Opinion Flash

July 11, 2002
Volume 8 — Number 118

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
05 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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


CHRISTINE P. BILYEU v. BOBBY K. BILYEU

Court:TCA

Attorneys: 

Robert L. Marlow, Shelbyville, Tennessee, for Appellant Bobby K.
Bilyeu.

Thomas E. Looney, Crossville, Tennessee, for Appellee Christine P.
Bilyeu.                         

Judge: FRANKS

First Paragraph:

The Trial Court ordered the parties divorced and classified and
divided marital property.  Both parties appeal.  We affirm, as
modified.

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

STATE OF TENNESSEE, ex rel. FRANKIE DAVIS (GANT) v. JASON DAVIS

Court:TCA

Attorneys: 

Paul G. Summers, Attorney General & Reporter, Stuart F. Wilson-Patton,
Senior Counsel, for Appellant, State of Tennessee, ex rel., Frankie
Davis (Gant)

No brief submitted by appellee.                         

Judge: CRAWFORD

First Paragraph:

In this post-divorce proceeding, the State of Tennessee filed a
petition against Mr. Jason Davis (hereinafter "Father") for contempt
and seeking child support arrears ordered to be paid to the custodial
parent, Ms. Frankie Davis (Gant) (hereinafter "Mother").  The trial
court granted the State a judgment in the amount of $1,660.00,
representing the amount of State assistance paid to the Mother and
children, to be liquidated by the Father at the rate of $10.50 per
week.  The State has appealed.  We affirm as modified in part, reverse
in part, and remand.

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

THE NATIONAL MUTUAL INSURANCE COMPANY v. JO IVORY POLK

Court:TCA

Attorneys:  

Jo Ivory Polk, Pro Se

James F. Kyle, Karen M. Campbell, Memphis, For Appellee, The National
Mutual Insurance Company                        

Judge: CRAWFORD

First Paragraph:

This is a declaratory judgment action brought by an insurer seeking to
void a property insurance policy for alleged misrepresentation in the
application for the policy.  The insured filed a counter claim seeking
recovery under the policy.  The trial court granted the insurance
company's motion for summary judgment and declared the policy void ab
initio.  We reverse and remand.

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

CAROLYN E. PHELPS v. MICHAEL MCGILL, COMMISSIONER OF THE TENNESSEE
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, et al.

Court:TCA

Attorneys: 

Michael G. Tollison, Humboldt, For Appellant, Carolyn E. Phelps

Paul G. Summers, Attorney General and Reporter, Warren A. Jasper,
Assistant Attorney General,  for Appellee, Michael McGill

P. Allen Phillips, Jackson, For Appellee, Maytag Jackson

Judge: CRAWFORD

First Paragraph:

Plaintiff was discharged from her employment for making a false
statement concerning her health in her application for employment to
defendant-employer.  The false statement was discovered some years
after her employment commenced when she sustained an injury at work
which had no relation to the false answers in the application. 
Plaintiff was denied unemployment benefits because of work-related
misconduct which was affirmed by the Board of Review.  Plaintiff filed
a Petition for Judicial Review in the chancery court.  The chancery
court affirmed the Board of Review, and plaintiff appeals.  We affirm.

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

LILLARD ANTHONY WATTS v. THE KROGER COMPANY

Court:TCA

Attorneys:  

Harry U. Scruggs, Jr., Memphis, For Appellant, Lillard Anthony Watts

D. Scott Turner, Memphis, for Appellee, The Kroger Company                        

Judge: CRAWFORD

First Paragraph:

This is a personal injury case dismissed by the trial court as barred
by the statute of limitation because it was filed more than one year
after the first voluntary nonsuit.  Plaintiff filed a motion to alter
or amend the order of dismissal pursuant to Tenn. R. Civ. P. 59.04 and
also filed a Tenn. R. Civ. P. 60.02 motion to set aside the orders of
nonsuit as invalid.  The trial court denied both motions, and
plaintiff has appealed.  We affirm.

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

STATE OF TENNESSEE v. JOSEPH ANTONIO HOUGH

Court:TCCA

Attorneys:    

Joseph Antonio Hough (at trial), Mountain City, Tennessee, Pro Se, and
Gerald L. Gulley, Jr. (on appeal), Knoxville, Tennessee, for the
appellant, Joseph Hough.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; C. Berkeley Bell, District Attorney
General; and Chris Scruggs, Assistant District Attorney General, for
the appellee, State of Tennessee.                      

