Opinion Flash

December 23, 2002
Volume 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):
01 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
06 New Opinion(s) from the Tennessee Court of Appeals
05 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


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

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