-
TBALink Opinion-Flash
October 04, 1996 -- Volume #2 -- Number #85
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.
- This Issue IN THIS ORDER:
- 01-New Opinons From TSC
- 00-New Opinons From TSC-Rules
- 04-New Opinons From TSC-Workers Comp Panel
- 27-New Opinons From TCA
- 08-New Opinons From TCCA
- 01-New Opinons From TSC
There are three ways to get the full opinion from the Web: (TBALink members only)
- Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a
plain text version of the opinion.
- *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original
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.
George Dean
TBALink Chief Editor
STATE OF TENNESSEE, EX REL., Appellant, v. BROOK THOMPSON, State Coordinator of Elections RILEY DARNELL, Secretary of State, CHARLES BURSON, Attorney General of Tennessee DON SUNDQUIST,Governor of the State of Tennessee PENNY WHITE,Justice of the Supreme Court of Tennessee, In their respective official capacities, Defendants STATE OF TENNESSEE EX REL., LEWIS LASKA Appellant, BROOK THOMPSON, Coordinator of Elections, Court:TSC FOR APPELLANT HOOKER FOR STATE DEFENDANTS John J. Hooker, Pro Se Robert L. Delaney Charles W. Burson Nashville Attorney General & Reporter FOR APPELLANT LASKA Andy D. Bennett Bob Lynch, Jr. Associate Chief Deputy Nashville Michael W. Catalano FOR INTERVENOR KING Associate Solicitor General John K. King, Pro Se Knoxville Judge: BY THE SPECIAL COURT First Paragraph: These consolidated cases arise from the efforts of appellants, Lewis Laska and John Jay Hooker, to have their names placed on the ballot for the August 1, 1996, statewide election to the office of Supreme Court Justice. The deadline for filing nominating petitions for this election was 12:00 noon on May 16, 1996, in accordance with T.C.A. 2-5-101. URL:http://www.tba.org/tba_files/TSC/HOOKER2.OPN.WP6
DANNY J. ADAMS,
v.
LIBERTY MUTUAL INSURANCE COMPANY and PLUMLEY COMPANIES, INC., and U.
S. TOOL & GAUGE, INC.,
w/JUDGMENT ORDER
Court:TSC - Workers Comp Panel
FOR APPELLANT: FOR APPELLEES:
Catherine B. Clayton Lisa June Cox
Spragins, Barnett, Cobb 64 Lynoak Cove
& Butler Jackson, TN 38305
Post Office Box 2004
Jackson, TN 38302-2004 Floyd S. Flippin
Adams, Ryal & Flippin
Post Office Box 160
Humboldt, TN 38343
Judge: CLARK
First Paragraph:
This workers compensation appeal has been referred to the special
workers compensation appeals panel of the Supreme Court in accordance
with Tenn. Code Ann. 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.
Liberty Mutual Insurance Company (Liberty Mutual) and Plumley
Companies, Inc. (Plumley) have appealed the trial courts decision
requiring them to pay plaintiff workers compensation benefits based
on fifty percent permanent impairment to the body as a whole. Liberty
Mutual and Plumley raise four issues: 1. Should Plumley be
responsible for a shoulder injury that did not occur during
plaintiffs employment there? 2. Is plaintiffs shoulder injury
claim against Plumley barred by his misrepresentation of his physical
condition? 3. Is plaintiffs claim of a shoulder injury barred by
his failure to give timely notice to Plumley? 4. Should plaintiffs
subsequent employer, defendant U. S. Tool & Gauge (U. S. Tool) be
responsible for any aggravation to his shoulder where plaintiff did
not seek medical treatment until he had worked for U. S. Tool for
about five months?
URL:http://www.tba.org/tba_files/TSC_WCP/ADAMSDAN.OPN.WP6
URL:http://www.tba.org/tba_files/TSC_WCP/ADAMSDAN.JO.WP6
FLORINE VANDYKE
v.
PLUMLEY RUBBER COMPANY and LIBERTY MUTUAL INSURANCE CO.,
w/JUDGMENT ORDER
Court:TSC - Workers Comp Panel
For Appellants: For Appellee:
Catherine B. Clayton Ricky L. Boren
Spragins, Barnett, Cobb & Butler Hill Boren
Jackson, Tennessee Jackson, Tennessee
Judge: White
First Paragraph:
This workers compensation appeal has been referred to the Special
Workers Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated section 50-6-225 (e)(3) for hearing and
reporting of findings of fact and conclusions of law. In this appeal,
the employer, Plumley Rubber Company and the insurance carrier,
Liberty Mutual, contend the trial court erred in granting judgment for
medical expenses to the employee after they had been paid by the
employees health plan. The panel agrees and reverses the judgment of
the trial court.
