Opinion FlashDecember 23, 2002Volume 8 — Number 225 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 SHARON M. KEISLING v. DANIEL KERRY KEISLING Court:TSC Attorneys: Dan R. Alexander and John E. Herbison, Nashville, Tennessee, for the appellant, Sharon M. Keisling. John P. Brown, III, Nashville, Tennessee, for the appellee, Daniel Kerry Keisling. Judge: HOLDER First Paragraph: This case is before the Court on an interlocutory appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. We granted permission to appeal to determine whether the trial court erred in transferring child custody from one parent to the other when no petition requesting a change of custody had been filed at the time of the ruling. After carefully reviewing the record, we conclude that the trial court erred in changing custody when the aggrieved party was not provided with notice that custody would be addressed at the hearing. Therefore, we reverse the trial court's award of custody and remand this case to the trial court for proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/keislingsm.wpd ETHEL CARMICAL, et al. v. MARY JANE KILPATRICK Court:TCA Attorneys: Melanie Totty Cagle, Centerville, Tennessee, for the appellant, Mary Jane Kilpatrick, Individually, and as Co-Administratrix of the Estate of Lula McCoy. Dan R. Bradley, Waverly, Tennessee, for the appellees, Ethel Carmical and Jesse McCoy. Judge: COTTRELL First Paragraph: The trial court found that a joint bank account was not held as a joint tenancy with right of survivorship under Tenn. Code Ann. S 45-2-703 and, therefore, was part of the decedent's estate and not the separate property of the decedent's daughter. The appellant, the daughter, appeals the trial court's order that she return to the decedent's estate the amount of $27,662.20 and also appeals the award of attorney's fees in the amount of $4,500 to the appellees. Because the appellant did not provide clear and convincing evidence to overcome the statutory presumption against a joint tenancy with right of survivorship, we affirm the trial court's judgment regarding the account. Because there is not a statutory or contractual basis for the award of attorney's fees in this case, we reverse the award of attorney's fees. http://www.tba.org/tba_files/TCA/carmicale.wpd STATE OF TENNESSEE EX REL. MARY E. CLARK v. VERNON A. WILSON Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter; Stuart F. Wilson-Patton, Senior Counsel; Pamela Finch, for the appellant, Mary E. Clark. Mark Walker, Goodlettsville, Tennessee, for the appellee, Vernon A. Wilson. Judge: COTTRELL First Paragraph: The State of Tennessee, ex rel. Mary E. Clark appeals the final order of the trial court awarding retroactive child support from the date DNA test results established the appellee as the father of the child in question, instead of from the date of the parties' separation by divorce decree entered almost six years earlier. We find that the trial court incorrectly ordered retroactive child support from a date other than the date of the parties' separation and failed to make the required written findings to support a deviation from the guideline amount in its award of retroactive child support. Therefore, we vacate the trial court's decision and remand for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/clarkme.wpd DAN EVANS v. PHILLIP MATLOCK, et al. Court:TCA Attorneys: John Shackelford Colley, III, Columbia, Tennessee, for the appellant, Phillip Matlock. Leland Bruce Peden, Columbia, Tennessee, for the appellees, Kim Kokles and Mary Kokles. John Russell Parkes, Columbia, Tennessee, for the appellee, Dan Evans. Judge: COTTRELL First Paragraph: An antique Dr. Pepper Dispenser was offered for sale on e-Bay's auction site on the internet. After the plaintiff's bid was allegedly accepted, the seller sold the dispenser to another party. This litigation ensued between the users of the e-Bay service, alleging breach of contract, fraud, conspiracy, inducement of breach of contract, and other counts. The seller moved for summary judgment on the ground that the User Agreement provided that disputes must be arbitrated. The trial court held that the arbitration clause was inapplicable to disputes between users. We affirm. http://www.tba.org/tba_files/TCA/evansd.wpd JAMES HAYWOOD HILL v. NAOMI WEBB HILL Court:TCA Attorneys: Jacqueline B. Dixon, Nashville, Tennessee, for the appellant, James H. Hill. Edward J. Gross, Nashville, Tennessee, for the appellee, Naomi Webb Hill. Judge: COTTRELL First Paragraph: Husband filed for divorce from Wife on the basis of inappropriate marital conduct. The trial court declared the parties divorced pursuant to Tenn. Code Ann. S 36-4-129, divided the marital assets, and awarded alimony to Wife. Husband appealed, arguing that the trial court should have granted him the divorce and that the trial court erred in ordering Husband to pay $500 per month alimony in futuro to Wife. Because the trial court need not find both parties at fault in order to declare a divorce pursuant to Tenn. Code Ann. S 36-4-129 and because the trial court's award of $500 per month in alimony does not reflect an improper application of the law and is not unreasonable, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/hilljh.wpd JERRY HUNTER v. MTD PRODUCTS, INC. Court:TCA Attorneys: Marcus M. Reaves, Jackson, Tennessee, for the appellant, Jerry Hunter. C. Thomas Hooper, III, Brownsville, Tennessee, for the appellee, MTD Products, Inc. Judge: FARMER First Paragraph: Plaintiff sued Defendant alleging a conspiracy. The Defendant filed a motion for summary judgment which the trial court granted. Plaintiff appeals and we affirm. http://www.tba.org/tba_files/TCA/huntej.wpd JERI