Opinion Flash

August 13, 2002
Volume 8 — Number 140

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
10 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
 

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


WASHSHUKRU AL-JABBAR A'LA v. STATE OF TENNESSEE

Court:TCA

Attorneys: 

Washshukru Al-Jabbar A'La, pro se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General and Nichon Shannon, Assistant Attorney General,
Nashville, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

Prisoner's claim for medical treatment was dismissed by Claims
Commission on jurisdictional grounds.  On appeal, we affirm and
remand.

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

WASHSHUKRU AL-JABBAR A'LA v. STATE OF TENNESSEE

Court:TCA

SWINEY CONCURRING

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

DEBRA DENECE BOLIN v. CARL DEAN BOLIN

Court:TCA

Attorneys:  

Carrie Kersh-Gasaway, Clarksville, Tennessee, for the appellant, Carl
Dean Bolin.

Gregory D. Smith, Clarksville, Tennessee, for the appellee, Debra
Denece Bolin.                        
 
Judge: FARMER

First Paragraph:

Wife filed for divorce soon after Husband was sentenced to four years
in prison for causing the death of Son.  The trial court granted Wife
the divorce on the grounds of inappropriate marital conduct.  The
court also determined that section 31-1-106 of the Tennessee Code
prohibited Husband from collecting his portion of Son's life insurance
policy.  We affirm the decision of the trial court.

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

KENNETH L. BONNER v. TENNESSEE DEPARTMENT OF CORRECTION
CORRECTED OPINION

Court:TCA

Attorneys:  

Kenneth L. Bonner, Mountain City, Tennessee, Pro se.

Paul G. Summers, Attorney General, Michael Moore, Solicitor General,
Pamela S. Lorch, Assistant Attorney General, for the appellee,
Tennessee Department of Correction.

Judge: COTTRELL

First Paragraph:

The petitioner contends that the trial court erred in dismissing his
petition regarding the Department of Correction's calculation of his
release eligibility date.  An adjustment of the release eligibility
date, made subsequent to the filing of this appeal,  has rendered most
of the petitioner's arguments moot.  As to the remaining issue, we
affirm the dismissal of the petition because we agree with the trial
court that it lacked jurisdiction to consider the petition.

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

JULIA SLEDGE LEACH BRYAN v. JAMES WENDELL LEACH
CORRECTED OPINION

Court:TCA

Attorneys:  

Wm. Kennerly Burger, Murfreesboro, Tennessee, Gregory D. Smith,
Nashville, Tennessee, for the appellant, James Wendell Leach.

James DuBois, Columbia, Tennessee, John A. Day, Nashville, Tennessee,
for the appellee, Julia Sledge Leach Bryan.                        

Judge: COTTRELL

First Paragraph:

This case involves post-divorce disputes over alimony and child
support  and issues of contempt of court.  The father commenced this
appeal after the trial court declined to modify or terminate his
alimony obligation and awarded the mother more than $50,000 in child
support arrearages and,  later, found the father in contempt of court
and ordered him to pay a fine of $100 per day until all judgments were
paid to the mother.  On appeal, the father argues that his alimony
obligation should have terminated or decreased, that a portion of his
child support payments should be placed in trust for the benefit of
the children, and that the trial court erred by fining him for
contempt.  We affirm the trial court's orders but modify the fine
imposed upon the father.

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

JAMES R. CONE, deceased, by next friend TIM CONE v. STATE OF TENNESSEE 

Court:TCA

Attorneys:

Pamela R. O'Dwyer and Randall D. Larramore, Chattanooga, Tennessee,
and Joseph K. Dughman, Nashville, Tennessee, for the Appellant James
R. Cone, deceased, by next friend Tim Cone.


Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, and Michael B. Leftwich, Assistant Attorney
General, Nashville, Tennessee, for the Appellee State of Tennessee.

