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TBALink Opinion-Flash
September 30, 1998 -- Volume #4 -- Number #140
What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.
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Lucian T. Pera
Editor-in-Chief, TBALink
WIN MYINT and wife PATTI K. MYINT VS. ALLSTATE INSURANCE COMPANY Court:TSC Attorneys: For Appellants: For Appellee: JOSEPH H. JOHNSTON BARRY FRIEDMAN Nashville, TN PAIGE WALDROP MILLS JOHN D. SCHWALB Nashville, TN JON L. FLEISCHAKER Louisville, KY For Amicus Curiae: EDWARD K. LANCASTER Columbia, TN Tennessee Farmers Mutual Ins. Co. J. RICHARD LODGE E. CLIFTON KNOWLES Nashville, TN State Farm Mutual Automobile Insurance Company THOMAS H. PEEBLES, III G. BRIAN JACKSON Nashville, TN National Association of Independent Insurers and The Alliance of American Insurers JOHN KNOX WALKUP STEPHEN C. KNIGHT Nashville, TN State of Tennessee Judge:BIRCH First Paragraph: In this cause, the insuror refused to pay a claim under a policy of insurance. The insured contends that such refusal constitutes an "unfair or deceptive act or practice," in violation of the Consumer Protection Act, Tenn. Code Ann. SS 47-18-101, et seq. In contrast, the insuror insists that Tenn. Code Ann. S 56- 7-105, commonly known as the "bad faith statute," is the exclusive remedy for the bad faith denial of an insurance claim. Because Title 56, Chapters 7 and 8 of the Tennessee Code comprehensively regulates the insurance industry, the insuror insists that the acts and practices of an insurance company are never subject to the Consumer Protection Act. URL:http://www.tba.org/tba_files/TSC/myintw_opn.WP6
WAYNE BRAYFIELD and DON
CHADWELL, INDIVIDUALLY AND
d/b/a PLEASANTVILLE STUDIO TWO
VS.
KENTUCKY NATIONAL INSURANCE COMPANY
Court:TCA
Attorneys:
LOUISE R. FONTECCHIO
Bruce, Weathers, Corley, Dughman & Lyle
2075 First American Center
315 Deaderick Street
Nashville, Tennessee 37238-0275
ATTORNEY FOR PLAINTIFFS/APPELLANTS
GARY A. BREWER
PARKS T. CHASTAIN
Brewer, Krause, Brooks & Mills
Suite 2600, The Tower
611 Commerce Street
P.O. Box 23890
Nashville, Tennessee 37202-3890
ATTORNEY FOR THE DEFENDANT/APPELLEE
Judge:BUSSART
First Paragraph:
This is an appeal by plaintiffs/appellants, Wayne Brayfield and Don
Chadwell, from a jury verdict and order of the trial court awarding
defendant/ appellee, Kentucky National Insurance Company, $64,754.54.
Appellants contend any misrepresentations were immaterial as a matter
of law, the trial court incorrectly instructed the jury, Appellee's
counsel made improper statements during his closing argument, errors
committed during voir dire tainted the jury, and the trial court
allowed inadmissable evidence. The pertinent facts are as follows.
URL:http://www.tba.org/tba_files/TCA/brayfie_opn.WP6
SHERRY BROWN, as next friend
and natural mother of her minor
children, AMANDA DANETTE
MCMULLIN and ADAM MCMULLIN
VS.
DORRIS MCMULLIN, LARRY
MCMULLIN, HELEN MCMULLIN,
and THE ESTATE OF EUGENE MCMULLIN
Court:TCA
Judge:TODD
First Paragraph:
The appellees have filed a petition asking the Court to rule that the
appeal in this case was frivolous. We find that the appeal was not
frivolous and overrule the petition. It is therefore ordered that the
petition be overruled.
URL:http://www.tba.org/tba_files/TCA/browns_ord.WP6
ENOCH GEORGE, Sheriff of Maury County, Tennessee
VS.
