Opinion Flash

June 17, 2003
Volume 9 — Number 108

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
09 New Opinion(s) from the Tennessee Court of Appeals
08 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


BRENDA L. ADAMS v. STEVEN A. OLIVEIRA 

Court:TCA

Attorneys:

Boyd W. Venable, III, Sevierville, Tennessee, for the Appellant,
Steven L. Oliveira

No Brief was filed by the Appellee, Brenda L. Adams, Pro Se                        

Judge: GODDARD

First Paragraph:

Steven A. Oliveira appeals an  order of protection entered on December
18, 2001, by the General Sessions Court for Blount County in favor of
Brenda L. Adams, Mr. Oliveira's sister.  An ex parte order had issued
on November 26, 2001, and was served on December 6, 2001.  The hearing
was held on December 17.  We dismiss the appeal because we find it was
not timely filed.

http://www.tba.org/tba_files/TCA/adamsbrenda.wpd
								
OSCAR BOLTON and GAIL CRAIG v. STATE OF TENNESSEE DEPARTMENT OF HUMAN SERVICES Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, and Pamela A. Hayden-Wood, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee Department of Human Services. Gail Craig, Bells, Tennessee, appellee, pro se. Judge: LILLARD First Paragraph: This case involves the denial of Medicaid benefits. In February 1998, the petitioner entered a nursing home as a private pay individual. In order to qualify for Medicaid benefits to pay for his nursing home expenses, the petitioner asked his daughter to transfer his assets and apply for Medicaid benefits on his behalf. Therefore, in April 1998, the daughter transferred to relatives approximately $285,000 of her father's assets. In May 2000, the daughter went to the defendant agency to apply for Medicaid benefits for her father. She was told by the agency that if she applied at that time the application would be denied because the April 1998 transfers were within the thirty- six (36) month "look-back" period under Medicaid regulations. Later, in March 2001, the daughter again went to the agency to apply for benefits effective April 2001. The agency again denied her application based on the April 1998 transfers. On review, the agency upheld that denial. The petitioner appealed the agency's decision to the trial court below. The trial court reversed, finding insufficient evidence to uphold the agency's decision. The State now appeals. We affirm, finding that substantial and material evidence does not support the agency's conclusion that the petitioner intended to apply for benefits prior to the expiration of the thirty-six (36)-month "look-back" period. http://www.tba.org/tba_files/TCA/bolton.wpd
DALE AND MARY BRUNO v. HAROLD R. ROUNDS, III AND WIFE, MICHELLE V. ROUNDS Court:TCA Attorneys: Richard L. Winchester, Jr., Memphis, TN, for Appellant J. Payson Matthews, Somerville, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a dispute regarding a restrictive covenant in a residential community. The trial court held that the building at issue was not a barn or a storage building and thus was not in violation of the restrictive covenant. The parties raise multiple issues on appeal. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/brunodale.wpd
LARRY V. BULLOCK, C.P.A. v. CHARLES SPELL, D.D.S., et al. Court:TCA Attorneys: Robert L. J. Spence, David M. Di Scenza, Memphis, TN, for Appellant James A. Johnson, Jr., Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a contract dispute. The trial court, finding that Mr. Bullock had substantially complied with the contract provisions and that he did not repudiate the contract, entered judgment in his favor. The court awarded damages based on breach of contract, including attorney fees and additional damages. The parties raise multiple issues on appeal. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/bullocklarryv.wpd
GINA M. CHOROST v. DAVID I. CHOROST Court:TCA Attorneys: Keith Jordan, Nashville, Tennessee, for the appellant, David Ian Chorost. John B. Holt, Springfield, Tennessee, for the appellee, Gina M. Chorost. Judge: KOCH First Paragraph: This appeal involves a protracted dispute in the Circuit Court for Montgomery County arising from the dissolution of a ten-year marriage of a psychiatrist and a social worker. The proceedings have been complicated by the closing of the husband's private psychiatry practice and his inability to obtain full-time professional employment. In its final divorce decree, the trial court granted the wife the divorce and custody of the parties' children. The trial court also divided the parties' marital estate taking into consideration the