TBALink Opinion-Flash

August 5, 1998 -- Volume #4 -- Number #114

What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.

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Editor-in-Chief, TBALink



SERIE M. BLAND
vs.
DAVID COWAN, TENNESSEE EDUCATION ASSOCIATION
 and HAMILTON COUNTY EDUCATION ASSOCIATION
 
Court:TCA

Attorneys:

Mitchell A. Byrd, Chattanooga, for Appellant
William E. Godbold, III, Chattanooga, for Appellee David Cowan
Charles Hampton White, Nashville, for Appellees Tennessee Education
Association and Hamilton County Education Association                          

Judge:INMAN

First Paragraph:

The plaintiff is a non-tenured teacher in the Hamilton County School
system. She was employed at the Brown Middle School for the school
year 1993 94.  At the end of the 1994-95 school year she was
transferred to Red Bank Middle School because of a decrease in
enrollment at Brown.  She was one of seven science teachers at Red
Bank when the 1995-96 school year began on August 28, 1995.
About a week later, Mr. Cowan, principal of Red Bank, announced that
because of a decrease in enrollment, the school would lose teachers.

URL:http://www.tba.org/tba_files/TCA/bland_ca3.WP6
Opinion-Flash

THE CIT GROUP/SALES FINANCING
INC., as successor in interest to
General Electric Capital Asset
Management Corporation as
Servicing Agent for Governmental
National Mortgage Association
vs.
LESLIE R. WILLIAMS

Court:TCA

Attorneys: 

JAMES DAVID NAVE
HIX GRAY & NAVE
Nashville, Tennessee
Attorney for Appellant

NATHAN B. PRIDE
Jackson, Tennessee
Attorney for Appellee                         

Judge:HIGHERS

First Paragraph:

Plaintiff CIT Group/Sales Financing, Inc. (CIT), the
successor-in-interest to the original plaintiff, General Electric
Capital Asset Management Corporation, appeals the trial court's order
awarding Defendant/Appellee Leslie R. Williams damages in the amount
of $4,464.00 relative to CIT's removal of a mobile home from Williams'
property pursuant to a writ of possession.  For the reasons stated
hereinafter, we reverse the trial court's judgment.

URL:http://www.tba.org/tba_files/TCA/citgroup_opn.WP6
Opinion-Flash

C. J. CLAPP MOBILE HOME MOVERS, INC., and
CLARA J. CLAPP
vs. 
BILL GOLDSTON, d/b/a GOLDSTON'S WRECKER SERVICE 
and DONNY and TAMMY MOORE

Court:TCA

Attorneys:

MICHAEL P. McGOVERN OF KNOXVILLE FOR APPELLANTS

WILLIAM A. NEWCOMB OF HARRIMAN FOR APPELLEE GILL GOLDSTON

J. POLK COOLEY OF ROCKWOOD FOR APPELLEES DONNY AND TAMMY MOORE                          

Judge:Goddard

First Paragraph:

C. J. Clapp Mobile Home Movers, Inc., and Clara J. Clapp appeal
judgments rendered against them in favor of Bill Goldston, d/b/a
Goldston's Wrecker Service, and Donny and Tammy Moore in the following
amounts: 1. $500 to the Plaintiffs for loss of use of Ms. Clapp's
equipment while in the possession of Mr. Goldston. 2.   $4239 to Mr.
Goldston for wrecker service. 3.    $11,500 to Mr. and Mrs. Moore for
damages to their mobile home.

URL:http://www.tba.org/tba_files/TCA/clappcj_opn.WP6
Opinion-Flash

CONCRETE SPACES, INC., FAUX FUR, INC.,
PAULETTE DALTON, and STUART DALTON
vs.
HENRY SENDER, Individually, DARREN LIFF and ZACKARY LIFF,
HENRY SENDER, EUGENE I. SACKS and wife RUTH SACKS, d/b/a 
LIFF, SENDER AND SACKS, Tenants in Common,
NATIONAL BUILDING CORPORATION

Court:TCA

Attorneys:

For Plaintiffs/Appellees:           For Defendants/Appellants:

Steve North                         Charles Hampton White
Mark North                          Andrew D. Dunn
Madison, Tennessee                  Cornelius & Collins
                                    Nashville, Tennessee
Abby Rubenfeld
Nashville, Tennessee                          

Judge:KOCH

First Paragraph:

This appeal arises from a dispute over the lease and renovation of
commercial space in Nashville's Cummins Station.  After abandoning the
leases because the renovations had not been completed within the time
promised, the lessees filed suit in the Chancery Court for Davidson
County against the lessors and the project manager. A jury awarded the
lessees $75,000 in compensatory damages and $1,100,000 in punitive
damages which the trial court later reduced to $500,000.  On this
appeal, the lessors and the project manager take issue with the
punitive damage award and with the inconsistencies between the
judgment and the jury's answers to special interrogatories.  We affirm
the compensatory damage award; however, we vacate the punitive damage
award and remand the case to the trial court to consider whether the
compensatory damages should be trebled in accordance with the
Tennessee Consumer Protection Act.

