Opinion Flash

February 24, 2004
Volume 10 — Number 035

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 New Opinion(s) from the Tennessee Court of Appeals
05 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


WILLIAM OWEN BARBER v. AMELIA DIANNE BARBER CHAPMAN

Court:TCA

Attorneys:                          

Dan R. Alexander, Nashville, Tennessee, for the appellant, Amelia
Dianne Barber Chapman.

Martin A. Kooperman, Nashville, Tennessee, for the appellee, William
Owen Barber.

Judge: CLEMENT

First Paragraph:

Mother and Father divorced in South Carolina in 1989.  Father gained
custody of parties' two minor children.  Mother was ordered to pay
child support.  Subsequently, both parties left South Carolina with
Mother living in Tennessee and Father living in Texas.  In 2002, the
parties entered into an agreed order registering the South Carolina
divorce decree in the Circuit Court for Davidson County, Tennessee
pursuant to Tenn. Code Ann. S 36-6-229.  Father then filed a petition
for contempt asserting that Mother had failed to make the last
twenty-four child support payments.  The trial court granted Father's
petition, ordering Mother to pay $10,490.67, holding Mother in
criminal contempt and sentencing her to thirty days in jail.  Mother
filed a motion to alter or amend, asserting that the trial court
lacked jurisdiction and that the punishment was excessive.  Mother's
motion was denied and this appeal followed.  We affirm.

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

DANNY R. BLALOCK, v. CAROLYN S. BLALOCK

Court:TCA

Attorneys:                          

Robert L. Jolley, Jr., Knoxville, Tennessee, attorney for Appellant,
Danny R. Blalock.

Jerrold L. Becker and Jennifer R. Pearson, Knoxville, Tennessee,
attorneys for Appellee, Carolyn S. Blalock.

Judge: INMAN

First Paragraph:

A mediated agreement provided that Husband would sell his one-half
interest in Pigeon Forge property to Wife for $500,000.00, but if the
purchase price was not paid in one year, the property would be sold at
auction and the net proceeds divided.  The property was sold at
auction for $244,429.00, net.  Wife claims this amount plus
$255,271.00 and the trial court agreed.

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

THE BRADLEY FACTOR, INC., v. PAT HOLMES

Court:TCA

Attorneys:                          

Michael E. Richardson, Chattanooga, Tennessee, for Appellant.

Michael E. Jenne, Cleveland, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

In this action based on a personal guaranty agreement, the Trial Court
determined there were no disputed issues of material fact and awarded
summary judgment on the agreement.  Defendant has appealed.  We
affirm.

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

FARMERS MUTUAL OF TENNESSEE v. ATHENS INSURANCE AGENCY, CHARLES W.
SPURLING and wife, CAROLYN SPURLING

Court:TCA

Attorneys:                          

W. Gerald Tidwell, Jr., Chattanooga, Tennessee, for Appellant.

William B. McKenzie, Decatur, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

In a declaratory judgment action by the insurance company, the Trial
Court held insured was entitled to recover under the policy and
awarded prejudgment interest and imposed bad faith penalty.  We affirm
in part and reverse in part.

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

JASON G. GULVARTIAN v. SHENNA HOPE GULVARTIAN

Court:TCA

Attorneys:                          

Scott D. Hall, Sevierville, Tennessee, for Appellant.

Jerrold L. Becker, Knoxville, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

The Trial Court in this divorce action awarded child support for the
two children of the parties and attorney's fees to the mother.  The
father appeals.  We affirm, as modified.

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

SHIN YI LIEN ET AL. v. RUTH COUCH, ET AL.

Court:TCA

Attorneys:                          

William Kennerly Burger, Murfreesboro, Tennessee, for the appellant,
Shin Yi (Sunny) Lien and wife, Ann Lien.

Jeff Reed, Murfreesboro, Tennessee, for the appellees, Ruth Couch,
Individually and Big Ridge Emu Ranch, Inc.

Judge: COTTRELL

First Paragraph:

This is the second time the parties have been before this court in a
dispute over the purchase of emu chicks.  In this appeal, the
Plaintiffs take issue with the trial court's limitation of damages
recoverable under the Tennessee Consumer Protection Act.  We reverse
the judgment of the trial court.

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

DOMINIC P. PELLICANO v. METROPOLITAN GOVERNMENT OF NASHVILLE AND
DAVIDSON COUNTY

Court:TCA

Attorneys:                          

Lora A. Barkenbus, Nashville, Tennessee, for the appellant,
Metropolitan Government of Nashville and Davidson County.

Robert H. Plummer, Jr., Franklin, Tennessee, for the appellee, Dominic
P. Pellicano.

