Opinion Flash

January 2, 2003
Volume 9 — Number 001

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
00 New Opinion(s) from the Tennessee Court of Appeals
11 New Opinion(s) from the Tennessee Court of Criminal Appeals
06 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


STATE OF TENNESSEE, DEPARTMENT OF  CHILDREN'S SERVICES, IN THE MATTER
OF:  T.K.C., T.J.C., C.B.W., T.S.W.,and T.S.C., Children Under 18
years of age 

Court:TCA

Attorneys:   

Joree G. Brownlow, Cordova, For Appellant, Tonza Williams Crawford

Paul G. Summers, Attorney General, Elizabeth C. Driver, Assistant
Attorney General, For Appellee, State of Tennessee, Department of
Children's Services

Judge: CRAWFORD

First Paragraph:

This is a termination of parental rights case.  The mother, Tonza
Williams, appeals the order of the juvenile court terminating parental
rights to her five children.  For the reasons hereinafter stated, we
affirm the juvenile court order.

http://www.tba.org/tba_files/TCA/crawford.wpd
								
ESTATE OF ZERAH FISHER, DECEASED, BY BOB MEYERS, INDIVIDUALLY & AS THE EXECUTOR OF THE ESTATE OF ZERAH FISHER, et al. v. HOWARD E. ROGERS Court:TCA Attorneys: John E. Dunlap, Memphis, TN, for Appellants Kevin D. Balkwill, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal involves the transfer of a quitclaim deed for real property. The trial court refused to set aside the quitclaim deed after finding that the Appellants failed to prove the elements of undue influence, fraud, or the presence of a confidential relationship. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/fisher.wpd
GLENNA M. GRISSOM v. STATE OF TENNESSEE Court:TCA Attorneys: Stephen D. Jackson, Jackson, Tennessee, for the appellant, Glenna M. Grissom Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Mary M. Bers, Senior Counsel, Office of the Attorney General and Reporter, Nashville, Tennessee, for the appellee, State of Tennessee Judge: LILLARD First Paragraph: This is a Claims Commission case that was dismissed for failure to prosecute. In July 2000, the claimant filed a lawsuit with the Tennessee Claims Commission against the State of Tennessee. The State filed its answer in October 2000. In September 2001, the State filed a motion to dismiss for failure to prosecute, relying on Tennessee Code Annotated section 9-8-402(b), which provides for dismissal of a claim with the Claims Commission if the claimant does not take action to advance the claim for a one-year period, unless the claimant received prior written consent from the Commission. In November 2001, the Commission entered an order granting the State's motion to dismiss. On appeal, the claimant argues that the one-year period should be tolled pending a response to her complaint by the State. We affirm, finding that the statutory one-year period began to run when the claim was filed. http://www.tba.org/tba_files/TCA/grissomgm.wpd
VERITEENA V. HOLLINS v. COVINGTON PIKE CHRYSLER- PLYMOUTH, INC. Court:TCA Attorneys: Stuart B. Breakstone, Memphis, TN, for Appellant Joseph W. Barnwell, Jr., Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: Ms. Hollins filed suit against Covington Pike Chrysler-Plymouth in general sessions court. On the day of the scheduled trial, Ms. Hollins' counsel announced a judgment for the defendant. Both parties agree that this judgment was announced in order to move the case from general sessions court to circuit court. Ms. Hollins never appealed the judgment. Eleven months later she refiled the case in general sessions court. The sessions court dismissed the case finding it to be res judicata. Ms. Hollins appealed this decision to circuit court. The circuit court granted Covington Pike Chrysler- Plymouth's motion for summary judgment on the basis of res judicata. We agree. http://www.tba.org/tba_files/TCA/hollinsv.wpd
GINNIE LEACH, et al. v. TIM TAYLOR, et al. Court:TCA Attorneys: Joseph R. Taggart, Jackson, For Appellant, Ginnie Leach and J. T. Hill, Jr. Michael E. Evans, Nashville, For Appellees, Tim Taylor and Larry Taylor Judge: CRAWFORD First Paragraph: Plaintiffs sued Defendants for intentional and negligent infliction of emotional distress, stemming from comments Defendants made concerning the condition of Plaintiffs' father's corpse. The Circuit Court, Gibson County, granted the Defendants' Tenn. R. Civ. P. 12 Motion to Dismiss. Plaintiffs appeal. We affirm. http://www.tba.org/tba_files/TCA/leach_opn.wpd
GINNIE LEACH, et al. v. TIM TAYLOR, et al. Court:TCA LILLARD DISSENTING http://www.tba.org/tba_files/TCA/leach_dis.wpd
MARK VII TRANSPORTATION COMPANY, INC. v. JOSEPH BELASCO, et al. Court:TCA Attorneys: J. Kimbrough Johnson and Craig C. Conley, Memphis, Tennessee, for the appellant, Mark VII Transportation Co., Inc. Tim Edwards and James F. Horner, Memphis, Tennessee, for the appellees, Joseph Belasco and Elite Worldwide Services, Inc. Judge: FARMER First Paragraph: This appeal arises from a declaratory judgment action filed by Mark VII Transportation Co., Inc., in which it sought a judgment declaring the parties' respective rights and obligations under an asset purchase agreement. The trial court awarded summary judgment to the Defendant. We affirm. http://www.tba.org/tba_files/TCA/markvii.wpd