husband's child support arrearage that had accumulated prior to the trial. In addition, the trial court calculated the husband's prospective child support obligation by imputing his income from full-time employment even though he had been able to work only part- time. The husband filed an untimely Tenn. R. Civ. P. 59 motion and later filed a motion to modify his child support. Following another hearing, the trial court modified the husband's child support obligation but again imputed income to the husband that he had not actually earned. On this appeal, the husband takes issue with the decision to award the wife the divorce, the division of the marital estate, the amount of his child support obligation, and the decision to order him to pay $1,000 of the wife's legal expenses. The husband's failure to file a timely Tenn. R. Civ. P. 59 motion effectively limits the scope of this appeal to two issues - the amount of his child support obligation after his motion to modify his child support and the $1,000 payment for the wife's legal expenses. With regard to these issues, we have determined that the trial court erred by imputing income to the husband that he had not earned and that the trial court erred by ordering the husband to pay $1,000 of the wife's legal expenses. http://www.tba.org/tba_files/TCA/chorost.wpd
CATHY MOLONNIA COOKE v. RANDY PHON COOKE Court:TCA Attorneys: J. Hilton Conger, Smithville, Tennessee, for the appellant Randy Phon Cooke. Thomas F. Bloom, Nashville, Tennessee, for the appellee Cathy Molonnia Cooke. Judge: COTTRELL First Paragraph: Wife sought divorce from Husband on the grounds of irreconcilable differences and inappropriate marital conduct. Husband sought divorce from Wife on identical grounds. After declaring the parties divorced, the trial court awarded Wife 42% of the marital estate and awarded Husband 58% of the marital estate. The trial court also awarded alimony in solido to Wife in the amount of $30,000. Husband appeals both the valuation of the marital estate and the award of alimony to Wife. Because we find that the evidence does not preponderate against the trial court's valuation of the marital estate, and the trial court did not abuse its discretion in awarding alimony to Wife, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/cookec.wpd
NINA SUE HOLLAND v. CITY OF MEMPHIS, et al. Court:TCA Attorneys: Lewis K. Garrison, Memphis, Tennessee, for the appellant, Nina Sue Holland. Karen S. Koplon and John C. Morrow, Memphis, Tennessee, for the appellee, Memphis Housing Authority. Judge: FARMER First Paragraph: Plaintiff filed a suit alleging gender discrimination and malicious harassment in violation of the Tennessee Human Rights Act. The trial court awarded summary judgment to Defendants. We affirm. http://www.tba.org/tba_files/TCA/hollandninasue.wpd
David Wayne Mayberry v. Janilyn Rhea Mayberry Court:TCA Attorneys: Robert O. Bragdon, Murfreesboro, TN, for Appellant Tony L. Maples, Murfreesboro, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal involves a petition to modify a parenting plan. The trial court found there to be a material and substantial change in circumstances and that it was in the best interest of the minor children that Mother be designated the primary residential custodian with full decision making authority. Father was awarded more than standard visitation. Father appeals and raises one issue on appeal. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/mayberrydavid.wpd
CHRISTINA K. YEUBANKS, Individually, and as natural parent and surviving next of kin of Sarah Nicole Anderson v. METHODIST HEALTHCARE-MEMPHIS HOSPITALS d/b/a Le BONHEUR CHILDREN'S MEDICAL CENTER, INC., AMY L. HERTZ, M.D., S. DOUGLAS HIXSON, M.D., and PEDIATRIC SURGICAL GROUP, INC. Court:TCA Attorneys: T. Robert Hill, Frankie E. Wade, and Randall J. Phillips, Jackson, Tennessee, for appellant, Christina K. Yeubanks, individually, and as natural parent and surviving next of kin of Sarah Nicole Anderson. Gary K. Smith, James T. McColgan, and Karen M. Campbell, Memphis, Tennessee, for appellee, Le Bonheur Children's Medical Center. Teresa J. Sigmon and Claire M. Cissell, Memphis, Tennessee, for appellee, Amy L. Hertz, M.D. Albert C. Harvey and Marcy L. Dodds, Memphis, Tennessee, for appellee, S. Douglas Hixson, M.D. and Pediatric Surgical Group, Inc. Judge: LILLARD First Paragraph: This is a procedurally complex medical malpractice case. A child was injured in a car accident. She was taken by helicopter to the hospital, where she died. The child's mother filed suit, alleging liability on the part of three physicians, and