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RULE 13 IN RE: SUPREME COURT RULES Court:TSC - Rules First Paragraph: After due consideration, the Rule 13 of the Rules of the Supreme Court of Tennessee adopted April 3, 1997, is amended hereby by adding the following section: Section 7. Effective Date. This rule shall take effect July 1, 1997. URL:http://www.tba.org/tba_files/TSC_Rules/RULE13_OR2.WP6 CLEMMYE MULLENIX BERGER vs. MARVIN L. RATNER, JOYCE H. SEALAND, individually and as members of the law firm formerly known as RATNER & ROTCHILD and now known as RATNER, ROTCHILD & SEALAND Court:TCA Attorneys: Henry L. Klein, APPERSON, CRUM, DUZANE & MAXWELL, Memphis, Tennessee Attorney for Defendants/Appellants Marvin L. Ratner and Joyce H. Sealand. Joyce H. Sealand, Memphis, Tennessee Attorney for Ratner, Rotchild & Sealand. Blanchard E. Tual, Memphis, Tennessee Attorney for Plaintiff/Appellee Clemmye Mullenix Berger. John J. Thomason, THOMASON, HENDRIX, HARVEY, JOHNSON & MITCHELL, Memphis, Tennessee Attorney for Respondent/Appellee Blanchard E. Tual. Judge: FARMER First Paragraph: Defendant Marvin L. Ratner appeals the trial court's order denying his motion for Rule 11 sanctions against Plaintiff/Appellee Clemmye Mullenix Berger and her attorney, Appellee Blanchard Tual. We conclude that the trial court did not abuse its discretion in denying Ratner's motion for sanctions, and we affirm. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/bergercm_opn.WP6 SAMUEL TYRONE BRYANT vs. MICHAEL C. GREENE, Commissioner of the Tennessee Department of Safety Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee: Francis X. Santore, Jr. Charles W. Burson SANTORE AND SANTORE Attorney General and Reporter Greeneville, Tennessee Rebecca Lyford Assistant Attorney General Judge: KOCH First Paragraph: This appeal involves the forfeiture of an automobile under the Tennessee Drug Control Act. The automobile's owner filed a petition for judicial review of the forfeiture order in the Chancery Court for Davidson County, asserting that the forfeiture proceeding was unconstitutional because he did not receive a notice of seizure or a copy of the department's forfeiture order. The trial court dismissed the petition because it was not timely filed. We affirm. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/bryantsa_opn.WP6 AMANDA LINN CASHION vs. EVELYN C. ROBERTSON, JR., in his capacity as Commissioner, Tennessee Dept. of Mental Health and Mental Retardation, and DON G. HOLT, in his capacity as Commissioner, Tennessee Dept. of Personnel Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee: Francis X. Santore, Jr. Charles W. Burson SANTORE AND SANTORE Attorney General and Reporter Greeneville, Tennessee Rebecca Lyford Assistant Attorney General Judge: KOCH First Paragraph: Amanda Linn Cashion has filed a petition for rehearing pursuant to Tenn. R. App. P. 39 asserting that this court misapprehended the facts and controlling issues of law in this case. The petition is respectfully denied. URL:http://www.tba.org/tba_files/TCA/cashion_reh.WP6 PAUL GLEN DRAPER vs. CURT REAVER and RICHARD ALAN TACEY, JR. Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee Curt Reaver: Joseph P. Rusnak TUNE, ENTREKIN & WHITE Bryan Essary Nashville, Tennessee Joe W. Ellis, II GIDEON & WISEMAN Nashville, Tennessee For the Defendant/Appellee Richard Alan Tacey, Jr.: Dennis E. Blevins Nashville, Tennessee Judge: KOCH First Paragraph: This appeal stems from a three-vehicle collision on I-65 in Davidson County. One driver filed suit in the Circuit Court for Davidson County against his employer and the owners of the other two vehicles. The plaintiff later voluntarily dismissed his claims against his employer and moved to amend his complaint to add his employer as a plaintiff. The trial court denied the motion and granted summary judgments dismissing the plaintiff's claims against the owners of the other vehicles. The plaintiff asserts on this appeal that the trial court should have permitted him to amend his complaint and that the summary judgments would have been inappropriate had the trial court done so. While the trial court properly granted the summary judgments concerning the plaintiff's personal injury claims, it erred by dismissing the plaintiff's property damage claims. In order to avoid a multiplicity of suits, the trial court should have treated the plaintiff's