Opinion Flash

February 27, 2004
Volume 10 — Number 039

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
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
03 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


HAMEED ALFARAJ v. S-3 PERSPECTIVES, INC., D/B/A  EXPRESS PERSONNEL
SERVICES

Court:TSC - Workers Comp Panel

Attorneys:                          

Stanley A. Davis, Nashville, Tennessee, for the appellee Hameed
Alfaraj.

Dale A. Tipps, Nashville, Tennessee, for the appellant, S-3
Perspectives, Inc., d/b/a/ Express Personnel Services.

Judge: WEATHERFORD

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
S50-6-225(e)(3) for hearing and reporting to the Supreme Court of
findings of fact and conclusions of law.  The employer appeals the
judgment of the trial court finding that the employee sustained a
work-related injury resulting in a 5% anatomical impairment and a 95%
vocational disability to his right upper extremity.   The employer
contends that the evidence preponderates against a finding that the
employee suffered from carpal tunnel syndrome; and that the trial
court erred in relying on the testimony of the employee's medical
expert.  The panel has concluded that the judgment of the trial court
should be affirmed.

http://www.tba.org/tba_files/TSC_WCP/alfarajhameed.wpd

MELODY LYNN MICHAEL v. JOHN WILLIAM MICHAEL, JR.

Court:TCA

Attorneys:                          

Robert M. Cohen, Maryville, Tennessee, for the appellant, John William
Michael, Jr.

Jerry G. Cunningham and Melanie E. Davis, Maryville, Tennessee, for
the appellee, Melody Lynn Michael.

Judge: SUSANO

First Paragraph:

On September 6, 2002, Melody Lynn Michael ("Wife") filed suit against
her husband, John William Michael, Jr. ("Husband"), seeking a divorce,
custody of the couple's minor child, and ancillary relief.  The
complaint reflects that Husband is an active-duty member of the United
States Air Force.   Service of process on Husband was attempted
through the Secretary of State "by certified or registered mail"
directed to Husband at his acknowledged address in Waldorf, Maryland. 
The Secretary of State notified the clerk of the trial court that his
correspondence to Husband was returned by the United States Postal
Service with the notation that it was "refused."  When there was no
response filed by Husband to Wife's complaint, Wife, on November 25,
2002, filed a motion for default judgment.  The motion was heard and
granted on January 6, 2003, and subsequently memorialized in a default
judgment and judgment of divorce entered January 24, 2003.  A motion
to set aside the default judgment and judgment of divorce was filed by
Husband on February 14, 2003.  Following a hearing on April 7, 2003,
the trial court entered an order on May 6, 2003, denying the motion. 
Husband appeals.  We affirm.

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

TANIKIA YOLANDA BOONE v. HOUSTON GIBSON, JR.

Court:TCA

Attorneys:                          

John M. Higgason, Jr., Chattanooga, Tennessee, for the appellant,
Houston Gibson, Jr.

Bruce C. Bailey, Chattanooga, Tennessee, for the appellee, Tanikia
Yolanda Boone.

Judge: SUSANO

First Paragraph:

Tanikia Yolanda Boone ("the tenant") sued Houston Gibson, Jr. ("the
landlord"), seeking damages and other relief for wrongful eviction and
for the wrongful withholding of her personal possessions, pursuant to
the Uniform Residential Landlord and Tenant Act ("the URLTA"), Tenn.
Code Ann. S 66-28-101, et seq. (1993 & Supp. 2003).  The tenant
attempted service on the landlord by having the landlord's process
served on Donna Gibson, the landlord's former wife.  After the
landlord failed to respond to the complaint, the tenant filed a motion
for default judgment.  The trial court granted the motion and awarded
the tenant damages of $20,000 and attorney's fees and costs totaling
$3,500.  Approximately two years later, in response to the tenant's
efforts to execute on her judgment, the landlord filed a motion to
dismiss the default judgment on the ground that the trial court lacked
personal jurisdiction over him.  Following a hearing on the landlord's
motion, the trial court held that the landlord's former wife had
authority as his agent to accept service of process on his behalf.  We
affirm.

