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TBALink Opinion-Flash
February 23, 1998 -- Volume #4 -- Number #035
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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- 00-New Opinons From TSC
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DENNIS O'NEIL MILLIGAN vs. TEN-STATE, INC. Court:TSC - Workers Comp Panel Attorneys: FOR APPELLANT: FOR APPELLEE: William F. Kendall, III Keith S. Carlton Waldrop & Hall, P.A. Wood & Carlton Jackson, Tennessee Corinth, Mississippi Judge:Lanier First Paragraph: On or about July 9, 1993, while employed by the defendant, the claimant was attempting to move a mobile home with the assistance of fellow employees when his foot slipped and he was caused to twist and fall to his knee. He felt a burning sensation in his lower back shortly thereafter and reported this to his supervisor. The company referred him to a Dr. Howard Thomas, who in turn referred him to Dr. R. J. Hornsby. In the course of his examinations and treatments by these physicians, he underwent not only an MRI, an EMG and nerve conduction study, but also an epidural block and myelogram, which gave him a severe spinal headache. Because he continued to complain of pain in the low back upon examination, he was also evaluated by a physical therapist, who reported, ". . . he was totally inconsistent in every test and no impairment was noted that was consistent." (Notes of Dr. Hornsby). URL:http://www.tba.org/tba_files/TSC_WCP/millignd_opn.WP6
MAURICE DeVORE
vs.
DELOITTE & TOUCHE
Court:TCA
Attorneys:
For Plaintiff/Appellant: For Defendant/Appellee:
Susan S. Garner William S. Walton
Robert J. Turner John S. Lewis
TURNER LAW OFFICES GIDEON & WISEMAN
Nashville, Tennessee Nashville, Tennessee
Judge:KOCH
First Paragraph:
This appeal involves an employment discrimination action filed by a
computer programmer who was discharged by a large national accounting
firm because of inadequate performance. The programmer filed suit in
the Chancery Court for Davidson County alleging that his former
employer had terminated him because of his race and because he had
filed a discrimination charge with the Equal Employment Opportunity
Commission. The trial court granted the employer's motion for summary
judgment, and the programmer appealed to this court. We have
determined that the programmer has failed to demonstrate that he will
be able to produce competent, admissible evidence concerning essential
elements of his claims and, therefore, affirm the summary judgment.
URL:http://www.tba.org/tba_files/TCA/devorem_opn.WP6
JAMES DILLARD and wife,
THELMA DILLARD
vs.
THE VANDERBILT UNIVERSITY
and CENTRAL PARKING SYSTEM, INC.
Court:TCA
Attorneys:
For Plaintiffs/Appellants: For Defendants/Appellees:
Anthony E. Hagan Joseph F. Welborn, III
Lebanon, Tennessee Bass, Berry & Sims
Nashville, Tennessee
Judge:KOCH
First Paragraph:
This appeal concerns a woman who was injured when she tripped over a
brightly painted concrete tire stop in a hospital parking garage. The
woman and her husband filed a negligence action in the Circuit Court
for Davidson County against the owner and operator of the parking
garage. The trial court granted the defendants' motion for summary
judgment, and the plaintiffs have appealed. We affirm the summary
judgment because the defendants did not have a duty to protect patrons
from the tire stop.
URL:http://www.tba.org/tba_files/TCA/dillardj_opn.WP6
CINDY DOOLEY (BLALOCK)
vs.
JOHN R. DOOLEY
Court:TCA
Attorneys:
Thomas D. Frost, Murfreesboro, Tennessee
Attorney for Defendant/Appellant.
Jim Wiseman, WISEMAN & SCHNEIDER, Murfreesboro, Tennessee
Attorney for Plaintiff/Appellee.
Judge:FARMER
First Paragraph:
John R. Dooley (Father) appeals from the order of the trial court
finding him in contempt of court for nonpayment of child support
pursuant to an Indiana divorce decree terminating his marriage to
Cindy Dooley (Blalock) (Mother). The order also addresses
reimbursement for medical expenses, payment of future medical bills,
an increase in child support, a wage assignment and an award of
attorney's fees. Father contends that the trial court's order should
be set aside because that court did not have personal jurisdiction
over him.
URL:http://www.tba.org/tba_files/TCA/dooleyci_opn.WP6
DAVID JOHN ERDLY
vs.