ED HARLAN, County Executive of Maury County, Tennessee
Court:TCA
Attorneys:
Robert L. Holloway, Jr., #6535
FLEMING, HOLLOWAY, FLYNN & SANDS
207 West 8th Avenue
Columbia, Tennessee 38401
ATTORNEY FOR PLAINTIFF/APPELLEE
William H. Dale, Jr.
611 North Main Street
Columbia, Tennessee 38401
Thomas W. Hardin, #2873
HARDIN & PARKES
102 West 7th Street
Columbia, Tennessee 38401
ATTORNEYS FOR DEFENDANT/APPELLANT
Judge:TODD
First Paragraph:
The County Executive of Maury County has appealed from a judgment of
the Circuit Court of Maury County authorizing the Sheriff of Maury
County to employ additional assistants and to increase the wages of
some existing assistants.
URL:http://www.tba.org/tba_files/TCA/georgeen_opn.WP6
AMY L. JOHNSON
VS.
HAROLD G. JOHNSON
Court:TCA
Attorneys:
Curtis M. Lincoln, Hendersonville, Tennessee
Attorney for Defendant/Appellant.
Robert G. Ingrum, PHILLIPS & INGRUM, Gallatin, Tennessee
Attorney for Plaintiff/Appellee.
Judge:FARMER
First Paragraph:
This is a divorce case. Harold G. Johnson (Husband) and Amy L.
Johnson (Wife) were married on October 22, 1988 when he was 47 and she
was 20 years old. During the marriage, the parties adopted a son,
Justin, born January 11, 1991. In April 1997, the trial court entered
a final decree declaring the parties divorced pursuant to T.C.A. S
36-4-129. Husband has appealed from the final decree, challenging the
correctness of the trial court's decisions regarding child custody,
alimony and classification and division of the marital estate. For
the reasons hereinafter expressed, we affirm.
URL:http://www.tba.org/tba_files/TCA/johnsona_opn.WP6
ROZANNE F. WRIGHT (FOLK-SCHMIDT)
VS.
JAN H. SCHMIDT
Court:TCA
Judge:HIGHERS
First Paragraph:
Appellant has filed a petition to rehear, which, after due
consideration, is respectfully denied.
URL:http://www.tba.org/tba_files/TCA/wright_ord.WP6
STATE OF TENNESSEE
VS.
EDGAR ALLEN ANDERSON
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL R. JONES JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
110 Public Square
Springfield, TN 37172 CLINTON J. MORGAN
Counsel for the State
425 Fifth Ave. North
2nd Floor, Cordell Hull Bldg.
Nashville, TN. 37243-0493
JOHN WESLEY CARNEY, JR.
District Attorney General
204 Franklin St., Suite 300
Clarksville, TN 37040-3420
DENT MORRISS
Asst. Dist. Attorney General
500 So. Main St.
Springfield, TN 37172
Judge:WITT
First Paragraph:
The defendant, Edgar Allen Anderson, appeals pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure from his conviction for
aggravated burglary. Appellant was tried before a jury, convicted,
and sentenced by the trial court to serve five years as a Range I,
Standard Offender.
URL:http://www.tba.org/tba_files/TCCA/andrsne_opn.WP6
STATE OF TENNESSEE
VS.
AARON COOPER
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
David A. Collins John Knox Walkup
Attorney at Law Attorney General & Reporter
211 Printers Alley Bldg.
4th Floor
Nashville, TN 37201 Daryl Brand
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
Victor S. (Torry) Johnson III
District Attorney General
Nicholas Bailey
Assistant District Attorney General
222 2nd Avenue North
Washington Square Building
Nashville, TN 37201
Judge:SUMMERS
First Paragraph:
In November 1996, Aaron Cooper, the appellant, was convicted by a jury
of aggravated robbery in the Davidson County Criminal Court. The
trial court sentenced him to eight years in the Department of
Correction as a Range I standard offender. The appellant raises the
following issues for our review: (1) whether Tennessee Code Annotated
S 39-13-402(a)(1) (1991) is unconstitutionally vague and (2) whether
the evidence is sufficient to support his conviction. The judgment of
the trial court is affirmed.