URL:http://www.tba.org/tba_files/TCA/concrete_opn.WP6
Opinion-Flash

DONALD DAVIS
vs.
SUMNER COUNTY SHERIFF, J.D. VANDERCOOK, BILLY TEMPLETON
ASSISTANT ADMINISTRATOR SONYA TROUTT

Court:TCA

Attorneys:  

Donald Davis, #117350 
D.C.I., Box 700
Waupun, WI 53963
PRO SE PLAINTIFF/APPELLANT

William R. Wright, BPR 4024
Leah May Dennen, BPR 12711
Office of the Law Director
Sumner County Administration Building
355 North Belvedere Drive, Room 208
Gallatin, Tennessee 37066
ATTORNEYS FOR DEFENDANTS/APPELLEES                        

Judge:TODD

First Paragraph:

The captioned appellant is a prisoner in the punitive custody of the
Tennessee Department of Correction.  He sued the Sheriff of Sumner
County and two of his employees for violation of 42 USC S 1983 by
violating his civil rights by failing to provide him with a "no pork
diet" upon his demand therefor.

URL:http://www.tba.org/tba_files/TCA/davisdon_opn.WP6
Opinion-Flash

WANDA ORTIZ DeGROOT
vs.              
MICHAEL DeGROOT

Court:TCA

Attorneys:

FRANCIS X. SANTORE and FRANCIS X. SANTORE, JR, OF GREENEVILLE FOR
APPELLANT

EDWARD L. KERSHAW OF GREENEVILLE FOR APPELLEE                          

Judge:Goddard

First Paragraph:

The controversy in this appeal concerns the award of custody of
Andrew, the parties' two-year-old son, to the mother. The father
appeals, raising two issues and several sub issues, all of
which may be re-stated to contend that the evidence preponderates
against a finding that it is in the best interest of Andrew that
custody be awarded to the mother.

URL:http://www.tba.org/tba_files/TCA/degrootw_opn.WP6
Opinion-Flash

JERRY HARB and MAIDGA HARB
vs.
SERVICE TRANSPORT, INC. and STEVEN C. McLEMORE

Court:TCA

Attorneys:

JAMES T. SHEA, IV
BAKER, McREYNOLDS, BYRNE,
O'KANE, SHEA & TOWNSEND
Knoxville, Tennessee
Attorney for Appellants

ALBERT J. HARB
HODGES, DOUGHTY & CARSON
Knoxville, Tennessee
Attorney for Appellees                          

Judge:HIGHERS

First Paragraph:

Plaintiff/Appellee, Jerry Harb ("plaintiff"), suffered various
injuries in an automobile accident on November 30, 1994.  The jury
awarded plaintiff a total of $73,100 by order dated June 2,
1997--$71,000 in compensatory damages and $2,100 for plaintiff's
property damage claim.  On or around June 16 or 17 of that same year,
plaintiff's counsel called defense counsel and inquired as to why the
judgment had not been paid.  Defense counsel stated that a Motion for
New Trial or Remittitur ("motion") had been filed with the trial court
on June 10, 1997.  He did not prepare a transmittal letter, nor did he
hand deliver or mail a copy of said motion to plaintiff's counsel as
required by Rule 5 of the Tennessee Rules of Civil Procedure.  A copy
of said motion was faxed to plaintiff's counsel on June 16 or 17.  The
copy, however, was not date stamped by the trial court, nor did it
contain any other indications that it had been filed with the court. 
On July 9, 1997, plaintiff's counsel called the Knox County Circuit
Court to determine what motions had been filed. The court informed him
that no such motion had been filed.  Plaintiff's counsel informed
defense counsel that the court had no record of the motion. 
Thereafter, on July 17, 1997, defense counsel forwarded a copy of the
motion to the court which was filed that same day.

URL:http://www.tba.org/tba_files/TCA/harbj_opn.WP6
Opinion-Flash

HARTSVILLE HOSPITAL, INC.
vs.
THE BAY NATIONAL BANK & TRUST CO.

