August 31, 2000
Volume 6 -- Number 138

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink.

This Issue (IN THIS ORDER):
 
01 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
14 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Lucian T. Pera
Editor-in-Chief, TBALink

IN RE: PETITION TO REQUIRE ALTERNATIVE DISPUTE RESOLUTION EDUCATION

Court:TSC

Judge: ANDERSON

First Paragraph:

The Mediation Association of Tennessee has petitioned this Court to
amend the current mandatory Continuing Legal Education requirements
for lawyers to add a specific requirement for Alternative Dispute
Resolution education.

http://www.tba.org/tba_files/TSC/adrcomment.wpd





APRIL LEIGH BURKHART v. JASON TODD BURKHART

Court:TCA

Attorneys:

Steven T. Atkins, Clarksville, Tennessee, for the appellant, April
Leigh Burkhart.

Clifford K. McGown, Jr., Waverly, Tennessee, for the appellee, Jason
Todd Burkhart.                          

Judge: COTTRELL

First Paragraph:

This is a divorce case.  The trial court awarded the divorce to the
father on the ground of the mother's inappropriate marital conduct and
awarded custody of the minor child to the father.  The mother appeals
the award of the divorce and custody of the child to the father.  We
modify the award of the divorce, relying instead on Tenn. Code Ann. S
36-4-129(b), and "declare the parties to be divorced, rather than
awarding a divorce to either party alone."  We affirm the award of
custody of the minor child to the father.

http://www.tba.org/tba_files/TCA/burkharta.wpd





BRANDON MICHAEL CRUSE, et al. v. TAMMY PEAK

Court:TCA

Attorneys:

Clark Lee Shaw, Nashville, Tennessee, for the appellant, Tammy Peak.

Stephanie C. Hatchett, Nashville, Tennessee, for the appellees,
Brandon Michael Cruse and Amber Kay Cruse.                          

Judge: CANTRELL

First Paragraph:

This appeal arises from the trial court's refusal to grant the
appellant's request for visitation with her granddaughter.  We affirm
the judgment of the trial court.

http://www.tba.org/tba_files/TCA/crusebm.wpd





HOME BUILDERS ASSOCIATION OF MIDDLE TENNESSEE, et al. v. MAURY COUNTY,
TENNESSEE, et al.
WITH CONCURRING OPINION

Court:TCA

Attorneys:

L. Bruce Peden, Columbia, Tennessee, for the appellants, Homebuilders
Association of Middle Tennessee, Larry Reaves, and Dino Roberts Homes,
Inc.

William H. Dale, Jr., Columbia, Tennessee, for the appellee, Maury
County.

Paul G. Summers, Attorney General and Reporter, and Winston B. Sitton,
Assistant Attorney General, for the appellee, Paul G. Summers.                          

Judge: CANTRELL

First Paragraph:

Two homebuilders and their trade association asked the trial court to
declare that a privilege tax imposed on new construction in Maury
County was in fact an unconstitutional impact fee. The County and the
State both filed motions for summary judgment, which were granted by
the trial court. We affirm.

http://www.tba.org/tba_files/TCA/homebuilders_opn.wpd


CONCURRING OPINION
http://www.tba.org/tba_files/TCA/homebuilders_con.wpd





SUSAN TRABUE HOWARD v. ROBERT MARK HOWARD

Court:TCA

Attorneys:

Michael E. Terry, Nashville, for Appellant

Virginia Lee Story, Franklin, for Appellee                          

Judge: HIGHERS

First Paragraph:

This appeal arises from a dispute over a contractual provision in a
Marital Dissolution Agreement ("MDA") between the parties.  Susan
Trabue Howard ("Mother") filed a Petition for Enforcement of
Contractual Obligation, alleging that Robert Mark Howard ("Father")
had failed to abide with a provision in the MDA providing that Father
would be responsible for Daughter's "related costs of
education." The court below found in favor of Mother, holding that
Father was responsible for all of Daughter's expenses for the time
specified in MDA.  Father appeals.

http://www.tba.org/tba_files/TCA/howardsusan.wpd





TANYA R. (WENGER) KIBBY v. JASON M. KIBBY

Court:TCA

Attorneys:

Mitchell A. Byrd, Chattanooga, Tennessee, for the appellant, Tanya R.
(Wenger) Kibby.

