Opinion Flash

June 20, 2002
Volume 8 — Number 106

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

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
03 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


CAROLYN JONES v. BUREAU OF TENNCARE

Court:TCA

Attorneys:  

Gordon Bonnyman and Lisa J. D'Souza, Nashville, Tennessee, for the
Appellant, Carolyn Jones.

Paul G. Summers and Sue A. Sheldon, Nashville, Tennessee, for the
Appellee, Bureau of TennCare.

Judge: SWINEY

First Paragraph:

Beginning in 1994, the Bureau of TennCare ("TennCare") provided
insurance coverage for home health services for one its enrollees,
Carolyn Jones ("Jones"), who is bed-ridden due to rheumatoid
arthritis.  In 1997, TennCare denied Jones coverage for home health
services, and Jones appealed this determination.  The Administrative
Law Judge held TennCare was not required to provide coverage for home
health services to Jones because the services are not medically
necessary for her.  Under the Uniform Administrative Procedures Act,
Jones appealed the administrative agency's determination to the
Chancery Court of Davidson County ("Trial Court") which affirmed the
determination.  Jones now appeals to this Court.  We affirm.

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

JACK PARKS ex rel. MICHAEL PARKS v. TIMOTHY HOPKINS

Court:TCA

Attorneys:

Jack Parks, Johnson City, Tennessee, Pro Se.

John S. Taylor, Johnson City, Tennessee, for the appellee, Timothy
Hopkins.                          

Judge: SUSANO

First Paragraph:

Jack Parks, in his capacity as Conservator for his son, Michael Parks,
sued Timothy Hopkins seeking compensatory and punitive damages based
upon allegations essentially reciting that the defendant wrongfully
converted funds belonging to the plaintiff's ward, who is apparently
incompetent to handle his own affairs.  At the conclusion of the
plaintiff's proof at a bench trial, the defendant moved to dismiss the
complaint pursuant to Tenn. R. Civ. P. 41.02.  The trial court found
that the complaint was filed outside the applicable statutes of
limitations and that the plaintiff had not sustained his burden of
proof "under any theory."  A judgment was entered dismissing the
complaint in its entirety.  We affirm.

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

TAMMY LYN PIERCE v. MICHAEL DAVID PIERCE

Court:TCA

Attorneys:

Rebecca T. Garland, Brentwood, Tennessee and David A. Collins,
Nashville, Tennessee, for the appellant, Michael David Pierce.

Richard Hedgepath, Jr., Nashville, Tennessee, for the appellee, Tammy
Lyn Pierce.                       

Judge: CANTRELL

First Paragraph:

In 1994, a father, who had failed to comply with a child support
order, was sentenced to jail for six  months or until he paid the
arrearage of $23,800.  A month later the trial court suspended the
sentence upon the defendant's promise to pay $10,000 immediately and
to pay the balance by October 15, 1995 in quarterly installments.  The
order provided that if the defendant failed to meet the conditions in
the suspension order the suspended sentence would be revoked if the
mother filed an appropriate motion.  In 2001, the trial court found
the defendant guilty of criminal contempt and ordered him to serve the
balance of the six month sentence for failing to comply with the 1994
suspension order.  We reverse the order finding the defendant in
criminal contempt.

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

CAROLYN STOVALL, et al. v. LOIS E. CLARKE, M.D., et al.

Court:TCA

Attorneys: 

Joseph P. Bednarz, Sr. and Joseph P. Bednarz, Jr., Nashville,
Tennessee, attorneys for the appellant, Carolyn Stovall, individually
and as wife and personal representative of Gerald Stovall, deceased.

Rose P. Cantrell, Nashville, Tennessee, attorney for appellee, Lois E.
Clarke, M.D.

Phillip L. North, Michael F. Jameson and Thomas W. Shumate IV,
Nashville, Tennessee, attorneys for appellee, Robert W. McCain, M.D.

Judge: INMAN

First Paragraph:

This is a medical malpractice case against two physicians which was
dismissed on motions for summary judgment upon a finding there were no
disputed issues of fact and the defendants were entitled to judgment
as a matter of law because the plaintiff's experts were disqualified
under the locality rule.

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

CAROLYN STOVALL, et al. v. LOIS E. CLARKE, M.D., et al.

Court:TCA

KOCH CONCURRING

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

JERRY WALKER, et al. v. RICKY E. WHITE, et al.