Court:TCA

Attorneys: 

DAVID B. FOUTCH
GREGORY S. GILL
Rochelle, McCulloch & Aulds
109 Castle Heights Ave., No.
Lebanon, Tennessee 37087
    ATTORNEYS FOR THE PLAINTIFF/APPELLEE

SHARON LINVILLE
203 East Main Street
Hartsville, Tennessee 37074
    ATTORNEY FOR THE DEFENDANT/APPELLANT                         

Judge:CAIN

First Paragraph:

This case is before us on appeal from a grant of summary judgment in
favor of the Plaintiff, Hartsville Hospital Inc., regarding its claim
to $27,835.81 held by the Defendant, The Bay National Bank & Trust
Company.  The parties shall hereinafter be referred to as Hospital and
Bank respectively.

URL:http://www.tba.org/tba_files/TCA/harts_opn.WP6
Opinion-Flash

ANGELA S. HOGAN
vs.
SONYA M. REESE

Court:TCA

Attorneys: 

JOE D. HARSH
Harsh, Parks & Harsh
123 Public Square
Gallatin, Tennessee  37066
    ATTORNEY FOR PLAINTIFF/APPELLEE

R. KREIS WHITE
Adair, Schuerman & White
4701 Trousdale Drive, Suite 211
Nashville, Tennessee  37220
    ATTORNEY FOR DEFENDANT/APPELLANT                         

Judge:CAIN

First Paragraph:

In this case defendant appeals a jury verdict for personal injuries
resulting from an automobile accident in which the trial judge
directed a verdict for the plaintiff on the issue of liability.  This
appeal takes issue with two aspects of the trial court's decision, to
wit, damages and liability.

URL:http://www.tba.org/tba_files/TCA/hogana_opn.WP6
Opinion-Flash

DELBERT L. HOLLINGSWORTH
REBECCA MARY LEQUIRE BUCHANAN,
KATHRYNE HOLLINGSWORTH BARBEE,
SARA JEANNE HOLLINGSWORTH CHANIOTT,
ANTON KILGORE LEQUIRE,
EVELYN B. O'MEARA,
MARY HOLLINGSWORTH SHARP,
vs.
JACK L. EDEN

Court:TCA

Attorneys: 

DAN W. HOLBROOK
HOLBROOK & PETERSON, PLLC
Knoxville, Tennessee
STEPHEN A. McSWEEN
EGERTON, McAFEE, ARMISTEAD & DAVIS, PC
Knoxville, Tennessee
Attorneys for Appellant

ROBERT S. MARQUIS
CHRISTINA M. CONDON
McCAMPBELL & YOUNG, P.C.
Knoxville, Tennessee
Attorneys for Appellees                         

Judge:HIGHERS

First Paragraph:

In this will construction case, defendant/appellant, Jack L. Eden
("defendant"), appeals the judgment of the trial court finding (1)
that the will of Amos J. LeQuire ("decedent") gave Irene LeQuire Eden
a gift over of the exact interest that was held by her father, S. Clay
LeQuire, namely, a contingent remainder subject to the condition
precedent of surviving Trissie Lee LeQuire; (2) that Irene LeQuire
Eden's interest never vested and was therefore not transmissible by
her will; and (3) that the interest of S. Clay LeQuire passed to the
surviving lineal descendants of decedent, per stirpes.  For reasons
stated hereinafter, we reverse the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCA/hollings_opn.WP6
Opinion-Flash

DESTINI JANE ISAACSON, A minor under 18 years of age
STACEY L. ISAACSON
vs.
MARK L. FENTON

Court:TCA

Attorneys:

For Appellant                   For Appellee

STANLEY F. LaDUKE               RONALD J. ATTANASIO
Knoxville, Tennessee            Hurley, Sharp & Attanasio
                                Knoxville, Tennessee                          

Judge:Susano

First Paragraph:

In this paternity case, the trial court granted the putative father's
motion to dismiss.  In so doing, the court stated that it "[did] not
feel that a visit of ten...days by the [respondent] to [Tennessee]
would give this state the power to require him to stand trial in this
cause," where service of process was effected on him pursuant to
T.C.A. S 20-2-214, the Tennessee Long Arm Statute.  The petitioner
appealed, contending that the trial court erred in finding that it did
not have in personam jurisdiction over the respondent.

