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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Lucian T. Pera
MARVIN E. ALEXANDER d/b/a ALEXANDER AUCTIONS & REAL ESTATE SALES vs. JOHN HOPKINS and RHONDA HOPKINS, individually and d/b/a RICHLAND CREEK SOD FARM Court:TCA Attorneys: THOMAS W. HARDIN 102 West 7th Street P. O. Box 692 Columbia, Tennessee 38402-0692 Attorney for Plaintiff/Appellee M. ANDREW HOOVER JOHN P. DAMRON 134 North Second Street P. O. Box 288 Pulaski, Tennessee 38478 Judge:CANTRELL First Paragraph: A licensed auctioneer and real estate broker filed suit against the defendant landowners for breach of an auction contract, because the defendants sold their land prior to the scheduled auction without his participation. The trial court held that the auctioneer was entitled to the anticipated commission amount. We affirm the trial court's holding that the property owners are liable, but we modify the amount of damages. URL:http://www.tba.org/tba_files/TCA/alexanme_opn.WP6 MICHAEL G. BINKLEY and wife, MARTHA Y. BINKLEY, and ROBERT A. JONES, SR., and wife, MARY EVELYN JONES, and CHARLES H. CATHEY and wife, MARY JUNE CATHEY vs. RODNEY TREVOR MEDLING Court:TCA Attorneys: William G. McCaskill, Jr., #12716 TAYLOR, PHILBIN, PIGUE, MARCHETTI & BENNETT, PLLC 2908 Poston Avenue Nashville, Tennessee 37203 Anthony L. Sanders, #2283 129 North Court Square Waverly, Tennessee 37185 ATTORNEY FOR PLAINTIFFS/APPELLEES Andrew B. Frazier, Jr. 116 East Main Street P.O. Box 208 Camden, Tennessee 38320 ATTORNEY FOR DEFENDANT/APPELLANT Judge:TODD First Paragraph: The captioned defendant has appealed from a judgment of the Trial Court which reads in full as follows: This cause came on to be heard on this the 23rd day of July, 1997, before the Honorable Allen W. Wallace, Chancellor, upon stipulation of the parties, certified copies of various documents, statement of counsel, and upon the entire record. From all of which the Court finds that the Defendant improperly opened a cul-de-sac located on Timberland Drive, New Johnsonville, Tennessee, and Lot No. D-6 of the Countrywood Estates Subdivision, Section IV, and further that the Defendant violated the restrictions and protective covenants of Countrywood Estates Subdivision, Section IV, as a street or driveway to unrestricted and non-conforming adjoining property, and particularly the 11.7 acre tract that was purchased by the Defendant. The Court further finds that certain orders, including an injunction should issue against the Defendant. URL:http://www.tba.org/tba_files/TCA/binkleym_opn.WP6 DANIEL SCOTT BRADLEY et ux LINDA BRADLEY vs. GENEVA LYNN McCORD McLEOD et vir RODRICK McLEOD Court:TCA Attorneys: For Plaintiffs/Appellees: For Defendants/Appellants: M.T. Taylor, Jr. E. Covington Johnston, Jr. Franklin, Tennessee Franklin, Tennessee Judge:KOCH First Paragraph: This case involves a dispute between two neighbors in the Fairview community of Williamson County concerning the use of a gravel driveway. Three years after purchasing a tract of land on which portions of the driveway were located, the property owners filed suit in the Chancery Court for Williamson County to quiet title to the portions of the driveway they believed to be on their property. Their neighbors responded that the driveway was their only access to a pubic road and that they had acquired a right to use the driveway by adverse possession. After the trial court granted the plaintiffs' uncontested motion for summary judgment, the defendants filed a Tenn. R. Civ. P. 59.04 motion asserting that they had an "easement of presumption" to use the driveway. The trial court denied the post-judgment motion on the ground that the new defense had not been timely raised. On this appeal, the losing property owners take issue with the trial court's decision to grant the summary judgment and to deny their post-judgment motion. We affirm the summary judgment. URL:http://www.tba.org/tba_files/TCA/bradleyd_opn.WP6 R.S. BRANDT, K.M. LUNDIN M.I. LUNDIN, N.B. LUNDIN and A.T. WILTSHIRE, JR. vs. BIB ENTERPRISES, LTD., A Tennessee