Opinion Flash

April 8, 2004
Volume 10 — Number 068

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
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 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


TONY BILBREY v. KENNETH O. LESTER CO., INC.
CORRECTED OPINION

Court:TSC - Workers Comp Panel

Attorneys:                          

John R. Lewis, Nashville, Tennessee, for Appellant, Kenneth O. Lester
Co., Inc.

Anthony E. Hagan, Lebanon, Tennessee, for Appellee, Tony Bilbrey.

Judge: TURNBULL

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. 50-6-225(e)(3) to hear and report to the Supreme
Court Findings of Fact and Conclusions of Law.  The trial court found
that the employer had made voluntary medical payments within one year
of the filing of suit; that the statute of limitations had not
expired; and that the plaintiff suffered a work related back injury. 
The trial court fixed plaintiff's disability at 22-1/2 percent to the
body as a whole.  We affirm the judgment of the trial court.

CORRECTED OPINION
http://www.tba.org/tba_files/TSC_WCP/bilbreyt.wpd

CATHERINE A. HOBACK v. GLENN D. HOBACK

Court:TCA

Attorneys:                          

George M. Allen, Brentwood, TN, for the appellant, Glenn D. Hoback.

Sandra Jones, Nashville, TN, for the appellee, Catherine D. Hoback.

Judge: GRAY

First Paragraph:

The issues on appeal in this divorce action are: (1) Whether the trial
court erred in awarding alimony in futuro; (2) Whether the trial court
was in error in finding wife's IRA of Wal-mart stock was her separate
property in its entirety; (3) Whether the trial court erred in failing
to make a downward deviation in child support.

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

GRETTA IRION v. SUN LIGHTING, INC., ET AL.

Court:TCA

Attorneys:                          

David Zager, Scott Collins, Nashville, Tennessee, for the appellant,
Gretta Irion.

J. Frank Thomas, Lynn T. Vo, Richard D. Moore, Nashville, Tennessee,
for the appellees, Sun Lighting, Inc., and The Home Depot, Inc.

Judge: COTTRELL

First Paragraph:

Consumer brought products liability suit under theories of negligence,
strict liability in tort, and breach of implied warranty for property
damage arising out of a fire caused when the consumer's son placed a
pillow on top of a halogen torchiere lamp supplied by defendant Sun
Lighting, Inc. and sold by defendant The Home Depot, Inc.  The trial
court granted summary judgment to both defendants and dismissed the
lawsuit.  The consumer appeals.  Because we find the joint summary
judgment motions were properly granted, we affirm the trial court.

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

DEBORAH L. JORDAN v. WALTER B. JORDAN

Court:TCA

Attorneys:                          

Ronald J. Berke, Chattanooga, Tennessee, for the appellant, Deborah L.
Jordan.

David Haines Rotroff, Chattanooga, Tennessee, for the appellee, Walter
B. Jordan.

Judge: SUSANO

First Paragraph:

This appeal presents a question of first impression.  Deborah L.
Jordan ("Wife") filed a proposed "qualified" domestic relations order
("QDRO") with the trial court clerk more than 10 years after her
divorce from Walter B. Jordan ("Husband").  The trial court entered
the proposed QDRO.   Husband filed a motion for relief from judgment,
arguing that the entry of the  proposed QDRO was barred because Wife
failed to act "within ten (10) years of the entry of [the] judgment
contained in the Final Decree of Divorce," citing Tenn. Code Ann. S
28-3-110 (2000).  The trial court granted Husband's motion and set
aside the previously-entered QDRO.  Wife appeals, arguing that the
ten- year statute of limitations does not apply to the filing of a
proposed QDRO because, according to her, such a filing is not an
action to enforce a judgment. We agree with Wife's position. 
Accordingly, we reverse the judgment of the trial court.

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

ED NETHERLAND, ET AL. v. BILL HUNTER, ET AL.

Court:TCA

Attorneys:                          

James L. Weatherly, Jr. and Joseph T. Howell, Nashville, Tennessee,
for the appellants, Bill and Lawson Hunter.