URL:http://www.tba.org/tba_files/TCA/isacsnsl_opn.WP6
Opinion-Flash

BRUCE and CRYSTAL JASPER
vs.
DON STRECK
vs.
PETERBILT OF KNOXVILLE, INC.
vs.
JESS BRYANT

Court:TCA

Attorneys: 

For Appellants                      For Appellees

GARY BLACKBURN                      KEITH McCORD
JAY C. BALLARD                      McCord, Troutman & Irwin
Blackburn, Slobey, Freeman &        Knoxville, Tennessee
 Happell, P.C.
Nashville, Tennessee                         

Judge:Susano

First Paragraph:

This case arises out of a transaction involving the original
plaintiffs, Bruce Jasper and his wife, Crystal Jasper (collectively
"the Jaspers"), and the defendant Peterbilt of Knoxville, Inc.
("Peterbilt"), regarding a 1994 Peterbilt tractor titled in the name
of Mrs. Jasper's father, the third-party defendant Jess Bryant
("Bryant").  The Jaspers claimed an interest in the subject vehicle. 
They sued Peterbilt and its former employee, Don Streck ("Streck"),
claiming that the defendants were guilty of breach of contract,
conversion, fraud, and negligent misrepresentation, in securing the
transfer of the truck to Peterbilt.  At the close of the Jaspers'
proof before a jury, the trial court held that the Jaspers had "no
claim" against Peterbilt, because the vehicle in question had not been
titled to either of the Jaspers.  Accordingly, the trial court
directed a verdict in Peterbilt's favor, and the Jaspers appealed,
presenting the following two issues: 1.  Do the Jaspers, who had an
ownership interest in the 1994 truck according to Tennessee, Georgia
and Ohio laws, have capacity and standing to maintain an action for
conversion and fraud? 2.  Do the Jaspers, regardless of any interest
in the 1994 truck, have capacity and standing to maintain an action
for fraud?

URL:http://www.tba.org/tba_files/TCA/jasperb_opn.WP6
Opinion-Flash
KENNETH RAY MAYFIELD, SR
vs.
NANCY PRECELLA MAYFIELD

Court:TCA

Attorneys:  

D. Mitchell Bryant, Cleveland, for the Appellant.
Appellee filed no brief and made no appearance.                        

Judge:INMAN

First Paragraph:

Nancy Precella Mayfield ["Wife"] appeals from the judgment of the
trial court granting her a divorce based upon the inappropriate
marital conduct of Kenneth Ray Mayfield, Sr. [ "Husband"].   She
contends on appeal that the settlement agreement was obtained through
threats and coercion.

URL:http://www.tba.org/tba_files/TCA/mayfield_ca3.WP6
Opinion-Flash

JANET PHILLIPS, Individually
and in behalf of the Estate
of JAMES PHILLIPS
vs.
WATKINS MOTOR LINES, INC., and
MICHAEL J. BARTHOLOMEW

Court:TCA

Attorneys: 

DAVID L. FRANKLIN OF CHATTANOOGA FOR APPELLANTS

MARVIN BERKE OF CHATTANOOGA FOR APPELLEE                         

Judge:Goddard

First Paragraph:

Janet Phillips, individually and on behalf of the estate of her
husband, James Phillips, sues Watkins Motor Lines, Inc., and its
employee, Michael J. Bartholomew, for injuries received by her and the
death of her husband as a result of being struck by an automobile
being operated by Michael J. Bartholomew  while crossing Ringgold Road
in Chattanooga.

URL:http://www.tba.org/tba_files/TCA/phillips_opn.WP6
Opinion-Flash

PIGEON FORGE DRUGS
vs.
PAULETTE MAPLES

Court:TCA

Attorneys:

REBECCA C. McCOY, Sevierville, for Appellant.

GARY KIMBLE, Pro Se, Pigeon Forge Drugs.                          

Judge:McMurray

First Paragraph:

This case originated in the Trial Justice Court for Sevier County as a
suit on an open account.  Judgment was entered in favor of the
plaintiff and against the defendant.  The defendant appealed to the
Circuit Court.  After a trial de novo, judgment was again entered in
favor of the plaintiff and against the defendant.  From this judgment,
the defendant appeals.  We affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCA/pigeonfd_opn.WP6
Opinion-Flash

ALFORD RODGERS and
SUZANNE RODGERS
vs.
DON WALKER

Court:TCA

Attorneys:

J. THOMAS JONES OF KNOXVILLE FOR APPELLANT

DAVID A. LUFKIN OF KNOXVILLE FOR APPELLEES                          

Judge:Goddard

First Paragraph:

Alford and Suzanne Rodgers filed a complaint in Knox County Chancery
Court seeking damages arising from the construction of their home. 
The suit was brought against the general contractor, Don Walker.  The
Rodgerses alleged a breach of the construction contract on the part of
Mr. Walker and sought damages for excessive costs and unreasonable
delay in construction.

