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TBALink Opinion-Flash
October 20, 1997 -- Volume #3 -- Number #104
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.
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THERESA STANBURY and spouse JOHN STANBURY vs. BRIAN E. BACARDI Court:TSC Attorneys: For Plaintiffs-Appellants: For Defendant-Appellee: Helen Sfikas Rogers Lela M. Hollabaugh JONES, ROGERS & FITZPATRICK MANIER, HEROD, HOLLABAUGH & SMITH Nashville, Tennessee Nashville, Tennessee Judge:DROWOTA First Paragraph: In this appeal we must determine whether the common law "continuing medical treatment doctrine" remains viable in Tennessee and operates to toll the statute of limitations in medical malpractice cases until the termination of treatment or the physician/patient relationship. Relying upon that doctrine, the plaintiffs, Theresa and John Stanbury, argue that the Court of Appeals erred by dismissing this medical malpractice action which was filed within one year of Theresa Stanbury's last office visit with the defendant Dr. Brian E. Bacardi, a podiatrist. The Court of Appeals found the doctrine inapplicable under the facts of this case, and, in addition observed that its applicability has been eroded or eliminated in this State by judicial and legislative adoption of the discovery rule. In a separate opinion, Judge Koch concluded that the doctrine has been completely subsumed into the discovery rule, and he urged that its abolition be expressly recognized. URL:http://www.tba.org/tba_files/TSC/stanbryt_opn.WP6
ROBERT E. ADCOX and
DONALD F. GRAEF
vs.
SCT PRODUCTS
Court:TCA
Attorneys:
CHARLES R. RAY
Nashville, Tennessee
Attorney for AppellantS
RICHARD R. PARKER
WILLIAM S. RUTCHOW
Nashville, Tennessee
Attorneys for Appellee
Judge:HIGHERS
First Paragraph:
Plaintiffs Robert E. Adcox and Donald F. Graef (collectively, the
Employees) appeal the trial court's order dismissing their actions for
breach of employment contract, promissory estoppel, and fraudulent
inducement against Defendant/Appellee SCT Products. For the reasons
hereinafter stated, we affirm the trial court's dismissals.
URL:http://www.tba.org/tba_files/TCA/adcoxre_opn.WP6
IN RE:
MADISON RENEE BAIRD
WILLIAM ALAN BROWN
vs.
MANDY RENEE BAIRD
Court:TCA
Attorneys:
For the Plaintiff/Appellee: For the Defendant/Appellant:
John B. Melton, III Darrell L. Scarlett
Murfreesboro, Tennessee Murfreesboro, Tennessee
Judge:KOCH
First Paragraph:
This appeal concerns a dispute over a nonmarital child's surname.
Approximately six weeks after the child's birth, the father filed a
legitimation petition in the Rutherford County Juvenile Court seeking
to establish paternity, to set visitation, and to give the child his
surname. Following a bench trial, the juvenile court changed the
child's surname from her mother's name to a hyphenated name that
included both parents' surnames. On this appeal, the mother takes
issue with the trial court's order changing the child's surname. We
reverse the portion of the trial court's order changing the child's
surname because we have determined that the father has not carried his
burden of proving that changing the child's surname is in her best
interests.
URL:http://www.tba.org/tba_files/TCA/brownwa_opn.WP6
STATE OF TENNESSEE, ex rel,
MARIE OSONG DAVIS,
vs.
DAVID MATIKKE
Court:TCA
Attorneys:
JOHN KNOX WALKUP
Attorney General & Reporter
KIMBERLY M. FRAYN
Assistant Attorney General
Nashville, Tennessee
Attorneys for Appellant
PAUL N. RUDOLPH
Nashville, Tennessee
Attorney for Appellee
Judge:HIGHERS
First Paragraph:
Plaintiff State of Tennessee, on behalf of Marie Osong Davis, appeals
the trial court's order modifying the child support obligation of
Defendant/Appellee David Matikke. The trial court's order of
modification reduced Matikke's child support obligation from $580 per
month to $342.33 per month. For the reasons hereinafter stated, we
reverse the trial court's modification order and reinstate the trial
court's previous order requiring Matikke to pay child support in the
amount of $580 per month.
URL:http://www.tba.org/tba_files/TCA/davism_opn.WP6
FIRST AMERICAN NATIONAL BANK,
vs.