vicarious liability on the part of the hospital for the actions of the three physicians. She also asserted that the second physician's medical group was liable for that physician's actions. The complaint was later amended to include independent allegations of liability against the hospital. The mother voluntarily dismissed the claims against the first physician; however, the claim of liability against the hospital for the actions of the first physician remained. Immediately before the trial, the mother asserted that the hospital was liable for the actions of a fourth physician. The trial court ruled that evidence regarding a claim against the fourth physician was not admissible. Near the close of her proof, the mother voluntarily dismissed her claims against the second physician and his medical group. At the conclusion of the mother's proof, the trial court granted motions for directed verdict for the claims based on the independent actions of the hospital and for the claims against the hospital based on the actions of the first physician. The trial court then denied a motion for directed verdict on the claim of vicarious liability against the hospital for the actions of the third physician. The trial court then heard a motion to strike testimony related to claims against the third physician. Prior to a ruling on the motion, the mother voluntarily dismissed the claims against the third physician and against the hospital based on the actions of the third physician. The trial court awarded costs against the mother and ordered that, prior to refiling her case, the mother would be required to pay the costs. The mother appeals, arguing that consideration of the motions for directed verdict was premature, that the trial court's decision is not final and appealable, that the trial court improperly excluded evidence on claims that the hospital was liable for the actions of the fourth physician, that the trial court erred in granting the motion for directed verdict for the independent claims of negligence against the hospital, and that the trial court erred in awarding costs against the mother and in requiring her to pay those costs prior to refiling her case. We reverse the portion of the trial court's decision requiring the mother to pay the awarded costs prior to refiling her case. The remainder of the trial court's judgment is affirmed. http://www.tba.org/tba_files/TCA/yeubanksck.wpd
STATE OF TENNESSEE v. RICKY LAMONT BRIGMAN Court:TCCA Attorneys: Carrie Kersh-Gasaway, Clarksville, Tennessee, for the Appellant, Ricky Lamont Brigman. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Ricky Lamont Brigman, was convicted by a Davidson County jury of three counts of rape of a child, one count of attempted rape of a child, two counts of aggravated sexual battery, three counts of rape, one count of attempted rape, one count of sexual battery, one count of attempted sexual battery, and one count of sexual exploitation involving six minor male victims. For these convictions, he received an effective sentence of ninety-one years. On appeal, Brigman challenges both his convictions and sentences upon the following grounds: (1) with respect to certain convictions, a material variance exists between the indictments and the convicting evidence; (2) the "cancellation" rule requires dismissal of his conviction for sexual battery; (3) the trial court provided improper jury instructions with regard to the "cancellation" rule and the requisite mental states; (4) the sentences are excessive due to the trial court's failure to apply mitigating factors at sentencing; and (5) the improper imposition of consecutive sentences. After review, we find no reversible error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/brigmanrickylamont.wpd
ALPHONZO CHALMERS v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert Little, Maplewood, New Jersey, for the Appellant, Alphonzo Chalmers. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Ray Lepone, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Alphonzo Chalmers, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief. On appeal, Chalmers argues that he received ineffective assistance of counsel. After review of the record, we find that Chalmers' brief fails to provide any argument in support of the issue presented. Due to his procedural default, the appeal is dismissed. http://www.tba.org/tba_files/TCCA/chalmers.wpd
