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TBALink Opinion-Flash
June 17, 1998 -- Volume #4 -- Number #094
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CHARLES O. WRIGHT vs. MILLER TRANSPORTER, INC. and THE HOME INSURANCE CO. vs. LARRY BRINTON, JR., DIRECTOR DIVISION OF WORKERS' COMPENSATION, TENNESSEE DEPARTMENT OF LABOR, SECOND INJURY FUND Court:TSC - Workers Comp Panel Attorneys: For the Appellees For the Appellant Miller Transporters For the Appellee Charles O. Wright: and Home Ins. Co.: Second Injury Fund: Donald A. Donati Carroll C. Johnson, III John Knox Walkup 629 Poplar Ave. 1698 Monroe Ave. Atty. Gen. & Reporter Memphis, TN 38105 Memphis, TN 38104 Dianne Stamey Dycus Senior Counsel CIVIL DIVISION 425 Fifth Avenue N 2nd Fl. Cordell Hull Bldg. Nashville, TN 37243 Judge:BYERS First Paragraph: The trial judge found the plaintiff had failed to show that injuries he received on November 2, 1990 arose out of and in the course of his employment, and the plaintiff's suit was dismissed. URL:http://www.tba.org/tba_files/TSC_WCP/wrightch_opn.WP6
IN RE: ESTATE OF WILLIAM F.
BURTON, JR., Deceased,
BOBBI BURTON MILLER, Executrix
vs.
PAUL T. HOUSCH, ADMINISTRATOR
C.T.A., D.B.N.
Court:TCA
Attorneys:
Charles A. Trost, #4079
Joseph A. Woodruff, #12869
Michael G. Stewart, #16920
WALLER, LANSDEN, DORTCH & DAVIS
511 Union Street, Suite 2100
Nashville, TN 37219
ATTORNEYS FOR APPELLANT
Frankie E. Wade, #6163
HILL AND BOREN
1269 North Highland Avenue
P.O. Box 3539
Jackson, TN 38303-3539
ATTORNEY FOR APPELLEE/CROSS APPELLANT
Judge:TODD
First Paragraph:
This appeal involves an interlocutory order of the Probate Court
surcharging the executrix, Bobbi Burton Miller, for misfeasance to the
extent of $150,179.23 plus prejudgment interest. The executrix
resigned, and an administrator, C.T.A., D.B.N. (with will annexed, for
further administration) represented the estate in Probate Court and
this Court.
URL:http://www.tba.org/tba_files/TCA/burtonwf_opn.WP6
IN THE MATTER OF:
S.M.L., (DOB 12/26/88),
C.B.L., (DOB 4/14/92),
D.K.J., (DOB 5/8/93),
Children under the age of 18.
Court:TCA
Attorneys:
For the Appellants: For the State of Tennessee:
Nan Shelby Calloway John Knox Walkup
Clarksville, Tennessee Attorney General and Reporter
Douglas Earl Dimond
Assistant Attorney General
Judge:KOCH
First Paragraph:
This appeal involves the termination of a mother's parental rights to
three of her children who are between five and ten years of age.
Almost four years after the children had been removed from their
mother's custody, the Department of Children's Services filed a
petition in the Dickson County Juvenile Court to terminate the
mother's parental rights. Following a two-day hearing, the juvenile
court terminated the mother's parental rights in accordance with Tenn.
Code Ann. S 36-1-113(g)(3)(A) (Supp. 1997). On this appeal, the
mother asserts that the juvenile court's findings are not supported by
clear and convincing evidence and that the trial court should have
left the record open to enable her to present additional evidence of
her parental fitness. We affirm the judgment terminating the mother's
parental rights because the Department has presented clear and
convincing evidence establishing the statutory grounds for terminating
the mother's parental rights and demonstrating that the children's
interests will be best served if they can be integrated into a stable
and permanent home as soon as possible.
URL:http://www.tba.org/tba_files/TCA/childsv_opn.WP6
URL:http://www.tba.org/tba_files/TCA/childsc_con.WP6
OLAN ENGLAND and
ROBERT WHITLEY
vs.
