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TBALink Opinion-Flash
March 2, 1998 -- Volume #4 -- Number #039
Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.
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PAGE G. STUART vs. STATE OF TENNESSEE DEPARTMENT OF SAFETY Court:TSC Attorneys: For Appellant: For Appellee: RICHARD MCGEE JOHN KNOX WALKUP JOHN E. RODGERS, SR. Attorney General and Reporter Nashville, TN MICHAEL E. MOORE Solicitor General GORDON W. SMITH Associate Solicitor General VICTOR S. JOHNSON, III District Attorney General JOHN C. ZIMMERMANN Assistant District Attorney General Nashville, TN Judge:BIRCH First Paragraph: During a wide-ranging investigation, law enforcement officers located and seized several items of property thought to be used in the conduct of an illegal drug enterprise. Criminal charges followed the several seizures, and Page Stuart, the appellant, pleaded guilty to offenses involving delivery and conspiracy to deliver large quantities of marijuana. The State thereafter instituted administrative proceedings under Tenn. Code Ann. S 53-11-201 et seq. (1991 & Supp. 1992) for the forfeiture of the property seized. Although Stuart challenged the forfeiture of some of the property, he was not successful, and both the Chancery Court and the Court of Appeals upheld the forfeiture. URL:http://www.tba.org/tba_files/TSC/stuartp_opn.WP6
ALLSTATE INSURANCE COMPANY
vs.
AUTO OWNERS INSURANCE COMPANY, INC.,
and RONALD K. MINK
Court:TCA
Attorneys:
BRIAN H. TRAMMELL OF KNOXVILLE FOR APPELLANT
LINDA J. HAMILTON MOWLES OF KNOXVILLE FOR APPELLEE AUTO OWNERS
INSURANCE COMPANY, INC.
Judge:Goddard
First Paragraph:
Allstate Insurance Company ("Allstate") appeals the dismissal of its
suit against Auto Owners Insurance Company ("Auto Owners") and Ronald
K. Mink by Chancellor McDonald, Knox County Chancery Court. The suit
was the result of Auto Owners' denial of coverage to Mr. Mink, which
forced Allstate to pay to its insured, Susan E. Smith, the sum of
$17,289.33, based on the judgment she received in the Circuit Court
action. Allstate sought recovery for this amount plus payment made to
Mrs. Smith under the medical coverage of $1712.60 and payment under
the property damage coverage of $2009.54.
URL:http://www.tba.org/tba_files/TCA/allstate_opn.WP6
WILLIAM JOSEPH BELLAMY
vs.
STATE OF TENNESSEE
Court:TCA
Attorneys:
JOHN W. CLEVELAND OF SWEETWATER FOR APPELLANT
JOHN KNOX WALKUP, Attorney General and Reporter, and DAVID T.
WHITEFIELD, Senior Counsel, Civil Rights and Claims Division,
Nashville, For Appellee
Judge:Goddard
First Paragraph:
William Joseph Bellamy appeals a summary judgment granted in the favor
of the State of Tennessee in his suit which, according to the notice
of claim filed with the Tennessee Claims Commission by his attorney.
URL:http://www.tba.org/tba_files/TCA/bellamyw_opn.WP6
RONNIE BRADFIELD
vs.
STEPHANIE GREEN COLE
Court:TCA
Attorneys:
RONNIE BRADFIELD a/k/a Paul Farnsworth, pro se
Whiteville, Tennessee
GERALD S. GREEN
Memphis, Tennessee
Attorney for Appellee
Judge:HIGHERS
First Paragraph:
Plaintiff-Appellant ("Plaintiff") brought an action in the trial court
for legal malpractice against his former attorney ("Defendant"). The
court granted summary judgment for Defendant, and Plaintiff has
appealed.
URL:http://www.tba.org/tba_files/TCA/bradfi2r_opn.WP6
JERRY RAY BROWN
vs.
PHILLIP L. DAVIDSON
Court:TCA
Judge:LILLARD
First Paragraph:
Upon consideration of the petition for rehearing of
Plaintiff/Appellant Jerry Ray Brown, the petition is denied.
URL:http://www.tba.org/tba_files/TCA/brownjer_pet.WP6
VICTOR D. BUNCH
vs.
LOUIS A. LLOYD
Court:TCA
Attorneys:
For Appellant For Appellee
ROBERT W. KNOLTON HARRY LILLARD
Kramer, Rayson, Leake, Oak Ridge, Tennessee
Rodgers & Morgan
Oak Ridge, Tennessee
Judge:Susano
First Paragraph:
The issues before us arise out of an award of discretionary costs.
