Opinion Flash

March 27, 2002
Volume 8 — Number 056

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):
 
00 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
05 New Opinion(s) from the Tennessee Court of Appeals
08 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


DANNY ALVIS v. MANFRED STEINHAGEN, d/b/a INTERNATIONAL AUTO SERVICE

Court:TCA

Attorneys:   

Manfred Steinhagen, Memphis, TN, pro se

Kevin A. Snider, Germantown, TN, for Appellee                       

Judge: HIGHERS

First Paragraph:

This appeal arises from a claim filed by the Appellee against the
Appellant in the General Sessions Court of Shelby County.  The claim
alleged that the Appellee was entitled to rescission, reformation,
and/or damages proximately caused by the Appellant's breach of
contract, breach of warranty, fraud, misrepresentations, violations of
the Tennessee Consumer Protection Act, and/or unjust enrichment. 
Following a trial, the general sessions court rendered a verdict in
favor of the Appellee.  The Appellant appealed the decision to the
Circuit Court of Shelby County.  Following a trial in the circuit
court, the circuit court rendered a verdict in favor of the Appellee
and ordered the Appellant to pay discretionary costs.

The Appellant appeals the order of the Circuit Court of Shelby Count
rendering a verdict in favor of the Appellee and ordering the
Appellant to pay discretionary costs.  For the reasons stated herein,
we affirm the trial court's decision.

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

SHELIA MAE BLAND v. JERRY KENNETH BLAND

Court:TCA

Attorneys:

Middlebrooks & Gray, Jackson, For Appellant, Jerry Kenneth Bland

James F. Butler, Lisa A. Houston, Jackson, For Appellee, Shelia Mae
Bland                       

Judge: CRAWFORD

First Paragraph:

Husband appeals from a final decree of divorce as to the amount of
alimony awarded and the award of attorney fees.  We affirm and modify.

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

JAMES A. COLLINS, et al. v. SUMMERS HARDWARE AND SUPPLY COMPANY

Court:TCA

Attorneys:  

Rick J. Bearfield, Johnson City, Tennessee, for the Appellant Summers
Hardware and Supply Company

Mark M. Lawson, Bristol, Virginia, for the Appellees, James A. Collins
and Gary Smith

Judge: GODDARD

First Paragraph:

This is a suit by Plaintiffs James A. Collins and Gary Smith seeking
damages from their former employer, Summers Hardware and Supply
Company, in connection with their employment.  The Plaintiffs contend
that Summers Hardware made certain deductions from their pay which
were contrary to their employment contract.  Summers Hardware asserts
otherwise.  A jury found this issue in favor of the Plaintiffs and
assessed damages, which the Trial Court, on motion of the Plaintiffs,
altered upward.  Summers Hardware appeals questioning whether the
statute of limitations has run as to Mr. Collins' suit and whether
both parties were estopped to press the claim or had waived their
right to assert it.  Summers Hardware also contends the Trial Court
was in error in increasing the jury award without giving them the
option of receiving a new trial.  We affirm.

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

JAMES ROBERT FERGUSON v. DEBBIE DEE WARREN

Court:TCA

Attorneys:  

James R. Ferguson, Tiptonville, Tennessee, pro se appellant.

Debbie D. Warren, Martin, Tennessee, pro se appellee.                        

Judge: LILLARD

First Paragraph:

This case involves child visitation with a prison inmate.  The child's
father has been incarcerated since 1994 at the Northwest Correctional
Facility in Lake County, Tennessee.  The child resides with his mother
in Weakley County, Tennessee.  In 1997, the father filed a petition in
the Lake County Chancery Court seeking an order requiring the child's
mother to allow the father to communicate with his child.  The mother
failed to respond to the petition.  In April 1999, the Lake County
Chancery Court sua sponte dismissed the petition, finding that it
should have been filed in Weakley County.  This Court reversed,
holding that lack of venue was a defensewhich was waived when the
mother failed to respond.  After the case was remanded, the mother
sent a letter to the Lake County Chancery Court, advising that a
paternity petition had been filed in the Weakley County Juvenile
Court.  Thereafter, the Lake County Chancery Court transferred the
father's petition to the Weakley County Juvenile Court to be
determined in conjunction with the paternity petition.  The father now
appeals the transfer of his petition.  We affirm, finding that the
trial court acted within its authority in transferring the case to a
court with concurrent jurisdiction.

