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TBALink Opinion-Flash
April 30, 1996 -- Volume #2 -- Number #42
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 : 0
- New Opinons From TCA : 14
- New Opinons From TCCA : 9
- New Opinons From AG : Pending
- New Opinons From TCA : 14
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Jim Moore
TBALink Co-Chief Editor
SHIRLEY IRENE BRAY COX, v. TOM ED COX, JR., Court:TCA HAROLD D. BALCOM, JR., Kingston, for Appellant. J. POLK COOLEY, COOLEY, COOLEY & AGEE, Rockwood, for Appellee. First Paragraph: In this divorce action, the wife appeals the findings by the Trial Court relative to the property distribution, and the husband argues the Court erred in admitting an exhibit. URL:http://www.tba.org/tba_files/TCA/COXSIB.OPN.WP6
WILLIAM R. DAUGHERTY and wife
v.
SANDOR L. BRAUN and DON ANDERSON, Individually, and SANDOR
L. BRAUN and DON ANDERSON as Co-Partners associated and in
business as BRAUN-ANDERSON PARTNERSHIP and BRAUN
CONSTRUCTION CORPORATION,
Court:TCA
C. MARK TROUTMAN, McCord & Troutman, Knoxville, for
Appellants.
BEECHER A. BARTLETT, JR., and ADRIENNE L. ANDERSON, Kramer,
Rayson, Leake, Rodgers & Morgan, Knoxville, for appellees.
First Paragraph:
This case originated as an action seeking damages for breach
of a construction contract. After a lengthy bench trial,
the court found in favor of the plaintiffs against the
defendant, Braun Construction Company only and dismissed the
action as to the remaining defendants. He likewise
dismissed a counterclaim filed by Braun Construction
Company. Judgment was duly entered in favor of the
plaintiffs in the amount of eighteen thousand, three hundred
eighteen dollars and three cents ($18,318.03).
URL:http://www.tba.org/tba_files/TCA/DAUGHERT.OPN.WP6
LILLIAN H. EDWARDS, v. JASON ALAN MILLER,
Court:TCA
JAMES S. THOMPSON, Logan, Thompson, Miller, Bilbo, Thompson
& Fisher, P.C., Cleveland, for the Appellant.
PAUL H. DIETRICH, Dietrich, Dietrich & Powers, Cleveland,
for the Appellee.
First Paragraph:
This case arose out of an automobile accident. The
plaintiff, a pedestrian, was struck by a car being driven by
the defendant. At the close of the plaintiff's proof, the
court directed a verdict in favor of the defendant thereby
giving rise to this appeal. We affirm the judgment of the
trial court.
URL:http://www.tba.org/tba_files/TCA/EDWARDSL.OPN.WP6
CATHY ANN GRACEY, v. JOSEPH DOUGLAS GRACEY, JR.,
Court:TCA
DAVID M. SIBLEY, Chattanooga, for Appellant
ALBERT L. WATSON, III, Chattanooga, for Appellee
First Paragraph:
This is a post-divorce case. It revolves around the efforts
of the appellant, Joseph Douglas Gracey, Jr. (Father), to
move with his two minor children from the Hamilton County
area to California. The trial court entered an order on
July 5, 1995, changing the custody of the parties minor
child, Anna Rebekah Lee Gracey (Anna), from Father to the
childs mother, the appellee Cathy Ann Gracey (Mother). The
order provided that the custody of the other minor child,
Joshua Joel Gracey (Joshua), would remain with Father. The
order, by implication, allowed Father to move to California
with Joshua.
URL:http://www.tba.org/tba_files/TCA/GRACEYCA.OPN.WP6
AMANDA HOFFMAN b/n/f, KAREN BUCHANAN, Plaintiff/Appellant.
BLUE CROSS/BLUE SHIELD OF TENNESSEE, Intervening Plaintiff,
v.
JOSEPH E. WILKINS,
Court:TCA
Lucien Dale, Nashville, Tennessee
Thurman T. McLean,
DALE, ROSENBERG & McLEAN, Nashville, Tennessee
Attorneys for Plaintiff/Appellant.
David J. White,
WHITE & REASOR, Nashville, Tennessee
Attorney for Defendant/Appellee.
First Paragraph:
This is an appeal by Appellant, Amanda Hoffman, b/n/f Karen
Buchanan, from the trial courts grant of summary judgment
in favor of the appellee, Joseph E. Wilkins.
