Opinion FlashSeptember 30, 2002Volume 8 — Number 171 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0930.wpd PHILLIP RAY BURDETT v. KATHY ARWOOD BURDETT Court:TCA Attorneys: Kevin W. Shepherd, Maryville, Tennessee, for Appellant, Phillip Ray Burdett. J. Reed Dixon, Sweetwater, Tennessee, for Appellee, Kathy Arwood Burdett. Judge: FRANKS First Paragraph: In this divorce action, the issue is whether the division of marital property by the Trial Court is equitable. We affirm. http://www.tba.org/tba_files/TCA/burdettp.wpd CHRISTMAS LUMBER COMPANY, INC. v. ROBERT E. VALIGA, et al. Court:TCA Attorneys: Robert S. Holland, Knoxville, Tennessee, for the Appellant John Graves. Richard L. Burnette, Knoxville, Tennessee, for the Appellant Robert H. Waddell. John M. Neal, Knoxville, Tennessee, for the Appellee Robert E. Valiga. Judge: SWINEY First Paragraph: After experiencing significant problems with the construction of a house he was having built, Robert E. Valiga ("Valiga") sued Robert H. Waddell ("Waddell") and John Graves ("Graves") (collectively referred to as "Defendants") seeking damages for the poor construction. Although the construction contract was between Valiga and R.H. Waddell Construction, Inc., no corporate charter had been filed when the contract was signed. The Trial Court concluded Waddell and Graves were partners and entered judgment against them individually for $80,045.79. After judgment was entered, Defendants filed motions seeking to amend their answers to assert a statute of limitations defense. These motions were denied by the Trial Court. Graves and Waddell appeal, challenging the Trial Court's conclusion that they were partners and subject to individual liability, the denial of their motions seeking to amend their answers to assert a statute of limitations defense, and the Trial Court's award of prejudgment interest to Valiga. We affirm. http://www.tba.org/tba_files/TCA/christms.wpd JOHNNY JESS DAVIS, et al. v. ESTATE OF JOHNNIE REX FLYNN, et al. Court:TCA Attorneys: Lewis S. Howard, Jr. and Delicia R. Bryant, Knoxville, Tennessee, for the appellants, Johnny Jess Davis and Linda Diane Davis. L. Caesar Stair, III and Margo J. Maxwell, Knoxville, Tennessee, for the appellees, Estate of Johnnie Rex Flynn by Charles I. Poole, executor, and Barbara Flynn. Judge: SUSANO First Paragraph: Johnny Jess Davis and his wife, Linda Diane Davis, sued Johnnie Rex Flynn and his wife, Barbara Flynn, for breach of a written option agreement containing a right of first refusal as to real property in Sevier County. The defendants' answer denies the allegations of the complaint; significantly, it fails to raise any affirmative defenses. Following a bench trial, the court below entered judgment for the plaintiffs in the amount of $851,000. The defendants filed two post-judgment motions; one to amend the pleadings to conform to the proof and another for a new trial or, in the alternative, to alter or amend the judgment. The trial court denied the motion to amend the pleadings, but granted the defendants a new trial. Following a new trial before a different judge, the court below again found for the plaintiffs. This time it awarded them a judgment in the amount of $381,000. The plaintiffs appeal, and both parties raise issues pertaining to both trials. We find the trial court abused its discretion in awarding the defendants a new trial. Accordingly, we vacate the second judgment and reinstate the original judgment for the plaintiffs. http://www.tba.org/tba_files/TCA/davisjj1.wpd JAMES MICHAEL RAULSTON v. MONTGOMERY ELEVATOR COMPANY d/b/a MONTGOMERY KONE, INC. , et al. Court:TCA Attorneys: Judy Pinkston McCarthy and Dennis McCarthy, Knoxville, for the Appellant, James Michael Raulston R. Kim Burnette, Knoxville, for the Appellee, Montgomery KONE, Inc. Judge: GODDARD First Paragraph: This is a negligence action stemming from injuries allegedly sustained by Plaintiff James Michael Raulston when the elevator in which he was riding allegedly fell approximately five floors and came to an abrupt stop. Mr. Raulston sued Defendant Montgomery KONE, Inc. ("Montgomery KONE"), alleging it was negligent in failing to properly maintain the subject elevator in a safe condition. Montgomery KONE filed a motion for summary judgment, which the Trial Court granted. Mr. Raulston argues on appeal that the Court's grant of summary judgment was improper. We find there are genuine issues of material fact and therefore vacate the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/raulstonj.wpd STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. T.M.K. , et al. Court:TCA Attorneys: Rodney Craig Miller, Cleveland, Tennessee, for the Appellant, T.M.K. Debra L. House, Cleveland, Tennessee, for the Appellant, G.L.K. Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney General, Nashville, Tennessee, for the Appellee, Department of Children's Services Judge: GODDARD First Paragraph: The State of Tennessee, through the Department of Children's Services, seeks to terminate the parental rights of T.M.K. and G.L.K., as to their children, E.K. (d.o.b. 1/3/88), C.K. (d.o.b. 1/17/90), and twin daughters, A.K. and E.K. (d.o.b. 5/4/92). The Trial Court found the State had carried the burden of proof by clear and convincing evidence as to grounds for termination, as well as the best interest of the children. We affirm. http://www.tba.org/tba_files/TCA/tmk.wpd STATE OF TENNESSEE v. J. C. BRUCE Court:TCCA Attorneys: Didi Christie, Brownsville, Tennessee, on appeal, for the Appellant, J. C. Bruce. