Opinion Flash

November 3, 2003
Volume 9 — Number 201

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
12 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


SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_1103.wpd

PAULA BOWMAN v. STATE OF TENNESSEE

Court:TCA

Attorneys:                          

Paula Bowman, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter,; Michael E. Moore,
Solicitor General; and Dawn Jordan, Assistant Attorney General, for
the appellee, State of Tennessee.

Judge: INMAN

First Paragraph:

This is an action against the State for damages for personal injuries
sustained by the Appellant when she slipped on the icy surface of a
State-owned parking lot.  The single Commissioner found in favor of
the State.  The Claimant requested an en banc hearing which was
granted with a concurrent Order entered affirming the single
Commissioner, without notice to the Claimant.  We vacate and remand.

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

RONALD L. BOYD, ET AL. v. HARRISON FORBES, ET AL.

Court:TCA

Attorneys:                          

Dale Conder, Jr., Jackson, TN, for Appellant

Steve Greer, Paris, TN, for Appellees

Judge: HIGHERS

First Paragraph:

This appeal involves an inverse condemnation action against the City
of Jackson, Tennessee.  The City appeals the decision of the Circuit
Court of Madison County finding the City owed the Plaintiffs
compensation for the demolition of the improvements on their property.
 For the following reasons, we affirm the decision of the Circuit
Court.

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

JEANETTE SUE BROOKS v. CHARLES VIRGIL BROOKS

Court:TCA

Attorneys:                          

David B. Hill, Newport, Tennessee, for the appellant, Charles Virgil
Brooks.

James W. Greenlee, Sevierville, Tennessee, for the appellee, Jeanette
Sue Brooks.

Judge: SUSANO

First Paragraph:

This is a divorce case.  The trial court granted Jeanette Sue Brooks
("Wife") a divorce from Charles Virgil Brooks ("Husband"), divided the
parties' marital property and debts, and awarded alimony to Wife in
the amount of $150 per month.  Husband appeals the award of alimony
and the division of the parties' debts.  We affirm.

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

CHATTANOOGA PUBLISHING COMPANY, ET AL. v. HAMILTON COUNTY ELECTION
COMMISSION, ET AL.

Court:TCA

Attorneys:                          

Anthony A. Jackson and Bruce C. Bailey, Chattanooga, for the
Appellants, Chattanooga Publishing Company, Tom Griscom and Andy Drury

Jerry H. Summers and Thomas Greenholtz, Chattanooga, for the
Appellees, Hamilton County Election Commission and Fran Dzik, in her
official capacity as Administrator of Elections

Alfred H. Knight and Alan D. Johnson, Nashville, for Amicus Curiae The
Tennesseean

Richard L. Hollow, Knoxville, for Amicus Curiae Tennessee Press
Association

Judge: GODDARD

First Paragraph:

In this case involving the Tennessee Public Records Act, the issue is
whether the Appellee Hamilton County Election Commission should have
been compelled to release to the Appellant certain records relating to
the Democratic primary election in Hamilton County held on May 7,
2002.  The Trial Court held that although the documents were public
records, they were also investigative records of the Tennessee Bureau
of Investigation ("TBI") and thus subject to the exception found at
T.C.A. 10-7-504(a)(2) of the Public Records Act.  We find that the
records at issue were not investigative records of the TBI at the time
the request was made and that they should have been released to the
Appellant Chattanooga Publishing Company ("CPC"), and accordingly
reverse the Trial Court's judgment to the contrary. We affirm the
Trial Court's refusal to award attorney's fees to CPC.

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

CITY OF WHITWELL, TENNESSEE v. WEST VALLEY WATER SYSTEM, INC.

Court:TCA

Attorneys:                          

Jennifer Austin Mitchell, Dunlap, Tennessee, for the appellant, City
of Whitwell, Tennessee.

William L. Gouger, Jr., Jasper, Tennessee, for the appellee, West
Valley Water System, Inc.