URL:http://www.tba.org/tba_files/TCA/HOFFMANA.OPN.WP6
JOHN JACO, v. DEPARTMENT OF HEALTH, BUREAU OF MEDICAID,
Court:TCA
THOMAS F. BLOOM, Nashville, Attorney for
Petitioner/Appellant
CHARLES W. BURSON, Attorney General & Reporter, and MICHELLE
K. HOHNKE, Assistant Attorney General, Nashville Attorneys
for Respondent/Appellee
First Paragraph:
This appeal involves the judicial review of an
administrative decision regarding the denial of petitioners
application for benefits for care at a nursing home
facility. The chancellor granted the motion to dismiss of
the Department of Health, Bureau of Medicaid (respondent
or State) on the ground that the trial court did not have
subject matter jurisdiction due to the failure of petitioner
to cause a summons to be properly issued and served on the
Department within the sixty (60) day time limit specified in
T.C.A. 4-5-322(b)(1) (1991).
URL:http://www.tba.org/tba_files/TCA/JACOJOHN.OPN.WP6
LUTHER, ANDERSON, CLEARY & RUTH, P.C., GARY CARNES,
Individually and as next friend of MICHAEL CARNES, a minor,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
and LEROY BRATTON and PATRICIA BRATTON,
Court:TCA
DAVID L. FRANKLIN of LUTHER, ANDERSON & CLEARY, P.C.,
Chattanooga, for Appellants.
JOSEPH R. WHITE of SPEARS, MOORE, REBMAN & WILLIAMS,
Chattanooga, for Appellee.
First Paragraph:
In this appeal, we are asked to decide whether an insurer is
entitled to collect its claimed subrogation interest, and,
if so, whether the insurer must pay the insureds attorney a
fee for collecting that interest from third party
tortfeasors. We affirm the trial courts ruling that the
insurer is entitled to reimbursement of its subrogation
interest, free of the attorneys fee.
URL:http://www.tba.org/tba_files/TCA/LUTHERAN.OPN.WP6
THOMAS H. MEEKS, d/b/a T.R. AGRI-SYSTEMS
v.
FRANK WHEATLEY
Court:TCA
RANDY SELLERS OF CLEVELAND FOR APPELLANT
ROGER E. JENNE OF CLEVELAND FOR APPELLEE
First Paragraph:
This is a suit by Thomas H. Meeks, d/b/a T.R. Agri Systems,
against Frank Wheatley to recover the amount owed on a
contract he alleges he had with Mr. Wheatley to remove and
re install interior equipment necessary for Mr. Wheatley's
poultry production enterprise.
URL:http://www.tba.org/tba_files/TCA/MEEKSTH.OPN.WP6
STATE OF TENNESSEE, DEPARTMENT OF HUMAN SERVICES,
v.
BONNIE SUE NORTON and RICK NORTON,
IN THE MATTER OF: CODY JAY NORTON DALLAS RAY NORTON
(Children under the age of 18 years)
Court:TCA
CHARLES W. BURSON, Attorney General & Reporter and MICHELLE
K. HOHNKE, Assistant Attorney General, Nashville, for
Petitioner-Appellee.
DAVID L. LEONARD, LEONARD & KERSHAW, Greeneville, for
Defendants-Appellants.
First Paragraph:
In this action the Trial Court terminated the parental
rights of appellants to the children ages six and seven at
the time of trial.
URL:http://www.tba.org/tba_files/TCA/NORTONBS.OPN.WP6
MELVIN SHEETS, v. BOBBY JOE KYLE and DENNIS KYLE,
Court:TCA
J. REED DIXON of DIXON & STUTTS, Sweetwater, for Appellants.
J. POLK COOLEY of COOLEY, COOLEY & AGEE, Rockwood, for
Appellee.
First Paragraph:
Melvin Sheets sued Bobby Joe Kyle (Bobby Kyle) for breach of
contract. He sought damages and other relief. He later
amended his complaint to add Bobby Kyles son, Dennis Kyle,
as an additional party defendant. Sheets alleged that he
had purchased standing oak timber from the Kyles, for which
he paid $14,500. He charged that after he started to
harvest the timber, Bobby Kyle refused to let him continue.
After a bench trial, the Chancellor entered judgment for
Sheets and awarded him $20,000 in damages. The trial court
held the Kyles jointly and severally liable.
URL:http://www.tba.org/tba_files/TCA/SHEETSM.OPN.WP6
THERESA STANBURY and spouse, JOHN H. STANBURY,
v.