JACQUELINE McKINLEY v. SAMUEL SIMHA, M.D., et al. Court:TCA Attorneys: Buckner Wellford and John Dotson, Memphis, For Appellants, Samuel Simha, M.D. and Health First Medical Group William B. Raiford, III, Clarksdale, Mississippi, For Appellee, Jacqueline McKinley Judge: CRAWFORD First Paragraph: Patient brought medical malpractice action against physician and medical group for complications that allegedly arose from injury to patient's right ureter suffered during total abdominal hysterectomy performed by defendant physician. The trial court denied defendants' Motion for Directed Verdict on the issues of cause and permanency of patient's condition. The trial court entered judgment on jury verdict for patient and subsequently awarded prejudgment interest to patient. Physician and medical group appealed. We affirm the trial court's denial of the directed verdict motion and its judgment on the jury verdict, and reverse the court's award of prejudgment interest. http://www.tba.org/tba_files/TCA/mckinleyj.wpd
MID-AMERICA APARTMENT COMMUNITIES, L.P., a Tennessee Limited Partnership v. COUNTRY WALK PARTNERS, et al. Court:TCA Attorneys: Henry L. Klein, Memphis, Tennessee, for the appellant, Mid-America Apartment Communities, L.P. J. Cecil McWhirter and Geoffrey Gaia, Memphis, Tennessee, for the appellee, Country Walk Partners. Steven R. Regenwether, Memphis, Tennessee, for the appellee, Paragon Properties, LLC. Mark W. Raines and Jay M. Atkins, Memphis, Tennessee, for the appellee, Acuff Enterprises, Inc. d/b/a Scott Contractors and Scott Contractors, Inc. Judge: FARMER First Paragraph: Plaintiff filed suit for damages to ponds on its property caused by silt flowing from upstream property under development by Defendants. The trial court found that the suit was timed barred by the three year statute of limitations applicable to causes of actions for injuries to property and accordingly entered judgment in favor of the defendants. We reverse and remand. http://www.tba.org/tba_files/TCA/midam.wpd
STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. SARAH OWENS, et al. IN THE MATTER OF S. L. O. Court:TCA Attorneys: James S. Haywood, Jr., Brownsville, For Appellants, Frank A. Maddox and Burnett Maddox Paul G. Summers, Attorney General and Reporter, Dianne Stamey Dycus, Deputy Attorney General, Nashville, for Appellee, Tennessee Department of Children's Services Judge: CRAWFORD First Paragraph: Petitioners filed a petition to intervene and for temporary custody in a dependent and neglect proceeding filed against the adoptive parents of the subject child. Pursuant to a later filed petition to terminate the parental rights of the adoptive parents, the juvenile court entered an order terminating the parental rights. The court then ruled that the petition to intervene and temporary custody was moot on the basis that juvenile court lacked jurisdiction over the dispute because of the previous order terminating the parental rights of the child's adoptive parents and granting guardianship of the child to the state. The petitioners appealed to the circuit court for a trial de novo, and the circuit court subsequently dismissed the appeal for lack of jurisdiction. Petitioners appeal. We affirm the circuit court's finding that it lacked jurisdiction to hear the appeal but amend the order of the trial court to transfer the case to the Court of Appeals rather than dismissal. http://www.tba.org/tba_files/TCA/slo.wpd
J. MARK SMITH v. STATE OF TENNESSEE Court:TCA Attorneys: Farrell A. Levy, Knoxville, Tennessee, for the appellant, J. Mark Smith. Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General and Michael B. Leftwich, Assistant Attorney General, for the appellee, State of Tennessee. Judge: FARMER First Paragraph: The plaintiff in this case filed a complaint with the Tennessee Claims Commission pursuant to Tenn. Code Ann. S 9-8-307. The claim alleged negligence on the part of a state trooper at an accident scene on a state highway. The Claims Commission determined that it did not have jurisdiction over the claim and accordingly awarded summary judgment to the State. We reverse. http://www.tba.org/tba_files/TCA/smithjm.wpd
JEREMIE CHURCHILL SPARROW v. JOHN GREGORY SPARROW Court:TCA Attorneys: Larry Rice, Laura D. Rogers, Memphis, TN; James F. Butler, Jackson, TN, for Appellant C. Timothy Crocker, Michael A. Carter, Milan, TN, for Appellee Judge: HIGHERS First Paragraph: This is a child support case. Although Mother received $4000 a month in rehabilitative alimony, the trial court set her child support obligation at nothing. Because the trial court did not fully set out its reasoning for this deviation from the Child Support Guidelines as required by statute, we reverse and remand. http://www.tba.org/tba_files/TCA/sparrow.wpd