NATIONAL PROJECT SERVICES,
INC.,
Court:TCA
Judge:TODD
First Paragraph:
The appellant has filed a petition to rehear. Upon consideration of
the petition and the entire record in this case, it is the judgment of
the court that the petition should be overruled.
URL:http://www.tba.org/tba_files/TCA/firstam_ord.WP6
CHARLES MONTAGUE
vs.
TENNESSEE DEPARTMENT OF
CORRECTION, ET AL.,
Court:TCA
Attorneys:
For the Plaintiff/Appellant: For the Defendants/Appellees:
Charles Montague, Pro Se Charles W. Burson
Attorney General and Reporter
Jeffrey L. Hill
Assistant Attorney General
Civil Rights and Claims Division
Judge:KOCH
First Paragraph:
This appeal involves a prisoner's efforts to obtain judicial review of
a disciplinary action taken by the Department of Correction. The
prisoner filed a petition for declaratory judgment in the Chancery
Court for Davidson County seeking review of discipline he received for
engaging in sexual misconduct with a visitor. The trial court granted
the Department's motion for summary judgment and dismissed the
petition. The prisoner asserts on this appeal that the trial court
should not have dismissed his petition. We have determined that the
petition was not timely filed and, therefore, affirm the trial court
in accordance with Tenn. Ct. App. R. 10(b).
URL:http://www.tba.org/tba_files/TCA/montaguc_opn.WP6
LARRY D. TURNLEY
vs.
TENNESSEE DEPARTMENT OF
CORRECTION
Court:TCA
Attorneys:
For the Plaintiff/Appellant: For the Defendant/Appellee:
Larry D. Turnley, Pro Se Charles W. Burson
Attorney General and Reporter
Darian B. Taylor
Assistant Attorney General
Criminal Justice Division
Judge:KOCH
First Paragraph:
This appeal involves a dispute over a state prisoner's release
eligibility date. After the Tennessee Department of Correction did
not respond to his request for a declaratory ruling, the prisoner
filed a declaratory judgment action in the Chancery Court for Davidson
County seeking a declaration that his release eligibility date was
September 2000. The Department filed a motion for summary judgment
supported by an affidavit setting out its release eligibility date
calculations. After the trial court dismissed his petition, the
prisoner perfected this appeal. We agree with the trial court's
conclusion that the material facts are not in dispute and,
accordingly, affirm the summary judgment.
URL:http://www.tba.org/tba_files/TCA/turnleyl_opn.WP6
MARK L. GRIMES
vs.
BILLY COMPTON, WARDEN
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Mark L. Grimes, Pro se John Knox Walkup
Route 1, Box 330 Attorney General & Reporter
Tiptonville, TN 38079-9775
Deborah A. Tullis
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-4351
C. Phillip Bivens
District Atty General
P.O. Drawer E
Dyersburg, TN 38024
Judge:SUMMERS
First Paragraph:
The appellant, Mark L. Grimes, pled guilty to rape. He was sentenced
to twelve years incarceration in the Tennessee Department of
Correction. He, thereafter, filed a petition for habeas corpus
relief. In his petition he alleged that the indictment against him
was insufficient for failing to allege a mens rea. He contends his
conviction is void. The trial court dismissed the petition finding
that it was not proper for habeas corpus review. The trial court
based this finding on the fact that the appellant's conviction was not
void on its face and that his sentence had not expired. He appeals
this dismissal. Upon review, we affirm.
URL:http://www.tba.org/tba_files/TCCA/grimesml_opn.WP6
JAMES EDWARD LOPER
vs.
BILLY COMPTON, Warden,
and STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
JAMES EDWARD LOPER, Pro Se CHARLES W. BURSON
Register Number 253396 Attorney General and Reporter
Route 1, Box 330
Tiptonville, TN 38079-9775 KENNETH W. RUCKER
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
C. PHILLIP BIVENS
District Attorney General
P. O. Drawer E
Dyersburg, TN 38024
Judge: Hayes
First Paragraph:
The appellant, James Edward Loper, appeals the trial court's dismissal
of his pro se application for writ of habeas corpus. On September 5,
1995, the appellant pled guilty in the Madison County Circuit Court to
one count of rape of a child, one count of aggravated rape, and one
count of aggravated sexual battery. The appellant is currently serving
an effective fifteen year sentence at the Lake County Regional
Correctional Facility for these offenses. On October 11, 1996, the
appellant filed an application for a writ of habeas corpus alleging
that the judgments entered against him are void because the indictment
failed to allege the mens rea of the offenses charged. On October 14,
1996, finding that "allegations concerning the sufficiency of the
indictments are not subject to habeas corpus relief," the trial court
dismissed the appellant's petition. The appellant now appeals the
trial court's dismissal.
