Opinion FlashMarch 24, 2004
Volume 10 Number 057
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):
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Howard H. Vogel
DANNY R. BLALOCK v. CAROLYN S. BLALOCK OPINION DENYING PETITION FOR REHEARING Court:TCA Judge: INMAN First Paragraph: These parties jointly owned a rental property. A "settlement agreement" was entered into which provided that Husband would purchase Wife's interest for $500,000.00 payable within one year, the payment to be secured by a deed of trust. If the purchase price was not paid "in full in one year" the "property shall immediately be placed at absolute auction and the parties will equally divide the proceeds after all expenses and indebtedness." http://www.tba.org/tba_files/TCA/blalockc_prh.wpd
JUSTIN C. EBERT v. IFEATU EKELEM Court:TCA Attorneys: Ifeatu Ekelem, College Grove, Tennessee, Pro Se. William C. Barnes, Jr., Columbia, Tennessee, for the appellee, Justin Ebert. Judge: KOCH First Paragraph: This case involves a dispute between a Williamson County property owner who decided to oversee the construction of his own house and the framing contractor he hired for the project. The framing contractor filed a breach of contract action in the Williamson County Chancery Court seeking to recover the balance owing on the contract. The property owner counterclaimed seeking to recover the costs he allegedly incurred to complete the framing and to repair deficient work. The trial court conducted a bench trial and awarded the framing contractor a $6,642.81 judgment. On this appeal, the property owner asserts (1) that the trial court should have dismissed the framing contractor's complaint because of defects in his lien, (2) that the judgment should have been offset by the cost of completing the work allegedly left unfinished by the contractor, and (3) that the contractor was not entitled to recover because he did not possess a license as required by the Contractors Licensing Act of 1994. We have determined that the framing contractor should have obtained a license because the total cost of the work exceeded $25,000 and, therefore, that Tenn. Code Ann. S 62-6-103(b) (Supp. 2003) limits the contractor's damages to his actual documented expenses. Accordingly, we vacate the judgment and remand the case. http://www.tba.org/tba_files/TCA/ebertjc.wpd
CHER LYNN HOGUE v. JOSEPH RANDOLPH HOGUE, JR. CORRECTED OPINION Court:TCA Attorneys: Robert J. Turner and Samuel L. Felker, Nashville, Tennessee, and Kenneth Y. Choe, New York, New York, for the appellant, Joseph Randolph Hogue. Rose Palermo, Nashville, Tennessee, for the appellee, Cher Lynn Hogue. Judge: CLEMENT First Paragraph: Chancellor issued restraining order upon the filing of the divorce complaint which prohibited the father from "exposing the child to . . . his gay lifestyle" and thereafter held the father in contempt for telling the child he was gay. Tenn. R. Civ. P. 65.02(1) requires restraining orders and injunctions to be as specific as reasonably possible and to describe in reasonable detail the act that is restrained or enjoined. The "domestic relations" exception in Tenn. R. Civ. P. 65.07 does not excuse a trial court from compliance with the specificity requirements of Tenn. R. Civ. P. 65.02(1). We find that the restraining order does not meet the requirements of Tenn. R. Civ. P. 65.02(1) because it does not describe the prohibited acts in reasonable detail. Therefore, we hold that the temporary restraining order is unenforceable and the father could not be punished for violating an unenforceable restraint or order. CORRECTED OPINION http://www.tba.org/tba_files/TCA/hoguecher.wpd
FRED M. LEONARD, JR., ET AL. v. KNOX COUNTY, TENNESSEE, ET AL. Court:TCA Attorneys: Sharon E. Boyce, Knoxville, Tennessee, for the Appellant City of Knoxville. Glenna W. Overton, Knoxville, Tennessee, for the Appellee Fred M. Leonard, Jr. Robert C. McConkey, III, Knoxville, Tennessee, for the Appellee Knox County, Tennessee. Judge: SWINEY First Paragraph: This is an inverse condemnation claim brought by Fred M. Leonard ("Plaintiff") against the City of Knoxville (the "City") and Knox County (the "County"). Plaintiff sought damages to his property resulting from flooding which occurred during and after construction to Gleason Road in Knoxville. The Trial Court granted the County's motion for summary judgment because the County had no involvement with