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TBALink Opinion-Flash
November 16, 1998 -- Volume 4 -- Number 167
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
STATE OF TENNESSEE VS. STEVEN BOLDEN Court:TSC Attorneys: For Appellant: For Appellee: Vanedda Prince John Knox Walkup FOWLER, PRINCE & WEBB Attorney General & Reporter Union City, Tennessee Michael E. Moore Solicitor General Kathy Morante Deputy Attorney General Kenneth W. Rucker Assistant Attorney General Nashville, Tennessee At Trial: C. Phillip Bivens District Attorney General Dyersburg, Tennessee Judge:ANDERSON First Paragraph: We granted this appeal to determine two issues: first, whether a co-defendant's testimony pursuant to a plea agreement with the prosecution violated the defendant's rights to due process of law and a fair trial under the United States and Tennessee Constitutions; and second, whether the trial court erred in charging the jury to consider the lesser included offense of second degree murder over the defendant's objection. URL:http://www.tba.org/tba_files/TSC/boldens_opn.WP6
JOHN L. RICE
VS.
VERONICA J. SABIR
WITH DISSENTING OPINION
Court:TSC
Attorneys:
For Appellant: For Appellee:
Samuel R. Anderson John D. McMahan
Shane Usary G. Brent Burks
David L. Moss McMAHAN & ASSOCIATES
LUTHER-ANDERSON, PLLP Chattanooga, Tennessee
Chattanooga, Tennessee
Judge:ANDERSON
First Paragraph:
In this premises liability case, the issue is whether the owner of a
house owed a duty of care to warn a contractor of the existence of
mildew on the house roof upon which he had been hired to work and from
which he fell and was injured.
URL:http://www.tba.org/tba_files/TSC/ricejohn_opn.WP6
DISSENTING OPINION:
URL:http://www.tba.org/tba_files/TSC/ricejohn_dis.WP6
THE TENNESSEAN, a division of Gannett Satellite Information
Network, Inc., and FRANK SUTHERLAND
VS.
ELECTRIC POWER BOARD OF NASHVILLE
Court:TSC
Attorneys:
For Appellants: For Appellee:
Alfred H. Knight Larry Stewart
WILLIS & KNIGHT Charles W. Cook
Nashville, Tennessee Nancy A. Vincent
STOKES & BARTHOLOMEW, P.A.
Nashville, Tennessee
Eugene Ward
N.E.S. General Counsel
Nashville, Tennessee
Judge:ANDERSON
First Paragraph:
We granted this appeal to address two questions of first impression
under the Tennessee Public Records Act: first, whether a government
agency should be required to disclose its customer names, addresses,
and telephone numbers as a public record, even though it did not
maintain the information in its computer in the exact format in which
it had been requested; and second, whether the same government agency
may require payment of costs incurred in disclosing the information
and the cost of notifying its customers that the information had been
requested.
URL:http://www.tba.org/tba_files/TSC/tenness_opn.WP6
MICHELLE CREIGHTON TERRY
VS.
GARY D. NIBLACK, M.D. and LABORATORY INVESTMENTS,
INC., D/B/A GENE PROOF TECHNOLOGIES
Court:TSC
Attorneys:
For Appellants: For Appellee:
Michael M. Castellarin Carol L. Soloman
MOODY, WHITFIELD & L. R. DeMarco
CASTELLARIN Nashville, Tennessee
Nashville, Tennessee
Judge:ANDERSON
First Paragraph:
We granted this appeal to determine when the one-year statute of
limitations commenced for the plaintiff to file her suit alleging that
the defendants negligently performed an inaccurate paternity blood
test, which excluded from paternity the natural father of her child.
The trial court dismissed the suit because it was not filed within one
year of when the plaintiff learned the results of the blood test. The
Court of Appeals reversed, concluding that the statute did not
commence until the date the plaintiff learned the results of a second
blood test that differed from the first blood test.
URL:http://www.tba.org/tba_files/TSC/terrymc_opn.WP6
TIMOTHY A. BALTZ
VS.