Judge: GLENN

First Paragraph:

This is a contract dispute between the plaintiff, an incorporated
municipality, and the defendant, a nonprofit water systems corporation
that supplied water to residents living outside the city limits.  The
parties entered into several agreements for the sale of potable
treated water from the plaintiff to the defendant, the specific terms
for which varied under each agreement.  In particular, a 1981
agreement placed limits on the defendant's ability to assign its
rights under the contract and required that the defendant purchase all
its water requirements up to eight million gallons per month from the
plaintiff, while an agreement executed in 1994 contained no minimum
purchase requirement for the defendant and expressly provided that
successors to the defendant, "whether the result of legal process,
assignment, or otherwise," succeeded to the rights of the defendant
under the contract.  In 2002, the defendant entered into negotiations
for the sale of its assets to a third party water company.  In
response, the plaintiff filed a petition for injunctive relief,
alleging, inter alia, that the contract between the parties did not
allow the defendant to assign its rights without the plaintiff's prior
consent and that the City would suffer irreparable harm if deprived of
the income generated by its water sale to the defendant.  Following an
injunction hearing and a subsequent trial, the trial court ruled,
inter alia, that the 1994 contract superceded the previous agreements
between the parties and the defendant was free to transfer its assets
to the third party water company without the plaintiff's consent.  The
plaintiff appeals, arguing the 1994 contract was ultra vires because
its mayor lacked the authority to execute it, there was no meeting of
the minds to form a valid contract between the parties, and the trial
court abused its discretion in dissolving the temporary injunction and
denying the City's request for a permanent injunction.  Having
reviewed the entire record in this case, we affirm the judgment of the
trial court.

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

RUTHIE CURBOW v. JAMES DOUGLAS STUCKI
CORRECTED OPINION

Court:TCA

Attorneys:                          

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Ruthie
Curbow.

James Robin McKinney, Jr., Nashville, Tennessee, for the appellee,
James Douglas Stucki.

Judge: CAIN

First Paragraph:

In this case, Ruthie Ann Curbow appeals from a custody and support
proceeding in Williamson County Juvenile Court.  On the day of the
hearing, parties and counsel appeared in camera for a pre- trial
conference.  Upon announcement of an apparent settlement in open
court, Mother expressed disagreement with the terms of the settlement
and a desire to preserve her right to appeal.  The trial court
determined that no settlement existed and trial on the merits
proceeded with proof from all parties.  The court entered an order
awarding joint custody with Father as primary custodian under the
statutory fitness comparison.  Mother appeals.  We affirm the
judgment.

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

FRANK HOOPER LACEY v. KARLA SUZANNE LACEY

Court:TCA

Attorneys:                          

Charles M. Cary, Bolivar, Tennessee, for the appellant, Frank Hooper
Lacey.

Karla Suzanne Lacey, appellee, pro se.

Judge: KIRBY

First Paragraph:

This case involves the modification of child support.  The mother and
father were divorced, and custody of the parties' two children was
awarded to the father.  In the divorce decree, the mother was ordered
to pay child support based on her salary as a park recreation
director.  A month later, the mother lost her job.  After she lost her
job, the mother enrolled in a doctorate program at a nearby college
that agreed to waive her tuition.  While in the doctorate program, the
mother planned to work as a teacher's assistant at the college earning
a much reduced income.  Shortly thereafter, the mother filed a
petition to modify her child support obligation.  The father objected.
 After a hearing, the trial court reduced the mother's child support
obligation.  The father now appeals.  We affirm, finding that the
mother was not willfully underemployed, and that the tuition waived by
the college should not be imputed to her as income.

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

DONALD R. LACY v. WESLEY B. COX, ET AL.

Court:TCA

Attorneys:                          

Dana C. Holloway, Knoxville, Tennessee, for the Appellant Jennifer L.
Brandon.

George R. Garrison, Sevierville, Tennessee, for the Appellee Donald R.
Lacy.

Judge: SWINEY

First Paragraph:

Donald R. Lacy ("Plaintiff") sued Jennifer Brandon for damages arising
from an automobile accident.  After deliberating for approximately two
hours, the jury asked the Trial Court if they were required to award
Plaintiff any monetary damages if they found fault on the part of
Brandon.  Based on the question, Plaintiff surmised the jury's
deliberations were not going his way.  As a result, Plaintiff moved
for a voluntary dismissal without prejudice, believing he was entitled
to do so as a matter of right.  The Trial Court, also believing
Plaintiff was entitled to dismiss his lawsuit without prejudice as a
matter of right even though the jury was deliberating, granted the
motion.  We conclude Plaintiff was not entitled to voluntarily dismiss
his lawsuit without prejudice as a matter of right at that stage in
the proceedings, and as a consequence the dismissal is with prejudice.

