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TBALink Opinion-Flash
February 15, 1996 -- Volume #2 -- Number #17
Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts and the TN Attorney General.
- This Issue:
- New Opinons From TSC : 1
- New Opinons From TCA : 11
- New Opinons From TCCA : 2
- New Opinons From AG : Pending
- New Opinons From TCA : 11
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WP 6.0 document. version of the opinion.
- Click the URL Link at end of each Opinion Paragraph below. This option will allow you to download the original WP 6.0 document.
Jim Moore
TBALink Co-Chief Editor
BENNIE WOODSON, as Administrator of the Estate of Elizabeth W. Terrell, Deceased, and as Administrator of the Estate of John Thomas Woodson, Deceased, v. PORTER BROWN LIMESTONE COMPANY, INC. and FELIX EWING MORRIS, Court:TSC For Plaintiff/Appellant: For Defendants/Appellees: Ann Buntin Steiner Robert E. Hoehn Frank Steiner John B. Carlson STEINER & STEINER WATKINS, McGUGIN, Nashville, TN McNEILLY & ROWAN Nashville, TN First Paragraph: In this appeal from the Cheatham County Circuit Court, we are confronted by a unique aberration of the rules of law announced by the United States Supreme Court in Batson v. Kentucky, Powers v. Ohio, and Edmondson v. Leesville Concrete Company, Inc.. In that series of cases, the United States Supreme Court recognized first, that the criminal defendant's rights are violated when race-based challenges exclude a juror from service, Batson v. Kentucky, 475 U.S. 79 (1985); second, that the exclusion likewise violates a juror's rights, Powers v. Ohio, 499 U.S. 400 (1991); and third, that the juror's and litigant's rights are viable in civil, as well as criminal, cases. Edmondson v. Leesville Concrete Company, Inc., 500 U.S. 614 (1991). In the case before the Court we must consider the impact of these rules in a civil case in which the excluded minority juror declines to serve. URL:http://www.tba.org/tba_files/TSC/WOODSON.OPN.WP6
ALBERT LEE CRAIN, v. VELMA CHRISTINE CRAIN,
Court:TCA
For the Plaintiff/Appellee: For the Defendant/Appellant:
Barbara J. Walker Thomas L. Whiteside
Columbia, Tennessee Fowlkes & Whiteside
Nashville, Tennessee
First Paragraph:
This appeal involves the dissolution of a 27-month marriage.
After declaring the parties divorced pursuant to Tenn. Code
Ann. 36-4-129(b) (1991), the Chancery Court for Maury County
awarded the parties the property held in their separate
names and declined to award the wife rehabilitative spousal
support. The wife now takes issue with the trial courts
denial of her request for rehabilitative spousal support.
We have determined that the wife is not entitled to spousal
support under the facts of this case and, therefore, affirm
the judgment.
URL:http://www.tba.org/tba_files/TCA/CRAINAL.OPN.WP6
LEMUEL A. DUCKETT, v. SHEILA ANN DUCKETT,
Court:TCA
GLENNA M. RAMER, Chattanooga, for Appellant
HARRY BERKE of BERKE, BERKE & BERKE, Chattanooga, for
Appellee
First Paragraph:
This appeal arises out of post-divorce proceedings. The
issues raised by the appellant, Lemuel A. Duckett (Father),
cause us to focus on a hearing before the trial court on
October 24, 1994. At that hearing, the court received proof
with respect to two pleadings--a petition for contempt filed
by Sheila Ann Duckett (Mother), and a petition to modify
filed by Father. In her petition, Mother claimed that
Father was in contempt because of his failure to make
payments on a child support arrearage of $7,650 established
by an order entered April 20, 1994. Father, on the other
hand, sought the custody of the parties' only child, Lee
Belton Duckett, who was 17-1/2 years old at the time of the
hearing.
URL:http://www.tba.org/tba_files/TCA/DUCKETT.OPN.WP6
EMMA JEAN ELDREDGE, v. BILLY W. MONAGHAN and wife, KATHY
MONAGHAN,
Court:TCA
Barrett T. Painter, Cleveland, For the Appellant
James F. Logan, Jr., Cleveland, For the Appellee
First Paragraph:
This action for damages and for rescission of a deed
executed and delivered on March 7, 1990 was dismissed for
failure by the plaintiff to carry the burden of proof. She
appeals, insisting that the evidence preponderates against
the judgment of dismissal. Our standard of review is de
novo on the record accompanied by the presumption that the
judgment is correct unless the evidence otherwise
preponderates. Tenn. R. App. P. 13(d). We affirm for the
reasons following.
