Opinion Flash

October 15, 2003
Volume 9 — Number 188

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
05 New Opinion(s) from the Tennessee Court of Appeals
01 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. GONZALO MORAN GARCIA
CORRECTED OPINION

Court:TSC

Attorneys:                          

Richard M. McGee and James O. Martin, III, Nashville, Tennessee, for
the appellant, Gonzalo Moran Garcia.

Wesley MacNeil Oliver, New Haven, Connecticut, for the amicus curiae,
Tennessee Association of Criminal Defense Lawyers.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Daryl J. Brand, Associate Solicitor General; Victor
S. Johnson, III, District Attorney General; and John Zimmerman,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: BARKER

First Paragraph:

The defendant, Gonzalo M. Garcia, was convicted in the Criminal Court
for Davidson County of possession of one thousand grams or more of
methamphetamine with intent to deliver.  We granted this appeal to
determine whether the evidence obtained as a result of the stop should
have been suppressed.  After examining the facts and law relevant to
the issues, we hold that the defendant's traffic stop was not based
upon reasonable suspicion, in violation of the Fourth Amendment to the
Federal Constitution and Article I, section 7 of the Tennessee
Constitution.  We also hold that the evidence in this case must be
suppressed because the defendant's consent to search his vehicle was
not sufficiently attenuated from his unlawful detention.

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

STATE OF TENNESSEE v. ANDERSON TOLIVER
CORRECTED OPINION

Court:TSC

Judge: ANDERSON

First Paragraph:

The majority has concluded that the trial court committed reversible
error by consolidating the offenses of March 1, 1998 and April 9,
1998, and by admitting evidence of prior abuse committed by the
defendant, Anderson Toliver.  In my view, however, the trial court did
not abuse its discretion by consolidating the two offenses and the
admission of prior acts of abuse did not affect the jury's verdict. 
Accordingly, I dissent and would affirm the judgment of the Court of
Criminal Appeals.

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

CHEROKEE COUNTRY CLUB, INC. v. CITY OF KNOXVILLE, ET AL.

Court:TCA

Attorneys:                          

Michael S. Kelly, Law Director, Hillary B. Jones, Assistant City
Attorney, for Appellant City of Knoxville 

Charles Swanson, Jason H. Long, Knoxville, TN, for Appellants Members
of City Council

Charles A. Wagner, III, W. Turner Boone, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal arises from a dispute over the validity of a Knoxville
City Ordinance.  The lower court, finding the challenged ordinance
invalid and void, issued a Peremptory Writ of Mandamus requiring the
Chief Building Official to issue a demolition permit.  Subsequently,
the court entered an "Agreed Order Granting Temporary Stay," whereby
the plaintiff agreed not to demolish the structure pending a final
resolution of the case.  The parties raise multiple issues on appeal. 
For the following reasons, we reverse in part, vacate in part, and
remand.

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

CHRISTOPHER D. DIRR v. LOUISE "LUCY" Y. DIRR (LEDBETTER) M.D.

Court:TCA

Attorneys:                          

Christopher D. Dirr, pro se, Nashville, TN

Jerry C. Colley, Mark A. Free, Columbia, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves a child custody dispute between the parents of two
minor children.  In the original divorce action, mother was granted an
absolute divorce and sole custody of the two children and father was
granted supervised visitation.  Father has since brought proceedings
seeking to modify the custody arrangement and appeals the decision of
the Chancery Court of Maury County to this Court.  For the reasons
hereinafter stated, we affirm the decision of the Chancery Court.

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

ETHAN JAMES RIDER, a minor by next friend and mother, ANNE LEE RIDER
v. LAURIE LYNN RIDER

Court:TCA

Attorneys:                          

James Robin McKinney, Jr., Nashville, TN, for Appellant

Alan T. Fister, Brentwood, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal, from a grant of summary judgment, involves the imposition
of a constructive trust on life insurance proceeds.  The lower court
imposed the constructive trust, for the benefit of Father's son from
his first marriage, on proceeds distributed to Father's second wife. 
The basis for the constructive trust arose from Father's obligation,
under the decree of divorce dissolving his first marriage, to maintain
life insurance benefitting his minor son.  For the following reasons,
we reverse the ruling of the lower court.

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

R. P. INDUSTRIES, INC. v. UNITED STATES ALUMINUM CORPORATION -
CAROLINA

Court:TCA

Attorneys:                          

Gregory L. Cashion, Nashville, TN, for Appellant

Joel T. Galanter, Nashville, TN; Scott A. Frick, Memphis, TN, for
Appellee

Judge: HIGHERS

First Paragraph:

This appeal arises from a dispute over an agreement to issue joint
checks.  The trial court found that the parties had an agreement
whereby the general contractor was to issue checks jointly payable to
the sub-contractor and the materials supplier, which the general
contractor breached when it issued single payee checks.  The court
awarded the materials supplier $17,500.00.  The parties raise two
issues on appeal.  For the following reasons, we affirm in part,
reverse in part, and remand.

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

SUN SPLASH PAINTING, INC. v. HOMESTEAD VILLAGE, INC., ET AL.

Court:TCA

Attorneys:                          

Timothy W. Burrow, Nashville, Tennessee, for the appellant, Sun Splash
Painting, Inc.

H. Frederick Humbracht, Nashville, Tennessee, for the appellee,
Homestead Village, Inc.

Judge: CAIN

First Paragraph:

This appeal involves a challenge to the trial court's refusal to award
attorney's fees pursuant to the Prompt Pay Act, and to the court's
denial of prejudgment interest.  We affirm the trial court in all
respects.

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

STATE OF TENNESSEE v. JOEL ANTHONY DAVENPORT

Court:TCCA

Attorneys:                          

Joel Anthony Davenport, Petros, Tennessee, Pro Se (on appeal) and
William M. Speek, Chattanooga, Tennessee (at trial) for the appellant,
Joel Anthony Davenport.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; David H. Findley, Assistant Attorney General;
William H. Cox, District Attorney General; and Rodney C. Strong,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant, Joel Anthony Davenport, pled guilty to multiple counts
of passing worthless checks and was sentenced to probation.  The
Defendant's probation was violated and revoked.  Upon revocation, the
trial court sentenced the Defendant, and the Defendant asserts that he
was sentenced to four years of incarceration, plus an additional year
for the count which violated his probation, to be served consecutively
to a six year sentence in another county.  Accordingly, the Defendant
asserts that his sentence was to total eleven years.  The Tennessee
Department of Corrections report showed that the Defendant was
sentenced to fourteen years, not eleven, and the Defendant filed a
motion with the trial court to enter an order correcting the "clerical
mistake."  The trial court denied that motion and the Defendant
appeals.  Finding no error in the trial court's denial of the
Defendant's motion, we affirm.

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

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