Opinion FlashOctober 3, 2002Volume 8 — Number 174 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 PAUL G. SUMMERS, et al. v. CHEROKEE CHILDREN & FAMILY SERVICES, INC., et al. Court:TCA Attorneys: Allan J. Wade, Thomas Lang Wiseman, and Lori Hackleman Patterson, Memphis, Tennessee, for the appellants, Cherokee Children and Family Services, Inc., and Cherokee Children Nutrition, Inc. Paul G. Summers, Attorney General and Reporter; Albert L. Partee, Senior Counsel; George S. Bell, III, Assistant Attorney General; Michael A. Meyer, Assistant Attorney General, for the appellee, the Attorney General of Tennessee. Judge: COTTRELL First Paragraph: In this appeal, the Attorney General filed suit to dissolve two nonprofit public benefit corporations. Both the Attorney General and the nonprofit corporations filed motions for summary judgment. The trial court granted summary judgment for the Attorney General finding that the nonprofit corporations had abandoned their charitable purposes and devoted themselves to private purposes. The trial court ordered the appointment of a receiver to marshal and preserve the remaining assets. For the following reasons, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/cheroke2.wpd STANLEY A. GUNTER v. LABORATORY CORPORATION OF AMERICA, d/b/a LABCORP, et al. Court:TCA Attorneys: August C. Winter, Brentwood, Tennessee, for the appellant, Stanley A. Gunter. William E. Godbold, III, and Cherie D. Jewell, Chattanooga, Tennessee, and Thomas J. Dement, III, Nashville, Tennessee, for the appellee, LabCorp. Judge: GRAHAM First Paragraph: This appeal rises from the action of the Juvenile Court of Montgomery County which granted a Default Judgment in 1998 for retroactive and current child support against the Plaintiff. Plaintiff attempted to have the support obligation set aside in the Juvenile Court but following a submission of paternity blood tests, one of which was conducted by the Defendant, the Plaintiff was denied further relief. The Plaintiff filed suit in the Circuit Court of Davidson County alleging that the paternity tests were negligently performed which resulted in erroneous results which in turn caused him to be unable to set aside the judgment of the Juvenile Court. The Circuit Court, upon motion, dismissed the Defendant testing laboratory, holding that the case was "governed" by the one (1) year statutes of limitations for medical malpractice and injury to the person. Plaintiff appealed the Circuit Court's ruling, arguing that this was not an injury to the person but to personal property and in the alternative a breach of contract action. Finally, the Plaintiff alleged that even if this were an action for personal injury, the one (1) year statute had not run. We agree with the Plaintiff that this is not a medical malpractice action or an action for personal injury, but rather an action for injury to personal property which is controlled by the three (3) year statute set forth at T.C.A. S 28-3-105. We therefore reverse the Circuit Court and remand the case for further proceedings. http://www.tba.org/tba_files/TCA/gunters.wpd STATE OF TENNESSEE v. TRECA FINCHUM Court:TCCA Attorneys: Susanne Bales, Dandridge, Tennessee (on appeal); Michael Rasnake and Charles I. Poole, Sevierville, Tennessee (at trial), for the appellant, Treca Finchum. Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Sevier County jury convicted the Defendant of theft of property valued over $500 and of contributing to the delinquency of a minor. The trial court sentenced the Defendant as a Range I, standard offender to two years for the theft conviction and to eleven months and twenty-nine days for the contributing to the delinquency of a minor conviction, to run concurrently. The trial court also ordered sentences of split confinement, with the Defendant to serve ninety days in jail, "day for day," and the balance of each sentence to be served on supervised probation. The Defendant now appeals, arguing the following: (1) that insufficient evidence was presented at trial to convict her of theft and of contributing to the delinquency of a minor; (2) that the admission into evidence of a list of items stolen from Wal-Mart was inadmissible hearsay; (3) that the trial court committed reversible error by excluding a statement against interest from an unavailable witness; and (4) that the trial court erred in sentencing her. After a review of the record, we affirm the judgments of the trial court as modified. http://www.tba.org/tba_files/TCCA/finchumt.wpd WILLIAM STEVE GREENUP v. STATE OF TENNESSEE Court:TCCA Attorneys: William Steve Greenup, Ashland, Kentucky, Pro se. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, William Steve Greenup, appeals the order of the Obion County Circuit Court dismissing his petition for post-conviction relief. The post-conviction court summarily dismissed the petition, finding the petition to be barred by the statute of limitations. On appeal, the petitioner contends that the post-conviction court erred in dismissing his petition as time-barred due to the recent United States Supreme Court rulings in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Glover v. United States, 531 U.S. 198, 121 S. Ct. 696 (2001), which he alleges created new rules of constitutional law requiring retroactive application to his case. After reviewing the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/greenup.wpd JOE PHILLIP LIVINGSTON v. JENNIFER ELAINE LIVINGSTON Court:TCCA Attorneys: Brenda S. Bramlett, Shelbyville, Tennessee, for the appellant, Jennifer Elaine Livingston. Randall W. Morrison, Tullahoma, Tennessee, for the appellee, Joe Phillip Livingston. Judge: SUSANO First Paragraph: This is a divorce case. The trial court granted Joe Phillip Livingston ("Father") a divorce from Jennifer Elaine Livingston ("Mother") on the ground of inappropriate marital conduct and awarded primary physical custody of the parties' two minor children to Father. Mother was granted visitation rights; however, the court ordered that she "refrain from allowing the parties' children to be at the residence of [Mother's] maternal grandmother" during visitation. Mother appeals the award of custody and the granting of the divorce to Father. In addition, Mother also raises a procedural issue and questions the admission of certain evidence. We affirm. http://www.tba.org/tba_files/TCCA/livingstonjp.wpd STATE OF TENNESSEE v. BOBBY SHELLHOUSE, JR. Court:TCCA Attorneys: Edward C. Miller, District Public Defender, and Susanne Bales, Assistant Public Defender, for the appellant, Bobby Shellhouse, Jr. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant contests his conviction and sentence for aggravated sexual battery. We conclude the evidence was sufficient to support the conviction, the seven-year-old victim was competent to testify, venue was properly established, proper chain of custody for the DNA evidence was established, and the amendment of the indictment was proper. Accordingly, we affirm the defendant's conviction. A review of the defendant's sentence reveals the trial court misapplied enhancing factor (8). There being two enhancing factors and one mitigating factor applicable to the defendant's sentence, the judgment is modified from the maximum of twelve years to eleven years. http://www.tba.org/tba_files/TCCA/shellhousebjr.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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