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

MARION MITCHELL v. PATRICIA MITCHELL

Court:TCA

Attorneys:                          

Kenneth S. Christiansen, Knoxville, Tennessee, for the appellant,
Patricia Mitchell.

Lucinda M. Albiston and Virginia A. Schwamm, Knoxville, Tennessee, for
the appellee, Marion Mitchell.

Judge: SUSANO

First Paragraph:

This is a post-divorce proceeding.  Patricia Mitchell ("Wife") filed a
petition seeking to modify the parties' previously-modified judgment
of divorce.  She alleged a change of circumstances and sought "an
increased alimony award."  Some 23 months later, and at a regularly
scheduled hearing on the merits, the trial court denied Wife's motion
for a continuance and dismissed her petition against Marion Mitchell
("Husband").  The trial court subsequently denied Wife's motion to
reconsider.  Wife appeals, asserting that the trial court erred in
failing to grant her motion for continuance and in failing to
reconsider that decision. We affirm.

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

MARCIA ANN RAINES v. JIMMY RAY RAINES

Court:TCA

Attorneys:                          

Frank Lannom, Lebanon, Tennessee, for the appellant, Marcia Ann
Raines.

Shawn McBrien, Lebanon, Tennessee, for the appellee, Jimmy Ray Raines.

Judge: KIRBY

First Paragraph:

This is a divorce case involving the division of marital property.  In
1988, the husband moved into the wife's house.  The parties married in
1992 and remained married for ten years.  During that time, the
parties sold the wife's house and bought a new home with the proceeds.
 The new home was purchased in the names of both the husband and the
wife.  In 2002, the parties divorced.  The trial court found that the
parties' property had become so commingled that virtually none of it
could be considered separate property, and divided the marital assets
evenly.  The trial court also allocated to the wife a larger portion
of a marital debt to the wife's mother.  From that decree, the wife
now appeals.  We affirm, finding that the evidence clearly supports
the trial court's finding of commingling and transmutation of
property, and finding no abuse of discretion in the trial court's
allocation of the marital debt.

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

BARRY ROBINSON, ET AL. v. DONALD BROOKS, ET AL.

Court:TCA

Attorneys:                          

H. Anthony Duncan, Nashville, Tennessee, for the appellants, Barry
Robinson and Sharon Robinson.

C. Douglas Fields, Crossville, Tennessee, for the appellees, Donald
Brooks and Wanda Brooks.

Judge: CAIN

First Paragraph:

This case involves the sale by auction of certain real property in
Davidson County.  The buyers brought suit in Davidson County Chancery
Court seeking specific performance or, in the alternative, damages for
breach of contract.  From the trial court's grant of summary judgment
for the defendants, the plaintiff buyers appeal.  We affirm.

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

DONNA GODFREY TAYLOR v. DORIS HOLT

Court:TCA

Attorneys:                          

William M. Leibrock, Newport, Tennessee, for the Appellant, Donna
Godfrey Taylor.

James C. McSween, Jr., Newport, Tennessee, for the Appellee, Doris
Holt.

Judge: SWINEY

First Paragraph:

Steve Godfrey prepared his last will and testament on his computer and
affixed his computer generated signature at the end.  He had two
neighbors witness the will.  Mr. Godfrey died approximately one week
later.  Doris Holt ("Defendant"), Mr. Godfrey's girlfriend, submitted
the will for probate.  Donna Godfrey Taylor ("Plaintiff"), Mr.
Godfrey's sister, filed a complaint alleging, in part, that the will
was not signed and claiming that Mr. Godfrey had died intestate.  The
Trial Court granted Defendant summary judgment holding there were no
undisputed material facts and that all legal requirements concerning
the execution and witnessing of a will had been met.  Plaintiff
appeals.  We affirm.