M. Keith Davis, Dunlap, Tennessee, for the appellee, Jason M. Kibby.                          

Judge: CAIN

First Paragraph:

This appeal presents a dispute of custody, visitation, and attorney
fees.  The parties are parents of one child, Ian Kibby, who is the
subject of this dispute.  The father was awarded primary custody when
the parties divorced in May of 1996.  The mother filed a Petition for
Contempt and Modification seeking primary residential placement of Ian
and later requested that the court refer this matter to mediation. 
The father filed a counter-petition requesting a change in the
mother's visitation privileges and attorney's fees.  The trial court
dismissed the mother's petition but granted the father's petition
reducing the mother's visitation rights. The court also refused to
refer this matter to mediation and did not award attorney fees to the
father.  The mother now appeals the court's dismissal of her petition,
failure to refer the matter to mediation, and change in visitation;
the father also appeals the failure of the trial court to award
attorney fees to him.

http://www.tba.org/tba_files/TCA/kibbytanya.wpd





CYNTHIA MILHOUS v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND
DAVIDSON COUNTY

Court:TCA

Attorneys: 

Sandra C. Isom, Memphis, Tennessee, for the appellant, Cynthia
Milhous.

James L. Murphy, III and William Michael Safley, Nashville, Tennessee,
for the appellee, Metropolitan Government for Nashville and Davidson
County.                         

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a city employee and her
employer regarding a sexual harassment claim.  The employee originally
filed suit in the United States District Court for the Middle District
of Tennessee alleging violations of both federal and state law.  After
the federal court dismissed her state law claims, the employee filed
suit against the city in the Chancery Court for Davidson County
alleging violations of the Tennessee Human Rights Act.  The trial
court dismissed the complaint because the applicable one-year statute
of limitations had elapsed by the time the employee filed her
complaint in state court.  The employee argues on this appeal that the
savings statute in Tenn. Code Ann. S 28-1-115 (Supp. 1999)  tolled the
statute of limitations for one year after the federal court dismissed
her state law claim.

http://www.tba.org/tba_files/TCA/milhousc.wpd





LOIS LYNN MILLER v. JAMES EARL MILLER

Court:TCA

Attorneys:

Jack Green, Nashville, For Appellant, James Earl Miller

Robert L. Jackson, Nashville; Larry Hayes, Jr., Nashville, For
Appellee, Lois Lynn Miller                          

Judge: CRAWFORD

First Paragraph:

In this divorce, both Husband and Wife have appealed contesting the
trial court's division of marital property and alimony awards.  The
division of marital property is affirmed, alimony awards are modified,
and the case is remanded for a determination of the value of Husband's
retirement plan and a proper division thereof.

http://www.tba.org/tba_files/TCA/millerloi.wpd





DAVID A. SCHOLZ v. S.B. INTERNATIONAL, INC.

Court:TCA

Attorneys:

W. Gary Blackburn and William J. Shreffler, Nashville, Tennessee, for
the appellant, David A. Scholz.

Clark H. Tidwell and Jordan S. Keller, Nashville, Tennessee, for the
appellee, S.B. International, Inc.                          

Judge: KOCH

First Paragraph:

This appeal arises from a dispute over the severance benefits in an
employment contract.  Following his termination, a corporate officer
filed suit against his former employer in the Chancery Court for
Davidson County seeking his severance benefits.  The employer asserted
that its former officer was not entitled to the severance benefits. 
Following a jury trial, the trial court entered a judgment awarding
the officer $111,623.33 but denying his requests for prejudgment
interest and discretionary costs.  On this appeal, the officer asserts
that the trial court erred by failing to award him prejudgment
interest and discretionary costs.  We agree and, therefore, remand the
case for further proceedings.

http://www.tba.org/tba_files/TCA/scholzda.wpd





KEN SHUMAN v. JAMES PARKHURST d/b/a PARKHURST HOME IMPROVEMENT

Court:TCA

Attorneys:

John R. Phillips, Jr., Gallatin, Tennessee, for the appellant, James
Parkhurst d/b/a Parkhurst Home Improvement.

C. Tracey Parks, Gallatin, Tennessee, for the appellee, Ken Shuman.                          

Judge: FARMER

First Paragraph:

James Parkhurst d/b/a Parkhurst Home Improvement appeals the trial
court's final judgment awarding Ken Shuman $8,021.14 in actual damages
for breach of oral construction contract and $2,406.33 in attorney's
fees based upon a finding of fraud in violation of the Tennessee
Consumer Protection Act.  Parkhurst raised two issues on appeal,
contending that the damages awarded in this home construction dispute
were not legally warranted and that the trial court erred in finding
fraud, therefore justifying an award for attorney's fees under the
Act.  We conclude that Shuman presented sufficient proof to find a
violation of the Act and to support his claim for damages and for
attorney's fees.  Accordingly, we affirm the trial court's judgment.

http://www.tba.org/tba_files/TCA/shumank.wpd





JASON SLOAN d/b/a SLOAN CONSTRUCTION v. SHELBY RAY PERRYMAN, JR., et
al.