URL:http://www.tba.org/tba_files/TSC_WCP/VANDYKE.OPN.WP6
URL:http://www.tba.org/tba_files/TSC_WCP/VANDYKE.JDG.WP6
VICTORIA NGOZI ANENE v. JOHN NNAMDI ANENE
Court:TCA
JOHN R. MELDORF, III, OF HIXSON FOR APPELLANT
PHILLIP C. LAWRENCE OF CHATTANOOGA FOR APPELLEE
Judge: Goddard
First Paragraph:
The Defendant, John Nnamdi Anene appeals a judgment of the Circuit
Court of Hamilton County granting Victoria Ngozi Anene's petition for
divorce and awarding her custody of their three minor children. Mr.
Anene raises five issues on appeal, two of which are jurisdictional.
(See appendix.) As to the jurisdictional issues, we find that the
Circuit Court of Hamilton was correct in assuming jurisdiction to hear
both the divorce and custody issues. We find the remaining issues to
be without merit.
URL:http://www.tba.org/tba_files/TCA/ANENE.OPN.WP6
GROVER R. BASS, v. JOHN C. KIMBROUGH,
Court:TCA
ROGER A. STONE
STONE, HIGGS, and DREXLER
Memphis, Tennessee
Attorney for Appellant
WILLIAM A. COHN
THE COHN LAW FIRM
Cordova, Tennessee
Attorney for Appellee
Judge: ALAN E. HIGHERS
First Paragraph:
This case concerns liability in connection with the default on a
promissory note for the purchase of stock in a closely held
corporation. After a bench trial, the trial court awarded a judgment
in favor of the plaintiff and also awarded attorneys fees to
plaintiff. Two principal issues are before the Court. The first is
whether the plaintiff gave the necessary parties proper notice of
default under the terms of the promissory notes executed by the
parties. The second is whether the guarantor of the promissory notes
is liable under the personal guaranty if proper notice was, in fact,
given. We find that the trial court was correct in its holding that
proper notice was given and that the personal guarantor was liable.
Accordingly, we affirm the trial courts conclusion.
URL:http://www.tba.org/tba_files/TCA/BASSGRO.OPN.WP6
BELLSOUTH TELECOMMUNICATIONS, INC.,
v.
KEITH BISSELL, STEVE HEWLETT, SARA KYLE, Constituting the Tennessee
Public Service Commission,
Court:TCA
FOR APPELLANT: FOR APPELLEES:
Bennett L. Ross Dianne F. Neal
Nashville, Tennessee Public Service Commission
Nashville, Tennessee
FOR INTERVENOR FOR TENNESSEE CONSUMERS:
AT? COMMUNICATIONS, INC: Charles W. Burson
Attorney General & Reporter
Val Sanford
John Know Walkup Michael E. Moore
Nashville, Tennessee Solicitor General
L. Vincent Williams
Consumer Advocate Division
Nashville, Tennessee
Judge: BEN H. CANTRELL
First Paragraph:
The Tennessee Public Service Commission ordered the completion of a
previously authorized investigation of the future earnings of
BellSouth Telecommunications, despite legislative developments that
stripped the Commission of its authority to use such an investigation
to set telephone rates. BellSouth filed a petition with this court
for review of the PSCs order, arguing that completion of the
investigation was inconsistent with the legislative purpose. We
reverse the Commissions order and remand the case for further
consideration by the Tennessee Regulatory Commission.
URL:http://www.tba.org/tba_files/TCA/BELLS1.OPN.WP6
ARTHUR BLAIR, v. MARILYN BADENHOPE,
Court:TCA
CHARLES G. CURRER, Knoxville, for Petitioner-Appellant.
JOHN T. MILBURN ROGERS, ROGERS, LAUGHLIN, NUNNALLY, HOOD & CRUM,
Greeneville, for Respondent-Appellee.
Judge: Franks
First Paragraph:
Joy Badenhope is the child of Susan Badenhope and Arthur Blair. Susan
Badenhope, a resident of North Carolina, died when the child was less
than one year old. After her death, Joy began residing with her
maternal grandmother, Marilyn Badenhope, in Tennessee. The
grandmother was granted custody by a North Carolina court in an action
for custody she filed some two months after the mothers death. The
father soon thereafter moved to Tennessee and filed an action in
Tennessee to increase visitation and attain custody.
URL:http://www.tba.org/tba_files/TCA/BLAIRA.OPN.WP6
RICHARD BRIGGS and STEPHANIE R. BRIGGS,
v.
RIVERSOUND LIMITED PARTNERSHIP, WILLIAM S. NIX d/b/a WSN ENTERPRISES,
GENERAL PARTNER, and DARYL WAGNER,
Court:TCA
DAVID N. GARST, Lewis, King, Krieg & Waldrop, P.C., Knoxville for
appellant.
DAVID E. SMITH, Hodges, Doughty & Carson, Knoxville, for Appellee.
