Opinion FlashAugust 11, 2003Volume 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):
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. Howard H. Vogel 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 PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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