Limited Partnership, and GREGORY SMITH, Individually, and VIRGINIA ABERNETHY Court:TCA Attorneys: WILLIAM S. FLEMING, FLEMING HOLLOWAY, FLYNN & SANDS, P.C 207 West Eighth Street Columbia, TN 38401 For Plaintiffs-Appellees. HENRY, HENRY, STACK, GARNER & SPEER, P.C. 119 South First Street Pulaski, TN For Defendants-Appellants. Judge:FRANKS First Paragraph: This cases involves a dispute over a limited partnership. BIB Enterprises, Ltd. ("BIB") was formed on December 30, 1982 for the stated purpose of acquiring real estate, equipment and other personal property of a Bonanza Restaurant in Lawrenceburg, Tennessee. Defendant-appellant Greg Smith was named General Partner. URL:http://www.tba.org/tba_files/TCA/brandtrs_opn.WP6 BROOKRIDGE APARTMENTS, LTD. vs. UNIVERSAL CONSTRUCTORS, INC., BADGER-BOGLE ARCHITECTS, P.C., BOYD BOGLE, III, and GEORGE VOLAK Court:TCA Attorneys: JOHN H. ROWLAND and SCOTT D. CAREY, BAKER DONELSON, BEARMAN & CALDWELL A Professional Corporation 1700 Nashville City Center 511 Union Street Nashville, Tennessee 37219 For Plaintiff-Appellant. DARRELL G. TOWNSEND and DERRICK C. SMITH HOWELL & FISHER, PLLC Court Square Building 300 James Robertson Parkway Nashville, Tennessee 37201-1107 For Defendant-Appellee Universal Constructors, Inc. JOHN W. HEACOCK 2100 First Union Tower 150 Fourth Avenue, North Nashville, Tennessee 37219 For Defendant-Appellee Badger-Bogle Architects, P.C., Boyd Bogle, III, and George Volak. Judge:FRANKS First Paragraph: Plaintiff appeals to this Court on the refusal by the Trial Judge to grant plaintiff relief pursuant to Tennessee Rules of Procedure, 60.02(1). The underlying action was dismissed on July 23, 1996 by the Trial Judge "for want of prosecution." On July 18, 1997, plaintiff filed a motion to set aside the judgment pursuant to Rule 60, T.R.C.P. on the ground the judgment was entered because of mistake, inadvertence, and excusable neglect. The motion explained that the plaintiffs "former counsel William J. Hart, did not receive notice from the Court that the case would be dismissed for lack of prosecution pursuant to local Rule 37.02." URL:http://www.tba.org/tba_files/TCA/brkrdgap_opn.WP6 YVETTE MICHEL PORTER CAIRA vs. RONALD STEPHEN CAIRA Court:TCA Attorneys: GREGORY D. SMITH One Public Square, Suite 321 Clarksville, Tennessee 37040 ATTORNEY FOR THE PLAINTIFF/APPELLANT MARK A. RASSAS Suite 104, Glenn Building Clarksville, Tennessee 37040 ATTORNEY FOR THE DEFENDANT/APPELLEE Judge:CAIN First Paragraph: This case is before us on appeal from the trial court's decree of divorce and grant of child custody and support to the Appellee, Ronald Steven Caira. In bringing this appeal, Appellant raises two issues for consideration. 1. Whether the trial court erred in failing to award primary custody of the minor children of this marriage with Defendant/Appellee. 2. Whether the trial court made an equitable property distribution of the debts, assets and retirement proceeds of this marriage. URL:http://www.tba.org/tba_files/TCA/cairay_opn.WP6 JON HOSCHEIT vs. JOHANNA G. HOSCHEIT Court:TCA Attorneys: F. DULIN KELLY, CLINTON L. KELLY and ANDY L. ALLMAN, Kelly & Kelly, Hendersonville, for Appellant. JOHN R. PHILLIPS, JR., Gallatin, for Appellee. Judge:McMurray First Paragraph: This action began with a complaint filed by the appellee, Jon Hoscheit, (husband) seeking an absolute divorce from the appellant, Johanna G. Hoscheit (wife). After a bench trial, the court entered a final judgment granting an absolute divorce, custody of the parties' minor child to the father, dividing the marital estate and awarding alimony to the wife. From the judgment of the trial court the wife has appealed. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/hoscheit_opn.WP6 JIMMY KEY vs. TENNESSEE BOARD OF PAROLES Court:TCA Attorneys: For Plaintiff/Appellant: For Defendant/Appellee: Jimmy Key John Knox Walkup Pro Se Attorney General and Reporter Brenda Rhoton Little Parker, Allen & Crofford Nashville, Tennessee Judge:KOCH First Paragraph: This appeal involves a dispute between the Board of Paroles and a prisoner convicted of being an habitual criminal over the inmate's right to custodial parole and the calculation of his sentence credits. The Chancery Court for Davidson County granted the Board's motion to dismiss, and the prisoner has appealed. We affirm the dismissal of the prisoner's suit in accordance with Tenn. Ct. App. R. 10(b). URL:http://www.tba.org/tba_files/TCA/keyj_opn.WP6 JOHN ANDERSON KINARD vs. LINDA KINARD Court:TCA Attorneys: For Plaintiff/Appellee: For Defendant/Appellant: Dicken E. Kidwell J. Russell Heldman Murfreesboro, Tennessee Franklin, Tennessee Judge:KOCH First Paragraph: This appeal involves a divorce ending a long-term marriage. The husband filed suit to divorce his wife of thirty years in the Chancery Court for Rutherford County, and the wife counterclaimed for a divorce from bed and board. The trial judge, sitting without a jury, declared the parties divorced, divided the marital property, and awarded the wife rehabilitative alimony for three years. The wife takes issue on this appeal with the decision to declare the parties divorced, the division of marital property, and the failure to award her long-term spousal support and attorney's fees. She also insists that the trial judge should have recused himself because of his prior professional association with the husband's lawyer. We conclude that the trial judge was not disqualified from hearing this case. While we also find that declaring the parties divorced was proper, we have determined that the division of marital property and the spousal support award should be modified but that the wife should not receive an additional award for her legal expenses. URL:http://www.tba.org/tba_files/TCA/kinardja_opn.WP6 TRACY RENEE MIGLIN vs. DANIEL WALTER MIGLIN Court:TCA Attorneys: BARBARA J. WALKER 22 Public Square P. O. Box 1574 Columbia, Tennessee 38402-1574 Attorney for Plaintiff/Appellee LOUISE R. FONTECCHIO 2075 First American Center 315 Deaderick Street Nashville, Tennessee 37238-2075 Attorney for Defendant/Appellant Judge:CANTRELL First Paragraph: The husband in this divorce case challenged almost every aspect of the trial court's orders, including child custody, alimony, the division of marital property and the terms of an injunction imposed to prevent him from interfering with the wife's authority over the children. We modify the injunction because we believe that its provisions are overbroad. In all other respects, we affirm the trial court. URL:http://www.tba.org/tba_files/TCA/miglintr_opn.WP6 JASON RAINS, CRYSTAL L. CARNEY and KATHY CARNEY vs. EDWIN SCOTT SUSSDORFF, III a/k/a/ ED SUSSDORFF, VICKI R. SUSSDORFF, E. SCOTT SUSSDORF and ALLSTATE INSURANCE COMPANY Court:TCA Attorneys: Richard A. Schulman, Chattanooga, for Appellants Crystal and Kathy Carney. Samuel R. Anderson, David L. Moss, Chattanooga, for Appellees. Judge:INMAN First Paragraph: While riding as passengers in an automobile owned by defendant and driven by a close friend of defendant's son, the intervening plaintiff was seriously injured in a one-car accident when the driver apparently fell asleep at the wheel. The passenger intervened in the driver's petition and alleged that the vehicle had been driven with the express or implied permission of its owner and sought a declaratory judgment that his insurer was therefore liable for her injuries. The trial court found the driver did not have such permission and dismissed intervenor's petition, and she appeals. URL:http://www.tba.org/tba_files/TCA/raines_ca3.WP6 HEATHER ALICIA ROACH THOMSON vs. PATRICK JAMES THOMSON Court:TCA Attorneys: A. THOMAS MONCERET, Knoxville, for Appellant F. D. GIBSON, Maryville, for Appellee Judge:McMurray First Paragraph: This is an appeal from a post-divorce proceeding wherein the appellant sought a change in custody of the parties minor child on the grounds that there had been a material change of circumstances justifying such a change. The trial court dismissed the complaint and this appeal resulted. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/thmsonha_opn.WP6
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