URL:http://www.tba.org/tba_files/TCA/ELDREDGE.OPN.WP6
REGINA DARLENE HUNTER v. ED BROWN, JR.
and CONCURRING OPINION
Court:TCA
JERROLD L. BECKER and LUCINDA M. ALBISTON
OF KNOXVILLE FOR APPELLANT
PATRICK C. COOLEY OF KINGSTON FOR APPELLEE
First Paragraph:
Darlene Hunter filed this action against Ed Brown, Jr., on
July 15, 1993, alleging that he sexually abused her during
1981 and 1982. In his answer, Mr. Brown denied the
allegations of the complaint and averred that the action was
barred by T.C.A. 28-3 104(a), the one-year statute of
limitations applicable to personal injury actions. On
January 31, 1995, the Trial Court granted summary judgment
to Mr. Brown, ruling that the statute of limitations barred
Ms. Hunter's claim. Ms. Hunter appeals the Trial Court's
ruling, insisting that her suppressed memory of the event
tolled the running of the statute of limitations.
URL:http://www.tba.org/tba_files/TCA/HUNTER.OPN.WP6
URL:http://www.tba.org/tba_files/TCA/HUNTER.CON.WP6
JOHNNY KING, v. CITY OF CARYVILLE,
Court:TCA
PHILIP A. KAZEE of SEXTON, SEXTON, & KAZEE, P.C., Oneida,
for Appellant.
CARROL D. KILGORE of BRANSTETTER, KILGORE, STRANCH &
JENNINGS, Nashville, for Appellee.
First Paragraph:
This is a breach of contract action. The defendant City of
Caryville (Caryville or City) refused to honor a contract
admittedly executed by its Mayor. The contract granted the
plaintiff Johnny King (King) the exclusive right to operate
and manage a solid waste landfill for the City. The trial
court granted Caryville's Tenn. R. Civ. P. 12.02(6) motion
to dismiss, finding that under the provisions of
[Caryville's] statutory Charter and particularly of T.C.A.
former 6-2-201(1) and (19), the power [to authorize the
contract] could only be exercised by following the formal
requisites for the adoption of ordinances and not by mere
resolution of the City Council, so that the Resolution
adopted and the Contract entered into are ultra vires and
therefore null and void under T.C.A. former 6-2-103(b).
URL:http://www.tba.org/tba_files/TCA/KINGJOHN.OPN.WP6
HUBERT MOREE, v. CAROL BRYANT and ROGER MOREE,
Court:TCA
FLOYD E. HUTCHERSON, Rockwood, for Plaintiff-Appellant.
JOHN D. AGEE, COOLEY, COOLEY & AGEE, Kingston, for
Defendants Appellees.
First Paragraph:
In this action, grantor's father sought to set aside a deed
to his children. The Trial Court refused to grant relief
and the father has appealed.
URL:http://www.tba.org/tba_files/TCA/MOREE.OPN.WP6
JACK A. MORRIS, v. RICHARD JOHNSON, ET AL,
Court:TCA
Richard L. Dunlap Paris, Tennessee
ATTORNEY FOR PLAINTIFF/APPELLEE
John D. Drake Murfreesboro, Tennessee
ATTORNEY FOR DEFENDANT/APPELLANT
First Paragraph:
The Defendant appeals from a judgment in favor of the
Plaintiff rendered by the trial judge, sitting without a
jury, in a case brought by a licensed real estate broker to
recover his sales commission from the owner of the real
estate. The owner listed his property with the Plaintiff
realtor, who obtained the signatures of a prospective buyer
and the seller on an Agreement of Sale. The sale was never
closed. We affirm the award of a judgment below for the
amount of the commission.
URL:http://www.tba.org/tba_files/TCA/MORRIS.CTA.WP6
CECELIA C. MUNSEY, As Administratrix of the Estate of
Lillian E. Collins
v.
JOHN CHARLES BARRETT, JR, ALLSTATE INSURANCE, and NANCY
BARKER McNUTT, as Administratrix of the Estate of Wiley O.
