SUPREME COURT OPINIONS

State of Tennessee v. Anderson Toliver
E2001-00584-SC-R11-CD
Authoring Judge: Chief Justice Frank F. Drowota, III
Trial Court Judge: Judge Stephen M. Bevil

The defendant was convicted of two counts of aggravated child abuse. The trial court imposed a
nine-year sentence for each conviction and ordered concurrent service of these sentences. The
defendant appealed, raising numerous issues, but the Court of Criminal Appeals affirmed the
convictions and sentences. We granted the defendant’s application for permission to appeal and,
after thoroughly reviewing the record, conclude that the trial court abused its discretion in
consolidating the two indictments for trial. Furthermore, we have concluded that the erroneous
consolidation of the indictments, in conjunction with the erroneous admission of evidence of
other crimes, wrongs, or acts, affirmatively appears to have affected the verdict of the jury.
Accordingly, the judgments of the trial court and Court of Criminal Appeals are reversed, and
these cases are remanded for new trials at which evidence of other crimes, wrongs, or acts
committed by the defendant against the victim or others shall not be admitted unless relevant to a
material issue. Tenn. R. App. P. 11; Reversed and Remanded for New Trials
 

State of Tennessee v. Anderson Toliver - Dissenting
E2001-00584-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge Stephen M. Bevil

The majority has concluded that the trial court committed reversible error by consolidating
the offenses of March 1, 1998 and April 9, 1998, and by admitting evidence of prior abuse
committed by the defendant, Anderson Toliver. In my view, however, the trial court did not abuse
its discretion by consolidating the two offenses and the admission of prior acts of abuse did not affect the jury’s verdict. Accordingly, I dissent and would affirm the judgment of the Court of Criminal Appeals.

State of Tennessee v. Anderson Toliver - Concurring
E2001-00584-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Stephen M. Bevil

Although I concur in the analysis and holding of the majority, I write to address an issue of concern: whether in today’s society a parent’s right to corporally chastise a refractory child survives, and, if so, how does one reconcile that right with the child abuse statutes as currently written and interpreted. It is my intention by this concurring opinion to raise the level of discussion and to provide, perhaps, a measure of guidance for the trial court on remand.

Michael Binkley v. Rodney Medling
M2001-01687-SC-R11-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Allen W. Wallace
The issue in this appeal is whether the defendant's motion to alter or amend filed thirty-three days after entry of judgment was timely under Tennessee Rule of Civil Procedure 58 and therefore sufficient to toll commencement of the thirty-day period for filing a notice of appeal. The Court of Appeals dismissed the defendant's appeal as untimely. We agree with the intermediate court's conclusion that the defendant has failed to carry his burden of proving that the motion to alter or amend was timely filed. We therefore affirm the judgment of the Court of Appeals, dismissing the appeal.

State of Tennessee v. Gerald E. Saylor
E2001-00604-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Lynn W. Brown

State of Tennessee v. Gerald E. Saylor
E2001-00604-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Lynn W. Brown

State v. Preston Carter
W2000-02204-SC-DDT-DD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Jon Kerry Blackwood

State v. Preston Carter
W2000-02204-SC-DDT-DD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Jon Kerry Blackwood

State of Tennessee v. Jeremy White
W2001-02580-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge Arthur T. Bennett

We granted review to determine whether the Court of Criminal Appeals erred in concluding that defense counsel's dual roles as part-time assistant district attorney and defense counsel in this case created a conflict of interest requiring removal of counsel. The trial court found that defense counsel must be disqualified under the facts of this case because a "perceived" conflict of interest existed that could not be waived by the defendant. The Court of Criminal Appeals affirmed on the ground that an actual conflict of interest existed. After reviewing the record, we conclude that counsel's dual roles as prosecutor and defense counsel created an actual conflict of interest that required disqualification. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

State of Tennessee v. Tommy G. Benham
M2000-02357-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Tennessee Code Annotated section 40-35-202(a) requires that the State notify the defendant of its intent to seek enhanced punishment. We accepted this cause in order to decide whether the State complied with this statutory mandate. The trial court ruled that the State's response to the defendant's discovery request met the statutory requirement and therefore, permitted the State to seek enhanced punishment outside of Range I. The Court of Criminal Appeals affirmed. On consideration, we conclude that the State did not meet the notice requirement. Accordingly, we reverse the Court of Criminal Appeals and remand this case to the trial court for re-sentencing.

