Opinion FlashFebruary 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.
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Howard H. Vogel
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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