Opinion Flash

May 23, 2002
Volume 8 — Number 91

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):
 
01 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
07 New Opinion(s) from the Tennessee Court of Appeals
01 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


REPOST: STATE OF TENNESSEE  v.  WILLIAM R. STEVENS 

Court:TSC

Attorneys:

Brock Mehler and F. Michie Gibson, Nashville, Tennessee, for the
appellant, William R. Stevens. 

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Jennifer L. Smith, Assistant Attorney General,
Nashville, Tennessee, for the appellee, State of Tennessee.                        

Judge: BARKER

First Paragraph:

The defendant was found guilty by a Davidson County jury of hiring
eighteen year-old Corey Milliken to murder his wife, Sandra Jean
Stevens, and his mother-in-law, Myrtle Wilson.  He was also convicted
of especially aggravated robbery.  The jury found two aggravating
circumstances:  (1) The defendant was previously convicted of one or
more felonies, other than the present charge, whose statutory elements
involve the use of violence to the person, Tenn. Code Ann. S 39-13-
204(i)(2); and (2) the defendant employed another to commit the
murders for the promise of remuneration, Tenn. Code Ann. S
39-13-204(i)(4).  Finding that the aggravating circumstances
outweighed the mitigating circumstances beyond a reasonable doubt, the
jury sentenced the defendant to death for the murder of each victim. 
On the especially aggravated robbery conviction, the court sentenced
the defendant to life without parole as a repeat violent offender with
the sentence to run consecutively to both death sentences.  The Court
of Criminal Appeals affirmed the defendant's convictions and sentences
of death.  On automatic appeal to this Court, we affirm and hold as
follows:  (1) the trial court did not abuse its discretion in limiting
the testimony of defendant's crime scene expert to his analysis of the
evidence at the crime scene; (2) the trial court's exclusion of the
testimony of Corey Milliken's foster father regarding Milliken's prior
bad acts constituted harmless error; (3) the trial court applied
hearsay and other evidentiary rulings in an unbiased and even-handed
manner; and (4) the sentence of death is not disproportionate to the
sentence imposed in similar cases.  For all other issues not
specifically discussed in this opinion, we agree with and affirm the
judgment of the Court of Criminal Appeals.

http://www.tba.org/tba_files/TSC/stevensw_opn.wpd

REPOST: STATE OF TENNESSEE  v.  WILLIAM R. STEVENS 

Court:TSC

BIRCH CONCURRING AND DISSENTING

http://www.tba.org/tba_files/TSC/stevensw_dis.wpd

IN RE: ADOPTION OF A.B.K.

Court:TCA

Attorneys: 

Janie Lindamood, Johnson City, Tennessee, for the appellant, W.T.D.,
Jr.

James F. Taylor, Mt. Carmel, Tennessee, for the appellee, W.D.B.

Judge: SUSANO

First Paragraph:

Presented with competing petitions for adoption, the trial court
terminated the parental rights of W.T.D., Jr. ("the biological
father") to his natural daughter, A.B.K. ("the subject child").  The
trial court based termination on the failure of the biological father
to visit the subject child; it made the order of termination a final
judgment pursuant to the provisions of Tenn. R. Civ. P. 54.02.  The
biological father appeals, contending, among other things, that the
trial court erred in terminating his parental rights.  The trial court
has reserved a ruling on the competing petitions to adopt pending a
resolution of this appeal.  Under the unique circumstances of this
multiple-petition case, we find that the trial court should resolve
all matters, including the issue of adoption, before this case is ripe
for appeal.  Accordingly, we vacate the trial court's Rule 54.02
designation and remand for further proceedings.

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

PAULINE CATO v. THE MONTGOMERY COUNTY BOARD OF COMMISSIONERS

Court:TCA

Attorneys:

Teresa R. Ricks and J. Russell Farrar, Nashville, Tennessee, for the
appellant, Pauline Cato.

Roger A. Maness, Clarksville, Tennessee, for the appellee, The
Montgomery County Board of Commissioners.

Judge: KOCH

First Paragraph:

This appeal arises from a property owner's efforts to rezone a 94-acre
tract of property in the Sango community of Montgomery County from an
agricultural to a residential classification.  Despite the planning
commission's approval of the proposal, the Montgomery County
Commission declined to change the property's zoning classification. 
The property owner thereafter filed a petition for common-law writ of
certiorari in the Chancery Court for Montgomery County asserting that
the county commission had succumbed to community pressure and lacked
any other appropriate basis for declining to rezone the property.  The
trial court, sitting without a jury, upheld the county commission's
decision after concluding that it was fairly debatable whether the
proposed development was compatible with the surrounding community. 
The property owner has appealed.  We have determined that the courts
have no basis to second-guess the county commission's decision and,
therefore, we affirm the judgment.

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

IN RE:  THE ESTATE OF CLARA MASSEY ELY COOK 

Court:TCA

Attorneys: 

Timothy P. Webb, Jacksboro, Tennessee, for the Appellant Ruthelma
Hill.

Lee Asbury, Jacksboro, Tennessee, for the Appellees Erma Thompson,
Lois Clarkston, Carl Massey, Verga Slaughter, and Jeffrey Massey.                         

