April 30, 2001
Volume 7 Number 078
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Lucian T. Pera
CENTRAL STATE BANK v. LEO DICKERSON AND LOYD BATEMAN
David A. Riddick, Jackson, Tennessee, for the appellant, Central State
John Van Den Bosch, Jr., Jackson, Tennessee, for the appellees
Leo Dickerson and Loyd Bateman.
This case involves a tax sale of real property. The bank loaned money
secured by two separate parcels of land. The bank failed to record
its interest in the property in the tax assessor's office as required
by the pre-1996 version of Tennessee Code Annotated S 67-5-2502. The
landowners failed to pay the property taxes. A tax sale was then held
and the parcels of land were purchased separately by the defendants.
Notice of the impending sale was placed in newspaper, but no other
notice was given to the bank. The bank asserted that it learned of
the tax sale after the redemption period had expired, when it
attempted to institute foreclosure proceedings on the property. The
bank filed suit seeking to set aside the sale, alleging inadequate
notice. The trial court found that the sale had been properly
conducted and that the defendants' deeds were valid. The bank
appealed. We reverse and remand, finding that due process required
that the bank be given actual notice prior to the tax sale.
STEPHEN COMELLA v. CITY OF MEMPHIS
David M. Sullivan, Memphis, Tennessee, for Plaintiff/Appellant Stephen
Robert L.J. Spence, Jr. and Chapman Sellers Morrow, Memphis,
Tennessee, for Defendant/Appellee, City of Memphis.
This is a personal injury case involving the on-the-job injury of a
police officer working for the City of Memphis. The city admitted
liability. After a bench trial on the issue of damages, the trial
court awarded the plaintiff a judgment of $25,000. The plaintiff
appeals, arguing that the trial court erred by treating this as a
worker's compensation case rather than a negligence case. Plaintiff
also argues that the trial court erred by not granting his request for
discretionary costs to pay for expert witness fees. We affirm,
finding that the evidence supports the trial court's award and that
there was no abuse of discretion in declining to order the city to pay
the plaintiff's expert witness fees.
ROBERT TERRY DAVIS, et al. v. WILSON COUNTY, TENNESSEE
Michael R. Jennings, Lebanon, Tennessee, for the appellant, Wilson
Neal Agee, Jr., Lebanon, Tennessee, for the appellees, Robert Terry
Davis and Donald Hamblen.
Wilson County sought to modify its health insurance plan providing
coverage for "retired" employees. Two employees, fitting the
definition of retired employees but not yet retired, challenged the
modification on the ground that their rights in the prior plan had
vested. The Chancery Court of Wilson County held that the employees
had a vested right to continue under the prior plan. We hold that
health insurance benefits are welfare benefits that do not vest absent
a contractual provision that they cannot be changed. We therefore
reverse the lower court's decision and dismiss the complaint.
PATRICK JOSEPH EDGIN v. VALENTINA PAULOVNA EDGIN
Rick C. Osborn, Columbia, Tennessee, for the appellant, Patrick Joseph
Barbara J. Walker, Columbia, Tennessee, for the appellee Valentina
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
LINDA KAY LOVELL GAGE v. RILEY GAGE, JR.
Harold R. Gunn, Humboldt, Tennessee, for the appellant, Riley Gage,
Jere B. Albright, Humboldt, Tennessee, for the appellee, Linda Kay
This is a divorce case. The wife filed for divorce approximately
fourteen months after she moved out of the marital home. The
husband filed an answer and counter-complaint for divorce. The trial
court granted the divorce to the wife and awarded her half of the
value of the husband's pension and alimony in futuro. Husband
appeals. We affirm.
HEALTH COST CONTROLS, INC. v. RONALD GIFFORD
H. Max Speight, Dresden, Tennessee, for the appellant Ronald Gifford.
Thomas H. Lawrence and John M. Russell, Memphis, Tennessee, for the
appellee Health Cost Controls, Inc.
This is an insurance case. The defendant sustained injuries in an
automobile accident while riding as a passenger in a car owned by his
mother. The defendant's insurance policy did not cover expenses for
injuries "when a person, other than the person for whom the claim is
made, is considered responsible for the sickness or injury." Unaware
of any third party responsible for the accident, the insurance company
paid part of the defendant's medical bills. The defendant
subsequently recovered from his mother's automobile insurance carrier.
When the defendant's insurance company learned of the subsequent
recovery, it filed suit seeking repayment of the amount it paid for
the defendant's medical bills. The trial court granted summary
judgment to the insurance company, finding that it was entitled to
recovery based on the policy. The defendant appeals. We affirm,
finding inter alia that a person need not be at fault in the
automobile accident to be "considered responsible" under the policy.
