Opinion Flash

March 4, 2003
Volume 9 — Number 038

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
16 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


AMERICAN INDEMNITY COMPANY v. IRON CITY LUMBER & PALLET, INC., et al.

Court:TCA

Attorneys:     

Parks T. Chastain and Gordon C. Aulgur, Nashville, Tennessee, for the
appellant, American Indemnity Company.

Randy Hillhouse, Lawrenceburg, Tennessee, for the appellee, Iron City
Lumber & Pallet, Inc.

W. Charles Doerflinger, Lawrenceburg, Tennessee, for the appellee, All
Weigh Scale, Inc.

Judge: FARMER

First Paragraph:

This case involves an insurance company's appeal of the trial court's
decision that the company has a duty to defend its insured under a
commercial general liability policy.  Applying Texas law, we find that
no such duty exists and, accordingly, reverse the decision of the
trial court.

http://www.tba.org/tba_files/TCA/americanindemnity1.wpd
								
JERRY T. BEECH CONCRETE CONTRACTOR, INC. v. LARRY POWELL BUILDERS,INC., et al. Court:TCA Attorneys: Timothy W. Burrow, Nashville, Tennessee, for the appellant, Jerry T. Beech Concrete Contractor, Inc. John R. Reynolds, Nashville, Tennessee, for the appellees, Larry Powell Builders, Inc. Judge: CAIN First Paragraph: In this appeal from the trial court's award of attorneys fees, Appellant seeks review of the trial court's refusal to award the full amount of fees sought. We modify the trial court's findings and affirm as to the amount of the award. http://www.tba.org/tba_files/TCA/beechjerry.wpd
WILLIAM A. DALTON, et al. v. GERALD W. DALE, et al. Court:TCA Attorneys: W. Carl Spining, Nashville, Tennessee, for the appellant, Gerald W. Dale. William H. Farmer, Nashville, Tennessee, for the appellees, William a. and M. Charleston Dalton. Judge: CAIN First Paragraph: Defendant appeals adverse summary judgment as to diminution in value of a 1995 Jaguar XJ6 automobile based upon alleged undisputed expert testimony. Judgment is reversed, and the case is remanded. http://www.tba.org/tba_files/TCA/daltonwilliam.wpd
DORIS DENNIS v. WHITE WAY CLEANERS, L.P., et al. Court:TCA Attorneys: R. Stephen Doughty, Nashville, Tennessee, for the appellant Doris Dennis. H. Rowan Leathers, III and Douglas B. Janney, III, Nashville, Tennessee, for the appellee, White Way Cleaners, L.P. Judge: CANTRELL First Paragraph: A supervisory employee of a dry cleaning firm filed suit against her employer alleging she was terminated from her job and replaced by a man. She contended that her employer's action was motivated by gender discrimination, in violation of the Tennessee Human Rights Act, Tenn. Code Ann. S 4-21-101. The defendant argued that her termination was not based on discrimination, but was the result of a general downsizing and reorganization of the work force. The trial court granted summary judgment to the employer. We reverse, because we believe the plaintiff raised a genuine issue of material fact as to the reasons behind her termination. http://www.tba.org/tba_files/TCA/dennisd.wpd
RANDY HENSLEY v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Randy Hensley, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn Jordan, Assistant Attorney General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: An inmate in a correctional institution sought a review of the punishment imposed by a disciplinary committee after finding that the inmate tested positive for drugs and attempted to alter a drug screen. The Chancery Court of Davidson County dismissed the petition for certiorari because the punishment alleged was not atypical or did not result in significant hardship to the petitioner. Therefore, the petition did not state a claim on which relief could be granted. We affirm. http://www.tba.org/tba_files/TCA/hensleyr_opn.wpd
RANDY HENSLEY v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA KOCH CONCURRING AND DISSENTING http://www.tba.org/tba_files/TCA/hensleyr_con.wpd
JOHN A. HIGGINBOTHAM v. ANNE CLEVE Court:TCA Attorneys: Anne Cleve, Fayetteville, Tennessee, Pro Se. Randall E. Self and James S. Kidd, Fayetteville, Tennessee, for the appellee, John A. Higginbotham. Judge: CAIN First Paragraph: Anne Cleve appeals, pro se, the action of the trial judge in refusing to set aside a judgment entered against her enforcing a foreign judgment entered in the Circuit Court of Madison County, Alabama. We affirm the action of the trial judge. http://www.tba.org/tba_files/TCA/higginbothamj.wpd
