss for lack of
prosecution. In June 2003, the trial court granted the clerk's motion
and dismissed the case. The plaintiff residents now appeal. We
affirm, finding that the trial court did not abuse its discretion in
dismissing the case.
http://www.tba.org/tba_files/TCA/byrddwaynes.wpd
CITY OF COOKEVILLE, TENNESSEE v. TENNESSEE WATER QUALITY CONTROL
BOARD, ET AL.
Court:TCA
Attorneys:
Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, Elizabeth P. McCarter, Senior Counsel, Nashville,
TN, for Appellants
William L. Penny, John Knox Walkup, Andrew J. Pulliam, Nashville, TN,
for Appellee
Judge: HIGHERS
First Paragraph:
This appeal concerns the rule-making authority of the Tennessee
Department of Environment and Conservation under the Tennessee Uniform
Administrative Procedures Act. The City of Cookeville, seeking to
expand its treatment works facility, obtained a permit from the
Tennessee Department of Environment and Conservation which placed
nitrogen limits on the City's effluent emissions into Pigeon Roost
Creek in Putnam County, Tennessee. The city filed a declaratory
judgment action with the Chancery Court of Davidson County asking the
court to find as follows: (1) the section 303(d) list created by the
Tennessee Department of Environment and Conservation, which listed
Pigeon Roost Creek as organically enriched, amounted to an improperly
promulgated rule in violation of the Tennessee Uniform Administrative
Procedures Act, and (2) the organic enrichment criteria contained in
the section 303(d) list amounted to an improperly promulgated Water
Quality Standard, which in turn constitutes an improperly promulgated
rule, that the Tennessee Department of Environment and Conservation
used to impose restrictions on the city's permit. The parties each
filed motions for summary judgment with the chancery court. The
chancellor granted the city's motion, finding that the section 303(d)
list containing the organic enrichment criteria amounted to improperly
promulgated rules as a matter of law. The state appealed the
chancellor's ruling to this Court and, for the reasons contained
herein, we dismiss this case as non-justiciable.
http://www.tba.org/tba_files/TCA/cityofcookevilletn.wpd
CRYE LEIKE, INC., ET AL. v. RICHARD SCOTT OUER
Court:TCA
Attorneys:
Roger A. Stone, Memphis, TN, for Appellants
David E. Caywood, Lucie Brackin, Memphis, TN, for Appellee
Judge: HIGHERS
First Paragraph:
This case arises out of the sale of real estate located in Madison
County, Tennessee. Appellants filed this action to recover a real
estate commission under a theory of unjust enrichment. The trial
court below granted Appellee's motion for summary judgment, and
Appellants now seek review by this Court. For the following reasons,
we affirm.
http://www.tba.org/tba_files/TCA/cryeleik.wpd
IN THE MATTER OF THE ESTATE OF LIZZIE TOMLIN DAUGHRITY, DECEASED
Court:TCA
Attorneys:
Paul G. Summers, Attorney General & Reporter, Sue A. Sheldon, Senior
Counsel, Nashville, TN, for Appellant, Bureau of TennCare
Cecilia West Spivy, Lewisburg, TN, for Appellee, The Estate of Lizzie
Tomlin Daughrity
Judge: HIGHERS
First Paragraph:
This case involves a claim filed by the Tennessee Bureau of TennCare
against the estate of an elderly decedent to recover certain benefits
paid to the decedent to cover nursing home expenses during her
lifetime. The executor filed an exception to the claim arguing that
it was filed outside the four (4) month limitations period found in
sections 30-2-306(c) and 30-2-307(a) of the Tennessee Code. The
chancery court issued an order barring the bureau's claim on the
grounds that is was untimely filed. For the reasons stated herein, we
reverse.
http://www.tba.org/tba_files/TCA/daughritylizziet.wpd
JO ANN HARRIS v. BILLY HARRIS
Court:TCA
Attorneys:
Carthel L. Smith, Jr., Lexington, Tennessee, for the appellant, Billy
Harris.
