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Today's Opinions: July 15, 2005
Volume 11 — Number 134
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.
01 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
05 New Opinion(s) from the Tennessee Court of Appeals
04 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

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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


STATE OF TENNESSEE v. DAVID G. HOUSLER

Court:TSC

Attorneys:                          

Michael E. Terry, Nashville, Tennessee, for the Defendant-Appellant,
David G. Housler.

Paul G.Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Joseph F. Whalen, III, Assistant Attorney
General, for the Plaintiff-Appellee, State of Tennessee.

Judge: HOLDER

First Paragraph:

We granted review to determine whether the Court of Criminal Appeals
erred in reversing the trial court's order supplementing the appellate
record in the defendant's case with the transcript of codefendant
Courtney Mathews' trial. We conclude that the trial court properly
supplemented the record. Accordingly, we reverse the judgment of the
Court of Criminal Appeals. We order supplementation of the appellate
record with the Mathews transcript for consideration in the
defendant's related Rule 11 appeal pending in this Court.

http://www.tba.org/tba_files/TSC/2005/houslerd71505.pdf

IN RE A.L.B., N.W.B. AND C.B.B.
CORRECTED OPINION (ORIGINALLY ISSUED 7-6-2005)

Court:TCA

Attorneys:                          

Glen A. Isbell, Winchester, Tennessee, for the appellants, N.W.B. and
R.D.B.

Paul G. Summers, Attorney General and Reporter; Julie Pablo, Assistant
Attorney General, for the appellee, State of Tennessee, Department of
Children's Services.

Trudy McKelvey Edwards, Winchester, Tennessee, Guardian Ad Litem for
A.L.B., N.W.B. and C.B.B.

Judge:CAIN

First Paragraph:

This is a termination of parental rights case involving rights of both
parents to their three young children. Parental rights of both parents
were terminated after the trial court found substantial noncompliance
with the permanency plan and persistence of conditions that led to the
removal under Tennessee Code Annotated section 36-1-113 (g)(3), those
conditions being filthy and unsanitary living conditions in the home.
The court also found that termination was in the children's best
interests. We reverse this decision and remand the case for further
proceedings.

CORRECTED OPINION
http://www.tba.org/tba_files/TCA/2005/alb71505.pdf

MICHAEL WILLIAM KWASNIK v. SUSAN MARIE GILLMAN KWASNIK

Court:TCA

Attorneys:                          

Charles D. Paty of Chattanooga, Tennessee for Appellant, Michael
William Kwasnik

Phillip C. Lawrence of Chattanooga, Tennessee for Appellee, Susan
Marie Gillman Kwasnik

Judge: CRAWFORD

First Paragraph:

In this divorce case, Husband/Appellant appeals and raises issues
involving valuation and division of marital property, rehabilitative
alimony, and attorney fees. We affirm in part, reverse in part, and
remand.

http://www.tba.org/tba_files/TCA/2005/kwasnikm71505.pdf

GORDON E. MORROW, JR. v. TAMMY LYNN (PUGH) MORROW

Court:TCA

Attorneys:                          

John Michael Garrett, Larry H.Hagar, Nashville, Tennessee, for the
appellant, TammyLynn (Pugh) Morrow.

Shawn J. McBrien, Lebanon, Tennessee, for the appellee, Gordon E.
Morrow, Jr.

Judge: COTTRELL

First Paragraph:

The husband filed for divorce after a marriage of over twenty-three
years. The trial court granted the divorce to the wife on the ground
of the husband's inappropriate marital conduct and divided the marital
property equally between the parties. Because of the property
division, and because the wife had more formal education than the
husband, the court decided that she was not entitled to any alimony.
The wife appealed. We modify the trial court's decree to eliminate the
payment to the husband ordered as part of the property division.
Because this modification serves the goal of selfsufficiency for the
economically disadvantaged spouse, we affirm the denial of alimony. We
also affirm the award of attorney's fees.

http://www.tba.org/tba_files/TCA/2005/morrowg71505.pdf

IN RE: TKY

Court:TCA

Attorneys:                          

J. Stanley Rogers and Christina H. Duncan, Manchester, Tennessee, for
the appellants, K.Y. and D.Y.

Eric J. Burch, Manchester, Tennessee, for the appellee, T. P.

Judge: CLEMENT

First Paragraph:

The biological father of a child filed this parentage action seeking
to be named the child's legal father. The action was opposed by the
mother of the child and her husband, the latter of whom also seeks to
be declared the "legal" father of the child. Each man is armed with a
rebuttable statutory presumption of parentage. The husband of the
child's mother is presumptively the legal father based upon Tenn. Code
Ann. S 36-2-304(a)(1) and (4), because he was married to the child's
mother when the child was conceived and born, took the child into his
home and has openly held him out as his natural child. The biological
father, with whom the mother had an extramarital affair, is
presumptively the legal father based on subsection (a)(5) of Tenn.
Code Ann. S 36-2-304, because a DNA test indicates a 99.95%
statistical probability that he is the biological father. The trial
court found the biological father to be the legal father based on the
DNA test and the fact that he had taken action to prove his parentage.
The record reveals that the biological father knew he was probably the
father of the child before birth, yet he has provided no support for
the child, he has no relationship with the child, and he waited almost
two years before initiating any legal action to assert his legal
rights. Conversely, the record reveals that the husband of the child's
mother has a significant relationship with the child, has held him out
as his child and has provided a loving home and financial support for
the child throughout the child's life. Based on these factors we
reverse and remand with instructions to enter a judgment that the
husband of the child's mother is the legal father of the child.

http://www.tba.org/tba_files/TCA/2005/tky71505.pdf

IN RE: TKY

Court:TCA

Attorneys:                          

J. Stanley Rogers and Christina H. Duncan, Manchester, Tennessee, for
the appellants, K.Y. and D.Y.

Eric J. Burch, Manchester, Tennessee, for the appellee, T.P.

