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Today's Opinions: August 10, 2005
Volume 11 — Number 152
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.
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
06 New Opinion(s) from the Tennessee Court of Appeals
05 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


THERESA ANN WALTON v. STEVEN RAY WALTON 

Court: TCA

Attorneys:

Charles M. Cary, Bolivar, Tennessee, for the appellant, Steven Ray Walton. 

T. Tarry Beasley, II, Memphis, Tennessee, for the appellee, Theresa Ann Walton.

Judge: KIRBY

This is an appeal of a modification of alimony. The parties were divorced in February 2003. Inthe decree, the trial court awarded the wife rehabilitative alimony for eighteen months, but reserved jurisdiction to evaluate and review the award at the end of the eighteen-month periodbased on competent medical proof, noting that the wife was expected to pursue disability benefits during that time. During the interim, the wife‰s second application for Social Securitydisability benefits was denied on the grounds that she had not worked long enough to qualify for such benefits. Over a year after entry of the divorce decree, the wife filed a motion for the trialcourt to review the alimony award. The trial court conducted a hearing and the wife entered into evidence medical proof that she could not be rehabilitated. The trial court did not require thewife to show a material change in circumstances, explaining that it had mistakenly classified the original award as being ‹rehabilitative.Š Therefore, based on the additional proof, the trial courtreduced the monthly amount and designated the award as alimony in futuro. The husband now appeals, arguing that the wife was required to show a substantial and material change incircumstances to warrant a modification of the original rehabilitative alimony award. We affirm, finding that the trial court retained jurisdiction to hear the medical proof and did not err inchanging the award to alimony in futuro. 

http://www.tba.org/tba_files/TCA/2005/waltont81005.pdf

IN RE D.M.S., G.H.S., AND T.M.S

Court: TCA

Attorneys:

Thomas H. Miller and Dennis Nordhoff, Franklin, Tennessee, for the appellants, J.A.S. andJ.M.L

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Juan G.Villasenor and William Arthur Tillner, Assistant Attorney Generals, for the appellee, State of Tennessee.

Nick Perenich, Nashville, Tennessee, Guardian Ad Litem. 

Judge: CAIN

Mother appeals the Davidson County Juvenile Court‰s Order Terminating her parental rights tothree children, T.M.S., and D.M.S. and G.H.S. Father of D.M.S. challenges the trial court‰s termination of his parental rights. We affirm the decision of the trial court in all respects. 

http://www.tba.org/tba_files/TCA/2005/dms81005.pdf

LEIGHANN M. GULLETT v. MICHAEL J. HOPKINS

Court: TCA

Attorneys:

Randall W. Morrison, Tullahoma, Tennessee, for the appellant, Leighann M. Gullett. 

Timothy Scott Priest, Winchester, Tennessee, for the appellee, Michael J. Hopkins. 

Judge: CAIN

This is a post-divorce change of custody proceeding wherein the trial court found no substantialchange of circumstances and denied the Petition. The judgment of the trial court is affirmed. 

http://www.tba.org/tba_files/TCA/2005/gullettl81005.pdf

IN THE MATTER OF: J.L. 

Court: TCA

Attorneys:

Charles R. Bobbitt, Jr., Hendersonville, Tennessee, for the appellant, C.L. 

Paul G. Summers, Attorney General and Reporter; and Amy T. Master, Assistant AttorneyGeneral, for the appellee, State of Tennessee. 

Judge: CLEMENT

Mother appeals the termination of her parental rights to her child, J.L. The trial court terminatedthe mother‰s parental rights on the grounds of abandonment, persistence of conditions, and substantial noncompliance with the permanency plan. The trial court also found the terminationof the mother‰s parental rights was in the child‰s best interest. We affirm. 

http://www.tba.org/tba_files/TCA/2005/jl81005.pdf

LEE PITTMAN v. WILLIAMSON COUNTY 

Court: TCA

Attorneys:

Phillip Leon Davidson, Nashville, Tennessee, for the appellant, Lee Pittman. 

Lisa Carson and Melanie Dillender, Franklin, Tennessee, for the appellee, Williamson County. 

Judge: CAIN

This appeal comes from the trial court‰s dismissal of the plaintiff‰s governmental tort liabilityclaim and its denial of the plaintiff‰s Motion to Alter or Amend based on newly discovered evidence. We affirm the trial court in all respects. 

http://www.tba.org/tba_files/TCA/2005/pittmanl81005.pdf

AMOS E. QUALLS v. HENRIETTA J. Q. KLUTTS, As Executrix of Estate of Henry Atlas QuallsIN RE: THE ESTATE OF HENRY ATLAS QUALLS 

Court: TCA

Attorneys:

