Opinion Flash

April 29, 2004
Volume 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):
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
05 New Opinion(s) from the Tennessee Court of Appeals
06 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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


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

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