Opinion FlashJuly 21, 2004Volume 10 — Number 139 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 MELVIN L. BOOKOUT, ET AL. v. KNOX COUNTY BOARD OF ZONING APPEALS, ET AL. Court:TCA Attorneys: Joshua J. Bond and Wayne A. Kline, Knoxville, Tennessee, for appellants, Melvin L. Bookout, Anthony P. and Debra L. Sliger, George E. Campbell, Fred F. and Wendy N. Foster, Carson L. and Evelyn Barger, Todd M. and Jennifer C. Olson, Donald F. and Donna A. Sharp and States View Homeowners Association. Robert C. McConkey III, Knoxville, Tennessee, attorney for appellees, Knox County Board of Zoning Appeals and Commission of Knox County. Arthur G. Seymour Jr. and Robert L. Kahn, attorneys for appellee, The Williams Company. John K. King, Knoxville, Tennessee, attorney for appellee, John R. Fiser. Judge: INMAN First Paragraph: This is a zoning case. The principal issue is whether a rezoning amendment must explicitly designate the maximum density approved with reference to ancillary documentation. http://www.tba.org/tba_files/TCA/bookoutmelvin.wpd AILEEN STANDIFER CRAFT v. CLAIBORNE COUNTY Court:TCA Attorneys: Michael G. Hatmaker, Jacksboro, Tennessee, for appellant, Aileen Standifer Craft. James D. Estep III, Tazewell, Tennessee, attorney for appellee, Claiborne County, Tennessee. Judge: INMAN First Paragraph: The initial judgment declared that Standifer Lane was a public road for one-tenth mile only. Sixteen (16) months after the judgment was entered, the County filed a Rule 62.02 motion alleging that "one- tenth mile" was a mistake because all concerned had agreed upon two-tenths mile. The judgment was amended to provide that Standifer Lane is a public road for a distance of 950 feet or to an existing driveway. The Rule 62.02 motion is untimely. http://www.tba.org/tba_files/TCA/craftaileens.wpd CRYSTAL JILL CUNNINGHAM v. JOHN W. GILL Court:TCA Attorneys: James Reed Brown, Byrdstown, Tennessee, for the appellant, Crystal Jill Cunningham. James Frank Wilson, Wartburg, Tennessee, for the appellee, John W. Gill. Judge: CLEMENT First Paragraph: Plaintiff filed a complaint seeking a reversion of Defendant's mineral interests in Plaintiff's land, alleging that Defendant had abandoned the interests. The trial court held that the mineral interests had not been abandoned because Defendant had made use of the mineral interests by paying taxes on the mineral interests. We affirm. http://www.tba.org/tba_files/TCA/cunninghcj.wpd SHERRI DYER KENDALL v. LANE COOK, M.D.
Court:TCA
Attorneys:
Samuel W. Brown and Arthur F. Knight, III, Knoxville, Tennessee, for
the Appellant, Sherri Dyer Kendall.
F. Laurens Brock, Anthony A. Jackson, and Justin M. Sveadas,
Chattanooga, Tennessee, for the Appellee, Lane Cook, M.D.
Judge: SWINEY
First Paragraph:
Sherri Dyer Kendall ("Plaintiff") sought treatment for bipolar
disorder from a psychiatrist, Lane Cook, M.D. ("Defendant").
Defendant prescribed Topamax for Plaintiff. Less than one week later,
Plaintiff began to experience loss of vision, severe headache, and
severe vomiting. Plaintiff was diagnosed with acute angle closure
glaucoma and underwent several surgical procedures to control or
correct the problem. When Defendant prescribed Topamax to Plaintiff,
it was unknown in the medical community that a potential side effect
of Topamax was acute angle closure glaucoma. That acute angle closure
glaucoma was a potential side effect was discovered later by the
medical community, and Plaintiff sued Defendant for medical
malpractice. At the close of Plaintiff's proof at trial, Defendant
moved for a directed verdict, which the Trial Court granted.
Plaintiff appeals. We affirm.