Judge: McMurray
First Paragraph:
The single issue in this case is whether a remote purchaser of a home
may maintain a negligence action against the builder of the home
despite a lack of contractual privity. The trial court granted
summary judgment in favor of the defendant and this appeal resulted.
We reverse the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCA/BRIGGSR.OPN.WP6
ADA BELL BROWN and BEVERLY J. EVERETT, MARION EVERETT BARTON, and
GERALD JOSEPH EVERETT,
v.
RALPH EVERETT (individually and as Executor of the Estate of Joseph
Robert Everett), HERBERT D. EVERETT, JAMES R. EVERETT, DORIS D.
HIGGINS, KATIE T. TOMLINSON and LAURA SHAW,
Court:TCA
DAVID R. SWAFFORD, SWAFFORD & SWAFFORD, Pikeville, for
Plaintiffs-Appellees.
EDWIN Z. KELLY, JR., KELLY, KELLY & GOUGER, P.C., Jasper, for
Defendants-Appellants, Ralph Everett, James R. Everett, Doris D.
Higgins, Katie G. Tomlinson, and Laura Shaw.
Judge: Franks
First Paragraph:
In this contest of the will of the deceased, Joseph Everett, a jury
returned special verdicts that the deceased did not have sufficient
mental capacity to make a valid will, and Joseph Robert Everett,
Deceased, was unduly influenced by Ralph Everett on March 11 to the
extent that such influence amounted to coercion, destroying the free
will of the deceased and substituting his will for the deceased and
compelling the deceased to make a disposition he otherwise would not
have made.
URL:http://www.tba.org/tba_files/TCA/BROWNAB.OPN.WP6
DANA LYNNE BURLESON, v. MICKEY DWAYNE BURLESON,
Court:TCA
James F. Butler,
SPRAGINS, BARNETT, COBB & BUTLER, Jackson, Tennessee
Attorney for Defendant/Appellant.
Carthel L. Smith, Jr., Lexington, Tennessee
Attorney for Plaintiff/Appellee.
Judge: FARMER
First Paragraph:
Defendant-Appellant, Mickey Dwayne Burleson (Father), appeals the
trial courts judgment denying his petition to modify the child
custody provisions of the parties final divorce decree.
URL:http://www.tba.org/tba_files/TCA/BURLESON.OPN.WP6
FAYE LOUISE TAYLOR CHADWELL
v.
ALBERT CHADWELL and CONSOLIDATION COAL COMPANY
Court:TCA
JERROLD L. BECKER and LUCINDA M. ALBISTON OF KNOXVILLE FOR APPELLANTS
JOHNNY V. DUNAWAY OF LaFOLLETTE OF KNOXVILLE FOR APPELLEE
Judge: Goddard
First Paragraph:
In this post-divorce proceeding, the Chancellor found that certain
assets owned by Albert Chadwell at the time of the parties divorce
were marital assets and that his former wife, Faye Louise Taylor
Chadwell, was entitled to a judgment against him of $94,320 which
included interest from the date of the divorce. The Chancellor also
impressed a lien against certain real estate originally owned by Mr.
Chadwell, who later purported to transfer an interest to his present
wife. Both the real estate and the home Mr. Chadwell erected thereon
were paid for in part with the assets in dispute in this appeal.
URL:http://www.tba.org/tba_files/TCA/CHADWELL.OPN.WP6
JOSEPH COLLINS, III v. HELENE LAROSE CLEGG,
Court:TCA
Attorneys: N/A
Judge: HOLLY KIRBY LILLARD
First Paragraph:
RULE 10 ORDER AND OPINION
This matter appears appropriate for consideration pursuant to Rule
10(a) of the Rules of the Court of Appeals of Tennessee. The facts in
this case are well summarized in the Memorandum Opinion by the
Honorable Joe G. Riley: The mother and father lived together in
Michigan for approximately fifteen (15) years but were never married.
They had a daughter, Cnanah, now seven (7) years of age.
URL:http://www.tba.org/tba_files/TCA/COLLINS3.OPN.WP6
MICHAEL SCOTT EVANS, v. KAREN MARIE BISSON STEELMAN,
w/DISSENTING OPINION & CONCURRING OPINION
Court:TCA
CLARK LEE SHAW
2525 Lebanon Road
Nashville, Tennessee 37214
STEVEN M. MOORE
30 Music Square West, Suite 301
Nashville, Tennessee 37203
Attorneys for Petitioner/Appellant
PHILLIP W. DUER
MARY ARLINE EVANS
214 Third Avenue, North
Nashville, Tennessee 37201
Attorneys for Respondent/Appellee
CHARLES W. BURSON
Attorney General & Reporter
JENNIFER HELTON SMALL
Deputy Attorney General
1510 Parkway Towers
Nashville, Tennessee
Intervenor
Judge: BEN H. CANTRELL
First Paragraph:
In this appeal we are asked to re-visit the question of whether a man
who fathers a child by a married woman may legitimate the child. The
Davidson County Juvenile Court held that the legitimation statute
allowing a putative father to legitimate a child not born in lawful
wedlock applied only to children born to unmarried women. If that
interpretation holds, the appellant attacks the constitutionality of
the statute on due process and equal protection grounds. We affirm
the lower courts interpretation of the statute and reject the
appellants contention that the statute is constitutionally defective.
