Opinion Flash

February 22, 2002
Volume 8 — Number 034

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):
 
01 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
00 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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


STATE OF TENNESSEE v. WALTER LEE ALLEN

Court:TSC

Attorneys:

Edward C. Miller, Dandridge, Tennessee, for the appellant, Walter Lee
Allen.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Elizabeth T. Ryan, Assistant Attorney General; Al
C. Schmutzer, Jr., District Attorney General; and James L. Gass,
Assistant District Attorney General, for the appellee, State of
Tennessee.                          

Judge: HOLDER

First Paragraph:

The defendant, Walter Lee Allen, was indicted for aggravated robbery. 
He was convicted of the lesser-included offense of robbery and
received a ten-year sentence.  The Court of Criminal Appeals affirmed
the conviction and sentence.  We granted permission to appeal to
review two issues:  (1) whether a variance existed between the
indictment alleging robbery "by violence" and the proof showing
robbery by pointing a gun at the victim; and (2) whether the trial
court erred by failing to instruct the jury on facilitation of robbery
as a lesser-included offense.  We conclude that no variance existed
because pointing a deadly weapon at the victim constitutes robbery "by
violence."  We further conclude that the failure to instruct on
facilitation of robbery was reversible error under the circumstances
of this case.  Accordingly, we reverse the judgment of the Court of
Criminal Appeals and remand the case for a new trial.

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

STATE OF TENNESSEE v. WALTER LEE ALLEN

BIRCH DISSENTING

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

CHRISTY M. BAUER v. WILLIAM ROBERT BAUER

Court:TCA

Attorneys:  

Jeffrey L. Levy, Nashville, Tennessee, for Appellant, William Robert
Bauer.

Rose Palermo, Nashville, Tennessee, for Appellee, Christy M. Bauer.                        

Judge: FRANKS

First Paragraph:

In this divorce case, the Trial Court awarded custody of the child of
the parties to the mother, and awarded attorney fees to the mother. 
Father has appealed these awards.  We affirm.

http://www.tba.org/tba_files/TCA/bauerc.wpd

STEVEN TEDDY BOHANON, et al. v. JONES BROS., INC.

Court:TCA

Attorneys:  

Jacky O. Bellar, Carthage, Tennessee, for the appellants, Steven T.
Bohanon and Kathy Bohanon.

William B. Jakes, III, Nashville, Tennessee, for the appellee, Jones
Bros., Inc.                        

Judge: KOCH

First Paragraph:

This appeal involves a property damage claim arising from blasting
activities incident to the construction of improvements to State
Highway 52 in Macon County.  Two neighboring property owners filed
suit against the contractor responsible for the blasting in the
Circuit Court for Macon County seeking actual and punitive damages.  A
jury returned a verdict for the contractor, and the trial court denied
the property owners' post-trial motions.  The property owners assert
on this appeal that the trial court erred by permitting the
introduction of incompetent evidence regarding compliance with the
Tennessee Blasting Standards Act of 1975 and by failing to give a
promised curative instruction.  They also challenge the evidentiary
support for the verdict.  We have determined that the trial court did
not commit reversible error either by admitting the evidence regarding
the contractor's seismic monitoring or by overlooking the requested
curative instruction.  We also decline to second-guess the verdict to
the extent that it rested on an assessment of the property owners'
credibility regarding the nature and extent of the damages caused by
the blasting.  Accordingly, we affirm the judgment.

http://www.tba.org/tba_files/TCA/bohanonst.wpd

ANTHONY J. DOTY v. PATRICK WHALEN, et al.

Court:TCA

Attorneys: 

Anthony J. Doty, Pro Se

Tom Anderson, Jackson, For Appellee, Percy Pitzer                         

Judge: CRAWFORD

First Paragraph:

Petitioner-inmate filed a petition for writ of mandamus to require the
defendants, prison warden and other officials, to restore visitation
privileges of the plaintiff's girlfriend and to expunge from the
prison records all references to the revocation of the visitation
privileges and to the alleged sexual misconduct that precipitated the
revocation.  After a nonjury trial, the trial court entered an order
of dismissal.  Plaintiff has appealed.  We affirm as modified and
remand for further proceedings.

http://www.tba.org/tba_files/TCA/dotyant.wpd

IN THE MATTER OF: C.J.S., D.O.B. 7/11/95 CHILD UNDER THE AGE OF
EIGHTEEN (18) YEARS

Court:TCA

Attorneys:

Gregory M. Reed, Murfreesboro, Tennessee, for the appellant, A.E.S.

Paul G. Summers, Attorney General and Reporter; Elizabeth C. Driver,
Assistant Attorney General, for the appellee, State of Tennessee.                     

