Opinion Flash

June 27, 2002
Volume 8 — Number 111

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
10 New Opinion(s) from the Tennessee Court of Appeals
07 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


CHARLES DALLAS CAUTHERN, et al. v. CITY OF WHITE BLUFF, TENNESSEE

Court:TCA

Attorneys:

Kevin T. Sommers, Kingston Springs, Tennessee, for the appellants,
Charles Dallas Cauthern and Carolyn Sue Cauthern.

Stan Reynolds, Dickson, Tennessee, for the appellee, The City of White
Bluff, Tennessee.                      

Judge: KOCH

First Paragraph:

This appeal stems from two landowners' efforts to change the zoning
classification of their property from residential to commercial and
industrial.  After the White Bluff Town Council denied their request,
the landowners filed a petition for writ of common-law certiorari in
the Chancery Court for Dickson County alleging that the council's
action was invalid because one council member who had recused himself
from voting on the proposed zoning change actively opposed their
request and caused another council member to recuse himself.  The
trial court, sitting without a jury, denied the landowners' petition,
and the landowners have appealed.  Treating the petition as a
complaint of declaratory judgment, we have determined that the
effectiveness of the council member's recusal is a nonjusticiable
political question.  Accordingly, we affirm the trial court's
conclusion that the landowners were not entitled to judicial relief.

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

K. MAHENDRA CHOWBAY v. BRIAN DAVIS, et al.

Court:TCA

Attorneys:

J. Todd Faulkner, Nashville, Tennessee, for the Appellant, K. Mahendra
Chowbay.

C. Bennett Harrison, Jr., and Nicole R. Paulk, Nashville, Tennessee,
for the Appellees, Pat Patton and Eight Track Management Company,
L.L.C., d/b/a Silverado's Saloon and Dance Hall.                         

Judge: SWINEY

First Paragraph:

In this premises liability case, K. Mahendra Chowbay ("Plaintiff")
sued the owners of a club, Silverado's Saloon and Dance Hall
("Silverado's"), for injuries Plaintiff received during an assault by
one of Silverado's patrons, Brian Davis.  Plaintiff also sued Davis. 
Silverado's owners, Pat Patton and Eight Track Management Company,
LLC, d/b/a Silverado's Saloon and Dance Hall ("Defendants"), filed a
Tenn. R. Civ. P. 12.02(6) motion to dismiss which must be treated as a
motion for summary judgment because matters outside the pleadings were
submitted to the Trial Court.  Defendants contended in their motion
that since Davis' assault of Plaintiff occurred on property neither
owned nor operated by Defendants, Defendants owed no duty of care to
Plaintiff to protect him from such an assault.  The Trial Court
granted Defendants' motion.  Plaintiff appeals.  We affirm.

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

JAMES E. GUNTER v. U.C.H.R.A. AND KRISTI A. POORE

Court:TCA

Attorneys:   

Michael A. Walker, Jamestown, Tennessee, for the appellant, James E.
Gunter.

Lane Moore, Cookeville, Tennessee, for the appellees, U.C.H.R.A. and
Kristi A. Poore.

Judge: COTTRELL

First Paragraph:

In this appeal, the appellant, Mr. Gunter, filed a claim for personal
injury and property damages against a local governmental entity in
general sessions court.  The governmental entity orally moved to
dismiss citing the Tennessee Governmental Tort Liability Act, which
grants exclusive jurisdiction over these cases to the circuit court. 
The general sessions court denied the motion and transferred the case
to circuit court, and that court dismissed the action based on the
statute of limitations.  Mr. Gunter now appeals the dismissal of his
case by the circuit court.

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

JAMES H. KELLEY, et al. v. JOHN CAGE, M.D., et al.

Court:TCA

Attorneys:

Steven R. Walker, Memphis, Tennessee, and Daniel L. Clayton,
Nashville, Tennessee, for the appellants, James H. Kelley, et al.

Brian D. Cummings, Nashville, Tennessee, and Clarence James Gideon,
Nashville, Tennessee, for the appellee, John Cage, M. D. and Mid-State
Cardiology Associates, P. C.                     

Judge: WHEATCRAFT

First Paragraph:

This appeal involves the granting of a summary judgment motion in a
medical malpractice case.  The issue is whether the trial court
properly granted summary judgment on the basis that there was never a
physician/patient relationship between the decedent, Lillie Donnette
Kelley, and Dr. John Cage, a cardiologist, and an employee of
Mid-State Cardiology Associates, P.C.

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

KUEHNE & NAGEL, INC. v. PRESTON, SKAHAN & SMITH INTERNATIONAL, INC.

Court:TCA

Attorneys:

Paul J. Bruno, Nashville, Tennessee, for the appellant, Preston,
Skahan & Smith International, Inc.