Philip N. Elbert and Gerald D. Neenan, Nashville, Tennessee, for the
appellees, Ed and Desiree Netherland.

Judge: CAIN

First Paragraph:

In this matter we are asked to determine which statute controls the
issue of venue for a claim filed under the Tennessee Consumer
Protection Act, the venue provision of that act, Tennessee Code
Annotated section 47-18-109, or Tennessee's general venue provision,
section 20-4-101 of the Code.  The trial court determined that section
47-18-109 controls venue in this action and denied Defendants' Motion
to Dismiss for Improper Venue.  We affirm the decision of the trial
court.

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

CAROL NEWELL d/b/a SOLOWELL v. EXIT/IN, INC., ET AL.

Court:TCA

Attorneys:                          

Luther Wright, Jr., Jennifer L. Ditty, Nashville, Tennessee, for the
appellant, Ned Horton.

Kenneth R. Jones, Jr., Nashville, Tennessee, for the appellee, Carol
Newell, d/b/a Solowell.

Judge: COTTRELL

First Paragraph:

The trial court granted partial summary judgment to plaintiff in this
suit to collect on a promissory note.  Appellant does not appeal the
grant of judgment, but appeals the trial court's certification of that
judgment as a final order under Tenn. R. Civ. P. 54.02.  We affirm the
trial court.

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

KRISHNALAL J. PATEL, ET AL. v. DILEEP PATEL

Court:TCA

Attorneys:                          

Phillip L. Davidson, Nashville, Tennessee, for the appellants,
Krishnalal Patel, Vijay Patel, Chilakammari Yeshwant, Mohammad Ghani,
Sushil Bagri, Pradeep Kakkad, and Shashan Natarajan.

Daniel D. Warlick, Nashville, Tennessee, for the appellee, Dileep
Patel.

Judge: KOCH

First Paragraph:

This appeal involves a dispute among the members of a general
partnership.  In 1997, a group of the partners sued one of the
partners in the Chancery Court for Davidson County for negligence and
breach of fiduciary duty.  The trial court granted a judgment for the
defendant partner in 2000.  In 2001, the same group of partners filed
a similar suit in the Circuit Court for Davidson County.  The
defendant partner moved to dismiss on the grounds of res judicata. 
The trial court converted the motion to dismiss into a motion for
summary judgment and then granted judgment for the defendant partner
on the ground that the 1997 chancery court judgment barred the second
state court suit.  The plaintiff partners have appealed.  We affirm
the trial court.

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

PORTLAND UTILITIES CONSTRUCTION COMPANY, LLC v. CHASE CREEK, LLC ET AL.

Court:TCA

Attorneys:                          

T. Turner Snodgrass, Nashville, Tennessee, for the appellants, Chase
Creek, LLC and Travelers Casualty and Surety Company of America.

Joe A. Conner, Sheri A. Fox, Chattanooga, Tennessee, for the appellee,
Portland Utilities Construction Company, LLC.

Judge: COTTRELL

First Paragraph:

A utilities contractor sued a subdivision developer for payment for
work it performed on the subdivision's infrastructure.  The court
found that the developer was obligated to honor its contract by paying
for work with a value of $313,829.  The court also found that the
developer was entitled to an offset of $55,955 for damages resulting
from defects in the contractor's performance.  The developer argues on
appeal that the trial court erroneously declined to grant it
additional offsets.  We affirm the trial court.

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

TIFFANY REED v. CHRISTOPHER KIDD

Court:TCA

Attorneys:                          

Carrie Kersh Gasaway, Clarksville, Tennessee, for the appellant,
Christopher Kidd.

Christine Zellar Church, Clarksville, Tennessee, for the appellee,
Tiffany Reed.

Judge: CAIN

First Paragraph:

This custody case involves two parents who have never been married and
have not been involved in any prior custody determination regarding
the child at issue.  Father had never seen the child prior to filing
this custody action and had not spoken with Mother since the child's
birth in 1992.  He was served with a paternity action in November 2001
and adjudicated to be the child's father.  On June 4, 2002, he filed
this custody action.  The trial court determined that custody should
remain with Mother and adopted a parenting plan offered by Mother. 
Father appealed.  We affirm the trial court's determination.

