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
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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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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