URL:http://www.tba.org/tba_files/TCA/rodgersa_opn.WP6
Opinion-Flash

EDWARD TRAUGHBER, a minor individually, and by next friends and
parents, EDWARD WEAVER and JUANITA TRAUGHBER,
and EDWARD WEAVER and JUANITA TRAUGHBER,individually,
vs.
KELLY A. KRESS, JAMES LEON MILLER, SR.,
CLARKSVILLE MONTGOMERY COUNTY SCHOOL BOARD
and CLARKSVILLE MONTGOMERY COUNTY SCHOOL SYSTEM

Court:TCA

Attorneys:

Roland Robert Lenard
321 Franklin Street
Clarksville, Tennessee 37040
ATTORNEY FOR PLAINTIFFS/APPELLANTS

Steven C. Girsky
121 South Third Street
Clarksville, Tennessee 37040
ATTORNEY FOR DEFENDANTS/APPELLEES                          

Judge:TODD

First Paragraph:

The plaintiff, Edward Traughber was seriously injured prior to
boarding a school bus which was stopped with red warning lights
flashing and a stop sign extended from the side of the bus.

URL:http://www.tba.org/tba_files/TCA/traughkr_opn.WP6
Opinion-Flash

THE UNITED METHODIST CHURCH
vs.
LOUDON COUNTY BEER BOARD
and JAMES AUSTIN WATSON
d/b/a, J & C PACKAGE STORE

Court:TCA

Attorneys:

John Carson, III, Madisonville, for Appellant James Austin Watson
James H. Simpson, Lenoir City, for Appellant, Loudon County Beer Board
Rex A. Dale, Lenoir City, for Appellee, The United Methodist Church                          

Judge:INMAN

First Paragraph:

The Beer Board conducted a public hearing on January 21, 1997 to
consider the application of James Watson for a permit to sell beer off
premises at a location 485 feet distant from a building owned by The
United Methodist Church ["UMC"]. and leased to Bonnie Keeble who
operated a day care center therein.

URL:http://www.tba.org/tba_files/TCA/umc_ca3.WP6
Opinion-Flash

VERMAX INCORPORATED
vs.                                 
MCH PARTNERS, JIMMY R. REAGAN, d/b/a
PRECISION CONSTRUCTION COMPANY,
HOME FEDERAL SAVINGS & LOAN
ASSOCIATION OF UPPER EAST   
TENNESSEE and CAROLYN H. MINNIS

Court:TCA

Attorneys:

STEVEN E. MARSHALL OF SEVIERVILLE FOR JIMMY R. REAGAN, d/b/a PRECISION
CONSTRUCTION COMPANY

DAVID N. GARST OF KNOXVILLE FOR VERMAX INCORPORATED                          

Judge:Goddard

First Paragraph:

This is a suit by Vermax, Inc., against Precision Construction Company
and Jimmy R. Reagan and Howard Sexton, its general partners.  The
complaint against other defendants was dismissed below and is not the
subject of this appeal.

URL:http://www.tba.org/tba_files/TCA/vermaxin_opn.WP6
Opinion-Flash

DON ZSELTVAY
vs.
METROPOLITAN GOVERNMENT OF                      
NASHVILLE AND DAVIDSON 
COUNTY, TENNESSEE

Court:TCA

Attorneys:

DAN R. ALEXANDER
2016 8th Avenue South
Nashville, Tennessee 37204
Attorney for Plaintiff/Appellant

JAMES L. MURPHY III
Director of Law
The Department of Law of the Metropolitan
Government of Nashville and Davidson County

RACHEL D. ALLEN
LIZABETH D. FOSTER
THOMAS G. CROSS
Metropolitan Attorneys
204 Metropolitan Courthouse
Nashville, Tennessee 37201
Attorneys for Defendant/Appellee                          

Judge:CANTRELL

First Paragraph:

The plaintiff claimed that Nashville's Board of Parks and Recreation
conducted its business in such a way as to violate the Open Meetings
Act, Tenn. Code Ann. S 8-44-101, et seq.  The trial court refused to
discipline the Board, dismissing the complaint against it on a finding
that the Board had committed a merely technical violation of the Act. 
We reverse, and direct the court to impose judicial oversight upon the
Board, as is required by the Act, but we decline to comply with the
plaintiff's request that we declare the Board's action to be void and
of no effect.

URL:http://www.tba.org/tba_files/TCA/zseltvad_opn.WP6


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