Opinion FlashNovember 3, 2003Volume 9 — Number 201 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 SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1103.wpd PAULA BOWMAN v. STATE OF TENNESSEE Court:TCA Attorneys: Paula Bowman, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter,; Michael E. Moore, Solicitor General; and Dawn Jordan, Assistant Attorney General, for the appellee, State of Tennessee. Judge: INMAN First Paragraph: This is an action against the State for damages for personal injuries sustained by the Appellant when she slipped on the icy surface of a State-owned parking lot. The single Commissioner found in favor of the State. The Claimant requested an en banc hearing which was granted with a concurrent Order entered affirming the single Commissioner, without notice to the Claimant. We vacate and remand. http://www.tba.org/tba_files/TCA/bowman.wpd RONALD L. BOYD, ET AL. v. HARRISON FORBES, ET AL. Court:TCA Attorneys: Dale Conder, Jr., Jackson, TN, for Appellant Steve Greer, Paris, TN, for Appellees Judge: HIGHERS First Paragraph: This appeal involves an inverse condemnation action against the City of Jackson, Tennessee. The City appeals the decision of the Circuit Court of Madison County finding the City owed the Plaintiffs compensation for the demolition of the improvements on their property. For the following reasons, we affirm the decision of the Circuit Court. http://www.tba.org/tba_files/TCA/boyd.wpd JEANETTE SUE BROOKS v. CHARLES VIRGIL BROOKS
Court:TCA
Attorneys:
David B. Hill, Newport, Tennessee, for the appellant, Charles Virgil
Brooks.
James W. Greenlee, Sevierville, Tennessee, for the appellee, Jeanette
Sue Brooks.
Judge: SUSANO
First Paragraph:
This is a divorce case. The trial court granted Jeanette Sue Brooks
("Wife") a divorce from Charles Virgil Brooks ("Husband"), divided the
parties' marital property and debts, and awarded alimony to Wife in
the amount of $150 per month. Husband appeals the award of alimony
and the division of the parties' debts. We affirm.
http://www.tba.org/tba_files/TCA/brooksj.wpd
CHATTANOOGA PUBLISHING COMPANY, ET AL. v. HAMILTON COUNTY ELECTION
COMMISSION, ET AL.
Court:TCA
Attorneys:
Anthony A. Jackson and Bruce C. Bailey, Chattanooga, for the
Appellants, Chattanooga Publishing Company, Tom Griscom and Andy Drury
Jerry H. Summers and Thomas Greenholtz, Chattanooga, for the
Appellees, Hamilton County Election Commission and Fran Dzik, in her
official capacity as Administrator of Elections
Alfred H. Knight and Alan D. Johnson, Nashville, for Amicus Curiae The
Tennesseean
Richard L. Hollow, Knoxville, for Amicus Curiae Tennessee Press
Association
Judge: GODDARD
First Paragraph:
In this case involving the Tennessee Public Records Act, the issue is
whether the Appellee Hamilton County Election Commission should have
been compelled to release to the Appellant certain records relating to
the Democratic primary election in Hamilton County held on May 7,
2002. The Trial Court held that although the documents were public
records, they were also investigative records of the Tennessee Bureau
of Investigation ("TBI") and thus subject to the exception found at
T.C.A. 10-7-504(a)(2) of the Public Records Act. We find that the
records at issue were not investigative records of the TBI at the time
the request was made and that they should have been released to the
Appellant Chattanooga Publishing Company ("CPC"), and accordingly
reverse the Trial Court's judgment to the contrary. We affirm the
Trial Court's refusal to award attorney's fees to CPC.