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

STATE OF TENNESSEE v. LEONARD FRANKLIN

Court:TCCA

Attorneys:                          

Michael F. Rafferty (on appeal), James R. Garts, Jr. (on appeal), and
Jeff A. Crow, Jr. (at trial), Memphis, Tennessee, for the appellant,
Leonard Franklin.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Eric Christensen, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

A Shelby County jury convicted the defendant, Leonard Franklin, of
simple assault.  The trial court sentenced him to seven months in the
Shelby County Correctional Center with sixty days incarceration
followed by eleven months and twenty-nine days probation.  On appeal,
the defendant contends the trial court erred in: (1) denying the
defendant's motion for a continuance; (2) limiting the defendant's
cross-examination of the victim concerning her civil lawsuit against
him; (3) admitting evidence of the defendant's suspension from his
place of employment; (4) improperly commenting on the evidence; and
(5) imposing a period of confinement.  We reduce the probationary term
to ten months but otherwise affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. RUSSELL DALE OLIVER

Court:TCCA

Attorneys:                          

James T. Bowman, Johnson City, Tennessee, for the appellant, Russell
Dale Oliver.

Paul G. Summers, Attorney General and Reporter; David H. Finley,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Kenneth Carson Baldwin and Anthony Wade Clark, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Russell Dale Oliver, was convicted by a jury in the
Johnson County Circuit Court of murder in the first degree and
sentenced to life in prison.  In this appeal as of right, the
defendant contends that the trial court erred by overruling his motion
to dismiss the indictment based on the violation of his right to a
speedy prosecution and trial and that the evidence is insufficient to
convict him of murder in the first degree.  We affirm the judgment of
the trial court.

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

STATE OF TENNESSEE v. LUIS ANTHONY RAMON

Court:TCCA

Attorneys:                          

W. Jeffery Fagan, Assistant District Public Defender, Camden,
Tennessee, for the Appellant, Luis Anthony Ramon.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; G. Robert
Radford, District Attorney General; and Steven L. Garrett, Assistant
District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Henry County Grand Jury indicted the fifteen-year-old Defendant
for first degree murder for the stabbing death of his aunt.  The
Defendant was tried as an adult and convicted of the charged offense,
after a jury rejected his insanity defense.  The trial court sentenced
the Defendant to life imprisonment.  The Defendant appealed, arguing
that his insanity defense was established by clear and convincing
evidence.  In an opinion filed August 9, 2002, a majority of this
Court reversed the judgment of conviction, modified the judgment to
"Not Guilty by Reason of Insanity," and remanded the case for further
proceedings pursuant to Tennessee Code Annotated section 33-7-303. 
State v. Ramon, No. W2001-00389-CCA-R3-CD, 2002 WL 1841608, at *1
(Tenn. Crim. App. Aug. 9, 2002).  The State filed an application for
permission to appeal with the Tennessee Supreme Court pursuant to Rule
11(a) of the Tennessee Rules of Appellate Procedure.  On December 23,
2002, the Tennessee Supreme Court granted the State's application for
the purpose of remanding the case to this Court for reconsideration in
light of State v. Flake, 88 S.W.3d 540 (Tenn. 2002).  On remand, we
find that a rational jury could have found that the Defendant failed
to establish by clear and convincing evidence that, as a result of a
severe mental illness or defect, the Defendant was unable to
appreciate the wrongfulness of his act of stabbing his aunt to death
so as to entitle him to the insanity defense.  Accordingly, we affirm
the Defendant's conviction for first degree murder and his sentence of
life imprisonment.

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

STATE OF TENNESSEE v. CLAY A. THOMPSON

Court:TCCA

Attorneys:                          

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Gary F.
Antrican, District Public Defender; and Rickey William Griggs,
Assistant District Public Defender (at hearing and on appeal), for the
appellant, Clay A. Thompson.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Jerry W. Norwood, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Clay A. Thompson, pled guilty to theft of property
valued over $1,000.  The McNairy County trial court sentenced him as a
Range II multiple offender to seven years incarceration.  On appeal,
the appellant contends his sentence is excessive.  We affirm the
judgment of the trial court.

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

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