JOHN W. JOHNSON v. CLAYBURN PEEPLES, et al.
John W. Johnson, Pro Se
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Ellen H. Pollack, Assistant Attorney General,
Nashville, Tennessee, for the appellee Clayburn Peeples
Elizabeth E. Chance and Clinton J. Simpson, Memphis, Tennessee, for
the appellee Gibson County Sheriff.
Plaintiff filed a civil rights and conspiracy complaint against Gibson
County District Attorney and Gibson County Sheriff, pursuant to 42
U.S.C. S 1981, 42 U.S.C. S 1983, 42 U.S.C. S 1985(3), and 42 U.S.C. S
1986. The trial court dismissed the complaint based on the statute of
limitations, failure to establish facts sufficient to state a claim,
and qualified immunity. We affirm.
CASSANDRA D. MYLES v. PETER M. MYLES
John S. Richbourg, Memphis, Tennessee, for the appellant, Peter M.
Terry Allen Scott II, Memphis, Tennessee, for the appellee, Cassandra
This is a divorce case. The husband failed to appear for the
rescheduled hearing on the wife's motion for default judgment. The
trial court granted default judgment and, at a subsequent final
divorce hearing from which the husband was also absent, granted the
wife a divorce and awarded her alimony in solido. The husband then
filed motions to set aside the default judgment and for a new trial,
asserting that he had not received notice of either the rescheduled
hearing on default judgment or the final divorce hearing. The trial
court denied both motions. The husband appeals. We affirm, finding
that the husband's neglect was not excusable.
NATIONAL AUTO/TRUCK STOPS, INC. v. WILLIAMSON COUNTY, TENNESSEE
George A. Dean, Nashville, Tennessee, for the appellant, National
Auto/Truck Stops, Inc., d/b/a TravelCenters of America.
Kristi D. Earwood, Franklin, Tennessee, for the appellee, Williamson
The intent of an auto/truck stop to revamp business signs located on
its property was thwarted by the county's interpretation of its zoning
requirements. The plaintiff claimed the benefit and protection of the
Grandfather Statute, Tenn. Code Ann. S 13-7-208; the defendant county
prevailed in its argument that the Grandfather Statute afforded no
protection to signs, but only to business. We reverse.
NINA M. NOEL v. HAROLD DON NOEL
Darryl W. Humphrey, Memphis, Tennessee, for the appellant, Harold Don
Rita L. Stotts, Memphis, Tennessee, for the appellee, Nina M. Noel.
This is a divorce case. The trial court granted the husband the
divorce but ordered him to pay, inter alia, $8000 in child support
arrearage, half of the wages owed to the former employees of the
wife's new business, and court costs. The husband appealed. We
reverse the trial court's holding that the husband should pay half of
the wages of the wife's new business, since this is the wife's
separate debt incurred after the parties separated, and affirm the
remainder of the trial court's order.
OLYMPIA CHILD DEVELOPMENT CENTER, INC., et al. v. CITY OF MARYVILLE,
Kevin W. Shepherd, Maryville, Tennessee, for the appellant, Olympia
Child Development Center, Inc.
Nathan D. Rowell, Knoxville, Tennessee, for the appellee, City of
The suit filed in this tort action originally sought a judgment
against the defendant, City of Maryville ("the City"), for damages
allegedly sustained by four plaintiffs when a van owned by the
plaintiff Olympia Child Development Center, Inc. ("Olympia"), and
driven by the plaintiff Lisa K. Murphy was struck by a vehicle driven
by Rodney Parton, an off-duty police officer employed by the City.
The trial court granted the City summary judgment as to the claims of
the remaining plaintiffs, Olympia and Murphy, finding that their
claims are barred by the doctrines of collateral estoppel and modified
comparative fault. Only Olympia appeals. We affirm the grant of
summary judgment, but base our affirmance on a ground other than the
one utilized by the trial court.
ORION PACIFIC, INC. v. EXCHANGE PLASTICS COMPANY
William W. Burton, Murfreesboro, Tennessee, for the appellant,
Exchange Plastics Company.
Donald M. Bulloch, Jr., Murfreesboro, Tennessee, for the appellee,
Orion Pacific, Inc.
The defendant Ohio company purchased truckloads of plastic from the
Tennessee division of a Texas company. When the Ohio company refused
to pay for all the plastic, the Texas company filed suit for the
balance in a Tennessee court. The defendant argued that it did not
have sufficient contact with Tennessee to subject it to personal
jurisdiction in this state's courts. The trial court disagreed, and
following a hearing, rendered a judgment for the plaintiff in the
amount of $11,288. We affirm.
