Opinion FlashFebruary 24, 2004
Volume 10 Number 035
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):
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Howard H. Vogel
WILLIAM OWEN BARBER v. AMELIA DIANNE BARBER CHAPMAN Court:TCA Attorneys: Dan R. Alexander, Nashville, Tennessee, for the appellant, Amelia Dianne Barber Chapman. Martin A. Kooperman, Nashville, Tennessee, for the appellee, William Owen Barber. Judge: CLEMENT First Paragraph: Mother and Father divorced in South Carolina in 1989. Father gained custody of parties' two minor children. Mother was ordered to pay child support. Subsequently, both parties left South Carolina with Mother living in Tennessee and Father living in Texas. In 2002, the parties entered into an agreed order registering the South Carolina divorce decree in the Circuit Court for Davidson County, Tennessee pursuant to Tenn. Code Ann. S 36-6-229. Father then filed a petition for contempt asserting that Mother had failed to make the last twenty-four child support payments. The trial court granted Father's petition, ordering Mother to pay $10,490.67, holding Mother in criminal contempt and sentencing her to thirty days in jail. Mother filed a motion to alter or amend, asserting that the trial court lacked jurisdiction and that the punishment was excessive. Mother's motion was denied and this appeal followed. We affirm. http://www.tba.org/tba_files/TCA/barberwilliam.wpd
DANNY R. BLALOCK, v. CAROLYN S. BLALOCK Court:TCA Attorneys: Robert L. Jolley, Jr., Knoxville, Tennessee, attorney for Appellant, Danny R. Blalock. Jerrold L. Becker and Jennifer R. Pearson, Knoxville, Tennessee, attorneys for Appellee, Carolyn S. Blalock. Judge: INMAN First Paragraph: A mediated agreement provided that Husband would sell his one-half interest in Pigeon Forge property to Wife for $500,000.00, but if the purchase price was not paid in one year, the property would be sold at auction and the net proceeds divided. The property was sold at auction for $244,429.00, net. Wife claims this amount plus $255,271.00 and the trial court agreed. http://www.tba.org/tba_files/TCA/blalock.wpd
THE BRADLEY FACTOR, INC., v. PAT HOLMES Court:TCA Attorneys: Michael E. Richardson, Chattanooga, Tennessee, for Appellant. Michael E. Jenne, Cleveland, Tennessee, for Appellee. Judge: FRANKS First Paragraph: In this action based on a personal guaranty agreement, the Trial Court determined there were no disputed issues of material fact and awarded summary judgment on the agreement. Defendant has appealed. We affirm. http://www.tba.org/tba_files/TCA/bradleyf.wpd
FARMERS MUTUAL OF TENNESSEE v. ATHENS INSURANCE AGENCY, CHARLES W. SPURLING and wife, CAROLYN SPURLING Court:TCA Attorneys: W. Gerald Tidwell, Jr., Chattanooga, Tennessee, for Appellant. William B. McKenzie, Decatur, Tennessee, for Appellee. Judge: FRANKS First Paragraph: In a declaratory judgment action by the insurance company, the Trial Court held insured was entitled to recover under the policy and awarded prejudgment interest and imposed bad faith penalty. We affirm in part and reverse in part. http://www.tba.org/tba_files/TCA/farmersmut.wpd
JASON G. GULVARTIAN v. SHENNA HOPE GULVARTIAN Court:TCA Attorneys: Scott D. Hall, Sevierville, Tennessee, for Appellant. Jerrold L. Becker, Knoxville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: The Trial Court in this divorce action awarded child support for the two children of the parties and attorney's fees to the mother. The father appeals. We affirm, as modified. http://www.tba.org/tba_files/TCA/gulvartianj.wpd
SHIN YI LIEN ET AL. v. RUTH COUCH, ET AL. Court:TCA Attorneys: William Kennerly Burger, Murfreesboro, Tennessee, for the appellant, Shin Yi (Sunny) Lien and wife, Ann Lien. Jeff Reed, Murfreesboro, Tennessee, for the appellees, Ruth Couch, Individually and Big Ridge Emu Ranch, Inc. Judge: COTTRELL First Paragraph: This is the second time the parties have been before this court in a dispute over the purchase of emu chicks. In this appeal, the Plaintiffs take issue with the trial court's limitation of damages recoverable under the Tennessee Consumer Protection Act. We reverse the judgment of the trial court. http://www.tba.org/tba_files/TCA/liens.wpd
DOMINIC P. PELLICANO v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Court:TCA Attorneys: Lora A. Barkenbus, Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville and Davidson County. Robert H. Plummer, Jr., Franklin, Tennessee, for the appellee, Dominic P. Pellicano. Judge: CLEMENT First Paragraph: Plaintiff, who had a pre-existing herniated disk, was rear-ended in a vehicular accident seven weeks after the first injury. A diskectomy was performed six months later. Treating physician equivocated when asked whether the diskectomy was necessitated by the second injury, testifying, "maybe yes; maybe no." Trial court found that Plaintiff's need for surgery was caused by incident and awarded Plaintiff judgment against Defendant for all medical expenses related to the surgery, lost wages and pain and suffering. Plaintiff did not present sufficient proof to establish that incident was cause in fact of need for surgery for physician could not state with reasonable degree of medical certainty that need for surgery was the result of the incident. Further, lay testimony of Plaintiff and Plaintiff's brother was insufficient to prove cause in fact of Plaintiff's need for surgery. Accordingly, we reverse the trial court. http://www.tba.org/tba_files/TCA/pellicanodominic.wpd