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

 RUTH ANN MITCHELL et al. v. BRANDYN D. JOHNSON

Court:TCA

Attorneys:    

Thomas C. Jessee, Johnson City, Tennessee, and Thomas Dossett,
Kingsport, Tennessee, for the appellants, Ruth Ann Mitchell and Steve
Harold Mitchell.

J. Eddie Lauderback and Bradley E. Griffith, Johnson City, Tennessee,
for the appellee, Brandyn D. Johnson.

Judge: SUSANO

First Paragraph:

This case arises out of a collision on a public road between an
automobile driven by the defendant, Brandyn D. Johnson, and a go-cart
operated by Clayton Mitchell ("the minor") - the seven-year old child
of the plaintiffs Ruth Ann Mitchell and Steve Harold Mitchell.  The
Mitchells sued the defendant, asserting a personal injury claim on
behalf of the minor and individual claims for their alleged losses
arising out of the parent-child relationship.  The jury found the
minor 80% at fault and, consequently, returned a verdict in favor of
the defendant.  The Mitchells appeal, arguing (1) the trial court
erred in failing to charge the jury that the minor was entitled to
make a right-hand turn once he determined that his lane of traffic was
clear; (2) the trial court erred in failing to charge the jury that
the minor was entitled to a presumption that he was incapable of
negligence due to his age, or alternatively, that his age and capacity
should be taken into consideration when evaluating the parties'
comparative fault; and (3) the verdict "is not supported by the
greater weight of the evidence."  We affirm.

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

STATE OF TENNESSEE v. TIMOTHY SCOTT BARNES, DAVID GROOMS, and RICHARD
GROOMS

Court:TCCA

Attorneys: 

John B. Bunnell, Newport, Tennessee, for the appellant, Timothy Scott
Barnes, and Thomas V. Testerman, Newport, Tennessee, for the
appellants, David Grooms and Richard Grooms.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; and Ronald C. Newcomb, Assistant District
Attorney General, for the appellee, State of Tennessee.                         

Judge: WADE

First Paragraph:

The defendants, Timothy Scott Barnes, David Grooms, and Richard
Grooms, were convicted of attempted burglary, a Class E felony.  The
trial court imposed Range I sentences as follows: Timothy Scott
Barnes, one year, three months; David Grooms, one year, six months;
and Richard Grooms, one year, six months.  In this appeal of right,
the defendants challenge the sufficiency of the evidence.  The
judgments are affirmed.

http://www.tba.org/tba_files/TCCA/barnests.wpd

STATE OF TENNESSEE v. DARRYL LEE ELKINS

Court:TCCA

Attorneys: 

Mark H. Toohey, Kingsport, Tennessee, for the appellant, Darryl Lee
Elkins.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; James F. Goodwin, Assistant District Attorney General;
Gregory A. Newman, Assistant District Attorney General; and Mary
Katharine Harvey, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Darryl Lee Elkins, was convicted by a Sullivan County jury
of child rape, a Class A felony, and attempted child rape, a Class B
felony.  Defendant received consecutive sentences of twenty-five years
for the Class A felony, and twelve years for the Class B felony.  On
appeal, Defendant challenges the sufficiency of the evidence to
sustain the convictions, arguing that his convictions should be
reversed because the "jury improperly accredited the victim's
testimony who committed perjury at trial."  After a thorough review of
the record, we affirm the judgments.

http://www.tba.org/tba_files/TCCA/ekinsd_opn.wpd

STATE OF TENNESSEE v. DARRYL LEE ELKINS 

TIPTON CONCURRING AND DISSENTING

http://www.tba.org/tba_files/TCCA/elkinsd_con.wpd

STATE OF TENNESSEE v. WILLIAM GARRETT

Court:TCCA

Attorneys:

A.C. Wharton, Jr., Tony N. Brayton, and Gregg Carman, Memphis,
Tennessee, for the appellant, William Garrett.

Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Amy Weirich, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: MCGEE OGLE

First Paragraph:

The appellant was convicted by a jury in the Shelby County Criminal
Court of aggravated assault.  The trial court imposed a sentence of
thirteen years incarceration in the Tennessee Department of
Correction.  On appeal, the appellant contends that the evidence is
not sufficient to support his conviction.  After review of the record
and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/garrettw2.wpd

STATE OF TENNESSEE v. CHRISTOPHER TYCE HAMBLIN

Court:TCCA

Attorneys: 

Steve F. McEwen, Mountain City, Tennessee (on appeal); Martha J.
Yoakum, District Public Defender (at trial and on appeal); and Charles
A. Herman, Assistant Public Defender (at trial and on appeal), for the
appellant, Christopher Tyce Hamblin.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William Paul Phillips, District Attorney
General; and William Todd Longmire, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: WILLIAMS

First Paragraph:

The defendant pled guilty to aggravated assault and was sentenced as a
multiple Range II offender.  He appeals his sentence of nine years and
requests an alternative sentence of probation or community
corrections. Based upon our review, we conclude that the trial court
misapplied enhancement factor (11) and failed to consider two relevant
mitigating factors.  Furthermore, the trial court did not make
findings as to how the enhancement factors were weighed to determine
the appropriate sentence.  We conclude, however, that the trial
court's sentence of nine (9) years is appropriate based upon the
defendant's lengthy history of criminal behavior. Furthermore, the
defendant is not entitled to an alternative sentence because the
length of his sentence exceeds eight years.

http://www.tba.org/tba_files/TCCA/hamblinct.wpd

STATE OF TENNESSEE v. LUE J. HOLCOMB

Court:TCCA

Attorneys:

A. C. Wharton, Jr., Garland Ergueden, and Amy Mayne, Memphis,
Tennessee, for the appellant, Lue J. Holcomb.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and David Zak, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: MCGEE OGLE

First Paragraph:

The appellant, Lue J. Holcomb, was convicted by a jury in the Shelby
County Criminal Court of aggravated burglary.  The trial court imposed
a sentence of three and one-half years and ordered that six months of
the sentence be served in confinement with the balance on probation. 
The appellant timely appealed, arguing that the evidence is not
sufficient to support his conviction.  After a review of the record
and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/holcombl.wpd

STATE OF TENNESSEE v. DENNIS MORGAN

Court:TCCA

Attorneys: 

Leslie Irwin Ballin and Gray W. Bartlett, Memphis, Tennessee, for the
appellant, Dennis V. Morgan.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; Thomas Hoover and Steven Hall, Assistant
District Attorneys General, for the appellee, the State of Tennessee.               

Judge: WADE

First Paragraph:

The defendant, Dennis V. Morgan, was convicted of second degree
murder.  The trial court imposed a Range I sentence of seventeen
years.  In this appeal of right, the defendant asserts that the trial
court erred in its instruction on self-defense.  The judgment of the
trial court is reversed and the cause is remanded for a new trial.

http://www.tba.org/tba_files/TCCA/morgand_opn.wpd

STATE OF TENNESSEE v. DENNIS MORGAN

HAYES DISSENTING

http://www.tba.org/tba_files/TCCA/morgand_dis.wpd

STATE OF TENNESSEE v. RICO L. RAYBON

Court:TCCA

Attorneys:

Christine W. Stephens, Memphis, Tennessee, for the Appellant, Rico L.
Raybon.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Braden H. Boucek Assistant Attorney General;
William L. Gibbons, District Attorney General; and William Bond,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                         

Judge: HAYES

First Paragraph:

The Appellant, Rico L. Raybon, was convicted by a Shelby County jury
of one count of  rape of a child, in violation of Tennessee Code
Annotated S 39-13-522 (1997), a class A felony.  The trial court
imposed  a twenty-year sentence as a child rapist to be served in the
Department of Correction.  On appeal, Raybon raises the following
issues for our review: (1) whether the trial court's refusal to permit
the testimony of James Franklin under Tennessee Rule of Evidence 412,
concerning specific prior instances of the victim's sexual behavior,
was error; (2) whether the trial court erred by refusing to allow the
testimony of Chaka Gray, pertaining to an alleged prior inconsistent
statement made by the victim's mother; and (3) whether the trial court
properly charged the jury on reasonable doubt.  After review, we
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/raybonricol.wpd

STATE OF TENNESSEE v. TONY WALKER

Court:TCCA

Attorneys:    

Thomas M. Minor, Somerville, Tennessee, for the Appellant, Tony
Walker.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; and
Elizabeth T. Rice, District Attorney General, for the Appellee, State
of Tennessee.                      

Judge: HAYES

First Paragraph:

The Appellant, Tony Walker, appeals the verdict of a Fayette County
jury finding him guilty of attempted aggravated robbery.  On appeal,
Walker raises the single issue of whether the evidence is sufficient
to support his conviction. After a review of the record, we affirm.

http://www.tba.org/tba_files/TCCA/walkertony.wpd

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