May 4, 2001
Volume 7 — Number 082

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink.

This Issue (IN THIS ORDER):
 
02 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
08 New Opinion(s) from the Tennessee Court of Appeals
04 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
 

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Lucian T. Pera
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. KAI ("GUY") NIELSEN AND BETTY NIELSEN
Court:TSC
Attorneys: 

Timothy S. Belisle, Johnson City, Tennessee, for the appellants, Kai
and Betty Nielsen.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mark E. Davidson, Assistant Attorney General; Ellen
H. Pollack, Assistant Attorney General; David Crockett, District
Attorney General; and  Kent Garland, Assistant District Attorney
General, for the appellee, State of Tennessee.                   

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine whether a superseding indictment
issued after the statute of limitations has elapsed must allege that
the prosecution was timely commenced within the statutory period. 
After the trial court refused to dismiss the indictment, the
defendants were tried and convicted of theft of property over $10,000.
 The Court of Criminal Appeals affirmed the convictions.  After
reviewing the record and applicable authority, we conclude that the
superseding indictment, which was issued after the statute of
limitations had elapsed, did not have to allege facts showing that the
prosecution was timely commenced with a prior presentment.

http://www.tba.org/tba_files/TSC/nielsenk.wpd


STATE OF TENNESSEE v. EDWARD LORENZO SAMUELS Court:TSC Attorneys: Jeffrey A. DeVasher, Assistant Public Defender; and Ralph W. Newman, Assistant Public Defender, Nashville, Tennessee, for the appellant, Edward Lorenzo Samuels. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Sharon L. Brox, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: After revoking the defendant's community corrections sentence, the trial court increased the length of the defendant's sentence from six to eight years and ordered that the sentence be served consecutively to a sentence in an unrelated case. Although the Court of Criminal Appeals affirmed the trial court's judgment, we granted the defendant's application for permission to appeal and remanded the case to the Court of Criminal Appeals for consideration of our decision in State v. Taylor, 992 S.W.2d 941 (Tenn. 1999). The Court of Criminal Appeals again affirmed the trial court's judgment. After considering the record, we conclude that upon revoking the community corrections sentence, the trial court held a proper sentencing hearing and did not err either in increasing the length of the defendant's sentence or in ordering that the sentence be served consecutively. We therefore affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/samuelse.wpd
MURRAY E. BODY v. JIM LAMARR Court:TCA Attorneys: Joseph M. Dalton, Jr., and Catherine S. Hughes, Nashville, Tennessee, for the Appellant, Murray E. Body. Gregory W. O'Neal, Memphis, Tennessee, for the Appellee, Continental Insurance Company. Judge: SWINEY First Paragraph: Murray E. Body ("Plaintiff") filed this personal injury suit against the owner of a jet ski, Jim Lamarr ("Defendant"). Plaintiff sustained physical injuries while pulling ski ropes into his boat when Defendant's jet ski ran over Plaintiff's ski ropes. Plaintiff had a boating policy ("Policy") with Continental Insurance Company ("Continental") which had uninsured boater limits of $100,000. Defendant had a liability policy with limits of $50,000. Plaintiff contends that his damages exceed Defendant's limits and that his Policy should be interpreted to provide coverage for accidents involving underinsured boaters. Continental filed a Motion to Dismiss, arguing that the Policy's language clearly and unambiguously does not provide coverage for underinsured boaters. The Trial Court treated Continental's motion as a Motion for Summary Judgment and granted the motion. Plaintiff was granted an interlocutory appeal. We affirm. http://www.tba.org/tba_files/TCA/bodyme.wpd
GINGER CHERYL EATHERLY v. DWIGHT ANTHONY EATHERLY Court:TCA Attorneys: Randy Wakefield, Carthage, Tennessee, for the appellant, Dwight Anthony Eatherly. Larry H. Hagar and John Michael Garrett, Nashville, Tennessee, for the appellee, Ginger Cheryl Eatherly. Judge: COTTRELL First Paragraph: This post-divorce case involves modification of child support. Following a hearing, the trial court found the father to be voluntarily underemployed and ordered him to pay $200 per week in child support, almost twice the previously ordered amount. Father appeals, contending that the record contains no proof that he is voluntarily underemployed and no proof of his potential income. Because we find the record is insufficient to support the trial court's findings, we vacate the order and remand for additional findings of fact. http://www.tba.org/tba_files/TCA/eatherlyg.wpd
