Opinion FlashApril 1, 2004Volume 10 — Number 063 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 BRENDA LEE CHASTAIN v. RICKY LAVON CHASTAIN Court:TCA Attorneys: Ricky Lavon Chastain, Only, Tennessee, Pro Se. Jennifer F. Noe, Ashland City, Tennessee, for the appellee, Brenda Lee Chastain. Judge: KOCH First Paragraph: This appeal arises from a divorce proceeding involving a state prisoner and his wife. After the wife filed her divorce complaint in the Chancery Court for Cheatham County, the prisoner counterclaimed for divorce and served interrogatories on his wife regarding their separate and marital property. Two motions to compel the wife to answer these interrogatories were unresolved when the trial court conducted a bench trial in the prisoner's absence and granted the wife a divorce. The prisoner asserts on this appeal that the trial court erred by failing to dispose of his discovery motions prior to trial. We agree and, therefore, vacate the portions of the divorce decree pertaining to the division of the marital estate. http://www.tba.org/tba_files/TCA/chastainbl.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 JENNIFER LEE HEWSON v. KERRY DAVID HEWSON Court:TCA Attorneys: Clark Lee Shaw, Nashville, Tennessee, for the appellant, Kerry David Hewson. Jeffrey L. Levy, Nashville, Tennessee, for the appellee, Jennifer Lee Hewson. Judge: KOCH First Paragraph: This appeal involves the financial aspects of a divorce decree filed by the Circuit Court for Davidson County. The husband takes issue with the apportionment of the marital debts, the amount of child support, and the award of spousal support. We affirm the trial court. http://www.tba.org/tba_files/TCA/hewsonjl.wpd DIANE MARIE BIEGEN OSTHEIMER v. RICHARD HAROLD OSTHEIMER Court:TCA Attorneys: David E. Caywood, Memphis, Tennessee, for the appellant, Diane Marie Biegen Ostheimer. Stuart B. Breakstone, Memphis, Tennessee, for the appellee, Richard Harold Ostheimer. Judge: KIRBY First Paragraph: This is a child support case. The parties were divorced, and custody of their child was awarded to the mother. As child support, the father was ordered to pay a flat-amount per month plus a percentage of each commission check he earned. Eight years later, the mother filed a petition for contempt, asserting that the father was in arrears on the flat-amount monthly component of his child support payments. The petition did not mention any arrearage based on the father's commission- based child support obligation. Subsequently, the trial court entered a consent order, stating the amount of the father's child support arrearage as of the date of the order. The order did not mention the father's commission-based child support obligation. The father did not comply with the consent order. Subsequently, the mother filed an amended petition for contempt, asserting that the father was in arrears on his child support based on his failure to pay the commission-based component of his child support obligation. The trial court held that the mother's claim was barred by res judicata, based on the earlier consent order that addressed the father's child support arrearage. The mother now appeals. We reverse, finding that the mother's claim to commission-based child support arrearages was not barred by res judicata, because the language in the consent order is ambiguous, and the evidence does not show that the parties negotiated that issue or contemplated that it would be resolved in the consent order. http://www.tba.org/tba_files/TCA/ostheimerdiane.wpd JEANNE L. SCHUETT v. EGON HORST SCHUETT, JR. Court:TCA Attorneys: Stuart B. Breakstone, Memphis, TN, for Appellant Mitchell D. Moskovitz, Adam N. Cohen, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This case concerns issues of property division, alimony, attorney's fees, child support and dependency exemptions, arising from the divorce of Husband and Wife. The trial court, after the decree of divorce and the classification of the property of the parties as either marital or separate, divided the property, awarded Wife alimony in solido, ordered Husband to pay Wife's attorney's fees, set a floating child support amount for Husband to pay, and divided the dependency exemptions of the parties' three minor children. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/schuettjl.wpd TINKER-WATKINS SAND & GRAVEL, INC. v. MICHAEL W. PARSONS Court:TCA Attorneys: Michael W. Parsons, pro se, Memphis, TN Bradford D. Box, Jackson, TN, for Appellee Judge: HIGHERS First Paragraph: This case involves a claim for payment from Defendant for goods and services provided by Plaintiff to Defendant under an oral contract. Originally, the claim was brought in the General Sessions Court for Decatur County. Defendant first challenged the venue of Decatur County, which was rejected by General Sessions Court. Defendant appealed the judgment of the General Sessions Court to the Circuit Court, which also denied Defendant's motion to dismiss for improper venue and awarded Plaintiff the amount claimed under the terms of the contract. Defendant appealed to this Court and we affirm. http://www.tba.org/tba_files/TCA/tinker.wpd FORREST L. WHALEY & MARGARET ANN WHALEY v. FIRST AMERICAN TITLE COMPANY OF MID-WEST Court:TCA Attorneys: Richard M. Carter, Curt R. Soefker, Memphis, TN, for Appellants Michael C. Patton, Thomas F. Barnett, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This case involves a claim under a title insurance policy. Plaintiffs purchased a residence located on a two acre lot, which, they later discovered, had been improperly subdivided from a preexisting 74 acre tract. As a result of the improper subdivision of their lot, Plaintiffs are unable to obtain a building permit to construct any improvements upon the property. Plaintiffs then filed a claim under their title insurance policy with Defendant. The claim was denied, and the Plaintiffs subsequently filed suit. After considering pleadings, affidavits, and deposition transcripts, the lower court granted Defendant's motion for summary judgment, finding as a matter of law that the policy at issue does not cover the improper subdivision of land. For the following reasons, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/whaleyforrest.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 FRANK CHESTER BRIGHT, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Peter T. Skeie, Nashville, Tennessee, for the Appellant, Frank Chester Bright. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, District Attorney General; and John C. Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Davidson County jury convicted the Petitioner, Frank Chester Bright, Jr., of possession with intent to deliver over twenty-six grams of a substance containing cocaine, a Class B felony, and facilitation of possession of a deadly weapon, a Class A misdemeanor. The trial court sentenced the Petitioner as a career offender to thirty years in prison on the possession count and eleven months and twenty- nine days in prison on the facilitation count, with the sentences to run concurrently. On direct appeal, this Court affirmed the conviction, and the Tennessee Supreme Court denied the Petitioner's application for permission to appeal. The Petitioner then filed a petition seeking post-conviction relief in the trial court, which the court dismissed. On appeal, the Petitioner asserts that the post- conviction court erred when it dismissed his petition finding that there was no merit to his claims that: (1) he was denied effective assistance of counsel at his sentencing hearing; (2) the prosecutor committed prosecutorial misconduct at the sentencing hearing; and (3) the trial court's instructions to the jury violated his due process rights. Finding no error, we affirm the post-conviction court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/brightfc.wpd CLAYTON TURNER v. STATE OF TENNESSEE Court:TCCA Attorneys: Wayne R. Stambaugh, Morristown, Tennessee (on appeal), and Mark Harris, Kingsport, Tennessee (at trial), for the appellant, Clayton Turner. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner, Clayton Turner, was convicted of rape of a child, incest, and assault and received an effective sentence of thirty-one years in the Department of Correction. He later sought both direct and post-conviction appeals, both of which were denied by this court and our supreme court. Subsequently, he filed a petition for post-conviction relief based on the Post-Conviction DNA Analysis Act, see Tenn. Code Ann. S 40-30-403, which was dismissed. He appeals that dismissal, arguing that the post-conviction court erred in not appointing an expert to assist with his request for DNA analysis. Following our review, we affirm the post-conviction court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/turnerclayton.wpd School Buses and Seat Belts Date: March 25, 2004 Opinion Number: 04-051 http://www.tba.org/tba_files/AG/2004/op51.pdf Legislative Resolution on Religion Date: March 25, 2004 Opinion Number: 04-052 http://www.tba.org/tba_files/AG/2004/op52.pdf Effect and constitutionality of HB 3232 prohibiting sex offenders from residing within 1,000 feet of a school Date: March 25, 2004 Opinion Number: 04-053 http://www.tba.org/tba_files/AG/2004/op53.pdf Issuance of arrest warrants for probation violations Date: March 26, 2004 Opinion Number: 04-054 http://www.tba.org/tba_files/AG/2004/op54.pdf Abortion Date: March 30, 2004 Opinion Number: 04-055 http://www.tba.org/tba_files/AG/2004/op55.pdf 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! 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