IN RE: T.L.R. AND A.W.R. STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. SANDRA JANE RILEY Court:TCA Attorneys: Mark Walker, Goodlettsville, Tennessee, for the appellant, Sandra Jane Riley. Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services. Judge: First Paragraph: This case involves the termination of parental rights. The mother of the two young children at issue had a history of cocaine and marijuana abuse. In September 1999, the state department of children's services obtained custody of the children and placed them in a foster home. While the children were in foster care, the mother participated in drug rehabilitation programs and attempted to obtain permanent employment. The mother made some progress, but repeatedly relapsed back into drug and alcohol use, and failed to procure a permanent job or a permanent residence. In August 2001, the State filed a petition to terminate the mother's parental rights. The trial court granted the State's petition. The mother now appeals. We affirm, finding clear and convincing evidence that the mother had failed to comply with the permanency plan, that conditions that prevented the children's safe return still persisted, and that termination of the mother's parental rights is in the children's best interest. http://www.tba.org/tba_files/TCA/inretlr.wpd
CLINTON LIEN v. METROPOLITAN GOVERNMENT OF NASHVILLE and DAVIDSON COUNTY, et al. Court:TCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, Clinton Lien. Karl F. Dean and William Michael Safley, Nashville, Tennessee, for the appellee, Metro Government of Nashville and Davidson County. Judge: CAIN First Paragraph: Chief Emmett H. Turner, of the Metropolitan Government of Nashville and Davidson County Police Department, discharged Appellant from employment as a police officer for certain violations of various rules and regulations. The officer appealed his discharge and, after a hearing, the Administrative Law Judge reduced his penalty to a thirty day suspension. The appeal was further heard before the Civil Service Commission, which reversed the ALJ and upheld the dismissal of the officer. The Chancery Court of Davidson County upheld the action of the Civil Service Commission. The officer appeals, and we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/lienclinton.wpd
JABARI ISSA MANDELA v. DONAL CAMPBELL Court:TCA Attorneys: Jabari Issa Mandela, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Pamela S. Lorch, Assistant Attorney General, for the appellee, Donal Campbell. Judge: KOCH First Paragraph: This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding the Department's mail policy. After the Department returned two packages addressed to him to their respective senders and denied his request for a declaratory order, the prisoner filed a petition in the Chancery Court for Davidson County seeking a declaratory judgment that the Department's policy should have been promulgated as a rule under Tennessee's Uniform Administrative Procedures Act and that returning the packages was inconsistent with the warden's statutory obligation to "receive" an incarcerated prisoner's property. The trial court upheld the policy and its application to the prisoner, and the prisoner has appealed. We affirm. http://www.tba.org/tba_files/TCA/mandelajl1.wpd
DAVID ANTHONY NORMAN v. MELISSA DAWN NORMAN Court:TCA Attorneys: Rose Palermo, Nashville, TN, for Appellant Maclin P. Davis, Jr., Rachelle Laisnez, Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a divorce proceeding. The trial court, finding the Husband completely at fault, granted Wife a divorce. The trial court also distributed the parties' marital property, awarded Wife long-term alimony, set the child support amount and ordered Husband to pay $30,000 of Wife's attorney fees. The parties raise multiple issues on appeal. For the following reasons, we vacate in part, reverse in part and remand. http://www.tba.org/tba_files/TCA/normandavida.wpd
JANIS LOUISE OLIVER-GILL v. JERRY T. KROHN, et al. Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for the appellant, Janis Louise Oliver-Gill. Richard M. Smith and H. Brent Patrick, Nashville, Tennessee, for the appellees, Jerry T. Krohn and wife, Linda L. Krohn, d/b/a Krohn Homes, LLC. Judge: CAIN First Paragraph: This appeal involves a suit brought by the buyer of certain real property against the builder and seller of that home seeking damages for, inter alia, negligent construction. From a jury verdict rendered in favor of the defendant, the plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/olivergillj.wpd