STATE OF TENNESSEE, et al. v. MARY FREEMAN Court:TCA Attorneys: Jennifer Davis Roberts, Dickson, Tennessee, for the appellant, Mary Freeman. Paul G. Summers, Attorney General & Reporter, Kim Beals, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services, ex rel. R.P. Judge: CANTRELL First Paragraph: The Juvenile Court of Dickson County ordered the adoptive mother of a child the court had placed in State custody to refund the special needs adoption subsidy she receives from the State. The mother insists on appeal that the subsidy should have been accounted for by using it as part of her gross income in calculating her child support obligation under the support guidelines. We affirm the order of the juvenile court. http://www.tba.org/tba_files/TCA/freemanm.wpd
MARTHA BOWEN LANGSCHMIDT v. CARL H. LANGSCHMIDT Court:TCA Attorneys: Kathy Laughter Laizure, Roscoe A. Feild, Memphis, Tennessee, for the appellant, Carl H. Langschmidt. John J. Heflin, III, Kenneth P. Jones, Memphis, Tennessee, for the appellee, Martha Bowen Langschmidt. Judge: KIRBY LILLARD First Paragraph: This is a divorce case. The trial court held that the increase in the value of certain assets owned by the husband prior to the marriage, including Individual Retirement Accounts ("IRAs"), was marital property and equitably divided it. The trial court also awarded the wife a portion of her attorney's fees as alimony. The husband appeals. We affirm in part and reverse in part, holding that the trial court erred when in classifying the increase in value of the husband's non-IRA assets to be marital property when there was no proof that the wife substantially contributed to the preservation or appreciation of the property. We affirm the trial court's classification of increases in the husband's IRAs as marital property, and its equitable division of the marital property. We reverse as to the award to the wife of a portion of her attorney's fees. http://www.tba.org/tba_files/TCA/langschmidtmb.wpd
DISSENTING AND CONCURRING http://www.tba.org/tba_files/TCA/langschmidtd_dis.wpd
J. ELIZABETH MOXHAM v. ERIC W. CRAFTON, et al. Court:TCA Attorneys: Dana C. McLendon, III, Franklin, Tennessee, for the appellant, J. Elizabeth Moxham. Thomas V. White and Jude A. White, Nashville, Tennessee, for the appellees, Eric W. Crafton, Individually, and C & C Development and Construction Co., Inc. Judge: CANTRELL First Paragraph: During the trial of a construction dispute, the parties reached a settlement in the hallway of the courthouse, and subsequently announced the terms of their agreement to the trial court. Before the agreed order was entered, however, the plaintiff attempted to withdraw her consent. The plaintiff argues on appeal that the trial court erred by signing and entering the agreed order, and by denying her motion to set it aside. We affirm the trial court. http://www.tba.org/tba_files/TCA/moxhamje.wpd
CHARLES DAVID SIGLER d/b/a LAVERTE'S MARKET v. METROPOLITAN BEER PERMIT BOARD OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE Court:TCA Attorneys: Charles Galbreath, Nashville, Tennessee, for the appellant, Charles David Sigler. David Diaz-Barriga, Nashville, Tennessee, for the appellee, Metropolitan Beer Permit Board of the Metropolitan Government of Nashville and Davidson County, Tennessee. Judge: FARMER First Paragraph: Mr. Cook, a minor, purchased beer from Mr. Sigler after showing his brother's valid Tennessee Driver's License. Mr. Sigler's beer permit was temporarily suspended for violation of a metropolitan code prohibiting the sale of beer to a minor. Mr. Sigler's appeals, arguing that he could not have done anything more to prevent the sale to a minor and that, accordingly, he should not be penalized. We affirm. http://www.tba.org/tba_files/TCA/siglercharlesd.wpd
KAREN STEMPA, et al. v. WALGREEN CO., et al. Court:TCA Attorneys: Donna R. Davis and Autumn L. Gentry, Knoxville, Tennessee, for the Appellants Karen and John Stempa. Debra A. Thompson, Knoxville, Tennessee, for the Appellee Donnie Dean, D.D.S. James W. Harrison, Morristown, Tennessee, for the Appellees Walgreen Co. and Susan Cannon. Judge: SWINEY First Paragraph: Karen and John Stempa ("Plaintiffs") sued several defendants after Karen Stempa allegedly suffered permanent hearing loss when she was prescribed and took Erythromycin. The Complaint was filed on May 1, 1998. Immediately after filing the Complaint, Plaintiffs' original attorney instructed the court clerk not to issue any summonses "yet." No summonses were issued until April 29, 1999, with all but one defendant being served on May 27, 1999. Defendants who were served filed motions to dismiss claiming Plaintiffs failed to comply with the provisions of Rules 3 and 4 of the Tenn. R. Civ. P. and, therefore, the action was not commenced within the applicable statute of limitations. Plaintiffs obtained new counsel. The motions to dismiss were granted by the Trial Court. Once an alias summons was issued and served on the remaining defendant, a similar motion to dismiss was granted by the Trial Court on the same basis. Plaintiffs appeal, arguing that their claims were filed timely because summonses were issued within one year of the filing of the Complaint as provided for by Rule 3 of Tenn. R. Civ. P. We reverse and remand. http://www.tba.org/tba_files/TCA/stempaks_opn.wpd
CONCURRING http://www.tba.org/tba_files/TCA/stempaksc_con.wpd
