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

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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

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