http://www.tba.org/tba_files/TCA/chattan.wpd
CITY OF WHITWELL, TENNESSEE v. WEST VALLEY WATER SYSTEM, INC. Court:TCA Attorneys: Jennifer Austin Mitchell, Dunlap, Tennessee, for the appellant, City of Whitwell, Tennessee. William L. Gouger, Jr., Jasper, Tennessee, for the appellee, West Valley Water System, Inc. Judge: GLENN First Paragraph: This is a contract dispute between the plaintiff, an incorporated municipality, and the defendant, a nonprofit water systems corporation that supplied water to residents living outside the city limits. The parties entered into several agreements for the sale of potable treated water from the plaintiff to the defendant, the specific terms for which varied under each agreement. In particular, a 1981 agreement placed limits on the defendant's ability to assign its rights under the contract and required that the defendant purchase all its water requirements up to eight million gallons per month from the plaintiff, while an agreement executed in 1994 contained no minimum purchase requirement for the defendant and expressly provided that successors to the defendant, "whether the result of legal process, assignment, or otherwise," succeeded to the rights of the defendant under the contract. In 2002, the defendant entered into negotiations for the sale of its assets to a third party water company. In response, the plaintiff filed a petition for injunctive relief, alleging, inter alia, that the contract between the parties did not allow the defendant to assign its rights without the plaintiff's prior consent and that the City would suffer irreparable harm if deprived of the income generated by its water sale to the defendant. Following an injunction hearing and a subsequent trial, the trial court ruled, inter alia, that the 1994 contract superceded the previous agreements between the parties and the defendant was free to transfer its assets to the third party water company without the plaintiff's consent. The plaintiff appeals, arguing the 1994 contract was ultra vires because its mayor lacked the authority to execute it, there was no meeting of the minds to form a valid contract between the parties, and the trial court abused its discretion in dissolving the temporary injunction and denying the City's request for a permanent injunction. Having reviewed the entire record in this case, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/cityofwhitwell.wpd RUTHIE CURBOW v. JAMES DOUGLAS STUCKI CORRECTED OPINION Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for the appellant, Ruthie Curbow. James Robin McKinney, Jr., Nashville, Tennessee, for the appellee, James Douglas Stucki. Judge: CAIN First Paragraph: In this case, Ruthie Ann Curbow appeals from a custody and support proceeding in Williamson County Juvenile Court. On the day of the hearing, parties and counsel appeared in camera for a pre- trial conference. Upon announcement of an apparent settlement in open court, Mother expressed disagreement with the terms of the settlement and a desire to preserve her right to appeal. The trial court determined that no settlement existed and trial on the merits proceeded with proof from all parties. The court entered an order awarding joint custody with Father as primary custodian under the statutory fitness comparison. Mother appeals. We affirm the judgment. http://www.tba.org/tba_files/TCA/curbowruthie.wpd FRANK HOOPER LACEY v. KARLA SUZANNE LACEY Court:TCA Attorneys: Charles M. Cary, Bolivar, Tennessee, for the appellant, Frank Hooper Lacey. Karla Suzanne Lacey, appellee, pro se. Judge: KIRBY First Paragraph: This case involves the modification of child support. The mother and father were divorced, and custody of the parties' two children was awarded to the father. In the divorce decree, the mother was ordered to pay child support based on her salary as a park recreation director. A month later, the mother lost her job. After she lost her job, the mother enrolled in a doctorate program at a nearby college that agreed to waive her tuition. While in the doctorate program, the mother planned to work as a teacher's assistant at the college earning a much reduced income. Shortly thereafter, the mother filed a petition to modify her child support obligation. The father objected. After a hearing, the trial court reduced the mother's child support obligation. The father now appeals. We affirm, finding that the mother was not willfully underemployed, and that the tuition waived by the college should not be imputed to her as income. http://www.tba.org/tba_files/TCA/lacey.wpd DONALD R. LACY v. WESLEY B. COX, ET AL.
Court:TCA
Attorneys:
Dana C. Holloway, Knoxville, Tennessee, for the Appellant Jennifer L.
Brandon.
George R. Garrison, Sevierville, Tennessee, for the Appellee Donald R.
Lacy.
