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January 22, 2001
Volume 7 -- Number 014
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):
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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 |
| 11 |
New Opinion(s) from the Tennessee Court of Appeals |
| 04 |
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) |
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New Formal Ethics Opinion(s) from the Board of Professional Responsibility |
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Lucian T. Pera
Editor-in-Chief, TBALink
ALPHA FINANCIAL SERVICES, INC., v. KARL KINDERVATER
WITH CONCURRING OPINION
Court:TCA
Attorneys:
R. Deno Cole, Knoxville, Tennessee, for Defendant-Appellant, Karl
Kindervater.
Stephen R. Beckham, Chattanooga, Tennessee, for Plaintiff-Appellee,
Alpha Financial Services, Inc.
Judge: FRANKS
First Paragraph:
This is a dispute over the amount of debt owing under a factoring
agreement for which the defendant signed a "continuing guaranty." The
Trial Court granted summary judgment. We vacate.
http://www.tba.org/tba_files/TCA/alphafinser_opn.wpd
CONCURRING OPINION
http://www.tba.org/tba_files/TCA/alphafinser_con.wpd
MARIE CROWNOVER v. FREDIA WADLEY, COMMISSIONER TENNESSEE DEPARTMENT OF
HEALTH, BUREAU OF TENNCARE
Court:TCA
Attorneys:
Debra L. House, Cleveland, Tennessee, for the appellant, Marie
Crownover.
Paul G. Summers, Attorney General and Reporter; John W. Dalton,
Assistant Attorney General, Nashville, Tennessee, for the appellee,
Fredia Wadley, Commissioner Tennessee Department of Health, Bureau of
Tenncare.
Judge: CAIN
First Paragraph:
This appeal involves judicial review of an administrative decision.
The issue on this appeal is whether the chancery court properly
dismissed this case based on the Petitioner's failure to timely file
the Petition for Review within the sixty (60) day requirement pursuant
to T.C.A. S 4-5-322(b)(1). The Tennessee Department of Health, Bureau
of TennCare denied the Petitioner coverage for adult dental services.
The Petitioner appealed the denial which resulted in an administrative
hearing in which the denial of benefits was upheld. Next, the
Petitioner filed a Petition for Review in the Chancery Court for
Davidson County sixty-three (63) days after the entry of the final
order. The Respondent filed a motion to dismiss. The motion to
dismiss was granted on jurisdictional grounds. We affirm the order of
dismissal because the Petitioner did not file her petition within the
sixty(60) day mandatory, jurisdictional requirement.
http://www.tba.org/tba_files/TCA/crownovermarie.wpd
CUSTOM PACKAGING, INC. v. PATTI HOLLIDAY, et al.
Court:TCA
Attorneys:
John E. Buffaloe, Jr., Nashville, Tennessee, for the Appellant, Custom
Packaging, Inc.
John P. Newton, Jr., Knoxville, Tennessee, for the Appellee, Patti
Holliday
Judge: GODDARD
First Paragraph:
Custom Packaging, Inc., appeals a summary judgment granted against it
in its suit seeking recovery on a sworn account for merchandise sold
according to the complaint to "Patti Holliday, Ind. & d/b/a Repeat
Fibre." The Trial Court sustained Ms. Holliday's motion for summary
judgment, finding there are no material disputed facts. We vacate the
judgment below and remand the case for further proceedings.
http://www.tba.org/tba_files/TCA/custompack.wpd
RICHARD E. GARRISON v. KEVIN L. BURCH
Court:TCA
Attorneys:
Clark Lee Shaw, Nashville, Tennessee, for the appellant, Kevin L.
Burch.
Richard E. Garrison, Nashville, Tennessee, Pro Se.
Judge: KOCH
First Paragraph:
This appeal involves a dispute regarding an order of protection.
After the petitioner was threatened and attacked by his girlfriend's
former husband, he sought an order of protection from the Davidson
County General Sessions Court. The general sessions court granted the
order of protection, and the former husband appealed to this court.
We reverse and vacate the general sessions court's order because the
parties are not within the degree of relationship required by the
statute authorizing the issuance of orders of protection.
http://www.tba.org/tba_files/TCA/garrisonre.wpd
JANINE S. TAYLOR HINES v. RICHARD MICHAEL TILIMON
Court:TCA
Attorneys:
Laura Rule, Knoxville, Tennessee, for the appellant, Richard Michael
Tilimon.
Jonathan A. Moffatt, Knoxville, Tennessee, for the appellee, Janine S.
Taylor Hines.
Paul G. Summers, Attorney General and Reporter, and Kim Beals,
Assistant Attorney General, for the State of Tennessee.