Judge: CANTRELL

First Paragraph:

A.E.S. is the mother of C.J.S., who has been in foster care for four
of his five years.  At the State's petition, the trial court
terminated these rights based upon A.E.S.'s mental incapacities. 
A.E.S. appealed this decision arguing that the grounds for termination
were not proven by clear and convincing evidence.  We affirm the
decision of the trial court.

http://www.tba.org/tba_files/TCA/inrecjs.wpd

IN RE:  T. F., STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v.
DAVINA FRAZIER

Court:TCA

Attorneys:    

Carl E. Seely, Jackson, For Appellant, Davina Frazier

Paul G. Summers, Attorney General & Reporter, Dianne Stamey Dycus,
Deputy Attorney General, For Appellee, Tennessee Department of
Children's Services                      

Judge: CRAWFORD

First Paragraph:

Minor child was removed from mother's custody because mother neglected
to provide child with proper medical care and treatment.  Mother
entered into a permanency plan and child was temporarily placed with a
family member.  The trial court terminated mother's parental rights to
the child, finding clear and convincing evidence that: (1) mother had
not substantially complied with the conditions of the permanency plan;
(2) there was little likelihood that the conditions leading to child's
removal would be remedied in the near future, and that the
continuation of the parent-child relationship would greatly diminish
the child's chances of early integration into a safe, stable and
permanent home.  Mother has appealed.  We affirm

http://www.tba.org/tba_files/TCA/inretf.wpd

FLORA MAE MELTON v. GLEN HOUSTON MELTON

Court:TCA

Attorneys:

Randy Hillhouse, Lawrenceburg, TN, for the Appellant, Glen Houston
Melton.

Ricky L. Wood, Parsons, TN, for the Appellee, Flora Mae Melton.                         

Judge: GODDARD

First Paragraph:

This appeal from the Chancery Court of Lewis County questions whether
the Trial Court erred in dividing the marital estate, thereby awarding
Ms. Melton a disproportionate share.  Mr. Melton further appeals the
Trial Court's award of alimony in futuro, alimony in solido,
discretionary costs and an award for personal injuries to Ms. Melton. 
Ms. Melton appeals the Trial Court's failure to award punitive damages
for her personal injury.  We affirm the decision of the Trial Court in
part, vacate in part and remand for further proceedings consistent
with this opinion.

http://www.tba.org/tba_files/TCA/meltonflora.wpd

PAUL ALAN NEE v. BIG CREEK PARTNERS, A LIMITED PARTNERSHIP D/B/A BIG
CREEK GOLF CLUB

Court:TCA

Attorneys:

Art D. Wells, Jackson, Tennessee, for the appellant, Paul Alan Nee.

Joe Lee Wyatt and Archie Sanders, III, Memphis, Tennessee, for the
appellee, Big Creek Partners, a Limited Partnership, d/b/a Big Creek
Golf Club.

Judge: FARMER

First Paragraph:

This is a premises liability action.  Plaintiff alleges he was injured
in a fall that took place on Defendant's steps.  At trial, Plaintiff
introduced pictures of the steps into evidence and testified that he
heard a "crackling noise" as his "foot began to slide."  After
considering Plaintiff's evidence, the trial court granted Defendant's
motion for a directed verdict.  The trial court determined that
Plaintiff failed to introduce evidence that the stairs constituted a
defective or dangerous condition.  Further, the trial court ruled that
the jury would be forced to speculate on the cause of Plaintiff's
fall.  We affirm the decision of the trial court.

http://www.tba.org/tba_files/TCA/neep.wpd

MARY C. ROBERTS, et al. v. SEVREN G. SANDERS, et al.

Court:TCA

Attorneys: 

Rhonda M. Whitted, Nashville, Tennessee, for the
intervenor-appellants, Tennessee Managed Care Network / Access . . .
MedPLUS.

Mark T. Smith, Gallatin, Tennessee, for the appellees, Mary C. Roberts
and Alton R. Roberts.                         

Judge: KOCH

First Paragraph:

This appeal involves the right of a lawyer to collect a fee from the
entire proceeds of a $33,000 settlement between his elderly client and
the teenage driver who struck her vehicle from the rear.  Upon being
notified of the pending settlement, the TennCare managed care
organization that had paid $12,687 of the client's medical expenses
asserted its subrogation rights to a portion of the settlement and
declined to pay any portion of the lawyer's fee from its share of the
settlement proceeds.  The Circuit Court for Sumner County recognized
the managed care organization's subrogation interest in the settlement
proceeds but awarded the lawyer a one-third contingent fee from these
funds.  On this appeal, the managed care organization takes issue with
the trial court's decision to award the lawyer any attorney's fees
from its subrogation interest.  We have determined that the lawyer had
a right under Tenn. Code Ann. S 71-5-117(c) (Supp. 2001) to collect a
fee from the proceeds of the settlement and that the managed care
organization failed to prove the existence of circumstances that would
disentitle the lawyer to collect a portion of his fee from its
subrogation interest.  Accordingly, we affirm the trial court.

http://www.tba.org/tba_files/TCA/robertsmc.wpd

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