URL:http://www.tba.org/tba_files/TCCA/cooperaa_opn.WP6
STATE OF TENNESSEE
VS.
JERRY HUSKINS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN KNOX WALKUP DON DICKERSON
Attorney General & Reporter Attorney at Law
310-D E. Broad St.
ELIZABETH B. MARNEY Cookeville, TN 38501
Assistant Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
WILLIAM EDWARD GIBSON
District Attorney General
TONEY CRAIGHEAD
Asst. District Attorney General
145 S. Jefferson Ave.
Cookeville, TN 38501
Judge:WITT
First Paragraph:
We granted the state's petition for an interlocutory appeal in this
prosecution for driving under the influence to review the Putnam
County Criminal Court's order suppressing the results of the
defendant's blood alcohol test. The trial court suppressed the
evidence because the law enforcement officer who ordered the test
failed to warn the defendant as required by Tennessee Code Annotated
section 55-10-406(a)(2) that failure to give a sample would result in
suspension of the defendant's driver's license. For the reasons that
follow, we find the trial court's ruling in error. Accordingly, we
reverse the order suppressing the evidence and remand this matter to
the trial court for further proceedings consistent with this opinion.
URL:http://www.tba.org/tba_files/TCCA/huskinsj_opn.WP6
CARL EUGENE JORDAN
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
CARL EUGENE JORDAN, Pro Se JOHN KNOX WALKUP
(On Appeal) Attorney General & Reporter
DEANNA BELL-JOHNSON LISA A. NAYLOR
211 Third Ave., North Asst. Attorney General
Nashville, TN 37201 425 Fifth Ave., North
(At Hearing) Nashville, TN 37243
VICTOR S. JOHNSON, III
District Attorney General
STEVE DOZIER
Asst. District Attorney General
Washington Square Bldg., Suite 500
222 Second Ave., North
Nashville, TN 37201-1649
Judge:PEAY
First Paragraph:
On January 23, 1981, the petitioner pled guilty to aggravated rape,
armed robbery, and second-degree murder. He was then sentenced to
three concurrent forty year sentences. On May 2, 1986, this Court
granted the petitioner post-conviction relief and vacated the guilty
plea on a finding that the trial court had failed to fully comply with
required procedure in a determination of whether the guilty plea was
made knowingly and voluntarily. State v. Jordan, No. 85-265-111(Tenn.
Crim. App. at Nashville, May 2, 1986).
URL:http://www.tba.org/tba_files/TCCA/jordance_opn.WP6
STATE OF TENNESSEE
VS.
JAMES ROY JERNIGAN
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL R. JONES JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
110 Public Square
Springfield, TN 37172 LISA A. NAYLOR
Assistant Attorney General
Criminal Justice Division
425 Fifth Ave. North
2d Floor, Cordell Hull Bldg.
Nashville, TN 37243-0493
JOHN WESLEY CARNEY, JR.
District Attorney General
204 Franklin St.
Suite 200
Clarksville, TN 37040-3420
DENT MORRISS
Assistant District Attorney General
500 S. Main St.
Springfield, TN 37172
Judge:WITT
First Paragraph:
A jury in the Robertson County Circuit Court convicted the defendant,
James Roy Jernigan, of aggravated burglary, and the trial court
sentenced him to serve ten years in the Department of Correction as a
Range III, persistent offender. The defendant now appeals his
conviction and sentence alleging that various acts of prosecutorial
misconduct denied him a fair trial and that the state failed to prove
beyond a reasonable doubt that he was eligible for sentencing as a
Range III, persistent offender. After reviewing the record before us
and the applicable law, we affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/jrnignj_opn.WP6
STATE OF TENNESSEE
VS.