Judge: SWINEY

First Paragraph:

After his father was killed while crossing railroad tracks located in
Sumner County, Tim Cone ("Plaintiff"), as next friend and on behalf of
his father James R. Cone, sued the State of Tennessee ("Defendant") in
the Claims Commission.  Plaintiff claimed Defendant exercised control
over the railroad crossing and was responsible for the dangerous
condition at that crossing.  Plaintiff also claimed Defendant
negligently deprived James R. Cone of certain statutory rights.  The
Claims Commission granted Defendant's motion to dismiss for failure to
state a claim upon which relief could be granted holding it did not
have jurisdiction over Plaintiff's three claims.  Plaintiff appeals. 
We affirm in part, reverse in part, and remand this case to the Claims
Commission.

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

RONALD L. DAVIS v. THE TENNESSEAN, et al.
CORRECTED OPINION

Court:TCA

Attorneys:  

Ronald L. Davis, Only, Tennessee, Pro se.

Alfred H. Knight, Nashville, Tennessee, for the appellees, The
Tennessean, et al.

Judge: COTTRELL

First Paragraph:

The plaintiff filed a libel action against a newspaper, The
Tennessean, its publisher and its editor, alleging his reputation had
been harmed by a sentence in an article which stated that he had shot
a man, when, in fact, his co-defendant had killed the victim.  The
trial court granted the defendants' motion to dismiss, finding the
plaintiff to be "libel proof" in this matter because he had been
convicted of aiding and abetting in the murder and incarcerated for
the remainder of his life for the crime, "render[ing] any reputation
he may have had virtually valueless." We affirm.

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

JEFFREY WAYNE HAITHCOTE v. DONAL CAMPBELL

Court:TCA

Attorneys:

Jeffrey W. Haithcote, Shelbyville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; and Pamela S. Lorch, Assistant Attorney General,
for the appellee, State of Tennessee.

Judge: CANTRELL

First Paragraph:

A prisoner convicted of numerous crimes filed a Petition for
Declaratory Judgment, arguing that the Department of Correction had
erred in its calculation of his sentence expiration date, and that he
was entitled to be released.  The Department stood by the correctness
of its calculations.  The petitioner's sentence expired during the
course of the proceedings, and he was released.  The trial court then
dismissed the petition as moot.  We affirm.

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

MARCHELLA ANN RICHARDSON v. TERRY STACEY

Court:TCA

Attorneys:

William Kennerly Burger, Murfreesboro, For Appellant, Terry Stacey

Jeff Reed, Murfreesboro, For Appellee, Marchella Ann Richardson                          

Judge: CRAWFORD

First Paragraph:

Plaintiff, landowner, sued defendant, adjoining landowner, to enjoin
him from trespassing on her land, committing a nuisance, and for
damages.  Plaintiff secured a temporary restraining order, and after a
nonjury trial, plaintiff was granted injunctive relief in several
particulars and was awarded compensatory and punitive damages. 
Defendant appeals.  We modify in part and affirm as modified.

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

RONNIE SYKES v. ROBBIE RICHARDSON, et al.

Court:TCA

Attorneys:

John H. Baker, III of Murfreesboro for Appellant, Ronnie Sykes

Robert G. Wheeler, Jr., Nashville, for Appellees, Robbie Richardson
and the Smith County Board of Education                        

Judge: CRAWFORD

First Paragraph:

Tenured teacher filed a petition for review of board of education
action discharging him from his teaching position.  The trial court,
the Honorable Don R. Ash, presiding by interchange, upheld the
decision by the board of education.  Petitioner appeals.  We affirm.

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

STATE OF TENNESSEE v. ELMER W. CROSS

Court:TCCA

Attorneys:

Ardena J. Garth, District Public Defender (on appeal), and Donna
Robinson Miller (on appeal) and  William Dobson (at trial), Assistant
District Public Defenders, for the appellant, Elmer W. Cross.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; and Lila Statom, Assistant District
Attorney General, for the appellee, State of Tennessee.                          

