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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