Opinion Flash

March 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):
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
06 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

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.

Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


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

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi


HomeContact UsPageFinderWhat's NewHelp
© Copyright 2004 Tennessee Bar Association