Daniel Loyd Taylor and Amy R. Harden, Memphis, Tennessee, for the
appellee, Jo Ann Harris
Judge: KIRBY
First Paragraph:
This is a petition to modify alimony. The parties were married for
over forty-one years. In 1998, the wife filed a petition for legal
separation. In October 1998, the trial court entered a final decree
of legal separation, incorporating the terms of the parties' property
settlement agreement. In that agreement, the husband agreed to pay
the wife alimony in futuro of $1,300 per month. In October 2001, the
husband filed a petition to modify his alimony payments, based on the
deterioration in his health, which hindered his ability to pay, as
well as the wife's receipt of social security benefits and income from
investments that diminished her need for alimony. The trial court
concluded that, since the 1998 decree, there had been no substantial
or material change in circumstances that was not foreseeable when the
decree was entered. Consequently, the husband's petition to modify
alimony was dismissed. The husband now appeals. We affirm
http://www.tba.org/tba_files/TCA/harrisjoann.wpd
WOODROW JERRY HAWKINS v. MARY BURTON, ET AL.
Court:TCA
Attorneys:
Woodrow Jerry Hawkins, Pro se.
Gayle B. Lakey, Memphis, Tennessee, for the appellees, Mary Burton and
Alco Management, Inc.
Judge: FARMER
First Paragraph:
Following an unlawful detainer action in general sessions court,
Appellant was lawfully evicted pursuant to a writ of possession.
Appellant did not appeal the judgment. Appellant filed a subsequent
action in general sessions court alleging wrongful eviction. The
general sessions court dismissed the action. Plaintiff appealed to
circuit court, which affirmed dismissal based on the doctrine of res
judicata. We affirm.
http://www.tba.org/tba_files/TCA/hawkinswoodrowj.wpd
ESTATE OF JASON JENKINS
Court:TCA
Attorneys:
G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Tammie
Fralix, Administratrix of the Estate of Jason Jenkins.
C. Hayes Cooney, Nashville, Tennessee, for the appellee, Lisa Morrow
Judge: CAIN
First Paragraph:
This is a suit for personal injuries brought by the mother of a
mentally challenged 17 year old boy occurring when his teacher
attempted to transfer him from one chair to another and tripped over a
nearby rocker. Neither his teacher nor the Defendant Nurse who
immediately attended to him after the accident detected the fractured
leg. Young Jason Jenkins died from causes unrelated to the accident,
and his suit was revived against Defendants, Metropolitan Government
of Nashville, Davidson County, Mary Ann Armbrister, and Lisa Morrow.
The case was voluntarily dismissed as to Defendant teacher Ms.
Armbrister, and a settlement was reached between Plaintiff and
Metropolitan Government of Davidson County. The trial court sustained
a Motion for Summary Judgment on behalf of Ms. Morrow from which
Plaintiff appeals. We affirm the action of the trial court
http://www.tba.org/tba_files/TCA/jenkinsjasonest.wpd
STATE OF TENNESSEE EX REL. MARGARET ESTELLE MITCHELL v. RAY ALLEN LEA
STATE OF TENNESSEE EX REL. KATHERINE A. YARBROUGH v. WILLIAM R.
JOHNSON
Court:TCA
Attorneys:
Paul G. Summers, Attorney General & Reporter, and Stuart F.
Wilson-Patton, Senior Counsel, Nashville, Tennessee, for the
appellants, State of Tennessee ex rel. Margaret Estelle Mitchell and
State of Tennessee ex rel. Katherine A. Yarbrough.
Ray Allen Lea, appellee, pro se.
William R. Johnson, appellee, pro se.
Judge: KIRBY
First Paragraph:
This is a consolidated appeal involving two Title IV-D child support
cases. In each case, the mother had custody of the children, and the
father was subject to a court order requiring monthly child support
payments. The mother in each case received State assistance, and
consequently the father was required to make the child support
payments through the State's central collection and disbursement unit.
