Opinion Flash
April 14, 2003
Volume 9 — Number 066
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 |
| 01 |
New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court |
| 09 |
New Opinion(s) from the Tennessee Court of Appeals |
| 05 |
New Opinion(s) from the Tennessee Court of Criminal Appeals |
| 01 |
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
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/certlist_0414.wpd
FERGUSON HARBOUR INCORPORATED v. FLASH MARKET, INC.
Court:TCA
Attorneys:
Allan B. Thorp; Nanette L. Wesley, Memphis, For Appellant, Flash
Market, Inc.
Stephen C. Knight, Nashville, For Appellee, Ferguson Harbour,
Incorporated
Judge: CRAWFORD
First Paragraph:
This case involves a dispute over the validity of a contract.
Appellant claims that its signature on the contract was obtained
through economic duress and that the contract is, therefore, void.
The trial court found for Appellee, awarding compensatory damages and
attorney's fees. Appellee contends that the award of attorney's fees
was unreasonably low. We affirm the trial court's award of
compensatory damages. On the issue of attorney's fees, we reverse the
order of the trial court and remand this case for a determination of
reasonable attorney's fees consistent with this opinion.
http://www.tba.org/tba_files/TCA/fergusonharbour.wpd
MARK B. GARDNER v. UNIVERSITY OF MEMPHIS COLLEGE OF BUSINESS, et al.
Court:TCA
Attorneys:
John M. Moore, Memphis, Tennessee, for the appellant, Mark B. Gardner.
Paul G. Summers, Attorney General and Reporter and Kae Carpenter Todd,
Assistant Attorney General, for the State of Tennessee.
Judge: FARMER
First Paragraph:
The plaintiff in this case filed a claim in the Tennessee Claims
Commission alleging breach of contract by the University of Memphis
College of Business and Tennessee Board of Regents. The Claims
Commission dismissed for lack of subject matter jurisdiction under
Tenn. Code Ann. S 9-8- 307(a)(1)(L). We affirm.
http://www.tba.org/tba_files/TCA/gardner.wpd
SCOTT GRAHAM HARTMAN, et al. v. THE STATE OF TENNESSEE, et al.
Court:TCA
Attorneys:
Ronald C. Leadbetter, Peter M. Foley, Knoxville, For Appellant, State
of Tennessee
Paul S. Davidson, Joel L. Galanter, Nashville, For Appellees, Scott
Graham Hartman, Kay Hartman, his mother an duly qualified conservator
and guardian, and Cleon Hartman
Judge: CRAWFORD
First Paragraph:
Student-athlete entered into athletic scholarship with University
under which University agreed to furnish medical treatment for any
injuries incurred during athletic competition. Student- athlete
suffered catastrophic injury during competition. At the time of his
injury, student-athlete was an enrolled Eligible Dependent under an
insurance plan father purchased through his employer. Pursuant to
this plan, and the subrogation provision contained within, employer
paid a significant portion of student-athlete's medical expenses for a
specific three-year period. Employer ratified original contract
action of student-athlete and parents against University and State,
and sought to recover medical expenses paid pursuant to the plan's
subrogation provision. Claims Commission granted summary judgment in
favor of employer, ruling that employer was entitled to recover
medical expenses from University. Commission denied claimants'
request for prejudgment interest. University appeals Commission's
summary judgment ruling, and claimants appeal Commission's denial of
prejudgment interest. We affirm.
http://www.tba.org/tba_files/TCA/hartmanscott1.wpd
STATE EX REL, QUINN JOHNSON v. MIKE HOLM, et al.
Court:TCA
Attorneys:
Quinn Johnson, Plymouth, WI, pro se
Tom Anderson, Jackson, TN, for Appellee
Judge: HIGHERS
First Paragraph:
This is an appeal of a denial of a petition for a common law writ of
certiorari. The petition was filed by a prisoner seeking review of
two decisions against him by the prison disciplinary board. Because
the petition was filed more than sixty days after the first decision,
we have no jurisdiction to address the issues presented regarding that
decision. The petition was timely filed in regards to the second
decision against Appellant, but we find no merit in Appellant's
contentions and affirm the ruling of the trial court.
