Opinion Flash

September 12, 2002
Volume 8 — Number 159

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
09 New Opinion(s) from the Tennessee Court of Appeals
06 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


VICKIE BARA, et al. v. CLARKSVILLE MEMORIAL HEALTH SYSTEMS, INC.,
d/b/a CLARKSVILLE MEMORIAL HOSPITAL, ET AL.

Court:TCA

Attorneys:   

Joe Bednarz, Sr. and Joe Bednarz, Jr., Nashville, Tennessee, for the
appellants, Vickie Bara and John Paul Bara.

Wayne L. Robbins, Jr., Nashville, Tennessee, for the defendant, David
S. Miller, M.D.

Robert L. Trentham and G. Brian Jackson, Nashville, Tennessee, for the
appellee, Clarksville Memorial Hospital.                       

Judge: CAIN

First Paragraph:

Parents of deceased child sued Clarksville Memorial Hospital and Dr.
David Miller for the death of their child.  They alleged this death
occurred due to Defendants' mis-diagnosis of their daughter's injuries
following an automobile accident and subsequent incorrect and
negligent treatment.  The jury returned a verdict for Defendants. 
Plaintiffs now appeal alleging two points of error in the jury
instructions; (1) that it was error to charge the jury that Plaintiffs
must prove causation to a reasonable degree of medical certainty and;
(2) that it was error to charge the jury that they must find the
child's death to be reasonably foreseeable.  We find that the jury
instructions on reasonable degree of medical certainty and
foreseeability were incorrect statements of the law, confusing to the
jury, and more probably than not, affected the jury's verdict.  We
thus reverse the judgment and remand for a new trial as to Defendant
Miller.  We affirm the judgment in favor of Clarksville Memorial
Hospital.

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

BEDFORD COUNTY, TENNESSEE v. JOSEPH J. BIALIK

Court:TCA

Attorneys:     

Joseph James Bialik, Chapel Hill, Tennessee, Pro Se.

Ginger Bobo Shofner, John T. Bobo, Shelbyville, Tennessee, for the
appellee Bedford County, Tennessee.                     

Judge: COTTRELL

First Paragraph:

A landowner appeals from a decision finding him in violation of county
zoning laws, ordering him to take corrective measures, and enjoining
future activities of the same type.  Because the record before us does
not include a transcript of the trial or a statement of the evidence,
we must presume the evidence supported the trial court's findings and,
consequently, affirm.

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

JOE BURTON v. WARREN FARMERS COOPERATIVE

Court:TCA

Attorneys:

Chantal M. Eldridge, Cookeville, Tennessee, for the appellant, Joe
Burton.

Steven A. Dix, Murfreesboro, Tennessee, for the appellee, Warren
Farmers Cooperative.

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a farmer and a co-op over a
disappointing soybean crop.  The farmer filed suit against the co-op
in the Circuit Court for Warren County, alleging that his crop had
been damaged by the manner in which the co-op had sprayed herbicide on
his fields early in the growing season.  At the close of the farmer's
proof, the trial court granted the co-op's motion for involuntary
dismissal under Tenn. R. Civ. P. 41.02(2) after concluding that he had
failed to prove his breach of contract and negligence claims.  The
farmer asserts on this appeal that the trial court erred by dismissing
his lawsuit.  We have determined that the trial court properly
dismissed the farmer's complaint at the close of his proof.

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

CHARLES E CREWS, d/b/a DEXTER RIDGE SHOPPING CENTER v. MICHAEL L.
CAHHAL, BOBBIE S. CAHHAL, NANCY NICHOLS, R. BRET TAYLOR, KENNETH HILL,
and EVELYN LORRAINE HENDRIX

Court:TCA

Attorneys:

Julie C. Bartholomew, Somerville, Tennessee, for the appellant,
Charles E. Crews, d/b/a Dexter Ridge Shopping Center.

Keith V. Moore, Memphis, Tennessee, for the appellees, Michael L.
Cahhal, Bobbie S. Cahhal, Nancy Nichols, R. Bret Taylor, Kenneth Hill,
and Evelyn Lorraine Hendrix.                        

