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

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


Court:TSC - Rules

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

Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

See the intrsuctions at the beginning of this edition of Opinion Flash.

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

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


But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi

HomeContact UsPageFinderWhat's NewHelp
© Copyright 2003 Tennessee Bar Association