Collins
Court:TCA
THOMAS C. JESSEE OF JOHNSON CITY and THOMAS DOSSETT OF
KINGSPORT FOR APPELLANT
REBECCA OTTINGER CUTSHAW OF GREENEVILLE FOR APPELLEE JOHN
CHARLES BARRETT, JR.
First Paragraph:
Cecelia C. Munsey, as Administratrix of the estate of her
mother, Lillian E. Collins, appeals a $10,000 judgment
rendered in her favor against John Charles Barrett, Jr., and
the Allstate Insurance Company, uninsured motorist carrier
for the vehicle being operated by her husband, in which she
was a passenger.
URL:http://www.tba.org/tba_files/TCA/MUNSEY.OPN.WP6
IN RE: ESTATE OF ERA MAE CRAWFORD, WAGGONER RICHARDSON,
CHARLES RICHARDSON AND JUANITA MIZE,
v.
PAT M. FRALEY, SUCCESSOR EXECUTRIX, ESSIE BILES and ANDY
BILES,
Court:TCA
JOE W. HENRY, JR.
HENRY, HENRY, STACK,
GARNER & SPEER, P.C.
Pulaski, Tennessee
Attorney for Plaintiffs/Appellants
FRED I. WOMACK
Fayetteville, Tennessee
DON WYATT
Fayetteville, Tennessee
Attorneys for Defendants/Appellees
First Paragraph:
This is an appeal from a decision by the trial court holding
that the persons who joined in the petition to probate a
will in common form could not subsequently contest the will.
We reverse the trial court on the issue actually decided
and remand the cause for further proceedings on the issue of
estoppel.
URL:http://www.tba.org/tba_files/TCA/RICHARD.OPN.WP6
SAM TUCKER and wife DOROTHY TUCKER
v.
HOLIDAY OUT IN AMERICA AT TANSI CAMPSITE SUBDIVISION NO. 1
PROPERTY OWNERS ASSOCIATION
Court:TCA
HARRY D. SABINE OF CROSSVILLE FOR APPELLANT
HENRY T. OGLE OF KNOXVILLE FOR APPELLEES
First Paragraph:
In this suit Sam Tucker and his wife Dorothy Tucker sue
Holiday Out In America At Tansi CampSite Subdivision No. 1
Property Owners Association, seeking a declaration that the
Association's attempt to amend the master deed applicable to
all lots in the subdivision, which precluded them from
receiving water from November 16 through March 14 of the
ensuing year was unenforceable.
URL:http://www.tba.org/tba_files/TCA/TUCKERSA.OPN.WP6
STATE OF TENNESSEE, v. JAMES BRADLEY,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
ELLERY E. HILL CHARLES W. BURSON
Charter Federal Building Attorney General and Reporter
Knoxville, TN
AMY L. TARKINGTON
Assistant Attorney General
JERRY N. ESTES
District Attorney General
STEVE WARD
Assistant District Attorney
First Paragraph:
At a bench trial the Appellant, James Bradley, was convicted
in the Monroe County Criminal Court of two counts of
assault. He received concurrent sentences of eleven months
and twenty-nine days and a $250 fine on each count.
Following service of sixty days incarceration, the balance
of the sentences were suspended. In this direct appeal, the
Appellant maintains that the trial judge erroneously
rejected the theory the Appellant acted in self-defense. We
find no such error and affirm the conviction.
URL:http://www.tba.org/tba_files/TCCA/BRADLEYJ.OPN.WP6
LAWRENCE MOORE, v. STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
Mark E. Stephens Charles W. Burson
District Public Defender Attorney General/ Reporter
David Gall Randall E. Nichols
Assistant Public Defender District Attorney General
Knoxville, Tennessee
Hunt S. Brown
Asst Atty. Gen. / Reporter
Zane Scarlett
Assistant District Attorney General
First Paragraph:
This is an appeal as of right by the appellant, Lawrence
Moore, from a judgment entered in the Knox County Criminal
Court dismissing his petition entitled "Petition for Writ of
Habeas Corpus Without Application to Tenn. Code Ann. 29-21
104." Although styled as a petition for writ of habeas
corpus, the trial court treated the petition as one seeking
post-conviction relief, and upon motion of the State,
dismissed the petition as being time-barred pursuant to
Tennessee Code Annotated section 40-30-102.
URL:http://www.tba.org/tba_files/TCCA/MOORE3.OPN.WP6
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