Judge: CLEMENT

First Paragraph:

Plaintiff, who had a pre-existing herniated disk, was rear-ended in a
vehicular accident seven weeks after the first injury.  A diskectomy
was performed six months later.  Treating physician equivocated when
asked whether the diskectomy was necessitated by the second injury,
testifying, "maybe yes; maybe no."  Trial court found that Plaintiff's
need for surgery was caused by incident and awarded Plaintiff judgment
against Defendant for all medical expenses related to the surgery,
lost wages and pain and suffering.  Plaintiff did not present
sufficient proof to establish that incident was cause in fact of need
for surgery for physician could not state with reasonable degree of
medical certainty that need for surgery was the result of the
incident.  Further, lay testimony of Plaintiff and Plaintiff's brother
was insufficient to prove cause in fact of Plaintiff's need for
surgery.  Accordingly, we reverse the trial court.

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

STATE OF TENNESSEE v. JEFFERY A. PACK

Court:TCCA

Attorneys:                          

William B. (Jake) Lockert, III, District Public Defender, and C. Wade
Bobo, Assistant District Public Defender, for the appellant, Jeffery
A. Pack.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Senior Counsel; Dan Mitchum Alsobrooks, District Attorney General; and
Kim G. Menke, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals his conviction for false reporting on the basis
of insufficient evidence to support the verdict.  After review, we
conclude the evidence to be sufficient to support the conviction and
affirm the judgment from the trial court.

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

DONALD W. RHEA, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Donald W. Rhea, Jr., Clifton, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; and Mike Bottoms, District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Donald W. Rhea, Jr., pled guilty in the Davidson
County Criminal Court to robbery and attempted robbery and received a
nine-year sentence.  Subsequently, the petitioner filed for habeas
corpus relief in the Wayne County Circuit Court, alleging that his
sentence was illegal and that the indictments underlying his
conviction were fatally defective.  The trial court dismissed the
habeas corpus petition and the petitioner timely appealed.  Upon
review of the record and the parties' briefs, we affirm the judgment
of the trial court.

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

STATE OF TENNESSEE v. JIMMY W. ROGERS

Court:TCCA

Attorneys:                          

Lance B. Mayes, Nashville, Tennessee, for the appellant, Jimmy W.
Rogers.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Amy Eisnbeck, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

Following a jury trial, the Defendant, Jimmy W. Rogers, was convicted
of aggravated assault.  In this direct appeal, he raises the following
issues: (1) whether the trial court erred by refusing to allow him and
a co-defendant to compare jury strikes; (2) whether the trial court
erred by admitting a video tape and an audio tape into evidence; (3)
whether the trial court erred by denying him discovery of the victim's
medical records; (4) whether the trial court erred by refusing to
grant him a continuance; (5) whether the trial court erred by limiting
his cross-examination of the victim; (6) whether the trial court erred
by refusing to grant a mistrial based on improper comments by the
prosecutor during closing argument; (7) whether the trial court erred
in its jury instruction; (8) whether the trial court improperly
sentenced the Defendant; and (9) whether the trial court erred by
refusing to suspend the Defendant's sentence pending the appeal.  We
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. PERRY SINGO

Court:TCCA

Attorneys:                          

William B. (Jake) Lockert, III, District Public Defender, for the
appellant, Perry Singo.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General;  Dan Mitchum Alsobrooks, District Attorney
General; and Suzanne M. Lockert, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

A jury convicted the defendant of four counts of child rape and four
counts of aggravated sexual battery.  The trial court sentenced the
defendant to twenty-five years on each of the child rape convictions
and twelve years on each of the aggravated sexual battery convictions,
with two of the child rape sentences to run consecutively and all
other sentences to run concurrently, for an effective sentence of
fifty years.  On direct appeal, this Court reversed and dismissed
three of the convictions for child rape.  We remanded the case for a
determination of whether the remaining sentences should run
consecutively.  Following a re-sentencing hearing, the trial court
ordered two of the aggravated sexual battery sentences and the child
rape sentence to run consecutively, for an effective sentence of
forty-nine years.  The defendant contends on appeal that the trail
court erred in ordering consecutive sentencing.  We conclude that the
record supports the grounds for consecutive sentencing under Tennessee
Code Annotated section 40-35-115(b)(5), and the sentence is "justly
deserved in relation to the seriousness of the offenses" and is "no
greater than that deserved for the offenses committed."

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

STATE OF TENNESSEE v. MICHAEL DWIGHT STEWART and JAMES HENRY BROWN
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Dwight E. Scott, Nashville, Tennessee, for the Appellant, Michael
Dwight Stewart; C. LeAnn Smith, Easterly & Associates, Nashville,
Tennessee, for the Appellant, James Henry Brown.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Pamela
Anderson, Assistant District Attorney General, for the Appellee, State
of Tennessee.

Judge: HAYES

First Paragraph:

The Appellants, Michael Dwight Stewart and James Henry Brown, appeal
the sentencing decisions of the Davidson County Criminal Court. 
Stewart pled guilty to aggravated robbery and aggravated kidnapping
and received an effective twelve-year sentence.  Brown pled guilty to
aggravated rape and received a twenty-four-year sentence in the
Department of Correction.  In this consolidated appeal, Stewart and
Brown raise the single issue of whether the sentences imposed were
excessive.  After review of the record, the sentencing decisions are
affirmed.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/stewartmichaeld_con.wpd

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