GERALD D. LOVELACE,
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY D. SMITH JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
One Public Square, Suite 321
Clarksville, TN 37040 GEORGIA BLYTHE FELNER
Counsel for the State
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
JOHN WESLEY CARNEY, JR.
District Attorney General
WILLIAM CLOUD
Asst. District Attorney General
204 Franklin St., Suite 200
Clarksville, TN 37040
Judge:WITT
First Paragraph:
The defendant, Gerald D. Lovelace, appeals from his convictions of two
counts of attempted second degree murder and one count of reckless
endangerment. Lovelace received his convictions at the conclusion of
a jury trial in the Montgomery County Circuit Court. The trial court
sentenced him to serve concurrent sentences of eleven years, six
months for each of his two attempted second degree murder convictions
and two years for his reckless endangerment conviction. In this
direct appeal, Lovelace challenges the length of his effective
sentence. After a review of the record and the briefs of the parties,
we affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/lovelace_opn.WP6
STATE OF TENNESSEE
VS.
MICHAEL M. TAYLOR
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MONTE D. WATKINS JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
176 Second Ave. N., Ste. 300
Nashville, TN 37201 LISA A. NAYLOR
Counsel for the State
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
LILA STATOM
Asst. District Attorney General
Washington Square, Ste. 500
222 Second Ave. N.
Nashville, TN 37201-1649
Judge:WITT
First Paragraph:
The defendant, Michael M. Taylor, appeals from the conviction of
second degree murder he received in the Davidson County Criminal Court
for the killing of Tuesdai Hayes. Taylor is presently serving a
23-year sentence in the Department of Correction. In this direct
appeal, he challenges the sufficiency of the convicting evidence, the
court's admission of rebuttal testimony of an unsequestered witness,
and the length of the sentence imposed. After reviewing the record
and the parties' briefs and having heard oral arguments on the issues,
we find no error in the proceedings below and affirm the judgment of
the trial court.
URL:http://www.tba.org/tba_files/TCCA/taylormm_opn.WP6
JUAN PEREZ WALKER
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS H. MILLER JOHN KNOX WALKUP
(On Appeal) Attorney General & Reporter
Post Office Box 681662
Franklin, TN 37064 CLINTON J. MORGAN
Counsel for the State
MARTIN A. KOOPERMAN Criminal Justice Division
(At the Post-Conviction Hearing) 425 Fifth Ave. North
603 Woodland St. Nashville, TN 37243-0493
Nashville, TN 37206
VICTOR S. JOHNSON, III
District Attorney General
PAM ANDERSON
Assistant District Attorney General
Washington Square, Suite 500
222 2nd Ave. N.
Nashville, TN 37201-1649
Judge:WITT
First Paragraph:
Juan Perez Walker, the petitioner, appeals pursuant to Rule 3 of the
Tennessee Rules of Criminal Procedure from the trial court's dismissal
of his petition for post-conviction relief. He contends that the
trial court erred in finding that his attorney had provided effective
assistance of counsel and that he knowingly and voluntarily entered
his guilty plea.
URL:http://www.tba.org/tba_files/TCCA/walkerjp_opn.WP6
STATE OF TENNESSEE
VS.
SANFORD L. WILSON,
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS H. MILLER JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
P.O. Box 681662
Franklin, TN 37068-1662 MARVIN E. CLEMENTS, JR.
Asst. Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
DAN HAMM
Asst. District Attorney General
Washington Square
222 Second Ave. N., Ste. 500
Nashville, TN 37201-1649
Judge:WITT
First Paragraph:
The defendant, Sanford L. Wilson, appeals from his conviction of
felony reckless endangerment. He received his conviction at the
conclusion of a jury trial in the Davidson County Criminal Court. The
trial court imposed a two-year sentence. In this direct appeal,
Wilson appeals the length and manner of service of that sentence.
Having reviewed the record and the briefs of the parties, we find no
error of law requiring reversal and affirm the judgment of the trial
court.
URL:http://www.tba.org/tba_files/TCCA/wilsonsl_opn.WP6
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