Following the entry of an order of compromise and dismissal, the
settling plaintiff timely filed a motion for discretionary costs
pursuant to Rule 54.04(2), Tenn.R.Civ.P. The defendant opposed the
motion. The trial court awarded the plaintiff discretionary costs of
$794, and the defendant appealed.
URL:http://www.tba.org/tba_files/TCA/bunchvd_opn.WP6
MICHAEL EUGENE COPAS
vs.
JULIE MARIE COPAS
Court:TCA
Attorneys:
For Appellant For Appellee
RICHARD T. WALLACE DWIGHT E. STOKES
Ogle & Wallace, P.C. Galyon & Stokes
Sevierville, Tennessee Sevierville, Tennessee
Judge:Susano
First Paragraph:
This is a divorce case. However, the issues presented for our review
pertain solely to the jurisdiction of the trial court to hear and
determine an interstate child custody dispute under the Uniform Child
Custody Jurisdiction Act ("UCCJA"). The trial court held that it had
jurisdiction under the Tennessee version of the UCCJA to decide
custody and visitation issues pertaining to the parties' only child,
Carver Michael Copas ("Carver"). The child's mother, the defendant
Julie Marie Copas ("Mother"), appealed, arguing that the trial court
lacked jurisdiction under T.C.A. S 36-6-201, et seq., the Tennessee
version of the UCCJA, to address such custody and visitation issues.
Alternatively, Mother argues that the trial court erred in failing to
communicate with the Florida trial court where Mother had sought a
divorce and custody of Carver. She claims that the Tennessee court
was required by the provisions of T.C.A. S 36-6-207(c) to communicate
with the Florida court. We find Mother's first issue to be
dispositive of this appeal.
URL:http://www.tba.org/tba_files/TCA/copasme_opn.WP6
WILMA JEAN LAMPLEY
vs.
GORDON RAY LAMPLEY
Court:TCA
Judge:KOCH
First Paragraph:
I have taken the unusual step of preparing this separate opinion
because the assertions in Mr. Lampley's petition for rehearing require
some response. The petition states that this court's February 6, 1998
opinion "totally overlooked or refused to acknowledge" Ms. Lampley's
August 1996 mortgage application in which Ms. Lampley states that her
gross monthly income was $6,652. The petition also asserts that we
must treat this statement as a binding admission by Ms. Lampley
because of our decision in Patterson v. Patterson, App. No. 88-268 II,
1989 WL 5451 (Tenn. Ct. App. Jan. 27, 1989), perm. app. denied (Tenn.
May 1, 1989). Neither assertion is correct.
URL:http://www.tba.org/tba_files/TCA/lampleyw_con.WP6
GENE L. MILLER
vs.
TARA L. STURDIVANT, M.D.,
JACQUELINE CARUTHERS,
and DORIS ROSS
Court:TCA
Attorneys:
For Appellant For Appellees
GENE L. MILLER, Pro Se BRUCE A. ANDERSON
Powell, Tennessee Butler, Vines and Babb, P.L.L.C.
Knoxville, Tennessee
Judge:Susano
First Paragraph:
Gene L. Miller filed separate actions against Tara L. Sturdivant,
M.D., Jacqueline Caruthers, and Doris Ross, for alleged medical
malpractice arising out of treatment rendered to him at the Knox
County Health Department. The complaints were consolidated in
Division Three of the Knox County Circuit Court. The defendants filed
a joint motion for summary judgment which was supported by the
affidavit of the defendant Sturdivant. The affidavit negates
essential elements of the plaintiff's causes of action. The plaintiff
failed to file material of the nature, and in the form, contemplated
by Rule 56.06, Tenn.R.Civ.P. Since the facts properly before us show
that the defendants are "entitled to a judgment as a matter of law,"
it results that the summary judgment granted to the defendants by the
trial court must be affirmed at the plaintiff's costs. See Rule
56.04, Tenn.R.Civ.P. This case is remanded to the trial court for
collection of costs assessed below, pursuant to applicable law.
URL:http://www.tba.org/tba_files/TCA/millegl_opn.WP6
PATRICIA ANNE PEHLMAN
vs.
GREGORY LAWRENCE
PEHLMAN
Court:TCA
Attorneys:
Robert L. Crossley, Knoxville, for Appellant.
Wanda G. Sobieski, Knoxville, for Intervenor.
