Opinion Flash

July 9 2002
Volume 8 — Number 116

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):
 
05 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
04 New Opinion(s) from the Tennessee Court of Appeals
04 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


KELLY RAE GRAY v. DAVID WAYNE GRAY

Court:TSC

Attorneys:  

David Wayne Gray, Woodbury, Tennessee, for the appellant, David Wayne
Gray.

William W. Burton, Murfreesboro, Tennessee, for the Appellee, Kelly
Rae Gray.                        

Judge: HOLDER

First Paragraph:

We granted this appeal to address the propriety of a trial court's
award of child support to a parent who is not the primary residential
parent.  We hold that the Child Support Guidelines require that child
support may be awarded only to the primary residential parent under
the parenting plan approved by the trial court.  We further hold that
the use of a comparative analysis of the parties' earnings is improper
under the Child Support Guidelines.  We therefore reverse the trial
court's judgment, reverse the judgment of the Court of Appeals, and
remand this case to the trial court for consideration of an award of
child support to the primary residential parent, David Wayne Gray.

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

WOO-JUN KI, et al. v. THE STATE OF TENNESSEE

Court:TSC

Attorneys:

Barbara Hawley Smith and William Daniel Leader, Jr., Nashville,
Tennessee, for the appellants, Woo-Jun Ki and Jeong-Gyung Ki.

Alan M. Parker, Knoxville, Tennessee; and Paul G. Summers, Attorney
General and Reporter; Michael E. Moore, Solicitor General; and
Kimberly J. Dean, Deputy Attorney General, for the appellee, State of
Tennessee.                        

Judge: HOLDER

First Paragraph:

We granted appeal to determine the meaning of "claimant" in Tenn. Code
Ann. S 9-8-307(e) when an action for wrongful death is filed against
the State.  We hold that the decedent is the sole "claimant" under
Tenn. Code Ann. S 9-8-307(e), as contemplated by Tenn. Code Ann. S
20-5-106(a) and Tenn. Code Ann. S 20-5-113.  The award of damages is
therefore limited to $300,000 pursuant to Tenn. Code Ann. S 9-8-307. 
The judgment of the Court of Appeals is affirmed, and the case is
remanded to the trial court for proceedings consistent with this
opinion.

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

MARTHA BOWEN LANGSCHMIDT v. CARL H. LANGSCHMIDT

Court:TSC

Attorneys:

John F. Heflin, III, and Kenneth P. Jones, Memphis, Tennessee, for the
Appellant, Martha Bowen Langschmidt.

Kathy Laughter Laizure and Roscoe A. Feild, Memphis, Tennessee, for
the Appellee, Carl H. Langschmidt.                         

Judge: DROWOTA

First Paragraph:

We granted permission to appeal in this divorce case to determine: (1)
Whether the Court of Appeals erred in holding that the appreciation of
a spouse's separate investment accounts during the marriage is
separate property since the appreciation in value was entirely
market-driven; (2) whether the Court of Appeals erred in failing to
consider whether the commingling of marital earnings with separate
property converts the separate property into marital property; (3)
whether the increase in value of a spouse's separate Individual
Retirement Account ("IRA") during the marriage is automatically
marital property under Tenn. Code Ann. S 36-4-121(b)(1)(B) when the
IRA is funded entirely with premarital earnings; (4) whether the Court
of Appeals erred in holding that the trial court's division of the IRA
was equitable; (5) whether the Court of Appeals erred in reversing the
trial court's award of attorney's fees; and (6) whether the Court of
Appeals erred in failing to remand this case for a determination of
rehabilitative alimony.  For the following reasons, we hold that the
appreciation of a spouse's separate investment accounts remains
separate property when the appreciation is entirely market-driven and
the other spouse does not substantially contribute to the preservation
and appreciation of the accounts.  We also hold that the appreciation
of a spouse's IRA during the marriage is separate property when funded
completely with premarital earnings and absent substantial
contribution by the other spouse to the preservation and appreciation
of the IRA.  Finally, we remand to the trial court to determine
whether marital earnings were commingled with separate assets in this
case, whether rehabilitative alimony is appropriate now that the
above-mentioned assets are deemed separate property, whether an award
of attorney's fees is appropriate, and whether the distribution of the
remaining marital property is equitable given our decision in this
case.  Therefore the judgment of the Court of Appeals is affirmed in
part and reversed in part, and this case is remanded.

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

PLANTERS GIN COMPANY v. FEDERAL COMPRESS & WAREHOUSE 
COMPANY, INC., et al.

Court:TSC

Attorneys:     

Michael B. Neal and Daniel W. Van Horn, Memphis, Tennessee, for the
appellant, Federal Compress & Warehouse Company, Inc.

Allan B. Thorp, Memphis, Tennessee, for the appellee, Planters Gin
Company.

