TBALink Opinion-Flash

October 15, 1998 -- Volume #4 -- Number #148

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
Editor-in-Chief, TBALink




IN RE: AMENDMENT TO SUPREME COURT RULE 28, S 6(B) (1)

Court:TSC - Rules

Judge:ANDERSON

First Paragraph:

Supreme Court Rule 28, Section 6 (B) (1) is hereby amended by adding
the following sentence:

Should the presiding judge fail to assign a judge,  and no judge is
designated by the Chief Justice, the judge who presided at the
original trial shall hear the petition.

URL:http://www.tba.org/tba_files/TSC_Rules/r28amen_ord.WP6
Opinion-Flash

LUCY L. BOND
VS.
BELLE MEADE FUND PARTNERS, L.P.; BRANCH PROPERTY, L.P.,
BRANCH PROPERTY LTD. PARTNERSHIP

Court:TCA

Attorneys:     

Keith Jordan, BPR #3000
222 Second Avenue, North
Suite 360-M
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFF/APPELLANT


M. Bradley Gilmore, #13804
PARKER, LAWRENCE, CANTRELL & DEAN
200 Fourth Avenue North
Fifth Floor
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANTS/APPELLEES                     

Judge:TODD

First Paragraph:

The plaintiff sued for injury suffered when she stepped into a hole in
the asphalt surface of a parking lot provided for customers of Kroger
Company.  Kroger was dismissed by nonsuit, and the remaining
defendants were dismissed by summary judgment.  Plaintiff appealed and
presented the following issue:

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

KENDLE DAVIDSON, d/b/a DAVIDSON OIL AND GAS AND ERIK B. DAVIDSON
VS.
NCM FINANCIAL CORPORATION, d/b/a NCM ENERGY

Court:TCA

Attorneys:  

PHILLIPS M. SMALLING
P. O. Box 340
Byrdstown, Tennessee 38549
    Attorney for Plaintiffs/Appellants

ONNIE L. WINEBARGER
P. O. Box 418
Byrdstown, Tennessee 38549
    Attorney for Defendant/Appellee
                        

Judge:CANTRELL

First Paragraph:


The plaintiffs filed this action to rescind a contract or in the
alternative to recover damages for its breach.  The Chancery Court of
Pickett County dismissed the complaint and awarded the defendant a
judgment on its counterclaim.  We affirm.

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

LINDA CHIP RIGBY GARRARD
VS.
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY

Court:TCA

Attorneys: 

Kenneth M. Switzer, #5785
John B. Carlson, #4754
WILLIAMS & ASSOCIATES, P.C.
Suite 1425, First American Center
315 Deaderick Street
Nashville, Tennessee 37238-1425
ATTORNEYS FOR PLAINTIFF/APPELLANT

Thomas G. Cross, #14810
204 Metropolitan Courthouse
Nashville, Tennessee 37201
ATTORNEY FOR DEFENDANT/APPELLEE,                         

Judge:TODD

First Paragraph:

The plaintiff Linda Chip Rigby Garrard, has appealed from a non jury
judgment finding damages of $40,000 for personal injury from a
defective sidewalk maintained by Metropolitan Government of Nashville,
and Davidson County (Metro), but reducing said damages to $22,000
because of 45% contributory fault of the plaintiff.

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

BAXTER NEAL HELSON
VS.
LETICIA FINLEY CYRUS

Court:TCA

Attorneys:   

CHARLES G. BLACKARD, III
155 Franklin Road, Suite 155
Brentwood, Tennessee 37027
    Attorney for Plaintiff/Appellant

J. RUSSELL HELDMAN
320 Main Street, Suite 101
Franklin, Tennessee 37064
    Attorney for Defendant/Appellee                       

Judge:CANTRELL

First Paragraph:

The issues in this appeal involve the lower court's order
incorporating (1) a provision that a nine-year-old child did not have
to visit with his father against his (the child's) wishes and (2) a
provision that the mother was to arrange a private phone call between
the child and his father once a week.  We reverse the order with
respect to visitation.  Otherwise we affirm.