Judge:INMAN
First Paragraph:
At the outset we think it well to observe what this case is not about:
the enforcement of a lien for attorney fees.
URL:http://www.tba.org/tba_files/TCA/pehlman_ca3.WP6
JAMES N. RAMSEY, District
Attorney General, Seventh
Judicial District
vs.
TOWN OF OLIVER SPRINGS, et al
Court:TCA
Attorneys:
For Appellant For Appellees
JOHN KNOX WALKUP JAMES M. WEBSTER
Attorney General & Reporter Oak Ridge, Tennessee
Nashville, Tennessee
MICHAEL E. MOORE
Solicitor General
Nashville, Tennessee
GORDON W. SMITH
Associate Solicitor General
Nashville, Tennessee
Judge:Susano
First Paragraph:
This is a declaratory judgment action brought by James N. Ramsey
("Ramsey"), District Attorney General for Anderson County (Seventh
Judicial District). He sued the Town of Oliver Springs ("the Town")
and a number of its officials, seeking a declaration that the Town's
blanket policy and practice of prosecuting Anderson County offenses in
Roane County is unlawful. This controversy stems from the fact that,
while portions of the Town are located in three counties -- Anderson,
Roane, and Morgan -- the Town's City Court is physically located in
Roane County. Based on the parties' stipulation of facts, the trial
court concluded that the Town could continue to prosecute state cases
arising in Anderson County, in the City Court physically located in
Roane County, provided that it first obtains a waiver of the right to
venue from each defendant. Ramsey's appeal followed.
URL:http://www.tba.org/tba_files/TCA/ramseyjn_opn.WP6
JOHN WAYNE SLATE, SR
vs.
STATE OF TENNESSEE, et al.
Court:TCA
Attorneys:
JOHN WAYNE SLATE, SR., Pro Se
JOHN KNOX WALKUP, Attorney General and Reporter, and DAVID T.
WHITEFIELD, Senior Counsel, Civil Rights and Claims Division,
Nashville, For Appellees
Judge:Goddard
First Paragraph:
John Wayne Slate, Sr., who is incarcerated in a penal institution of
this State, appearing pro se, appeals a judgment of the Chancery Court
for Sevier County, which dismissed his complaint (which is styled a
motion) seeking disbarment of Circuit Judge Ben Hooper and Attorney
General Al Schmutzer, Jr.
URL:http://www.tba.org/tba_files/TCA/slatej_opn.WP6
DEBRA A. TIPTON
vs.
JOHN W. HARRIS, JR.
Court:TCA
Attorneys:
John W. Harris, Jr., Pro Se William Bryan Penn of Memphis
For Appellee
Judge:CRAWFORD
First Paragraph:
This case involves the issuance of an "Agreed Order of Protection"
pursuant to T.C.A. S 36-3-605 (1996). Respondent-appellant John W.
Harris, Jr. appeals the issuance of the order, asserting (1) that the
court did not have subject matter jurisdiction, (2) that he did not
agree to the issuance of the order, and (3) that the order was
improperly granted because he was not afforded an opportunity to be
heard.
URL:http://www.tba.org/tba_files/TCA/tiptonde_opn.WP6
DAVID LEE WALKER
vs.
EXCHANGE INSURANCE
COMPANY and CHATTANOOGA
INSURANCE AGENCY, INC.
Court:TCA
Attorneys:
R. Dee Hobbs, Chattanooga, for Appellant.
David P. Hawley, Chattanooga, for Chattanooga Insurance Agency,
Appellee.
W. Gerald Tidwell, Jr., Chattanooga, for Exchange Insurance Company,
Appellee.
Judge:INMAN
First Paragraph:
This action to recover on a policy of fire insurance was resisted on
the ground that the policy was void ab initio because the plaintiff
denied in his application that a prior policy had been canceled, and
because the damaged property had been vacant for more than 60 days in
violation of the policy.
URL:http://www.tba.org/tba_files/TCA/walker_ca3.WP6
HENRY WITT and wife
MARGARET WITT
vs.
TENNESSEE FARMERS MUTUAL
INSURANCE COMPANY
Court:TCA
Attorneys:
For Appellant For Appellees
DOUGLAS M. CAMPBELL RICHARD A. FISHER
PAUL CAMPBELL, III JAMES F. LOGAN, JR.
Campbell & Campbell Logan, Thompson, Miller, Bilbo,
Chattanooga, Tennessee Thompson and Fisher, P.C.