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Peter M. Coughlan, Assistant Attorney General; and Dan Alsobrooks, District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, J.C. Bruce, was convicted after a trial by jury of robbery and, as a multiple offender, received a sentence of ten years in the Department of Correction. On appeal, Bruce 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, the judgment of the Humphreys County Circuit Court is affirmed. http://www.tba.org/tba_files/TCCA/brucejc.wpd ISAAC EARL EDGIN v. STATE OF TENNESSEE Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, Isaac Earl Edgin. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: Petitioner filed a petition for post-conviction relief, claiming: (1) the trial judge, at petitioner's original trial, should have recused himself from hearing the trial under Tennessee Supreme Court Rule 10, Canon 3(E); and (2) the public defender, at the original trial, rendered ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and Article 1, Section 9 of the Tennessee Constitution. At the conclusion of an evidentiary hearing, the post- conviction court denied relief. Based upon our review of the entire record and applicable law, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/edginisaace.wpd STATE OF TENNESSEE v. CORNELIUS DEVON HICKS Court:TCCA Attorneys: Periann S. Houghton, Assistant Public Defender, Trenton, Tennessee, for the Appellant, Cornelius Devon Hicks. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General; and Garry Brown, District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Cornelius Devon Hicks, appeals the sentencing decision of the Humboldt Law Court enlarging his community corrections sentence following revocation. Hicks argues on appeal that it was error to increase his sentence from eight to ten years, when no proof was introduced at the revocation hearing supporting an increased sentence and the trial court made no findings to justify the ten-year sentence. After review, we agree. Accordingly, the trial court's re-sentencing order is reversed, and this case is remanded to the trial court for a new sentencing hearing. http://www.tba.org/tba_files/TCCA/hicksc.wpd STATE OF TENNESSEE v. JOE E. HUNTER Court:TCCA Attorneys: George Thompson, Nashville, Tennessee, for the Appellant, Joe E. Hunter. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: A Davidson Count Criminal Court jury convicted the defendant, Joe E. Hunter, of the Class A misdemeanor of torturing an animal. See Tenn. Code Ann. S 39-14-202(a)(1) (1997). On appeal, the defendant claims that the evidence was insufficient to support the conviction. We disagree and affirm. http://www.tba.org/tba_files/TCCA/hunterjoe.wpd STATE OF TENNESSEE v. ADRIAN PATTERSON Court:TCCA Attorneys: Cynthia M. Fort, Nashville, Tennessee, for the Appellant, Adrian Patterson. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Adrian Patterson, appeals the decision of the Montgomery County Circuit Court revoking his two community corrections sentences and resentencing him to the Department of Correction. On appeal, Patterson argues: (1) that his sentences were actually sentences of probation rather than community corrections and, as such, the trial court was without authority to enlarge his sentences; (2) that the evidence was insufficient to support two of the alleged violations of his Community Corrections Behavioral Contract; and (3) that allowing a cooperating individual to testify about Patterson's drug activity in a pending federal drug case impaired his Fifth Amendment right against self-incrimination at the revocation proceeding. Finding no merit to Patterson's claims, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/pattersonadrian.wpd KEVIN SHAWN TAYLOR v. STATE OF TENNESSEE Court:TCCA Attorneys: Lisa Zavogiannis, McMinnville, Tennessee, for the appellant, Kevin Shawn Taylor. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Dale Potter, District Attorney General; and Tom Miner, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Kevin Shawn Taylor, pled guilty in the Warren County Circuit Court to one count of attempted aggravated sexual battery. He received a sentence of ten years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed for post-conviction relief, alleging that he received the ineffective assistance of counsel and that his guilty plea was not knowing or voluntary. After a hearing, the post-conviction court denied relief. On appeal, the petitioner contends that the post-conviction court erred in denying his petition. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/raylorks.wpd STATE OF TENNESSEE v. JAMES MICHAEL SCOTT Court:TCCA Attorneys: Eric L. Davis, Franklin, Tennessee, for the appellant, James Michael Scott. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Joe James, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant contests the sentences he received for his convictions of aggravated burglary (six years), aggravated assault (five years), and theft over $10,000 (four years). The court ordered the burglary and assault convictions to run consecutively to each other. We conclude upon de novo review that, although the trial court misapplied certain enhancement factors, those remaining were properly applied and justified the sentences. Additionally, the fact that this offense was committed while on probation justified the imposition of consecutive sentences. We affirm the judgments. http://www.tba.org/tba_files/TCCA/scottjm.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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