John E. Buffaloe, Jr. and Joel A. Vallejo, Nashville, Tennessee, for
the appellee, Kuehne & Nagel, Inc.                       

Judge: KOCH

First Paragraph:

This appeal involves a contract dispute between a customs broker and
an importer of Russian vodka.  The customs broker sued the importer in
the Davidson County General Sessions Court seeking to recover
$4,781.16, and the importer counterclaimed alleging fraud, breach of
fiduciary duty, and usury.  After the general sessions court dismissed
both cases, the parties appealed to the Circuit Court for Davidson
County.  On the day of trial, the trial court denied the importer's
motion to exclude nine invoices that the customs broker had failed to
produce during discovery.  Thereafter, the trial court, sitting
without a jury, awarded the customs broker a $4,623.16 judgment and
dismissed the importer's countersuit.  On this appeal, the importer
asserts that the trial court erred by refusing to exclude the nine
invoices and that the evidence preponderates against the judgment.  We
have determined that the trial court did not abuse its discretion by
denying the importer's motion in limine and that the evidence supports
the judgment for the customs broker.  Accordingly, we affirm the
judgment.

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

LAWRENCE COUNTY v. JERRY BREWER, et al.

Court:TCA

Attorneys:      

William R. Willis, Jr. and Alfred H. Knight, Nashville, Tennessee, for
the appellant, Lawrence County.

James M. Marshall, Columbia, Tennessee, for the appellee, Johnny
Daniels.

Judge: CAIN

First Paragraph:

This matter involves a dispute over payment of solid waste disposal
fees, which the Lawrence County Commission attempted to charge the
citizens of Lawrence County, and application of  late payment
penalties to these fees.  Lawrence County filed complaints in order to
collect overdue solid waste fees that the Commission allegedly enacted
on May 25, 1999 by Resolution #11052599.  The trial court determined
that Resolution #11051599 did not impose any solid waste fees on the
residents of Lawrence County and dismissed Plaintiff's complaints.  We
affirm the trial court.

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

JIMMY ALAN PARDUE  v. THERESA DOYLE PARDUE

Court:TCA

Attorneys:

Ivan D. Harris, Jr.,  Collierville, For Appellant, Jimmy Alan Pardue

Andrew S. Johnston,  Somerville, For Appellee, Theresa Doyle Pardue                       

Judge: BAILEY

First Paragraph:

This is an appeal from the trial court's decision denying Appellant's
motion to void an Irreconcilable Differences divorce decree because it
was granted within ninety-days of the divorce's filing.  Though the
Appellant sought the voiding of the decree as alternative relief, it
appears the essence of the relief sought is child support 
modification.  Thus, the attempt to void the decree is a collateral
attack on the judgment and the ninety-day requirement cannot be used
in a collateral attack to void a divorce decree.

The second issue is raised by the Appellee as to whether the trial
court erred in modifying a child support amount previously agreed to
by the parties

The trial court was correct in lowering the amount of support which
was substantially above the guidelines.  The circumstances on which an
agreed upward variation is based are essential information in order to
weigh whether there are changes of  circumstances justifying a
modification of support.  If that information is missing from the
agreement, the only standard the court can properly apply  for
modification is the significant variance test set forth in the
statute.

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

DAVID SWETT, SR. v. GRACE Z. ALEMAN SWETT

Court:TCA

Attorneys:

Joe P. Binkley, Jr., Nashville, Tennessee, for the appellant, Grace
Zuniga Aleman Swett.

Lucinda E. Smith, Nashville, Tennessee, for the appellee, David Swett,
Sr.

Judge: KOCH

First Paragraph:

This appeal involves the dissolution of a nine-year marriage. 
Following a bench trial in the Circuit Court for Davidson County, the
trial court found both parties to be at fault but awarded the divorce
to the wife.  The court also granted the parties joint custody of
their son and divided their property.  On this appeal, the wife
asserts that the trial court erred by concluding that her conduct
contributed to the divorce and by refusing to give her sole custody of
the parties' son.  Both parties take issue with the manner in which
the trial court divided their property.  The wife asserts that the
trial court erred by classifying the husband's interest in the real
property on which his family's restaurant is located as separate
property and by failing to award her a portion of the appreciation in
the value of his family restaurant business.  The husband takes issue
with the trial court's refusal to award him certain items of household
furnishings.  Finally, the wife asserts that she is entitled to
post-judgment interest on the judgment used to equalize the
distribution of the marital estate, as well as her legal expenses
incurred on appeal.  We have determined that the trial court's fault
determination, joint custody arrangement, and division of marital
property are supported by the record.  Accordingly, we affirm the
judgment and deny the wife's request for appellate legal expenses.

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

CALVIN TANKESLY v. SGT. PUGH, et al.

