Opinion Flash

April 29, 2003
Volume 9 — Number 077

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):
02 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
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

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


STATE OF TENNESSEE v. DARRYL LEE ELKINS

Court:TSC

Attorneys:

Mark H. Toohey, Kingsport, Tennessee, for the appellant, Darryl Lee
Elkins.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Angele M. Gregory, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; James F. Goodwin,
Assistant District Attorney General; and Mary Katharine Harvey,
Assistant District Attorney General, for the appellee, the State of
Tennessee.                          

Judge: BARKER

First Paragraph:

The defendant, Darryl Lee Elkins, was tried and convicted of child
rape and attempted child rape in the Criminal Court for Sullivan
County.  The Court of Criminal Appeals unanimously affirmed his child
rape conviction and affirmed by majority his attempted child rape
conviction.  We granted this appeal to determine whether the evidence
was sufficient to support both convictions.  After examining the facts
and the law relevant to the issues, we hold that the evidence was
sufficient to support the defendant's convictions.  We also hold that
with respect to the defendant's attempted child rape conviction, the
jury could properly infer from evidence of the subsequent child rape
that the defendant intended to commit child rape in the first attack
on the victim, and the defendant's actions in the first attack
constituted a substantial step toward the completion of the offense of
child rape.

http://www.tba.org/tba_files/TSC/elkinsdl_opn.wpd
								
STATE OF TENNESSEE v. DARRYL LEE ELKINS Court:TSC HOLDER CONCURRING http://www.tba.org/tba_files/TSC/elkinsdl_con.wpd
STATE OF TENNESSEE v. DARRYL LEE ELKINS Court:TSC BIRCH CONCURRING AND DISSENTING http://www.tba.org/tba_files/TSC/elkinsdl_dis.wpd
SUSAN GREEN v. LEON MOORE, ET AL. Court:TSC Attorneys: Pamela M. McCord, for the appellant, Susan Green. Eugene N. Bulso, Jr. and Barbara Hawley Smith, for the appellees, Leon Moore, ShoLodge, Inc., and ShoLodge Franchise Systems, Inc. Judge: BARKER First Paragraph: The sole issue in this appeal is whether the thirty (30)-day notice of appeal period, articulated in Tennessee Rule of Appellate Procedure 4(a) ("Rule 4(a)"), began to run when the appellees filed a notice of voluntary dismissal of the final claim between all parties in this action, or when the trial court entered an order confirming that all claims between all parties in this action had been adjudicated. The Court of Appeals held that the thirty-day period commenced on the date the appellees filed the notice of voluntary dismissal and concluded that the appellant's notice of appeal was untimely filed. We granted permission to appeal and hold that the thirty-day notice of appeal period commenced on the date that the trial court entered an order confirming that all claims between all the parties had been adjudicated. Accordingly, the judgment of the Court of Appeals is reversed, and this case is remanded to the intermediate court for consideration of the merits of the appeal. http://www.tba.org/tba_files/TSC/greensu.wpd
PATRICK BEAUDREAU, et al. v. GENERAL MOTORS ACCEPTANCE CORPORATION Court:TCA Attorneys: Gordon Ball, Knoxville, Tennessee, for the Appellant, Patrick Beaudreau. Stephen G. Anderson and Andrew L. Colocotronis, Knoxville, Tennessee, for the Appellee, General Motors Acceptance Corporation. Judge: SWINEY First Paragraph: Patrick Beaudreau ("Plaintiff") purchased a new car from Thomas-Hill Auto Center ("Dealer"). In order to finance the purchase of the vehicle, Plaintiff signed a retail installment sales contract ("Contract") at an annual percentage rate ("APR") of 13.5%. The Contract listed Dealer as the creditor. General Motors Acceptance Corporation ("GMAC") purchased the Contract from Dealer at a rate of 11.25% ("buy rate"). GMAC paid Dealer the difference between the APR and the buy rate ("dealer reserve"). Plaintiff sued GMAC claiming GMAC had conspired with Dealer to defraud him by not revealing the dealer reserve and the buy rate, or what Plaintiff claims is the "real interest rate." GMAC filed a motion for summary judgment. The Trial Court found the business practices of GMAC detailed in the record are not unlawful or fraudulent and granted summary judgment. Plaintiff appeals, asserting that the Trial Court erred in its treatment of Plaintiff's expert's affidavit and in granting summary judgment. We vacate the grant of summary judgment and remand. http://www.tba.org/tba_files/TCA/beaudreaup.wpd
CHILHOWEE TRAILER SALES, INC. v. INTERNATIONAL CHRISTIAN CHURCH, et al. Court:TCA Attorneys: F.D. Gibson, Maryville, Tennessee, for the appellants, International Christian Church, Charles Clendell Walker and Delores Walker. William A. Reeves, Knoxville, Tennessee, for the appellee, Chilhowee Trailer Sales, Inc. Judge: SUSANO First Paragraph: This is a suit to collect deficiencies on six retail installment contracts. These deficiencies resulted following the repossession and sale of six motor homes, part of the collateral for the obligations represented by the contracts. The motor homes had been originally sold - ostensibly to an entity identified as International Christian Church ("the church") - by Chilhowee Trailer Sales, Inc ("the plaintiff"). The trial court held that Charles Clendell Walker and his wife, Delores Walker ("the Walkers"), entered into a civil conspiracy with the church and others to defraud the plaintiff in connection with the sale of the motor homes - title to all of which had been placed in the name of the church. The plaintiff was awarded a judgment, including prejudgment interest, of $620,189.43, against the Walkers and the church, jointly and severally. The Walkers and the church appeal, arguing that (1) the trial court erred in finding that they had been involved in a civil conspiracy; (2) the court erred in finding that Robert Charles Coburn, Sr., another defendant, acted as their agent so as to bind them to the retail installment contracts; and (3) the award is speculative and amounts to a windfall. We affirm. http://www.tba.org/tba_files/TCA/chilhowee.wpd
