August 16, 2001
Volume 7 — Number 150

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink.

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
06 New Opinion(s) from the Tennessee Court of Appeals
06 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

ALLAN RUSSELL BURKE vs. MAUREEN JO BURKE

Court:TCA

Attorneys:

Michael W. Binkley, Nashville, Tennessee, for the appellant, Maureen
Jo Burke.

Gregory D. Smith, Nashville, Tennessee, for the appellee, Allan
Russell Burke.                     

Judge: ASH

First Paragraph:

This is a divorce and custody case.  Following a bench trial conducted
on November 9, 1999, the trial court took the parties' issues under
advisement. On December 17, 1999, by Order of Divorce and Custody, the
trial court granted a divorce to Ms. Burke based upon inappropriate
marital conduct.  The trial court further ordered the parents to have
split custody of their two minor children with Mr. Burke designated as
the primary residential custodian.  Ms. Burke was awarded $1,367 in
child support and $1,200 in rehabilitative alimony per month for three
years.  The trial court awarded Ms. Burke $10,000 attorney's fees as
alimony in solido. Further the trial court ordered both parents to
install an internet-based communication system in each home. In
addition, the trial court found the entire equity in the Burke's
residence was marital property. Ms. Burke appealed the Order of the
trial court arguing that the trial court's order of split custody
should not stand.  Ms. Burke also contends that the trial court erred
in ordering Mr. Burke to install the internet-based communication
system on her computer and whether the trial court abused its
discretion in failing to award her attorney's fees in the amount
requested.  By separate issue, Mr. Burke challenges the split custody
determination.  He also argues that the division of the marital
property should be modified and the award of rehabilitative alimony
and attorney's fees should be reversed.