MARILYN E. REEL v. GEORGE C. REEL, JR.
Peter D. Heil, Nashville, Tennessee, for appellant, Marilyn E. Reel.
Dana Dye, Centerville, Tennessee, for the appellee, George C. Reel,
This is a divorce case ending a twenty-seven year marriage. The trial
court made an essentially equal division of property, awarding Wife
the marital residence which remained unfinished even though the
parties had occupied it since 1985. We modify the property division
to provide Wife additional funds with which to complete and repair the
STEVEN H. REZBA v. BRIAN W. RANDOLPH
Judy A. Oxford, Franklin, Tennessee, for the appellant, Steven H.
James D. Kay, Jr. and John B. Enkema, Nashville, Tennessee, and W. Ray
Culp, III, Lobelville, Tennessee, for the appellee, Brian W. Randolph.
Dr. Steven H. Rezba purchased the dental practice of Dr. Brian W.
Randolph in April of 1996, paying some cash down and giving a
promissory note for the balance. Dr. Rezba filed this action to
rescind the contract claiming that Dr. Randolph had inflated his
revenues by fraudulent practices, and Dr. Randolph counterclaimed for
damages for breach of the contract. The Chancery Court of Williamson
County denied Dr. Rezba's motion to amend to include a claim for
damages and granted summary judgment to Dr. Randolph on all issues.
MICHAEL A. SMITH, et al. v. STEVE C. FUTRIS, et al. v. RICHARD FELTUS
E. William James, Memphis, Tennessee, for the appellants, Steve C.
Futris, Zoe Futris and Steve C. Futris D.D.S., P.A.
Harold G. Walter, Memphis, Tennessee, for the appellees, Michael A.
Smith and Rene A. Smith. Tim Edwards, Memphis, Tennessee, for the
appellee, Richard Feltus.
This is a contract dispute. The plaintiffs entered into a contract to
buy the defendants' office condominium and equipment. The contract
provided that the defendants would execute a note for the balance of
the purchase price, payable in monthly installments over a twenty year
term. The contract had no express provision on the right of
prepayment. The promissory note expressly granted the plaintiffs the
right of prepayment. Five years later, the plaintiffs attempted to
prepay the note. The defendants refused the plaintiffs' offer, saying
that the plaintiffs had no right of prepayment. The plaintiffs then
ceased making any payments on the note. The plaintiffs later filed a
lawsuit seeking, inter alia, a declaratory judgment that they had the
right of prepayment. The defendants filed a counterclaim seeking
reformation of the note and the deed of trust. The defendants also
filed a third party claim for damages against the plaintiffs'
attorney, who had prepared the closing documents, including the note.
The defendants alleged that the attorney had breached his duty of due
care to them by putting a right of prepayment in the note. The trial
court found that the plaintiffs had the right to prepay and that the
plaintiffs had made an effective tender of payment to the defendants.
The trial court dismissed the defendants' third party claim against
the attorney, finding that he had not represented the defendants and
owed no duty of care to them. The defendants appeal. We affirm in
part and reverse in part, finding, inter alia, that the promissory
note gave the plaintiffs the right of prepayment, and also finding
that the plaintiffs have not made an effective tender of payment.
LANNIE L. SUMMERS, et al. v. THE TOWN OF WALNUT GROVE, TENNESSEE, et al.
James R. Tomkins, Nashville, Tennessee, for appellant, The Town of
Walnut Grove, Tennessee.
Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General and Ann Louise Vix, Senior Counsel, for the State of
John R. Bradley, Portland, Tennessee, for the appellee, Lannie L.
Summers and Fredrick H. Mueller.
The Town of Walnut Grove was created pursuant to Tennessee Code
Annotated S 6-58-108(f)(3). Its legality was challenged in an action
filed by a neighboring town, and the statutory scheme was upheld.
This judgment was not appealed. About one year later this statute was
declared unconstitutional in Huntsville v. Duncan 15 S.W.3d 468 (Tenn.
App. 1999). In the case at Bar, the trial judge applied stare decisis
and dissolved the Charter of Walnut Grove. We affirm.
LISA JOHNSON VENABLE v. BOYD WALTER VENABLE III
David W. Blankenship, Kingsport Tennessee, for the appellant, Boyd
Walter Venable, III.
Jerry G. Cunningham and Melanie E. Davis, Maryville, Tennessee, for
the appellee, Lisa Johnson Venable.