STATE OF TENNESSEE v. CHESTER FLOYD COLE Court:TCCA Attorneys: Didi Christie, Brownsville, Tennessee (on appeal), and George Morton Googe, District Public Defender, and Stephen P. Spracher, Assistant Public Defender (at trial and on appeal), for the appellant, Chester Floyd Cole. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his conviction and sentence for rape of a child alleging insufficient evidence and excessive punishment. The trial court failed to apply pre-July 1995 sentencing guidelines for this April 1995 crime, and the trial court erred in applying one enhancement factor. After careful review, we affirm the conviction and remand for a new sentence. http://www.tba.org/tba_files/TCCA/colecf.wpd
STATE OF TENNESSEE v. DANNY RAY HOLLIDAY Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee, and George Morton Googe and Jeffrey Mueller, Jackson, Tennessee, for the Appellant, Danny Ray Holliday. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Danny Ray Holliday appeals from his Madison County Criminal Court convictions of assault and unlawful carrying or possession of a weapon with the intent to employ it in the commission of an offense. See Tenn. Code Ann. SS 39-13-101 (1997) (assault); 39-17-1307 (1997) (unlawful carrying or possession). He seeks relief on claims that the jury reached inconsistent verdicts and that the evidence does not sufficiently support his convictions. Because we are unconvinced of any infirmity in his convictions, we affirm. http://www.tba.org/tba_files/TCCA/holliday.wpd
STEVEN D. KING v. STATE OF TENNESSEE Court:TCCA Attorneys: Addie M. Burks, Memphis, Tennessee, for the appellant, Steven D. King. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alonda Horne Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Steven D. King, appeals the denial of his petition for post-conviction relief from his convictions of felony murder, especially aggravated kidnapping, and especially aggravated robbery. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/kings.wpd
ERIC D. WALLACE v. WARDEN, JAMES M. DUKES Court:TCCA Attorneys: Eric D. Wallace, Henning, Tennessee, Pro Se . Paul G. Summers, Attorney General and Reporter, and Kim R. Helper, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: In 1995, petitioner was convicted of first degree murder and attempted first degree murder and sentenced to consecutive sentences of life and fifteen years, respectively. Petitioner now files for habeas corpus relief, alleging he was convicted based on defective indictments. The trial court summarily dismissed petitioner's claim. We affirm the trial court's dismissal. http://www.tba.org/tba_files/TCCA/wallaceed.wpd
CHARJORAY P. WEIR v. STATE OF TENNESSEE Corrected Opinion Court:TCCA Attorneys: Brody N. Kane, Lebanon, Tennessee, for the appellant, Charjoray P. Weir. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Robert Hibbett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner was indicted for first degree murder. Pursuant to a plea agreement, he pled guilty to second degree murder, and received a sentence of fifteen years to serve in the Tennessee Department of Correction. The Petitioner then filed a petition for post-conviction relief, alleging that he was denied effective assistance of counsel resulting in an unknowing and involuntary guilty plea. The trial court dismissed the petition based on its untimely filing. However, our Court reversed that finding. The Petitioner filed an amended petition, and following an evidentiary hearing, the trial court denied the request for post-conviction relief. The Petitioner now appeals, arguing that the trial court erred by denying him post-conviction relief. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/weircp2.wpd
STATE OF TENNESSEE v. PHILIP R. WORKMAN Court:TCCA Attorneys: John W. Pierotti and Robert L. Hutton, Memphis, Tennessee, for the appellant, Philip R. Workman. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Joseph F. Whalen, Assistant Attorney General; William L. Gibbons, District Attorney General; and John W. Campbell and Jerry R. Kitchen, Assistant District Attorneys General, for the appellee, State of Tennessee. W. Mark Ward, Assistant Shelby County Public Defender; and Steven J. Mulroy, Memphis, Tennessee, for the Amicus Curiae, Tennessee Association of Criminal Defense Lawyers. Judge: RILEY First Paragraph: Petitioner, who received the death penalty at his original trial in 1982, now appeals the trial court's denial of his petition for writ of error coram nobis. On appeal, he contends the trial court should have granted relief based upon the recantation testimony of an alleged eyewitness and a newly discovered post-mortem x-ray of the victim. He further contends the trial court erred in prohibiting the testimony of an original trial juror who would testify that the recantation testimony and the newly discovered evidence would have affected the juror's verdict in the original trial. We conclude that the trial court's order reflects varying and sometimes inappropriate standards of review for coram nobis proceedings; nevertheless, the actual findings by the trial court are sufficient for this court to conclude that the trial court found no reasonable probability that the new evidence would have affected the jury's verdict. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/workman.wpd

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