Opinion Flash

September 30, 2002
Volume 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):
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Court of Appeals
07 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

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

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