Judge: BIRCH

First Paragraph:

This appeal from a denial of summary judgment arises from a contract
dispute between Planters Gin Company and Federal Compress & Warehouse
Company, Inc.  Federal Compress & Warehouse Company, Inc. leased
warehouse space to Planters Gin Company.  At issue is whether an
indemnity clause holding Federal Compress & Warehouse Company, Inc.
harmless for "any liability or loss" arising out of the "use of the
premises" and requiring Planters Gin Company to carry insurance on the
contents stored in the warehouse bars recovery against Federal
Compress & Warehouse Company, Inc. for damages caused by negligence
occurring in an adjacent storage compartment.  We find the contract
unambiguous and valid.  Accordingly, we hold that the indemnity
provision limiting Federal Compress & Warehouse Company, Inc.'s
liability is enforceable and bars recovery under the facts of this
case.  The Court of Appeals's judgment against Federal Compress &
Warehouse Company, Inc. is reversed, and the judgment of the trial
court is reinstated.

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

CORRECTED VERSION: CORRECTION ON PAGE 21
STATE OF TENNESSEE  v.  WILLIAM R. STEVENS 

Court:TSC

Attorneys:    

Brock Mehler and F. Michie Gibson, Nashville, Tennessee, for the
appellant, William R. Stevens. 

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Jennifer L. Smith, Assistant Attorney General,
Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: BARKER

First Paragraph:

The defendant was found guilty by a Davidson County jury of hiring
eighteen year-old Corey Milliken to murder his wife, Sandra Jean
Stevens, and his mother-in-law, Myrtle Wilson.  He was also convicted
of especially aggravated robbery.  The jury found two aggravating
circumstances:  (1) The defendant was previously convicted of one or
more felonies, other than the present charge, whose statutory elements
involve the use of violence to the person, Tenn. Code Ann. S 39-13-
204(i)(2); and (2) the defendant employed another to commit the
murders for the promise of remuneration, Tenn. Code Ann. S
39-13-204(i)(4).  Finding that the aggravating circumstances
outweighed the mitigating circumstances beyond a reasonable doubt, the
jury sentenced the defendant to death for the murder of each victim. 
On the especially aggravated robbery conviction, the court sentenced
the defendant to life without parole as a repeat violent offender with
the sentence to run consecutively to both death sentences.  The Court
of Criminal Appeals affirmed the defendant's convictions and sentences
of death.  On automatic appeal to this Court, we affirm and hold as
follows:  (1) the trial court did not abuse its discretion in limiting
the testimony of defendant's crime scene expert to his analysis of the
evidence at the crime scene; (2) the trial court's exclusion of the
testimony of Corey Milliken's foster father regarding Milliken's prior
bad acts constituted harmless error; (3) the trial court applied
hearsay and other evidentiary rulings in an unbiased and even-handed
manner; and (4) the sentence of death is not disproportionate to the
sentence imposed in similar cases.  For all other issues not
specifically discussed in this opinion, we agree with and affirm the
judgment of the Court of Criminal Appeals.

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

JOSEPH A. CASHIA, et al. v. BRUCE A. HANCOCK, et al.

Court:TCA

Attorneys:

Barbara Jones Perutelli, Nashville, Tennessee, for the appellant,
Bruce A. Hancock d/b/a Hancock Construction Company.

Gail Payne Pigg, Nashville, Tennessee, for the appellees, Joseph A.
and Suellyn Cashia.                         

Judge: CANTRELL

First Paragraph:

These actions were consolidated for trial.  Mr. Hancock filed suit to
recover the balance owing on a contract to build a residence for Mr.
and Mrs. Cashia, who counter-claimed and also filed a complaint
against Mr. Hancock for damages for breach of contract, fraudulent
inducement to contract, and violation of the Tennessee Consumer
Protection Act.  The trial judge dismissed Mr. Hancock's complaint,
and found that he violated the Tennessee Consumer Protection Act,
Tennessee Code Annotated S 47-18-104, and awarded damages in the
amount of $100,000.00 and attorney fees.  We reverse and render.

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

JACKIE D. DILLARD v. MEHARRY MEDICAL COLLEGE, et al.

Court:TCA

Attorneys:

Ann Buntin Steiner, Nashville, Tennessee, for the appellant, Jackie D.
Dillard.

Bryan Essary, Nashville, Tennessee, for the appellee, Meharry Medical
College.

E. Reynolds Davies, Jr. and John T. Reese, Nashville, Tennessee, for
the appellee, Reginald Coopwood, M.D.

Judge: CANTRELL

First Paragraph:

The jury returned a verdict for the defendant surgeon and hospital in
this medical malpractice action. The plaintiff argues on appeal that
the trial court committed reversible error at several stages of the
trial, including jury selection, witness testimony and jury
instructions.  We affirm the trial court.

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

TONYA PETRECE RAY v. WILLIAM MARTIN RAY

Court:TCA

Attorneys:

Clark Lee Shaw, Nashville, Tennessee, for the appellant, Stephen Eric
Staggs.

John M. L. Brown, Nashville, Tennessee, for the appellee, William M.
Ray.                        