Judge: SUSANO
First Paragraph:
This is an interstate custody dispute. Janine S. Taylor Hines
("Mother") filed this action seeking a declaratory judgment pertaining
to the custody of the parties' minor child. She also sought to modify
certain foreign orders pertaining to the visitation rights of the
defendant, Richard Michael Tilimon ("Father"). The trial court (a)
entered a default judgment against Father, (b) declared Tennessee to
be the child's home state, (c) decreed that custody would remain with
Mother, and (d) limited Father's visitation to supervised visits in
the state of Tennessee. The court later denied Father's motion to set
aside the default judgment. Father appeals, raising issues as to
subject matter jurisdiction, in personam jurisdiction, venue, and
service of process. He also argues that the trial court erred (1) in
denying his request for a continuance of the hearing on the
plaintiff's motion for default judgment; (2) in not allowing him to
participate by telephone in the hearing on his motion to set aside the
default judgment; (3) in denying his motion to set aside the default
judgment; (4) in ordering supervised visitation; and (5) in awarding
Mother her attorney's fees. By a separate issue, Mother seeks
attorney's fees for this appeal. We affirm and remand for a hearing
to set Mother's fees on appeal.
http://www.tba.org/tba_files/TCA/hinesjst.wpd
CHARLES MONTAGUE v. TENNESSEE DEPARTMENT OF CORRECTION, et al.
Court:TCA
Attorneys:
Charles Montague, Nashville, Tennessee, Pro Se.
John Knox Walkup, Attorney General and Reporter; Michael E. Moore,
Solicitor General, and Sohnia W. Hong, Assistant Attorney General,
Nashville, Tennessee, for the appellees, Tennessee Department of
Correction and Warden Howard Carlton
Judge: CAIN
First Paragraph:
This Court determined a previous appeal by Charles Montague to be
frivolous and remanded the case to the trial court to set attorney's
fees. The state submitted evidence of attorney's fees incurred, both
in the trial court and in this Court. Montague appeals and we modify
the judgment of the trial court so as to only allow attorney's fees on
the initial appeal.
http://www.tba.org/tba_files/TCA/montaguecharles.wpd
KALLEY DEE FREY MUIRHEAD v. SCOTT ALLEN MUIRHEAD
Court:TCA
Attorneys:
David B. Lyons, Nashville, Tennessee, for the appellant, Kalley Dee
Frey Muirhead.
John M. L. Brown, Nashville, Tennessee, for the appellee, Scott Allen
Muirhead.
Judge: CAIN
First Paragraph:
This appeal involves the custody of four minor children following
dissolution of a sixteen (16) year marriage. The trial court awarded
a divorce to Father on the ground of inappropriate marital conduct but
awarded custody of the parties' four minor children to Mother. The
trial court set child support, awarded rehabilitative alimony, and
divided the marital property, awarding Mother the marital residence.
The Mother appeals the property division and alimony award. The
Father appeals the award of custody. We reverse the trial court's
award of custody because Father is comparatively more fit than Mother
to have custody, modify the award of rehabilitative alimony, vacate
the child support award, and remand to the trial court for child
support and visitation issues.
http://www.tba.org/tba_files/TCA/muirheadkalley.wpd
WILLIE PERRY v. TENNESSEE BOARD OF PAROLES, et al.
Court:TCA
Attorneys:
Willie Perry, Jr., Henning, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Patricia C. Kussmann, Assistant Attorney
General, for the appellees, Tennessee Board of Paroles; Charles
Traughber, Chairperson; Tom Biggs, Vice Chairperson; Don Dills; Rose
Hill; John Harwell; Ancel McDuffee; and Larry Hassell, Board Members.
Judge: KOCH
First Paragraph:
This appeal involves a prisoner's efforts to be released on parole.
After the Tennessee Board of Paroles declined to release him on
parole, the prisoner filed petitions for both common-law and statutory
certiorari in the Chancery Court for Davidson County asserting that
the Board had acted illegally, arbitrarily, and fraudulently. The
trial court dismissed the prisoner's petition. We affirm.
http://www.tba.org/tba_files/TCA/perryw.wpd
WILLIE PERRY v. DONAL CAMPBELL, et al.
Court:TCA
Attorneys:
Willie Perry, Henning, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Elena J. Xoinis, Assistant Attorney General,
for the appellees, Donal Campbell; West Tennessee High Security
Facility Disciplinary Board; Warden Robert Conley; Sgt. Lloyd Moore;
Janice Sanders; Greg Helton; and Dennis Talley.
Judge: KOCH
First Paragraph:
This appeal involves a prisoner's challenge to a prison disciplinary
board's decision to place him in involuntary administrative
segregation. After exhausting his remedies within the Department of
Correction, the prisoner filed petitions for a common-law and a
statutory writ of certiorari in the Chancery Court for Davidson County
complaining that he had been denied the right to call witnesses, that
the board's decision was racially motivated, and that the board's
decision lacked evidentiary support. The trial court granted the
State's motion for summary judgment and dismissed the prisoner's
petitions. We affirm the trial court's judgment.
http://www.tba.org/tba_files/TCA/perrywillie.wpd
TERRY W. STONE v. FAULKNER, MACKIE & COCHRAN, et al.
Court:TCA
Attorneys:
James L. Harris, Nashville, Tennessee, for the appellant, Terry Stone.
H. Rowan Leathers, III, Nashville, Tennessee, for the appellees,
Faulker, Mackie & Cochran, P.C., and David Cochran, individually.