BRIAN E. BACARDI and HOSPITAL CORPORATION OF AMERICA, d/b/a
CENTENNIAL MEDICAL CENTER,
and CONCURRING IN PART & DISSENTING IN PART
Court:TCA
Helen S. Rogers
JONES, ROGERS & FITZPATRICK
Nashville, Tennessee
ATTORNEY FOR PLAINTIFFS/APPELLEES
Lela M. Hollabaugh
MANIER, HEROD, HOLLABAUGH & SMITH
Nashville, Tennessee
ATTORNEY FOR DEFENDANTS/APPELLANTS
First Paragraph:
The defendant, Brian E. Bacardi, has appealed from a jury
verdict and judgment awarding plaintiff, Theresa Stanbury,
$211,000 and her husband, John H. Stanbury, $10,000, as
damages for alleged malpractice in surgery and treatment of
Mrs. Stanbury. The other captioned defendant, Hospital
Corporation of America, was dismissed by nonsuit and is not
involved in this appeal.
URL:http://www.tba.org/tba_files/TCA/STANBURY.OPN.WP6
URL:http://www.tba.org/tba_files/TCA/STANBURY.CON.WP6
WEST POINTE PROPERTIES
v.
BILLY EUGENE FRYE and WADE M. BOSWELL, Trustee
Court:TCA
JAMES W. HODGES, JR., OF MEMPHIS FOR APPELLANT
WADE M. BOSWELL OF KNOXVILLE FOR APPELLEES
First Paragraph:
West Pointe Properties, a partnership composed of two
separate corporations, in which Ronnie C. Frye was a
principal, sued Billy Eugene Frye and Wade M. Boswell,
Trustee, seeking a determination that the lien created by a
certain deed of trust on property which West Pointe now owns
had expired and that the lien created thereby was
unenforceable. The complaint also sought a temporary
restraining order prohibiting the Defendants from proceeding
with a foreclosure sale.
URL:http://www.tba.org/tba_files/TCA/WESTPNT.OPN.WP6
JOANNE WHITE & DAVID WHITE,
v.
TENNESSEE FARMERS MUTUAL INSURANCE COMPANY,
Court:TCA
ANDREW HUME OWENS
Memphis, Tennessee
Attorney for Appellant
JERE FONES
THORP AND FONES
Memphis, Tennessee
Attorney for Appellees
First Paragraph:
The primary issue in this case is whether the insured
complied with certain notice provisions of an automobile
liability insurance policy issued by defendant. The trial
court held that there was sufficient compliance with the
policy and entered judgment against the defendant insurance
company. For the reasons stated below, we affirm.
URL:http://www.tba.org/tba_files/TCA/WHITEJOA.OPN.WP6
STATE OF TENNESSEE,v. DAVID M. ALLEN,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
Brenda S. Bramlett Charles W. Burson
Attorney at Law Attorney General & Reporter
724 North Main Street
P.O. Box 967 Michelle L. Lehmann
Shelbyville, TN 37160 Counsel for the State
William Michael McCown
District Attorney General
Gary M. Jones
Asst. Dist. Attorney
First Paragraph:
The appellant, David M. Allen, pled guilty to incest. The
trial judge sentenced him to five years confinement and
denied his request for alternative sentencing. Appellant
appeals, arguing that the trial court erred in denying him
alternative sentencing. We affirm the trial judge.
URL:http://www.tba.org/tba_files/TCCA/ALLENDAV.OPN.WP6
MICHAEL A. FOURNIER,v. STATE OF TENNESSEE,
and DISSENTING OPINION
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
Andrew Jackson Dearing, III Charles W. Burson
117 S. Main Street, Suite 101 Attorney General & Reporter
Shelbyville, TN 37160
William David Bridgers
Assistant Attorney General
William Michael McCown
District Attorney General
Weakley E. Barnard
Asst. Dist. Attorney General
First Paragraph:
The petitioner, Michael A. Fournier, was tried in the
general sessions court for Marshall County on a warrant
charging him with driving under the influence (fifth
offense). Following the proof, the judge took the case
under advisement. Two weeks later, the judge announced that
he had found the petitioner guilty of DUI. Petitioner's
counsel was shocked because he had had ex parte
communications with the judge and thought the judge was
going to find the petitioner not guilty.
URL:http://www.tba.org/tba_files/TCCA/FOURNIER.OPN.WP6
URL:http://www.tba.org/tba_files/TCCA/FOURNIER.DIS.WP6
ANTHONY I. HAYES, v. STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
ANTHONY HAYES, Pro-Se CHARLES W. BURSON
NECC Box 5000 Attorney General and Reporter
Mountain City, TN
EUGENE J. HONEA
Assistant Attorney General
JERRY N. ESTES
District Attorney General
STEVE WARD
Assistant District Attorney General
First Paragraph:
This is an appeal as of right from an order of the trial
court dismissing a petition for post-conviction relief
without an evidentiary hearing. The trial court ruled that
all of the issues raised in the petition had either been
previously determined or had been waived, and furthermore
that consideration of the petition was barred by the statute
of limitations. We affirm the order of the trial court.