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

THOMAS MILO LOGAN
VS.
MARY JANE LOGAN

WITH CONCURRING OPINION
 
Court:TCA

Attorneys:  

John Mark Stewart, BPR #011148
300 South College Street
Winchester, Tennessee 37398
ATTORNEY FOR PLAINTIFF/APPELLANT

Michael E. Giffin
ROBERTSON, WORSHAM, GREGORY & GIFFIN
Tennessee Bar No. 01420
105 W. Lincoln
P.O. Box 790
Tullahoma, Tennessee 37388
ATTORNEY FOR DEFENDANT/APPELLEE                        

Judge:

First Paragraph:

The captioned plaintiff husband has appealed from the post divorce
order of the Trial Court denying his petition to terminate periodic
alimony.  He presents the following issue: 	Whether the trial court
erred in refusing to order cessation of appellantŐs alimony obligation
where the preponderance of the evidence showed a substantial and
material change of circumstances between the parties so as to justify
modification of the final decree.

Whether the trial court erred in refusing to order cessation of
appellant's alimony obligation where the preponderance of the evidence
showed a substantial and material change of circumstances between the
parties so as to justify modification of the final decree.

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

CONCURRING OPINION
URL:http://www.tba.org/tba_files/TCA/logantm_con.WP6
Opinion-Flash

METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.
VS.
NASHVILLE LODGING COMPANY
and
ORLANDO RESIDENCE, LTD.; and LA SALLE NATIONAL BANK as  
trustee under that certain pooling and servicing agreement dated
July 11, 1995, for the holders of the WHP Commercial Mortgage Pass
Through Certificates, Series 1995C1, and ROBERT M. HOLLAND, JR.,
Trustee

Court:TCA

Judge:TODD

First Paragraph:

The captioned plaintiff husband has appealed from the post divorce
order of the Trial Court denying his petition to terminate periodic
alimony.  He presents the following issue:

Whether the trial court erred in refusing to order cessation of
appellant's alimony obligation where the preponderance of the evidence
showed a substantial and material change of circumstances between the
parties so as to justify modification of the final decree.

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

PHILIP PELTZ
VS.
SARAH V. PELTZ, JESSE V. NICHOLS, and NANCY S. NICHOLS

Court:TCA

Attorneys:  

JEFFREY RAPPUHN
A. RUSSELL WILLIS
215 Second Avenue, North
Nashville, Tennessee 37201
    Attorneys for Plaintiff/Appellant

WILLIAM CARTER CONWAY
236 Court Square, Suite 205
Franklin, Tennessee 37064
    Attorney for Defendant/Appellee Sarah V. Peltz

R. E. LEE DAVIES
H. MARK HARTZOG
123 Fifth Avenue North
Franklin, Tennessee 37064
    Attorneys for Defendants/Appellees Jesse V. Nichols and
    Nancy S. Nichols                        

Judge:CANTRELL

First Paragraph:

This case involves a question of adverse possession between tenants in
common of real estate.  The Chancery Court of Williamson County held
that the seven year statute of limitations in Tenn. Code Ann. S
28-2-103 barred the appellant's remedy against the appellees.  Because
we find that there had been no ouster of the appellant, we reverse.

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

BOBBIE READ
VS.
HOME DEPOT USA, INC.

Court:TCA

Attorneys:           

R. E. Lee Davies
123 Fifth Avenue, North
Franklin, Tennessee 37064
ATTORNEY FOR PLAINTIFF/APPELLANT


Robert Orr, Jr.
210 Third Avenue, North
P.O. Box 190683
Nashville, Tennessee 37219-0683
ATTORNEY FOR DEFENDANT/APPELLEE               

Judge:TODD

First Paragraph:

This is a premises liability case in which the captioned plaintiff
tripped over an obstruction in the aisle of a retail store.  The Trial
Court rendered summary judgment for the store because the obstruction
was open and obvious.  Plaintiff has appealed and presented the
following issues:

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

LAWTIS DONALD RHODEN
VS.
STATE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys: 

GARY L. ANDERSON
University of Tennessee Legal Clinic
1505 W. Cumberland Avenue
Knoxville, Tennessee 37996-1810
    Attorney for Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General and Reporter