Judge: CLEMENT

First Paragraph:

This is an action by the mother of a child, in which she is joined by
her husband, to terminate the parental rights, if any, of the apparent
biological father of her child. Prior to the commencement of this
action, a separate action was filed by the apparent biological father
to establish parentage. That parentage action was tried and appealed,
the result of which was a ruling that the apparent biological father
was not the "legal" father of her child, TKY, that the legal father of
TKY was the husband of the child's mother, and the apparent biological
father had no parental rights or responsibilities. That ruling renders
the issue of the apparent biological father's parental rights, or lack
thereof, moot. We therefore vacate the judgment of the trial court and
remand with instructions to dismiss the petition to terminate parental
rights as being moot.

http://www.tba.org/tba_files/TCA/2005/tky2_71505.pdf

STATE OF TENNESSEE v. MICHAEL L. CALANDROS
CORRECTED OPINION (ORIGINALLY ISSUED 6-23-2005)

Court:TCCA

Attorneys:                          

Michael L. Calandros, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Robert H. Montgomery, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals the trial court's denial of pretrial jail
credits. We conclude that Tennessee Rule of Appellate Procedure 3 does
not provide an appeal as of right from the trial court's action.
Moreover, because the sentence is neither illegal nor void, the appeal
cannot be treated as a writ of certiorari. Therefore, because this
matter is not properly before us, we dismiss the appeal.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/2005/calandrosm71505.pdf

STATE OF TENNESSEE v. GEORGE HAMPTON

Court:TCCA

Attorneys:                          

Robert Wilson Jones, District Public Defender; Garland Erguden,
Assistant Public Defender; and Trent Hall, Assistant Public Defender,
Memphis, Tennessee, for the appellant, George Hampton.

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Amy Weirich, Assistant District Attorney General; and Steve
Jones, Assistant District Attorney General, for the appellee, the
State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a jury trial, Defendant was found guilty in case No.
03-01711 of three counts of aggravated robbery, Class Bfelony,
involving victims Henry Skelton, Mark Mears, and John Norris, and one
count of aggravated assault, a Class C felony, involving victim Myron
Raymond. The trial court sentenced Defendant as a Range III,
persistent offender, to thirty years for each aggravated robbery
conviction and fifteen years for the aggravated assault conviction.
Defendant was found guilty in case No. 03-01718 of one count of
especially aggravated robbery, a Class A felony, of Dr. Charles White,
and the trial court sentenced Defendant to sixty years as a Range III,
persistent offender, for this offense. The trial court ordered
Defendant's sentences in case No. 03-01711 to be served consecutively
to each other and consecutively to his sentence in case No. 03-01718,
for an effective sentence of one hundred and sixty-five years. On
appeal, Defendant does not challenge the sufficiency of the convicting
evidence. Defendant argues, however, that the trial court's
application of enhancement factors in determining the length of his
sentences violated his Sixth Amendment right to trial by jury.
Defendant also argues that the trial court erred in imposing
consecutive sentencing. After a thorough review of the record, we
affirm the judgments of the trial court, and the imposition of
consecutive sentencing.

http://www.tba.org/tba_files/TCCA/2005/hamptong71505.pdf

STATE OF TENNESSEE v. EDWARD JOHNSON

Court:TCCA

Attorneys:                          

C.Anne Tipton, Memphis, Tennessee (on appeal), and MozellaRoss,
Memphis,Tennessee (at trial), for the appellant, Edward Johnson.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Steven Jones, Assistant District Attorney General; and Amy
Weirich, Assistant District Attorney General, for the appellee, the
State of Tennessee.

Judge: WOODALL

First Paragraph:

Following a jury trial, Defendant, Edward Johnson, was convicted of
Class E felony theft, and was sentenced to serve six years
imprisonment as a Range III career offender. In this appeal, Defendant
contends that the trial court committed reversible error by requiring
him to go to trial in this case after he had requested a continuance.
He also challenges the sufficiency of the evidence to sustain the
conviction. We conclude that the evidence was sufficient to sustain
the conviction. However, under the particular facts of this case as
set forth in the record, we conclude that the trial court committed
reversible error by denying Defendant's request for a continuance. We
therefore reverse the judgment and remand for a new trial.

http://www.tba.org/tba_files/TCCA/2005/johnsone71505.pdf

MIQWON DEON LEACH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Danny H. Goodman, Jr., Tiptonville, Tennessee, for the appellant,
Miqwon Deon Leach.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and James T. Cannon, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Miqwon Deon Leach, appeals the dismissal of his petition
for post-conviction relief arguing that he was denied his
constitutional right to testify and that his rights under the
Interstate Compact on Detainers were violated. Petitioner also
contends that his trial counsel rendered ineffective assistance (1) by
failing to follow the procedures set forth in State v. Momon; (2) by
failing to object to the State's failure to comply with the provisions
of the Interstate Compact on Detainers, and (3) by failing to file a
motion for a speedy trial. After a thorough review of the record, we
affirm the judgment of the post-conviction court.

http://www.tba.org/tba_files/TCCA/2005/leachm71505.pdf

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