Judge: MCGEE OGLE

First Paragraph:

The appellant, Joseph Antonio Hough, was convicted of two counts of
delivering cocaine and was sentenced as a Range II offender to a total
effective sentence of twenty-three years incarceration in the
Tennessee Department of Correction.  On appeal, the appellant raises
the following issues for our review: (1) whether the trial court
committed legal error by allowing the appellant to represent himself,
and (2) whether the trial court erred in sentencing the appellant. 
Upon review of the record and the parties' briefs, we affirm the
judgments of the trial court.

http://www.tba.org/tba_files/TCCA/houghja1.wpd

LESTER JOHNSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Julie Waroway, Sevierville, Tennessee (at trial), and Robert M. Burts,
Rutledge, Tennessee (on appeal), for the appellant, Lester Johnson.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; and Charles E. Atchley, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.                     

Judge: WADE

First Paragraph:

The petitioner, Lester Johnson, appeals the trial court's denial of
his petition for post-conviction relief.  In this appeal, the
petitioner contends (1) that he was denied the effective assistance of
counsel and (2) that the trial judge who presided over the revocation
hearing was not impartial.  The judgment is affirmed.

http://www.tba.org/tba_files/TCCA/johnsonl1.wpd

STATE OF TENNESSEE v. DERRICK WAYNE KEMBEL

Court:TCCA

Attorneys:

Jon A. Anderson, Maryville, Tennessee, for the appellant, Derrick
Wayne Kembel.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; and Mike Flynn, District Attorney General,
for the appellee, State of Tennessee.

Judge: MCGEE OGLE

First Paragraph:

The appellant, Derrick Wayne Kembel, entered guilty pleas in the
Blount County Circuit Court to seven counts of theft and was granted
immediate probation.  Soon thereafter, the trial court revoked the
appellant's probation due to the appellant's failure to comply with
the terms of his release.  On appeal, the appellant contends that the
trial court erred when it revoked his probation and sentenced him to
serve the balance of his sentence in incarceration.  Upon review of
the record and the parties' briefs, we affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. GERALD E. SAYLOR

Court:TCCA

Attorneys:       

Clifton L. Corker, Johnson City, Tennessee, for the appellant, Gerald
E. Saylor.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Victor J. Vaughn, Assistant District Attorney General,
for the appellee, State of Tennessee.                   

Judge: TIPTON

First Paragraph:

The defendant, Gerald E. Saylor, was convicted by a Washington County
Criminal Court jury of voluntary manslaughter, a Class C felony, and
the trial court sentenced him as a Range III, persistent offender to
fifteen years imprisonment.  The defendant appeals, claiming that: (1)
the evidence is insufficient to support his conviction; (2) the trial
court erred in denying his motion to suppress his confession; (3) the
trial court erred in excluding testimony that several hours before the
killing the victim had stated to a third party that he was going to
kill the defendant; (4) the trial court erred in excluding testimony
to rebut the state's inference that the defendant planted weapons on
the victim and that the victim had made prior threats to the
defendant; (5) the trial court erred by failing to declare a mistrial
when the jury heard references to his being "on parole" and "on the
run"; and (6) the trial court erred in its application of enhancement
and mitigating factors to his sentence.  Although we conclude that
enhancement factor (5) regarding exceptional cruelty should not have
been applied, we affirm the judgment of the trial court.

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

JOHN PAUL SEALS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Greg W. Eichelman, District Public Defender, for the appellant, John
Paul Seals.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney
General; and Chris Scruggs, Assistant District Attorney General, for
the appellee, State of Tennessee.                        

Judge: TIPTON

First Paragraph:

The petitioner, John Paul Seals, appeals as of right the Hamblen
County Criminal Court's denial of his petition for post-conviction
relief, which the court deemed to be filed outside of the statute of
limitations.  He contends that the trial court should have granted his
motion for the appointment of an additional psychological expert in
order that he might prove that his mental incompetence tolled the
statute of limitations.  We affirm the trial court's denial of the
petition.

http://www.tba.org/tba_files/TCCA/sealsjp1.wpd

Unauthorized Practice of Law - Private Right of Action - Standing -
Courts - Completion of Form Contracts in the Sale or Lease of Personal
Property

Date: July 3, 2002

Opinion Number: 02-078                          

http://www.tba.org/tba_files/AG/2002/OP78.pdf

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