Cleveland, Tennessee
BERT H. BATES
Bates, Sellers & Robinson
Cleveland, Tennessee
Judge:Susano
First Paragraph:
The plaintiffs, Henry Witt and wife, Margaret Witt ("the Witts"), seek
to domesticate a foreign judgment against Tennessee Farmers Mutual
Insurance Company ("Tennessee Farmers"), pursuant to the provisions of
the Uniform Enforcement of Foreign Judgments Act, T.C.A. S 26-6-101,
et seq. The judgment sought to be domesticated is based on the
uninsured motorist coverage of an automobile insurance policy issued
by Tennessee Farmers.
URL:http://www.tba.org/tba_files/TCA/witth_opn.WP6
STATE OF TENNESSEE
vs.
SAMUEL D. BRADEN
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
HOWELL G. CLEMENTS (trial & appeal) JOHN KNOX WALKUP
JANE M. STAHL (appeal) Attorney General & Reporter
Attorneys at Law
801 Pine St. DARYL J. BRAND
Chattanooga, TN 37401-1749 Assistant Attorney General
Criminal Justice Division
PAUL CROSS (trial) 450 James Robertson Parkway
CATHERINE CLARK (trial) Nashville, TN 37243-0493
P.O. Box 99
Monteagle, TN 37356 J. MICHAEL TAYLOR
District Attorney General
THOMAS D. HEMBREE
Asst. District Atty General
2d Floor, Lawyers Bldg.
Jasper, TN 37347
Judge:WITT
First Paragraph:
Samuel D. Braden appeals his conviction of the voluntary manslaughter
of his wife. Braden received his conviction following a jury trial in
the Grundy County Circuit Court and was sentenced to serve six years
in the Department of Correction.
URL:http://www.tba.org/tba_files/TCCA/bradensd_opn.WP6
STATE OF TENNESSEE
vs.
SCOTTY S. DAVENPORT
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Jeffrey A. DeVasher Charles W. Burson
Assistant Public Defender Attorney General and Reporter
(on appeal)
Lisa A. Naylor
James P. McNamara Assistant Attorney General
Assistant Public Defender 450 James Robertson Parkway
(on appeal) Nashville, TN 37243-0493
David M. Siegel Nick Bailey
Assistant Public Defender Assistant District Attorney General
(at trial)
Isabel Maumus
1202 Stahlman Building Assistant District Attorney General
Union Street Washington Square, Suite 500
Nashville, TN 37201 222 2nd Ave., North
Nashville, TN 37201-1649
Judge:WADE
First Paragraph:
The defendant, Scotty S. Davenport, appeals from his conviction of
aggravated robbery. The trial court imposed a Range I sentence of
eight years.
URL:http://www.tba.org/tba_files/TCCA/davenpts_opn.WP6
MAURICE DONALDSON
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant For the Appellee
Henry R. Allison, III John Knox Walkup
500 Church Street Attorney General & Reporter
Fifth Floor
Nashville, TN. 37219 Daryl J. Brand
Assistant Attorney General
2nd Floor Cordell Hull Building
425 Fifth Avenue North
Nashville, TN. 37243-0493
Victor S. Johnson, III
District Attorney General
Thomas B. Thurman
Deputy District Attorney General
Washington Square, Ste 500
222 Second Avenue North
Nashville, TN. 37201-1649
Judge:BARKER
First Paragraph:
The appellant, Maurice Donaldson, appeals the Davidson County Criminal
Court's denial of his motion to reopen his post-conviction petition.
He treats this appeal as one of right and he asks this Court to remand
his case to the trial court for an evidentiary hearing. We find that
the trial court did not abuse its discretion in denying appellant's
motion to reopen and we dismiss the appeal pursuant to Rule 20 of the
Tennessee Court of Criminal Appeals.
URL:http://www.tba.org/tba_files/TCCA/dnldsnmd_opn.WP6
GARY T. DOTSON
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID A. DOYLE JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
117 E. Main St.
Gallatin, TN 37066 ELIZABETH B. MARNEY
Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
LAWRENCE RAY WHITLEY
District Attorney General
DEE GAY
Asst. District Attorney General
113 W. Main St.
Gallatin, TN 37066
Judge:PEAY
First Paragraph:
The petitioner was convicted of first-degree murder and employing a
firearm during the commission of a felony. These convictions were
affirmed on direct appeal. State v. Gary Thomas Dotson, No.