VINCENT v. CNA INSURANCE COMPANY Court:TCA Attorneys: Keith Jordan, Nashville, Tennessee, for the appellant, Jeri Vincent. Nancy Williams Phillips, Nashville, Tennessee, for the appellee, CNA Insurance Company. Judge: COTTRELL First Paragraph: After being injured in an auto accident, Jeri Vincent entered into negotiations with CNA Insurance Company, the insurer of the driver of the other vehicle, attempting to settle her property damage and personal injury claim. The property damage claim was settled. Ms. Vincent filed a civil action against CNA Insurance to protect her personal injury claim from the statute of limitations. Later, Ms. Vincent filed a motion to substitute a party pursuant to Tenn. R. Civ. P. 15.03 in order to name the driver of the other vehicle as the defendant. The trial court denied the motion and dismissed the cause of action. We reverse and remand the decision of the trial court because we find that Ms. Vincent complied with the requirements of Tenn. R. Civ. P. 15.03. http://www.tba.org/tba_files/TCA/vincentj.wpd KONG C. BOUNNAM v. STATE OF TENNESSEE Court:TCCA Attorneys: Craig V. Morton, Memphis, Tennessee, for the appellant, Kong C. Bounnam. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief from his convictions in the Shelby County Criminal Court for three counts of felony murder and four counts of robbery with a deadly weapon. On appeal, he contends that: (1) the trial court committed plain error by failing to instruct the jury on the lesser-included offenses of facilitation, reckless homicide, and criminally negligent homicide; and (2) his trial counsel provided ineffective assistance of counsel at trial and on direct appeal. We affirm the post-conviction court's denial of the petition for post-conviction relief. http://www.tba.org/tba_files/TCCA/bounna.wpd STATE OF TENNESSEE v. DEANDRE M. BROADEN Court:TCCA Attorneys: AC Wharton, Jr., Shelby County Public Defender; Garland Erguden, Assistant Public Defender; and Robert H. Gowan, Assistant Public Defender, Memphis, Tennessee, for the appellant, Deandre M. Broaden. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and David Sharpiro, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Deandre M. Broaden, was indicted by the Shelby County Grand Jury for possession of marijuana and for possession of cocaine with intent to sell. Defendant pled guilty to both offenses, and the trial court sentenced him to four years probated under the Community Corrections Act of 1985. Defendant violated the conditions of his sentence, and the trial court resentenced him to five years confinement, crediting him four months for time served in community corrections until the date of his first violation. On appeal, Defendant argues that he should have received full credit for the amount of time served up until the filing of the petition seeking revocation of his community corrections sentence. We agree. We affirm the judgment of the trial court with respect to the revocation of Defendant's community corrections sentence and the new sentence of five years, but reverse the trial court's order insofar as it provides only four months of credit. We remand this case for entry of an amended judgment consistent with this opinion. http://www.tba.org/tba_files/TCCA/broaden.wpd JERRY BURKE v. STATE OF TENNESSEE Court:TCCA Attorneys: Charles W. Gilchrist, Jr., Memphis, Tennessee (on appeal), and Jeffery S. Glatstein, Memphis, Tennessee (at trial), for the appellant, Jerry Burke. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and P. Thomas Hoover, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Jerry Burke, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. He contends that his trial attorney was ineffective for (1) failing to request a mental evaluation; (2) failing to investigate his case; and (3) failing to subpoena witnesses and cross-examine witnesses adequately. We affirm the trial court's denial of the petition. http://www.tba.org/tba_files/TCCA/burke.wpd STATE OF TENNESSEE v. WILLIAM LEE CLIFTON Court:TCCA Attorneys: Carthel L. Smith, Jr., Lexington, Tennessee, for the appellant, William Lee Clifton. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; G. Robert Radford, District Attorney General; and Jerry W. Wallace, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: In this interlocutory appeal, the defendant seeks review of the state's denial of pretrial diversion for the offense of sexual battery. We conclude that the prosecutor failed to consider and weigh all relevant factors and, under the circumstances of this case, improperly relied upon the defendant's refusal to take responsibility for his actions. Accordingly, we reverse the order of the trial court and remand this matter to the district attorney general for further consideration of the defendant's request for pretrial diversion in accordance with this opinion. http://www.tba.org/tba_files/TCCA/cliftonw.wpd MICHAEL JOSEPH SPADAFINA v. STATE OF TENNESSEE Court:TCCA Attorneys: Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Michael Joseph Spadafina. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; G. Robert Radford, District Attorney General; and Beth C. Boswell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner appeals from the denial of his writ of error coram nobis. In this appeal, he argues his first degree murder conviction should be set aside because his co-defendant, who testified against the petitioner at trial, recanted his testimony prior to the co-defendant's death. Following a hearing, the trial court denied the petition. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/spadafl.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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