motion to amend his complaint as a motion by the plaintiff's employer to intervene as of right pursuant to Tenn. Code Ann. S 50-6 112(c) (1991). Accordingly, we vacate the summary judgments in part and remand the case for further proceedings. AFFIRMED IN PART; VACATED IN PART AND REMANDED. URL:http://www.tba.org/tba_files/TCA/draperrea_opn.WP6 MIKE T. HUNTER vs. DAMIAN V. BURKE; and DONNIE WEAR and JOE GUFFEY, individually and doing business as J? AUTO SALES and EDWIN THOMPSON, also known as EDWARD THOMPSON Court:TCA Attorneys: For Appellant Burke For Appellee GERARD M. SICILIANO ROGER E. JENNE Luther-Anderson, P.L.L.P. Jenne, Scott & Bryant Chattanooga, Tennessee Cleveland, Tennessee For Appellants Wear and Guffey LARRY B. NOLEN Athens, Tennessee Judge: Susano First Paragraph: This is a suit for damages arising out of personal injuries sustained by Mike T. Hunter (Hunter) when he was hit by an automobile driven by the defendant Damian V. Burke (Burke). Burke's vehicle was owned by the defendants Donnie Wear (Wear) and Joe Guffey (Guffey). The trial court directed a verdict against all of the appealing defendants. The jury then awarded Hunter compensatory damages of $270,000. These defendants appealed. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/huntermt_opn.WP6 VICTORIA L. HYMEL vs. LAWRENCE P. HYMEL, JR Court:TCA Attorneys: For the Plaintiff/Appellee: For the Defendant/Appellant: Steven M. Moore P. Edward Schell Nashville, Tennessee Franklin, Tennessee Judge: KOCH First Paragraph: This interlocutory appeal involves parties who have commenced divorce proceedings in two states. After obtaining a divorce in Louisiana, the husband filed motions in the Fourth Circuit Court for Davidson County seeking to dismiss the wife's pending Tennessee divorce complaint. The trial court determined that the Louisiana decree was entitled to full faith and credit but decided to proceed with the wife's claim for spousal support. The husband, with the trial court's permission, seeks this interlocutory appeal to determine whether the trial court has subject matter jurisdiction over the wife's claim. We have determined that an interlocutory appeal is warranted, that the trial court's denial of the husband's motion to dismiss for lack of subject matter jurisdiction should be affirmed in accordance with Tenn. Ct. App. R. 10(b), and that the case should be remanded for further proceedings consistent with this opinion. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/hymelhym_opn.WP6 LAMAR ADVERTISING OF TENNESSEE, INC. vs. CITY OF KNOXVILLE Court:TCA Attorneys: LAWRENCE P. LEIBOWITZ OF KNOXVILLE FOR APPELLANT SHARON E. BOYCE OF KNOXVILLE FOR APPELLEE Judge: Goddard First Paragraph: Lamar Advertising of Tennessee (Lamar) appeals from an order of the Chancery Court of Knox County that upheld the validity of a provision of the Knoxville City Code, Article V, Section 10-N (Ordinance) that assesses a license fee per annum for the inspection of all existing ground and portable signs within the City of Knoxville. Lamar owns and maintains 350 outdoor advertising structures within the City of Knoxville and has challenged the validity of the ordinance. REVERSED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/lamaradv_opn.WP6 DOUGLAS McPHERSON vs. BILLY STOKES, in his capacity as Commissioner of the Tennessee Department of Employment Security; and SATURN CORPORATION, a corporation doing business in Tennessee Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee State of Tennessee: David Kozlowski Columbia, Tennessee John Knox Walkup Attorney General and Reporter Robert W. Stack Vernon A. Melton, Jr. Nashville, Tennessee Saturn Corporation: Waverly D. Crenshaw, Jr. Stephen W. Grace Waller, Lansden, Dortch & Davis Nashville, Tennessee Judge: KOCH First Paragraph: This appeal involves a claim for unemployment compensation benefits by an employee who declined to return to work following a leave of absence. The Department of Employment Security denied the claim because the employee had left his job voluntarily without good cause connected with his work. The Chancery Court for Davidson County affirmed the denial of the employee's claim, and the employee perfected this appeal, asserting that he did not leave his job voluntarily because his employer had not formally denied his second request for personal leave when it notified him of his separation. We affirm the denial of unemployment compensation benefits. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/mcphrstk_opn.WP6 LINCOLN W. (CHIPS) MOMAN vs. M. M. CORPORATION, d/b/a THE MEMPHIS FLYER, H. DAVID LYONS, KENNETH NEILL, and GREGG CRAVENS Court:TCA Attorneys: Hal Gerber and Lewis R. Polk, III of Memphis For Appellant Jerry Mitchell and John H. Dotson of Memphis For Appellees Judge: CRAWFORD First Paragraph: This is a libel case. Plaintiff, Lincoln W. (Chips) Moman, appeals from the order of the trial court denying his motion to compel discovery and granting the defendants' motion for summary judgment. VACATED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/momanl_opn.WP6 BEVERLY DIANNE (PRIVETTE) vs. GARY THOMAS MOORE Court:TCA Attorneys: Margaret R. Barr of Covington For Appellee Gary Thomas Moore, Pro Se Judge: CRAWFORD First Paragraph: This appeal involves a motion to set aside an order modifying child custody. Defendant, Gary Thomas Moore (Father), appeals the trial court's order granting the Motion to Dismiss filed by plaintiff, Beverly Dianne Privette Moore (Mother), and denying his Motion for Relief Pursuant to Tenn.R.Civ.P. 60.02. AFFIRMED. URL:http://www.tba.org/tba_files/TCA/mooreb_opn.WP6 WILLIAM P. NIXON, JR. vs. MARTHA SUE NIXON Court:TCA Attorneys: STEVAN L. BLACK and KIMBERLY HARRIS JORDAN, Black, Bobango & Morgan, Memphis, Attorneys for Plaintiff. MARTI L. KAUFMAN, Monroe, Shankman & Kaufman, Memphis, Attorney for Defendant. Judge: TOMLIN First Paragraph: William P. Nixon, Jr. ("Husband") filed suit for divorce against Martha Sue Nixon ("Wife") in the Circuit Court of Shelby County on the grounds of irreconcilable differences and inappropriate marital conduct. Wife also filed a counter-complaint against Husband seeking a divorce. Following a bench trial, the court awarded a divorce to both parties. In addition the court set aside certain real estate to Husband as separate property, and found that the appreciation in value during marriage of that property to be marital property, awarding Wife 40% of the appreciated value. The trial court also found that while the parties had entered into a prenuptial agreement that contained a provision expressly prohibiting the payment of alimony, this provision was void as against public policy and awarded Wife rehabilitative alimony. REVERSED IN PART AND AFFIRMED IN PART. URL:http://www.tba.org/tba_files/TCA/nixonw_opn.WP6 ROY S. OAKES vs. HARRY LANE NISSAN, INC. Court:TCA Attorneys: LORI L. JESSEE and HERBERT M. BACON, BACON, JESSEE, PERKINS & SWANSON, Morristown, for Plaintiff-Appellee. RODNEY A. FIELDS, LEWIS, KING, KRIEG, WALDROP & CATRON, P.C., Knoxville, for Defendant-Appellant. Judge: Franks First Paragraph: In this action for damages for breach of lease, the Trial Judge awarded damages in the amount of $25,000.00 and defendant has appealed. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/oakeslan_opn.WP6 PRUETT ENTERPRISES, INC. vs. THE HARTFORD STEAM BOILER INSPECTION AND INSURANCE CO. Court:TCA Attorneys: For Appellant: For Appellee: THOMAS CRUTCHFIELD MICHAEL A. KENT Frazier, Crutchfield & Solomon Cleary & Lockett, P.C. Chattanooga, Tennessee Chattanooga, Tennessee Judge: Susano First Paragraph: This non-jury case involves the interpretation of a commercial insurance policy ("the policy") issued by The Hartford Steam Boiler Inspection and Insurance Company (Hartford) to Pruett Enterprises, Inc. (Pruett). Pruett, the owner and operator of a chain of grocery stores in Hamilton County, sued Hartford under the policy for "spoilage losses to various perishable items [caused] when electrical power to [two of Pruett's] grocery stores was interrupted as a result of a heavy snow blizzard [on or about March 13, 1993]." Each of the parties filed a motion for summary judgment. Based upon the parties' stipulation of facts, the trial court granted Hartford partial summary judgment, finding that the loss at 6925 Middle Valley Road, Hixson ("Middle Valley Store") was not covered by the policy. As to the loss at Pruett's store at 3936 Ringgold Road, East Ridge ("Ringgold Road Store"), the trial court found a genuine issue of fact and denied Hartford's motion. AFFIRMED IN PART REVERSED IN PART AND REMANDED. URL:http://www.tba.org/tba_files/TCA/pruetth_opn.WP6 LORETTA Z. SLIGER vs. BILLY J. STOKES, Commissioner of the Tennessee Department of Employment and COOPER