STATE OF TENNESSEE v. JEFFERY A. PACK Court:TCCA Attorneys: William B. (Jake) Lockert, III, District Public Defender, and C. Wade Bobo, Assistant District Public Defender, for the appellant, Jeffery A. Pack. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Senior Counsel; Dan Mitchum Alsobrooks, District Attorney General; and Kim G. Menke, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his conviction for false reporting on the basis of insufficient evidence to support the verdict. After review, we conclude the evidence to be sufficient to support the conviction and affirm the judgment from the trial court. http://www.tba.org/tba_files/TCCA/packja.wpd
DONALD W. RHEA, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Donald W. Rhea, Jr., Clifton, Tennessee, Pro se. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Donald W. Rhea, Jr., pled guilty in the Davidson County Criminal Court to robbery and attempted robbery and received a nine-year sentence. Subsequently, the petitioner filed for habeas corpus relief in the Wayne County Circuit Court, alleging that his sentence was illegal and that the indictments underlying his conviction were fatally defective. The trial court dismissed the habeas corpus petition and the petitioner timely appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/rheadw.wpd
STATE OF TENNESSEE v. JIMMY W. ROGERS Court:TCCA Attorneys: Lance B. Mayes, Nashville, Tennessee, for the appellant, Jimmy W. Rogers. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Amy Eisnbeck, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: Following a jury trial, the Defendant, Jimmy W. Rogers, was convicted of aggravated assault. In this direct appeal, he raises the following issues: (1) whether the trial court erred by refusing to allow him and a co-defendant to compare jury strikes; (2) whether the trial court erred by admitting a video tape and an audio tape into evidence; (3) whether the trial court erred by denying him discovery of the victim's medical records; (4) whether the trial court erred by refusing to grant him a continuance; (5) whether the trial court erred by limiting his cross-examination of the victim; (6) whether the trial court erred by refusing to grant a mistrial based on improper comments by the prosecutor during closing argument; (7) whether the trial court erred in its jury instruction; (8) whether the trial court improperly sentenced the Defendant; and (9) whether the trial court erred by refusing to suspend the Defendant's sentence pending the appeal. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/rogersjw.wpd
STATE OF TENNESSEE v. PERRY SINGO Court:TCCA Attorneys: William B. (Jake) Lockert, III, District Public Defender, for the appellant, Perry Singo. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Suzanne M. Lockert, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: A jury convicted the defendant of four counts of child rape and four counts of aggravated sexual battery. The trial court sentenced the defendant to twenty-five years on each of the child rape convictions and twelve years on each of the aggravated sexual battery convictions, with two of the child rape sentences to run consecutively and all other sentences to run concurrently, for an effective sentence of fifty years. On direct appeal, this Court reversed and dismissed three of the convictions for child rape. We remanded the case for a determination of whether the remaining sentences should run consecutively. Following a re-sentencing hearing, the trial court ordered two of the aggravated sexual battery sentences and the child rape sentence to run consecutively, for an effective sentence of forty-nine years. The defendant contends on appeal that the trail court erred in ordering consecutive sentencing. We conclude that the record supports the grounds for consecutive sentencing under Tennessee Code Annotated section 40-35-115(b)(5), and the sentence is "justly deserved in relation to the seriousness of the offenses" and is "no greater than that deserved for the offenses committed." http://www.tba.org/tba_files/TCCA/singop.wpd
STATE OF TENNESSEE v. MICHAEL DWIGHT STEWART and JAMES HENRY BROWN WITH CONCURRING OPINION Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the Appellant, Michael Dwight Stewart; C. LeAnn Smith, Easterly & Associates, Nashville, Tennessee, for the Appellant, James Henry Brown. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth T. Ryan, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellants, Michael Dwight Stewart and James Henry Brown, appeal the sentencing decisions of the Davidson County Criminal Court. Stewart pled guilty to aggravated robbery and aggravated kidnapping and received an effective twelve-year sentence. Brown pled guilty to aggravated rape and received a twenty-four-year sentence in the Department of Correction. In this consolidated appeal, Stewart and Brown raise the single issue of whether the sentences imposed were excessive. After review of the record, the sentencing decisions are affirmed. http://www.tba.org/tba_files/TCCA/stewartmichaeld_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/stewartmichaeld_con.wpd
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