Opinion Flash
March 18, 2003
Volume 9 — Number 048
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 |
| 04 |
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 |
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.
Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.
Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.
Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
DUDLEY C. EASTBOURNE, et al. v. ROGER BRUMITTE D/B/A ROGER BRUMITTE
CONSTRUCTION
Court:TCA
Attorneys:
Christopher W. Martin and Michael P. McGovern, Knoxville, Tennessee,
for the Appellant, Roger Brumitte, d/b/a Roger Brumitte Construction
John Carson, III, Madisonville, Tennessee, for the Appellees, Dudley
C. Eastbourne and wife, Barbara A. Eastbourne
Judge: GODDARD
First Paragraph:
In this appeal from the Chancery Court for Loudon County the
Appellant, Roger Brumitte d/b/a Roger Brumitte Construction, argues
that the Trial Court erred in awarding the Appellees, Dudley C.
Eastbourne and wife Barbara A. Eastbourne, damages for defects in the
construction of their home. We affirm the judgment of the Trial Court
as modified and remand for enforcement of the judgment and collection
of costs below.
http://www.tba.org/tba_files/TCA/eastbou.wpd
JOHN PAUL MOORE v. TERESA ANN MOORE
Court:TCA
Attorneys:
Edward Kershaw, Greeneville, Tennessee, for the Appellant, John Paul
Moore
No Brief was filed by the Appellee, Teresa Ann Moore
Judge: GODDARD
First Paragraph:
John Paul Moore appeals a judgment in a divorce proceedings,
complaining that the Trial Court should have awarded him primary
parenting rather than shared parenting with the child's mother, Teresa
Ann Moore. He also complains that the Court erred in awarding an
attorney fee to Ms. Moore in the amount of $300. Our standard of
review as to both issues is whether the Trial Court abused its
discretion. We find the Trial Court properly exercised its discretion
and affirm.
http://www.tba.org/tba_files/TCA/moorej.wpd
ALICA DELANE RAKESTRAW v. GREGORY KEITH RAKESTRAW
Court:TCA
Attorneys:
Ashley L. Ownby, Cleveland, for the Appellant, Alica Delane Rakestraw
James F. Logan, Jr., Cleveland, for the Appellee, Gregory Keith
Rakestraw
Judge: GODDARD
First Paragraph:
The sole issue in this divorce case is whether the Trial Court reached
the correct decision regarding custody of the parties' child. The
Court granted primary custodial care of the parties' daughter, Kendra
Paige Rakestraw, then 10 years old, to Gregory Keith Rakestraw
("Father"). Alica Delane Rakestraw ("Mother") argues on appeal that
the evidence preponderates against the Court's exercise of discretion
in rendering its custody decision, and that the Court erred in denying
her motion to alter or amend the judgment and her motion for a new
trial. We affirm the judgment of the Trial Court in all respects.
http://www.tba.org/tba_files/TCA/rakestraw.wpd
HELLEN M. WILSON v. CSX TRANSPORTATION, INC.
Court:TCA
Attorneys:
Patrick S. O'Brien and Newton G. McCoy, St. Louis, Missouri, and
Clarence E. Walker, Chattanooga, for the Appellant, Hellen M. Wilson
Wayne L. Robbins, Jr. and Mary Taylor Gallagher, Nashville, for the
Appellee, CSX Transportation, Inc.
Judge: GODDARD
First Paragraph:
This interlocutory appeal raises the question of the admissibility of
the testimony of three expert witnesses which the Plaintiff, Hellen M.
Wilson, sought to present at trial. The Trial Court excluded the
expert testimony of Dr. William J. Nassetta and certified pursuant to
T.R.A.P. Rule 9 the following question for this Court: "whether the
testimony of the expert witness, William J. Nassetta, M.D., as
reflected in [his] attached affidavit,. . .is admissible under the
doctrine of the Tennessee Supreme Court decision in McDaniel v. CSX
Transportation, Inc." The Trial Court also granted permission to CSX
Transportation (CSXT) to appeal its ruling admitting the testimony of
two other expert witnesses offered by the Plaintiff. We hold that
the testimony of all three expert witnesses is admissible under the
principles enunciated in McDaniel.
http://www.tba.org/tba_files/TCA/wilsonh.wpd
JOANN GAIL ROSA v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Joann
Gail Rosa.
Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and G. Scott Green, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner appeals the dismissal of her petition for
post-conviction relief from her conviction for first degree murder,
arguing that the post-conviction court erred in finding that she
received effective assistance of trial counsel. After a thorough
review of the record, we conclude that the petitioner failed to
demonstrate either a deficiency in counsel's performance or a
resulting prejudice to her case. Accordingly, we affirm the dismissal
of the petition.
http://www.tba.org/tba_files/TCCA/rosajoanng.wpd
STATE OF TENNESSEE v. JEFFREY SMITH
Court:TCCA
Attorneys:
David R. Barrow, Chattanooga, Tennessee (on appeal), and Danny Hill,
Assistant District Public Defender (at trial), for the appellant,
Jeffrey Smith.
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Carl Huskins, Assistant District
Attorney General, for the appellee, the State of Tennessee.
Judge: WADE
First Paragraph:
The defendant, Jeffrey Smith, pled guilty to three counts of
aggravated burglary, one count of aggravated robbery, one count of
attempted robbery, and one count of theft under $500. The trial court
imposed sentences as follows: six years for two of the aggravated
burglaries and three years for the remaining aggravated burglary,
twelve years for aggravated robbery, two years for attempted robbery,
and eleven months and twenty-nine days for theft under $500. The
trial court ordered that the twelve-year sentence for aggravated
robbery be served consecutively to the sentence for aggravated
burglary in Count 1 of case number 238391. The effective sentence is,
therefore, eighteen years. In this appeal, the defendant complains
that the sentence is excessive. Because consecutive sentences were
not warranted, the judgments must be modified to reflect that all the
sentences are to be served concurrently.
http://www.tba.org/tba_files/TCCA/smithjeffrey.wpd
STATE OF TENNESSEE v. VICKIE SWIFT
Court:TCCA
Attorneys:
Mack Garner, District Public Defender, for the appellant, Vickie
Swift.
Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan,
Assistant Attorney General; and Edward P. Bailey, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.
Judge: WADE
First Paragraph:
The defendant, Vickie Swift, was convicted of one count of theft over
$1000. The trial court imposed a sentence of three years to be served
on probation. Later, probation was revoked. In this appeal, the
defendant asserts that the trial court erred by revoking her probation
and ordering her incarcerated for the balance of her sentence.
http://www.tba.org/tba_files/TCCA/swiftvickie.wpd
STATE OF TENNESSEE v. JOSEPH B. THOMPSON
Court:TCCA
Attorneys:
Raymond C. Conkin, Jr., Kingsport, Tennessee, for the appellant,
Joseph B. Thompson.
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and B. Todd Martin, Assistant District
Attorney General, for the appellee, the State of Tennessee.
Judge: WADE
First Paragraph:
The defendant, Joseph B. Thompson, was convicted of aggravated robbery
and aggravated kidnapping. The trial court imposed consecutive
sentences of twenty years for each offense for an effective sentence
of forty years. In this appeal of right, the defendant asserts (1)
that the trial court erred by denying his motion for judgment of
acquittal; (2) that his convictions for both aggravated robbery and
aggravated kidnapping violate the rule established in State v.
Anthony; (3) that a pretrial photographic array was unduly suggestive;
(4) that the trial court erred by the admission of photographs of the
victim; (5) that the trial court erred by denying his motion for
mistrial; (6) that the offenses should have been severed for trial;
(7) that the trial court erred by refusing to dismiss the indictment
when the state failed to disclose exculpatory information; (8) that
the trial court erred by admitting a receipt that was not properly
authenticated; (9) that the trial court impermissibly limited closing
argument to forty minutes; and (10) that the sentence is excessive.
The judgments of the trial court are affirmed.
http://www.tba.org/tba_files/TCCA/thompsonj.wpd
JONATHAN THORNTON v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Herbert S. Moncier and David S. Wigler, Knoxville, Tennessee, for the
appellant, Jonathan Thornton.
Paul G. Summers, Assistant Attorney General; and Cecil C. Mills, Jr.,
Assistant District Attorney General, for the appellee, the State of
Tennessee.
Judge: WADE
First Paragraph:
The petitioner, Jonathan Thornton, appeals the trial court's denial of
his petition for habeas corpus relief, alleging that the sentence
imposed by this court on direct appeal is illegal. Because the
sentence imposed by this court upon direct appeal is in direct
contravention of a statute, the judgment of the trial court is
reversed and the petitioner's sentence is modified. With regard to
the petitioner's felony conviction, we modify the sentence to a term
of split confinement, with 7.2 months to be served in the local jail
and the balance to be served on probation. The sentence for the
misdemeanor sentence remains the same, 11 months and 29 days with
thirty percent to be served in confinement.
http://www.tba.org/tba_files/TCCA/thorntonj.wpd
PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.
GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.
JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.
To join the TBA go to: http://www.tba.org/join_bar.mgi
SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.
Visit the TBALink web site at: http://www.tba.org/op-flash.mgi
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
