Opinion Flash

June 4, 2003
Volume 9 — Number 101

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
06 New Opinion(s) from the Tennessee Court of Appeals
06 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


ALFRED T. DUNCAN, ROSA L. DUNCAN, and JERRY WAYNE BELL v. YVONNE
ELIZABETH QUALLS, JERRY BARBER and wife, MARGIE BARBER, and H. TOM
KITTRELL, SR.

Court:TCA

Attorneys:

Bobby A. McGee, Linden, Tennessee, for appellants, Jerry Barber and
wife, Margie Barber.

Douglas Thompson Bates, III, Centerville, Tennessee, for appellee,
Yvonne Elizabeth Qualls.

Wm. Landis Turner, Hohenwald, Tennessee, for appellees, Alfred T.
Duncan, Rosa L. Duncan, and Jerry Wayne Bell.                        

Judge: LILLARD

First Paragraph:

This is a boundary line dispute.  The plaintiffs filed suit against
the defendants to establish common boundary lines and to recover for
timber cut from their land.  One of the defendants counterclaimed  for
damages to his land.  The trial court found that the defendants'
proposed boundary line was the correct boundary line, but granted the
plaintiffs a perpetual easement over the defendants' land.  The trial
court declined to award the plaintiffs compensation for the cut
timber.  On appeal, one of the defendants argues that the trial court
erred in denying a motion to produce findings of facts, erred in
granting a perpetual easement across the defendants' land, and erred
in failing to grant the defendants damages.  The plaintiffs assert
that the trial court erred in failing to award them damages and
discretionary costs.  We reverse the award of a perpetual easement
since the record does not indicate that such relief was sought, and
affirm the remainder of the trial court's decision.

