Opinion Flash

January 14, 2004
Volume 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):
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Court of Appeals
04 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


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

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