Opinion Flash

July 21, 2004
Volume 10 — Number 139

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
09 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


MELVIN L. BOOKOUT, ET AL. v. KNOX COUNTY BOARD OF ZONING APPEALS, ET
AL.

Court:TCA

Attorneys:                          

Joshua J. Bond and Wayne A. Kline, Knoxville, Tennessee, for
appellants, Melvin L. Bookout, Anthony P. and Debra L. Sliger, George
E. Campbell, Fred F. and Wendy N. Foster, Carson L. and Evelyn Barger,
Todd M. and Jennifer C. Olson, Donald F. and Donna A. Sharp and States
View Homeowners Association.

Robert C. McConkey III, Knoxville, Tennessee, attorney for appellees,
Knox County Board of Zoning Appeals and Commission of Knox County.

Arthur G. Seymour Jr. and Robert L. Kahn, attorneys for appellee, The
Williams Company.

John K. King, Knoxville, Tennessee, attorney for appellee, John R.
Fiser.

Judge: INMAN

First Paragraph:

This is a zoning case.  The principal issue is whether a rezoning
amendment must explicitly designate the maximum density approved with
reference to ancillary documentation.

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

AILEEN STANDIFER CRAFT v. CLAIBORNE COUNTY

Court:TCA

Attorneys:                          

Michael G. Hatmaker, Jacksboro, Tennessee, for appellant, Aileen
Standifer Craft.

James D. Estep III, Tazewell, Tennessee, attorney for appellee,
Claiborne County, Tennessee.

Judge: INMAN

First Paragraph:

The initial judgment declared that Standifer Lane was a public road
for one-tenth mile only.  Sixteen (16) months after the judgment was
entered, the County filed a Rule 62.02 motion alleging that "one-
tenth mile" was a mistake because all concerned had agreed upon
two-tenths mile.  The judgment was amended to provide that Standifer
Lane is a public road for a distance of 950 feet or to an existing
driveway.  The Rule 62.02 motion is untimely.

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

CRYSTAL JILL CUNNINGHAM v. JOHN W. GILL

Court:TCA

Attorneys:                          

James Reed Brown, Byrdstown, Tennessee, for the appellant, Crystal
Jill Cunningham.

James Frank Wilson, Wartburg, Tennessee, for the appellee, John W.
Gill.

Judge: CLEMENT

First Paragraph:

Plaintiff filed a complaint seeking a reversion of Defendant's mineral
interests in Plaintiff's land, alleging that Defendant had abandoned
the interests. The trial court held that the mineral interests had not
been abandoned because Defendant had made use of the mineral interests
by paying taxes on the mineral interests.  We affirm.

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

SHERRI DYER KENDALL v. LANE COOK, M.D.

Court:TCA

Attorneys:                          

Samuel W. Brown and Arthur F. Knight, III, Knoxville, Tennessee, for
the Appellant, Sherri Dyer Kendall.

F. Laurens Brock, Anthony A. Jackson, and Justin M. Sveadas,
Chattanooga, Tennessee, for the Appellee, Lane Cook, M.D.

Judge: SWINEY

First Paragraph:

Sherri Dyer Kendall ("Plaintiff") sought treatment for bipolar
disorder from a psychiatrist, Lane Cook, M.D. ("Defendant"). 
Defendant prescribed Topamax for Plaintiff.  Less than one week later,
Plaintiff began to experience loss of vision, severe headache, and
severe vomiting.  Plaintiff was diagnosed with acute angle closure
glaucoma and underwent several surgical procedures to control or
correct the problem.  When Defendant prescribed Topamax to Plaintiff,
it was unknown in the medical community that a potential side effect
of Topamax was acute angle closure glaucoma.  That acute angle closure
glaucoma was a potential side effect was discovered later by the
medical community, and Plaintiff  sued Defendant  for medical
malpractice.  At the close of Plaintiff's proof at trial, Defendant
moved for a directed verdict, which the Trial Court granted. 
Plaintiff appeals.  We affirm.

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

J.C. KING, ET AL. v. GATLINBURG SPORTSMAN'S CLUB, INC.

Court:TCA

Attorneys:                          

John B. Waters III and Garrett P. Swartwood, Knoxville, Tennessee, for
the appellant, Gatlinburg Sportsman's Club, Inc.

Cynthia Richardson Wyrick and James L. Gass, Sevierville, Tennessee,
for the appellees, J. C. King,  Roy King, Kathy Huskey, Peggy Roberts,
Mary King, and Gail Reagan.