Court:TCA

Attorneys:

Philip C. Kelly and Gwynn K. Smith, Gallatin, Tennessee, for the
appellant, Citizens Bank of Lafayette.

Alan Mark Turk, Brentwood, Tennessee, for the appellees, Jerry Walker,
Opal Walker, and Walker & Assoc. Realty, Inc. f/k/a Century 21 Walker
& Assoc., Inc.                        

Judge: FARMER

First Paragraph:

This is an interlocutory appeal by permission which raises issues of
first impression concerning the federal Right to Financial Privacy Act
and the Tennessee Financial Records Privacy Act.  We first must
determine whether state courts retain concurrent jurisdiction to
resolve claims brought against a bank by its customer arising under
the federal Act.  We hold that federal court jurisdiction under the
Act is permissive.  State courts therefore retain concurrent 
jurisdiction over such claims.  We further hold that the Tennessee
Financial Records Privacy Act is not applicable to federal agencies
which issue subpoenas for bank records.  The furnishing of information
pursuant to a subpoena issued by a federal agency is governed in
Tennessee by the federal Right to Financial Privacy Act.  Accordingly,
we affirm the trial court's order denying summary judgment on these
issues to the Defendant.

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

STATE OF TENNESSEE v. BRIAN KEITH GILMER

Court:TCCA

Attorneys:

Edward C. Miller, District Public Defender, Dandridge, Tennessee, for
the appellant, Brian Keith Gilmer.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and Charles L. Murphy, Assistant District Attorney General,
for the appellee, State of Tennessee.                       

Judge: WOODALL

First Paragraph:

Defendant, Brian Keith Gilmer, pursuant to a negotiated plea
agreement, pled guilty to four counts of rape, Class B felonies, and
five counts of rape of a child, Class A felonies, in Case No. 6975 in
the Circuit Court of Jefferson County.  On the same date, he pled
guilty to five counts of rape, Class B felonies, in Case No. 8161 in
the Circuit Court of Sevier County.  The victim in all counts, in both
counties, was Defendant's stepdaughter.  Sentencing was to be
determined by the trial court (which was the same for both counties),
but the negotiated plea agreement was structured such that the total
effective sentence would not be less than 15 years or more than 50
years.  Defendant also pled guilty to other criminal offenses as part
of the plea agreement, but these are not relevant to this appeal. 
Although Defendant filed a notice of appeal indicating that he was
appealing the sentences imposed in both the Jefferson and Sevier
County cases, in effect, this appeal challenges only the length of
sentences of the Class A felonies in the Jefferson County case, and
the fact that one Class A felony was ordered to be served
consecutively to the other sentences.  We affirm the judgments of the
trial court.

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

STATE OF TENNESSEE v. SEAN A. TURNER, ALIAS; SEAN ANDRE TURNER 

Court:TCCA

Attorneys:

Mark E. Stephens, District Public Defender; and Aubrey L. Davis,
Assistant Public Defender, Knoxville, Tennessee, for the appellant,
Sean Andre Turner.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; Randall Eugene Nichols, District Attorney
General; and Leon Franks, Assistant District Attorney General, for the
appellee, State of Tennessee.                     

Judge: WOODALL

First Paragraph:

Defendant, Shaun A. Turner, alias Shaun Andre Turner, appeals from the
trial court's order revoking his probation and ordering him to serve
two consecutive sentences in the Department of Correction.  After
reviewing the record, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. ANTONIO RICO WALLS, aka RICO

Court:TCCA

Attorneys:  

Roger Eric Nell, District Public Defender, and Collier W. Goodlett,
Assistant Public Defender, for the appellant, Antonio Rico Walls.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Lance A. Baker, Assistant District Attorney General, for
the appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

The defendant, Antonio Rico Walls, was convicted of the sale of over
.5 grams of cocaine within 1000 feet of a school, in violation of the
Drug-Free School Zone Act, and appealed the conviction. Subsequently,
he pled guilty to three additional counts of the indictment alleging
the same offense, and was sentenced to concurrent fifteen-year
sentences for each offense.  The pleas of guilty purported to reserve,
as a certified question, the claim that the Drug-Free School Zone Act
is unconstitutional.  We conclude that it is not, and, further, that
the evidence at the defendant's trial was sufficient to support his
conviction.  Accordingly, we affirm the judgments of the trial court.

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

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