URL:http://www.tba.org/tba_files/TCA/EVANSM.OPN.WP6
URL:http://www.tba.org/tba_files/TCA/EVANSM.CON.WP6
URL:http://www.tba.org/tba_files/TCA/EVANSM.DIS.WP6
JEANNIE FARROW,
v.
CHARLES F. BARNETT AND FORT SANDERS PARKWEST MEDICAL CENTER,
Court:TCA
CARL R. OGLE, JR.
P.O. Box 129
Jefferson City, TN 37760
ATTORNEY FOR PLAINTIFF/APPELLANT
ROBERT H. WATSON, JR.
JOHN C. DUFFY
Watson, Hollow and Reeves, P.L.C.
1700 First Tennessee Plaza Tower
800 South Gay Street
Post Office Box 131
Knoxville, Tennessee 37901-0131
ATTORNEYS FOR DEFENDANT/APPELLEE
CHARLES F. BARNETT, M.D.
F. MICHAEL FITZPATRICK
Arnett, Draper & Hagood
2300 First Tennessee Plaza
Knoxville, Tennessee 37929-2300
ATTORNEY FOR DEFENDANT/APPELLEE
FORT SANDERS PARKWEST MEDICAL CENTER
Judge: SAMUEL L. LEWIS
First Paragraph:
This is an appeal by plaintiff/appellant, Jeannie Farrow, from two
orders of the trial court which granted the motion to dismiss filed by
defendant/appellee, Charles F. Barnett, M.D. (Dr. Barnett), and the
motion for summary judgment filed by defendant/appellee, Fort Sanders
Parkwest Medical Center (the Medical Center). In its orders, the
trial court concluded that plaintiff failed to file her action within
the applicable statute of limitations. The facts out of which this
controversy arose are as follows.
URL:http://www.tba.org/tba_files/TCA/FARROWJ2.OPN.WP6
LAMAR FLETCHER, v. JOHN W. CAMPBELL,
Court:TCA
Lamar Fletcher, Pro Se
Donnie E. Wilson, County Attorney, Memphis, Tennessee
Danny Presley, Executive Assistant County Attorney, Memphis, Tennessee
For Defendant/Appellee.
Judge: FARMER
First Paragraph:
Plaintiff-Appellant, Lamar Fletcher (Fletcher), appearing pro se,
appeals the trial courts order granting the motion to dismiss filed
by Defendant-Appellee, JohnW. Campbell (Campbell). In May 1995,
Fletcher filed a complaint for fraud against Campbell. The essence of
Fletchers fraud claim was that Campbell, Fletchers former attorney,
testified untruthfully at a December 1992 hearing held on Fletchers
petition for post-conviction relief in a criminal case and that,
relying upon these misrepresentations, the criminal court judge
hearing the case denied Fletchers petition.
URL:http://www.tba.org/tba_files/TCA/fletchr2.opn.WP6
DEBRA JEWELL YOUNG FORD, v. DENNIS CLIFFORD FORD,
Court:TCA
STEPHEN DAVIS CRUMP, Chancey, Kanavos & Crump, Cleveland, for
Appellant.
ROGER E. JENNE, Jenne, Scott & Bryant, Cleveland, for appellee.
Judge: McMurray
First Paragraph:
This appeal arises from the judgment of the trial court which, among
other things, awarded a divorce to the defendant, provided for custody
of the parties' minor children and made a division of the marital
estate. We affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCA/FORDDC.OPN.WP6
PAMELA LEMOINE FORD, v. MICHAEL BURKE FORD,
Court:TCA
MARTIN B. DANIEL
Memphis, Tennessee
Attorney for Appellant
MARK D. JOHNSTON
Dyersburg, Tennessee
Attorney for Appellee
Judge: ALAN E. HIGHERS
First Paragraph:
In this post-divorce proceeding, Pamela Ford (wife) filed a petition
to modify child support and alimony. Although the trial court
declined to increase alimony, the court increased the amount of child
support that Michael Ford (husband) was obligated to pay based upon
his increased income. Wife has appealed and argues that the trial
court erred in several respects. First, she asserts that the trial
court erred in holding that the husbands receipt of principal from an
irrevocable trust is not gross income as that term is defined within
the child support guidelines. Next, she contends that the trial court
improperly failed to consider the value of the trust in increasing
child support. Furthermore, wife argues that the trial court should
have imputed income to husband based upon his voluntary unemployment.