Judge: KOCH

First Paragraph:

This extraordinary appeal involves a dispute over the custody of
four-year-old twins.  On October 5, 2001, this court vacated an order
of the Circuit Court for Davidson County granting custody of the twins
to the former husband of their biological mother and remanded the case
for the purpose of determining whether the twins' biological father is
currently fit to have custody and whether placing the twins in his
custody will expose them to substantial harm.  On June 27, 2002, the
trial court declined to permit the biological father to continue
visitation with the twins pending court-ordered psychological
evaluations of the biological father and the twins.  We have
determined that the June  27, 2002 order must be vacated because it
lacks evidentiary support and is based on a significant
misinterpretation of our October 5, 2001 opinion.

http://www.tba.org/tba_files/TCA/raytp1.wpd

STRATEGIC CAPITAL RESOURCES, INC., et al. v. DYLAN TIRE INDUSTRIES,
LLC, et al.

Court:TCA

Attorneys:    

Robert C. Goodrich, Jr. and Ronald G. Steen, Jr., Nashville,
Tennessee, for the appellants, Strategic Capital Resources, Inc. and
FPE Funding, LLC.

C. Brooks Wood and Erik P. Klinkenborg, Kansas City, Missouri, and
Robb S. Harvey, Nashville, Tennessee, for the appellees, Dylan Tire
Industries, LLC and Dylan Custom Mixing, LLC.

Thomas Lawrence Stewart, Charles W. Cook, III, and Mark A.
Bogdanowicz, Nashville, Tennessee, for the appellee GMAC Commercial
Credit LLC.

Blakeley D. Matthews, Nashville, Tennessee, for the appellee, Pirelli
Tire LLC.                      

Judge: CANTRELL

First Paragraph:

Strategic Capital Resources, Inc. and FPE Funding, LLC sued the buyer
and seller of the Pirelli tire plant in Nashville and other parties
involved in structuring and financing the transaction.  The complaint
alleged that the buyer and seller breached an agreement with
Strategic, and that other parties were guilty of fraud, inducement of
breach of contract, conspiracy, and had been unjustly enriched at the
expense of Strategic..  The Chancery Court of Davidson County granted
the defendants' Tenn. R. Civ. P. 12.06 motion to dismiss because
Strategic's contract with the buyers did not bind the buyer to deal
exclusively with Strategic.  We affirm.

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

WILLIAM BRIAN BELSER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:   

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant,
William Brian Belser.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and Robert L. Jolley, Assistant District
Attorney General, for the appellee, the State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, William Brian Belser, appeals the trial court's denial
of his petition for post- conviction relief.  In this appeal, the
petitioner asserts that he was denied the effective assistance of
counsel at trial.  The judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. JAMES C. MCFALL

Court:TCCA

Attorneys:     

Greg Eichelman, Morristown, Tennessee, for the appellant, James C.
McFall.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; C. Berkeley Bell, District Attorney
General, and Douglas Godbee, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, James McFall, was found guilty by a jury of violating a
motor vehicle habitual offender order.  The trial court subsequently
sentenced the Defendant as a multiple, Range II offender to three
years in the Department of Correction, to be served consecutively to a
prior sentence.  The Defendant now appeals, challenging the
sufficiency of the indictment; the sufficiency of the evidence; the
trial court's instructions to the jury; and the efficacy of the
State's Notice of Intent to Seek Enhanced Punishment.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. MICHAEL SHANE POWELL

Court:TCCA

Attorneys:

Lee Davis, Chattanooga, Tennessee, for the appellant, Michael Shane
Powell.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Bill Cox, District Attorney General; and
Barry Steelman and Christopher Poole, Assistant District Attorneys
General, for the appellee, State of Tennessee.                      

Judge: WELLES

First Paragraph:

The Defendant, Michael Shane Powell, was convicted by a jury of first
degree felony murder by aggravated child abuse, and aggravated child
abuse.  The trial court subsequently sentenced the Defendant to life
imprisonment for the murder, and to a concurrent term of twenty years
for the aggravated child abuse.  In this direct appeal, the Defendant
challenges the sufficiency of the evidence; the admission of proof of
a prior alleged instance of child abuse; and the constitutionality of
his dual convictions for felony murder by aggravated child abuse, and
aggravated child abuse.  We affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. ROBYN RENEE RAINER

Court:TCCA

Attorneys:

Shawn W. Graham, Maryville, Tennessee, for the appellant, Robyn Renee
Rainer.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Mike Flynn, District Attorney General; and
John Bobo, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Robyn Renee Rainer, pled guilty to one count of
possession of cocaine with intent to sell and deliver.  Her plea
agreement included an agreed sentence of eight years as a Range I
standard offender, with the manner of service to be imposed by the
trial court.  After a hearing, the trial court placed the Defendant on
community corrections.  Following the Defendant's second violation of
the terms of her community corrections sentence, the trial court
revoked the Defendant's community corrections status and ordered that
her sentence be served in the Department of Correction.  The Defendant
now appeals the trial court's ruling.  We affirm the judgment of the
trial court.

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

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