JANENE MARIE ERDLY
Court:TCA
Attorneys:
R. E. Lee Davies
HARTZOG, SILVA & DAVIES
123 Fifth Avenue, North
P.O. Box 664
Franklin, TN 37065-0664
ATTORNEY FOR PLAINTIFF/APPELLANT
Virginia Lee Story
JOHNSTON, STORY, ALLEN & ABERNATHY
136 Fourth Avenue, South
P.O. Box 1608
Franklin, TN 37065-1608
ATTORNEY FOR DEFENDANT/APPELLEE
Judge:TODD
First Paragraph:
The plaintiff, David John Erdly, has appealed from the judgment of the
Trial Court dismissing his suit for divorce, dividing the marital
estate, awarding plaintiff child custody and support and awarding the
defendant, Janene Marie Erdly, alimony for the remainder of her life.
URL:http://www.tba.org/tba_files/TCA/erdlydj_opn.WP6
JAMES DANIEL GEYER, JR.
vs.
KATHLEEN HELEN GEYER
Court:TCA
Attorneys:
JOSEPH E. FORD
McBEE & FORD
17 So. College Street
Winchester, Tennessee 37398
Attorney for Plaintiff/Appellant
ROBERT F. HAZARD
COPELAND, CONLEY & HAZARD
111 West Grundy Street
P. O. Box 176
Tullahoma, Tennessee 37388
Attorney for Defendant/Appellee
Judge:CANTRELL
First Paragraph:
This case arises from the divorce of James Geyer (the Husband) and
Kathleen Geyer (the Wife). The trial court decreed the parties
divorced and awarded custody of their minor child to the Wife. In
addition, the court ordered that the Wife be designated the custodian
of an account which was the sole property of the child. The Husband
has brought this appeal before the Court of Appeals.
URL:http://www.tba.org/tba_files/TCA/geyerjd_opn.WP6
THOMAS W. HARRISON,
TERRY HARRISON, and
BRENDA KENNAMORE
vs.
EARL LAURSEN and
DOLORITA LAURSEN
Court:TCA
Attorneys:
For Plaintiffs/Appellees: For Defendants/Appellants:
M. Andrew Hoover John S. Colley, III
ANDREW HOOVER & ASSOCIATES COLLEY & COLLEY
Pulaski, Tennessee Columbia, Tennessee
Judge:KOCH
First Paragraph:
This appeal stems from a contractual dispute over the sale of a
128-acre farm in Giles County. The sellers filed suit in the Chancery
Court for Giles County alleging that the buyers had breached their
contract by defaulting on their payments. The buyers counterclaimed
that the sellers had breached the contract by failing to provide city
water for the property. The trial court, sitting without a jury,
rescinded the contract, awarded the sellers their unpaid interest as
well as the buyers' previous payments, and dismissed the buyers'
counterclaim. This court reversed the damages portion of the judgment
and remanded the case for another trial on the issue of damages only.
The case has been tried four additional times since that appeal. The
buyers have now appealed to this court for the third time following a
$32,901.54 jury verdict for the sellers in the fifth trial. We have
determined that the judgments against the buyers must again be vacated
because the trial court erroneously refused to permit one of the
buyers, who was representing himself, to testify and because the
judgment against the other buyer was reversed by this court on the
second appeal.
URL:http://www.tba.org/tba_files/TCA/harisont_opn.WP6
CURTIS LANDRY, JR., d/b/a
LANDRY AND ASSOCIATES
vs.
JOHN DANIEL RUDD
Court:TCA
Attorneys:
Stephen W. Pate
218 West Main Street
Suite One
Murfreesboro, TN 37130
ATTORNEY FOR PLAINTIFF/APPELLEE
William Kennerly Burger
301 North Spring Street
Murfreesboro, TN 37133-0398
ATTORNEY FOR DEFENDANT/APPELLANT
Judge:TODD
First Paragraph:
The defendant, John Daniel Rudd, has appealed from a judgment of the
Trial Court allowing the enrollment of two foreign judgments, both in
favor of the plaintiff, John Landry and against the defendant.
URL:http://www.tba.org/tba_files/TCA/landrycl_opn.WP6
URL:http://www.tba.org/tba_files/TCA/landry_con.WP6
RESIDENTS AGAINST INDUSTRIAL
LANDFILL EXPANSION, INC.
vs.