the road construction and because the construction occurred solely within the City's limits on a city street. The Trial Court granted Plaintiff's motion seeking to prohibit the City from introducing evidence at trial pertaining to the deed between the City and Plaintiff's predecessor in title, which the City claimed estopped Plaintiff from pursuing this litigation. The jury returned a verdict for Plaintiff for $50,000 and concluded that Plaintiff's action was not barred by the applicable one year statute of limitations. We affirm the grant of summary judgment to the County and the jury's verdict that this action was filed timely. We conclude, however, that the Trial Court erred when it prohibited the City from introducing the deed and evidence concerning whether that deed operated to estop Plaintiff from pursuing this action. http://www.tba.org/tba_files/TCA/leonardf.wpd
CHARLES C. PHILLIPS, JR., ET AL. v. UNITED SERVICES AUTOMOBILE ASSOCIATION Court:TCA Attorneys: Donald D. Howell, Knoxville, Tennessee, and H. Michael Bagley and Karen K. Karabinos, Atlanta, Georgia, for the appellant, United Services Automobile Association. Janet L. Hogan, Knoxville, Tennessee, for the appellees, Charles C. Phillips, Jr., on behalf of himself and all others similarly situated in the State of Tennessee. Judge: SUSANO First Paragraph: Charles C. Phillips, Jr. sued United Services Automobile Association ("USAA") under his homeowners insurance policy. His suit was prompted by USAA's denial of coverage for water damage to the plaintiff's house. The plaintiff claims that the damage was due to water seepage as a direct result of the faulty design or negligent installation of the synthetic stucco system applied to the exterior of his house. The plaintiff amended his complaint, seeking class certification for all other USAA insureds who had sustained similar losses caused by the failure of synthetic stucco material and whose claims had been denied by USAA. Following a bench trial on the issues of coverage and class certification, the trial court determined that the plaintiff's policy provided coverage for the water damage that ensued as a result of water penetrating the stucco exterior. In addition, the trial court ordered that a class of plaintiffs be conditionally certified. USAA appeals the finding of coverage. We affirm. http://www.tba.org/tba_files/TCA/phillipsc.wpd
JAMES WILKERSON v. IFEATU EKELEM Court:TCA Attorneys: Ifeatu Ekelem, College Grove, Tennessee, Pro Se. William C. Barnes, Jr., Columbia, Tennessee, for the appellee, James Wilkerson. Judge: KOCH First Paragraph: This case involves a dispute between a Williamson County property owner who decided to oversee the construction of his own house and the masonry contractor he hired to do the brick work on the project. The brick mason filed suit in the Williamson County Chancery Court claiming the property owner had breached the parties' oral agreement by failing to pay the balance due under the agreement. The property owner responded by claiming it was the brick mason who had breached the contract, accusing the brick mason of failing to finish the work in a professional manner, and charging the brick mason with slander. The trial court found in favor of the brick mason on his breach of contract claim, rejected the property owner's claims, and entered a $29,268.99 judgment in favor of the brick mason. The property owner appealed. We concur with the trial court's finding that the property owner breached the contract and, therefore, affirm the judgment. http://www.tba.org/tba_files/TCA/wilkersonj.wpd
STATE OF TENNESSEE v. DAVID C. BEATS Court:TCCA Attorneys: Kirk Vandivort, Charlotte, Tennessee (on appeal); and Jefre S. Goldtrap, Nashville, Tennessee (at trial), for the appellant, David C. Beats. Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, David C. Beats, was convicted of theft over $10,000.00 and received a ten-year suspended sentence. After a positive drug screen, the trial court revoked probation and ordered service of the original sentence. In this appeal of right, the defendant argues that the trial court abused its discretion by revoking his probation. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/beatsdc.wpd