Carolyn Stovall v. Lois E. Clarke, M.D., et al.
M2001-00810-SC-R11-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge Russell Heldman

We granted review in this medical malpractice case to address whether the plaintiff, Carolyn Stovall, established a genuine issue of material fact as to the recognized standard of professional practice in the community in which the defendants, Dr. Lois E. Clarke and Dr. Robert McCain, practiced or in a similar community. The trial court granted summary judgment to the defendants and later denied the plaintiff's motion to alter or amend the summary judgments. On appeal, the Court of Appeals reversed the grant of summary judgment to Dr. Clarke but affirmed the grant of summary judgment to Dr. McCain. After reviewing the record and the applicable authority, we hold that the Court of Appeals correctly determined that the trial court erred in granting summary judgment to Dr. Clarke. We further conclude that the trial court erred in denying the plaintiff's motion to alter or amend the grant of summary judgment to Dr. McCain. Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings.

Tony Willis v. Dept of Correction
M2000-01397-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Ellen Hobbs Lyle
The issue in this case is the proper standard to be applied to motions to dismiss petitions for common-law writ of certiorari in prison disciplinary proceedings. This appeal involves a prisoner who was charged with and convicted of the disciplinary violation of attempted escape. The prisoner filed a petition for a common-law writ of certiorari in the Chancery Court for Davidson County challenging the action of the disciplinary board arguing that it was illegal, arbitrary, and excessively punitive. The chancery court granted the Department of Correction's motion to dismiss for failure to state a claim because the process provided to the petitioner was commensurate with the sanctions imposed upon him, and therefore, there was no violation or deprivation of due process. The majority of the Court of Appeals affirmed the trial court's judgment, with Judge Koch dissenting. We granted Petitioner's request for permission to appeal, and after conducting our own de novo review of the record, we hold that the petitioner did state a claim for relief under the common-law writ of certiorari because his petition alleged that the disciplinary board failed to follow its own disciplinary guidelines and that the petitioner was substantially prejudiced thereby. At the same time, we agree with the Department of Correction that the petitioner did not state a claim for relief under the due process clause of the United States Constitution or the Tennessee Constitution. Accordingly, the decision of the Court of Appeals is reversed in part, affirmed in part, and the case is remanded to the trial court for further proceedings.

Mary Guess v. Sharp Manufacturing Co. of America,
W2002-00818-WC-R3-CV
Trial Court Judge: Floyd Peete, Jr.

William Perry v. Ricki Perry
W2001-01350-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Martha B. Brasfield
We granted this appeal to determine the correct standard to be applied in modifying a temporary, open-ended award of rehabilitative alimony. We hold that a substantial and material change in circumstances must be shown in order to extend, or otherwise modify, such an award. Therefore, we reverse the judgment of the Court of Appeals, and we remand the case to the trial court for further proceedings consistent with this opinion.

Ray Edwards v. Hallsdale-Powell Utility District
E2002-00395-SC-S09-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Wheeler A. Rosenbalm
The plaintiffs brought suit against Hallsdale-Powell Utility District for nuisance and inverse condemnation after their homes were flooded with raw sewage on two occasions. The trial court granted partial summary judgment to the utility district on the plaintiffs' claim for inverse condemnation, holding that no taking of their properties had occurred. The Court of Appeals vacated the trial court's grant of partial summary judgment. The intermediate appellate court held that the plaintiffs had presented sufficient facts to overcome summary judgment by showing that the sewage backup into their homes had caused a permanent loss of market value. We hold that a governmental defendant must perform a purposeful or intentional act for a taking to exist. Because such an act was not shown in the present case, we reverse the judgment of the Court of Appeals and remand the case to the trial court for further proceedings in accordance with this opinion.