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

MYRTLE MARIE STAGNER v. LLOYD OTIS STAGNER
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Douglas R. Beier, Morristown, Tennessee, for the Appellant, Myrtle
Marie Stagner.

P. Richard Talley, Dandridge, Tennessee, for the Appellee, Lloyd Otis
Stagner.

Judge: SWINEY

First Paragraph:

After nineteen years of marriage, Myrtle Marie Stagner ("Wife") sued
Lloyd Otis Stagner ("Husband") for divorce.  After trial, the Trial
Court ordered, inter alia, the marital home sold and awarded Wife
sixty percent of the proceeds with ten percent being alimony in solido
in lieu of any other alimony.  The Trial Court also characterized as
Husband's separate property the appreciation of Husband's separate
pre-marital property.  Wife appeals as to both the alimony and the
property division.  We affirm, in part, and vacate, in part, and
remand.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/stagnerm_con.wpd

LOTTIE FAYE TAYLOR, ET AL. v. JOHNNY C. CARLIN, ET AL.

Court:TCA

Attorneys:                          

Lloyd R. Tatum, Henderson, TN, for Appellants

Terry Abernathy, Selmer, TN, for Appellees

Judge: HIGHERS

First Paragraph:

This case involves a boundary line dispute.  The plaintiffs brought
this action to have the trial court determine the true boundary line
between the western edge of plaintiffs' property and the eastern edge
of the adjacent property belonging to defendants.  After conducting a
hearing, the lower court drew a boundary based largely upon the line
used in the applicable property tax assessment maps.  Defendants argue
that the evidence preponderates against the location of the boundary
as drawn by the trial court.  They contend that the plaintiffs
acquiesced to a boundary line further to the west that is marked by a
fence running through the disputed property.  For the following
reasons, we affirm the ruling of the lower court.

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

JAMES H. CRAWFORD V. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Mark H. Toohey, Kingsport, Tennessee, for the appellant, James H.
Crawford.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Greeley Wells, District Attorney General;
and James Goodwin, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

On March 23, 1998, The petitioner pled guilty to six (6) counts of
attempt to commit incest and six (6) counts of attempt to commit rape.
 He was sentenced to six (6) years for each count, all to be served
concurrently to each other.  On March 20, 2002, he filed a Petition
for Post-Conviction Relief.   He based his petition on two grounds of
relief, attorney misrepresentation and DNA analysis under Tennessee
Code Annotated section 40-30-403.  The trial court dismissed the
petition as time-barred on the attorney misrepresentation issue and as
not meeting the statutory requirements on the DNA issue.  The
petitioner appeals the trial court's decision.  We affirm the trial
court.

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

STATE OF TENNESSEE v. DENNIS RAY JONES AND PAMELA KAY BARKER
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Victoria L. DiBonaventura, Paris, Tennessee (at trial), and Benjamin
S. Dempsey, Huntingdon, Tennessee (on appeal), for the appellants,
Dennis Ray Jones and Pamela Kay Barker.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Robert "Gus" Radford, District Attorney
General; and Steven L. Garrett, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

Appellant Dennis Ray Jones was convicted in the Henry County Circuit
Court of manufacturing methamphetamine and was sentenced to three
years incarceration in the Tennessee Department of Correction. 
Appellant Pamela Kay Barker was convicted of criminal responsibility
for facilitating the manufacturing of methamphetamine and was
sentenced to two years incarceration in the Tennessee Department of
Correction.  On appeal, the appellants raise numerous issues,
including the trial court's ruling on a motion to suppress, the
sufficiency of the evidence, and sentencing.  Upon review of the
record and the parties' briefs, we affirm the judgments of the trial
court but remand for a correction of Appellant Barker's judgment of
conviction.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/jonesdr_con.wpd

ANTHONY MURFF v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

William Dan Douglas, Jr., Ripley, Tennessee, for the appellant,
Anthony Murff.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General;  Elizabeth T. Rice, District Attorney
General; and Tracey A. Brewer, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

This is an appeal by the petitioner from the denial of his
post-conviction relief petition.  The petitioner was originally
convicted of especially aggravated robbery and sentenced to 60 years
at 100% service.  After careful review, we affirm the denial of
post-conviction relief.

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

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