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



FLOYD CAMPBELL v. CORRECTIONS CORPORATION OF AMERICA Court:TCA Attorneys: Floyd Campbell, Pro Se, Clifton, Tennessee. Tom Anderson, Jackson, Tennessee, for the appellee, Corrections Corporation of America. Judge: COTTRELL First Paragraph: This is an appeal by an inmate in a prison operated by Corrections Corporation of America (CCA). His claim stems from the monetary loss he received as a result, he alleges, of CCA employee(s) adding an unauthorized name and number to Mr. Campbell's call list which resulted in unauthorized charges. The court below dismissed Mr. Campbell's complaint on the grounds that the complaint did not allege a cause of action against CCA. We disagree. Mr. Campbell did sufficiently allege a cause of action against CCA for the negligence of its employee(s) in violating prison policies and adding an eleventh name and number to his call list without his permission or authorization. Further, CCA may be held vicariously liable for the negligent acts of its employees and, therefore, is a proper defendant. http://www.tba.org/tba_files/TCA/campbelltloyd.wpd
ROCKY LEE COKER v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Rocky Lee Coker, pro se, Only, Tennessee. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Pamela S. Lorch, Assistant Attorney General, for the appellee, Tennessee Department of Correction. Judge: COTTRELL First Paragraph: An inmate in the custody of the Tennessee Department of Correction filed a petition for a declaratory judgment, claiming that his sentence reduction credits had been improperly calculated and that his "safety valve" release date had been wrongly cancelled. The trial court granted the state's motion for summary judgment and the petitioner appeals. We affirm. http://www.tba.org/tba_files/TCA/cokerrocky.wpd
LINDA GREEN, M.D., et al. v. UNITED STATES AUTOMOBILE ASSOCIATION, et al. Court:TCA Attorneys: Celeste H. Herbert and W. Tyler Chastain, Knoxville, Tennessee, for the Appellants, Linda Green, M.D., and Steve Ferguson, M.D. James E. Wagner, Knoxville, Tennessee, for the Appellee, United Services Automobile Association. Judge: SWINEY First Paragraph: Linda Green, M.D., and Steve Ferguson, M.D. ("Plaintiffs"), who are married, filed a Complaint for Declaratory Judgment ("Complaint") against their automobile insurance carrier, United States Automobile Association, or USAA, regarding a dispute over the terms of their insurance policy ("Policy"). Plaintiff Green claimed coverage under their Policy's uninsured/underinsured motorist liability section for her physical injuries, medical expenses, and loss of income resulting from an automobile accident. Plaintiff Ferguson claimed coverage for loss of consortium. Defendant contends that the Policy limits Plaintiff Ferguson's loss of consortium claim to the $300,000 each person coverage already extended to Plaintiff Green. After Plaintiffs filed suit disputing this interpretation of the Policy, Defendant filed a Motion for Summary Judgment which was granted by the Trial Court. Plaintiffs appeal. We affirm. http://www.tba.org/tba_files/TCA/greenlinda.wpd
MARION COUNTY BOARD OF EDUCATION v. MARION COUNTY EDUCATION ASSOCIATION Court:TCA Attorneys: William Henry Haile, Nashville, Tennessee, for the appellant, Marion County Board of Education. Richard Lee Colbert, Nashville, Tennessee, for the appellee, Marion County Education Association. Judge: COTTRELL First Paragraph: This is an appeal from a declaratory judgment action on behalf of the Marion County School Board seeking a determination as to whether or not the decision by the director of schools to transfer a principal to a teaching position was subject to binding arbitration under a collective bargaining agreement in effect between the school board and the Marion County Education Association. A cross-claim was filed by the Association requesting an injunction to force the Board to arbitration, and both parties filed motions for summary judgment. The trial court granted the Association's motion for summary judgment and mandated the Board to go to final and binding arbitration under the agreement. We reverse the decision of the trial court and hold that the statutory authority of the director of schools to hire and select principals may not be limited by a collective bargaining agreement and that such an agreement cannot authorize an arbitrator to determine who will be principal at a particular school. http://www.tba.org/tba_files/TCA/marioncobdofed.wpd
JANICE F. ROBERTS v. STEVIE D. DAVIS, ET AL. Court:TCA Attorneys: Bill Hodde and Bruce Kessler, Madison, Tennessee, for the appellant, Janice F. Roberts. Jonathan Cole and Sandi L. Pack, Nashville, Tennessee, for the appellees, Stevie D. Davis and Food Lion, Inc. Judge: ASH First Paragraph: On May 17, 1995, Plaintiff Janice Roberts and her husband Max Nichols were involved in an automobile accident with the Defendant Food Lion, Inc. and their driver Stevie D. Davis. The accident occurred on Interstate 24. Plaintiff Roberts sued the Defendants in the Circuit Court of Davidson County seeking a recovery of $270,000 for injuries and various amounts of damages she sustained as a result of the accident. A bench trial was held on May 1, 2000. On May 4, 2000 the trial court by Memorandum and Order found that Plaintiff Roberts was entitled to recover $25,000 for reasonable and necessary medical expenses, pain and suffering and loss of enjoyment of life, and for some diminution in earning capacity. On June 2, 2000 Plaintiff Roberts filed a motion for new trial, which was subsequently denied by the trial court on July 7, 2000. This appeal followed. Plaintiff Roberts insists that the trial court erred in not granting a motion for continuance; not allowing the deposition testimony of a witness; in its award of damages; and by not allocating monies for future medical expenses. http://www.tba.org/tba_files/TCA/robertsjf.wpd
