Opinion Flash

April 1, 2004
Volume 10 — Number 063

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
08 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
05 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


BRENDA LEE CHASTAIN v. RICKY LAVON CHASTAIN

Court:TCA

Attorneys:                          

Ricky Lavon Chastain, Only, Tennessee, Pro Se.

Jennifer F. Noe, Ashland City, Tennessee, for the appellee, Brenda Lee
Chastain.

Judge: KOCH

First Paragraph:

This appeal arises from a divorce proceeding involving a state
prisoner and his wife.  After the wife filed her divorce complaint in
the Chancery Court for Cheatham County, the prisoner counterclaimed
for divorce and served interrogatories on his wife regarding their
separate and marital property.  Two motions to compel the wife to
answer these interrogatories were unresolved when the trial court
conducted a bench trial in the prisoner's absence and granted the wife
a divorce.  The prisoner asserts on this appeal that the trial court
erred by failing to dispose of his discovery motions prior to trial. 
We agree and, therefore, vacate the portions of the divorce decree
pertaining to the division of the marital estate.

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

JUSTIN C. EBERT v. IFEATU EKELEM

Court:TCA

Attorneys:                          

Ifeatu Ekelem, College Grove, Tennessee, Pro Se.

William C. Barnes, Jr., Columbia, Tennessee, for the appellee, Justin
Ebert.

Judge: KOCH

First Paragraph:

This case involves a dispute between a Williamson County property
owner who decided to oversee the construction of his own house and the
framing contractor he hired for the project.  The framing contractor
filed a breach of contract action in the Williamson County Chancery
Court seeking to recover the balance owing on the contract.  The
property owner counterclaimed seeking to recover the costs he
allegedly incurred to complete the framing and to repair deficient
work.  The trial court conducted a bench trial and awarded the framing
contractor a $6,642.81 judgment.  On this appeal, the property owner
asserts (1) that the trial court should have dismissed the framing
contractor's complaint because of defects in his lien, (2) that the
judgment should have been offset by the cost of completing the work
allegedly left unfinished by the contractor, and (3) that the
contractor was not entitled to recover because he did not possess a
license as required by the Contractors Licensing Act of 1994.   We
have determined that the framing contractor should have obtained a
license because the total cost of the work exceeded $25,000 and,
therefore, that Tenn. Code Ann. S 62-6-103(b) (Supp. 2003) limits the
contractor's damages to his actual documented expenses.  Accordingly,
we vacate the judgment and remand the case.

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

JENNIFER LEE HEWSON v. KERRY DAVID HEWSON

Court:TCA

Attorneys:                          

Clark Lee Shaw, Nashville, Tennessee, for the appellant, Kerry David
Hewson.

Jeffrey L. Levy, Nashville, Tennessee, for the appellee, Jennifer Lee
Hewson.

Judge: KOCH

First Paragraph:

This appeal involves the financial aspects of a divorce decree filed
by the Circuit Court for Davidson County.  The husband takes issue
with the apportionment of the marital debts, the amount of child
support, and the award of spousal support.  We affirm the trial court.

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

DIANE MARIE BIEGEN OSTHEIMER v. RICHARD HAROLD OSTHEIMER

Court:TCA

Attorneys:                          

David E. Caywood, Memphis, Tennessee, for the appellant, Diane Marie
Biegen Ostheimer.

Stuart B. Breakstone, Memphis, Tennessee, for the appellee, Richard
Harold Ostheimer.

Judge: KIRBY

First Paragraph:

This is a child support case.  The parties were divorced, and custody
of their child was awarded to the mother.  As child support, the
father was ordered to pay a flat-amount per month plus a percentage of
each commission check he earned.  Eight years later, the mother filed
a petition for contempt, asserting that the father was in arrears on
the flat-amount monthly component of his child support payments.  The
petition did not mention any arrearage based on the father's
commission- based child support obligation.  Subsequently, the trial
court entered a consent order, stating the amount of the father's
child support arrearage as of the date of the order.  The order did
not mention the father's commission-based child support obligation. 
The father did not comply with the consent order.  Subsequently, the
mother filed an amended petition for contempt, asserting that the
father was in arrears on his child support based on his failure to pay
the commission-based component of his child support obligation.  The
trial court held that the mother's claim was barred by res judicata,
based on the earlier consent order that addressed the father's child
support arrearage.  The mother now appeals.  We reverse, finding that
the mother's claim to commission-based child support arrearages was
not barred by res judicata, because the language in the consent order
is ambiguous, and the evidence does not show that the parties
negotiated that issue or contemplated that it would be resolved in the
consent order.

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

JEANNE L. SCHUETT v. EGON HORST SCHUETT, JR.

Court:TCA

Attorneys:                          

Stuart B. Breakstone, Memphis, TN, for Appellant

Mitchell D. Moskovitz, Adam N. Cohen, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case concerns issues of property division, alimony, attorney's
fees, child support and dependency exemptions, arising from the
divorce of Husband and Wife.  The trial court, after the decree of
divorce and the classification of the property of the parties as
either marital or separate, divided the property, awarded Wife alimony
in solido, ordered Husband to pay Wife's attorney's fees, set a
floating child support amount for Husband to pay, and divided the
dependency exemptions of the parties' three minor children.  For the
following reasons, we affirm in part, reverse in part, and remand for
further proceedings consistent with this opinion.