Amos E. Qualls, Fayettville, TN, pro se 

Landis Turner, Hohenwald, TN, for Appellee 

Judge: HIGHERS

The pro se Appellant has asked this Court to review the lower court‰s denial of his petitioncontesting the manner in which the executrix administered the estate. Specifically, the Appellant seeks certain personal property from his father‰s estate he argues the Appellee, his sister, isunlawfully withholding as executrix. The Appellant filed a statement of the evidence with this Court in lieu of filing transcripts of the testimony. After the Appellee objected to the statementof the evidence, the trial court ruled that the Appellant‰s statement of the evidence was inaccurate or incomplete. Without a sufficient record, we cannot adequately review the trialcourt‰s decision to dismiss the Appellant‰s petition. We affirm

http://www.tba.org/tba_files/TCA/2005/quallsh81105.pdf

LAVELY BROWN V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Randall E. Reagan (at trial and on appeal), Knoxville, Tennessee, and Harold D. Balcom, Jr., Kingston, Tennessee (at trial) for the appellant, Lavely Brown. 

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the appellee, State of Tennessee. 

Judge: WEDEMEYER

The Petitioner, Lavely Brown, was convicted of first degree murder, armed robbery, and aggravated kidnapping, and the trial court sentenced him, as a Range II offender, to life imprisonment for the murder conviction, and two concurrent sentences of forty years for the armed robbery and aggravated kidnapping convictions. On appeal, this Court affirmed the Petitioner‰s convictions and sentences. The Petitioner filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. On appeal, the Petitioner contends the post-conviction court erred when it dismissed his petition because: (1) the State withheld exculpatory information from him; (2) the State committed prosecutorial misconduct in its closing arguments; (3) the trial court conducted an improper ex parte conference with an appellate court judge; (4) the trial court improperly instructed the jury; and (5) he received ineffective assistance counsel. After thoroughly reviewing the record and the applicable law, we conclude that there exists no reversible error in the judgment of the post-conviction court. 

http://www.tba.org/tba_files/TCCA/2005/brownl81005.pdf

TIMOTHY DEWAYNE GARDNER v. STATE OF TENNESSEE 

Court: TCCA

Attorneys:

Ann M. Kroeger, Springfield, Tennessee, for the appellant, Timothy Dewayne Gardner. 

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee. 

Judge: OGLE

The petitioner, Timothy Dewayne Gardner, was convicted by a jury in the Robertson County Circuit Court of possessing over 300 grams of cocaine with intent to sell. The petitioner received a sentence of seventeen years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed for post-conviction relief, alleging that he received ineffective assistance of counsel. The post-conviction court denied the petition, and the petitioner now appeals. 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/2005/gardnert81005.pdf

STATE OF TENNESSEE v. MICHAEL E. RAINES 

Court: TCCA

Attorneys:

James P. McNamara, Nashville, Tennessee, for the appellant, Michael E. Raines. 

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Amy H. Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee. 

Judge: TIPTON

The defendant, Michael E. Raines, pled guilty in the Davidson County Criminal Court to attempt to commit second degree murder, a Class B felony. Pursuant to the plea agreement, the trial court sentenced the defendant as a Range I, standard offender to eight years with the trial court to determine the manner of service of the sentence. After a sentencing hearing, the trial court ordered that the defendant serve his sentence in confinement. The defendant appeals, claiming that he should have received alternative sentencing. We affirm the judgment of the trial court. 

http://www.tba.org/tba_files/TCCA/2005/rainesm81005.pdf

PATRICK S. RILEY v. STATE OF TENNESSEE 

Court: TCCA

Attorneys:

Patrick S. Riley, Appellant, Pro Se. 

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the Appellee, State of Tennessee. 

Judge: WITT

On May 24, 2004, the petitioner, Patrick S. Riley, filed a petition for post-conviction relief that challenged his January 11, 2002 conviction of aggravated burglary. The post-conviction court dismissed the petition as being barred by the statute of limitations set forth in Tennessee Code Annotated section 40-30-102(a) (2003). The petitioner now appeals. We affirm the dismissal of the petition. 

http://www.tba.org/tba_files/TCCA/2005/rileyp81005.pdf

STATE OF TENNESSEE v. SAMUEL EUGENE WEBSTER 

Court: TCCA

Attorneys:

C. LeAnn Smith, Attorney, Nashville, Tennessee, for the appellant, Samuel Eugene Webster. 

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and James Todd, Assistant District Attorney General, for the appellee, the State of Tennessee. 

Judge: WOODALL

Defendant, Samuel Eugene Webster, was charged with aggravated kidnapping and aggravated rape. Pursuant to a negotiated plea agreement, he pled guilty to simple rape, a Class B felony, with a sentence of eight years and the manner of service to be decided by the trial court following a sentencing hearing. The charge of aggravated kidnapping was dismissed. Following a sentencing hearing, he was sentenced to serve eight years in the Department of Correction. On appeal, Defendant argues that the trial court erred in denying his request for alternative sentencing. After a thorough review of the record, we affirm the judgment of the trial court. 

http://www.tba.org/tba_files/TCCA/2005/websters81005.pdf

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