Court:TCA

Attorneys:

Calvin Tankesly, Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mark A. Hudson, Senior Counsel, Nashville,
Tennessee, for the Appellees, Sgt. Pugh, Disciplinary Board Chairman,
and James Bowlen, Warden, Southeastern Tennessee State Regional
Correctional Facility.

Judge: COTTRELL

First Paragraph:

Petitioner, a state inmate, filed the underlying pro se petition for
writ of certiorari to challenge the result of a disciplinary
proceeding against him.  The trial court dismissed the suit for
failure to state a claim.  We affirm.

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

CALVIN TANKESLY v. SGT. PUGH, et al.

Court:TCA

KOCH DISSENTING

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

TRACEY L. (YANUSZ) TAYLOR v. JOHN J. YANUSZ

Court:TCA

Attorneys:

Gary M. Williams, Hendersonville, Tennessee, for the appellant, John
J. Yanusz.

Curtis M. Lincoln, Hendersonville, Tennessee, for the appellee, Tracey
L. (Yanusz) Taylor.                

Judge: KOCH

First Paragraph:

This appeal involves a dispute over the custody of a five-year-old
boy.  His parents were divorced following his mother's extramarital
affair.  Their marital dissolution agreement established a joint
custody arrangement with the father having primary physical custody. 
Following an unsuccessful two-year reconciliation effort, the child's
mother petitioned the Sumner County General Sessions Court for sole
custody.  The father insisted that the child's circumstances had not
changed and that he continued to be more fit than the mother to be the
child's primary custodian.  The trial court, sitting without a jury,
determined that the child's circumstances had changed and that the
child's interests would be best served by placing him in his mother's
custody.  The father asserts on this appeal that the child's
circumstances have not changed materially and that the evidence does
not support giving sole custody to the mother.  While we have
determined that the child's circumstances changed following his
parents' divorce, we have determined that the evidence preponderates
against the trial court's conclusion that the changes are so
escalating and dangerous that they required a change in the original
custody arrangement.  Accordingly, we vacate the order awarding the
mother sole custody of the child and remand the case for further
proceedings.

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

AMY WILSON, JUDITH JOHNSON, and DANIEL POWELL 
v. WOODLAND PRESBYTERIAN SCHOOL

Court:TCA

Attorneys:  

Saul C. Belz, Robert S. Kirk, and Quitman R. Ledyard, Memphis,
Tennessee, for the appellant, Woodland Presbyterian School.

Richard L. Winchester, Memphis, Tennessee, for the appellees, Amy
Wilson, Judith Johnson, and Daniel Powell.

Judge: LILLARD

First Paragraph:

This case involves the application of protective covenants in a
residential subdivision.  The plaintiffs are homeowners in the
subdivision.  The defendant school is located adjacent to the
subdivision and also owns two lots in the subdivision. These two lots
are near the plaintiffs' lots.  All lots in the subdivision are
subject to a protective covenant which limits structures to one or two
family dwellings and incidental outbuildings.  The school began
building a playground on its lots.  The plaintiff homeowners filed a
lawsuit to enforce the protective covenants.  After trial, the trial
court ordered the removal of permanent playground equipment but
allowed use of movable playground equipment on the school's lots.  The
school then obtained the approval of a majority of the lot owners in
the subdivision of an amendment to the covenants to remove the
restrictions from the two lots owned by the school.  In light of this,
the school filed a motion to modify the judgment.  The trial court
denied the motion, finding that the amendment was void because it did
not apply to all lots within the subdivision.  The school appealed. 
We affirm, finding that the homeowners are not barred from enforcing
the protective covenant and that, because the amendment to the
covenant was neither applicable to all of the lots subject to the
covenant nor approved by nearby affected lot owners, the amendment was
invalid.

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

WILLIAM R. DIAZ v. STATE OF TENNESSEE

Court:TCCA

Attorneys:  

Mart S. Cizek, Clinton, Tennessee, for the appellant, William R. Diaz.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; James N. Ramsey, District Attorney
General; and Jan Hicks, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: TIPTON

First Paragraph:

The petitioner, William R. Diaz, appeals the Anderson County Criminal
Court's denial of his petition for post-conviction relief, claiming
that he received the ineffective assistance of counsel.  He contends
that his trial attorney was ineffective for (1) failing to file a
motion to suppress his statement to the police on the grounds that it
was coerced and (2) failing to file a motion to suppress evidence that
the police took from his garage without a search warrant.  We affirm
the judgment of the trial court.

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

STATE OF TENNESSEE v. HERMAN HOLSTON

Court:TCCA

Attorneys:

A C Wharton, Jr., Shelby County Public Defender; W. Mark Ward,
Assistant Shelby County Public Defender, for the Appellant, Herman
Holston.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Angele M. Gregory, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Katrina Earley and
John Tibbetts, Assistant District Attorneys General, for the Appellee,
State of Tennessee.                      

