Opinion Flash

October 02, 2003
Volume 9 — Number 179

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):
02 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
04 New Opinion(s) from the Tennessee Court of Appeals
03 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


STATE OF TENNESSEE v. GERALD E. SAYLOR
CORRECTED OPINION

Court:TSC

Attorneys:                          

Clifton Corker, Johnson City, Tennessee, for the appellant, Gerald E.
Saylor.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Braden H. Boucek, Assistant Attorney General; Joe
C. Crumley, Jr., District Attorney General; and Victor J. Vaughn,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: ANDERSON

First Paragraph:

We granted review to determine (1) whether the trial court erred by
refusing to suppress the defendant's confession on the ground that he
did not invoke his right to counsel; (2) whether the trial court erred
by excluding the testimony of a witness as to an uncommunicated threat
made by the victim; and (3) whether the trial court erred by denying a
mistrial based on the admission of statements regarding the
defendant's parole status.  We conclude that the trial court properly
refused to suppress the defendant's confession; that the trial court
committed harmless error when it excluded proof of an uncommunicated
threat; and that the trial court properly exercised its discretion by
not declaring a mistrial.

http://www.tba.org/tba_files/TSC/saylorge.wpd

STATE OF TENNESSEE v. ANDERSON TOLIVER
WITH CONCURRING AND DISSENTING OPINIONS

Court:TSC

Attorneys:                          

Jerry H. Summers and Thomas Greenholtz, Chattanooga, Tennessee, for
the appellant, Anderson Toliver.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Angele M. Gregory, Assistant Attorney General;
William H. Cox, III, District Attorney General; and Kelli Black,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: DROWOTA

First Paragraph:

The defendant was convicted of two counts of aggravated child abuse. 
The trial court imposed a nine-year sentence for each conviction and
ordered concurrent service of these sentences.  The defendant
appealed, raising numerous issues, but the Court of Criminal Appeals
affirmed the convictions and sentences.  We granted the defendant's
application for permission to appeal and, after thoroughly reviewing
the record, conclude that the trial court abused its discretion in
consolidating the two indictments for trial.  Furthermore, we have
concluded that the erroneous consolidation of the indictments, in
conjunction with the erroneous admission of evidence of other crimes,
wrongs, or acts, affirmatively appears to have affected the verdict of
the jury.  Accordingly, the judgments of the trial court and Court of
Criminal Appeals are reversed, and these cases are remanded for new
trials at which evidence of other crimes, wrongs, or acts committed by
the defendant against the victim or others shall not be admitted
unless relevant to a material issue.

http://www.tba.org/tba_files/TSC/tolivera_opn.wpd

CONCURRING OPINION
http://www.tba.org/tba_files/TSC/tolivera_con.wpd

DISSENTING OPINION
http://www.tba.org/tba_files/TSC/tolivera_dis.wpd

AMBROSE ASSOCIATES, v. W. AUSTIN MUSSELMAN, JR.

Court:TCA

Attorneys:                          

Todd E. Panther, Nashville, Tennessee, for Appellant.

John R. Wingo, Nashville, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

Action to collect rent owed by surety was dismissed by the Trial
Court.  On appeal, we affirm.

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

FIRST UNION NATIONAL BANK OF TENNESSEE v. DONALD R. ABERCROMBIE, SR.

Court:TCA

Attorneys:                          

Trippe S. Fried, Nashville, Tennessee, for the appellant, Donald R.
Abercrombie, Sr.

David G. Mangum, Nashville, Tennessee, for the appellee, First Union
National Bank of Tennessee, formerly known as Brentwood National Bank.

Judge: KOCH

First Paragraph:

This appeal involves a dispute stemming from a defaulted note.  The
lender filed suit against the purported borrower in the Chancery Court
for Williamson County asserting that he was liable for $57,778.20. 
The defendant moved to dismiss the complaint on the ground that he was
not personally liable on the note because he was simply an officer of
the corporation named as the borrower on the note and because he was
not a guarantor of the corporation's debts.  Thereafter, the lender 
moved for a default judgment, and the purported borrower then filed an
answer denying liability on the note and a counterclaim against the
lender for compensatory and punitive damages.  The trial court granted
the lender a default judgment for $57,778.20 without addressing the
pending motion to dismiss or the answer and counterclaim.  We have
determined that the trial court erred by granting the default judgment
and, accordingly, reverse the judgment and remand the case for further
proceedings.