Court:TCA

Attorneys:

L. Robert Grefseng, Columbia, for Appellant

Thomas F. Bloom, Nashville, for Appellees Shelby and Jamie Perryman

Scott C. Williams, Columbia, for Appellee First Farmers & Merchants
National Bank of Columbia                          

Judge: HIGHERS

First Paragraph:

This appeal arises from a breach of contract suit and action to assert
priority of a mechanics lien filed by Jason Sloan ("Contractor")
against Shelby Ray Perryman ("Owners") and First Farmers & Merchants
National Bank ("Bank").  Contractor sought recovery for labor and
materials under the contract including expenses that exceeded
Contractor's original bid price.  In the alternative, Contractor
sought recovery under quantum meruit.  The court granted Bank's motion
for summary judgment on the issue of priority of liens.  Following
trial, the court awarded Contractor damages under an implied contract
theory, limiting Contractor's recovery to the bid price.  In addition,
the court denied Contractor's claim for alternative recovery in
quantum meruit.  Contractor appeals.

http://www.tba.org/tba_files/TCA/sloanjason.wpd





ANGELA L. SPURLOCK, et al. v. JACKSON COUNTY, TENNESSEE, et al.

Court:TCA

Attorneys:

Wm. Gerald McCaskill, Jr. and Ernest D. Bennett, III, Nashville,
Tennessee, for the appellant, Angela L. Spurlock.

Daniel H. Rader, III, Cookeville, Tennessee, for the appellees,
Jackson County, Tennessee, and Charles McBroom, Jackson County
Sheriff.

Jerry Jared, Cookeville, Tennessee, for the intervening petitioner,
Tennessee Farmers Mutual Insurance Company.                          

Judge: CANTRELL

First Paragraph:

The appellants were hurt in a collision with a subject allegedly being
pursued by county officers in a high speed chase.  They sued the
county, and the Circuit Court of Jackson County granted the county
summary judgment. We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCA/spurlockal.wpd





JEROME STREETER v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:

Jerome Streeter, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; and Pamela S. Lorch, Assistant Attorney General,
for the appellee, Tennessee Department of Correction.                          

Judge: CANTRELL

First Paragraph:

A prison inmate claimed that he was entitled to be released, because
he had earned the required sentence reduction credits.  The Department
of Correction disagreed.  The trial court granted summary judgment to
the Department on the basis of laches.  We affirm the trial court's
judgment, but upon a different basis.

http://www.tba.org/tba_files/TCA/streeterj.wpd





UNION PLANTERS BANK OF MIDDLE TENNESSEE v. CAROL CHOATE, et al.

Court:TCA

Attorneys:

Robert A. Anderson, Nashville, for Appellant

Marcy S. Hardee, Franklin, for Appellee                          

Judge: HIGHERS

First Paragraph:

This appeal arises from a breach of contract case filed against Mickie
Davis ("Davis") by Carole Choate ("Choate").  Choate alleged that
Davis breached her contractual and fiduciary duties by authorizing
release of funds to Rochford Realty ("Rochford") for a construction
project.  The trial court granted Davis' motion for summary judgment. 
Choate appeals.

http://www.tba.org/tba_files/TCA/upvchoate.wpd





LINDA JEAN ZETTERSTEN v. ROLF BIRGER ZETTERSTEN

Court:TCA

Attorneys:

Mary Frances Lyle, Nashville, for Appellant

Maclin P. Davis, Jr., Caroline Thomas Trost, Nashville, for Appellee
                          
Judge: HIGHERS

First Paragraph:

This appeal arises from an action for divorce and division of marital
assets.  The court below granted Linda Jean Zettersten ("Wife") a
divorce on grounds of Rolf Birger Zettersten's ("Husband's")
stipulation of inappropriate marital conduct; awarded Wife alimony in
futuro and rehabilitative alimony and child support for the parties'
minor child; awarded Wife $11,923.50 in attorney's fees, discretionary
costs and court costs.  Wife appeals.

http://www.tba.org/tba_files/TCA/zetterstenlinda.wpd





WILLIE JAMES ROBINSON, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Joe H. Walker, District Public Defender, and Walter B. Johnson, II,
Assistant District Public Defender, for the appellant, Willie James
Robinson, Jr.

Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe,
Assistant Attorney General; J. Scott McCluen, District Attorney
General, for the appellee, State of Tennessee.                          

Judge: TIPTON

First Paragraph:

The defendant seeks habeas corpus relief from two life sentences,
claiming that the sentences are void because the trial judge failed to
sign the judgments or the minutes. We hold that the failure to sign
the judgments and the minutes does not render the petitioner's
sentences void.  The trial court is affirmed.

http://www.tba.org/tba_files/TCCA/robinsonwj.wpd

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