Opinion Flash

March 20, 2002
Volume 8 — Number 051

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Court of Appeals
05 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


In Re: ADOPTION OF SUPREME COURT RULE 36 - ESTABLISHING STANDARD PAPER
SIZE FOR TENNESSEE STATE COURTS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/rule36.wpd

MELVIN BONDS, JR., et al. v. MIKE EMERSON, et al.
MIKE EMERSON, ET AL v. MELVIN BONDS, JR., ET AL

Court:TCA

Attorneys:

Larry S. Banks, Brownsville, For Appellants, Mike Emerson, Vickie
Emerson, Erica D. Emerson T. Verner Smith, Jackson, For Appellees,
Melvin Bonds, Jr. and Virginia Bonds James I. Pentecost, Jackson, for
Appellee, Haywood County, Tennessee                        

Judge: CRAWFORD

First Paragraph:

This is a personal injury case arising from an automobile accident
involving a sixteen-year old driver and a police officer.  Officer,
who was responding to a backup call, was allegedly driving 99 m.p.h.
when driver pulled out of driveway.  In a bench trial, the trial court
found driver 80% at a fault for the accident and the officer 20% at
fault.  Driver has appealed.  Judgment vacated and remanded.

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

JERRY HUDDLESTON v. RAMSDSALE O'DENEAL

Court:TCA

Attorneys:       

Jerry Huddleston, Pro Se

Ramsdale O'Deneal, Pro Se                   

Judge: CRAWFORD

First Paragraph:

Plaintiff sued defendant for legal malpractice seeking compensatory
and punitive damages.  The Circuit Court of Madison County, Tennessee
found defendant liable to the plaintiff for compensatory damages in
the amount of $100.00, but dismissed plaintiff's claim for punitive
damages.  Plaintiff has appealed.  We affirm.

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

MARGARET PARKER v. THE KROGER COMPANY

Court:TCA

Attorneys:                          

Marshall L. Gerber, Memphis, For Appellant, Margaret Parker

Minton P. Mayer, Memphis, For Appellee, The Kroger Company

Judge: CRAWFORD

First Paragraph:

Plaintiff, a Tennessee resident, slipped and fell in a Kroger store in
Texas.  Plaintiff sued defendant in Shelby County Circuit Court, and
the parties agreed that Texas law was applicable.  The trial court
granted summary judgment for defendant, and plaintiff appeals.  We
reverse and remand.

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

UNION PLANTERS NATIONAL BANK v. AMERICAN HOME ASSURANCE COMPANY

Court:TCA

Attorneys:

John J. Mulrooney, Memphis, Tennessee, for appellant Union Planters
National Bank.

Richard Glassman and R. Douglas Hanson, Memphis, Tennessee, for the
appellee American Home Assurance Company.

Judge: LILLARD

First Paragraph:

This is an insurance case dealing with a standard loss-payee clause.
On September 1, 1980, the appellee insurance company issued an
aircraft hull and liability insurance policy to a commercial airline. 
The policy had an attached breach of warranty endorsement specifying
the appellant bank as the loss payee for a particular airplane.  In
November 1980, the airline cancelled its insurance coverage for the
airplane without giving notice to the bank.  In December 1980, the
airplane was found in Puerto Rico and seized by the United States
government as an instrument of drug trafficking.  When the airplane
was seized, the seats and log books were missing.  The bank sought
recovery for the loss to the airplane under the breach of warranty
endorsement attached to the original insurance policy.  The insurance
company denied coverage, and the bank sued the insurance company in
the trial court below.  The trial court granted summary judgment in
favor of the insurance company.  The bank now appeals.  We reverse,
finding that because notice of the cancellation of the insurance
policy was not given to the loss-payee bank, the cancellation was not
effective as to the loss-payee.

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

TIM WALTON v. SHARON (WALTON) CAMP

Court:TCA

Attorneys:  

Jeffrey Jones, Memphis, For Appellant, Sharon (Walton)Camp  

James Stephen King, Memphis, For Appellee, Tim Walton                        

Judge: CRAWFORD

First Paragraph:

This is an appeal of an order modifying child support.  Mother filed a
petition seeking, inter alia, an increase in child support based upon
income from father's home appraisal business, which he receives in
addition to his regular salary from his full-time employment.  Mother
alleged that father entered into a partnership with his new wife in
order to shelter income.  The trial court found that, by the time
mother filed her petition for an increase in support, a legitimate
partnership existed between father and his new wife.  The court
ordered an increase in child support based upon father's projected
share in the partnership, but taking into consideration the child of
father's new marriage.  Mother has appealed.  We affirm in part and
reverse in part.

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

STATE OF TENNESSEE v. TOMMY G. BENHAM

Court:TCCA

Attorneys:

Jodie A. Bell (at trial) and Jeffrey A. DeVasher (on appeal),
Assistant Public Defenders, for the appellant, Tommy G. Benham.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; and Eric Herbert, Assistant District
Attorney General, for the appellee, the State of Tennessee.                        

Judge: WADE

First Paragraph:

The defendant, Tommy G. Benham, was convicted of two counts of
attempted aggravated robbery, a Class C felony.  The trial court
sentenced the defendant as a Range III, persistent offender to eleven
years on each count, to be served concurrently.  In this appeal of
right, the defendant argues that the state failed to provide notice
that it would seek enhanced punishment, as required by Tennessee Code
Annotated section 40-35-202(a).  The judgments of the trial court are
affirmed.

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

DISSENTING: Smith

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

STATE OF TENNESSEE v. REYNALDO T. COLLAZO

Court:TCCA

Attorneys:

John E. Herbison, Nashville, Tennessee, for the appellant, Reynaldo T.
Collazo.

Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; T. Michael Bottoms, District Attorney
General, for the appellee, the State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Reynaldo T. Collazo, entered a plea of nolo contendere
to one count of failure to obey a police officer, a class C
misdemeanor.  The trial court placed the defendant on judicial
diversion.  See Tenn. Code Ann. S 40-35-313(a)(1)(A).  In this appeal,
the defendant presents a certified question of law pursuant to
Tennessee Rule of Criminal Procedure 37(b)(2)(i).  Because the
defendant was placed on judicial diversion, he has no appeal as of
right under Tennessee Rule of Appellate Procedure 3.  This court
elects to treat the improperly filed Rule 3 appeal as an extraordinary
appeal pursuant to Tennessee Rule of Appellate Procedure 10.  The
judgment of the trial court denying the defendant's motion to suppress
is affirmed.  Because, however, the trial court failed to make a
finding of guilt before placing the defendant on judicial diversion,
the cause is remanded.

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

STATE OF TENNESSEE v. ALDA MICHELLE PAETZ

Court:TCCA

Attorneys:

Jefre S. Goldtrap, Nashville, Tennessee, for the Appellant, Alda
Michelle Paetz.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Dan M. Alsobrooks, District Attorney
General; and Robert S. Wilson, Assistant District Attorney General,
for the Appellee, State of Tennessee.                         

Judge: WEDEMEYER

First Paragraph:

The Defendant entered a plea of nolo contendere to vehicular homicide
by reckless driving.  Pursuant to her plea agreement, the Defendant
received a four-year sentence, with the manner of service of the
sentence to be determined by the trial court.  Following a sentencing
hearing, the trial court ordered that the Defendant serve her entire
four-year sentence in the Tennessee Department of Correction.  The
Defendant now appeals, arguing that she should have received some form
of alternative sentencing.  We conclude that the record supports the
trial court's denial of alternative sentencing and therefore affirm
the judgment of the trial court.

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

STATE OF TENNESSEE v. CAROLYN WHEELER

Court:TCCA

Attorneys:

Kenneth Quillen, Nashville, Tennessee, for appellant, Carolyn Wheeler.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Jason M. Lawless, Assistant District Attorney, for
appellee, State of Tennessee.                        

Judge: SMITH

First Paragraph:

The appellant was sentenced on November 24, 1997 for two convictions,
theft of property valued in excess of $10,000 and forgery.  Two
concurrent three year sentences were imposed with incarceration for
one year followed by two years of community corrections.  Restitution
was not ordered until the appellant's sentenced had expired, and she
brings this appeal maintaining that the trial court lacked
jurisdiction to impose restitution following the expiration of her
sentence.  The State concedes that the restitution order in this case
was entered following the expiration of the appellant's sentence and
is therefore in contravention of Tennessee Code Annotation section
40-35- 304(g)(2).  We agree and reverse the order of restitution
entered in this case.

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

STATE OF TENNESSEE v. CAROLYN A. WOOSTER

Court:TCCA

Attorneys:

John Edward Herbison, Nashville, Tennessee, for the appellant, Carolyn
A. Wooster.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan,
Assistant Attorney General; and Suzanne Lockert, Assistant District
Attorney General, for the appellee, the State of Tennessee.                       

Judge: WADE

First Paragraph:

The defendant, Carolyn A. Wooster, was convicted of aggravated child
abuse and neglect, a Class A felony.  The trial court imposed a
sentence of 15 years.  In this appeal, the defendant asserts that (1)
the evidence was insufficient to support her conviction and (2) the
trial court's failure to give an augmented unanimity instruction was
reversible error.  The judgment of the trial court is affirmed.

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

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