Opinion FlashJanuary 14, 2004Volume 10 — Number 009 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_0112.wpd DEBORAH CLARK v. SUE RHEA d/b/a SURPRISE PARTIES Court:TCA Attorneys: James C. Bradshaw, III, Klinton W. Alexander, Nashville, TN, for Appellant David Day, Cookeville, TN, for Appellee Judge: HIGHERS First Paragraph: This is a case involving the interpretation of a clause in a contract allowing for the recovery of attorney's fees upon the successful prosecution or defense of a breach of contract action. The Chancery Court awarded plaintiff attorney's fees pursuant to this clause. For the following reasons, we reverse. http://www.tba.org/tba_files/TCA/clarkdebora.wpd THERESA GODBEE v. ROBERT DIMICK, M.D. Court:TCA Attorneys: Joe Bednarz, Sr., Karen M. Weimar, Nashville, Tennessee; Steven R. Walker, Memphis, Tennessee, for the appellant, Theresa Godbee. Michael F. Jameson, Renee Levay Stewart, Nashville, Tennessee, for the appellee, Robert M. Dimick, M.D. Judge: COTTRELL First Paragraph: A woman filed a malpractice suit against two doctors after undergoing unsuccessful surgery for back pain. Her suit named the radiologist who performed a pre-surgical MRI and the surgeon who operated on her spine. The radiologist filed a Motion for Summary Judgment, which the plaintiff did not resist, and the trial court granted. The surgeon subsequently filed a Motion for Partial Summary Judgment, arguing that under the principles of res judicata, collateral estoppel and the law of the case, the summary judgment for the radiologist precluded the plaintiff from claiming that the surgeon's own reading of the MRI was negligent. The trial court granted the motion. We reverse. http://www.tba.org/tba_files/TCA/godbeet.wpd SANDRA ELAINE HELTON (BUSCHER) v. SHAUN EDWARD HELTON Court:TCA Attorneys: David W. Garrett, Nashville, Tennessee, for the appellant, Sandra Elaine Helton (Buscher). Phillip Robinson; Teresa Webb Oglesby, Nashville, Tennessee, for the appellee, Shaun Edward Helton. Judge: COTTRELL First Paragraph: As part of their 1997 divorce, a husband and wife executed a marital dissolution agreement (MDA) which gave the wife primary physical custody of their child. One section of the agreement contained the wife's promise to continue to live in Davidson County or adjoining counties and not to move from that area without the husband's permission. The wife remarried. When her new husband transferred to a job in Jackson, Mississippi, the former husband filed a petition to prevent the wife from relocating. After a hearing, the trial court declared that it would enforce the MDA. We reverse and remand this case for a new hearing because Tenn. Code Ann. S 36-6-108 controls relocation determinations. http://www.tba.org/tba_files/TCA/heltons.wpd ED AND SHELLY LEWIS v. BEDFORD COUNTY BOARD OF ZONING APPEALS, ET AL. Court:TCA Attorneys: Andrew C. Rambo, Shelbyville, Tennessee, for the appellants, Ed Lewis and wife, Shelly Lewis. Ginger Bobo Shofner, John T. Bobo, Shelbyville, Tennessee, for the appellee, Bedford County Board of Zoning Appeals. Judge: COTTRELL First Paragraph: The local board of zoning appeals denied the landowners' application for a special exception or conditional use permit to allow them to develop and operate an RV park. After a remand for the board to clarify its minutes as to the grounds for the denial, the court determined that the grounds stated in the amended minutes provided a lawful basis for the denial. The trial court also determined that the record filed by the board was not sufficient for the court to determine whether the board's decision was supported by material evidence. Because the trial court found that the burden to ensure an adequate record is prepared and filed lay with the landowners, the court affirmed the board's denial of the permit. We reverse because in a common law writ of certiorari proceeding challenging a decision by a board or commission, the duty to prepare and transmit a record that includes a transcript of the evidence lies with the board or commission. http://www.tba.org/tba_files/TCA/lewise.wpd FLORA MAE MELTON v. GLEN HOUSTON MELTON Court:TCA Attorneys: Ricky Leon Wood, Parsons, Tennessee, for the appellant, Flora Mae Melton. Landis Turner, Hohenwald, Tennessee, and Randy Hillhouse, Lawrenceburg, Tennessee, for the appellee, Glen Houston Melton. Judge: CLEMENT First Paragraph: This is the second appeal in this matter. The only issue presented is whether the trial court exceeded its authority on remand by requiring a hearing to determine whether a disputed mediation settlement agreement, entered into by the parties prior to the trial and which the trial court previously held to be unenforceable, should be enforced. Husband did not raise as an issue on the first appeal the trial court's denial of his motion to enforce the mediation agreement. On the first appeal, this court vacated the property division and remanded the case for the classification