Opinion Flash

October 29, 2002
Volume 8 — Number 191

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
07 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

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version.
Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.

Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


NIKKI LYNN HERRINGTON BOWIE v. RICHARD ROY BOWIE

Court:TCA

Attorneys: 

James F. Logan, Jr., Cleveland, Tennessee, for the Appellant, Richard
Roy Bowie.

Charles H. Child, Knoxville, Tennessee, for the Appellee, Nikki Lynn
Herrington Bowie.

Judge: SWINEY

First Paragraph:

Richard Roy Bowie ("Husband") and Nikki Lynn Herrington Bowie ("Wife")
were divorced in 2000.  Wife was awarded sole custody of the couple's
young child.  Husband was granted visitation pursuant to a custody
agreement filed March 1, 2000.  The Trial Court found that Wife's
monthly need was $7,200, but that Husband was unable to pay this
amount.  The Trial Court awarded Wife monthly child support in the
amount of $1,057, and alimony in futuro of $1,500 per month.  Husband
appeals the type of alimony awarded to the Wife, the Trial Court's
finding regarding the amount of Wife's monthly need, and the amount of
alimony awarded.  Wife raises an additional issue regarding whether
the Trial Court erred in not awarding her attorney's fees.  We affirm.

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

JAMES EDWARDS, et al. v. BANCO LUMBER COMPANY, INC. et al.

Court:TCA

Attorneys:   

J. Russell Pryor, Greeneville, Tennessee, for the Appellants James
Edwards and Margaret Edwards.

William B. Lawson, Erwin, Tennessee, for the Appellee Banco Lumber
Company, Inc.

Douglas K. Shults, Erwin, Tennessee, for the Appellees Nathan Byrd,
Betty Byrd, Fred Byrd, and Barbara Byrd.

Judge: SWINEY

First Paragraph:

James and Margaret Edwards ("Plaintiffs") sued Banco Lumber Company
Inc., ("Banco") claiming Banco had trespassed on their property and
removed timber.  Banco filed a third-party complaint against Nathan
Byrd, Betty Byrd, Fred Byrd, and Barbara Byrd (the "Byrds") for
indemnification relying on a Timber Deed and Contract between Banco
and the Byrds.  Plaintiffs nonsuited their action against Banco and an
Order was entered on May 16, 2000, dismissing only Plaintiffs' action.
 Apparently realizing this was not a final order, the Trial Court
entered a "Final Order" three days later which disposed of not only
Plaintiffs' claims but also Banco's third-party complaint against the
Byrds.  Plaintiffs re-filed their lawsuit against Banco one year and
two days after the first order was entered, but less than a year after
the "Final Order" was entered.  Plaintiffs also sued the Byrds, for
the first time, in this second complaint.  The Trial Court held the
entry date of the first Order should be used when determining whether
the second complaint had been re-filed within the one-year time period
under the "Saving Statute."  The Trial Court dismissed Plaintiffs'
claims against Banco and the Byrds holding the statute of limitations
had run.  We vacate in part and affirm in part.

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

BASIL MARCEAUX v. CHATTANOOGA PRINTING

Court:TCA

Attorneys:

Basil Marceaux, Soddy Daisy, Tennessee, pro se Appellant.

Arthur C. Grisham, Jr., Chattanooga, Tennessee, for the Appellee,
Chattanooga Printing.

Judge: SWINEY

First Paragraph:

Basil Marceaux ("Mr. Marceaux") sued Chattanooga Printing for the loss
or destruction of certain printing plates.  The Trial Court found that
Mr. Marceaux failed to carry the burden of proof showing he owned or
had any ownership interest in the printing plates.  The record
contains neither a transcript nor a statement of the evidence.  Mr.
Marceaux appeals.  We affirm.

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

RICHARD R. PEYTON, M.D. v. JOHNSON CITY MEDICAL CENTER

Court:TCA

Attorneys:

Howell H. Sherrod, Johnson City, Tennessee, for the Appellant Richard
R. Peyton, M.D.

Ronald T. Hill, Knoxville, Tennessee, for the Appellee Johnson City
Medical Center.

William B. Hubbard, Robyn E. Smith, William L. Penny, Nashville,
Tennessee, for Amici Curiae Tennessee Hospital Association and
Hospital Alliance of Tennessee.

Andrew Yarnell Beatty, Nashville, Tennessee, for Amici Curiae,
Tennessee Medical Association and American College of Radiology.

Thomas C. Jessee, Johnson City, Tennessee, Andrew L. Schlafly, Far
Hills, New Jersey, for Amicus Curiae The Association of American
Physicians and Surgeons.                        

Judge: SWINEY

First Paragraph:

In April of 1994, Johnson City Medical Center (the "Hospital")
summarily suspended the hospital privileges of Dr. Richard R. Peyton
("Dr. Peyton").  Dr. Peyton was told the reason for this action and
about his right to request a hearing.  Dr. Peyton requested a hearing,
which took place over three days and in which 18 witnesses testified. 
After the hearing, the decision to revoke Dr. Peyton's hospital
privileges was upheld by the hearing panel.  Dr. Peyton appealed this
decision, all to no avail, through the Hospital's internal appeal
procedures.  Dr. Peyton then filed suit claiming his hospital
privileges were improperly revoked and sought injunctive relief and
monetary damages in the amount of ten million dollars.  The Trial
Court granted the Hospital's motion for partial summary judgment
pursuant to the federal Health Care Quality Improvement Act of 1986,
42 U.S.C. S 11101, et seq.  This decision effectively prevented Dr.
Peyton from receiving any monetary damages.  Dr. Peyton appeals the
granting of partial summary judgment.  We affirm.