SELECT SIRES, INC., P. D. LIGGETT,
and TENNESSEE ARTIFICIAL
BREEDING ASSOCIATION
Court:TCA
Attorneys:
BILLY C. JACK
Columbia, Tennessee
DOUGLAS E. JONES
Nashville, Tennessee
Attorneys for Appellant Tennessee
Artificial Breeding Association
R. STEPHEN DOUGHTY
WEED, HUBBARD, BERRY & DOUGHTY
Nashville, Tennessee
WALTER W. BUSSART
BUSSART & MEDLEY
Lewisburg, Tennessee
Attorney for Appellees
Judge:HIGHERS
First Paragraph:
One of the defendants, Tennessee Artificial Breeding Association
("TABA"), has appealed from a jury verdict in favor of plaintiffs,
Olan England ("England"), in the amount of $77,840.54, and Robert
Whitley ("Whitley") in the amount of $183,362, which the trial court
reduced to $120,000 via a remittitur. TABA further appeals the jury
verdict finding an ostensible agency relationship between TABA and
artificial insemination technician P.D. Liggett ("Liggett").
URL:http://www.tba.org/tba_files/TCA/englando_opn.WP6
ELAINE FAGG and THOMAS FAGG
vs.
COUNTY OF FRANKLIN
Court:TCA
Attorneys:
Michelle M. Benjamin, #0012377
P.O. Box 177
Winchester, Tennessee 37398
ATTORNEY FOR PLAINTIFFS/APPELLANTS
Ben P. Lynch, #003246
LYNCH, LYNCH & LYNCH
P.O. Box 310
Winchester, Tennessee 37398
ATTORNEY FOR DEFENDANT/APPELLEE
Judge:TODD
First Paragraph:
This suit arises from the injury of a pedestrian by stepping into a
hole in or near the edge of the paved county road. The Trial Judge
rendered summary judgment in favor of the county on the ground that
the county owed no duty to a pedestrian.
URL:http://www.tba.org/tba_files/TCA/fagget_opn.WP6
PHILLIP E. HALL
vs.
COMMISSIONER DONAL CAMPBELL, et al
Court:TCA
Attorneys:
Phillip E. Hall, pro se
Henning, Tennessee
JOHN KNOX WALKUP
Attorney General & Reporter
KIMBERLY J. DEAN
Assistant Attorney General
Nashville, Tennessee
Attorney for Appellees
Judge:HIGHERS
First Paragraph:
This case involves a petition for writ of certiorari filed by a state
prisoner in the chancery court sitting at Lauderdale County.
Appellant/prisoner, Phillip E. Hall ("Hall"), challenges the outcome
of a disciplinary proceeding brought against him. The trial court
dismissed the suit by order entered on December 1, 1997, finding that
appellant had failed to file his petition for writ of certiorari
within the sixty day period required by Tenn. Code Ann. S 27-9-102,
and that he had failed to file his petition for writ of certiorari in
Davidson County.
URL:http://www.tba.org/tba_files/TCA/hallpe_opn.WP6
HARPETH VALLEY UTILITIES
DISTRICT OF DAVIDSON AND
WILLIAMSON COUNTIES
vs.
THE METROPOLITAN GOVERNMENT
OF NASHVILLE & DAVIDSON COUNTY
RAY BELL, GLENDA BELL, WILLIAM
COBLE, DR. ROY PARKER, JIMMY
JONES, WESLEY BARNES, FANNIE C.
BUCHANAN, KEITH VAUGHN, JOEL
CHEEK, DANNY GRAVES, EDDIE
GRAVES, JERRY GRAVES, ANNIE K.
GRAVES, MACK AND WANDA
LOVELL, JOE COLLIER, JIM
FESMIRA, MAC KELL, THOMAS
ROGERS, GENE ROGERS, AND
GEORGE ROGERS
Court:TCA
Attorneys:
Val Stanford, #3316
GULLETT, SANFORD, ROBINSON & MARTIN, PLLC
230 Fourth Avenue North, 3rd Floor
P.O. Box 198888
Nashville, Tennessee 37219-8888
Robert E. Parker, #2756
George A. Dean, #6737
PARKER, LAWRENCE, CANTRELL & DEAN
Fifth Floor, 200 Fourth Avenue, North
Nashville, Tennessee 37219
ATTORNEYS FOR PLAINTIFF/APPELLANT
George E. Barrett, #2672
Phillip A. Purcell, #14453
J. Bryan Lewis, #15116
BARRETT, JOHNSTON & PARSLEY
217 Second Avenue North
Nashville, Tennessee 37201
Stephen O. Nunn, #9069
ATTORNEYS FOR INTERVENOR-DEFENDANTS/APPELLEES
Wesley G. Weeks, #18267
204 Metro Courthouse
Nashville, Tennessee 37201
ATTORNEYS FOR DEFENDANT/APPELLEE
Judge:TODD
First Paragraph:
The origin of the present controversy is the plan of the Harpeth
Valley Utility District to construct and operate a wastewater disposal
facility in an area of Davidson County known as "Bell's Bend." The
basic question on appeal is whether the planning and zoning
authorities of Metropolitan Government of Nashville and Davidson
County have jurisdiction to regulate the proposed facility. The Trial
Court rendered summary judgment that the local authorities had such
jurisdiction. The utility appealed to this Court.