http://www.tba.org/tba_files/TCA/johnsnq.wpd
BRENDA GAIL McNEELEY JONES v. DAVID WAYNE JONES
Court:TCA
Attorneys:
Thomas C. Jessee, Johnson City, for Appellant David Wayne Jones
Lois B. Shults-Davis, Erwin, for Appellee Brenda Gail McNeeley Jones
Judge: GODDARD
First Paragraph:
In this post-divorce case, David Wayne Jones (Husband) filed a motion
requesting the Trial Court to discontinue alimony payments. The sole
basis for the motion was that Brenda Gail McNeeley Jones (Wife) was
"currently residing with a male individual." Wife denied that a
reduction in alimony was appropriate, due to her alleged continuing
need and Husband's continuing ability to pay. Wife moved for an
increase in alimony payments due to her "increased medical expenses,
and vocational disability that [she] suffers by reason of the need for
eye surgery." The Trial Court awarded Husband a reduction in the
amount of alimony from $1,500 per month to $1,000 per month. On
appeal, Husband argues that the Trial Court erred by refusing to
eliminate the alimony payments, and Wife argues that the Court erred
by reducing them. We affirm the judgment of the Trial Court.
http://www.tba.org/tba_files/TCA/jonesbr.wpd
SHIRLEY JEAN KLEIN v. DAVID FRANCIS KLEIN
Court:TCA
Attorneys:
Jerrold L. Becker, Knoxville, Tennessee, for the Appellant, Shirley
Jean Klein
Kenneth N. Bailey, Greeneville, Tennessee, for the Appellee, David
Francis Klein
Judge: GODDARD
First Paragraph:
In this divorce proceeding the wife, Shirley Jean Klein, appeals the
judgment of the Trial Court which held that Ms. Klein was not entitled
to alimony. We affirm.
http://www.tba.org/tba_files/TCA/kleins.wpd
GERALDINE MILES, et al. v. JOHN T. WALSH, M.D., et al.
Court:TCA
Attorneys:
Al H. Thomas and Regina Guy, Memphis, Tennessee, for the appellants,
Geraldine Miles and Robert Miles.
John H. Dotson and Joseph M. Clark, Memphis, Tennessee, for the
appellees, John T. Walsh, M.D., and Affiliated Anesthesiologists.
Judge: FARMER
First Paragraph:
This appeal arises from a medical malpractice action. Sitting without
a jury, the trial court found plaintiffs had failed to prove
defendants' conduct fell below the standard of care. The trial court
accordingly entered judgment for defendants. We affirm.
http://www.tba.org/tba_files/TCA/miles.wpd
CHRISTOPHER NASH POWELL v. PATSY CONLEY POWELL
Court:TCA
Attorneys:
Daniel Loyd Taylor and Amy R. Harden, Memphis, Tennessee, for the
appellant, Christopher Nash Powell.
William L. Bomar and Joy T. Bomar, Memphis, Tennessee, for the
appellee, Patsy Conley Powell.
Judge: FARMER
First Paragraph:
This case involves the proper valuation and division of marital
property, the propriety of the award of sanctions and attorney's and
expert witness' fees. We affirm the trial court's valuation and
division of the marital property. We reverse the award of fees and the
imposition of sanctions as the sanction imposed exceeded the authority
of the trial court. We remand the case for further proceedings to
include consideration of the imposition of a sanction within the
court's authority.
http://www.tba.org/tba_files/TCA/powellch.wpd
ANN S. WING v. ESTATE OF JAMES E. WING, et al.
Court:TCA
Attorneys:
Markley Runyon Gill, Erin, Tennessee for the appellants Estate of
James E. Wing and Kathy Parchman.
Karl F. Dean, Daniel W. Champney, Michael B. Bligh and John L.
Kennedy, Nashville, Tennessee for the appellant, Metropolitan
Government of Nashville and Davidson County.
Clark Lee Shaw and Richard E. Norman, Nashville, Tennessee, for
appellee, Ann S. Wing.
Paul G. Summers, Attorney General and Reporter; Stuart F.
Wilson-Patton, Senior Counsel, for the appellee, State of Tennessee.
Judge: CANTRELL
First Paragraph:
The Circuit Court of Davidson County ordered the husband involved in a
divorce to pay $230 per week in support payments to the wife after the
husband retired from the Metropolitan Government of Nashville and
Davidson County. When the husband retired he elected to receive
guaranteed payments for 120 months and designated his daughter as the
beneficiary to receive the payments if he died within the 120 month
period. The court then modified its prior order to provide that the
payments were a division of the husband's pension from the
Metropolitan Government of Nashville and Davidson County. After the
husband's untimely death, the court ordered the Metropolitan
Government and/or the husband's daughter who had been made the
beneficiary of the pension to make the payments. Because we find that
the court lacked personal jurisdiction over Metro and the daughter, we
reverse the court's order and remand for further proceedings.
http://www.tba.org/tba_files/TCA/wingas.wpd
MOHAMED F. ALI v. STATE OF TENNESSEE
Corrected Opinion
Court:TCCA
Attorneys:
Janie L. Lindamood, Johnson City, Tennessee, for the appellant,
Mohamed F. Ali.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Victor J. Vaughn, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The petitioner, Mohamed F. Ali, appeals from the judgment of the
Washington County Criminal Court denying him post-conviction relief
from his convictions for rape and attempted bribery. He is serving an
effective sentence of fifteen years in the Department of Correction.