PAM BALTZ KNIGHT
Court:TCA
Attorneys:
For Plaintiff/Appellant: For Defendant/Appellee:
William S. Fleming Claudia S. Jack
Columbia, Tennessee Columbia, Tennessee
Judge:KOCH
First Paragraph:
This appeal involves the authority of the Maury County Juvenile Court
to modify an Arkansas court's decree involving the custody of two
children. Five years after the children and their mother moved to
Tennessee, the father filed a petition in the Maury County Juvenile
Court seeking sole custody and child support. The juvenile court
entered an agreed order on September 8, 1995, granting each of the
parents custody of one of their daughters. However, approximately
eight months later, the juvenile court determined that it lacked
subject matter jurisdiction to modify the Arkansas custody decree and
vacated its September 8, 1995 order. The father has appealed. We
agree that the Maury County Juvenile Court did not have subject matter
jurisdiction over this matter and, therefore, affirm the juvenile
court's decision invalidating its own order.
URL:http://www.tba.org/tba_files/TCA/baltzta_opn.WP6
LARRY ROGER BARNETT
VS.
SUSAN MARIE BARNETT
Court:TCA
Attorneys:
For Plaintiff/Appellee: For Defendant/Appellant:
Rondal Thomas Wilson Michael E. Giffin
Patricia Diane Cook Robertson Worsham Gregory & Giffin
Shelbyville, Tennessee Tullahoma, Tennessee
Judge:KOCH
First Paragraph:
This appeal involves two parents' interstate competition for the
custody of their children. The husband filed a divorce complaint in
the Chancery Court for Bedford County two days after the wife
commenced proceedings for separate maintenance and child support in
Florida. Following a bench trial, the Tennessee court granted the
husband a divorce and awarded him sole custody of the parties' three
children. On this appeal, the wife asserts that the Tennessee court
did not have jurisdiction over the husband's divorce complaint and
that the trial court should not have exercised jurisdiction over the
child custody and visitation issues. While we find that the trial
court had jurisdiction over the custody issues in this case, we have
determined that the trial court should not have exercised its
jurisdiction and should have deferred to the Florida court where the
wife's petition for separate maintenance was pending. Accordingly, we
vacate the custody determination.
URL:http://www.tba.org/tba_files/TCA/barnettl_opn.WP6
JAMES MARK BLICK
VS.
STEPHEN W. KENT, M.D., et al
Court:TCA
Attorneys:
MARK R. OLSON
OLSON & OLSON, PLC
Clarksville, Tennessee
Attorney for Appellant
DAN L. NOLAN
MARIE ANTOINETTE JOINER
BATSON, NOLAN, BRICE, HARVEY & WILLIAMSON, PLLC
Clarksville, Tennessee
Attorneys for Appellees
Judge:HIGHERS
First Paragraph:
In this medical malpractice action, Plaintiff James Mark Blick appeals
the trial court's final order entering summary judgment in favor of
Defendants/Appellees Stephen W. Kent, M.D., William D. Shippen, M.D.,
Robert Douglas Doty, M.D., and Robert Hector, P.A. For reasons
hereinafter stated, we reverse the trial court's judgment and remand
for further proceedings.
URL:http://www.tba.org/tba_files/TCA/blickjm_opn.WP6
PEGGY JEAN BRADFORD
VS.
JAMES WILLIAM ANDERSON and MYRA ALEA
IN RE: Rachel Lee Anderson
Court:TCA
Attorneys:
J. BROOKS FOX
MOORE & HEDGES
105 N. Atlantic Street
P. O. Box 1810
Tullahoma, Tennessee 37388
Attorney for Petitioner/Appellant
H. THOMAS PARSONS
PARSONS, NICHOLS & JOHNSON
101 West Main Street
Manchester, Tennessee 37355
Attorney for Respondents/Appellees
Judge:CANTRELL
First Paragraph:
This is a custody dispute between the child's father and the child's
maternal grandmother, who was nominated as the custodian in the will
of the child's mother. The Circuit Court of Coffee County awarded
custody to the father and his mother. We affirm.
URL:http://www.tba.org/tba_files/TCA/bradfopj_opn.WP6
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES
VS.
BONNIE FINEOUT, CLAYTON FINEOUT
IN THE MATTER OF:
CLAYTON VANCE FINEOUT, JR., D.O.B. 3-22-87; REBECCA LOUISE
FINEOUT, D.O.B. 3-26-88; JEREMY VANCE FINEOUT, D.O.B. 11-17-83
Court:TCA
Attorneys:
JOHN KNOX WALKUP
Attorney General & Reporter
DOUGLAS EARL DIMOND
Assistant Attorney General
425 Fifth Avenue, North
Nashville, Tennessee 37243-0499
Attorney for Petitioner/Appellee
JOHN B. HOLT
HOLT & KROEGER
121 5th Avenue West
Springfield, Tennessee 37172
Attorney for Defendant/Appellant
Judge:CANTRELL
First Paragraph:
The trial court terminated the mother's parental rights, following a
hearing for which she failed to appear. She argues on appeal that the
court erred in refusing to grant her a continuance, and that the
Department of Children's Services failed to establish sufficient
grounds for termination of parental rights under Tenn. Code Ann. S
36-1-113. We affirm the trial court.
URL:http://www.tba.org/tba_files/TCA/fineoutb_opn.WP6
HEIDI MARLIES SOMMERVILLE (CALUGER) and GERICKE SOMMERVILLE
VS.
JERRY WILLIAM SOMMERVILLE
Court:TCA
Attorneys:
RANDLE W. HILL, JR.
329 Union Street
P. O. Box 19632
Nashville, Tennessee 37219-0632
ATTORNEY FOR PLAINTIFFS/APPELLANTS
BRUCE N. OLDHAM
SUE HYNDS DUNNING
Oldham & Dunning
109 Public Square
Gallatin, Tennessee 37066
ATTORNEYS FOR DEFENDANT/APPELLEE
Judge:CAIN
First Paragraph:
This appeal presents another chapter in continuing domestic litigation
not likely to end with this appeal.
Jerry Sommerville ("Mr. Sommerville" or "Appellee") and Heidi
Sommerville (now Caluger) ("Ms. Caluger" or "Appellant") are the
parents of two daughters, Gericke Sommerville and Kara Sommerville.
The parties entered into a Marital Dissolution Agreement on February
12, 1994 which was incorporated into a Final Decree of Divorce entered
March 14, 1994. The decree provided that the Mother would have
custody of the parties' youngest daughter Kara with visitation set for
the Father. The older child, Gericke, was already emancipated at the
time of the divorce and attending college. Jerry Sommerville was to
pay $886.00 per month child support for the minor child Kara.
URL:http://www.tba.org/tba_files/TCA/sommervi_opn.WP6
STATE OF TENNESSEE
VS.
J. B. McCORD
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Dale Clement Potter Charles W. Burson
District Public Defender Attorney General of Tennessee
31st Judicial District and
P.O. Box 510 Christina S. Shevalier
McMinnville, TN 37110 Assistant Attorney General
and Criminal Justice Division
Isaiah S. Gant 450 James Robertson Parkway
c/o Dale Clement Potter Nashville, TN 37243-0493
P.O. Box 510
McMinnville, TN 37110 William Locke
District Attorney General
and
Robert Boyd
Assistant District Attorney General
31st Judicial District
P.O. Box 410
McMinnville, TN 37110
Judge:TIPTON
First Paragraph:
The defendant, J. B. McCord, appeals as of right from his judgment of
conviction for second degree murder, a Class A felony. The Cumberland
County Circuit Court imposed a sentence of thirty-eight years to be
served in the Department of Correction as a Range II, multiple
offender. In this appeal, the defendant presents the following
issues: 1. whether the evidence presented at trial is sufficient to
sustain beyond a reasonable doubt defendant's conviction for second
degree murder;
2. whether the defendant was legally competent to stand trial;
3. whether the trial court should have suppressed defendant's
statement because the police officers failed to honor the defendant's
right to remain silent; and
4. whether the trial testimony of an attorney violated the defendant's
attorney-client privilege;
After a thorough review of the record on appeal and upon careful
consideration of the applicable law, we affirm the judgment of the
trial court.
URL:http://www.tba.org/tba_files/TCCA/mccordjb_opn.WP6
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