URL:http://www.tba.org/tba_files/TCA/harpethv_opn.WP6
URL:http://www.tba.org/tba_files/TCA/harpeth_con.WP6
IN RE:
ESTATE OF HAROLD JENKINS
CLAIM OF BILLY R. PARKS
vs.
ESTATE OF HAROLD JENKINS
Court:TCA
Attorneys:
JAMES C. McBROOM
JONATHAN R. STEPHENS
211 Printers Alley, Suite 502
Nashville, Tennessee 37201
Attorneys for Appellant
DENTY CHEATHAM
ROSE PALERMO
43 Music Square West
Nashville, Tennessee 37203
Attorneys for Appellee
Judge:CANTRELL
First Paragraph:
The sole question in this appeal is whether the appellant had a
binding oral contract entitling him to a $20,000 bonus after twenty
years of service to his employer. The Probate Court of Sumner County
denied the claim. We affirm.
URL:http://www.tba.org/tba_files/TCA/jenkinsh_opn.WP6
BILLY RAY LONG and VICKY LONG
vs.
LANDMARK TELEVISION OF TENNESSEE,
INC., and JAMES E. NORTON, Individually
Court:TCA
Attorneys:
James L. Harris, #14173
2400 Crestmoor Road
Nashville, Tennessee 37215
ATTORNEY FOR PLAINTIFFS/APPELLANTS
Leilani Boulware, #15656
HARWELL, HOWARD, HYNE, GABBART & MANNER, P.C.
1800 First American Center
315 Deaderick Street
Nashville, Tennessee 37238
ATTORNEY FOR DEFENDANTS/APPELLEES
Judge:TODD
First Paragraph:
The captioned plaintiffs have appealed from a summary dismissal of
their joint suit against the employer of Mr. Long and his superior for
alleged emotional injury resulting from verbal and physical harassment
of Mr. Long by said supervisor.
URL:http://www.tba.org/tba_files/TCA/longbr_opn.WP6
CHARLES MONTAGUE
vs.
TENNESSEE DEPARTMENT OF
CORRECTIONS
Court:TCA
Judge:TODD
First Paragraph:
The appellant has filed a petition to rehear which has been examined
and found to be without merit. It is therefore denied.
URL:http://www.tba.org/tba_files/TCA/montague_ord.WP6
NATIONAL HEALTHCARE, L.P.
vs.
SPARTA MEDICAL INVESTORS
LIMITED PARTNERSHIP and the
TENNESSEE HEALTH FACILITIES
COMMISSION
Court:TCA
Attorneys:
James L. Harris, #14173
2400 Crestmoor Road
Nashville, Tennessee 37215
ATTORNEY FOR PLAINTIFFS/APPELLANTS
Leilani Boulware, #15656
HARWELL, HOWARD, HYNE, GABBART & MANNER, P.C.
1800 First American Center
315 Deaderick Street
Nashville, Tennessee 37238
ATTORNEY FOR DEFENDANTS/APPELLEES
Judge:TODD
First Paragraph:
The appellant has filed a respectful petition to rehear requesting the
deletion from page 7 of the opinion of this Court of the words, "The
existing facility has no skilled nursing beds."
URL:http://www.tba.org/tba_files/TCA/nathealt_ord.WP6
NATIONAL HEALTHCARE, L.P.
vs.
SPARTA MEDICAL INVESTORS
LIMITED PARTNERSHIP and the
TENNESSEE HEALTH FACILITIES
COMMISSION
Court:TCA
Attorneys:
Robert B. Littleton
Kathryn Ladd
TRABUE, STURDIVANT & DeWITT
2500 Nashville City Center
511 Union Street
Nashville, Tennessee 37219
ATTORNEY FOR PLAINTIFF/APPELLANT
John Knox Walkup
Attorney General and Reporter
Michelle Hohnke Joss
Assistant Attorney General
Second Floor, Cordell Hull Building
425 Fifth Avenue, North
Nashville, Tennessee 37243
ATTORNEYS FOR THE TENNESSEE HEALTH FACILITIES
COMMISSION/DEFENDANT/APPELLEE
Jerry W. Taylor
WYATT, TARRANT & COMBS
511 Union Street, Suite 1500
Nashville, Tennessee 37219
ATTORNEY FOR SPARTA MEDICAL INVESTORS LIMITED PARTNERSHIP
Judge:TODD
First Paragraph:
This appeal involves an existing health care facility in Sparta,
Tennessee and a proposal to build a second health care facility in the
same city. The existing facility opposed the construction of the new
facility, but the Tennessee Health Facilities Commission (hereafter,
Commission) granted a certificate of need (hereafter CON) authorizing
the construction of the new facility. The existing facility
petitioned for judicial review. The Trial Court affirmed the order of
the Commission, and the existing facility appealed to this Court.