Judge: KIRBY LILLARD

First Paragraph:

This is a breach of contract case.  The plaintiff developer leased
space to a corporation for use as a restaurant.  The shareholders of
the corporation entered into a separate agreement with the developer
to guarantee the lease.  The corporation defaulted on the lease.  The
developer filed unlawful detainer warrants in general sessions court
against both the corporation and the shareholder guarantors. 
Thereafter, the corporation filed for bankruptcy, thus staying the
general sessions court proceedings as to the corporation.  The general
sessions court dismissed the entire action, including the claim
against the guarantors, because the bankruptcy stay prevented the
developer from recovering possession.  This decision was appealed to
circuit court.  Meanwhile, the developer had filed a second lawsuit
for breach of contract against the guarantors.  The second lawsuit was
consolidated with the appeal of the unlawful detainer action pending
in circuit court.  After a trial, the circuit court affirmed the
dismissal of the unlawful detainer action and dismissed the breach of
contract action based on the doctrine of former suit pending.  This
appeal followed.  We reverse and remand, finding, inter alia, that the
action in general sessions court against the guarantors was for breach
of contract and, therefore, recovery of possession of the premises was
not required in order to obtain an award of damages against the
guarantors.

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

RENEE SHELBY GRIFFITH v. JAMES ALDEN GRIFFITH

Court:TCA

Attorneys:

Roger A. Maness, Clarksville, Tennessee, for the Appellant, Renee
Shelby Griffith.

Rodger N. Bowman, Clarksville, Tennessee, for the Appellee, James
Alden Griffith.                         

Judge: SWINEY

First Paragraph:

Renee Shelby Griffith ("Mother") and James Alden Griffith ("Father")
were divorced in 1995.  Mother originally was awarded primary physical
custody of the parties' two minor children.  Father later sought a
change of custody.  The Trial Court granted Father's motion to modify
custody, finding that a material change in circumstances had occurred
and that a change of custody would serve the best interests of the
children.  Mother appeals.  We affirm, in part, and vacate, in part,
and remand.

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

TERRY B. HARDIN v. TERESA DIANE HARDIN

Court:TCA

Attorneys:  

Jack Davis and Luther Ernest Cantrell, Nashville, Tennessee, for
Appellant.

C. Ronald Blanton and Joseph Y. Longmire, Hendersonville, Tennessee,
for Appellee.                        

Judge: FRANKS

First Paragraph:

In this divorce action, the Trial Court classified monthly benefits
paid to husband as marital property.  On appeal, husband contends
payments are disability benefits.  We affirm.

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

TONY MAKOKA v. WENDY K. MAKOKA-MHLANGA

Court:TCA

Attorneys: 

Tony Makoka, Harare, Zimbabwe, Pro Se.

Roger K. Smith, Nashville, Tennessee, for the appellee, Wendy K.
Makoka-Mhlanga.                         

Judge: CANTRELL

First Paragraph:

A prisoner filed a petition to enforce an agreed order that granted
him visitation rights with his minor daughter.  The child's mother
asked the trial court to dissolve the agreed order.  The court found
that it was not in the best interests of the child to compel her to
visit her father in prison, dissolved the agreed order, and enjoined
the father from engaging in activities that amounted to harassment of
the mother.  We affirm the trial court.

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

LOIS LYNN MILLER v. JAMES EARL MILLER
(Opinion originally filed 12/28/2001; today with a correction on pages
4 and 5.)

Court:TCA

Attorneys:    

Jack Green, Brentwood, Tennessee, for the appellant, James Earl
Miller.

Robert L. Jackson and Larry Hayes, Jr., Nashville, Tennessee, for the
appellee, Lois Lynn Miller.