http://www.tba.org/tba_files/TCA/duncanat.wpd
								
FRANKLIN IRON & METAL RECYCLING, INC. v. WORLEY ENTERPRISES, INC., et al. Court:TCA Attorneys: J. Britt Phillips, Franklin, Tennessee, for the appellants, Worley Enterprises, Inc. and Johnny Worley. J. Nick Shelton, Franklin, Tennessee, for the appellee, Franklin Iron & Metal Recycling, Inc. Judge: CAIN First Paragraph: Defendants appeal the action of the trial court denying a Tennessee Rule of Civil Procedure 59.04 motion seeking to set aside a previous grant of summary judgment. We have determined that the trial court did not abuse its discretion in denying the motion and therefore affirm the judgment. http://www.tba.org/tba_files/TCA/frankliniron.wpd
BOBBY G. HELTON, et al. v. JAMES EARL CURETON, et al. Court:TCA Attorneys: Fletcher L. Ervin, Newport, Tennessee, for the Appellants Bobby G. Helton and Linda Helton. Terry E. Hurst, Newport, Tennessee, for the Appellees James Earl Cureton and Cynthia Diane Cureton. Judge: SWINEY First Paragraph: Bobby G. Helton and Linda Helton ("Plaintiffs") sold land and a house to James Earl Cureton and Cynthia Diane Cureton ("Defendants") for $47,000. The parties signed a Contract for Sale of Land ("Contract"). The Contract required monthly payments to be made over a twenty-one year period and was made subject to Plaintiffs' existing mortgage on the property with Merchants and Planters Bank. The Contract also required Defendants to obtain fire insurance, even though Plaintiffs maintained fire insurance on the property as required by their existing mortgage. Defendants did not have fire insurance when the house later was destroyed by fire. Plaintiffs' insurance company paid a total of $41,970, of which $12,664.73 was paid directly to Merchants and Planters Bank in satisfaction of Plaintiffs' mortgage. Plaintiffs sued for the remaining balance owed on the Contract after Defendants stopped making the monthly payments. The Trial Court held that Defendants were entitled to a credit against the purchase price for the insurance proceeds of $41,970, and entered judgment accordingly. Plaintiffs appeal, claiming Defendants were not entitled to a credit for the $12,664.73 paid in satisfaction of their mortgage. We affirm. http://www.tba.org/tba_files/TCA/heltonbg.wpd
JACK T. JONES, et al. v. MELVIN JOHNSON Court:TCA Attorneys: J. Todd Faulkner, Nashville, Tennessee, for the appellant Melvin Johnson. Jeanan Mills Stuart, Nashville, Tennessee, for the appellees, Jack T. Jones and Joann Jones. Judge: CANTRELL First Paragraph: This suit arose from the deliberate destruction of a walnut tree on the plaintiffs' property. The trial court awarded the plaintiffs $5,500 in damages. The defendant argues on appeal that the court used the wrong measure to calculate damages, and that the judgment should not have exceeded $1,000. We affirm the trial court. http://www.tba.org/tba_files/TCA/jonesjt1.wpd
OLD REPUBLIC SURETY COMPANY v. MORRIS ESHAGHPOUR Court:TCA Attorneys: Todd E. Panther, Nashville, Tennessee, for the appellant, Morris Eshaghpour. Melissa Kurtz Blackburn, Nashville, Tennessee, for the appellee, Old Republic Surety Company. Judge: KOCH First Paragraph: A building contractor agreed to make certain repairs to a residence and procured a performance bond as required by the Metro Government. To obtain the bond the contractor was required to execute an indemnity agreement favorably to the bonding company. The homeowner complained of the quality of the contractor's workmanship, and the Codes Department of the Metro. Government determined that certain remedial action should be taken by the contractor in order to achieve compliance with the building code. The contractor declined to do so, insisting that the problems complained of were caused by the homeowner; whereupon, the bonding company engaged another contractor to make the repairs, and filed this action against the initial contractor for indemnification. The Circuit Court ruled in favor of the bonding company. We affirm. http://www.tba.org/tba_files/TCA/oldrepublic1.wpd
DAVID W. VAUGHN v. DAIMLER CHRYSLER CORPORATION, et al. Court:TCA Attorneys: Lon V. Boyd, Kingsport, Tennessee, for the Appellant, David W. Vaughn G. David Hatfield, Knoxville, Tennessee, for the Appellees, Daimler Chrysler Corporation and Grindstaff, Inc. Judge: GODDARD First Paragraph: David W. Vaughn sues Daimler Chrysler Corporation and Grindstaff, Inc., seeking damages in connection with his October 1994 purchase of a 1994 Chrysler LHS automobile which was manufactured by Chrysler and sold to him by Grindstaff. The complaint alleges violations of T.C.A. Title 55, Chapter 24, commonly known as the "Lemon Law." The Trial Court sustained a motion for summary judgment filed by the Defendants, resulting in this appeal, wherein Mr. Vaughn contends there are disputed material facts rendering summary judgment inappropriate. We affirm. http://www.tba.org/tba_files/TCA/vaughn.wpd
STATE OF TENNESSEE v. ROBIN A. CONNER Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee (on appeal); Raymond Mack Garner, District Public Defender; and Stacey D. Nordquist, Assistant District Public Defender (on appeal and at hearing), for the appellant, Robin A. Conner. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Michael L. Flynn, District Attorney General; and John Anderson Bobo, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant, Robin A. Conner, pled guilty to robbery, and the Blount County trial court sentenced her to three years' incarceration as a Range I standard offender. The defendant appeals the trial court's denial of alternative sentencing. Upon review of the record and the applicable law, we reverse the judgment of the trial court. http://www.tba.org/tba_files/TCCA/connerr1.wpd
STATE OF TENNESSEE v. DEBRA FOSTER Court:TCCA Attorneys: Doug Vance, Jr., Bristol, Tennessee, for the appellant, Debra Foster. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and J. Lewis Combs, Assistant Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Debra Foster, pled guilty to seven counts of attempt to obtain possession of a controlled substance by fraud, Class D felonies. She received an effective sentence of eight years as a Range II, multiple offender. The trial court denied alternative sentencing and the appellant timely appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/fosterd.wpd
STATE OF TENNESSEE v. JAMIE H. JONES Court:TCCA Attorneys: Michael A. Colavecchio (on appeal) and Paul T. Housch (at trial), Nashville, Tennessee, for the appellant, Jamie H. Jones. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Brian K. Holmgren and Kristen K. Shea, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Jamie H. Jones, was convicted by a jury in the Davidson County Criminal Court of five counts of forgery and received a total effective sentence of eight years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises several issues for our review, including the sufficiency of the evidence, the correctness of the trial court's rulings, the propriety of the sentences imposed, and the denial of the appellant's motion for new trial. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/jonesjh.wpd
STATE OF TENNESSEE v. DEXTER LEE SPENCE Court:TCCA Attorneys: Edward C. Miller, District Public Defender, for the appellant, Dexter Lee Spence. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Dexter Lee Spence, entered a guilty plea to second degree murder. The trial court imposed a twenty-five-year sentence. In this appeal of right, the defendant argues that the sentence was excessive. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/spenced.wpd
STATE OF TENNESSEE v. THURMAN L. WHITSEY AND CHARLIE MAE WHITSEY Court:TCCA ORDER ON PETITION TO REHEAR http://www.tba.org/tba_files/TCCA/whitseycharliemaerehear.wpd
STATE OF TENNESSEE v. THURMAN L. WHITSEY AND CHARLIE MAE WHITSEY Court:TCCA AMENDED JUDGMENT http://www.tba.org/tba_files/TCCA/whitseythurman_amnjud.wpd
NORA FAYE YOUNG v. STATE OF TENNESSEE Court:TCCA Attorneys: William B. Hawkins, III, Nashville, Tennessee, for the appellant, Nora Faye Young. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals after being denied post-conviction relief. She originally pled guilty to three counts of facilitation of first degree murder and received a forty-five-year sentence. She alleges that her guilty plea was not knowingly, voluntarily, or intelligently entered. She further alleges that her trial counsel knew that her co-defendant made exonerating statements, and she would not have pled guilty if she had known of her co-defendant's exonerating statements. After careful review, we conclude that the evidence does not preponderate against the post-conviction court's findings. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/youngnf.wpd

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