Finally, wife argues that the trial court erred in denying her request
for an increase in alimony. For the reasons stated below, the
judgment below is affirmed in part, reversed in part, and remanded for
further proceedings.
URL:http://www.tba.org/tba_files/TCA/FORDPL.OPN.WP6
FRED JOHNS, ADMINISTRATOR OF THE ESTATE OF SUE EVA JOHNS,
v.
TAKOMA ADVENTIST HOSPITAL,
Court:TCA
DAVID W. BLANKENSHIP, Kingsport, for Plaintiff/Appellant.
ROY F. SATTERWHITE, III, and JAMES H. LONDON, LONDON, AMBURN &
THOMFORDE, P.C., Knoxville, for Defendant/Appellee.
Judge: Franks
First Paragraph:
In this action for damages for personal injuries to the deceased, the
complaint alleged the deceased "was placed in a room while in
defendant hospital, and on April 18, 1991, she was found lying on the
floor with injuries about her head and face." It was further alleged
that "it was not learned until well after her death, in conversation
with the physicians of the plaintiff decedent, that the decedent more
likely would have survived for many years had she not fallen . . ."
URL:http://www.tba.org/tba_files/TCA/JOHNSFR.OPN.WP6
SUSAN KAY MALIK, v. KAFAIT U. MALIK,
Court:TCA
RUSSELL C. WINSTON
Memphis, Tennessee
Attorney for Appellant
JAMES B. FISHER, JR.
Memphis, Tennessee
Attorney for Appellee
Judge: ALAN E. HIGHERS
First Paragraph:
In this post-divorce proceeding, Kafait U. Malik (husband) appeals
from the trial courts judgment ordering him to cash out and/or borrow
against his pension and retirement funds in order to satisfy the
courts prior distribution of marital property to Susan K. Malik
(wife).
URL:http://www.tba.org/tba_files/TCA/MALIKSK.OPN.WP6
MARK McCAIN,v. AIRPORT HONDA and BOB RUTHERFORD,
Court:TCA
KEVIN W. SHEPHERD, Maryville, for Plaintiff-Appellant.
BEECHER A. BARTLETT, JR., and ADRIENNE L. ANDERSON, KRAMER, RAYSON,
LEAKE, RODGERS & MORGAN, Knoxville, for Defendants Appellees.
Judge: Franks
First Paragraph:
In this action asking damages for alleged retaliatory discharge, the
Trial Court granted employer summary judgment, and plaintiff has
appealed. We affirm.
URL:http://www.tba.org/tba_files/TCA/MCCAINM.OPN.WP6
BILLY GWINN MITCHELL,
v.
SAM F. COLE, JR., Substitute Trustee, ESTATE OF PRUDENCE REYNOLDS, and
GERALD W. PICKENS,Administrator CTA,
Court:TCA
Attorneys: N/A
Judge: Hewitt P. Tomlin
First Paragraph:
ORDER
Plaintiff has timely filed a petition to rehear in this cause. After
full consideration the petition is respectfully denied.
URL:http://www.tba.org/tba_files/TCA/MITCHELL.ORD.WP6
TERI MICHELLE PARKER, v. RICHARD KEN PARKER,
Court:TCA
For the Plaintiff/Appellant: For the Defendant/Appellee:
Robert Clive Marks Laurence M. McMillan, Jr.
Clarksville, Tennessee Clarksville, Tennessee
Judge: HOLLY KIRBY LILLARD
First Paragraph:
In this case, Plaintiff-Appellant, Teri Michelle Parker (Wife),
appeals the trial courts decision to award custody of the parties'
child, Dylan Ken Parker, to Defendant-Appellee, Richard Ken Parker
(Husband), alleging that the custody determination was based on the
effects of racial prejudice. We affirm the trial courts award of
custody to Husband.
URL:http://www.tba.org/tba_files/TCA/PARKERTM.OPN.WP6
RONNIE WILSON PERRY, v. MARLA RENEE PERRY (ROBINSON)
Court:TCA
For the Plaintiff/Appellee: For the Defendant/Appellant:
Jessica Dawn Dugger Jon S. Jablonski
Gregory S. Gill Nashville, Tennessee
Lebanon, Tennessee
Judge: HOLLY KIRBY LILLARD
First Paragraph:
This is a child custody case. Appellant Marla Perry sought to move
out of state with the minor children of her previous marriage. In
response, Appellee Ronnie Perry filed a petition seeking a change in
custody. The trial court held that custody would be changed in the
event that the mother moved out state. We reverse, based on the
Tennessee Supreme Courts decision in Aaby v. Strange, 924 S.W.2d 623
(Tenn. 1996)
URL:http://www.tba.org/tba_files/TCA/PERRYRW.OPN.WP6
ELMER RICHARDSON, Individually, and as Surviving Spouse of Goldie H.