Judge: SWINEY
First Paragraph:
Donald R. Lacy ("Plaintiff") sued Jennifer Brandon for damages arising
from an automobile accident. After deliberating for approximately two
hours, the jury asked the Trial Court if they were required to award
Plaintiff any monetary damages if they found fault on the part of
Brandon. Based on the question, Plaintiff surmised the jury's
deliberations were not going his way. As a result, Plaintiff moved
for a voluntary dismissal without prejudice, believing he was entitled
to do so as a matter of right. The Trial Court, also believing
Plaintiff was entitled to dismiss his lawsuit without prejudice as a
matter of right even though the jury was deliberating, granted the
motion. We conclude Plaintiff was not entitled to voluntarily dismiss
his lawsuit without prejudice as a matter of right at that stage in
the proceedings, and as a consequence the dismissal is with prejudice.
http://www.tba.org/tba_files/TCA/lacyd.wpd
MARION MITCHELL v. PATRICIA MITCHELL
Court:TCA
Attorneys:
Kenneth S. Christiansen, Knoxville, Tennessee, for the appellant,
Patricia Mitchell.
Lucinda M. Albiston and Virginia A. Schwamm, Knoxville, Tennessee, for
the appellee, Marion Mitchell.
Judge: SUSANO
First Paragraph:
This is a post-divorce proceeding. Patricia Mitchell ("Wife") filed a
petition seeking to modify the parties' previously-modified judgment
of divorce. She alleged a change of circumstances and sought "an
increased alimony award." Some 23 months later, and at a regularly
scheduled hearing on the merits, the trial court denied Wife's motion
for a continuance and dismissed her petition against Marion Mitchell
("Husband"). The trial court subsequently denied Wife's motion to
reconsider. Wife appeals, asserting that the trial court erred in
failing to grant her motion for continuance and in failing to
reconsider that decision. We affirm.
http://www.tba.org/tba_files/TCA/mitchellm.wpd
MARCIA ANN RAINES v. JIMMY RAY RAINES Court:TCA Attorneys: Frank Lannom, Lebanon, Tennessee, for the appellant, Marcia Ann Raines. Shawn McBrien, Lebanon, Tennessee, for the appellee, Jimmy Ray Raines. Judge: KIRBY First Paragraph: This is a divorce case involving the division of marital property. In 1988, the husband moved into the wife's house. The parties married in 1992 and remained married for ten years. During that time, the parties sold the wife's house and bought a new home with the proceeds. The new home was purchased in the names of both the husband and the wife. In 2002, the parties divorced. The trial court found that the parties' property had become so commingled that virtually none of it could be considered separate property, and divided the marital assets evenly. The trial court also allocated to the wife a larger portion of a marital debt to the wife's mother. From that decree, the wife now appeals. We affirm, finding that the evidence clearly supports the trial court's finding of commingling and transmutation of property, and finding no abuse of discretion in the trial court's allocation of the marital debt. http://www.tba.org/tba_files/TCA/rainesma.wpd BARRY ROBINSON, ET AL. v. DONALD BROOKS, ET AL. Court:TCA Attorneys: H. Anthony Duncan, Nashville, Tennessee, for the appellants, Barry Robinson and Sharon Robinson. C. Douglas Fields, Crossville, Tennessee, for the appellees, Donald Brooks and Wanda Brooks. Judge: CAIN First Paragraph: This case involves the sale by auction of certain real property in Davidson County. The buyers brought suit in Davidson County Chancery Court seeking specific performance or, in the alternative, damages for breach of contract. From the trial court's grant of summary judgment for the defendants, the plaintiff buyers appeal. We affirm. http://www.tba.org/tba_files/TCA/robinsonbarry.wpd DONNA GODFREY TAYLOR v. DORIS HOLT
Court:TCA
Attorneys:
William M. Leibrock, Newport, Tennessee, for the Appellant, Donna
Godfrey Taylor.
James C. McSween, Jr., Newport, Tennessee, for the Appellee, Doris
Holt.
Judge: SWINEY
First Paragraph:
Steve Godfrey prepared his last will and testament on his computer and
affixed his computer generated signature at the end. He had two
neighbors witness the will. Mr. Godfrey died approximately one week
later. Doris Holt ("Defendant"), Mr. Godfrey's girlfriend, submitted
the will for probate. Donna Godfrey Taylor ("Plaintiff"), Mr.