Judge: CAIN

First Paragraph:

This is the second appeal to this Court of this divorce case and the
appellant disputes attorney's fees awarded for wife's attorney and the
division of two marital assets.  On remand from this Court, the trial
court held that certain assets, including an IRA and pension benefits,
were marital property and divided them.   The husband appeals.  We
affirm the trial court's classification of the husband's IRA and
Textron retirement account as marital property and its division of the
marital property .  We also affirm the award of attorney's fees.

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

DAVID G. OGILVIE, et al. v. RONALD S. LIGON, et al.

Court:TCA

Attorneys:

E.L. Edwards III, and John D. Kitch, Nashville, Tennessee, for the
appellants, David G. Ogilvie and wife Marcia E. Williams.

Douglas Fisher, Nashville, Tennessee, for the appellees, Ronald  S.
Ligon and wife Martha P. Ligon.

Judge: WEATHERFORD

First Paragraph:

In this boundary line dispute case, the appellee, who moved to her
property in 1967, used an unopened street and a garage on the unopened
street located between her land and  the adjacent property, which the
appellants acquired  in 1987.  The appellee stored  items in the
garage,  maintained the unopened street,  and made improvements to the
garage over the years. Later, a dispute arose between the parties and
the appellants filed suit to establish the boundary line between the
two properties, their ownership of half the unopened street, the
garage and certain land behind the garage. The trial court concluded
that the appellee had acquired:   1) a perpetual easement to use the
west half of the garage; 2) a perpetual easement by prescription for
the use of the entire driveway on the unopened street;  3) fee simple
title to all of the land in the unopened street west of the joint
driveway; and 4) easement and fee simple title to land to the north or
rear of the garage enclosed within and underneath her fence. The trial
court found the appellants entitled to an easement for the use of the
easterly half of the garage and an easement by prescription for the
use of entire driveway located on unopened street. For the reasons set
out in this opinion, we affirm, as modified, the judgment of the trial
court.

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

JAMES E. WILLIAMS v. SALVADORE VALDEZ v. TAPCO UNDERWRITERS, INC., etal.

Court:TCA

Attorneys:   

Peter B. Murphy, R.R. Ruth, Jr., Chattanooga, Tennessee, for the
appellants, TAPCO Underwriters, Inc., and Certain Interested
Underwriters at Lloyds, London.

Bobby D. Davis, Madison, Tennessee, for the appellee, Salvadore
Valdez.

James B. Lewis, Nashville, Tennessee, for the appellee, James E.
Williams.                       

Judge: COTTRELL

First Paragraph:

In an action brought by an insured against his insurer for indemnity,
the trial court entered judgment after the defendant insurer moved for
involuntary dismissal under Tenn. R. Civ. P. 41.02.  We vacate the
judgment and remand.

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

STATE OF TENNESSEE v. JOSEPH G. BATTS

Court:TCCA

Attorneys:  

Leslie Bruce, at trial and sentencing; and C. LeAnn Smith, on appeal,
for the appellant, Joseph G. Batts.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Grady Moore, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: SMITH

First Paragraph:

The appellant, Joseph Batts, was convicted by a jury of the offense of
rape.  He was sentenced to a term of twelve (12) years in the
Tennessee Department of Correction.  In this appeal he contends that
the evidence is insufficient to sustain the conviction for rape and
that his sentence is excessive.  After carefully reviewing the record
as presented, we are of the opinion that the evidence is legally
sufficient to support the conviction.  Moreover, in the absence of a
transcript of the sentencing hearing we must presume the sentence is
correct.  The judgment of the trial court is affirmed.

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

STATE OF TENNESSEE v. DAVID D. BOTTOMS

Court:TCCA

Attorneys: 

Ross E. Alderman, District Public Defender; C. Dawn Deaner, Assistant
Public Defender, Nashville, Tennessee, for the Appellant, David D.
Bottoms.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kathy D. Aslinger, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Roger
D. Moore, Assistant District Attorney General, for the Appellee, State
of Tennessee.                         