STATE OF TENNESSEE v. JONATHAN DEAN Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Joseph P. Atnip, District Public Defender; and William K. Randolph, Assistant District Public Defender (at trial), for the appellant, Jonathan Dean. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and Kevin David McAlpin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: In a bench trial, the Obion County trial court convicted the defendant, Jonathan Dean, of sexual battery and sentenced him to two years in the Department of Correction. On appeal, the defendant contends (1) the evidence was insufficient to support his conviction, and (2) his sentence is excessive. Upon review of the record and the applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/deanj.wpd
STATE OF TENNESSEE v. DAVID S. EADS Court:TCCA Attorneys: Mike Mosier, Jackson, Tennessee, for the Appellant, David S. Eads. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Christine M. Lapps, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Jerry W. Norwood, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, David S. Eads, pled guilty to possession of marijuana with intent to deliver and possession of drug paraphernalia. As a condition of the plea agreement, Eads reserved the right to appeal, as a certified question of law, the trial court's denial of his motion to suppress. See Tenn. R. App. P. 3(b); Tenn. R. Crim. P. 37(b). On appeal, he asserts that the search warrant was invalid because: (1) the facts alleged in the affidavit supporting the search warrant were insufficient to support a finding of probable cause, and (2) the warrant was based on information obtained from an illegal warrantless search by a confidential informant. Finding that the issues presented are without merit, we affirm the trial court's denial of the motion to suppress. http://www.tba.org/tba_files/TCCA/eads.wpd
STATE OF TENNESSEE v. THOMAS L. JACKSON Court:TCCA Attorneys: Didi Christie, Brownsville, Tennessee, for the Appellant, Thomas L. Jackson. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Braden H. Boucek, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey Anne Brewer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: A Lauderdale County Jury convicted the Appellant, Thomas L. Jackson, of possession of contraband in a penal institution, a class C felony. On appeal, Jackson argues that the evidence was insufficient to support his conviction. After review, we conclude that the proof is sufficient to establish that Jackson knowingly possessed the marijuana found in his cell. Accordingly, the judgment of conviction is affirmed. http://www.tba.org/tba_files/TCCA/jacksont1.wpd
JOYCE M. LINDSEY v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert Little, Maplewood, New Jersey, for the appellant, Joyce M. Lindsey. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and John W. Campbell and Thomas D. Henderson, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner was originally convicted of second degree murder, aggravated kidnapping, forgery, and theft and received an effective thirty-three-year sentence. In this appeal from the denial of post- conviction relief, the petitioner argues the post-conviction court erred in finding she failed to establish ineffective assistance of counsel. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/lindsey1.wpd
STATE OF TENNESSEE v. DELBERT EUGENE OREY Court:TCCA Attorneys: Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Delbert Eugene Orey. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Delbert Eugene Orey, was convicted of DUI, third offense, and driving while license suspended, fifth offense, and was sentenced, respectively, to eleven months and twenty-nine days, with all but 180 days suspended, and six months, with all but forty-five days suspended, the sentences to be served concurrently. On appeal, he argues that the evidence was insufficient to support his conviction for DUI, third offense, and that his sentence is excessive. Following our review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/oreydelberte.wpd
STATE OF TENNESSEE v. JAMES EDWARD PEDEN Court:TCCA Attorneys: John H. Richardson, Jr., Fayetteville, Tennessee, for the Appellant, James Edward Peden. Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Brooke Grubb, and Ann Filer, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, James Edward Peden, appeals his Lincoln County Circuit Court jury conviction of failure to appear, a Class E felony. He challenges the sufficiency of the convicting evidence and the trial court's ruling that allowed evidence of certain prior convictions to impeach his testimony. Finding no reversible error, we affirm. http://www.tba.org/tba_files/TCCA/pedenjamesedward.wpd

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