in re: CRYSTAL MICHELLE MOATS Court:TCA Attorneys: R. D. Hash, Maryville, Tennessee, for the appellant, Teresa E. Headrick. H. Allen Bray, Maryville, Tennessee, for the appellee, Randy L. Garner. Judge: SUSANO First Paragraph: This is a paternity case. Following DNA testing, the parties agreed that Randy L. Garner ("Father") is the biological father of Crystal Michelle Moats (DOB: August 13, 1985) ("the child"). The issues remaining before the trial court were "current support, past due support, and medical payments." Following a bench trial, the court addressed these issues. As pertinent to this appeal, the trial court awarded Mother $1,000 as support for the child from her date of birth to the date of filing of the paternity petition, i.e., September 18, 2000. Mother appeals, contending that the trial court erred in setting the amount of retroactive support for the period prior to the filing of the petition. We vacate the trial court's award of $1,000 and remand for further proceedings. http://www.tba.org/tba_files/TCA/headrickte.wpd
DWIGHT HUNT ex rel. JAMES W. DOTSON, et al. v. CARTER COUNTY, et al. Court:TCA Attorneys: John S. Taylor, Johnson City, Tennessee, for the appellants, Dwight Hunt, Individually and for the use and benefit of James W. Dotson and Ted Ervin. Mark S. Dugger, Elizabethton, Tennessee, for the appellee, Carter County. John Banks, Elizabethton, Tennessee, for the appellee, Robert Franklin. Judge: SUSANO First Paragraph: In this action to set aside a tax sale, the trial court dismissed the plaintiff's complaint, finding that he did not have standing or capacity to bring the action on behalf of the real parties in interest. We affirm. http://www.tba.org/tba_files/TCA/huntd_opn.wpd
DWIGHT HUNT ex rel. JAMES W. DOTSON, et al. v. CARTER COUNTY, et al. Court:TCA SWINEY CONCURRING AND DISSENTING http://www.tba.org/tba_files/TCA/huntd_dis.wpd
NANNIE SNEED v. THE ESTATE OF MARIE BRIGHT WITHERSPOON, DECEASED, JAMES MORTON, SENIOR, et al. Court:TCA Attorneys: Brian O. Bowhan, Nashville, TN, for Appellant Josh A. McCreary, Murfreesboro, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal involves a claim filed against an estate for personal services rendered to a decedent. The lower court granted the estate's motion to dismiss, finding that the claim was time barred, the claimant had received compensation for her services, and there was no evidence of "fraud, tort, deceit, or concealment." The parties raise multiple issues on appeal. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/sneednannie.wpd
IN RE: ESTATE OF JAMES H. WILLIAMS Court:TCA Attorneys: Dana McLendon, Ernest Wilson Williams, Franklin, Tennessee, for the appellant, Jennie Williams Perdue, Executrix. Eva C. Madison, Peter T. Dirksen, Stephen A. Cobb, Nashville, Tennessee, for the appellee, Kathryn L. H. Williams. David A. Thornton, Memphis, Tennessee, for the appellee, Hartford Life and Annuity Ins. Co. Christopher E. Thorsen, George H. Nolan, Nashville, Tennessee, for the appellee, Lincoln National Life Insurance. Gregory M. Leitner, Nashville, Tennessee, for the intervenor, Guardian Life Insurance. Judge: COTTRELL First Paragraph: This case began as four separate cases which were consolidated. All four cases arose from the divorce of James Hollister Williams and Kathyrn L. H. Williams, his untimely death, and the probate and distribution of assets in his sizeable estate. The trial court upheld the validity of the divorce by denying Ms. Williams relief under Tenn. R. Civ. P. 60.02, awarded several annuities to Ms. Williams based on her status as the named beneficiary, ordered her to pay the estate taxes resulting from those annuities, and approved part of a claim filed by Ms. Williams against the Estate, but denied part. We affirm the decisions of the trial court upholding the validity of the divorce and awarding the annuities to Ms. Williams, but vacate the order granting the Estate a judgment against Ms. Williams for the estate taxes on the annuities. We also affirm in part and reverse in part the decision of the trial court with respect to the claim against the Estate, and hold that the entire claim should have been denied. http://www.tba.org/tba_files/TCA/williamsjest.wpd
STATE OF TENNESSEE v. JOSHUA ALAN STEAKLEY Court:TCCA Attorneys: Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Joshua Alan Steakley. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of burglary, a Class D felony, after a jury trial and was sentenced to two years, six months, with all but fifteen days suspended, and the balance to be served on supervised probation. The defendant was also ordered to pay $353.95 in restitution to North Elementary School. On appeal, he argues that the evidence was insufficient to support his conviction and that the trial court erred in denying full probation and ordering that he serve fifteen days in confinement. Following our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/steakleyjoshua.wpd
STATE OF TENNESSEE v. MAURICE WHITLOCK Court:TCCA Attorneys: Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Assistant District Public Defender (on appeal); and Myrlene Marsa, Assistant District Public Defender (at trial), Chattanooga, Tennessee, for the appellant, Maurice Whitlock. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William H. Cox, III, District Attorney General; and Christopher D. Poole, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: Pursuant to a plea agreement, the Defendant pled guilty to aggravated assault, a Class C felony and received a three-year sentence with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court ordered that the Defendant serve his three-year sentence in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred by failing to grant the Defendant probation or alternative sentencing. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/whitlockm.wpd

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