Richardson, Deceased
v.
CITY OF KNOXVILLE
Court:TCA
SHARON E. BOYCE OF KNOXVILLE FOR APPELLANT
JOHN T. JOHNSON, JR., OF KNOXVILLE and BILL FAIN OF SEYMOUR FOR
APPELLEE
Judge: Goddard
First Paragraph:
The City of Knoxville appeals judgments rendered in favor of Elmer
Richardson, surviving spouse of Goldie H. Richardson, for personal
injuries received by him and the wrongful death of his wife in the
amount of $30,000, and $130,000, respectively.
URL:http://www.tba.org/tba_files/TCA/RICHARDE.OPN.WP6
WENDY SETTERS, individually and as the parent of the minors, Melanie
Ann Setters and Nicole Krystal Setters,
v.
PERMANENT GENERAL ASSURANCE CORPORATION,
Court:TCA
For Appellant For Appellee
E.L. PARKER, III JERRY M. MARTIN
Etowah, Tennessee Knoxville, Tennessee
Judge: Susano
First Paragraph:
This is a declaratory judgment action. In the complaint, Wendy
Setters (Mrs. Setters) seeks a declaration that an exclusion in her
automobile insurance policy is invalid as against public policy; and,
alternatively, that the exclusion, due to an ambiguity in the
insurance policy, is unenforceable against her. The subject provision
excludes the extension of liability coverage to an insured when that
persons negligence causes injury to a family member. Relying on this
exclusion, the defendant, Permanent General Assurance Corporation
(Permanent General), denied coverage with respect to claims asserted
by Mrs. Setters individually and on behalf of her children arising
solely out of injuries sustained by the children in an automobile
accident. The accident was caused, in part, by the negligent driving
of her husband. The trial court granted Permanent Generals motion
for judgment on the pleadings, finding the exclusion to be valid,
enforceable and not violative of the public policy of Tennessee.
Plaintiff appeals, raising two issues that present the following
questions:1. Is a provision in an automobile insurance policy
excluding coverage for liability to a family member violative of the
public policy of Tennessee? 2. Is the liability coverage in the
subject policy ambiguous so as to warrant a strict construction
against Permanent General?
URL:http://www.tba.org/tba_files/TCA/SETTERS.OPN.WP6
LINDA DIANE STAMPS, v. STEPHEN RAY STAMPS,
Court:TCA
STEPHEN RAY STAMPS, Pro Se.
Judge: FARMER
First Paragraph:
Stephen Ray Stamps appeals the judgment of the trial court dismissing
his Petition for Visitation Rights for lack of jurisdiction. The
parties were divorced in the court below and Linda Diane Stamps was
awarded custody of the parties minor daughter. Mr. Stamps was
incarcerated at that time.
URL:http://www.tba.org/tba_files/TCA/STAMPSLD.OPN.WP6
SUSAN RENEE WRIGHT WILLIAMSON,v. JOHN HOUSTON WILLIAMSON,
Court:TCA
PERRY P. PAINE, JR., PAINE, GARRETT & BRAY, Maryville, for
Plaintiff-Appellant.
JERRY G. CUNNINGHAM, KIZER & BLACK, Maryville, for Defendant Appellee.
Judge: Franks
First Paragraph:
In this divorce action the Trial Court awarded to each party an
absolute divorce from the other on the grounds of inappropriate
marital conduct. The Court awarded the custody of the parties two
minor children to the mother, ordered the father to pay child support
based upon the guidelines, and in dividing the parties marital estate
concluded that their home was a gift from the husbands parents to him
alone, and therefore separate property. From this latter
determination, the wife has appealed.
URL:http://www.tba.org/tba_files/TCA/WILLIASR.OPN.WP6
WILLIAM A. WINNINGHAM, Executor of the Estate of Alston Winningham,
v.
TAMMY K. WINNINGHAM,
Court:TCA
JOHN R. OFFICER, Livingston, for Appellant.
HARRY D. SABINE, Sabine & Douglas, P.C., Crossville, for Appellee.
Judge: McMurray
First Paragraph:
We are called upon in this appeal to determine whether relying on the
advice of an attorney in filing an unfounded will contest constitutes
probable cause sufficient to avoid the enforcement of a forfeiture
clause in the will. For the reasons set forth below, we find that
such reliance does constitute probable cause, and reverse the judgment
of the trial court.