Judge: CAIN
First Paragraph:
Plaintiff, Terry Stone d/b/a Medical Claims and Collections
Specialist, sued Defendants, David Cochran, and Faulkner, Mackie &
Cochran, for interference with contractual and business relationships
between Plaintiff and Plaintiff's third-party client, Levine & Sharp
Associates. The trial court granted Defendants' motion for summary
judgment in this matter finding no genuine issue of material fact and
dismissed Plaintiff's claims. The question presented to the Court is
whether or not there are genuine issues of material fact such that the
trial court erred in granting Defendants' Motion for Summary Judgment
on the claim for interference with a business relationship. We affirm
the trial court's dismissal of this claim.
http://www.tba.org/tba_files/TCA/stoneterry.wpd
SARA ETHEL WEST and JERRY KEITH WEST, v. LOWELL JUSTIN WIKRE
Court:TCA
Attorneys:
Paul G. Whetstone, Morristown, Tennessee, for Appellants, Sara Ethel
West and Jerry Keith West.
Angela M. Cirina, Chattanooga, Tennessee, and John F. Kimball,
Cleveland, Tennessee, for Appellee, Lowell Justin Wikre.
Judge: FRANKS
First Paragraph:
The plaintiffs refused to comply with the Rules of Discovery and the
Trial Court as a sanction dismissed the suit. We affirm.
http://www.tba.org/tba_files/TCA/wests.wpd
STATE OF TENNESSEE v. DARRON LENON
Court:TCCA
Attorneys:
Tom W. Crider, District Public Defender; and Kevin McAlpin, Assistant
Public Defender, later substituted by Shannon A. Jones, Humboldt,
Tennessee, for the appellant, Darron Lenon.
Paul G. Summers, Attorney General and Reporter; Lucian D. Geise,
Assistant Attorney General; Clayburn Peeples, District Attorney
General; and William Bowen, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: WOODALL
First Paragraph:
In this case the Defendant, Darron Lenon, was found guilty of unlawful
delivery of a Schedule II controlled substance, a Class B felony,
following a jury trial. The trial court imposed a maximum Range I
sentence of twelve years. In this appeal, the Defendant, in three
issues, argues that the trial court erroneously applied an enhancement
factor; failed to apply a mitigating factor; and failed to follow the
mandates of the Tennessee Criminal Sentencing Reform Act of 1989. The
Defendant asks this court to reverse the trial court and impose the
minimum sentence of eight years. We decline to do so, and therefore
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/lenond.wpd
HAROLD WAYNE NICHOLS v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Ardena J. Garth, District Public Defender; Mary Ann Green, Assistant
Public Defender; and Donald E. Dawson, Post-Conviction Defender, for
the appellant, Harold Wayne Nichols.
Paul G. Summers, Attorney General and Reporter; Marvin S. Blair,
Assistant Attorney General; William H. Cox, III, District Attorney
General; C. Leland Davis, Assistant District Attorney General; C.
Caldwell Huckabay, Assistant District Attorney General; and Glenn R.
Pruden, Assistant District Attorney General, for the appellee, State
of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner filed petitions for post-conviction relief for his
conviction for first degree felony murder and his sentence of death,
as well as for a number of convictions for sexual attacks on four
additional victims. The bases of his complaints were that he had
ineffective assistance of counsel at both the guilt and punishment
phases of his capital trial, as well as in the noncapital cases, two
of which were resolved by pleas of guilty. Specifically, he claimed
that counsel failed to adequately investigate and prepare his cases;
failed to question the probable cause for his arrest; and failed to
question whether his confessions were "false." He raised additional
claims of ineffective assistance of counsel and claims regarding the
unconstitutionality of the imposition of capital punishment. The
post-conviction court denied the claims other than to order new
sentencing hearings in the noncapital cases. The petitioner then
timely appealed the post-conviction court's rulings, other than the
ordering of new sentencing hearings. We have carefully reviewed the
record and, based upon our review, we affirm the judgments of the
post-conviction court.
http://www.tba.org/tba_files/TCCA/nicholshw.wpd
JAMES RINES v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
James Rines, Pro Se
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; James B. Dunn, Assistant District Attorney General, for the
Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
The petitioner appeals the trial court's dismissal of his "petition to
correct illegal judgment/sentence." Finding no basis for a rightful
appeal or a discretionary appeal via the common law writ of
certiorari, we dismiss the appeal.
http://www.tba.org/tba_files/TCCA/rinesj.wpd
STATE OF TENNESSEE v. JOHN RUFF
WITH CONCURRING OPINION
Court:TCCA
Attorneys:
John Ruff, Memphis, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Mark E. Davidson,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Paul Thomas Hoover, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, John Ruff, appeals the dismissal without prejudice of
the charges against him. He asks this Court to enter an order
dismissing his case with prejudice. We hold that the trial court
properly dismissed the charges against the Defendant without
prejudice; thus, we affirm the action of the trial court.
http://www.tba.org/tba_files/TCCA/ruffj_opn.wpd
CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/ruffj_con.wpd
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