ROBERT PIRTLE v. TENNESSEE BOARD OF PAROLES, et al. Court:TCA Attorneys: Robert Pirtle, Tiptonville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and John R. Miles, Nashville, Tennessee, for the appellees, Tennessee Board of Paroles, Charles Traughber, John A. Greer, Darlene Millson, Dawn Chase, and Tom Biggs. Judge: KOCH First Paragraph: This appeal involves a dispute between a prisoner and the Tennessee Board of Paroles regarding the revocation of his parole. After exhausting his administrative remedies, the prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County asserting that he did not commit the crime that triggered the revocation of his parole. The trial court eventually dismissed the petition on the ground that it was not timely filed, and the prisoner has appealed. While his appeal was pending, the prisoner was released from the Department of Correction. Accordingly, because this appeal is now moot, we vacate the trial court's order and remand the case with directions to dismiss the prisoner's petition. http://www.tba.org/tba_files/TCA/pirtler.wpd
JOHN DAVID RHOADES, II, et al. v. MICHAEL L. TAYLOR, et al. Court:TCA Attorneys: Wayne Detring, Hendersonville, Tennessee, for the appellants, John David Rhoades, II, et al. Joe M. Haynes, Goodlettsville, Tennessee, for the appellees, Michael L. Taylor, et al. Judge: COTTRELL First Paragraph: This appeal involves a conflict between neighbors over whether the Taylors have a right to use a gravel driveway located on property owned by the Rhoades to access their property. The trial court found that an implied easement was proved. The Rhoades appeal that judgment to this court arguing that the Taylors failed to prove two elements necessary for a finding of an implied easement. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCA/rhoadesjd.wpd
CHARLES WAYNE ROOKER v. DONAL CAMPBELL Court:TCA Attorneys: Charles Wayne Rooker, Pikeville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Stephanie R. Reevers, Senior Counsel, for the appellee, Donal Campbell. Judge: KOCH First Paragraph: This appeal involves a dispute between a prisoner and the Department of Correction over his release eligibility date. Dissatisfied with the response to his petition for a declaratory order, the prisoner filed a petition for a declaratory judgment in the Chancery Court for Davidson County, asserting that the extension of his release eligibility date violated the Department's policy regarding punishment for escape and the terms of his plea agreement. He also claimed that the Department had wrongfully deprived him of sentence reduction credits. The trial court dismissed the petition, and the prisoner has appealed. We affirm. http://www.tba.org/tba_files/TCA/rookercw.wpd
CITY OF SEVIERVILLE v. BILL GREEN, et al. Court:TCA Attorneys: Linda J. Hamilton Mowles, Knoxville, Tennessee, for the Appellant, City of Sevierville Robert L. Ogle, Sevierville, Tennessee, for the Appellees, Bill Green, Claudine Green, Dallas Coffman, and Jean Coffman Judge: GODDARD First Paragraph: This appeal from the Sevier County Circuit Court questions whether the Trial Court erred in awarding landowners compensation for incidental damages to their property because the City of Sevierville changed the frontage access to their property from unlimited access to restricted access. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/sevierv1.wpd
LEROY SMITH v. RONALD W. GOURLEY Court:TCA Attorneys: Louis W. Oliver, III, Hendersonville, Tennessee, for the appellant, Ronald W. Gourley. Bruce N. Oldham, Gallatin, Tennessee, for the appellee, Leroy Smith. Judge: CANTRELL First Paragraph: The Chancery Court of Sumner County denied enforcement of a lease with an option to purchase. On appeal the lessee argues that the chancellor erred in refusing to allow a copy of the lease/option to be introduced into evidence after he testified that the original had been lost. We find that the chancellor refused to allow the lease/option into evidence because of a lack of trustworthy proof regarding its execution. Therefore, we affirm. http://www.tba.org/tba_files/TCA/smithl.wpd
STATE OF TENNESSEE v. JESSE WAYNE BAKER Court:TCCA Attorneys: Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Jesse Wayne Baker. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Jesse Wayne Baker, pled guilty to introduction of a controlled substance into a penal institution, a Class C felony. The trial court sentenced the defendant to four years to be served consecutively with a previous sentence. On appeal, the defendant argues that his sentence is excessive and the trial court erred in denying alternative sentencing and in imposing consecutive sentencing. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bakerj.wpd