http://www.tba.org/tba_files/TCA/kendallsherrd.wpd
J.C. KING, ET AL. v. GATLINBURG SPORTSMAN'S CLUB, INC. Court:TCA Attorneys: John B. Waters III and Garrett P. Swartwood, Knoxville, Tennessee, for the appellant, Gatlinburg Sportsman's Club, Inc. Cynthia Richardson Wyrick and James L. Gass, Sevierville, Tennessee, for the appellees, J. C. King, Roy King, Kathy Huskey, Peggy Roberts, Mary King, and Gail Reagan. Judge: CLEMENT First Paragraph: Lessors, who are descendants of the original lessor, filed suit against the Gatlinburg Sportsman's Club, Inc., to declare that the real estate lease had been breached by the Club due to its failure to build a clubhouse as required by the lease. The Club argued that it built a clubhouse that satisfied the lease for the lease did not contain specifications for the type or size of clubhouse. It further argued that it was not in breach for the lessors had extended the deadline indefinitely to build a more substantial clubhouse. The Club also argued that the lessors' claim was barred by the six- year statute of limitations, equitable estoppel, waiver and laches and that the lessors' violated the Club's right of first refusal to purchase the property by not selling the property as the decedent's will directed and for making transfers of partial interests in the property amongst the beneficiaries and descendants of the original lessor. The trial court ruled that the parties mutually suspended the deadline by which the Club was to build a clubhouse, that the Club failed to build a clubhouse, that the Club was in material breach and, therefore, the lease was terminated. We reverse in part finding that the parties did not mutually suspend the obligation or deadline to build a clubhouse, that the completion date for the clubhouse was June 30, 1990, and that the lessors did not file suit until May 5, 2000; therefore, the lessors are barred by the six-year statute of limitations. We affirm the trial court's ruling that the lessors did not violate the Club's right of first refusal to purchase the property, finding that the inter-family transfers did not violate the Club's right of first refusal. http://www.tba.org/tba_files/TCA/kingjc.wpd BARBARA D. LOWE, ET AL. v. RUTH C. CHENEVERT a/k/a RUTH ROBERTSON Court:TCA Attorneys: Rick L. Moore, Tullahoma, TN, for Appellants Walter F. Nichols, Manchester, TN, for Appellee Judge: HIGHERS First Paragraph: This case arises from an automobile accident in which Ms. Lowe was injured by an uninsured motorist. Ms. Lowe and her husband filed suit against the motorist and were awarded a total of $25,000 in damages, which they sought to have satisfied by Tennessee Farmer's Mutual Insurance Company under the terms of their uninsured motorist insurance policy. Tennessee Farmer's refused to pay the claim, asserting that Ms. Lowe had already signed a complete release in exchange for a settlement in excess of $5,000. In the ensuing litigation, the trial court granted Tennessee Farmer's motion for summary judgment, finding that Ms. Lowe had, indeed, signed a release as part of a settlement with Tennessee Farmer's. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings. http://www.tba.org/tba_files/TCA/lowebd.wpd LINDA OTTINGER, ET AL. v. SHELLY EVANS OTTINGER
WITH CONCURRING OPINION
Court:TCA
Attorneys:
Marvin Berke, Chattanooga, Tennessee, for the Appellant, Shelly Evans
Ottinger.
Sherry B. Paty and Randall D. Larramore, Chattanooga, Tennessee, for
the Appellees, Linda Ottinger and Marion Ottinger.
Judge: SWINEY
First Paragraph:
Linda Ottinger and Marion Ottinger ("Plaintiffs") are the paternal
grandparents of H.O. ("the Child"). The Child's father died in 2000.
Plaintiffs sought visitation with the Child. This visitation was
opposed by the Child's mother, Shelly Evans Ottinger ("Defendant").
Plaintiffs filed a petition to obtain grandparent visitation under
Tenn. Code Ann. S 36-6-306. After trial, the Trial Court held, inter
alia, that the Child has had a significant existing relationship with
the Plaintiffs and the loss of that relationship presents the danger
of direct and substantial harm to the Child. The Trial Court granted
Plaintiffs visitation. Defendant appeals. We reverse.
http://www.tba.org/tba_files/TCA/ottingerlin_opn.wpd
CONCURRING OPINION
http://www.tba.org/tba_files/TCA/ottingerlin_con.wpd
SHARON PULLUM ET AL. v. RICHARD L. ROBINETTE Court:TCA Attorneys: Wayne L. Robbins, Jr., Mary Taylor Gallagher, A. Scott Derrick and W. Scott Sims, Nashville, Tennessee, for the appellant, Richard L. Robinette, D.M.D. M. Andrew Hoover, Andrew N. Grams and Mary A. Gabbett, Pulaski, Tennessee, for the appellees, Sharon Pullum and Robert Pullum. Judge: COTTRELL First Paragraph: The plaintiff suffered numbness and partial facial paralysis after a root canal. She subsequently filed a malpractice suit against the dentist who performed the procedure. The defendant filed a motion in limine seeking to exclude all testimony by the plaintiff's expert witness on the ground that he did not meet the requirements of Tenn. Code Ann. S 29-26-115. The trial court denied the motion and, after hearing testimony on his qualifications at trial, allowed the expert to testify in front of the jury, which returned a $150,000 verdict for the plaintiff. The defendant argues on appeal that the trial court erred by allowing the expert to testify, and that we should accordingly reverse the verdict and judgment. We do not agree, and we affirm the judgment of the trial court approving the verdict. http://www.tba.org/tba_files/TCA/pullumshar.wpd STATE OF TENNESSEE v. ADAM BETTS Court:TCCA Attorneys: Brett Stein and Robert Chamoun, Memphis, Tennessee, for the appellant, Adams Betts. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Goodman and Mike Davis, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Adam Betts, was convicted by a jury of first degree premeditated murder. In this direct appeal, he argues that: 1) the evidence is insufficient to support his conviction; 2) the trial court erred by admitting a photograph of the victim; and 3) the trial court erred by denying the Defendant's request for special jury instructions. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bettsadam.wpd STATE OF TENNESSEE v. BEN THOMAS DOWLEN Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Ben Thomas Dowlen. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; John Wesley Carnery, Jr., District Attorney General; and C. Daniel Brollier, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: In this action which originated as a post-conviction proceeding seeking the grant of both a delayed appeal and a new trial due to ineffective assistance of counsel, Ben Thomas Dowlen appeals. We affirm the lower court's ruling on the sentencing issue raised in the delayed appeal, and we likewise affirm the lower court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/dowlenbenthomas.wpd STEVEN GASS v. STATE OF TENNESSEE CORRECTED OPINION WITH MEMO Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Ben Thomas Dowlen. Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney General; John Wesley Carnery, Jr., District Attorney General; and C. Daniel Brollier, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Steven Gass, was convicted by a jury in the Rutherford County Circuit Court of rape of a child, aggravated sexual battery, and attempted rape of a child. The petitioner received a total effective sentence of thirty-two years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, citing several instances of ineffective assistance of counsel. After a hearing, the post-conviction court denied the petition, and the petitioner timely appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/gasss.wpd CORRECTION MEMO http://www.tba.org/tba_files/TCCA/gasss_mem.wpd STATE OF TENNESSEE v. HAROLD DAVID HANEY, SR.
Court:TCCA
Attorneys:
Robert S. Peters, Winchester, Tennessee, for the appellant, Harold
David Haney, Sr.
Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and William B. Copeland, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
Following a bench trial, the defendant, Harold David Haney, Sr., was
convicted of violation of a motor vehicle habitual offender ("MVHO")
order and DUI, second offense. He was sentenced as a Range I,
standard offender to two years for the MVHO violation and eleven
months, twenty-nine days for the DUI conviction, to be served
concurrently in the Department of Correction. In addition, he was
fined a total of $1100 and his driver's license was revoked for two
years. On appeal, he argues that the State failed to establish venue.
After review, we affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/haneyharoldd.wpd
TONY JELKS, a/k/a TONIE JELKS v. STATE OF TENNESSEE Court:TCCA Attorneys: James S. Haywood, Jr., Brownsville, Tennessee, for the appellant, Tony Jelks. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Garry G. Brown, District Attorney General; and Gerald Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Tony Jelks, pled guilty in the Haywood County Circuit Court to aggravated burglary and aggravated assault. He received a total effective sentence of ten years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post- conviction relief, alleging that he received the ineffective assistance of counsel and that his pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the petitioner timely appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/jelkstony.wpd BERNARD KEYS v. STATE OF TENNESSEE Court:TCCA Attorneys: John H. Parker, II, Memphis, Tennessee, for the appellant, Bernard Keys. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; Emily Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Shelby County jury convicted the Petitioner, Bernard Keys, of aggravated burglary and evading arrest. The trial court sentenced the Petitioner to fifteen years in prison for the aggravated burglary conviction, and eleven months and twenty-nine days for the evading arrest conviction, and ordered that the sentences run consecutively. The Petitioner filed a petition for post-conviction relief, alleging that his attorney was ineffective for failing to investigate his case and prepare properly for trial. Following a hearing, the post-conviction court denied the petition. Finding no error, we affirm the post-conviction court's judgment. http://www.tba.org/tba_files/TCCA/keysber.wpd MABLE LONGMIRE v. STATE OF TENNESSEE Court:TCCA Attorneys: R. Price Harris, Memphis, Tennessee, for the appellant, Mable Longmire. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Steve Jones, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Mable Longmire, was convicted by a jury of first degree premeditated murder. Her conviction was affirmed on direct appeal. See State v. Mabel J. Longmire, No. W1999-00216- CCA-R3-CD, 2001 WL 128561 (Tenn. Crim. App., Feb. 15, 2001, Jackson). The Defendant subsequently filed for post-conviction relief, alleging ineffective assistance of counsel. After an evidentiary hearing, the trial court denied relief and this appeal followed. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/longmiremab.wpd RANDALL MILLS v. STATE OF TENNESSEE Court:TCCA Attorneys: N. Andy Myrick, Jr., for the appellant, Randall Mills. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee Judge: WADE First Paragraph: The petitioner, Randall Mills, appeals the denial of post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/millsran.wpd RANDALL WATSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Brett Stein, Memphis, Tennessee, for the appellant, Randall Watson. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Emily Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Randall Watson, pled guilty to second degree murder. He subsequently filed a petition for habeas corpus relief. After considering the Defendant's petition as presented and also as a petition for post-conviction relief, the trial court dismissed the Defendant's pleading. This appeal followed. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/watsonran.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! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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