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

STATE OF TENNESSEE, EX REL. CHRISTINE MITCHELL v. DONALD FILMORE
JOHNSON

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General & Reporter; Stuart F. Wilson-Patton,
Senior Counsel, for the appellant, State of Tennessee ex rel.
Christine Mitchell.

T. Lance Carter, Fayetteville, Tennessee, for the appellee, Donald
Filmore Johnson.

Judge: COTTRELL

First Paragraph:

In this appeal, Christine Mitchell brought an action to enforce a
child support order which was entered in 1971.  The trial court
dismissed the petition as untimely due to the statute of limitations
in Tenn. Code Ann. S 28-3-110.  Because one of the five children
benefitting from the child support order was still a minor at the time
Tenn. Code Ann. S 36-5-103(g), abolishing the statute of limitations
with respect to child support, became effective, we affirm in part,
reverse in part, and remand.

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

WILLIAM JEFFREY TARKINGTON v. REBECCA JUANITA TARKINGTON

Court:TCA

Attorneys:                          

Karla C. Hewitt, Nashville, Tennessee, for the appellant, William
Jeffrey Tarkington.

John David Moore, Nashville, Tennessee, for the appellee, Rebecca
Juanita Tarkington.

Judge: CAIN

First Paragraph:

This appeal arises from the Father's post-divorce petition to set
child support and to terminate previously ordered alimony in futuro. 
From an adverse decision of the trial court denying child support and
termination of the alimony obligation, Father appeals.  We affirm the
portions of the trial court's ruling regarding alimony and reverse the
award of attorney's fees and denial of support.

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

ROBERT I. GWIN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Ron Munkeboe, Jr., for the appellant, Robert I. Gwin.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; and Roger D. Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Robert I. Gwin, appeals the trial court's denial of
habeas corpus relief.  The single issue presented for review is
whether the trial court erred by denying an evidentiary hearing on the
petition.  The judgment is affirmed.

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

PAMELA J. MOSES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Mark Stephens and Bob Edwards, Knoxville, Tennessee, for the
appellant, Pamela J. Moses.

Paul G. Sumers, Attorney General and Reporter; ReneeW. Turner,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Patti Cristil, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Pamela J. Moses, pled guilty pursuant to a plea
agreement to aggravated assault and numerous misdemeanors.  The plea
agreement encompassed the length of the sentences, but left the manner
of service for the trial court's determination.  The trial court
denied an alternative sentence and ordered the Defendant to serve her
terms in confinement.  The Defendant subsequently filed for
post-conviction relief, alleging ineffective assistance of counsel in
conjunction with her plea.  After an evidentiary hearing, the
post-conviction court denied relief and this appeal followed.  We
affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. CHETT ALLEN WALKER

Court:TCCA

Attorneys:                          

Bryan H. Hoss, Chattanooga, Tennessee, for the appellant, Chett Allen
Walker.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; and Bill Cox, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Chett Allen Walker, was indicted for first degree
premeditated murder, setting fire to personal property, and abuse of a
corpse.  Prior to trial, the Defendant expressed his intent to plead
guilty to setting fire to personal property and abuse of a corpse,
which he did.  However, the trial court submitted those charges to the
jury, along with the charge of first degree murder, to which the
Defendant pled not guilty.  Following the jury trial, the Defendant
was convicted of all three charges.  In this direct appeal, the
Defendant raises six issues: (1) whether the trial court erred by
denying the Defendant's motion to suppress his confession; (2) whether
the trial court erred by allowing the charges of setting fire to
personal property and abuse of a corpse to be determined by the jury
after  the Defendant expressed his desire to plead guilty to those
charges; (3) whether the trial court erred by allowing the jury to
view certain photographs and the car that the Defendant burned; (4)
whether the trial court erred by allowing the prosecutor to display a
photograph of the remains of the victim to the jury during his closing
argument; (5) whether the trial court erred by denying the Defendant's
motion with respect to the jury instructions; and (6) whether the
evidence is legally sufficient to support the Defendant's conviction
for first degree premeditated murder.  Finding no reversible error, we
affirm the judgments of the trial court.

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

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