JOHN R. MILES
c/o Attorney General and Reporter
425 5th Avenue North
Nashville, Tennessee 37243-0488
    Attorney for Respondent/Appellee                         

Judge:CANTRELL

First Paragraph:

An inmate in the correction department sought a declaratory judgment
concerning his sentence credits.  The Chancery Court of Davidson
County dismissed the petition (1) because the proper avenue for relief
was a writ of certiorari to challenge the disciplinary action that
caused the loss of his sentence credits, and (2) because the failure
to give him sentence credits while he was under a California detainer
did not violate his equal protection rights.  We affirm.

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

JOEL R. SUMMERS
VS.
LISA CAROL SUMMERS

Court:TCA

Attorneys:  

C. DAVID JONES
THE JONES LAW FIRM
Huntingdon, Tennessee
Attorney for Appellant


STEVEN L. WEST
WEST & WEST ATTORNEYS
McKenzie, Tennessee
Attorney for Appellee                        

Judge:HIGHERS

First Paragraph:

Defendant, Lisa Carol Summers, (hereinafter referred to as "Wife" or "Ms. 
Summers") appeals the trial court's order granting divorce to both
parties, awarding custody of the minor child, Joseph, to Plaintiff,
Joel Russell Summers (hereinafter referred to as "Husband" or "Mr.
Summers"), awarding the marital residence to Husband, valuing the
marital residence at $130,000.00, and awarding Husband a lien against
one half of the child support arrearage Wife might collect for her two
children from a previous marriage.

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

THRONEBERRY PROPERTIES, a Partnership composed of
BUFORD C. THRONEBERRY, MARY B. THRONEBERRY, JAMES D. THRONEBERRY, 
VICKI W. THRONEBERRY, JOHN B. THRONEBERRY, and ALLISON L. THRONEBERRY
VS.
NANCY ALLEN, County Executive, Rutherford County Tennessee;
DAVID H. JONES, Director, Rutherford County Building Codes;
BETTS BARBIER, Director, Building and Codes, City of Murfreesboro;
DON SUNDQUIST, Governor, State of Tennessee and 
RILEY DARNELL, Secretary of State
and
WALDRON & SONS, a Partnership composed of Kevin Waldron, Roy
Waldron and Steven Waldron; BEAVER CONSTRUCTION CO., INC.,
and INDIAN PARK, LTD.
VS.

RUTHERFORD COUNTY, a Political Subdivision of the State of Tennessee, 
TOWN OF SMYRNA, TENNESSEE, a Municipal Corporation chartered by the 
State of Tennessee; CITY OF MURFREESBORO, a Municipal Corporation 
chartered by the State of Tennessee; and CHARLES W. BURSON, Attorney
General for the State of Tennessee

Court:TCA

Attorneys:  

GAIL P. PIGG
219 Second Avenue, North
Nashville, Tennessee 37201
    Attorney for Plaintiff/Appellee Throneberry Properties

DARRELL L. SCARLETT
MICHAEL A. MYERS
16 Public Square North
Murfreesboro, Tennessee 37130
    Attorneys for Defendant/Appellee Rutherford County

GRANVILLE S. R. BOULDIN
GRANVILLE S.R. BOULDIN, JR.
122 North Church Street
Murfreesboro, Tennessee 37130
    Attorneys for Plaintiffs/Appellants Waldron & Sons, 
    Beaver Construction, Inc. and Indian Park, Ltd.

PHILLIP M. GEORGE
511 Enon Springs Road, East
Smyrna Tennessee 37167
    Attorney for Defendant/Appellee Town of Smyrna                        

Judge:CANTRELL

First Paragraph:

Chapter 215 of the Public Acts of 1996, called the Rutherford County
Development Tax Act, imposed a tax on the privilege of residential
land development in Rutherford County.  The Chancery Court of
Rutherford County held that the Act did not apply to multi-unit
developments because they are classified as commercial or industrial
for ad valorem tax purposes by Art. II,  S 28 of the Tennessee
Constitution.  We reverse.