Judge: HAYES

First Paragraph:

The Appellant, Herman Holston, was convicted after a trial by jury of
sale of cocaine, a class C felony, and was sentenced as a Range II
offender to eight years and six months confinement in the Department
of Correction.  On appeal, Holston raises the following issues for our
review:  (1)  whether the evidence was sufficient to support the
verdict, and (2) whether his sentence was proper.  After a review of
the record, we find that Holston's issues are without merit. 
Accordingly, the judgment of the Shelby County Criminal Court is
affirmed.

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

STATE OF TENNESSEE v. JUDY JOHNSON and STANLEY JOHNSON

Court:TCCA

Attorneys:  

Scott G. Kirk, Jackson, Tennessee, for the appellants, Judy Johnson
and Stanley Johnson.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek,
Assistant Attorney General; Garry G. Brown, District Attorney General;
Larry Hardister, Assistant District Attorney General; and Hal Dorsey,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: GLENN

First Paragraph:

The husband and wife defendants, Stanley and Judy Johnson, were
convicted of eleven counts of cruelty to animals, as the result of
conditions at a kennel in Gibson County where they were keeping
approximately 350 dogs.  Stanley Johnson was sentenced to eleven
months and twenty-nine days on each count, with all sentences to be
served concurrently, and, as to these sentences, to serve ninety days
in the county jail with the remainder on probation.  Judy Johnson was
sentenced, likewise, to eleven months and twenty-nine days on each
count, with all sentences to be served concurrently, but she was to
serve six months before being put on probation.  Both defendants were
fined $1000 in each of the eleven counts.  On appeal, they argue that
the trial court erred in allowing testimony as to a prior similar
complaint against Stanley Johnson and in denying total probation for
both.  Additionally, they argue that the proof is insufficient to
sustain the verdicts.  We affirm the judgments of conviction.

http://www.tba.org/tba_files/TCCA/johnsonjudy_opn_wpd

STATE OF TENNESSEE v. JUDY JOHNSON and STANLEY JOHNSON

Court:TCCA

WADE CONCURRING

http://www.tba.org/tba_files/TCCA/johnsonjudy_con_wpd

STATE OF TENNESSEE v. ERNEST LEE LITTLES

Court:TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Joseph P.
Atnip, District Public Defender, Dresden, Tennessee (of counsel on
appeal); and Charles Perry Roney, Union City, Tennessee (at trial),
for the appellant, Ernest Lee Littles.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Thomas A. Thomas, District
Attorney General; and James T. Cannon, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: GLENN

First Paragraph:

An Obion County Circuit Court jury convicted the defendant, Ernest Lee
Littles, of rape of a child, a Class A felony.  The trial court
sentenced him as a child rapist to twenty years in the Tennessee
Department of Correction, with 100% of the sentence to be served.  In
his appeal as of right, the defendant claims only that there was
insufficient evidence to support his conviction.  We affirm the
judgment of the trial court but remand for entry of a corrected
judgment.

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

STATE OF TENNESSEE v. RICKY RAY REED, JR., aka "RICCO"

Court:TCCA

Attorneys:

Gary F. Antrican, District Public Defender, and David S. Stockton,
Assistant District Public Defender, for the appellant, Ricky Ray Reed,
Jr.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and James W. Freeland, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

The defendant was indicted for first degree murder and convicted by
the jury of second degree murder.  He filed a petition for
post-conviction relief, and was permitted to make a delayed motion for
a new trial, which ultimately was denied by the trial court.  The
defendant appeals the denial, arguing that the evidence at trial was
insufficient to support his conviction for second degree murder. 
After a review of the record, we conclude that there was sufficient
evidence to convict the defendant of second degree murder and that the
trial court properly denied the defendant's motion for judgment of
acquittal and a new trial.

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

STATE OF TENNESSEE v. PATSY WEBSTER

Court:TCCA

Attorneys:

Guy T. Wilkinson, District Public Defender, and W. Jeffery Fagan,
Assistant District Public Defender, for the appellant, Patsy Webster.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Steven L. Garrett, Assistant District Attorney General,
for the appellee, State of Tennessee.                         

Judge: TIPTON

First Paragraph:

The defendant, Patsy Webster, appeals the Henry County Circuit Court's
ordering her to serve one year of her effective two-year sentence in
continuous confinement.  She claims that the trial court erred in
requiring her to serve a full year in jail because she was eligible as
a Range I offender with only a two-year sentence for release after
serving thirty percent of her sentence.  The state agrees.  We hold
that the defendant was improperly sentenced and remand the case for
resentencing.

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

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