TENNESSEE DEPARTMENT OF
ENVIRONMENT AND CONSERVATION
and DIVERSIFIED SYSTEMS, INC.
Court:TCA
Attorneys:
For Residents Against Industrial For the Dept. of Environment
Landfill Expansion, Inc.: and Conservation:
Gary A. Davis John Knox Walkup
Knoxville, Tennessee Attorney General and Reporter
Barry Turner
Deputy Attorney General
For Diversified Systems, Inc.:
R. Louis Crossley, Jr.
Knoxville, Tennessee
Judge:KOCH
First Paragraph:
This appeal involves a dispute over a decision by the Tennessee
Department of Environment and Conservation to grant a solid waste
disposal permit to expand an existing industrial waste landfill in
McMinn County. A nonprofit corporation whose members reside near the
landfill filed a petition for common law writ of certiorari in the
Chancery Court for Davidson County challenging the permitting
decision, and the Department moved to dismiss the petition on the
ground that it was not timely. The trial court declined to dismiss
the petition but also declined to set aside the Department's decision
to grant the permit. On this appeal, the opponents of the landfill
expansion take issue with the permitting procedures and with the
evidentiary foundation of the Department's decision, and the
Department asserts that the petition should have been dismissed
because it was not timely filed. Since we have determined that the
landfill's opponents did not timely file their petition, we reverse
the order denying the motion to dismiss without addressing the
opponents' substantive challenges to the Department's permitting
decision.
URL:http://www.tba.org/tba_files/TCA/resaile_opn.WP6
BOBBY ROBERSON
vs.
MARTHA BRASFIELD, Commr., et al.
Court:TCA
Attorneys:
BOBBY ROBERSON, pro se
Henning, Tennessee
JOHN KNOX WALKUP
Attorney General & Reporter
STEVEN A. HART
Special Counsel
Nashville, Tennessee
Attorney for Appellee
Judge:HIGHERS
First Paragraph:
Plaintiff, Bobby Roberson ("Roberson"), appeals the order of the trial
court granting the motion of Defendants, Martha Brasfield,
Commissioner of the Tennessee Claims Commission ("Commissioner");
Jimmy Harrison, Warden of Cold Creek Correctional Facility
("C.C.C.F."); and Roy Kelly, correctional officer at C.C.C.F., to
dismiss the action under Tennessee Rule of Civil Procedure 12.02 for
failure to state a claim upon which relief can be granted and for lack
of subject matter jurisdiction. Roberson appeals the trial court's
judgment. For reasons stated hereinafter, we affirm the judgment of
the trial court.
URL:http://www.tba.org/tba_files/TCA/robersnb.opn
WILLIAM JEFFREY TARKINGTON
vs.
REBECCA JUANITA TARKINGTON
Court:TCA
Judge:TODD
First Paragraph:
The appellant has filed a respectful petition to rehear which has been
duly considered and is respectfully denied.
URL:http://www.tba.org/tba_files/TCA/tarkingt_ord.WP6
VENTURE EXPRESS, INC.
vs.
MICHAEL E. ZILLY, Ind., ZILLY
TRANSPORTATION SERVICES,
INC., and ZILLY SERVICES, LLC
Court:TCA
Attorneys:
W. LEE CORBETT
DAVID F. LEWIS
CORBETT CROCKETT & LECKRONE
Nashville, Tennessee
Attorneys for Appellants
DAVID W. KIOUS
Murfreesboro, Tennessee
Attorney for Appellee
Judge:HIGHERS
First Paragraph:
Defendants Michael E. Zilly, Zilly Transportation Services, Inc., and
Zilly Transportation Services, LLC, appeal the trial court's judgment
awarding $78,000 to Plaintiff/Appellee Venture Express, Inc. We
reverse the judgment because we conclude that the evidence does not
support the trial court's ruling that Zilly breached his fiduciary
duty to Venture Express.