Mario Valencia, Next of Kin and Heir at Law v. Freeland & Lemm Construction Company
W2000-01700-SC-R11-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Karen R. Williams

The plaintiff, as next friend of Francisco Valencia, filed two causes of action against Valencia's employer, the defendant, Freeland and Lemm Construction Company. The first is an action in tort alleging that the employer acted with "substantial certainty" in causing Valencia's death. The other action is a claim for benefits under the Workers' Compensation Law. The trial court dismissed the tort claims. On appeal, the Court of Appeals affirmed the trial court's ruling, holding that in the absence of proof that the employer acted with the "actual intent" to injure Valencia, the plaintiff's exclusive remedy lay within the provisions of the workers' compensation statute. We granted review in order to determine whether the judicially-created exception to the exclusive remedy requirement of workers' compensation law, which requires "actual intent," should be broadly interpreted to include an employer's conduct that is "substantially certain" to cause injury or death. Under the exception as currently construed, the plaintiff cannot sustain a tort action against the employer unless he can prove the employer acted with "actual intent." Therefore, in the absence of an allegation of "actual intent," the plaintiff is limited to his workers' compensation remedies. It is this result that the plaintiff urges us to change. We must decline to interpret the exception as the plaintiff urges. Accordingly, the provisions of the workers' compensation statute are the exclusive remedy for employees to obtain relief from employers for injuries occurring in the course and scope of employment, unless "actual intent" to injure has been established.

State of Tennessee v. Jeffrey L. Marcum
W2000-02698-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

We granted the State permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to determine whether fellatio requires actual penetration. The defendant was indicted and convicted for rape of a child, aggravated sexual battery and incest. At the close of his trial on these indictments, the defendant requested an instruction on attempted rape of a child, which the trial court denied. On appeal to the Court of Criminal Appeals, the defendant contended that the victim's testimony supported an attempt instruction because a jury could interpret it to be evidence that the defendant did not actually engage in fellatio with the victim, thereby proving that he committed attempted rape and not rape. The appellate court agreed and held that the trial court's failure to instruct on attempted rape was reversible error. We find that fellatio does not require actual intrusion into the victim's mouth, and accordingly, we hold that the evidence did not support an attempt instruction. Therefore, we reinstate the defendant's conviction for rape of a child.

Health Cost Controls v. Ronald Gifford
W2001-02267-SC-R11-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: W. Michael Maloan
We granted this appeal to decide whether the Court of Appeals correctly held that the appellee, Health Cost Controls, Inc., was entitled to reimbursement for medical expenses on the basis that the appellant, Ronald Gifford, failed to establish that he had not been fully compensated, i.e., "made whole" for his damages. The trial court found that the appellant's insurance policy denied coverage for expenses arising from an injury for which a third party was responsible and granted summary judgment to Health Cost Controls. Although the Court of Appeals initially affirmed the trial court's judgment, this Court remanded for further consideration under York v. Sevier County Ambulance Authority, 8 S.W.3d 616 (Tenn. 1999), which had held that an insured must be made whole before an insurer is entitled to reimbursement. On remand, the Court of Appeals concluded that York was not applicable because the appellant failed to establish that he had not been made whole and again affirmed the trial court's grant of summary judgment to the appellee. After reviewing the record, however, we conclude that our decision in York requires that the appellant Gifford be given an opportunity to establish that he was not made whole and that if he establishes that he was not "made whole," then the appellee, Health Cost Controls, is not entitled to reimbursement. Accordingly, we reverse the Court of Appeals' judgment and remand to the trial court for further proceedings.

X2010-0000-XX-X00-XX
X2010-0000-XX-X00-XX
Trial Court Judge: Donald H. Allen

X2010-0000-XX-X00-XX
X2010-0000-XX-X00-XX
Trial Court Judge: Donald H. Allen

State of Tennessee v. Marcus J. Turco
W2001-01085-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge John P. Colton, Jr.

The parties have addressed several issues in this case, each of which concerns the trial court's authority to grant relief pursuant to Rule 35(b) of the Tennessee Rules of Criminal Procedure, which articulates the procedure for correcting or reducing a sentence. Only one, however is dispositive: whether the trial court can, after adjudicating guilt, imposing sentence, and entering judgment, grant judicial diversion as Rule 35(b) relief. This issue is one of first impression in this state. After careful examination of the record and due consideration of applicable authority, we conclude that there is no statutory authority for permitting judicial diversion after an adjudication of guilt or imposition of sentence. Therefore, judicial diversion was erroneously granted. Because our ruling on this issue is dispositive of this cause, we need not address other issues presented by the parties.