INDUSTRIES, WAGNER LIGHTING DIVISION Court:TCA Attorneys: MS. MARLA K. WILLIAMS, BPR. NO. 014167 Rural Legal Services of Tennessee P.O. Box 637 Cookeville, Tennessee 38501 ATTORNEY FOR PLAINTIFF/APPELLEE CATHERINE B. CASTLEMAN, BPR. No. 009758 Tenn. Dept. Of Employment Security 12th Floor, Volunteer Plaza 500 James Robertson Parkway Nashville, TN 37245-0100 ATTORNEY FOR DEFENDANTS/APPELLANTS JIM H. CAMP, BPR. No. 003029 P. O. Box 540 Sparta, TN 38583 ATTORNEY FOR DEFENDANTS/APPELLANTS Judge:.TODD First Paragraph: This is an unemployment compensation case in which the petitioner sought judicial relief from the denial of benefits by filing a petition for certiorari as provided by TCA S 50-7 304(h). The Trial Judge reversed the denial of benefits and remanded to the Agency for award of benefits. The employer, Cooper Industries, Wagner Lighting Division, has appealed and presented the following issue: Whether the Trial Court erred in reversing the findings of the Administrative tribunal, there being substantial and material evidence in the record to support the decision of the Board of Review. REVERSED, VACATED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/sligerst_opn.WP6 RHONDA LEE SMITH (BALILES) vs. HOME BENEFICIAL LIFE INSURANCE COMPANY Court:TCA Attorneys: WILLIAM J. BROWN OF CLEVELAND FOR APPELLANT MICHAEL E. CALLAWAY OF CLEVELAND FOR APPELLEE CHARLES W. BURSON, Attorney General and Reporter, and JOHN A. MOORE, Assistant Attorney General, NASHVILLE, FOR LARRY WALLACE, Director of the TENNESSEE BUREAU OF INVESTIGATION Judge: Goddard First Paragraph: This case is before us pursuant to the grant of two Rule 9 Interlocutory Appeals, one to Plaintiff Rhonda Lee Smith and the other to Larry Wallace, in his official capacity as Director of the Tennessee Bureau of Investigation. APPEAL DISMISSED IN PART; JUDGMENT AFFIRMED IN PART, VACATED IN PART, and REMANDED. URL:http://www.tba.org/tba_files/TCA/smithrl_opn.WP6 INA KATHERINE WARREN and husband, KARL STANLEY DAVIDSON vs. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE AND THE METROPOLITAN NASHVILLE EDUCATION ASSOCIATION Court:TCA Attorneys: David Randolph Smith, Nashville, Tennessee Joseph H. Johnson, Nashville, Tennessee Attorneys for Plaintiffs/Appellants. James L. Murphy, III, Director of Law, Nashville, Tennessee William Michael Safley, Metropolitan Attorney, Nashville, Tennessee Attorneys for Defendant/Appellee Metropolitan Government of Nashville and Davidson County, Tennessee. Judge: FARMER First Paragraph: This action stems from most unfortunate circumstances involving a physical assault upon a teacher by a fifteen year old student (hereinafter referred to as "Student"). The incident occurred on December 4, 1989 when Appellant, Ina Katherine Warren, intervened in a fight between two students, at West End Middle School, where she was employed as a guidance counselor. During her attempt to break up the fight Student struck Warren in the face causing permanent head injury. Warren, as an employee of the Metropolitan Public School System, filed suit against various defendants, including the appellee, Metropolitan Government of Nashville and Davidson County (Metro), alleging negligence, a violation of her civil rights, assault and battery and a third party beneficiary claim for breach of contract. The trial court dismissed all theories of recovery as to Metro except the claim for breach of contract. Metro filed a motion for summary judgment as to the remaining theory which was granted by the trial court. Appellants assert on appeal that the trial court's summary disposition of their claim for breach of contract was error. Upon review of the record, we conclude that the trial court was correct in its decision and affirm. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/warrenik_opn.WP6 STATE OF TENNESSEE vs. JAMES EARL GRAY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: GEORGE MORTON GOOGE CHARLES W. BURSON District Public Defender Attorney General & Reporter STEPHEN P. SPRACHER SUSAN ROSEN Assistant Public Defender Assistant Attorney General 227 West Baltimore 450 James Robertson Parkway Jackson, TN 38301 Nashville, TN 37243-0493 JERRY WOODALL District Attorney General JAMES W. THOMPSON Asst District Attorney General Lowell Thomas State Office Bldg Jackson, TN 38301 Judge: WOODALL First Paragraph: The Appellant appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate procedure from the trial court's revocation of his probation. The Appellant argues that the trial court abused its discretion by not considering the positive aspects of Appellant's probation and the likelihood of Appellant's rehabilitation. The probation officer testified to numerous probation violations. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issue presented for review, it is the opinion of this court the judgment of the trial court should be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/GRAYJ_OPN.WP6 STATE OF TENNESSEE vs. THEODORE F. HOWARD Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DANIEL FLATT CHARLES W. BURSON Assistant Public Defender Attorney General & Reporter 201 Poplar - Suite 2-01 Memphis, TN 38103 TONY BRAYTON CLINTON J. MORGAN Assistant Public Defender Assistant Attorney General 201 Poplar - Suite 2-01 450 James Robertson Parkway Memphis, TN 38103 Nashville,TN 37243-0493 JOHN W. PIEROTTI District Attorney General DAVID HENRY Asst District Attorney General District Attorney General's Office 201 Poplar Avenue, 3rd Floor Memphis, TN 38103 Judge: WOODALL First Paragraph: The appellant, Theodore F. Howard, appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. The Appellant was convicted of aggravated burglary in the Shelby County Criminal Court. The Appellant was sentenced by the trial court to serve fifteen (15) years as a Range III Career Offender. The sole issue the Appellant raises for appeal is whether the trial court erred in failing to instruct the jury on the lesser offense of burglary. We affirm the judgment of the trial court. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/HOWARDT_OPN.WP6 STATE OF TENNESSEE vs. MATTHEW LYNN KING Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Dwayne D. Maddox, III Charles W. Burson Maddox, Maddox & Maddox Attorney General & Reporter 105 East Main Street 500 Charlotte Avenue Huntingdon, TN 38344 Nashville, TN 37243-0497 Deborah A. Tullis Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Clayburn L. Peeples District Attorney General 109 East First Street Trenton, TN 38382-1841 Gary G. Brown Asst District Attorney General 109 East First Street Trenton, TN 38382-1841 Judge: Jones First Paragraph: The appellant, Matthew Lynn King, (defendant), was convicted of murder in the second degree, a Class A felony, by a jury of his peers. The trial court found the defendant was a standard offender and imposed a sentence consisting of confinement for fifteen (15) years in the Department of Correction. Two issues are presented for review. The defendant contends the evidence is insufficient, as a matter of law, to support his conviction. He further contends exculpatory evidence was suppressed by the state. After a thorough review of the record, the briefs submitted by the parties, and the law which governs the issues presented for review, it is the opinion of this Court the judgment of the trial court should be affirmed. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/KINGM_OPN.WP6 STATE OF TENNESSEE vs. TERRY LOGAN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: TIMOTHY JOEL WILLIAMS CHARLES W. BURSON Attorney at Law Attorney General & Reporter 147 Jefferson Avenue, Suite 909 Memphis, TN 38103 DEBORAH A. TULLIS Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 ELIZABETH RICE District Attorney General CHRISTOPHER MARSHBURN Asst District Attorney General 302 Market Street Somerville, TN 38068 Judge: WOODALL First Paragraph: The Appellant, Terry Logan, pled guilty as charged in the Circuit Court of Fayette County to the offense of second degree murder of the victim, Michael Hood. Following a sentencing hearing, the trial court sentenced the Appellant to serve the presumptive sentence of twenty (20) years in the Department of Corrections as a Range I Standard Offender. On appeal, the Appellant submits that the sentence is excessive. He argues three issues in his appeal: (1) That an enhancement factor applied by the trial court does not apply to his case; (2) that certain mitigating factors were not applied by the trial court; and (3) that the presumption of correctness normally afforded to sentencing by the trial court should not be applied in this case. Finding no error, we affirm the judgment of the trial court. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/LOGANT_OPN.WP6
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