Opinion Flash

October 21, 2004
Volume 10 — Number 204

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
03 New Opinion(s) from the Tennessee Court of Appeals
02 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


ANTHONY AND MELINDA K. COLSTON v. CITIZENS TRI-COUNTY BANK

Court:TCA

Attorneys:                          

M. Keith Davis of Dunlap, for Appellant, Citizens Tri-County Bank

Paul S. Weidlich of Chattanooga, for Appellees, Anthony and Melinda K.
Colston

Judge: CRAWFORD

First Paragraph:

Following Appellees' default on promissory note secured by a deed of
trust, Appellant Bank placed a hold on Appellees' accounts and
instigated foreclosure proceedings.  Despite the fact that Appellees
cured the default, Appellant Bank continued its hold on accounts and
failed to stop publication of foreclosure notice.  Although Appellees
failed to prove damages, trial court found Bank negligent and awarded
nominal damages to Appellees.  We reverse.

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

SARAH DICK v. COMMISSIONER OF THE TENNESSEE DEPARTMENT OF CHILDREN'S
SERVICES

Court:TCA

Attorneys:                          

Kevin W. Weaver, Cordova, Tennessee, for the appellant, Sarah Dick.

Paul G. Summers, Attorney General and Reporter; and Juan G.
Villasenor, for the appellee, Commissioner of the Tennessee Department
of Children's Services.

Judge: SUSANO

First Paragraph:

Sarah Dick filed a petition in the trial court challenging the
decision of the Tennessee Department of Childrens Services ("DCS"),
pursuant to which DCS terminated the monthly adoption assistance
payments she had been receiving for her adopted son, Christopher.  The
decision by DCS also seeks to recoup benefits previously paid to Ms.
Dick, which DCS contends were paid to her in error.  Ms. Dick
questions the decision of DCS, contending that the department's policy
- which requires that adoption assistance payments be reduced in the
event the recipient is also receiving Social Security Title II
benefits ("Title II benefits") - is inconsistent with the federal
scheme establishing the adoption assistance program for special needs
children.  The trial court affirmed DCS's decision.  Ms. Dick appeals.
 We affirm.

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

BOWDOIN GRAYSON SMITH v. GINGER LEE MARENCHIN SMITH

Court:TCA

Attorneys:                          

James L. Weatherly, Jr., Nashville, Tennessee, for the Appellant,
Ginger Lee Marenchin Smith.

Clark Lee Shaw, Nashville, Tennessee, for the Appellee, Bowdoin
Grayson Smith

Judge: SWINEY

First Paragraph:

Bowdoin Grayson Smith ("Father") and Ginger Lee Marenchin Smith
("Mother") were divorced in 1996.  Mother was granted sole custody of
the parties' four minor children, and Father was granted visitation
and ordered to pay child support.  Two years later, Father filed a
petition for joint custody and later a petition to modify child
support.  After a hearing, the Trial Court found that Father had
failed to prove a material change in circumstances and denied the
petition for joint custody; modified the visitation schedule; granted
Father telephone and e-mail contact with the children at specified
times; found that Mother had proved monthly expenses of $7,500 were
reasonably necessary to provide for the support and needs of the
children, but that Father would be responsible for paying only $5,000
in monthly child support with Mother responsible for the remainder;
and granted Mother attorney's fees.  Mother appeals claiming the Trial
Court erred in finding that only $7,500 per month was reasonably
necessary for the support of the children and in holding that Father
would be responsible for only $5,000 of these expenses.  Father raises
additional issues claiming the Trial Court erred in dismissing the
petition for joint custody and in awarding Mother attorney's fees.  We
affirm, in part; modify, in part; vacate, in part; and remand solely
for the collection of the costs below.

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

COREY CARTWRIGHT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Corey D. Cartwright, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Corey Cartwright, appeals as of right from the
dismissal of his petition for post- conviction relief by the Davidson
County Criminal Court.  He seeks relief from his Class C felony
conviction for possession of less than one-half gram of cocaine with
intent to sell and resulting sentence of ten years in confinement.  He
contends that the post-conviction court erred in summarily dismissing
his petition without appointing counsel, that he received the
ineffective assistance of counsel, and that the trial court erred in
sentencing.  We affirm the trial court.

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

STATE OF TENNESSEE v. GARNER DWIGHT PADGETT

Court:TCCA

Attorneys:                          

David Brady, District Public Defender, and John B. Nisbet, III,
Assistant Public Defender, for the appellant, Garner Dwight Padgett.

Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant,
Assistant Attorney General; William E. Gibson, District Attorney
General; and David A Patterson, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Garner Dwight Padgett, was convicted of first degree
premeditated murder.  The trial court imposed a sentence of life
imprisonment.  In this appeal of right, the defendant contends that
the trial court erred by failing to grant a mistrial after two jurors
observed him in custody, by failing to instruct on the lesser included
offenses of aggravated assault and assault, and by failing to suppress
his confession.  He also challenges the sufficiency of the evidence
and argues that there was prosecutorial misconduct during closing
argument.  The judgment of the trial court is affirmed.

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

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