Opinion Flash

October 3, 2002
Volume 8 — Number 174

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
02 New Opinion(s) from the Tennessee Court of Appeals
04 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


PAUL G. SUMMERS, et al. v. CHEROKEE CHILDREN & FAMILY SERVICES, INC., et al. 

Court:TCA

Attorneys: 

Allan J. Wade, Thomas Lang Wiseman, and Lori Hackleman Patterson,
Memphis, Tennessee, for the appellants, Cherokee Children and Family
Services, Inc., and Cherokee Children Nutrition, Inc.

Paul G. Summers, Attorney General and Reporter; Albert L. Partee,
Senior Counsel; George S. Bell, III, Assistant Attorney General;
Michael A. Meyer, Assistant Attorney General, for the appellee, the
Attorney General of Tennessee.                          

Judge: COTTRELL

First Paragraph:

In this appeal, the Attorney General filed suit to dissolve two
nonprofit public benefit corporations.  Both the Attorney General and
the nonprofit corporations filed motions for summary judgment.  The
trial court granted summary judgment for the Attorney General finding
that the nonprofit corporations had abandoned their charitable
purposes and devoted themselves to private purposes.  The trial court
ordered the appointment of a receiver to marshal and preserve the
remaining assets.  For the following reasons, we affirm the decision
of the trial court.

http://www.tba.org/tba_files/TCA/cheroke2.wpd

STANLEY A. GUNTER v. LABORATORY CORPORATION OF AMERICA, d/b/a LABCORP, et al.

Court:TCA

Attorneys:

August C. Winter, Brentwood, Tennessee, for the appellant, Stanley A.
Gunter.

William E. Godbold, III, and Cherie D. Jewell, Chattanooga, Tennessee,
and Thomas J. Dement, III, Nashville, Tennessee, for the appellee,
LabCorp.                      

Judge: GRAHAM

First Paragraph:

This appeal rises from the action of the Juvenile Court of Montgomery
County which granted a Default Judgment in 1998 for retroactive and
current child support against the Plaintiff.  Plaintiff attempted to
have the support obligation set aside in the Juvenile Court but
following a submission of paternity blood tests, one of which was
conducted by the Defendant, the Plaintiff was denied further relief. 
The Plaintiff filed suit in the Circuit Court of Davidson County
alleging that the paternity tests were  negligently performed which
resulted in erroneous results which in turn caused him to be unable to
set aside the judgment of the Juvenile Court.  The Circuit Court, upon
motion, dismissed the Defendant testing laboratory, holding that the
case was "governed" by the one (1) year statutes of limitations for
medical malpractice and injury to the person.  Plaintiff appealed the
Circuit Court's ruling, arguing that this was not an injury to the
person but to personal property and in the alternative a breach of
contract action.  Finally, the Plaintiff alleged that even if this
were an action for personal injury, the one (1) year statute had not
run.  We agree with the Plaintiff that this is not a medical
malpractice action or an action for personal injury, but rather an
action for injury to personal property which is controlled by the
three (3) year statute set forth at T.C.A. S 28-3-105.  We therefore
reverse the Circuit Court and remand the case for further proceedings.

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

STATE OF TENNESSEE v. TRECA FINCHUM

Court:TCCA

Attorneys:  

Susanne Bales, Dandridge, Tennessee (on appeal); Michael Rasnake and
Charles I. Poole, Sevierville, Tennessee (at trial), for the
appellant, Treca Finchum.

Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and Steven R. Hawkins, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: WEDEMEYER

First Paragraph:

A Sevier County jury convicted the Defendant of theft of property
valued over $500 and of contributing to the delinquency of a minor. 
The trial court sentenced the Defendant as a Range I, standard
offender to two years for the theft conviction and to eleven months
and twenty-nine days for the contributing to the delinquency of a
minor conviction, to run concurrently.  The trial court also ordered
sentences of split confinement, with the Defendant to serve ninety
days in jail, "day for day," and the balance of each sentence to be
served on supervised probation.  The Defendant now appeals, arguing
the following: (1) that insufficient evidence was presented at trial
to convict her of theft and of contributing to the delinquency of a
minor; (2) that the admission into evidence of a list of items stolen
from Wal-Mart was inadmissible hearsay; (3) that the trial court
committed reversible error by excluding a statement against interest
from an unavailable witness; and (4) that the trial court erred in
sentencing her.  After a review of the record, we affirm the judgments
of the trial court as modified.

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

WILLIAM STEVE GREENUP v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

William Steve Greenup, Ashland, Kentucky, Pro se.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General, for the appellee, State of Tennessee.                        

Judge: MCGEE OGLE

First Paragraph:

The petitioner, William Steve Greenup, appeals the order of the Obion
County Circuit Court dismissing his petition for post-conviction
relief.  The post-conviction court summarily dismissed the petition, 
finding the petition to be barred by the statute of limitations.  On
appeal, the petitioner contends that the post-conviction court erred
in dismissing his petition as time-barred due to the recent United
States Supreme Court rulings in Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348 (2000), and Glover v. United States, 531 U.S. 198, 121
S. Ct. 696 (2001), which he alleges created new rules of
constitutional law requiring retroactive application to his case. 
After reviewing the record and the parties' briefs, we affirm the
judgment of the post-conviction court.

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

JOE PHILLIP LIVINGSTON v. JENNIFER ELAINE LIVINGSTON

Court:TCCA

Attorneys:

Brenda S. Bramlett, Shelbyville, Tennessee, for the appellant,
Jennifer Elaine Livingston.

Randall W. Morrison, Tullahoma, Tennessee, for the appellee, Joe
Phillip Livingston.

Judge: SUSANO

First Paragraph:

This is a divorce case.  The trial court granted Joe Phillip
Livingston ("Father") a divorce from Jennifer Elaine Livingston
("Mother") on the ground of inappropriate marital conduct and awarded
primary physical custody of the parties' two minor children to Father.
 Mother was granted visitation rights; however, the court ordered that
she "refrain from allowing the parties' children to be at the
residence of [Mother's] maternal grandmother" during visitation. 
Mother appeals the award of custody and the granting of the divorce to
Father.  In addition, Mother also raises a procedural issue and
questions the admission of certain evidence.  We affirm.

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

STATE OF TENNESSEE v. BOBBY SHELLHOUSE, JR. 

Court:TCCA

Attorneys:

Edward C. Miller, District Public Defender, and Susanne Bales,
Assistant Public Defender, for the appellant, Bobby Shellhouse, Jr.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and Steven R. Hawkins, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant contests his conviction and sentence for aggravated
sexual battery.  We conclude the evidence was sufficient to support
the conviction, the seven-year-old victim was competent to testify,
venue was properly established, proper chain of custody for the DNA
evidence was established, and the amendment of the indictment was
proper.  Accordingly, we affirm the defendant's conviction.  A review
of the defendant's sentence reveals the trial court misapplied
enhancing factor (8).  There being two enhancing factors and one
mitigating factor applicable to the defendant's sentence, the judgment
is modified from the maximum of twelve years to eleven years.

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

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