Godfrey's sister, filed a complaint alleging, in part, that the will
was not signed and claiming that Mr. Godfrey had died intestate. The
Trial Court granted Defendant summary judgment holding there were no
undisputed material facts and that all legal requirements concerning
the execution and witnessing of a will had been met. Plaintiff
appeals. We affirm.
http://www.tba.org/tba_files/TCA/taylordg.wpd
STATE OF TENNESSEE v. LEONARD FRANKLIN Court:TCCA Attorneys: Michael F. Rafferty (on appeal), James R. Garts, Jr. (on appeal), and Jeff A. Crow, Jr. (at trial), Memphis, Tennessee, for the appellant, Leonard Franklin. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; William L. Gibbons, District Attorney General; and Eric Christensen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Shelby County jury convicted the defendant, Leonard Franklin, of simple assault. The trial court sentenced him to seven months in the Shelby County Correctional Center with sixty days incarceration followed by eleven months and twenty-nine days probation. On appeal, the defendant contends the trial court erred in: (1) denying the defendant's motion for a continuance; (2) limiting the defendant's cross-examination of the victim concerning her civil lawsuit against him; (3) admitting evidence of the defendant's suspension from his place of employment; (4) improperly commenting on the evidence; and (5) imposing a period of confinement. We reduce the probationary term to ten months but otherwise affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/frankl.wpd STATE OF TENNESSEE v. RUSSELL DALE OLIVER Court:TCCA Attorneys: James T. Bowman, Johnson City, Tennessee, for the appellant, Russell Dale Oliver. Paul G. Summers, Attorney General and Reporter; David H. Finley, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Kenneth Carson Baldwin and Anthony Wade Clark, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Russell Dale Oliver, was convicted by a jury in the Johnson County Circuit Court of murder in the first degree and sentenced to life in prison. In this appeal as of right, the defendant contends that the trial court erred by overruling his motion to dismiss the indictment based on the violation of his right to a speedy prosecution and trial and that the evidence is insufficient to convict him of murder in the first degree. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/oliverrusselldale.wpd STATE OF TENNESSEE v. LUIS ANTHONY RAMON Court:TCCA Attorneys: W. Jeffery Fagan, Assistant District Public Defender, Camden, Tennessee, for the Appellant, Luis Anthony Ramon. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Henry County Grand Jury indicted the fifteen-year-old Defendant for first degree murder for the stabbing death of his aunt. The Defendant was tried as an adult and convicted of the charged offense, after a jury rejected his insanity defense. The trial court sentenced the Defendant to life imprisonment. The Defendant appealed, arguing that his insanity defense was established by clear and convincing evidence. In an opinion filed August 9, 2002, a majority of this Court reversed the judgment of conviction, modified the judgment to "Not Guilty by Reason of Insanity," and remanded the case for further proceedings pursuant to Tennessee Code Annotated section 33-7-303. State v. Ramon, No. W2001-00389-CCA-R3-CD, 2002 WL 1841608, at *1 (Tenn. Crim. App. Aug. 9, 2002). The State filed an application for permission to appeal with the Tennessee Supreme Court pursuant to Rule 11(a) of the Tennessee Rules of Appellate Procedure. On December 23, 2002, the Tennessee Supreme Court granted the State's application for the purpose of remanding the case to this Court for reconsideration in light of State v. Flake, 88 S.W.3d 540 (Tenn. 2002). On remand, we find that a rational jury could have found that the Defendant failed to establish by clear and convincing evidence that, as a result of a severe mental illness or defect, the Defendant was unable to appreciate the wrongfulness of his act of stabbing his aunt to death so as to entitle him to the insanity defense. Accordingly, we affirm the Defendant's conviction for first degree murder and his sentence of life imprisonment. http://www.tba.org/tba_files/TCCA/ramon.wpd STATE OF TENNESSEE v. CLAY A. THOMPSON Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Gary F. Antrican, District Public Defender; and Rickey William Griggs, Assistant District Public Defender (at hearing and on appeal), for the appellant, Clay A. Thompson. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Jerry W. Norwood, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Clay A. Thompson, pled guilty to theft of property valued over $1,000. The McNairy County trial court sentenced him as a Range II multiple offender to seven years incarceration. On appeal, the appellant contends his sentence is excessive. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/thompsocr.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! 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