URL:http://www.tba.org/tba_files/TCCA/loperje_opn.WP6
HARVEY QUALLS
vs.
BILLY COMPTON, Warden,
and STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
HARVEY QUALLS, Pro Se CHARLES W. BURSON
Register Number 150422 Attorney General and Reporter
Route 1, Box 330
Tiptonville, TN 38079-9775 KENNETH W. RUCKER
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
C. PHILLIP BIVENS
District Attorney General
P. O. Drawer E
Dyersburg, TN 38024
Judge: Hayes
First Paragraph:
The appellant, Harvey Qualls, appeals the trial court's dismissal of
his pro se application for writ of habeas corpus. On March 18, 1991,
the appellant pled guilty in the Shelby County Criminal Court to two
counts of aggravated rape for which he received an effective sentence
of twenty-five years. The appellant is currently confined at the
Lake County Regional Correctional Facility for these offenses. On
August 12, 1996, the appellant filed an application for a writ of
habeas corpus alleging that the judgment entered against him for the
November 1989 aggravated rape is void because the indictment failed to
allege the mens rea of the offense charged. On August 16, 1996, the
trial court found that the appellant's petition failed to state "a
proper subject of habeas corpus relief since the judgment is not void
on its face" and dismissed the petition. The appellant now appeals
the trial court's dismissal.
URL:http://www.tba.org/tba_files/TCCA/quallsh_opn.WP6
STATE OF TENNESSEE
vs.
WILBERT K. ROGERS
(A.K.A. PERSON ROGERS)
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
A. C. WHARTON, JR. JOHN KNOX WALKUP
Shelby County Public Defender Attorney General and Reporter
WALKER GWINN (On appeal) SARAH M. BRANCH
TONY N. BRAYTON (At trial) Assistant Attorney General
Assistant Public Defenders 450 James Robertson Parkway
201 Poplar Ave. Nashville, TN 37243-0493
Suite 201
Memphis, TN 38103 WILLIAM GIBBONS
District Attorney General
AMY WEIRICH
Asst District Attorney General
201 Poplar Ave.
Suite 301
Memphis, Tennessee 38103
Judge:RILEY
First Paragraph:
Defendant was convicted by a Shelby County jury of second degree
murder and sentenced to thirty-three (33) years as a Range II,
Multiple Offender. Defendant brings one issue for our review: whether
the judgment should be modified to criminal attempt to commit murder
because the victim's death did not occur within a year and a day of
the alleged mortal wound. We find that the Criminal Sentencing Reform
Act of 1989 abolished this common law defense and affirm the judgment
of the trial court.
URL:http://www.tba.org/tba_files/TCCA/rogerswk_opn.WP6
MICHAEL R. SOUTH,
vs.
BILLY COMPTON, WARDEN
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Michael R. South, Pro se John Knox Walkup
Route 1, Box 330 Attorney General & Reporter
Tiptonville, TN 38079-9775
Kenneth W. Rucker
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-4351
C. Phillip Bivens
District Attorney General
P.O. Drawer E
Dyersburg, TN 38024
Judge: SUMMERS
First Paragraph:
The appellant, Michael R. South, pled guilty to aggravated rape. He
was sentenced to twenty years incarceration in the Tennessee
Department of Correction. He, thereafter, filed a petition for habeas
corpus relief. In his petition he alleged that the indictment against
him was insufficient for failing to allege a mens rea. He contends
his conviction is void. The trial court dismissed the petition
finding that it was not proper for habeas corpus review. The trial
court based this finding on the fact that the appellant's conviction
was not void on its face and that his sentence had not expired. He
appeals this dismissal. Upon review, we affirm.
URL:http://www.tba.org/tba_files/TCCA/southmir_opn.WP6
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