Judge: WADE

First Paragraph:

The defendant, Elmer W. Cross, entered pleas of guilt to presenting a
fraudulent insurance claim and arson.  See Tenn. Code Ann. SS
39-14-133, 39-14-301.  The trial court imposed Range I concurrent
sentences of three years, granted probation for 10 years, and ordered
restitution to his residential insurer in the amount of $24,752.03. 
In this appeal of right, the defendant asserts that the insurer is not
a "victim" within the meaning of the statutory provisions authorizing
restitution.  See Tenn. Code Ann. S 40-35-304; State v. Alford, 970
S.W.2d 944 (Tenn. 1998) (holding that "the victim's insurer cannot be
awarded restitution under Tenn. Code Ann. S 40-35-304").  Because the
insurer in this case was the actual victim of the crimes, the
judgments of the trial court are affirmed.

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

CHAD DANIEL EASTERLY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Douglas Payne, Greeneville, Tennessee, for the appellant, Chad Daniel
Easterly.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; C. Berkeley Bell, District Attorney
General; and Eric Christiansen, Assistant District Attorney General,
for the appellee, State of Tennessee.                     

Judge: WELLES

First Paragraph:

The Defendant, Chad Daniel Easterly, pled guilty to kidnapping and
evading arrest.  The plea agreement included an effective eight year
sentence as a Range I standard offender.  The Defendant subsequently
filed a post-conviction petition, alleging that his convictions were
the result of ineffective assistance of counsel and prosecutorial
misconduct.  After a hearing, the trial court denied relief.  The
Defendant now appeals as of right.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. PERRY SINGO

Court:TCCA

Attorneys:

William B. (Jake) Lockert, III, District Public Defender, for the
appellant, Perry Singo.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Suzanne M. Lockert, Assistant District Attorney General,
for the appellee, State of Tennessee.                      

Judge: RILEY

First Paragraph:

The defendant appeals his convictions for four counts of rape of a
child and four counts of aggravated sexual battery, for which he
received an effective sentence of 50 years, arguing: (1) his
confession was involuntary; (2) the evidence was not sufficient to
support his convictions; (3) the trial court erred in admitting
sexually explicit photographs of the defendant depicting prior bad
acts and improperly instructed the jury regarding consideration of the
photographs; (4) the trial court improperly admitted defendant's
letters and other writings; (5) the trial court improperly allowed a
non-qualified witness to testify regarding certain matters; (6) the
trial court failed to require the state to elect offenses; (7) the
trial court erred in failing to charge the jury on simple assault as a
lesser- included offense of aggravated sexual battery; and (8) the
trial court erred in its oral response to a question posed by the
deliberating jury.  The state concedes the evidence is insufficient to
support three of the child rape convictions, and we agree.  We find no
other reversible error.  Therefore, we reverse and dismiss these three
convictions and affirm all other convictions.  We remand to the trial
court for a redetermination of concurrent/consecutive sentencing.

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

STATE OF TENNESSEE v. WADE P. TUCKER

Court:TCCA

Attorneys:

Robert S. Peters, Winchester, Tennessee, for the Appellant, Wade P.
Tucker.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and Steve Blount, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Wade P. Tucker, appeals from his Franklin County
Circuit Court convictions of especially aggravated robbery and
aggravated burglary.  These convictions resulted from a bench trial in
which the facts were stipulated by the defendant and the state.  On
appeal, the defendant challenges the sufficiency of the convicting
evidence.  We conclude that sufficient evidence supports the
conviction of especially aggravated  robbery; however, we hold that
the conviction of aggravated burglary is infirm because the defendant,
as an owner of the property, effectively consented to his entry into
the house where the crime took place.  Accordingly, we reverse and
vacate the conviction of aggravated burglary but affirm the conviction
of especially aggravated robbery.

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

STATE OF TENNESSEE v. WADE P. TUCKER

Court:TCCA

ORDER

Upon the court's sua sponte action, it is ORDERED that the opinion in
this cause filed on July 17, 2002 is withdrawn, and in lieu thereof,
the clerk shall file the replacement opinion attached to this order.

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

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