The petitioner contends that the post-conviction court erred in (1)
applying incorrect law governing judicial bias, (2) finding that the
convicting trial judge was not biased against him, (3) excluding
evidence of judicial bias, (4) refusing the petitioner's discovery
requests regarding the issue of bias, and (5) denying the petitioner's
claim of ineffective assistance of counsel. We affirm the
post-conviction court.
http://www.tba.org/tba_files/TCCA/alimfcorrex.wpd
STATE OF TENNESSEE v. LARRY D. ANDERSON
Court:TCCA
Attorneys:
Gary F. Antrican, District Public Defender, and Julie K. Pillow,
Assistant Public Defender, for the appellant, Larry D. Anderson.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and James Walter Freeland, Jr., and Tracey A. Brewer,
Assistant District Attorneys General, for the appellee, State of
Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant was found guilty by a jury of first degree felony murder
and especially aggravated burglary. He was sentenced to life plus
twelve years, respectfully, in the Department of Correction. The
defendant contends that he was mentally incompetent to stand trial or
to give a knowing, intelligent, and voluntary waiver of his Miranda
rights and that his sentences were in error. We affirm the judgments
from the trial court.
http://www.tba.org/tba_files/TCCA/andersnl.wpd
STATE OF TENNESSEE v. RICKY BLAIR
Court:TCCA
Attorneys:
J. Colin Morris, Jackson, Tennessee, for the appellant, Ricky Blair.
Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; Garry Brown, District Attorney General;
and Larry Hardister, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant was convicted by a jury of attempted second degree
murder, aggravated assault, and setting fire to personal property.
The defendant received an effective sentence of nine years. The sole
issue on appeal is whether the evidence was sufficient to support his
conviction for attempted second degree murder. We affirm the
judgments from the trial court.
http://www.tba.org/tba_files/TCCA/blairr.wpd
STATE OF TENNESSEE v. KENNETH LEE ENGLAND
Corrected Opinion
Court:TCCA
Attorneys:
Julie A. Rice, Knoxville, Tennessee (on appeal); Martha J. Yoakum,
District Public Defender; and Charles Albert Herman, Assistant
District Public Defender (at trial), for the appellant, Kenneth Lee
England.
Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William Paul Phillips, District Attorney
General; and Michael O. Ripley, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The defendant, Kenneth Lee England, was convicted by a Campbell County
Criminal Court jury of retaliation for past action, a Class E felony,
and the trial court sentenced him as a career offender to six years in
the Department of Correction. The defendant appeals, claiming that
the evidence is insufficient and that the trial court erred by
allowing the state to impeach him with his prior retaliation for past
action convictions under Tenn. R. Evid. 609. We affirm the judgment
of the trial court.
http://www.tba.org/tba_files/TCCA/englandkennethleecorrex.wpd
STATE OF TENNESSEE v. VINCENT HOWARD
Court:TCCA
Attorneys:
A C Wharton, Jr., District Public Defender; W. Mark Ward, Robert
Felkner, and Garland Ergueden, Assistant Public Defenders, for the
appellant, Vincent Howard.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Patience R. Branham, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant appeals his convictions of first degree felony murder
and especially aggravated robbery. He received a life sentence for
the first degree felony murder conviction and an additional twenty-one
year sentence for his especially aggravated robbery conviction. The
defendant contends the evidence is insufficient to sustain his
convictions. The defendant also argues his twenty-one- year sentence
for especially aggravated robbery is excessive. The defendant
alleges the trial court misapplied enhancement factors (1), (8), (13),
and (16) and erred in finding him a dangerous offender to support its
consecutive sentence determination. We affirm the convictions, but
remove the presumption of correctness due to the misapplication of
four enhancement factors and remand for a new sentencing hearing on
the especially aggravated robbery conviction only.
http://www.tba.org/tba_files/TCCA/howard1.wpd
"Legislative Education Initiative Fund" for Unclaimed Lottery Prize
Funds
Date: April 11, 2002
Opinion Number: 03-041
http://www.tba.org/tba_files/AG/2003/OP41.pdf
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