STATE OF TENNESSEE v. WILBUR LEON DECK, JR. Court:TCCA Attorneys: Michael J. Flanagan, Nashville, Tennessee, for the appellant, Wilbur Leon Deck, Jr. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Billy H. Miller, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Dickson County jury convicted the Defendant, Wilbur Leon Deck, Jr., of Driving Under the Influence of an Intoxicant ("DUI"), second offense. The trial court sentenced the Defendant to eleven months and twenty-nine days in the county jail, which it suspended after the Defendant served ninety days in jail. On appeal, the Defendant contends that the trial court erred when it failed to dismiss the presentment because the caption of the presentment stated the incorrect term of the grand jury. Finding no reversible error, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/deckwl.wpd
CURTIS E. DUKE v. STATE OF TENNESSEE Court:TCCA Attorneys: Curtis E. Duke, pro se, Only, Tennessee. Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Mike McCowen, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner, Curtis E. Duke, was convicted of two counts of the sale of crack cocaine, one count of possession of crack cocaine with the intent to sell, two counts of criminal impersonation, and one count of failure to appear. As a result, he was sentenced to 39 years in the Department of Correction. See State v. Curtis Emery Duke, No. M2000-00350-CCA-R3-CD, 2001 WL 252080 (Tenn. Crim. App. at Nashville, Mar. 14, 2001), perm. to appeal denied (Tenn. Mar. 27, 2001). In this pro se post-conviction petition, the petitioner presents the following issues for our review: (1) whether the trial court erred in finding that the petitioner waived the amendment of the indictment regarding variance; (2) whether the trial court erred in ruling that the petitioner's convictions were not obtained in violation of double jeopardy; (3) whether the trial court erred in sentencing the petitioner; and (4) whether the petitioner received effective assistance of counsel. Because the first three issues should have been addressed on direct appeal, we conclude that they are waived. Further, petitioner received the effective assistance of counsel. We therefore affirm the trial court's dismissal of the post-conviction petition. http://www.tba.org/tba_files/TCCA/dukecurtis.wpd
STATE OF TENNESSEE v. MARC ADOLPH LEWIN Court:TCCA Attorneys: Dana M. Ausbrooks, Franklin, Tennessee, for the appellant, Marc Adolph Lewin. Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, Assistant Attorney General;Ron Davis, District Attorney General; and Lee Dryer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Marc Adolph Lewin, pled guilty to obtaining a controlled substance by fraud, for which he received an eight-year suspended sentence. He was ordered to serve eight years of supervised probation with the conditions that the probation be supervised for a minimum of four years, completion of three hundred hours of public service work, and payment of costs on a schedule prepared by a probation officer. After the issuance of a probation violation warrant based on the appellant's failure of a drug screen, the appellant was ordered to serve his sentence in incarceration. He appeals the revocation of probation arguing that the trial court erred by basing its decision on allegations that were not supported by the evidence and an unsubstantiated laboratory report. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lewinmarc.wpd
STATE OF TENNESSEE v. DEXTER LINEBERRY Court:TCCA Attorneys: Claudia S. Jack, District Public Defender; and Robert H. Stovall, Jr., Assistant District Public Defender, for the appellant, Dexter Lineberry. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Mike Bottoms, District Attorney General; and J. Douglas Dicus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Dexter Lineberry, was convicted by a Wayne County jury of assault, a Class B misdemeanor, and evading arrest, a Class A misdemeanor. The trial court sentenced the defendant to six months with all but ninety days suspended for the assault conviction, and eleven months and twenty-nine days with all but ninety days suspended for the evading arrest charge, with the sentences to be served concurrently. In this appeal as of right, the defendant presents two issues: (1) whether the evidence is sufficient to support the defendant's conviction for assault; and (2) whether the ninety-day jail sentence was appropriate. Following our review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/lineberrydexter.wpd
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