Years later, after significant child support arrearages had accrued,
the father in each case filed a motion to modify the child support
order and requested that the court terminate his child support
obligation. Each mother joined in the father's request, confirming
that she no longer wanted the State to enforce the father's child
support obligation. In each case, the State objected, asserting that
the mother had assigned to the State her right to the child support
payments when she accepted public assistance benefits. The trial
court dismissed each case and forgave each father's outstanding child
support arrearage. The State now appeals. We reverse, in both cases,
concluding that the trial court erred in retroactively modifying its
child support orders and in terminating the cases before the State had
been reimbursed for public assistance benefits received by the
mothers.
http://www.tba.org/tba_files/TCA/mitchellestellem.wpd
PICKWICK ELECTRIC COOPERATIVE v. ALCORN COUNTY ELECTRIC POWER
ASSICATION
Court:TCA
Attorneys:
James E. Price, Jr. of Corinth; Terry L. Wood of Corinth for
Appellant, Alcorn County Electric Power Association
Terry Abernathy of Selmer for Appellee Pickwick Electric Cooperative
J. Richard Lodge, Jr., and Russell S. Baldwin of Nashville for
Tennessee Electric Cooperative Association as Amicus Curiae
Judge: CRAWFORD
First Paragraph:
This is an appeal from the trial court's grant of an injunction
against Appellant to remove its electrical lines and facilities from
McNairy County. The trial court found that Appellant was a
"non-consumer owned electric system" and, as such, subject to
injunction under T.C.A. S65-34-103. Finding that Appellant is, in
fact, an "electric and community service corporation," we hold that
Appellant is not subject to injunction under T.C.A. S65-34-103. We
reverse and remand
http://www.tba.org/tba_files/TCA/pickelecco.wpd
ROSE CONSTRUCTION COMPANY, INC. v. RAINTREE DEVELOPMENT COMPANY, LLC
Court:TCA
Attorneys:
Larry E. Parrish and Robert P. Campbell, Jr., Memphis, Tennessee, for
the appellant, Raintree Development Company, LLC.
J. Houston Gordon and Michael I. Less, Covington, Tennessee, for the
appellee, Rose Construction Company, Inc
Judge: FARMER
First Paragraph:
This is the second appeal of this case. In June 1999, an arbitration
panel determined Rose Construction was entitled to damages under the
parties' contract. The trial court vacated the arbitration award. On
appeal, this Court reversed and confirmed the arbitration award in its
entirety. The Tennessee Supreme Court denied Raintree Development's
application for permission to appeal, issued a mandate, and remanded
the case to the trial court for entry of judgment. The trial court
entered judgment for Rose Construction as ordered by this Court.
Raintree Development again appeals. We affirm. We also hold this
appeal frivolous and award Rose Construction damages for a frivolous
appeal.
http://www.tba.org/tba_files/TCA/rosecon.wpd
GARY L. TURNAGE v. JUDITH WASHKA TURNAGE
Court:TCA
Attorneys:
S. Denise McCrary and Stephanie M. Micheel, Memphis, Tennessee, for
the appellant, Gary L. Turnage.
Barbara McCullough, Memphis, Tennessee, for the appellee, Judith
Washka Turnage
Judge: FARMER
First Paragraph:
This is a child support case involving the allocation of private
school tuition. The trial court ordered the father to pay one-half of
the minor children's private school tuition. We affirm.
http://www.tba.org/tba_files/TCA/turnagegaryl.wpd
COREY HARRISON v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Corey Harrison, pro se, Clifton, Tennessee.
Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General, for the appellee, State of
Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Petitioner, Corey Harrison, appeals from the dismissal of his
petition for the writ of habeas corpus. The State has filed a motion
requesting that the Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find
the State's motion has merit. Accordingly, the motion is granted and
the appeal is affirmed pursuant to Rule 20, Rules of the Court of
Criminal Appeals.
http://www.tba.org/tba_files/TCCA/harrisoncorey.wpd
JEFFREY M. HODGES v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Jeffrey M. Hodges, pro se, Clifton, Tennessee.
Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General, for the appellee, State of
Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Petitioner, Jeffrey M. Hodges, appeals from the dismissal of his
petition for the writ of habeas corpus. The State has filed a motion
requesting that the Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find
the State's motion has merit. Accordingly, the motion is granted and
the appeal is affirmed pursuant to Rule 20, Rules of the Court of
Criminal Appeals.
http://www.tba.org/tba_files/TCCA/hodgesjeffreym.wpd
MICHAEL K. KENNEDY v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Michael Keith Kennedy, pro se, Clifton, Tennessee.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Petitioner, Michael Keith Kennedy, appeals from the dismissal of
his petition for the writ of habeas corpus. The State has filed a
motion requesting that the Court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals.