URL:http://www.tba.org/tba_files/TCA/WINHAM.OPN.WP6
STATE OF TENNESSEE,v. BRIAN K. COLLINS,
Court:TCCA
For Appellant: For Appellee:
Gale Flanary Charles W. Burson
Assistant Public Defender Attorney General & Reporter
Office of the Public Defender
P.O. Box 839 Clinton J. Morgan
Blountville, TN 37617 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
Nancy Harr
Assistant District Attorney General
Second Judicial District
P.O. Box 526
Blountville, TN 37617
Judge: GARY R. WADE
First Paragraph:
The defendant, Brian K. Collins, was convicted of violating a habitual
traffic offender order, violation of registration, and evading arrest.
He was sentenced as a range one offender to two years for violating
the order, thirty days for violation of registration, and eleven
months and twenty nine days for evading arrest, all to be served
concurrently. This is his appeal of right.
URL:http://www.tba.org/tba_files/TCCA/COLLINSB.OPN.WP6
STATE OF TENNESSEE, v. KATHERINE H.GALLAHER
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
MR. J. DANIEL FREEMON CHARLES W. BURSON
Attorney at Law Attorney General and Reporter
Freemon and Hillhouse
P.O. Box 787
Lawrenceburg, TN 38426 CHARLOTTE H. RAPPUHN
Attorney Generals Office
450 James Robertson Parkway
Nashville, TN 37243
JOHN W. OVERTON
Asst. District Attorney General
Main Street
Savannah, TN 38372
Judge: LYNN W. BROWN
First Paragraph:
The appellant, Katherine H. Gallaher, pleaded guilty in the Criminal
Court for Hardin County, Tennessee, to the offense of driving under
the influence of an intoxicant, second offense. The trial court
imposed a sentence of 11 months and 29 days of which the appellant was
required to serve 180 days in jail followed by 5 months and 29 days of
supervised probation. Her drivers license was revoked for three
years and a fine of six hundred dollars was imposed. The only issue
presented in this appeal is whether the sentence imposed by the trial
court is appropriate. We affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/gallahr2.opn.WP6
STATE OF TENNESSEE, v. JOSEPH A. MILLS, JR.,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
Natalee S. Hurley Charles W. Burson
Assistant Public Defender Attorney General & Reporter
419 High Street 450 James Robertson Parkway
Maryville, TN 37804 Nashville, TN 37243-0497
OF COUNSEL: Timothy F. Behan
Assistant Attorney General
R. Mack Garner 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
419 High Street
Maryville, TN 37804 Michael L. Flynn
District Attorney General
363 Court Avenue
Maryville, TN 37804-5906
Phillip H. Morton
Assistant District Attorney General
363 Court Avenue
Maryville, TN 37804-5906
Judge: Joe B. Jones
First Paragraph:
The appellant, Joseph A. Mills, Jr., was convicted of driving while
under the influence, a Class A misdemeanor, by a jury of his peers.
It is not clear whether the appellant was sentenced for a second or
third offense. The trial court imposed a sentence consisting of a
fine in the amount of $1,350 and confinement for eleven months and
twenty-nine days in the Blount County Jail. The trial court suspended
all but 180 days of the sentence and placed the appellant on probation
for the balance of the sentence. In this Court, the appellant
contends that the evidence is insufficient to support his conviction
and the sentence imposed is excessive. After a thorough review of the
briefs submitted by the parties, the record, and the authorities that
control the issues presented for review, it is the opinion of this
Court that the appellants conviction should be affirmed. This cause
is remanded to the trial court for a determination of whether the
appellant was sentenced as a second or third offender.
URL:http://www.tba.org/tba_files/TCCA/MILLSJA.OPN.WP6
STATE OF TENNESSEE, v. RICHARD REDMOND,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
MR. ORVIL L. ORR CHARLES W. BURSON
Attorney at Law Attorney General and Reporter
204 S. College St.
P.O. Box 351 ROBIN L. HARRIS
Trenton, TN 38382 Attorney Generals Office
450 James Robertson Parkway
Nashville, TN 37243
CLAYBURN L. PEEPLES
District Attorney General
28th Judicial District
109 East First Street
Trenton, TN 38382
LARRY HARDISTER
Assistant District
Attorney General
109 East First Street
Trenton, TN 38382
Judge: LYNN W. BROWN
First Paragraph:
The appellant, Richard Redmond, indicted for two counts of aggravated
assault, entered a plea of guilty in the Circuit Court for Crockett
County to a single offense of felony reckless endangerment, receiving
a sentence of two years with thirty days to be served in custody.
Subsequently he filed a petition for post-conviction relief alleging
that his guilty plea was not entered knowingly, voluntarily and
intelligently. The petition also alleged that he received ineffective
assistance from his counsel at the guilty plea. The trial court
denied relief, from which judgment the appellant has appealed by right
to this court.