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

STATE OF TENNESSEE ex rel. NANCY SCHLEIGH v. STEVEN SCHLEIGH, JR.

Court:TCA

Attorneys:

Paul Summers and Stuart Wilson-Patton, Nashville, Tennessee, for the
Appellant State of Tennessee ex rel. Nancy Schleigh.

Roger D. Hyman, Powell, Tennessee, for the Appellee Steven Schleigh,
Jr.                        

Judge: SWINEY

First Paragraph:

This is an action to enforce a child support order entered against
Steven Schleigh in another state.  After the State of Tennessee filed
a petition seeking enforcement of the out-of-state order, Steven
Schleigh denied he was the biological father of the minor child.  The
Referee entered an order requiring both Mr. and Ms. Schleigh to submit
to DNA testing.  When Ms. Schleigh did not comply with this order, the
Referee recommended the case be dismissed.  The Trial Court confirmed
the findings of the Referee and dismissed the case.  The State
appeals.  We reverse.

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

AARON DEL SHANNON v. DARLA JEAN SHANNON

Court:TCA

Attorneys:  

Rebecca A. Bell, Knoxville, Tennessee, for the appellant, Darla Jean
Shannon.

D. Vance Martin, Knoxville, Tennessee, for the appellee, Aaron Del
Shannon.                        

Judge: SUSANO

First Paragraph:

In this post-divorce case, Aaron Del Shannon ("Father") filed a
petition against his former wife, Darla Jean Shannon ("Mother"),
seeking to modify the parties' divorce judgment, which judgment, inter
alia, had awarded Mother custody of the parties' two minor children. 
In his petition, Father sought a change of custody and asked to be
named primary residential parent of the children.  The trial court
found a substantial and material change of circumstances and granted
Father's petition.  We reverse.

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

FLOYD MICHAEL WOODY v. JOY DARLENE WOODY

Court:TCA

Attorneys:

P. Richard Talley, Dandridge, Tennessee, for the Appellant, Floyd
Michael Woody

Paul Whetstone, Mosheim, Tennessee, for the Appellee, Joy Darlene
Woody                           

Judge: GODDARD

First Paragraph:

In this case from the Chancery Court of Hamblen County the Appellant,
Floyd Michael Woody contends that the Trial Court erred in amending a
final judgment for divorce to include one half of his pension fund as
part of the marital property to be awarded the Appellee, Joy Darlene
Woody.   The judgment of the Trial Court is affirmed as modified.

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

STATE OF TENNESSEE v. JAMES L. PARTIN
Corrected Opinion

Court:TCCA

Attorneys:

Michael G. Hatmaker, Jacksboro, Tennessee for the appellant, James L.
Partin.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; William Paul Phillips, District Attorney
General; Jared Effler, Assistant District Attorney General; and Todd
Longmire, Assistant District Attorney General, for the appellee, State
of Tennessee.                       

Judge: WOODALL

First Paragraph:

Defendant, James L. Partin, was indicted for the offenses of second
degree murder, aggravated assault, three counts of felony reckless
endangerment, and unlawful possession of a weapon with intent to use
it in the commission of felony reckless endangerment.  Pursuant to a
negotiated plea agreement, Defendant pled guilty to voluntary
manslaughter, a lesser-included offense of second degree murder, and
all other charges were dismissed.  The plea agreement further provided
that the trial court would determine the length and manner of service
of Defendant's sentence, with the sole parameter being that he be
sentenced as a standard Range I offender.  Following a sentencing
hearing, the trial court ordered that Defendant serve five years in
confinement in the Department of Correction.  In this appeal,
Defendant contends that the trial court erred in determining the
length and manner of service of his sentence.  After a thorough review
of the sentencing proceeding, we affirm the judgment of the trial
court concerning the length of Defendant's sentence.  We reverse the
trial court's judgment regarding manner of service, however, and order
that Defendant serve his sentence on split-confinement.

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

STATE OF TENNESSEE v. JAMES DALE WALKER
Corrected Opinion

Court:TCCA

Attorneys:

George Waters, District Public Defender, Maryville, Tennessee, and
Steve McEwen, Mountain City, Tennessee, for the appellant, James Dale
Walker.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Mike Flynn, District Attorney General; and
John Bobo, Assistant District Attorney General, for the appellee,
State of Tennessee.                    

Judge: WELLES

First Paragraph:

The Defendant, James Dale Walker, pled guilty to aggravated sexual
exploitation of a minor, a Class C felony, and sexual exploitation of
a minor, a Class E felony.  Pursuant to the plea agreement, the
Defendant received concurrent sentences of six years and two years,
respectively, with the manner of service to be determined by the trial
court.  Following a sentencing hearing, the trial court denied
alternative sentencing and ordered the Defendant to serve his
effective sentence of six years in the Department of Correction.  It
is from this order that the Defendant now appeals as of right.  We
reverse the trial court's order that the Defendant serve his sentences
in total confinement and remand to the trial court for consideration
of some form of alternative sentence.

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

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi


HomeContact UsPageFinderWhat's NewHelp
© Copyright 2002 Tennessee Bar Association