Opinion Flash

August 21, 2002
Volume 8 — Number 146

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


MARTHA BOWEN LANGSCHMIDT v. CARL H. LANGSCHMIDT
(Original opinion filed July 9, 2002; current opinion substituted for
original.)

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/langschmidtrevised.wpd

JUDY C. BURROUGHS, INDIVIDUALLY, AND AS SURVIVING SPOUSE AND PERSONAL
REPRESENTATIVE OF THE ESTATE OF HAROLD L. BURROUGHS, DECEASED v.
ROBERT W. MAGEE, M.D.

Court:TCA

Attorneys:

J. Houston Gordon and Jason G. Whitworth, Covington, Tennessee, for
the Appellant, Judy C. Burroughs.

Hubert B. Jones and Gary H. Nichols, Dyersburg, Tennessee, for the
Appellee, Robert W. Magee, M.D.

Judge: LILLARD

First Paragraph:

This is a personal injury and wrongful death case.  The plaintiff and
her husband were involved in an automobile accident.  The plaintiff
sued the driver of the other vehicle for her husband's wrongful death
as well as for injuries she sustained in the accident.  The plaintiff
named the driver's physician as an additional tortfeasor, alleging
that the physician negligently prescribed drugs to a known drug
addict, negligently prescribed two contraindicated drugs, and
negligently failed to warn his patient of the risks of driving while
under the influence of the drugs.  The trial court granted the
physician's motion for summary judgment on the grounds that the
physician had no duty to unidentifiable third parties such as the
plaintiff.  We affirm in part and reverse in part, finding that the
physician owed a duty to the plaintiff and the decedent to warn his
patient of the risks of driving while under the influence of the
prescribed drugs.

http://www.tba.org/tba_files/TCA/burroughsj1.wpd

STATE OF TENNESSEE v. JEFF L. COURTNEY, III

Court:TCCA

Attorneys:

Paul G. Whetstone, Morristown, Tennessee, for the Appellant, Jeff L.
Courtney, III.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; C. Berkeley Bell, Jr., District
Attorney General; and Paige Collins, Assistant District Attorney
General, for the Appellee, State of Tennessee.                        

Judge: WEDEMEYER

First Paragraph:

The Hamblen County Grand Jury indicted the Defendant, Jeff L.
Courtney, III, for one count of driving under the influence, per se
and for one count of driving under the influence, second offense.  A
Hamblen County jury convicted the Defendant of driving under the
influence, second offense, and the trial court imposed a sentence of
eleven months and twenty-nine days.  The Defendant now appeals his
conviction, arguing that the trial court improperly commented on the
evidence at trial, that the trial court improperly instructed the
jury, and that the evidence presented at trial was insufficient to
support the Defendant's conviction.  We conclude that the trial court
did not improperly comment on the evidence, that the jury instructions
were proper, and that sufficient evidence was presented at trial to
support the Defendant's conviction. Therefore, we affirm the judgment
of the trial court.

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

STATE OF TENNESSEE v. RICKY RAY HUMPHREY

Court:TCCA

Attorneys:

Timothy P. Webb, Jacksboro, Tennessee, for the appellant, Ricky Ray
Humphrey.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
Assistant Attorney General; William Paul Phillips, District Attorney
General; and Michael Ripley, Assistant District Attorney General, for
the appellee, State of Tennessee.                       

Judge: WELLES

First Paragraph:

On October 19, 2000, the Defendant entered "best interest" guilty
pleas to two counts of child abuse and neglect and three counts of
indecent exposure.  Pursuant to his plea agreement, the Defendant
received five sentences of 11 months and 29 days to be served at 75%. 
The plea agreement apparently contemplated a hearing to determine the
manner of service of the sentence.  Following a hearing, the trial
court ordered the Defendant to serve a split sentence on the first
count with three months to be served on county work release and the
balance of the sentence to be served on supervised probation.  The
court ordered each of the remaining sentences to be served on
probation and consecutive to the split sentence, for an effective
sentence of five years.  It is from this order the Defendant now
appeals as of right.  We affirm the judgment of the trial court.

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

CLESSIE T. JACO, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

John S. Colley, III, Columbia, Tennessee, for the Appellant, Clessie
T. Jaco, Jr.

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

Judge: HAYES

First Paragraph:

The Appellant, Clessie T. Jaco, Jr., appeals the Maury County Circuit
Court's dismissal of his petition for post-conviction relief.  In
1997, Jaco pled guilty to two counts of attempted rape.  Following a
sentencing hearing, Jaco, a Range I Standard Offender, received two
consecutive six- year sentences to be served in the Department of
Correction.  On appeal, Jaco argues that his guilty plea was
involuntary because he was not informed that prior to release on
parole he would be required to undergo a mental health evaluation
pursuant to Tennessee Code Annotated S 40-35- 503(c) (1997).  After a
review of the record, we find no error.  Accordingly, the judgment of
the post-conviction court dismissing the petition is affirmed.

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

STATE OF TENNESSEE v. TERRY DEWAYNE OGLE

Court:TCCA

Attorneys:

George H. Waters, Maryville, Tennessee, for the appellant, Terry
DeWayne Ogle.

Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan,
Assistant Attorney General;  and Edward P. Bailey, Jr., and Kirk
Andrews, Assistant District Attorneys General, for the appellee, State
of Tennessee.                       

Judge: WADE

First Paragraph:

The defendant, Terry DeWayne Ogle, indicted for one count of
aggravated assault, was convicted of the lesser included offense of
assault.  The trial court imposed a sentence of 11 months and 29 days.
 In this appeal of right, the defendant challenges the sufficiency of
the evidence.  The judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. CHESTER LEE SMITH, II

Court:TCCA

Attorneys:

Ardena J. Garth, District Public Defender; Melanie R. Snipes,
Assistant District Public Defender (at trial); and Mike A. Little,
Chattanooga, Tennessee (on appeal), for the appellant, Chester Lee
Smith, II.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Thomas E. Kimball, Assistant District Attorney General,
for the appellee, State of Tennessee.                          

Judge: RILEY

First Paragraph:

A Hamilton County jury found the defendant guilty of DUI, third
offense.  On appeal, the sole issue is whether the trial court erred
in not allowing the defendant to present testimony from a local health
department nurse regarding the health department's procedures for
storing and transporting blood samples, which are procured by the
local health department for reasons unrelated to blood alcohol
testing.  We affirm the judgment of the trial court.

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

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