We find the State's motion has merit. Accordingly, the motion is
granted and the appeal is affirmed pursuant to Rule 20, Rules of the
Court of Criminal Appeals.
http://www.tba.org/tba_files/TCCA/kennedymichaelk.wpd
RICKY H. KRANTZ v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Ricky H. Krantz, pro se, Nashville, Tennessee.
Paul G. Summers, Attorney General and Reporter; Helena W. Yarbrough,
Assistant Attorney General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Petitioner, Ricky H. Krantz, appeals from the dismissal of his
petition for the writ of habeas corpus. The State has filed a motion
requesting that the Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find
the State's motion has merit. Accordingly, the motion is granted and
the appeal is affirmed pursuant to Rule 20, Rules of the Court of
Criminal Appeals.
http://www.tba.org/tba_files/TCCA/krantzrickyh.wpd
ANTONIO LYONS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Antonio Lyons, pro se.
Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Petitioner, Antonio Lyons, appeals from the trial court's
dismissal of his petition for post- conviction relief. The trial
court found the petition to be untimely filed. 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.
We find the State's motion has merit. Accordingly, the motion is
granted and the appeal is affirmed pursuant to Rule 20, Rules of the
Court of Criminal Appeals.
http://www.tba.org/tba_files/TCCA/lyonsantonio.wpd
CALVIN LEE SNEED v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Edward L. Boring, Pikeville, Tennessee, for the appellant, Calvin Lee
Sneed.
Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; and J. Michael Taylor, District
Attorney General, for the appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Calvin Lee Sneed, was convicted upon a jury verdict of
first degree premeditated murder and sentenced to life imprisonment.
The Defendant's conviction and sentence were affirmed on direct
appeal. See State v. Calvin Lee Sneed, No. 03C01-9611-CR-00444, 1998
WL 309137 (Tenn. Crim. App., Knoxville, June 12, 1998). The Defendant
subsequently filed a petition for post- conviction relief, alleging
that he had received ineffective assistance of counsel at trial.
After a hearing, the trial court denied relief. The Defendant now
appeals. We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/sneedcalvinl.wpd
STATE OF TENNESSEE V. MICHAEL TREW
Court:TCCA
Attorneys:
Joe H. Walker and Walter B. Johnson, Public Defenders, Harriman
Tennessee, for the appellant, Michael Trew.
Paul G. Summers, Attorney General and Reporter; Jennifer Bledsoe,
Assistant Attorney General; James Scott McCluen, District Attorney
General; and Frank Harvey, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
This is an appeal as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure. The Defendant, Michael Trew, was found
guilty by jury verdict of driving under the influence of an intoxicant
(DUI), a Class A misdemeanor, and violating the implied consent law.
The Defendant was sentenced to eleven months and twenty-nine days,
with seven days to be served in the county jail; fined $400; and had
his driver's license suspended for one year. The Defendant now
appeals, claiming that the evidence at trial was insufficient to
support his DUI conviction beyond a reasonable doubt. We affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/trewmichael.wpd
REGINALD K. WATKINS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Reginald Keith Watkins, pro se, Henning, Tennessee.
Paul G. Summers, Attorney General and Reporter; Helena W. Yarbrough,
Assistant Attorney General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Petitioner, Reginald K. Watkins, appeals from the dismissal of his
petition for the writ of habeas corpus. The State has filed a motion
requesting that the Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find
the State's motion has merit. Accordingly, the motion is granted and
the appeal is affirmed pursuant to Rule 20, Rules of the Court of
Criminal Appeals.
http://www.tba.org/tba_files/TCCA/watkinsreginald.wpd
ADRIAN WILKERSON v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Adrian Wilkerson, pro se, Nashville, Tennessee.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Petitioner, Adrian Wilkerson, appeals from the dismissal of his
petition for the writ of habeas corpus. The State has filed a motion
requesting that the Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find
the State's motion has merit. Accordingly, the motion is granted and
the appeal is affirmed pursuant to Rule 20, Rules of the Court of
Criminal Appeals.
http://www.tba.org/tba_files/TCCA/wilkersonadrian.wpd
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