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

MONTY TURNER
VS.
DONAL CAMPBELL, COMMISSIONER TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys: 

MONTY TURNER
#89388
P. O. Box 1000
Henning, Tennessee 38041-1000
    Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General & Reporter

MARK A. HUDSON
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
    Attorney for Respondent/Appellee                         

Judge:CANTRELL

First Paragraph:

Monty Turner, an inmate in the custody of the Tennessee Department of
Correction, sought a declaratory judgment that he was entitled to
mandatory parole under Tenn. Code Ann. S 40-28-117(b)(1).  The trial
court dismissed the Petition for Declaratory Judgment, holding that
the mandatory parole provisions found in the  above-mentioned statute
are not applicable to felons convicted after the effective date of the
Tennessee Criminal Sentencing Reform Act of 1982.  We affirm the trial
court.

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

CAROLYN VIRGINIA WALLACE
VS.
RANDEL EUGENE WALLACE

Court:TCA

Attorneys:  

LOUISE R. FONTECCHIO
BRUCE, WEATHERS, CORLEY, 
   DUGHMAN & LYLE
2075 First American Center
315 Deaderick Street
Nashville, Tennessee 37238-2075
    Attorney for Plaintiff/Appellee

W. A. MOODY
MOODY, WHITFIELD & CASTELLARIN
95 White Bridge Road, Suite 509
Nashville, Tennessee 37205
    Attorney for Defendant/Appellant
                        

Judge:CANTRELL

First Paragraph:

This case involves the value of a CPA firm included in the marital
assets.  The trial judge found the value to be $140,000.  We affirm.

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

SI J. WILLIAMS
VS.
MARY C. WILLIAMS

Court:TCA

Attorneys:  

V. Michael Fox, #13875
First American Center 
20th Floor
315 Deaderick Street
Nashville, Tennessee 37238
ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLEE


Carol L. Soloman, #6649
Casey Moreland, #11069
Washington Square, Suite 400
214 Second Avenue, North
Nashville, Tennessee 37201
ATTORNEYS FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLANT                        

Judge:TODD

First Paragraph:

In this divorce case, Mary C. Williams, hereafter "wife" has appealed
from the judgment of the Trial Court awarding her a divorce from Si J.
Williams, hereafter "husband," custody, child support, alimony,
insurance, fees and division of property.

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

STATE OF TENNESSEE
VS.
JOHNNY LEE DAVIS

Court:TCCA

Attorneys:       

For the Appellant:                  For the Appellee:

Martha Yoakum                       John Knox Walkup
District Public Defender            Attorney General and Reporter
    
Charles Herman                      Todd R. Kelley
Asst. District Public Defender      Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    2d Floor, Cordell Hull Building
                                    Nashville, TN 37243-0493                
                        
                                    William Paul Phillips
                                    District Attorney General
                                    P. O. Box 323
                                    Jacksboro, TN  37757                   

Judge:HAYES

First Paragraph:

The appellant, Johnny Lee Davis, appeals the sentencing decision of
the Campbell County Criminal Court following his guilty pleas to two
counts of sexual battery, one count of arson, and one count of theft
of property over one thousand dollars.  Under the terms of the plea
agreement, the appellant agreed to an effective fifteen year sentence,
however, he remained eligible for alternative sentencing as no single
conviction was in excess of eight years.  The plea agreement further
provided that the manner of service of the sentences was to be
submitted to the trial court for determination.  The trial court
ordered total confinement.  The appellant appeals contending that the
trial court erred in failing to grant alternative sentences.

After review of the record, we affirm the judgment of the trial court
pursuant to Rule 20, Tenn. Ct. Crim. App. R.