89-262-III, Sumner County (Tenn. Crim. App. filed Aug. 3, 1990, at
Nashville). He is serving a life sentence plus five years for these
offenses. In December 1992, he filed for post-conviction relief
alleging that his lawyers were ineffective at both his trial and on
direct appeal. The court below denied relief, which he now appeals.
He further alleges that the post-conviction court erred when it denied
his motion for forensic and psychological evaluations. Upon our
review of both the record below and the trial record, we affirm.
URL:http://www.tba.org/tba_files/TCCA/dotsongt_opn.WP6
STATE OF TENNESSEE
vs.
BRIAN KEITH HARDING
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN HENDERSON JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
ELAINE B. BEELER KAREN M. YACUZZO
Asst. Public Defender Asst. Attorney General
P.O. Box 68 450 James Robertson Pkwy.
Franklin, TN 37065 Nashville, TN 37243-0493
JOSEPH D. BAUGH
District Attorney General
RONALD DAVIS
Asst. District Attorney General
P.O. Box 937
Franklin, TN 37065
Judge:PEAY
First Paragraph:
The defendant was indicted on several charges stemming from three
separate incidents. He was charged with two counts of aggravated
burglary, one count of theft of property valued at less than one
thousand dollars ($1000), and two counts of theft of property valued
at less than five hundred dollars ($500). He ultimately pled guilty
to two counts of aggravated burglary and one count of theft of
property valued at less than five hundred dollars ($500). As part of
the plea bargain, he agreed to three year sentences for each of the
aggravated burglaries and a thirty day sentence for the theft; all of
which were to run concurrently. A sentencing hearing was held to
determine the manner in which the defendant should serve his sentence.
The trial court denied his request for probation and ordered him to
serve his sentences in the Tennessee Department of Correction.
URL:http://www.tba.org/tba_files/TCCA/hardingb_opn.WP6
STATE OF TENNESSEE
vs.
MICKEY HARRIS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JACKY O. BELLAR JOHN KNOX WALKUP
212 Main St. Attorney General & Reporter
P.O. Box 332
Carthage, TN 37030 CLINTON J. MORGAN
Counsel for the State
450 James Robertson Pkwy.
Nashville, TN 37243-0493
TOM P. THOMPSON
District Attorney General
DOUGLAS HALL
Asst. District Attorney General
111 Cherry St.
Lebanon, TN 37087
Judge:PEAY
First Paragraph:
The defendant was indicted in October 1995 on three counts of passing
worthless checks. Following a trial, a jury found him guilty of two
counts and ordered him to pay restitution in the amount of ten
thousand three hundred sixty-four dollars and eighty-one cents
($10,364.81). The trial court sentenced the defendant to three years
for each of his convictions and immediately placed him on Community
Corrections. The sentences are to run consecutively. In this appeal
as of right, the defendant challenges the sufficiency of the evidence.
After a review of the record and applicable law, we find that the
evidence supports the jury's verdict. Therefore, we affirm the
judgment of the court below.
URL:http://www.tba.org/tba_files/TCCA/harrism_opn.WP6
STATE OF TENNESSEE
vs.
TRAMPAS DALE SWEENEY
Court:TCCA
Attorneys:
For the Appellant For the Appellee
C. Diane Crosier John Knox Walkup
Assistant Public Defender Attorney General & Reporter
P.O. Box 68
Franklin, TN. 37065 Sarah M. Branch
Assistant Attorney General
2nd Floor Cordell Hull Building
425 Fifth Avenue North
Nashville, TN. 37243-0943
Joseph D. Baugh, Jr.
District Attorney General
Williamson County Cthse. Ste. G-6
P.O. Box 937
Franklin, TN. 37065-0937
Jeff Burks
Asst District Attorney General
P.O. Box 937
Franklin, TN. 37065-0937
Judge:BARKER
First Paragraph:
The appellant, Trampas Dale Sweeney, appeals as of right the sentences
he received following guilty pleas in the Circuit Court of Williamson
County to the offenses of evading arrest and driving a motor vehicle
while classified as an habitual motor vehicle offender ("HMVO"). The
trial court sentenced the appellant as a Range III persistent offender
and ordered him to serve five (5) years in the Tennessee Department of
Correction for driving a motor vehicle while declared an HMVO, a Class
E felony; and eleven (11) months and twenty-nine (29) days in the
Williamson County Jail for evading arrest, a Class A misdemeanor. The
sentences were ordered to run concurrently for a total effective
sentence of five (5) years.
URL:http://www.tba.org/tba_files/TCCA/swenytds_opn.WP6
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