Judge: CLEMENT

First Paragraph:

Lessors, who are descendants of the original lessor, filed suit
against the Gatlinburg Sportsman's Club, Inc., to declare that the
real estate lease had been breached by the Club due to its failure to
build a clubhouse as required by the lease.  The Club argued that it
built a clubhouse that satisfied the lease for the lease did not
contain specifications for the type or size of clubhouse.  It further
argued that it was not in breach for the lessors had extended the
deadline indefinitely to build a more substantial clubhouse.  The Club
also argued that the lessors' claim was barred by the six- year
statute of limitations, equitable estoppel, waiver and laches and that
the lessors' violated the Club's right of first refusal to purchase
the property by not selling the property as the decedent's will
directed and for making transfers of partial interests in the property
amongst the beneficiaries and descendants of the original lessor.  The
trial court ruled that the parties mutually suspended the deadline by
which the Club was to build a clubhouse, that the Club failed to build
a clubhouse, that the Club was in material breach and, therefore, the
lease was terminated.  We reverse in part finding that the parties did
not mutually suspend the obligation or deadline to build a clubhouse,
that the completion date for the clubhouse was June 30, 1990, and that
the lessors did not file suit until May 5, 2000; therefore, the
lessors are barred by the six-year statute of limitations. We affirm
the trial court's ruling that the lessors did not violate the Club's
right of first refusal to purchase the property, finding that the
inter-family transfers did not violate the Club's right of first
refusal.

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

BARBARA D. LOWE, ET AL. v. RUTH C. CHENEVERT a/k/a RUTH ROBERTSON

Court:TCA

Attorneys:                          

Rick L. Moore, Tullahoma, TN, for Appellants

Walter F. Nichols, Manchester, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case arises from an automobile accident in which Ms. Lowe was
injured by an uninsured motorist.  Ms. Lowe and her husband filed suit
against the motorist and were awarded a total of $25,000 in damages,
which they sought to have satisfied by Tennessee Farmer's Mutual
Insurance Company under the terms of their uninsured motorist
insurance policy. Tennessee Farmer's refused to pay the claim,
asserting that Ms. Lowe had already signed a complete release in
exchange for a settlement in excess of $5,000.  In the ensuing
litigation, the trial court granted Tennessee Farmer's motion for
summary judgment, finding that Ms. Lowe had, indeed, signed a release
as part of a settlement with Tennessee Farmer's.  For the following
reasons, we reverse the judgment of the trial court and remand for
further proceedings.

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

LINDA OTTINGER, ET AL. v. SHELLY EVANS OTTINGER
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Marvin Berke, Chattanooga, Tennessee, for the Appellant, Shelly Evans
Ottinger.

Sherry B. Paty and Randall D. Larramore, Chattanooga, Tennessee, for
the Appellees, Linda Ottinger and Marion Ottinger.

Judge: SWINEY

First Paragraph:

Linda Ottinger and Marion Ottinger ("Plaintiffs") are the paternal
grandparents of H.O. ("the Child").  The Child's father died in 2000. 
Plaintiffs sought visitation with the Child.  This visitation was
opposed by the Child's mother, Shelly Evans Ottinger ("Defendant"). 
Plaintiffs filed a petition to obtain grandparent visitation under
Tenn. Code Ann. S 36-6-306.  After trial, the Trial Court held, inter
alia, that the Child has had a significant existing relationship with
the Plaintiffs and the loss of that relationship presents the danger
of direct and substantial harm to the Child.  The Trial Court granted
Plaintiffs visitation.  Defendant appeals.  We reverse.

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

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

SHARON PULLUM ET AL. v. RICHARD L. ROBINETTE

Court:TCA

Attorneys:                          

Wayne L. Robbins, Jr., Mary Taylor Gallagher, A. Scott Derrick and W.
Scott Sims, Nashville, Tennessee, for the appellant, Richard L.
Robinette, D.M.D.

M. Andrew Hoover, Andrew N. Grams and Mary A. Gabbett, Pulaski,
Tennessee, for the appellees, Sharon Pullum and Robert Pullum.

Judge: COTTRELL

First Paragraph:

The plaintiff suffered numbness and partial facial paralysis after a
root canal.  She subsequently filed a malpractice suit against the
dentist who performed the procedure.  The defendant filed a motion in
limine seeking to exclude all testimony by the plaintiff's expert
witness on the ground that he did not meet the requirements of Tenn.
Code Ann. S 29-26-115.  The trial court denied the motion and, after
hearing testimony on his qualifications at trial, allowed the expert
to testify in front of the jury, which returned a $150,000 verdict for
the plaintiff.  The defendant argues on appeal that the trial court
erred by allowing the expert to testify, and that we should
accordingly reverse the verdict and judgment.  We do not agree, and we
affirm the judgment of the trial court approving the verdict.

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

STATE OF TENNESSEE v. ADAM BETTS

Court:TCCA

Attorneys:                          

Brett Stein and Robert Chamoun, Memphis, Tennessee, for the appellant,
Adams Betts.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William L. Gibbons, District Attorney
General; and Paul Goodman and Mike Davis, Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Adam Betts, was convicted by a jury of first degree
premeditated murder.  In this direct appeal, he argues that: 1) the
evidence is insufficient to support his conviction; 2) the trial court
erred by admitting a photograph of the victim; and 3) the trial court
erred by denying the Defendant's request for special jury
instructions.  We affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. BEN THOMAS DOWLEN

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Ben
Thomas Dowlen.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; John Wesley Carnery, Jr., District
Attorney General; and C. Daniel Brollier, Assistant District Attorney
General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

In this action which originated as a post-conviction proceeding
seeking the grant of both a delayed appeal and a new trial due to
ineffective assistance of counsel, Ben Thomas Dowlen appeals.  We
affirm the lower court's ruling on the sentencing issue raised in the
delayed appeal, and we likewise affirm the lower court's denial of
post-conviction relief.