Dianna Boarman v. George Jaynes
E2001-01049-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Thomas R. Frierson, II
Dianna Boarman, the Clerk and Master for the Washington County Chancery Court, filed a complaint on September 30, 1998, pursuant to Tennessee Code Annotated section 8-20-101, et. seq., seeking a pay increase for the three chief deputy clerks working in her office. Boarman later filed a second and third complaint for fiscal years 1999-2000 and 2000-01. Defendant George Jaynes, the Washington County Executive, answered denying that salary increases were necessary to enable Boarman to properly and efficiently conduct the business of her office. Jaynes also filed a counterclaim seeking the elimination of one deputy clerk position in Boarman's office. Boarman's complaints were consolidated, and a hearing was conducted before Chancellor Thomas R. Frierson, II, sitting by interchange. The trial court approved salary increases for the three chief deputy clerks. It denied the defendant's counterclaim. The Court of Appeals affirmed the trial court's denial of the county executive's counterclaim, but reversed the trial court's judgment increasing the salaries of Boarman's three chief deputy clerks. For the reasons stated herein, we reverse that part of the decision of the Court of Appeals which reverses the trial court's judgment approving the position of deputy clerk and increase in compensation. We affirm the Court of Appeals' dismissal of defendant Jaynes counterclaim.

State v. Michael Evans
E1997-00325-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: E. Eugene Eblen
We granted this appeal primarily to clarify the procedure that governs when a trial court or the Court of Criminal Appeals determines that a criminal defendant was unilaterally deprived of the right to seek second-tier review pursuant to Tennessee Rule of Appellate Procedure 11. We conclude that Tennessee Supreme Court Rule 28, section (9)(D) has superseded the procedural framework of State v. Pinkston, 668 S.W.2d 676 (Tenn. Crim. App. 1984). However, the State has raised valid concerns about voids in the procedure, and as a result, we have filed contemporaneously with this opinion an order publishing for public comment a proposed amendment to Rule 28, section (9)(D). The amendment addresses the concerns raised by the State in this case, as well as other procedural issues likely to arise in the delayed appeal context. The Court solicits comments from all interested parties. Although the trial court's order granting a delayed appeal in this case contained inappropriate language purporting to "vacate[] and reinstate[]" the judgment of the Court of Criminal Appeals, the trial court otherwise substantially complied with the procedure set forth in Rule 28, Section (9)(D). Therefore, the defendant's delayed application for permission to appeal was properly filed in this Court. This Court granted the application, and after reviewing the record and considering the issues raised, we conclude that none of the assigned errors warrant reversal. Therefore, the judgment of the Court of Criminal Appeals is affirmed.

Jerry Lay v. Scott County Sheriff's Dept
E2002-01731-SC-R3-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Billy Joe White
The primary issue in this workers' compensation appeal is whether the attainment of maximum medical improvement is a necessary factor in determining whether there has been a meaningful return to work under Tennessee Code Annotated section 50-6-241. The trial court found that since the pre-injury employer returned the employee to work at a lower wage than his pre-injury wage, Section 50-6-241(a)(1) did not apply, and the trial court set the employee's permanent partial disability award based on 60% to the body as a whole, approximately 4.6 times the employee's 13% impairment rating. We reverse the trial court and find that where an employee has had a meaningful return to work for five months, resigns for reasons unrelated to his injury, and then returns to the same employer a year later at a lower wage, the employee may not take advantage of this statute by arguing that he has not had a meaningful return to work. Thus, Section 50-6-241(a)(1) applies to limit the employee's recovery to two and one-half times his impairment rating, and the employee's award is modified to 32.5% permanent partial disability to the body as a whole.

Kaila Williams Sanders, v. Tracie Traver, All Women's Care, Shelby Shivers, Maryville Anesthesiologists & Blount Memorial Hospital
E2001-02926-SC-R11-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: W. Dale Young
In this wrongful death case brought under the Governmental Tort Liability Act, we address the issue of whether Tennessee Rule of Civil Procedure 6.01, which provides the computation of time for statutes of limitations, is applicable to actions involving governmental entities. Having determined that the Tennessee Rules of Civil Procedure are applicable to actions involving governmental entities in Doyle v. Frost, 49 S.W.3d 853, 858 (Tenn. 2001), and finding that Rule 6.01 defines, rather than extends, the Governmental Tort Liability Act's statute of limitations, we hold that the Court of Appeals did not err in finding that Rule 6.01 applies to actions brought under the Governmental Tort Liability Act. Accordingly, we affirm the judgment of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.