URL:http://www.tba.org/tba_files/TCCA/HAYESAI.OPN.WP6
STATE OF TENNESSEE, v. JANET LUTRY,
Court:TCCA
For the Appellant: For the Appellee:
Lu Ann Ballew Charles W. Burson
Asst. Public Defender Attorney General and Reporter
P. O. Box 416
Dandridge, TN 37725 Christina S. Shevalier
Assistant Attorney General
Alfred C. Schmutzer, Jr.
District Attorney General
James Gass
Asst. District Attorney General
First Paragraph:
The appellant, Janet Lutry, pursuant to Rule 9, Tenn. R.
App. P., appeals from the judgment of the Criminal Court of
Jefferson County, affirming the district attorney general's
denial of pre-trial diversion. The appellant seeks to
divert the offense of forgery, a class E felony. The sole
issue in this appeal is whether the trial court erred in
finding that the district attorney general did not abuse his
discretion in denying her application for pre-trial
diversion.
URL:http://www.tba.org/tba_files/TCCA/LUTRY.OPN.WP6
STATE OF TENNESSEE, v. RONALD LEBRON MADDEN,
Court:TCCA
For the Appellant: For the Appellee:
Charles G. Wright Charles W. Burson
253 East 11th Street Attorney General of Tennessee
Chattanooga, TN and
Hunt S. Brown
Asst Attorney General of TN
William H. Cox, III
District Attorney General
and
H.C. Bright, Jr.
Assistant District AG
First Paragraph:
The defendant, Ronald Lebron Madden, was convicted in two
separate jury trials in the Criminal Court of Hamilton
County for conspiracy to sell cocaine, attempt to sell or
deliver cocaine, felonious possession of counterfeit
controlled substances, evading arrest, and robbery. For the
conspiracy to sell cocaine and the attempt to sell or
deliver cocaine, Class C offenses, the defendant received
respective sentences of ten years as a Range III, persistent
offender.
URL:http://www.tba.org/tba_files/TCCA/MADDEN.OPN.WP6
STATE OF TENNESSEE, v. TERRY TAYLOR,
Court:TCCA
For the Appellant: For the Appellee:
Peter M. Olson Charles W. Burson
114 Franklin Street Attorney General of Tennessee
Clarksville, TN 37040 and
Sharon S. Selby
Asst Attorney General of TN
Dan Mitchum Alsobrooks
District Attorney General
and
Wally Kirby
Asst District Attorney General
First Paragraph:
The defendant, Terry Taylor, appeals from his conviction in
the Cheatham County Circuit Court, following a bench trial,
for statutory rape, a Class E felony. He received a
sentence of one year as a Range I, standard offender to be
served in the Cheatham County Workhouse. In this appeal as
of right he presents the following issues:
URL:http://www.tba.org/tba_files/TCCA/TAYLORTR.OPN.WP6
BRYAN SCOTT VEAL, v. STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
MARK E. STEPHENS CHARLES W. BURSON
District Public Defender Attorney General and Reporter
Sixth Judicial District
EUGENE J. HONEA
PAULA R. VOSS Asst District Attorney General
Assistant Public Defender
RANDALL E. NICHOLS
District Attorney General
STEVE GARRETT
Asst District Attorney General
First Paragraph:
This is an appeal as of right from an order of the trial
court dismissing a petition for post-conviction relief
without an evidentiary hearing. The trial court ruled that
consideration of the petition was barred by the statute of
limitations. We affirm the order of the trial court.
URL:http://www.tba.org/tba_files/TCCA/THOMASRY.OPN.WP6
STATE OF TENNESSEE, v. RAYMOND THOMAS,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL R. JONES CHARLES W. BURSON
Public Defender Attorney General and Reporter
FRED W. LOVE GEORGE LINEBAUGH
Assistant Public Defender Assistant District Attorney
JOHN CARNEY
District Attorney General
DENT MORRISS
Assistant District Attorney General
First Paragraph:
The Defendant appeals as of right from the judgment of the
trial court which found him to be in violation of the terms
of his probation. The Defendant argues that the trial judge
failed to exercise conscientious judgment and abused his
discretion. We disagree and affirm the judgment of the
trial court.
URL:http://www.tba.org/tba_files/TCCA/VEAL.OPN.WP6
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