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

TINKER-WATKINS SAND & GRAVEL, INC. v. MICHAEL W. PARSONS

Court:TCA

Attorneys:                          

Michael W. Parsons, pro se, Memphis, TN

Bradford D. Box, Jackson, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves a claim for payment from Defendant for goods and
services provided by Plaintiff to Defendant under an oral contract. 
Originally, the claim was brought in the General Sessions Court for
Decatur County.  Defendant first challenged the venue of Decatur
County, which was rejected by General Sessions Court.  Defendant
appealed the judgment of the General Sessions Court to the Circuit
Court, which also denied Defendant's motion to dismiss for improper
venue and awarded Plaintiff the amount claimed under the terms of the
contract.  Defendant appealed to this Court and we affirm.

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

FORREST L. WHALEY & MARGARET ANN WHALEY v. FIRST AMERICAN TITLE
COMPANY OF MID-WEST

Court:TCA

Attorneys:                          

Richard M. Carter, Curt R. Soefker, Memphis, TN, for Appellants

Michael C. Patton, Thomas F. Barnett, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves a claim under a title insurance policy.  Plaintiffs
purchased a residence located on a two acre lot, which, they later
discovered, had been improperly subdivided from a preexisting 74 acre
tract.  As a result of the improper subdivision of their lot,
Plaintiffs are unable to obtain a building permit to construct any
improvements upon the property.  Plaintiffs then filed a claim under
their title insurance policy with Defendant.  The claim was denied,
and the Plaintiffs subsequently filed suit.  After considering
pleadings, affidavits, and deposition transcripts, the lower court
granted Defendant's motion for summary judgment, finding as a matter
of law that the policy at issue does not cover the improper
subdivision of land.  For the following reasons, we affirm the ruling
of the trial court.

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

JAMES WILKERSON v. IFEATU EKELEM

Court:TCA

Attorneys:                          

Ifeatu Ekelem, College Grove, Tennessee, Pro Se.

William C. Barnes, Jr., Columbia, Tennessee, for the appellee, James
Wilkerson.

Judge: KOCH

First Paragraph:

This case involves a dispute between a Williamson County property
owner who decided to oversee the construction of his own house and the
masonry contractor he hired to do the brick work on the project.  The
brick mason filed suit in the Williamson County Chancery Court
claiming the property owner had breached the parties' oral agreement
by failing to pay the balance due under the agreement.  The property
owner responded by claiming it was the brick mason who had breached
the contract, accusing the brick mason of failing to finish the work
in a professional manner, and charging the brick mason with slander. 
The trial court found in favor of the brick mason on his breach of
contract claim, rejected the property owner's claims, and entered a
$29,268.99 judgment in favor of the brick mason.  The property owner
appealed.  We concur with the trial court's finding that the property
owner breached the contract and, therefore, affirm the judgment.

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

FRANK CHESTER BRIGHT, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Peter T. Skeie, Nashville, Tennessee, for the Appellant, Frank Chester
Bright.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and John C. Zimmerman,
Assistant District Attorney General, for the appellee, State of
Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Davidson County jury convicted the Petitioner, Frank Chester Bright,
Jr., of possession with intent to deliver over twenty-six grams of a
substance containing cocaine, a Class B felony, and facilitation of
possession of a deadly weapon, a Class A misdemeanor.  The trial court
sentenced the Petitioner as a career offender to thirty years in
prison on the possession count and eleven months and twenty- nine days
in prison on the facilitation count, with the sentences to run
concurrently.  On direct appeal, this Court affirmed the conviction,
and the Tennessee Supreme Court denied the Petitioner's application
for permission to appeal.  The Petitioner then filed a petition
seeking post-conviction relief in the trial court, which the court
dismissed.  On appeal, the Petitioner asserts that the post-
conviction court erred when it dismissed his petition finding that
there was no merit to his claims that: (1) he was denied effective
assistance of counsel at his sentencing hearing; (2) the prosecutor
committed prosecutorial misconduct at the sentencing hearing; and (3)
the trial court's instructions to the jury violated his due process
rights.  Finding no error, we affirm the post-conviction court's
dismissal of the petition.

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

CLAYTON TURNER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Wayne R. Stambaugh, Morristown, Tennessee (on appeal), and Mark
Harris, Kingsport, Tennessee (at trial), for the appellant, Clayton
Turner.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Barry P. Staubus, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Clayton Turner, was convicted of rape of a child,
incest, and assault and received an effective sentence of thirty-one
years in the Department of Correction.  He later sought both direct
and post-conviction appeals, both of which were denied by this court
and our supreme court.  Subsequently, he filed a petition for
post-conviction relief based on the Post-Conviction DNA Analysis Act,
see Tenn. Code Ann. S 40-30-403, which was dismissed.  He appeals that
dismissal, arguing that the post-conviction court erred in not
appointing an expert to assist with his request for DNA analysis. 
Following our review, we affirm the post-conviction court's dismissal
of the petition.

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

School Buses and Seat Belts
 
Date: March 25, 2004

Opinion Number: 04-051                         

http://www.tba.org/tba_files/AG/2004/op51.pdf

Legislative Resolution on Religion

Date: March 25, 2004

Opinion Number: 04-052                         

http://www.tba.org/tba_files/AG/2004/op52.pdf

Effect and constitutionality of HB 3232 prohibiting sex offenders from
residing within 1,000 feet of a school

Date: March 25, 2004

Opinion Number: 04-053                         

http://www.tba.org/tba_files/AG/2004/op53.pdf

Issuance of arrest warrants for probation violations

Date: March 26, 2004

Opinion Number: 04-054                         

http://www.tba.org/tba_files/AG/2004/op54.pdf

Abortion

Date: March 30, 2004

Opinion Number: 04-055                         

http://www.tba.org/tba_files/AG/2004/op55.pdf

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