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

STEVEN GASS v. STATE OF TENNESSEE
CORRECTED OPINION WITH MEMO

Court:TCCA

Attorneys:                          

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Ben
Thomas Dowlen.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough,
Assistant Attorney General; John Wesley Carnery, Jr., District
Attorney General; and C. Daniel Brollier, Assistant District Attorney
General, for the Appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Steven Gass, was convicted by a jury in the Rutherford
County Circuit Court of rape of a child, aggravated sexual battery,
and attempted rape of a child.  The petitioner received a total
effective sentence of thirty-two years incarceration in the Tennessee
Department of Correction.  Subsequently, the petitioner filed a
petition for post-conviction relief, citing several instances of
ineffective assistance of counsel.  After a hearing, the
post-conviction court denied the petition, and the petitioner timely
appealed.  Upon review of the record and the parties' briefs, we
affirm the judgment of the post-conviction court.

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

CORRECTION MEMO
http://www.tba.org/tba_files/TCCA/gasss_mem.wpd

STATE OF TENNESSEE v. HAROLD DAVID HANEY, SR.

Court:TCCA

Attorneys:                          

Robert S. Peters, Winchester, Tennessee, for the appellant, Harold
David Haney, Sr.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and William B. Copeland, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

Following a bench trial, the defendant, Harold David Haney, Sr., was
convicted of violation of a motor vehicle habitual offender ("MVHO")
order and DUI, second offense.  He was sentenced as a Range I,
standard offender to two years for the MVHO violation and eleven
months, twenty-nine days for the DUI conviction, to be served
concurrently in the Department of Correction.  In addition, he was
fined a total of $1100 and his driver's license was revoked for two
years.  On appeal, he argues that the State failed to establish venue.
 After review, we affirm the judgments of the trial court.

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

TONY JELKS, a/k/a TONIE JELKS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

James S. Haywood, Jr., Brownsville, Tennessee, for the appellant, Tony
Jelks.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Gerald Campbell, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Tony Jelks, pled guilty in the Haywood County Circuit
Court to aggravated burglary and aggravated assault.  He received a
total effective sentence of ten years incarceration in the Tennessee
Department of Correction.  Subsequently, the petitioner filed a
petition for post- conviction relief, alleging that he received the
ineffective assistance of counsel and that his pleas were not
knowingly and voluntarily entered.  The post-conviction court denied
the petition, and the petitioner timely appealed.  Upon review of the
record and the parties' briefs, we affirm the judgment of the
post-conviction court.

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

BERNARD KEYS v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

John H. Parker, II, Memphis, Tennessee, for the appellant, Bernard
Keys.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; Emily Campbell, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Shelby County jury convicted the Petitioner, Bernard Keys, of
aggravated burglary and evading arrest.  The trial court sentenced the
Petitioner to fifteen years in prison for the aggravated burglary
conviction, and eleven months and twenty-nine days for the evading
arrest conviction, and ordered that the sentences run consecutively. 
The Petitioner filed a petition for post-conviction relief, alleging
that his attorney was ineffective for failing to investigate his case
and prepare properly for trial.  Following a hearing, the
post-conviction court denied the petition.  Finding no error, we
affirm the post-conviction court's judgment.

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

MABLE LONGMIRE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

R. Price Harris, Memphis, Tennessee, for the appellant, Mable
Longmire.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General;  William L. Gibbons, District Attorney
General; and Steve Jones, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Mable Longmire, was convicted by a jury of first degree
premeditated murder.  Her conviction was affirmed on direct appeal. 
See State v. Mabel  J. Longmire, No. W1999-00216- CCA-R3-CD, 2001 WL
128561 (Tenn. Crim. App., Feb. 15, 2001, Jackson).  The Defendant
subsequently filed for post-conviction relief, alleging ineffective
assistance of counsel.  After an evidentiary hearing, the trial court
denied relief and this appeal followed.  We affirm the judgment of the
trial court.

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

RANDALL MILLS v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

N. Andy Myrick, Jr., for the appellant, Randall Mills.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee

Judge: WADE

First Paragraph:

The petitioner, Randall Mills, appeals the denial of post-conviction
relief.  The single issue presented for review is whether the
petitioner was denied the effective assistance of counsel at trial. 
The judgment is affirmed.

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

RANDALL WATSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Brett Stein, Memphis, Tennessee, for the appellant, Randall Watson.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; William L. Gibbons, District Attorney
General; and Emily Campbell, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Randall Watson, pled guilty to second degree murder. 
He subsequently filed a petition for habeas corpus relief.  After
considering the Defendant's petition as presented and also as a
petition for post-conviction relief, the trial court dismissed the
Defendant's pleading.  This appeal followed.  We affirm the trial
court's judgment.

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

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