URL:http://www.tba.org/tba_files/TCA/nationhc_opn.WP6
RUTH PHARES
vs.
KITTIE MYATT, ED.D.
Court:TCA
Attorneys:
JAMES L. HARRIS
2400 Crestmoor Road
Nashville, Tennessee 37215
Attorney for Plaintiff/Appellant
NOEL F. STAHL
E. TODD PRESNELL
Suite 2700, Nashville City Center
511 Union Street
Nashville, Tennessee 37219
Attorney for Defendant/Appellee
Judge:CANTRELL
First Paragraph:
A licensed practical nurse filed suit against a psychological examiner
who evaluated her after the nurse's license was suspended for
professional misconduct. The plaintiff claimed that as a result of a
negligent report by the examiner, her license reinstatement was
conditioned on the completion of unnecessary treatment for drug and
alcohol abuse, leading her to suffer severe emotional distress. The
trial court granted summary judgment for the defendant psychological
examiner. We affirm.
URL:http://www.tba.org/tba_files/TCA/pharesr_opn.WP6
CATHY P. SPRAYBERRY-GRAVITT
vs.
DAVID BAKER, Director of
Schools for the CLARKSVILLE-
MONTGOMERY COUNTY
SCHOOLS and
THE CLARKSVILLE-
MONTGOMERY COUNTY
BOARD OF EDUCATION
Court:TCA
Judge:TODD
First Paragraph:
We have reviewed appellee's Petition to Rehear. Counsel correctly
points out that the Education Improvement Act of 1992 specified
certain duties in the County Administration of education. The two
sections cited [T.C.A. 49-2-301(f)(10) and T.C.A. 49-2-203(a)(1)] do
refer to "recommendation" of the superintendent to the local board of
education. It is the duty of the superintendent to recommend teachers
who qualify and the board "elects" such teachers to tenure status as
it deems appropriate.
URL:http://www.tba.org/tba_files/TCA/sprayg_ord.WP6
IN THE MATTER OF:
T.J.H., (DOB 7/29/95)
and
M.S.M., (DOB 5/29/91)
(Children under the age of 18)
Court:TCA
Attorneys:
Guardian ad litem: For the Respondents/Appellants:
Clifford K. McGown, Jr. Janet S. Kelley
Waverly, Tennessee Waverly, Tennessee
Judge:KOCH
First Paragraph:
This appeal involves the termination of the parental rights of two
persons who have a history of serious mental illnesses. The two
children at issue in this case were temporarily removed from their
parents' custody in mid-1996 following the hospitalization of the
younger child for poisoning. In April 1997, the children's guardian
ad litem filed a petition in the Chancery Court for Humphreys County
seeking to terminate parental rights. Following a bench trial, the
trial court entered an order terminating parental rights pursuant to
Tenn. Code Ann. S 36-1-113(g)(3)(A) (Supp. 1997). On this appeal, the
parents assert that the trial court's decision is not supported by
clear and convincing evidence. We have carefully evaluated the record
and have determined that it contains clear and convincing evidence to
support the termination of these parents' parental rights.
URL:http://www.tba.org/tba_files/TCA/tjh_opn.WP6
VIRGINIA GRAF WADDEY
vs.
IRA CLINTON WADDEY, JR.
Court:TCA
Attorneys:
F. Dulin Kelly, #4085
Clinton L. Kelly, #16171
Andy L. Allman, #17857
KELLY & KELLY
629 East Main Street
Hendersonville, Tennessee 37075
ATTORNEYS FOR PLAINTIFF/APPELLANT
Albert F. Moore, #6709
NEAL & HARWELL, PLC
2000 First Union Tower
150 Fourth Avenue North
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANT/APPELLEE
Judge:TODD
First Paragraph:
The plaintiff Virginia Graf Waddey, has appealed from the Trial
Court's dismissal of her post-divorce decree petition to extend her
periodic alimony because of a change in circumstances.
URL:http://www.tba.org/tba_files/TCA/waddeyvg_opn.WP6
RONDA GALE WILDER
vs.