STATE OF TENNESSEE v. JARED MICHAEL CHRISTEIN Court:TCCA Attorneys: Mark D. Slagle, Johnson City, Tennessee, for the appellant, Jared Michael Christein. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Doug Godbee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Jared Michael Christein, was convicted by a jury in the Sullivan County Criminal Court of second degree murder, felony murder, and especially aggravated robbery. The appellant's second degree murder conviction was merged into his felony murder conviction and he was sentenced to life imprisonment in the Tennessee Department of Correction. The trial court also sentenced the appellant to twenty-five years incarceration for the especially aggravated robbery conviction. On appeal, the appellant raises the following issues for our review: whether sufficient evidence existed to support his convictions and whether the trial court properly charged the jury on the appropriate lesser-included offenses. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/christeinj.wpd
J.D. HICKMAN v. TENNESSEE BOARD OF PROBATION AND PAROLE Court:TCCA Attorneys: J.D. Hickman, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Arthur Crownover II, Senior Counsel, for the appellee, Tennessee Board of Probation and Parole. Judge: COTTRELL First Paragraph: Inmate filed a motion for declaratory relief regarding his rights to access certain materials held by the Board of Probation and Parole and sought an order from the trial court mandating the production of those materials at the expense of the Board. The trial court denied the motion for summary judgment filed by the inmate and dismissed the action in its entirety because the requirements for a mandatory injunction had not been met, but stated that the inmate was not prohibited from again seeking the materials by identifying the specific documents he wanted copied and paying in advance for the copies. We affirm the trial court's decision to deny the motion for summary judgment, but reverse the dismissal and remand. http://www.tba.org/tba_files/TCCA/hickmanjd1.wpd
STATE OF TENNESSEE v. DARYL ADRIAN BENJAMIN INGRAM Court:TCCA Attorneys: Ramsdale O'DeNeal, Jr., Jackson, Tennessee, for the appellant, Daryl Adrian Benjamin Ingram. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant entered "open" guilty pleas to eight counts of aggravated robbery and two counts of attempted aggravated robbery. The trial court imposed an effective forty-year sentence. On appeal, the defendant argues: (1) his sentences are excessive; and (2) the trial court erred in imposing partial consecutive sentencing. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/ingramd.wpd
STATE OF TENNESSEE v. CHRISTOPHER K. KNIGHT Court:TCCA Attorneys: Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Christopher K. Knight. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Hardin County jury convicted the defendant of two counts of aggravated assault. On appeal, he contends: (1) the trial court erred by refusing to grant a mistrial during jury voir dire; (2) the trial court erred in denying the defendant's motion for new trial based on alleged juror misconduct; and (3) the evidence was not sufficient to support his convictions. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/knightc.wpd
TONY S. WALKER v. STATE OF TENNESSEE Court:TCCA Attorneys: J. Mark Johnson, Trenton, Tennessee, for the appellant, Tony S. Walker. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Garry G. Brown, District Attorney General; and Ted Neumann, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the denial of his petition for post-conviction relief from his conviction for first degree felony murder, for which he was sentenced to life imprisonment. He argues that: (1) he received ineffective assistance of counsel; and (2) the post-conviction court erred in finding that his statement taken by law enforcement officers did not violate his constitutional rights. Following our review, we affirm the post-conviction court's denial of the petition. http://www.tba.org/tba_files/TCCA/walkert.wpd
STATE OF TENNESSEE v. CHARLES W. WELLMAN Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee (on appeal); Raymond Mack Garner, District Public Defender; and George H. Waters, Assistant District Public Defender (at trial), for the appellant, Charles W. Wellman. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Ellen L. Berez, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GELNN First Paragraph: The defendant was convicted of assault, a Class A misdemeanor, in violation of Tennessee Code Annotated section 39-13-101 and sentenced to eleven months, twenty-nine days, with ninety days to be served in the county jail and the remainder on supervised probation. On appeal, in addition to challenging the sufficiency of the evidence, he argues that the trial court imposed an excessive sentence and erred by ordering that he serve ninety days in confinement. We conclude that the evidence is sufficient to support the conviction and the record supports the trial court's sentencing determinations. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wellmancw.wpd

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