Opinion FlashApril 29, 2004Volume 10 — Number 083 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 CHILD BRIDE MUSIC, INC. v. JACKSON, ET AL. Court:TCA Attorneys: James E. Zwickel, Nashville, Tennessee, for the appellant, Carl Jackson, d/b/a Lonesome Dove Music. Jay Scott Bowen, Joshua E. Perry, Nashville, Tennessee, for the appellees, Child Bride Music, Inc. and Bobbie Cryner, d/b/a Bobbie Cryner Music. Judge: CAIN First Paragraph: Assignee appeals the judgment of the trial court holding it to be bound to a reclamation of rights provision in the contract between its assignor and a grantor of copyright interests. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/childbridemusic.wpd BETH A. COLLINS v. JAMES B. COODE, III Court:TCA Attorneys: Roger A. Maness, Clarksville, Tennessee, for the appellant, James B. Coode, III. Carrie W. Gasaway, Clarksville, Tennessee, for the appellee, Beth A. Collins. Judge: KOCH First Paragraph: This appeal involves a dispute regarding the post-divorce move by a primary residential parent from Clarksville to Knoxville. Upon receiving notice of the planned move, the non-residential parent petitioned the Chancery Court for Montgomery County to prevent the move or to change custody. The trial court conducted a bench trial and denied the petition. On this appeal, the non-residential parent asserts that the court applied the wrong relocation standards because it mistakenly concluded that the parents had not been spending substantially equal amounts of time with their children. We conclude that the record supports the trial court's conclusion that the parents had not spent substantially equal time with the children, and therefore, we affirm the judgment. http://www.tba.org/tba_files/TCA/collinsba.wpd JOHN JAY HOOKER v. DON SUNDQUIST, DE FACTO GOVERNOR OF TENNESSEE, IN HIS INDIVIDUAL CAPACITY, IN HIS CAPACITY AS CANDIDATE, AND IN HIS OFFICIAL CAPACITY AS DE FACTO GOVERNOR, PAUL SUMMERS, ATTORNEY GENERAL OF TENNESSEE, IN HIS OFFICIAL CAPACITY AND AS A MEMBER OF THE SUPREME COURT BAR OF TENNESSEE, LIEUTENANT GOVERNOR JOHN WILDER, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE SENATE, AND JIMMY NAIFEH, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Janet M. Kleinfelter, Senior Counsel, for the Appellants, Governor Don Sundquist, Paul Summers, Lieutenant Governor John Wilder and Jimmy Naifeh. John Jay Hooker, pro se. Judge: KIRBY First Paragraph: This case involves Rule 11 sanctions. The plaintiff filed a lawsuit challenging the practice of serving meat and drink at political fund raisers, alleging that the practice violates Article X, section 3 of the Tennessee Constitution. The defendants filed a motion to dismiss, based in part on the fact that the plaintiff had previously filed similar lawsuits against other defendants upon the same constitutional grounds, and that these prior lawsuits had been dismissed. The trial court granted the defendants' motion to dismiss. The defendants then filed a motion for sanctions pursuant to Rule 11 of the Tennessee Rule of Civil Procedure. This motion was denied. The defendants appealed, and this Court reversed the denial of sanctions and remanded the case to the trial court. On remand, the trial court imposed as a sanction a screening mechanism whereby any complaint filed by the plaintiff within the next two years must be reviewed by a special master to ensure that it is not legally frivolous or duplicative. The plaintiff now appeals that order, claiming that the sanction imposed violates his constitutional rights. We affirm, concluding that the sanction imposed is reasonable and does not deprive the plaintiff of his constitutional rights. http://www.tba.org/tba_files/TCA/hookerjj.wpd GILBERT LEE SMITH v. BETTY DARMOHRAY Court:TCA Attorneys: Stephen Walker Pate, Murfreesboro, Tennessee, for the appellant, Gilbert Lee Smith. David R. Kennedy, Nashville, Tennessee, for the appellee, Betty Darmohray. Judge: CAIN First Paragraph: In this appeal a father seeks review of the juvenile court's refusal to modify his child support obligation. We affirm. http://www.tba.org/tba_files/TCA/smithgilbert.wpd KAREN THOMAS v. ROBERT D. MAYFIELD, M.D., ET AL. Court:TCA Attorneys: Donna Keene Holt, Knoxville, Tennessee, for the appellant, Karen Thomas. Daniel Lynch Nolan, Jr., Jason Matthew Miller, Clarksville, Tennessee, for the appellee, Robert D. Mayfield, MD, Robert D. Mayfield, MD, PC. Judge: CAIN First Paragraph: This appeal challenges the trial court's dismissal of the Plaintiff's action, re-filed after the expiration of the initial statutory period of limitation. We affirm the trial court and deny Appellant's Motion for Transfer pursuant to Tennessee Code Annotated section 16-1-116. http://www.tba.org/tba_files/TCA/thomaskaren.wpd STATE OF TENNESSEE v. KIMBERLY JEANNINE COX WITH DISSENTING OPINION Court:TCCA Attorneys: Russel A. Church, Assistant Public Defender, Clarksville, Tennessee, for the appellant, Kimberly Jeannine Cox.. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; John Carney, District Attorney General; and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant was stopped for failing to use a turn signal when making a left-hand turn. The officer obtained consent to search her person, vehicle, and motel room. Upon searching her motel room, the officer found cocaine. The defendant filed a motion to suppress that the trial court denied. The defendant entered a plea of guilty to one count of possession of cocaine greater than .5 grams. The defendant reserved a certified question as to whether her consent was valid under the federal and state constitutions. We conclude that the defendant's consent was voluntarily given and that the evidence was properly admitted at trial. Therefore, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCCA/coxkimberly_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/coxkimberly_dis.wpd STATE OF TENNESSEE v. JOHN A. LEE Court:TCCA Attorneys: Eugene Honea, Franklin, Tennessee, for the appellant, John A. Lee. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Ron Davis, District Attorney General; and Sharon E. Guffee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, John A. Lee, was convicted after a bench trial of one count of child abuse of a child under six years old, a Class D felony. The Defendant was subsequently sentenced to serve two years in the Department of Correction. The sole issue raised in this direct appeal is the sufficiency of the evidence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/leeja.wpd STATE OF TENNESSEE v. MARCIN PIOTR MIKOLAJCZAK Court:TCCA Attorneys: Michael J. Flanagan, Nashville, Tennessee, for the appellant, Martin Piotr Mikolajczak. Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant, Assistant Attorney General; Dan Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Marcin Piotr Mikolajczak, pled nolo contendere to a charge of rape. As part of the plea agreement the appellant was sentenced as a standard offender for a Class B felony with the manner of service to be determined by the trial court. At the conclusion of the sentencing hearing, the trial court sentenced the appellant to serve eight years with the Department of Correction at 100% as a violent offender, without probation, split confinement or other alternative sentencing. The appellant now appeals alleging that the trial court erred in not granting alternative sentencing. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mikolajczakmartin.wpd STATE OF TENNESSEE v. RAYMOND DOUGLAS MYERS, SR. Court:TCCA Attorneys: John Appman, Jamestown, Tennessee, for the appellant, Raymond Douglas Myers, Sr. Paul G. Summers, Attorney General and Reporter; Elizabeth Marney, Assistant Attorney General; Bill Gibson, District Attorney General; and Dale Potter, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Raymond Douglas Myers, Sr., was found guilty by a jury of three counts of first degree murder, two counts of felony murder, one count of aggravated arson, and one count of conspiracy to commit murder. The trial court merged the convictions for felony murder and conspiracy to commit murder into the three first degree murder convictions. After a sentencing hearing, the trial court imposed consecutive sentences of life without the possibility of parole for each murder conviction, and a consecutive twenty-four year sentence for the aggravated arson conviction. In this direct appeal, the Defendant argues that the evidence is insufficient to support his convictions, that Tennessee's first degree murder sentencing statute is unconstitutional, and that the trial judge improperly instructed the jury regarding the State's burden of proof. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/myersrd.wpd STATE OF TENNESSEE v. MARCO POLO PATTEN Court:TCCA Attorneys: William Cather, Assistant Public Defender, Lebanon, Tennessee, and Merrilyn Feirman, Nashville, Tennessee, for the appellant, Marco Polo Patten. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Tom P. Thompson, District Attorney General; and Robert N. Hibbett, Assistant District Attorney General, for the appellant, Marco Polo Patten. Judge: WELLES First Paragraph: The Defendant, Marco Polo Patten, was convicted by a jury of aggravated sexual battery, a Class B felony. After a sentencing hearing, the trial court imposed a sentence of ten years in the Department of Correction. In this direct appeal, the Defendant raises the following issues: 1) whether the trial court erred by allowing evidence of prior bad acts by the Defendant; 2) whether the evidence is legally sufficient to support the jury's verdict; 3) whether the prosecutor made improper statements during his opening and closing statements; 4) whether cumulative errors prevented a fair trial; 5) whether the trial court imposed an excessive sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/pattenmp.wpd EDWARD THOMPSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Tim S. Moore, Newport, Tennessee, for the appellant, Edward Thompson. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and James Bruce Dunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Edward Thompson, appeals the Cocke County Criminal Court's dismissing his petition for post-conviction relief. He claims that he is entitled to a new trial because the state destroyed or lost evidence that he wanted to submit for DNA testing pursuant to T.C.A. S 40-30-303 (2003), the Post-Conviction DNA Analysis Act of 2001. We affirm the trial court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/thompsonedward.wpd Constitutionality of certain proposed amendments to SB 3394/HB 3512 and SB 3392/HB 3513 relative to TennCare Date: April 28, 2004 Opinion Number: 0407 http://www.tba.org/tba_files/AG/2004/op79.pdf PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! 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