URL:http://www.tba.org/tba_files/TCCA/REDMOND.OPN.WP6
STATE OF TENNESSEE, v. ALLEN RAY RICKER,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
T. Wood Smith Charles W. Burson
Attorney at Law Attorney General & Reporter
128 South Main Street 500 Charlotte Avenue
Greeneville, TN 37743 Nashville, TN 37243-0497
Darian B. Taylor
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
C. Berkley Bell
District Attorney General
113 West Church St., Suite 401
Greeneville, TN 37745
Michelle Green
Asst. District Attorney General
113 West Church St., Suite 401
Greeneville, TN 37745
Judge: Joe B. Jones
First Paragraph:
The appellant, Allen Ray Ricker, was convicted of theft under $10,000,
a Class D felony, by a jury of his peers. The trial court found that
the appellant was a standard offender and imposed a Range I sentence
of confinement for three (3) years in the Department of Correction.
The appellant contends that the trial court committed error of
prejudicial dimensions by: (a) denying his motion for a judgment of
acquittal at the conclusion of the states case in chief because the
state failed to prove the venue of the offense and failed to prove
that the person named in the indictment was the owner of the wrecker
in question, and (b) permitting the state to reopen its case in chief
to prove the venue of the offense. After a thorough review of the
record, the briefs submitted by the parties, and the law that governs
the issues presented for review, it is the opinion of this Court that
the judgment of the trial court should be affirmed.
URL:http://www.tba.org/tba_files/TCCA/RICKERAR.OPN.WP6
STATE OF TENNESSEE, v. WILLIAM HERBERT STITTS,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
GEORGE MORTON GOOGE CHARLES W. BURSON
District Public Defender Attorney General and Reporter
227 W. Baltimore St.
Jackson, TN 38301 CHARLETTE REED CHAMBERS
Attorney Generals Office
PAMELA DREWERY 450 James Robertson Parkway
Asst. Public Defender Nashville, TN 37243-0493
227 West Baltimore Street
Jackson, TN 38301 DON ALLEN
Asst. District Attorney General
P.O. Box 2825
Jackson, TN 38301
Judge: LYNN W. BROWN
First Paragraph:
The appellant, William Herbert Stitts, was convicted upon trial by
jury of aggravated robbery. The trial court imposed a sentence of
eleven years. In this appeal of right the appellant raises two
issues: 1) whether the proof at trial was sufficient to support a
verdict of guilty, and 2) whether the sentence imposed was proper.
URL:http://www.tba.org/tba_files/TCCA/STITTSWH.OPN.WP6
STATE OF TENNESSEE, v. JOHN RUSSELL TURNER,
Court:TCCA
For the Appellant: For the Appellee:
Mack Garner Charles W. Burson
District Public Defender Attorney General and Reporter
318 Court Street
Maryville, TN 37801 Michael J. Fahey, II
Assistant Attorney General
Mary Ann Queen,
Legal Assistant
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Michael L. Flynn
District Attorney General
Charles Carpenter
Asst. District Attorney General
Blount County Courthouse
Maryville, TN 37801
Judge: David G. Hayes
First Paragraph:
The appellant, John Russell Turner, appeals from his conviction by a
jury for driving under the influence of an intoxicant. The Circuit
Court of Blount County sentenced the appellant to eleven months and
twenty-nine days incarceration in the county jail and suspended all
but five days. On appeal, the appellant contends that the evidence
adduced at trial is insufficient to support a conviction, because the
State failed to prove that he intended to operate a vehicle.
URL:http://www.tba.org/tba_files/TCCA/TURNERJ.OPN.WP6
STATE OF TENNESSEE,
v.
DAVEY JOE VINEYARD, and JIMMY LEE COCKBURN,
Court:TCCA
FOR THE APPELLANTS FOR THE APPELLEE
Kenneth L. Miller Charles W. Burson
Logan, Thompson, Miller, Bilbo, Attorney General & Reporter
Thompson & Fisher, P.C.
P.O. Box 191 Hunt S. Brown
Cleveland, TN 37364-0191 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Jerry N. Estes
District Attorney General
Joseph A. Rehyansky
Asst District Attorney General
93 Ocoee St. N., Ste. 200
P.O. Box 1351
Cleveland, TN 37364
Judge: JOHN K. BYERS
First Paragraph:
The Defendants entered pleas of guilty and reserved the right to
appeal the following issue only: DID THE TRIAL COURT ERR IN DENYING
DEFENDANTS MOTION TO SUPPRESS BECAUSE THE STOP OF DEFENDANTS VEHICLE
WAS MADE WITHOUT PROBABLE CAUSE AND WAS A PRETEXTUAL STOP MADE FOR
ILLEGAL REASONS?
URL:http://www.tba.org/tba_files/TCCA/VINEYARD.OPN.WP6
Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/
Would you like to receive the TBALink Opinion-Flash each day via e-mail?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank
Non TBA members are WELCOME to subscribe...it's free!!
Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank
© Copyright 1998 Tennessee Bar Association - This Issue IN THIS ORDER: