Opinion Flash

August 11, 2003
Volume 9 — Number 144

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
07 New Opinion(s) from the Tennessee Court of Appeals
11 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


AMSOUTH ERECTORS, LLC v. SKAGGS IRON WORKS, INC., ET AL.

Court:TCA

Attorneys:                          

Richard D. Bennett, Collierville, Tennessee and Samuel C. Kelly and
Cheri T. Atlin, Ridgeland, Mississippi, for the appellant, Amsouth
Erectors, LLC.

Michael I. Less, Joseph T. Getz and John D. Willet, for the appellee,
Peabody Place Centre, L.P.

John McQuiston, II, Memphis, Tennessee for the appellee, Tri-Tech
Planning and Engineering, Inc.

Judge: FARMER

First Paragraph:

This appeal concerns a subcontractor's (AmSouth) claims for
non-payment arising from the construction of the Peabody Place Retail
and Entertainment Center in Memphis.  The Appellees are the owner
(Peabody), and the management firm they hired to oversee the project
(Tri-Tech).  The Appellant is a subcontractor in privity of contract
with neither Appellee.  The trial court granted summary judgment to
Peabody on AmSouth's claims of Breach of Contract (under a Third-Party
Beneficiary theory), Negligence, Negligent Misrepresentation, Unjust
Enrichment/Quantum Meruit, and a claim to enforce a mechanics' and
materialmen' s lien.  Summary judgment was likewise granted to
Tri-Tech on AmSouth's claims against it for Breach of Contract (under
a Third-Party Beneficiary theory), Negligent Misrepresentation, and
Negligence.   We affirm in part, reverse in part, and remand.

http://www.tba.org/tba_files/TCA/amsoutherectors.wpd

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. DLSJ, IN THE
MATTER OF: CLJ, A CHILD UNDER THE AGE OF 18 YEARS

Court:TCA

Attorneys:                          

Mary L. Ward, Knoxville, Tennessee, for Appellant.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl
Dimond, Assistant Attorney General, Nashville, Tennessee, for
Appellee.

Judge: FRANKS

First Paragraph:

The Trial Court on petition of the Department, terminated the mother's
parental rights to the child.  On appeal, we affirm.

http://www.tba.org/tba_files/TCA/dlsj.wpd

STEVE FRITTS v. ANDERSON COUNTY ELECTION COMMISSION, et al., and JERRY
CREASEY v. ANDERSON COUNTY ELECTIONS COMMISSION, et al.

Court:TCA

Attorneys:                          
 
George H. Buxton and Harold P. Cousins, Jr., Oak Ridge, Tennessee, for
Steve Fritts.

David A. Stuart, Clinton, Tennessee, for Jerry Creasey.

Donald B. Roe, Oak Ridge, Tennessee, for Harold Jernigan.

William A. Reeves, Knoxville, Tennessee, for Anderson County Election
Commission.

Judge: FRANKS

First Paragraph:

In this election contest of two seats on the County Commission, the
Trial Court declared the top vote getter elected to one of the seats
and ordered another election between the other candidates for the
other seat.  On appeal, we affirm.

http://www.tba.org/tba_files/TCA/fritts.wpd

STATE OF TENNESSEE, ON RELATION OF THE COMMISSIONER, DEPARTMENT OF
TRANSPORTATION, FOR AND ON BEHALF OF SAID DEPARTMENT v. SAMMY HANNA,
ET UX, YVONNE HANNA.

Court:TCA

Attorneys:                          

George G. Boyte, Jr., Assistant Attorney General, Jackson, TN, for
Appellant

Richard W. Vaughn, Jr., Milan, TN, John J. Ross, Savannah, TN, for
Appellees

Judge: HIGHERS

First Paragraph:

This is a condemnation case.  The Tennessee Department of
Transportation alleges that the trial judge committed error by
allowing the landowners to discover the opinions of an appraiser not
designated to testify at trial and that these errors require
overturning the jury's verdict because of the prejudice they caused. 
We find that errors were committed in the court below, but that these
errors were harmless.  Therefore, we affirm the verdict of the jury.

http://www.tba.org/tba_files/TCA/hanna.wpd

IN RE: ESTATE OF FLORA ELIZABETH KING, DECEASED WILLIAM H. "BUD"
OWNBY, et al., PLAINTIFF/APPELLANT v. JOHN B. OAKLEY, EXECUTOR
DEFENDANT/RESPONDENT

Court:TCA

Attorneys:                          

Jason S. Randolph, Dandridge, Tennessee, for Appellant.

Charles R. Edwards, Sevierville, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

In this will contest, the Trial Court granted the Executor summary
judgment upholding the Will.  On appeal, we affirm.

http://www.tba.org/tba_files/TCA/kingf.wpd

STEPHANIE RENFRO MEDLYN v. PETER EARL MEDLYN

Court:TCA

Attorneys:                          

Scott D. Hall, Sevierville, Tennessee, for Appellant.

J. Wayne Wolfenbarger, Rutledge, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

Wife's action to enforce Divorce Settlement Agreement resulted in
monetary judgment against husband.  On appeal, we affirm.

http://www.tba.org/tba_files/TCA/medlyns.wpd

MITCH G. STOOKSBURY, et al v. AMERICAN NATIONAL PROPERTY AND CASUALTY
COMPANY

Court:TCA

Attorneys:                          

Janet L. Hogan, Knoxville, Tennessee, for the Appellant American
National Property and Casualty Company.

Alvin C. Cooper, Cape Coral, Florida, for the Appellees Mitch G.
Stooksbury and Gina Stooksbury.

Judge: SWINEY

First Paragraph:

Mitch and Gina Stooksbury ("Plaintiffs") purchased homeowners
insurance from American National Property and Casualty Company
("Defendant").  After Plaintiffs' home was destroyed by fire, they
were informed by Defendant that their insurance policy had been
cancelled prior to the date of loss because of an underwriting risk
arising from missing railing on a deck.  Defendant claimed to have
mailed a cancellation notice and refund check to Plaintiffs in
accordance with the terms of the policy.  Plaintiffs denied receiving
the cancellation notice or refund check.  A jury concluded Defendant
failed to prove by a preponderance of the evidence that it mailed the
cancellation notice to Plaintiffs.  The jury also concluded Defendant
acted unfairly and in bad faith, and that Defendant's failure to pay
the loss was through fraudulent and deceptive practices.  The Trial
Court entered a judgment for Plaintiffs in the amount of $92,750, for
damages pursuant to the insurance contract, plus prejudgment interest
on that $92,750.  The Trial Court also assessed a 25% bad faith
penalty and an additional 5% for punitive damages.  Both parties
appeal.  We affirm the judgment for Plaintiffs in the amount of
$92,750 and the prejudgment interest awarded on that $92,750.  The bad
faith penalty and award of punitive damages is reversed.

http://www.tba.org/tba_files/TCA/stooks.wpd

STATE OF TENNESSEE v. SANDERS CALDWELL

Court:TCCA

Attorneys:                          

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Sanders
Caldwell.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Betsy Carnesale and Steven Jones, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Appellant was convicted of burglary of a building and vandalism in
the Criminal Court for Shelby County, and was sentenced to a total of
seven years of confinement by the trial court.  The sole issue the
Appellant raises on appeal is whether sufficient evidence was
presented at trial to convict him of the charged offenses of burglary
and vandalism.  Finding no error, we affirm the judgments of the trial
court.

http://www.tba.org/tba_files/TCCA/caldwells.wpd

STATE OF TENNESSEE v. BRANDY D. FORREST

Court:TCCA

Attorneys:                          

Ross E. Alderman, Public Defender; and Patrick G. Frogge (at trial and
on appeal) and Jonathan Farmer (at trial), Assistant Public Defenders,
for the appellant, Brandy D. Forrest.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Ryan Brown, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

A Davidson County jury convicted the defendant, Brandy D. Forrest, of
driving under the influence, first offense.  The trial court imposed a
sentence of eleven months and twenty-nine days with twenty days
incarceration followed by probation.  On appeal, the defendant asserts
the trial court erred by allowing irrelevant and prejudicial testimony
and a videotape to be presented to the jury.  We affirm the judgment
of the trial court.

http://www.tba.org/tba_files/TCCA/forrest.wpd

STATE OF TENNESSEE v. TRACEY MICHAEL FULCHER

Court:TCCA

Attorneys:                          

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Tracey
Michael Fulcher.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; and Phil Bivens, District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Tracey Michael Fulcher, charged with aggravated
kidnapping and rape, pled guilty to attempted rape.  The trial court
imposed a Range I sentence of four years, with all but one year
suspended.  In this appeal of right, the defendant contends that his
four-year sentence is excessive and that the trial court erred by
denying full probation.  The judgment is affirmed.

http://www.tba.org/tba_files/TCCA/fulcher.wpd

MARK L. GRIMES v. FRED RAINEY, WARDEN

Court:TCCA

Attorneys:                          

Mark Grimes, Tiptonville, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; Phillip Bivens, District Attorney General; and
Marcia Fogle, Assistant District Attorney General, for the appellee,
Fred Raney, Warden.

Judge: SMITH

First Paragraph:

The pro se appellant, Mark Grimes, appeals from the denial of his
petition for the writ of habeas corpus.  Since we find that the
instant case is analogous to the Tennessee Supreme Court case of
McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001); the circuit court erred in
summarily dismissing the habeas corpus petition without the
appointment of counsel and a hearing.  We therefore reverse the
judgment of the circuit court and remand for proceedings consistent
with this opinion.

http://www.tba.org/tba_files/TCCA/grimesm.wpd

TERRELL LAWRENCE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Ron Munkeboe, Jr., Nashville, Tennessee, for the appellant, Terrell
Lawrence.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and James F. Todd, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Terrell Lawrence, appeals the denial of his petition
for post-conviction relief from his convictions for second degree
murder, aggravated assault, and carjacking, arguing that his guilty
pleas were not knowing, understanding, and voluntary and that he was
denied the effective assistance of counsel during the plea process. 
The post-conviction court denied the petition and, following our
review, we affirm.

http://www.tba.org/tba_files/TCCA/lawrnct.wpd

STATE OF TENNESSEE v. FRANKIE LEDBETTER

Court:TCCA

Attorneys:                          

Philip A. Condra, District Public Defender (on appeal and at trial);
and Jeffery Harmon, Assistant District Public Defender (at trial), for
the appellant, Frankie Ledbetter.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and Sherry D. Gouger and Julia N. Oliver, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant was convicted of incest and rape of a child and
sentenced to twenty-three years at 100% for the rape of a child
conviction and eight years as a Range II, multiple offender for the
incest conviction, the sentences to be served concurrently.  The
defendant was also fined $50,000 for the rape of a child conviction
and $10,000 for the incest conviction.  On appeal, the defendant
presents the following claims: (1) the evidence was insufficient to
support his convictions; (2) the trial court erred in determining that
the six-year-old victim was competent to testify and improperly
vouched for the credibility of the child-victim; (3) the trial court
erred in giving the expert witness instruction to the jury; and (4)
the trial court denied the defendant a fair trial by refusing to let
him conduct a voir dire examination of each juror individually and out
of the presence of the other jurors.  Upon review, we affirm the
judgments of the trial court but remand for entry of corrected
judgments to reflect that the defendant was convicted of Counts 3 and
4, rather than Counts 1 and 2, of the indictment and to reflect the
defendant's fines which were omitted from the judgments.