URL:http://www.tba.org/tba_files/TCA/venture_opn.WP6
FREDERICK A. BUTLER
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
GARLAND ERGUDEN JOHN KNOX WALKUP
242 Poplar Avenue Attorney General & Reporter
Memphis, TN 38103
JANIS L. TURNER
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
PAUL GOODMAN
Assistant District Attorney General
201 Poplar Avenue - Third Floor
Memphis, TN 38103
Judge:WOODALL
First Paragraph:
The Appellant, Frederick A. Butler, appeals as of right from the trial
court's dismissal of his petition for post-conviction relief following
an evidentiary hearing. The issue presented for review, as stated in
Appellant's brief, is as follows: "The trial judge erred in finding
that Petitioner's guilty plea was knowing and voluntary and not the
product of ineffective assistance of counsel." After a review of the
entire record on appeal, the arguments of counsel, and the applicable
law, we affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/butlerfa.opn
STATE OF TENNESSEE
vs.
ELIZABETH R. CAMPBELL
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Donald E. Spurrell John Knox Walkup
Attorney at Law Attorney General & Reporter
128 East Market Street 500 Charlotte Avenue
Johnson City, TN 37604 Nashville, TN 37343-0497
(Trial and Appeal)
Peter M. Coughlan
Stacey L. Street Assistant Attorney General
Attorney at Law 450 James Robertson Parkway
630 Elk Avenue Nashville, TN 37243-0493
Elizabethton, TN 37643
(Trial Only) David E. Crockett
District Attorney General
Route 1, Box 99
Johnson City, TN 37641
Kenneth C. Baldwin
Asst District Attorney General
Carter County Courthouse Annex
Elizabethton, TN 37643
Steven R. Finney
Asst District Attorney General
Carter County Courthouse Annex
Elizabethton, TN 37643
Judge:Jones
First Paragraph:
The appellant, Elizabeth R. Campbell (defendant), was convicted of
criminally negligent homicide, a Class E felony, by a jury of her
peers. The trial court, finding the defendant to be a standard
offender, imposed a Range I sentence consisting of a $3,000 fine and
confinement for one (1) year in the Department of Correction. In this
court, the defendant contends the trial court should have suspended
her sentence and placed her on probation or imposed some form of
alternative sentence. 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 that the
judgment of the trial court should be affirmed.
URL:http://www.tba.org/tba_files/TCCA/cmpbler_opn.WP6
STATE OF TENNESSEE
vs.
MATTIE MARCELLA DAVIS,
aka MATTIE HILL
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Hershell D. Koger John Knox Walkup
Attorney at Law Attorney General & Reporter
P.O. Box 1148 425 Fifth Avenue, North
Pulaski, TN 38478 Nashville, TN 37243-0497
Georgia B. Felner
Counsel for the State
450 James Robertson Parkway
Nashville, TN 37243-0493
W. Michael McCown
District Attorney General
P. O. Box 904
Fayetteville, TN 37334
Weakley E. Barnard
Assistant District Attorney General
Marshall County Courthouse, Fourth Floor
Lewisburg, TN 37091
Judge:Jones
First Paragraph:
The appellant, Mattie Marcella Davis, also known as Mattie Hill
(defendant), was convicted of theft over the value of $1,000, a Class
D felony, following her plea of guilty to this offense. The trial
court found the defendant was a standard offender and imposed a Range
I sentence consisting of confinement for twenty-five (25) months in
the Department of Correction pursuant to a plea agreement. In this
court, the defendant contends the trial court abused its discretion by
refusing to impose an alternative sentence. 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 that the judgment of the trial court should be affirmed pursuant
to Rule 20, Tennessee Court of Criminal Appeals.
URL:http://www.tba.org/tba_files/TCCA/davismm_opn.WP6
Franko D. Fykes
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Franko Donell Fykes,Pro Se John Knox Walkup
TDOC No. 109999 Attorney General and Reporter
Cold Creek Correctional Facility
P.O. Box 1000
Henning, TN 38041-1000 Lisa A. Naylor
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
Victor S. Johnson
District Attorney General
Nick Bailey
Assistant District Attorney
Washington Square, Ste 500
Nashville, TN 37201-1649
Judge:SMITH
First Paragraph:
In this appeal of the summary dismissal of his post-conviction
petition Appellant, Franko Donell Fykes, asks this Court to review the
validity of his conviction entered upon his pleas of guilty on March
20, 1986. Appellant pled guilty to aggravated rape and burglary of an
automobile. As part of the plea agreement Appellant received
sentences totaling forty-four years.
URL:http://www.tba.org/tba_files/TCCA/fykesfr_opn.WP6
STATE OF TENNESSEE
vs.