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

STATE OF TENNESSEE v. PAUL GRAHAM

Court:TCCA

Attorneys:                          

Carrie W. Gasaway, Clarksville, Tennessee, for the appellant, Paul
Graham.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; John Wesley Carney, Jr.,
District Attorney General; and Arthur F. Bieber, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was convicted by a jury of second degree murder of his
wife.  The defendant appeals his conviction and sentence and alleges
the following errors: (1) the evidence was insufficient to support the
conviction; (2) the admission of hearsay testimony and failure to give
a curative instruction; (3) the admission of expert opinion that the
death was a result of homicidal violence when cause was undetermined;
(4) cumulative errors required a new trial; and (5) improper
sentencing. After review, we conclude that there is no reversible
error and affirm the conviction and sentence.

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

STATE OF TENNESSEE v. CHRIS E. HIXSON

Court:TCCA

Attorneys:                          

Merrilyn Feirman, Nashville, Tennessee and Chris L. Young, Ashland
City, Tennessee, for the appellant, Chris E. Hixson.

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

Judge: WELLES

First Paragraph:

The Defendant, Chris E. Hixson, pled guilty to two counts of theft and
three counts of sale of cocaine, all Class C felonies.  He was
sentenced to two concurrent four-year terms for the theft offenses,
and to three concurrent four-year terms for the cocaine offenses,
these latter terms to be served consecutively to the terms for the
theft offenses, for an effective sentence of eight years.  All of
these sentences were ordered to be served on community corrections. 
The Defendant was subsequently convicted of aggravated burglary and
sentenced to serve three years on community corrections, consecutive
to the sentences imposed for the theft offenses.  The effective
sentence of eight years was thus unchanged.  Subsequent to the
burglary conviction, the Defendant violated the terms of his release
and was ordered to serve two years day-for-day in confinement, after
which he was to be released back into community corrections.  It is
from this order that the Defendant now appeals, arguing that the two
years of continuous confinement constitutes an illegal sentence.  The
State concedes that the sentence is illegal.  We agree.  The trial
court's judgment is reversed and this matter is remanded to the trial
court.

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

CURLEY LEE HOWSE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Anne M. Davenport, Nashville, Tennessee, for the appellant, Curley Lee
Howse.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

This is an appeal from the denial of a Motion to Re-Open Post
Conviction Relief in order to obtain DNA testing of evidence gathered
for the 1981 prosecution of the appellant for aggravated rape and
sexual battery.  Because the filing of the notice of appeal in this
case was delinquent by approximately eight months, and because it does
not appear to be in the interests of justice to excuse this
delinquency, this appeal is DISMISSED.

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

JOHNNY L. McGOWAN, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Johnny McGowan, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; and Mark A. Hudson, Senior
Counsel, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner directly appeals the dismissal of his petition of writ
of habeas corpus.  The judgment of the habeas court summarily
dismissing the petition for writ of habeas corpus is reversed, and
this case is remanded to the Circuit Court of Davidson County for
appointment of counsel and an evidentiary hearing.  If the habeas
corpus court finds the sentence to be illegal, the court must then
remand the case to the Rutherford County Criminal Court, where the
convictions occurred.  On remand to the original convicting court, the
petitioner's guilty plea may be withdrawn if concurrent sentencing was
a condition of his plea agreement.

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

RAYMOND RUTTER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Raymond Rutter, Mountain City, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and J. Brad Scarbrough, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Raymond Rutter, appeals as of right from the Johnson
County Criminal Court's dismissal of his petition for habeas corpus
relief.  In this pro se appeal, the petitioner contends that he should
be granted habeas corpus relief because his judgment of conviction for
criminal impersonation of a licensed professional is void.  The state
contends that the trial court properly dismissed the petition.  We
affirm the trial court's dismissal of the petition.

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

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