Judge: HAYES

First Paragraph:

The Appellant, David D. Bottoms, appeals from the Davidson County
Criminal Court's order of restitution following his conviction for
arson.  On appeal, Bottoms argues the amount of restitution was
excessive.  Upon de novo review, we find that the victim did not
provide sufficient evidence of his pecuniary loss for damages to the
rental property.  Accordingly, the amount of restitution as imposed by
the trial court is modified, and the case is remanded for entry of a
sentencing order in accordance with this opinion.

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

STATE OF TENNESSEE v. CHRISTOPHER JOHN EDDINGER

Court:TCCA

Attorneys:

Charles Galbreath, Nashville, Tennessee, for the appellant,
Christopher John Eddinger.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Pamela S. Anderson, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

A Metropolitan Parks and Recreation Department officer observed the
defendant, who was wearing only a T-shirt and fishnet stockings and
had a spiked leather strap wrapped around his testicles, as the
defendant was sitting in his car, with the door open, in a Nashville
public park.  The defendant was given a misdemeanor citation charging
him with violating Tennessee Code Annotated section 39-13-511,
"[p]ublic indecency - [i]ndecent exposure."  He was tried and
convicted in the general sessions court, and appealed the conviction
to the criminal court, where he was convicted of public indecency, a
Class B misdemeanor, and ordered to pay a $500 fine.  The defendant
then timely appealed to this court, arguing that the evidence was
insufficient, that the search of his vehicle violated his
constitutional rights, that he was acquitted of public indecency in
his first trial and, therefore, could not be convicted of it following
the appeal, and that the testimony of the arresting officer should
have been suppressed.  Following our review, we affirm the judgment of
conviction.

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

STATE OF TENNESSEE v. EDWARD BUCK FRANKLIN

Court:TCCA

Attorneys:  

David Allen Doyle, District Public Defender; and Thomas J. Smith,
Assistant Public Defender, Gallatin, Tennessee, for the appellant,
Edward Buck Franklin.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and Sallie Wade Brown, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: WOODALL

First Paragraph:

Defendant, Edward Buck Franklin, pled guilty to two counts of
attempted rape and one count of aggravated burglary.  He received a
sentence of three years for each conviction, with two of the sentences
to be served concurrently with each other but consecutive to the
sentence for the third conviction, for an effective sentence of six
years.  After receiving credit for time previously served in jail, his
sentences were suspended and he was placed on probation.  Thereafter,
three probation violation warrants were filed against him.  Following
a hearing on the third warrant, the trial court revoked Defendant's
probation and ordered that he serve his sentence in the Department of
Correction.  We affirm the judgment of the trial court.

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

MORRIS RUCKER v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Morris Rucker, Mountain City, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. (Torry) Johnson, III,
District Attorney General; and Jon Seaborg, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: MCGEE OGLE

First Paragraph:

On September 14, 1984, the petitioner, Morris Rucker, was convicted of
three violent offenses and was sentenced to imprisonment for life plus
sixty years in the Tennessee Department of Correction.  On June 21,
2001, the petitioner mailed from prison a petition for post-conviction
relief alleging four grounds for relief.  The post-conviction court
dismissed the petition as being time-barred.  On appeal, the
petitioner contends that the post-conviction court erred in dismissing
his petition.  Upon reviewing the record and the parties' briefs, we
affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. KENNETH RAY WHITE

Court:TCCA

Attorneys:

Jake Lockert, District Public Defender; Richard D. Taylor, Jr.,
Assistant Public Defender, Ashland City, Tennessee, for the Appellant,
Kenneth Ray White.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Peter M. Coughlan, Assistant Attorney General; Dan
Mitchum Alsobrooks, District Attorney General; and Lisa Donegan,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                        

Judge: HAYES

First Paragraph:

The Appellant, Kenneth Ray White, appeals from the sentencing decision
of the Humphreys County Circuit Court denying his request for
probation.  In this appeal, White raises the issue of whether the
trial court abused its discretion by ordering a sentence of
incarceration rather than the less restrictive alternative of
community corrections.  After review, we find no abuse of discretion. 
As such, the trial court's decision is affirmed.

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

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