Judge: SWINEY

First Paragraph:

After the death of Ms. Clara Massey Ely Cook ("Ms. Cook"), a last will
and testament was admitted to probate.  Subsequently, a Petition for
Probate of Holographic Will was filed by Ruthelma Hill ("Petitioner"),
one of Ms. Cook's daughters.  Petitioner apparently located what she
claimed to be a holographic will and sought to have certain property
distributed in accordance with the terms of this document. 
Respondents are the remaining surviving children and a grandson of Ms.
Cook, and they collectively opposed the petition.  The only issue
before the Trial Court was whether the handwritten document which
Petitioner sought to have probated contained the necessary
testamentary intent to be considered Ms. Cook's last will and
testament.  The Trial Court held it did not.  We affirm.

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

SHARON KAYE OUTTEN v. RUSSELL CAMPBELL

Court:TCA

Attorneys:

L. G. Burnett, Jr., Nashville, Tennessee, for the appellant, Russell
Campbell.

Paul G. Summers, Attorney General & Reporter; Stuart F. Wilson-Patton,
Senior Counsel, for the appellee, State of Tennessee, ex rel., Sharon
Kaye Outten.                   

Judge: CANTRELL

First Paragraph:

A Tennessee woman filed a petition in a Tennessee court to establish
paternity, naming a Georgia resident who had minimal contacts with the
State of Tennessee.  The defendant failed to respond, and the court
granted the petitioner a default judgment, ordering the defendant to
pay retroactive child support of over $63,000.  The defendant's
employer subsequently began withholding money from his paycheck
pursuant to a wage assignment.  We find that the judgment was void ab
initio because the court lacked personal jurisdiction over the
defendant.  We also find that the defendant's subsequent appearance in
the Tennessee court for the purpose of objecting to jurisdiction and
obtaining a refund of the money he lost through wage assignment cannot
revive the void judgment.

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

CORY L. STAPLES v. WILLIAM L. CLIFTON

Court:TCA

Attorneys:   

Harry K. Hays, Chattanooga, Tennessee, for Appellant.

Morgan G. Adams, Chattanooga, Tennessee, for Appellee.                       

Judge: FRANKS

First Paragraph:

Trial Court entered Judgment for plaintiff on malicious prosecution
claim.  On appeal, plaintiff seeks an additur.  Defendant also
appeals, arguing there is no evidence to establish the cause of action
and damages were not established.  We affirm.

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

T.H. ENGINEERING & MANUFACTURING, INC., and RON TOURTE, v. CHRIS A.
MUSSARD, individually and doing business as T.H. ENGINEERING &
MANUFACTURING, L.L.C.

Court:TCA

Attorneys:    

Arthur F. Knight, III, Knoxville, Tennessee, for Appellants.

John P. Newton, Jr., Knoxville, Tennessee, for Appellees.                      

Judge: FRANKS

First Paragraph:

Plaintiff sued on promissory note.  Defendant counterclaimed on
grounds of breach of contract, violation of Tennessee Consumer
Protection Act, and fraud.  The Trial Court entered Judgment for
plaintiff and defendant has appealed.  We affirm.

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

PELILIA SAN JUAN-TORREGOSA, et al., v. ENGRACIA TORREGOSA GARCIA,
ROMULO G. GARCIA, ROEL T. GARCIA, RONALD T. GARCIA, IMELDA
GARCIA-MARGULIES, and ZERLINA GARCIA- WALDROP, and ST. MARY'S HOSPICE
CENTER and RANDALL E. NICHOLS, ESQ.

Court:TCA

Attorneys:   

Gerald L. Gulley, Jr., Knoxville, Tennessee, for Appellant, Engracia
Torregosa Garcia, by and through the Guardian Ad Litem, Gerald L.
Gulley, Jr.

David T. Lewis, Knoxville, Tennessee, for St. Mary's Health System,
Inc., d/b/a St. Mary's Hospice Center.

Kenneth W. Holbert, Knoxville, Tennessee, for Appellees.*

*Appellees by and through counsel gave notice to the Court that they
"elected not to participate in the appellate process" and did not file
a brief.            

Judge: FRANKS

First Paragraph:

Patient in "chronic vegetative state" is on life support, i.e.,
nutrition by "percutaneous endoscopic gastrostomy".  The Trial Court
found by clear and convincing evidence that patient would not want to
be subjected to artificial nutrition.  However, the Court ruled since
she had not executed a living will, the Court had no authority to
authorize discontinuance of the artificial nutrition.  On appeal, we
reverse.

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

STATE OF TENNESSEE v. TERESA DOCKERY

Court:TCCA

Attorneys:  

Joe Walker (on appeal) and Walter B. Johnson (at trial and on appeal),
Harriman, Tennessee, for the appellant, Teresa Dockery.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; and Roger Delp, Assistant District Attorney General, for the
appellee, the State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Teresa Dockery, was convicted in a bench trial of
assault, a Class B 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 claims that the evidence is insufficient to
support her conviction.  Because the defendant was placed on judicial
diversion, she has no appeal as of right under Tennessee Rule of
Appellate Procedure 3.  Accordingly, the appeal is dismissed.

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

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