LLOYD CLINTON RAINS
Court:TCA
Attorneys:
For Plaintiff/Appellant: For Defendant/Appellee:
Bernard K. Smith B. Timothy Pirtle
H. Thomas Parsons McMinnville, Tennessee
Parsons, Nichols & Johnson
Manchester, Tennessee
Judge:KOCH
First Paragraph:
This appeal arose from a collision on a two-lane rural road in which a
vehicle traveling in one lane struck a vehicle that was turning left.
The driver of the oncoming vehicle sued the driver of the turning
vehicle in the Circuit Court for Warren County. After a jury
returned a verdict allocating fault equally between the two drivers,
the trial court entered a judgment awarding nothing to the plaintiff
driver. On this appeal, the plaintiff driver asserts that the
evidence does not support the jury's verdict. We have determined that
the record contains material evidence to support the jury's verdict
and, therefore, affirm the judgment in accordance with Tenn. Ct. App.
R. 10(b).
URL:http://www.tba.org/tba_files/TCA/wilderrg_opn.WP6
THOMAS A. (TOMMY) WORTHAM
vs.
WEST MEADE CORPORATION,
JOY MARSH, PRESIDENT
Court:TCA
Attorneys:
NEAL LOVLACE
HARVILL & LOVLACE
102 Bank Avenue
Centerville, Tennessee 37033
Attorney for Plaintiff/Appellant
HENRY F. TODD, JR.
TODD, SPENCER & ATKINS
404 East College Street
Dickson, Tennessee 37055
Attorney for Defendant/Appellee
Judge:CANTRELL
First Paragraph:
The plaintiff filed suit for specific performance on an option to
purchase real property. The trial court found that the plaintiff had
failed to exercise the option before it expired, and granted summary
judgment to the defendant property-owner. We affirm the trial court.
URL:http://www.tba.org/tba_files/TCA/worthta_opn.WP6
EDDIE JOE MANN
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
Greg Alford John Knox Walkup
Attorney at Law Attorney General & Reporter
108 W. Court Street, Suite 21
Dyersburg, TN 38024 Marvin E. Clements, Jr.
Assistant Attorney General
Criminal Justice Division
Cordell Hull Building, 2nd Fl
425 Fifth Avenue North
Nashville, TN 37243
C. Phillip Bivens
District Attorney General
115 Market Street East
Dyersburg, TN 38024
Judge:SUMMERS
First Paragraph:
The petitioner, Eddie Joe Mann, was convicted by a jury of theft under
$500. Our Court affirmed his conviction and sentence. State v. Eddie
Joe Mann, No. 02C01-9512-CC-00395 (filed at Jackson, January 16,
1997). He filed a post-conviction relief petition alleging
ineffective assistance of counsel at both the trial and appellate
levels. The hearing court denied relief. Petitioner appealed to this
Court. Oral argument was heard on June 2, 1998.
URL:http://www.tba.org/tba_files/TCCA/manneddi_opn.WP6
STEPHAN A. THORPE
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
ETANDRA DOUGLAS JOHN KNOX WALKUP
46 North Third St., Ste 725 Attorney General & Reporter
Memphis, TN 38103
MARVIN E. CLEMENTS, JR.
Assistant Attorney General
2nd Fl., Cordell Hull Bldg
425 Fifth Avenue North
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
JAMES M. LAMMEY
Asst District Attorney General
Criminal Justice Center, Ste 301
201 Poplar Avenue
Memphis, TN 38103
Judge:WOODALL
First Paragraph:
The Petitioner, Stephan A. Thorpe, appeals from the order denying his
petition for post-conviction relief. Petitioner was indicted on four
(4) counts of aggravated sexual battery. Pursuant to an agreement
with the State, Petitioner pled guilty to attempt to commit aggravated
sexual battery in violation of Tennessee Code Annotated sections
39-12-101 and 39-13-504 in the Criminal Court of Shelby County.
Petitioner also pled guilty to three (3) counts of indecent exposure,
although these pleas are not the subject of his petition for
post-conviction relief. According to the agreement, he was sentenced
as a Range II Offender to serve eight (8) years for the attempted
aggravated sexual battery conviction. In his petition for
post-conviction relief, Petitioner claimed that his Fifth Amendment
right against self-incrimination was violated and his Sixth Amendment
right to the effective assistance of counsel was denied. Following an
evidentiary hearing, the trial court denied relief. Petitioner
appealed to this court strictly on the issue of ineffective assistance
of counsel based upon his involuntary guilty plea. We affirm the
judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/thorpesa_opn.WP6
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