Opinion FlashApril 9, 2004Volume 10 — Number 069 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 AT&T CORP. v. RUTH JOHNSON, ET AL. Court:TCA Attorneys: William Robert Pope, Jr., Jack W. Robinson, Jr., Mary Taylor Gallagher, Nashville, Tennessee, for the appellant, AT&T Corporation. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General, M. Ty Pryor, Assistant Attorney General, for the appellee, Ruth E. Johnson, Commissioner of Revenue, State of Tennessee. Judge: CAIN First Paragraph: This appeal concerns a challenge to the Commissioner's franchise and excise tax assessment. On cross-motions for summary judgment the chancellor found for the Commissioner. We affirm. http://www.tba.org/tba_files/TCA/attcorp.wpd STEVEN D. ELLIOTT v. GINGER W. ELLIOTT (ECTON) Court:TCA Attorneys: Markley Runyon Gill, Erin, Tennessee, for the appellant, Steven D. Elliott. Jeffrey L. Levy, Nashville, Tennessee, for the appellee, Ginger W. Ecton. Judge: KOCH First Paragraph: This appeal involves a post-divorce dispute regarding stock options that were part of the marital estate. The Circuit Court for Davidson County approved a marital dissolution agreement in which the husband agreed to transfer one-half of his employee stock options to the wife as part of the division of the martial estate. After the husband's employer and the employer's brokerage firm declined to transfer the stock options to the wife, she orally requested the husband to exercise the options on her behalf. The value of the employer's stock fell after the husband did not exercise the options. The wife sought to hold the husband in contempt or to modify the divorce decree. The trial court declined to hold the husband in contempt but found that he had impermissibly impeded the division of the martial estate. Accordingly, the court awarded the wife $59,759.25, the stock options' before-tax value had they been exercised on the day the divorce decree was entered. In addition, the court ordered the husband to immediately sell the options originally awarded to the wife and to pay her the proceeds as a credit against the judgment. The court also ordered the husband to pay the wife's attorney's fees, as well as prejudgment interest. The husband has appealed. We have determined that the trial court properly concluded that the husband unreasonably impeded the wife's acquisition of the value of the stock options. However, we have determined that the trial court erred by valuing the stock options as of the time of the divorce rather than the time the wife and the husband orally agreed to exercise the options and that the court erred by requiring the husband to exercise his options to pay the judgment. We have also determined that the court erred by awarding the wife prejudgment interest but properly awarded the wife her attorney's fees. http://www.tba.org/tba_files/TCA/elliottsd.wpd IN RE M.J.B. & M.W.S., JR. Court:TCA Attorneys: Nick Perenich, Nashville, Tennessee, for the appellant, K.D.M. Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services. Thomas H. Miller, Franklin, Tennessee, Guardian ad Litem for M.J.B. and M.W.S., Jr. Judge: KOCH First Paragraph: This appeal involves the termination of a mother's parental rights with regard to her two children. Approximately two years after removing the children from their mother's custody, the Tennessee Department of Children's Services filed a petition in the Davidson County Juvenile Court to terminate both the mother's and the two fathers' parental rights. The mother contested the petition, but ultimately, the children's fathers did not. Following a bench trial, the court entered an order terminating both the fathers' and the mother's parental rights. The mother has appealed. We have determined that the record contains clear and convincing evidence warranting termination of the mother's parental rights under Tenn. Code Ann. S 36-1-113(g)(2) & (3) (Supp. 2003). http://www.tba.org/tba_files/TCA/mjb.wpd STATE OF TENNESSEE v. CHERIE MAE PHILLIPS Court:TCCA Attorneys: J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Cherie Mae Phillips. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Marsha Mitchell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Cherie Mae Phillips, pled guilty in the Knox County Criminal Court to aggravated assault. Pursuant to the plea agreement, she received a sentence of three years incarceration in the Tennessee Department of Correction. On appeal, the appellant argues that the trial court erred in denying alternative sentencing. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/phillipscm.wpd STATE OF TENNESSEE v. GEORGE ARVIL VANCE & VINCENT Court:TCCA Attorneys: David C. Crockett and Lisa D. Rice, Elizabethton, Tennessee, for the appellants, George A. Vance and Vincent Vance. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H. Findley, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Robert Montgomery, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Sullivan County jury convicted the Defendants, George A. Vance and Vincent Vance, of aggravated gambling promotion for operating twenty-nine Free Spin machines in Bristol. The trial court sentenced Defendant George A. Vance to two years of supervised probation followed by four years of unsupervised probation and ordered him to make restitution in the amount of $130,521.00. The court sentenced Defendant Vincent Vance to one year of supervised probation followed by one year of unsupervised probation. On appeal, the Defendants contend that: (1) the evidence is insufficient to support their convictions because there was no evidence that they knowingly engaged in a gambling enterprise and the Free Spin machines were not principally designed as gambling devices; (2) the trial court abused its discretion by prohibiting the Defendants from introducing the testimony of a patent attorney concerning the issuance of a patent on the Free Spin machine; and (3) the trial court abused its discretion by prohibiting the Defendants from introducing evidence concerning comparable products, games and promotions similar to the play on the Free Spin machines. Finding no reversible error, we affirm the trial court's judgments. http://www.tba.org/tba_files/TCCA/vancega.wpd 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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