http://www.tba.org/tba_files/TCCA/ledbet.wpd

DESHAWN MCCLENTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Dee Shawn Peoples, Memphis, Tennessee, for the appellant, DeShawn
McClenton.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon,
Assistant Attorney General; and Alonda Dwyer, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, DeShawn McClenton, appeals the denial of his petition
for post-conviction relief.  The single issue presented for review is
whether his trial counsel was ineffective by failing to object to
certain of the testimony offered on behalf of the state.  The judgment
of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/mcclenton.wpd

STATE OF TENNESSEE  v.  RICHARD C. ROGERS

Court:TCCA

Attorneys:                          

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Gary F.
Antrican, District Public Defender; and Julie K. Pillow, Assistant
Public Defender, (at trial), for the appellant, Richard C. Rogers.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey Brewer, Assistant Attorney General, for the
appellee, the State of Tennessee.

Judge: WOODALL
 
First Paragraph:

Defendant, Richard C. Rogers, appeals his convictions in the
Lauderdale County Circuit Court for burglary of a vehicle, a class E
felony, and theft of property in an amount over $1,000 and less than
$10,000, a class D felony.  Following a jury trial, Defendant was
sentenced as a career offender to six years for his burglary
conviction and twelve years for his theft conviction, to be served
concurrently.  In this appeal as of right, Defendant contends that the
evidence at trial was insufficient to support his convictions beyond a
reasonable doubt.  After review of the record, we affirm the judgments
of the trial court.

http://www.tba.org/tba_files/TCCA/rogersrc.wpd

STATE OF TENNESSEE  v.  MARK HOWARD RUSSELL

Court:TCCA

Attorneys:                          

Ardena J. Garth, District Public Defender; Donna Robinson Miller,
Assistant District Public Defender, for the appellant, Mark Howard
Russell.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; William H. Cox III, District Attorney
General; David Denny, Assistant District Attorney General, for the
appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Mark Howard Russell, was indicted by the Hamilton County
Grand Jury for the following misdemeanor offenses: possession of
cocaine, possession of methamphetamine, possession of drug
paraphernalia, and operation of a motor vehicle without properly
operating stop lights.  Defendant sought to suppress evidence seized
by a police officer during a traffic stop.  Following an evidentiary
hearing, the trial court denied Defendant's motion to suppress
evidence.  Defendant subsequently entered guilty pleas to three of the
four counts.  Defendant did not plead guilty to possession of
methamphetamine.  The charge was dismissed because the laboratory
report was negative for that substance.  Defendant reserved the right
to appeal, pursuant to Tennessee Rules of Criminal Procedure 37(b)(2),
the issue of whether the warrantless search was constitutional.  We
conclude that Defendant's Fourth Amendment rights were not violated
and affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/russellmarkh.wpd

STATE OF TENNESSEE v. CLYDE SMITH

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Clyde
Smith.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; David H. Findley, Assistant Attorney General; John
Wesley Carney, Jr., District Attorney General; and Dent Morriss,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

Following a bench trial, the Appellant, Clyde Smith, was convicted by
the Robertson County Circuit Court of two counts of sale of cocaine
less than 0.5 grams, class C felonies.  He received concurrent
fifteen-year sentences.  The single issue for our review is whether
the evidence was sufficient to support the verdict.  After review of
the record, we find the evidence sufficient and affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TCCA/smithcl.wpd

STATE OF TENNESSEE v. QUINTEN M. TURNAGE

Court:TCCA

Attorneys:                          

Tony N. Brayton (on appeal), and Mary Kathryn Kent (at trial),
Memphis, Tennessee, for the appellant, Quinten M. Turnage.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Betsy Carnesale, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Shelby County jury convicted the Defendant of escape, and the
Defendant now appeals his conviction.  The sole issue on appeal is the
sufficiency of the convicting evidence.  Concluding that the evidence
is legally sufficient to support the Defendant's conviction, we affirm
the conviction.

http://www.tba.org/tba_files/TCCA/turnage.wpd

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