URL:http://www.tba.org/tba_files/TCCA/davisjl_opn.WP6
Opinion-Flash

KENNETH RUSSELL LEWIS
VS.
STATE OF TENNESSEE

Court:TCCA

Judge:Tipton

First Paragraph:

The petitioner, Kenneth Russell Lewis, has applied for permission to
appeal from the Hamilton County Criminal Court's refusal to reopen his
post-conviction case that had previously been dismissed with
prejudice.  He is seeking relief relative to his second degree murder
conviction upon his guilty plea in December 1991 for which he received
a twenty-five year sentence.  He asserts that (1) the dismissal of his
post-conviction case with his purported agreement resulted from the
ineffective assistance of counsel, (2) the state has violated its
agreement not to oppose parole, and (3) his attorney in the convicting
case was ineffective in representing him.  He also has moved for
consideration of "Post-Judgment Facts" by which he seeks to submit for
our consideration medical records that he claims bear upon his issues
regarding counsel.

URL:http://www.tba.org/tba_files/TCCA/lewiskr_opn.WP6
Opinion-Flash

RONALD BRADFORD WALLER
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

For the Appellant:          For the Appellee:

Ronald B. Waller, Pro Se    John Knox Walkup
S.T.S.R.C.F. #205287        Attorney General and Reporter
Rt #4, Box 600  
Pikeville, TN  37367        Ellen H. Pollack
                            Assistant Attorney General       
                            Criminal Justice Division
                            425 Fifth Avenue North
                            2d Floor, Cordell Hull Building
                            Nashville, TN 37243-0493                
                            
                            William H. Cox III
                            District Attorney General
    
                            C. Leland Davis
                            Asst. District Attorney General
                            Suite 300, Courts Building
                            Chattanooga, TN  37402                         

Judge:HAYES

First Paragraph:

The appellant, Ronald Bradford Waller, appeals the Hamilton County
Criminal Court's dismissal of his petition for post-conviction relief.
 In April 1992, the appellant was convicted of two counts of first
degree murder, one count of especially aggravated robbery, and one
count of theft of property over one thousand dollars.  These
convictions resulted in the imposition of a sentence of life plus
twenty-three years.  This court affirmed the appellant's convictions
and sentences on direct appeal, finding his allegations without merit.
 State v. Waller, No. 03C01- 9212-CR-00429 (Tenn. Crim. App. at
Knoxville, Oct. 6, 1993), perm. to appeal denied, (Tenn. Feb. 7,
1994). He is currently confined at Southeastern Tennessee State
Regional Correctional Facility in Pikeville.

After review of the voluminous record before this court, we remand to
the trial court for further proceedings consistent with this opinion.

URL:http://www.tba.org/tba_files/TCCA/wallerrb_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
TAURYS K. WALLS

Court:TCCA

Attorneys: 

FOR THE APPELLANT:      FOR THE APPELLEE:

GERALD SKAHAN           JOHN KNOX WALKUP
140 North Third Street  Attorney General and Reporter
Memphis, TN 38103       
                        WILLIAM DAVID BRIDGERS
                        Assistant Attorney General
                        450 James Robertson Parkway
                        Nashville, TN 37243

                        WILLIAM L. GIBBONS
                        District Attorney General

                        J. ROBERT CARTER, JR.
                        Assistant District Attorney
                        201 Poplar Avenue, Third Floor
                        Memphis, TN 38103                         

Judge:SMITH

First Paragraph:

Appellant Taurys K. Walls was convicted in the Shelby County Criminal Court
on November 3, 1995 of murder in the perpetration of a felony, to wit: 
robbery.  The trial court sentenced Appellant to life imprisonment with the
Tennessee Department of Correction and imposed a $50.00 fine to be paid to
the Criminal Injuries Compensation Fund.  Appellant presents the following
issues for our consideration on this direct appeal:  (1) whether the
evidence was sufficient to sustain Appellant's conviction for felony murder;
(2) whether the trial court erred in overruling Appellant's motion to
suppress his statement given to police respecting his involvement in the
murder of Melvin Charles Ferguson; (3) whether the trial court abused its
discretion in prohibiting defense counsel from questioning the victim's
brother about a lawsuit that the brother had filed in connection with
Ferguson's death; and (4) whether the trial court erred in refusing
Appellant's request for a supplemental jury instruction to the effect that
all homicides are presumed to be second degree murder.
 After a review of the record, we affirm the judgment of the trial court.


URL:http://www.tba.org/tba_files/TCCA/wallstau_opn.WP6


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