CHRISTOPHER DALE GIBBS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
LIONEL BARRETT JOHN KNOX WALKUP
222 Second Ave. N. Attorney General & Reporter
Nashville, TN 37201
LISA A. NAYLOR
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
DAN MITCHUM ALSOBROOKS
District Attorney General
Court Square, P.O. Box 580
Charlotte, TN 37036-0580
JAMES W. KIRBY
Asst District Attorney General
105 Sycamore St.
Ashland City, TN 37015-1806
Judge:WITT
First Paragraph:
The defendant, Christopher Dale Gibbs, was convicted in a jury trial
in the Cheatham County Circuit Court of vehicular homicide by reckless
driving, a Class C felony. The defendant pleaded guilty to leaving
the scene of an accident, a Class E felony. As a Range I, standard
offender, he received a six-year sentence for vehicular homicide and a
consecutive two-year sentence for leaving the scene. In this direct
appeal, the defendant challenges the sufficiency of the evidence and
contends that his sentences are excessive and that the trial judge
erred in imposing consecutive sentences.
URL:http://www.tba.org/tba_files/TCCA/gibbsc_opn.WP6
STATE OF TENNESSEE
vs.
JOHN H. HACKNEY
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
L. GILBERT ANGLIN JOHN KNOX WALKUP
8 Lincoln Square Attorney General & Reporter
1535 West Northfield Blvd.
Murfreesboro, TN 37129 KAREN M. YACUZZO
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
WILLIAM C. WHITESELL
District Attorney General
JOHN W. PRICE, III
Asst District Attorney General
303 Rutherford County Judicial Bldg.
Murfreesboro, TN 37130
Judge:WOODALL
First Paragraph:
The Defendant, John Harold Hackney, appeals as of right his conviction
of first offense DUI following a jury trial in the Circuit Court of
Rutherford County. The trial court sentenced Defendant to eleven (11)
months and twenty-nine (29) days, with all but four (4) days
suspended. In this appeal, Defendant argues that the trial court
erred in not suppressing the results of his Intoximeter 3000 test
because he was not observed for the requisite twenty minute period
prior to administration of the test. We affirm the judgment of the
trial court.
URL:http://www.tba.org/tba_files/TCCA/hacknyjh_opn.WP6
STATE OF TENNESSEE
vs.
MICHAEL D. HARVEY
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
J. Colin Morris John Knox Walkup
Attorney at Law Attorney General & Reporter
204 West Baltimore
P.O. Box 1623 Janis L. Turner
Jackson, TN 38302-1623 Counsel for the State
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Jerry Woodall
District Attorney General
Donald H. Allen
Asst District Attorney General
State Office Building, Suite 201-A
P.O. Box 2825
Jackson, TN 38302
Judge:SUMMERS
First Paragraph:
The appellant, Michael D. Harvey, pled guilty to two counts of
aggravated burglary, theft of property over $1000, and theft of
property under $500. In September 1996 the trial court sentenced the
defendant as a Range I, standard offender, to six years for each count
of the aggravated burglary, four years for the theft of property over
$1000, and eleven months and twenty-nine days for the theft of
property under $500. All of the appellant's sentences were to run
concurrently.
URL:http://www.tba.org/tba_files/TCCA/harveymd.opn
STATE OF TENNESSEE
vs.
EDWARD EARL HUDDLESTON
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
C. Michael Robbins John Knox Walkup
3074 East Street Attorney General and Reporter
Memphis, TN 38128
Elizabeth T. Ryan
(ON APPEAL) Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Tom W. Crider Nashville, TN 37243 0493
District Public Defender
107 South Court Square
Trenton, TN 38382 Clayburn Peeples, Jr.
District Attorney General
(AT TRIAL) 110 South College Street
Suite 200
Trenton, TN 38382
Judge:Hayes
First Paragraph:
The appellant, Edward Earl Huddleston, appeals his jury conviction for
rape of a child, a class A felony. The trial court sentenced the
appellant to the presumptive sentence of twenty years in the Tennessee
Department of Correction. On appeal, the appellant first contends that
the trial court erred in finding the eight year old victim competent
to testify against him. Second, he asserts that the trial court erred
when it failed to find as a mitigating factor that the appellant
neither caused nor threatened to cause the victim serious bodily
injury.
URL:http://www.tba.org/tba_files/TCCA/hudlstne.opn
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