DON STONECIPHER v. ESTATE OF M.E. GRAY, JR., et al. Court:TCCA Attorneys: John Colley, III, Columbia, Tennessee, for the appellant, Don Stonecipher. Gary M. Howell, Columbia, Tennessee, for the appellees, Estate of M.E. Gray, Jr. and Lillian Adele Gray. Judge: COTTRELL First Paragraph: This is an appeal from a chancery court jury trial on a dispute arising from a contract to buy a wrecker and salvage yard business for 1.1 million dollars. The purchaser alleged that the seller fraudulently induced him to contract to buy the business because after the parties reached an agreement on the purchase, the seller took items contemplated to be included in the contract without the buyer's knowledge. On the other hand, the seller's estate asserted a breach of contract claim because the note's balloon payment was overdue. After a trial, the jury decided that the seller had concealed or withheld items that the parties contemplated to be part of the contract, that the seller made misrepresentations as to what was to be included in the contract, he knew the misrepresentations were false at the time made, and he intended the buyer to rely on the misrepresentations. The jury decided that, had the buyer known the items were missing, he would not have declined to enter into the purchase at all but, instead, would have negotiated a lower price. Therefore, the court entered a verdict dismissing the buyer's complaint for rescission, awarded him a set-off and entered judgment against him for the balance of the note plus interest minus the set-off. Costs were apportioned between the parties and each party was ordered to pay its own attorney's fees. Both parties appeal. For the reasons below, we affirm the judgment of the trial court in part, vacate in part, and remand. http://www.tba.org/tba_files/TCA/stonecipherd.wpd
STATE OF TENNESSEE v. RICKY FRITH, JR. Court:TCCA Attorneys: A C Wharton, Public Defender, and Garland Ergueden, Assistant Public Defender, for the appellant, Ricky Frith, Jr.. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; William L. Gibbons, District Attorney General; and Jennifer Smith Nichols, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The Defendant was found guilty, by a jury, on Count Two, theft of property valued at over $10,000, but less than $60,000, a Class C felony. Tenn. Code Ann. SS 39-14-103 and 105. The Defendant was sentenced to the Department of Correction for eight years as a Range II offender and was fined $1000. The Defendant appeals his conviction claiming that the evidence was insufficient to support his conviction for theft of property. We disagree. http://www.tba.org/tba_files/TCCA/frithrjr.wpd
DAVID LEE HUNDLEY v. STATE OF TENNESSEE Court:TCCA Attorneys: David Lee Hundley, pro se, Nashville, Tennessee. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellant, State of Tennessee. Judge: WOODALL First Paragraph: In this case, the petitioner, David Lee Hundley, filed a petition for post-conviction relief. The trial court dismissed the petition on the basis that it was barred by the applicable statute of limitations. Our Court reversed and remanded for a determination by the trial court as to whether there was sufficient evidence of Petitioner's prior mental health problems to warrant a tolling of the statute of limitations. David Lee Hundley v. State, No. 02C01-9810-CC-00313, 1999 WL 668723, Weakley County (Tenn. Crim. App., Jackson, August 26, 1999). The supreme court granted the State's application for permission to appeal pursuant to Tenn. R. App. P. 11 and remanded the case to this Court for reconsideration in light of State v. Nix, ___ S.W.3d ___, No. E1999-02715-SC-R11-PC, slip op. (Tenn. Feb. 20, 2001). Upon remand, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hundleydl2.wpd
STATE OF TENNESSEE v. CHARLES STILLWELL Court:TCCA Attorneys: Tim W. Smith, Memphis, Tennessee, for the appellant, Charles Stillwell. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jerry Kitchen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals the trial court's six-year sentence of total confinement and denial of any form of an alternative sentence. After review, we reverse the trial court's order of total confinement and denial of any form of an alternative sentence. We remand the case to the trial court to order the defendant to serve a sentence of split confinement with one (1) year of incarceration and the remaining five (5) years on supervised probation with restitution as a condition of probation. http://www.tba.org/tba_files/TCCA/stillwellc.wpd
VINSON TAYLOR v. STATE OF TENNESSEE Court:TCCA Attorneys: C. Michael Robbins, Memphis, Tennessee (on appeal); Jim W. Horner, District Public Defender; and H. Tod Taylor, Assistant District Public Defender, Dyersburg, Tennessee (at hearing), for the appellant, Vinson Taylor. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: This is an appeal from the denial of post-conviction relief. Petitioner pled guilty to selling cocaine over 0.5 grams and received a sentence of eight years. He contends the trial court erred in denying his petition for post-conviction relief, alleging (1) ineffective assistance of trial counsel leading to his guilty plea, (2) an involuntary guilty plea, and (3) failure of trial counsel to perfect an appeal of the sentence. We affirm the post-conviction court with regard to the validity of the guilty plea; however, we grant a delayed appeal based upon trial counsel's failure to take any action regarding an appeal of the sentence. http://www.tba.org/tba_files/TCCA/taylorv.wpd

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