of the marital estate and for an equitable division of that property determined to be marital property. Further, since alimony cannot be determined until the marital estate is properly classified and the marital property is divided, this court also vacated the order granting alimony and remanded the matter for determination of alimony following the classification of the marital estate and the division of the marital property. On remand, the trial judge set the case for a full evidentiary hearing to determine whether a disputed mediation settlement agreement, previously ruled on and declared unenforceable by the trial judge, should now be enforced. Holding that appellate courts have the power to limit matters on remand, we reverse the trial court and vacate its order to determine if a disputed mediation settlement agreement is enforceable. The matter is again remanded to the trial court for the limited purposes set forth in the prior opinion: to classify the marital assets into separate property and marital property, to make an equitable distribution of the marital property, and to determine the issues of alimony. http://www.tba.org/tba_files/TCA/meltonflora.wpd STATE OF TENNESSEE v. LADELLA RENEE HILL Court:TCCA Attorneys: Jeffrey A. DeVasher, Nashville, Tennessee (on appeal), David Baker and Jonathan Farmer, Nashville, Tennessee (at guilty plea and sentencing hearings) for the appellant, Ladella Renee Hill. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Renee Erb, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Ladella Renee Hill (aka Ladella Bracey), was indicted for first degree murder and subsequently pled guilty to second degree murder, agreeing to allow the trial court to determine her sentence. After a hearing on the matter, the trial court sentenced the Defendant to twenty-four years in prison, one year less than the maximum sentence. The Defendant appeals, contending that the trial court imposed an excessive sentence based upon its improper application of four statutory enhancement factors and its improper failure to apply four mitigating factors. After reviewing the record, we find no reversible error, and we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/hilllr.wpd STATE OF TENNESSEE v. GLEN HOLT Court:TCCA Attorneys: William Allen, Oak Ridge, Tennessee, for the appellant, Glen Holt. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; Scott McCluen, District Attorney General; Roger Delp and Frank Harvey, Assistant District Attorney Generals, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Morgan County jury found the Defendant, Glen Holt, guilty of first degree felony murder and aggravated robbery. The trial court sentenced the Defendant to nine years in prison for the aggravated robbery charge, to be served concurrently with a life sentence for the murder conviction. The Defendant appeals, contending: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred when it allowed a photograph, offered by the prosecution, to be admitted into evidence without a proper foundation; (3) that the jury did not follow the trial court's instructions with regard to felony murder; and (4) that he did not knowingly, voluntarily and intelligently waive his constitutional right to testify in his own defense. Although we conclude that issues (1), (2) and (3) are without merit, the record is insufficient for us to determine whether the Defendant personally and knowingly waived his right to testify. Therefore, we remand the case to the trial court for a hearing to determine whether the Defendant's right to testify was violated, and if so, whether the violation of the Defendant's right to testify was harmless beyond a reasonable doubt. http://www.tba.org/tba_files/TCCA/holtg.wpd CARL E. ROSS, PRO SE v. STATE OF TENNESSEE Court:TCCA Attorneys: Carl E. Ross, pro se. Paul G. Summers, Attorney General & Reporter; John Bledsoe, Assistant Attorney General, for the appellee, the State of Tennessee. Judge: HAYES First Paragraph: This matter is before the Court upon the State's motion to affirm the judgment of the trial court by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is appealing the lower court's denial of coram nobis relief. After review of the record, we conclude that the State's motion is well-taken and the trial court's order denying Petitioner coram nobis relief is affirmed. http://www.tba.org/tba_files/TCCA/rosscarle.wpd STATE OF TENNESSEE v. VERNICA SHABREE WARD ORDER WITH CORRECTED OPINION Court:TCCA Judge: PER CURIAM First Paragraph: The original page 37 of the opinion filed in this cause on December 30, 2003, is withdrawn, and the attached page 37, incorporated herein by reference, shall be inserted in its place in the opinion of this court. ORDER http://www.tba.org/tba_files/TCCA/wardvernicas_ord.wpd CORRECTION http://www.tba.org/tba_files/TCCA/wardvernicas_pg.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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