JONATHAN DAVIS v. STATE OF TENNESSEE Court:TCCA Attorneys: Paul J. Bruno, Nashville, Tennessee, for the appellant, Jonathan Davis. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Mike Bottoms, District Attorney General; and Robert Sanders, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Jonathan Davis, was convicted in the Maury County Circuit Court of two counts of felony murder and one count of attempted aggravated robbery. He received consecutive sentences of life imprisonment for the felony murder convictions and three years imprisonment for the attempted aggravated robbery conviction. On direct appeal, this court affirmed the petitioner's convictions and sentences. See William Edward Watkins, No. 01C01-9701-CC-00004, 1997 WL 766462 (Tenn. Crim. App. at Nashville, December 12, 1997), perm.to appeal denied, (Tenn. 1998). Subsequently, the petitioner filed a petition for post-conviction relief alleging the ineffective assistance of both trial and appellate counsel. On appeal, the petitioner contests the post-conviction court's denial of his petition for relief. 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/davisjon.wpd
STATE OF TENNESSEE v. GALEN DEAN EIDSON Court:TCCA Attorneys: Richard McGee and Wendy S. Tucker, Nashville, Tennessee, for the Appellant, Galen Dean Eidson. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Patricia C. Kussmann, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Galen Dean Eidson, was indicted by a Sumner County Grand Jury for second degree murder. Pursuant to the terms of a plea agreement, Eidson pled guilty to the reduced offense of reckless homicide. Following a sentencing hearing, the trial court sentenced Eidson to four years confinement in the Department of Correction. On appeal, Eidson raises the following sentencing issues for our review: (1) Whether the length of the sentence imposed by the trial court was excessive; and (2) whether the trial court erred in sentencing him to total confinement in the Department of Correction. Upon de novo review, we find that a total confinement sentence of four years is justified in this case. Accordingly, the judgment of the Sumner County Criminal Court is affirmed. http://www.tba.org/tba_files/TCCA/eidsongd.wpd
STATE OF TENNESSEE v. PAUL R. PEARCY Court:TCCA Attorneys: Mike Mosier and Steve Beal, Attorneys for Defendant, Paul R. Pearcy. Paul G. Summers, Attorney General, John H. Bledsoe, Assistant Attorney General, G. Robert Radford, District Attorney General, and Jerry W. Wallace, Assistant District Attorney General, Attorneys for the State of Tennessee. Judge: CLARK First Paragraph: The defendant pled guilty to the Class E felony offense of possession of three and one-half pounds of marijuana with intent to manufacture, deliver or sell, and to the Class A misdemeanor of possession of unlawful drug paraphernalia. He now appeals his two-year sentence to the Department of Correction. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/pearcyp.wpd
STATE OF TENNESSEE v. DOYLE W. PUGH Court:TCCA Attorneys: Cynthia S. Lyons, Cookeville, Tennessee, for the Appellant, Doyle W. Pugh. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; William Edward Gibson, District Attorney General; and Anthony J. Craighead, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: Pursuant to a plea agreement, the Defendant pled guilty to two misdemeanor counts of fraudulent use of a credit card and was placed on judicial diversion. Thereafter, a warrant was filed in which the Defendant's probation officer alleged that the Defendant failed to report as directed and failed to pay fines and court costs in a timely manner. After a hearing on the warrant, the trial court revoked the Defendant's judicial diversion and entered a judgment against the Defendant, requiring him to serve eleven months and twenty-nine days on each count, with the sentences to run concurrently. The Defendant now appeals, arguing that the trial court abused its discretion by sentencing the Defendant to eleven months and twenty-nine days incarceration rather than eleven months and twenty-nine days probation. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/pughdw.wpd
STATE OF TENNESSEE v. EDWIN MILTON SOCALL Court:TCCA Attorneys: Russel A. Church, Assistant Public Defender, Clarksville, Tennessee, for the Appellant, Edwin Milton Socall. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Patricia C. Kussmann, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur Bieber and Jamie Crenshaw, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Edwin Milton Socall, was indicted by a Montgomery County Grand Jury for driving under the influence (DUI), reckless driving, violation of the implied consent law, and driving on a revoked license (DORL). Following a bench trial, Socall was found guilty of first offense DUI and second offense DORL. He was sentenced to eleven months, twenty-nine days, with all but thirty days suspended, for DUI, and eleven months, twenty-nine days, all suspended, for DORL, second offense. At the bench trial, Socall was represented by retained counsel; however, no court reporter was employed to transcribe the proceedings. Following his conviction, Socall requested that he be found indigent for purposes of appeal and requested appointed appellate counsel. The trial court granted his request and appointed the public defender's office. Because the proceedings below were not transcribed, a statement of evidence pursuant to Tenn. R. App. P. 24(c) was prepared. On appeal, three issues are presented for our review: (1) Whether "the failure to preserve evidence through the use of a court reporter or tape recording" deprived Socall of an effective appeal; (2) whether the evidence was sufficient to support the convictions of first offense DUI and second offense DORL; and (3) whether the trial court erred by ordering Socall to serve thirty days in confinement. After review, we find issue (1) is without merit and issue (3) is waived. Moreover, we hold the evidence is sufficient to support Socall's convictions for DUI and DORL, second offense. Accordingly, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/socalledwinm.wpd
STATE OF TENNESSEE v. SHANE WENDELL YANKEE Court:TCCA Attorneys: Shane Wendell Yankee, Mooresburg, Tennessee, Pro Se. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; and C. Berkeley Bell, District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Shane Wendell Yankee, appeals the trial court's summary dismissal of his motion to correct an illegal judgment. The issues presented for review are whether the appeal is permissible under Rule 3 of the Tennessee Rules of Appellate Procedure and, if so, whether the denial of relief was proper. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/yankeesw.wpd

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