This divorce action was filed November 12, 1998. All issues involving
money were contested: marital assets, debts, child support, attorney
fees, costs. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
Chancery Court Modified and Affirmed
JEFFREY LYNN ANDERSON v. STATE OF TENNESSEE
Danny H. Goodman, Jr., Dyersburg, Tennessee, for the appellant,
Jeffrey Lynn Anderson.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; and C. Phillip Bivens, District Attorney
General, for the appellee, State of Tennessee.
The petitioner originally pled guilty to felony reckless endangerment,
evading arrest in a motor vehicle, and two counts of theft over
$1,000. The petitioner sought post-conviction relief, which was
denied by the post-conviction court. In this appeal, the petitioner
contends his trial counsel provided ineffective assistance of counsel.
After a thorough review of the record, we conclude that the post-
conviction court correctly denied post-conviction relief.
STATE OF TENNESSEE v. KENNETH LAMONT ANTHONY
Richard McGee, Nashville, Tennessee, for the Appellant, Kenneth
Paul G. Summers, Attorney General and Reporter, Glen C. Watson,
Assistant Attorney General, Victor S. Johnson, III, District Attorney
General, and Pamela S. Anderson, Assistant District Attorney General,
for the Appellee, State of Tennessee.
The Defendant, Kenneth Anthony, was convicted by a Davidson County
jury of first degree pre- meditated murder and attempted second degree
murder. For these offenses, the Defendant received a sentence of
imprisonment for life and a concurrent sentence of ten years in the
Tennessee Department of Correction, respectively. On appeal, the
Defendant challenges the sufficiency of the evidence with regard to
the first degree premeditated murder conviction. Finding sufficient
evidence in the record to support the Defendant's convictions, we
affirm the judgment of the trial court.
STATE OF TENNESSEE v. LILLIE FRAN FERGUSON
Lloyd Tatum, Henderson, Tennessee, for the appellant, Lillie Fran
Paul G. Summers, Attorney General and Reporter; Laura E. McMullen,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and James Thompson, Assistant District Attorney General, for the
appellee, State of Tennessee.
The Defendant, Lillie Fran Ferguson, pled guilty to possession with
intent to sell or deliver less than .5 grams of a Schedule II
controlled substance and to failure to obey a stop sign. As part of
her plea agreement, she expressly reserved with the consent of the
trial court and the State the right to appeal certain certified
questions of law pursuant to Tennessee Rule of Criminal Procedure
37(b)(2) relating to the frisk of her person and the subsequent
seizure of contraband. In this appeal, the Defendant asserts that the
trial court erred by refusing to suppress the evidence obtained
against her as the result of an unlawful frisk. She claims that the
officer did not have reasonable suspicion that she was armed and
dangerous, thereby warranting a Terry pat-down, and that the
incriminating nature of the crack pipe felt by the officer during the
pat-down was not immediately apparent within the meaning of the "plain
feel" doctrine. However, because the Defendant failed to properly
certify her issues for review, we are unable to reach the merits of
her case. Accordingly, this appeal is dismissed.
STATE OF TENNESSEE v. JASON FRANK JENKINS
Stacy D. Nordquist (at trial), Maryville, Tennessee; Julie A. Rice (on
appeal), for the Appellant, Jason Jenkins.
Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant
Attorney General; Michael L. Flynn, District Attorney General; John
Bobo, Assistant District Attorney General, for the Appellee, State of
Jason Frank Jenkins appeals from the Blount County Circuit Court's
revocation of his probationary sentence. Jenkins concedes that he
violated the terms of probation, but he argues that the lower court
abused its discretion in ordering him to serve the balance of his
sentence in the Department of Correction. Because the trial court did
not abuse its discretion, we affirm.
STATE OF TENNESSEE v. MICHAEL S. NEVENS
David L. Raybin, Nashville, Tennessee, for the appellant, Michael S.
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Derek Keith Smith, Assistant District Attorney General,
for the appellee, State of Tennessee.
The defendant appeals from his conviction for theft of a bottle of
tea, contesting the jury instructions, the effectiveness of his trial
counsel, the state's cross-examination of defense witnesses, the
state's closing argument and the trial court's failure to rule upon a
subsequent objection, and his sentence. Because the trial court erred
in instructing the jury, we reverse the defendant's conviction and
remand the case to the trial court.
STATE OF TENNESSEE v. MICHAEL RAY SWAN
Ramona P. DeSalvo, Nashville, Tennessee, for the appellant, Michael
Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; Joe James, Assistant Attorney General;
Lawrence Ray Whitley, District Attorney General; and Lytle A. James,
Assistant District Attorney.
The defendant, Michael Ray Swan, was convicted for simple assault,
driving on a revoked, suspended, or cancelled license, and violating
the implied consent law. The trial court sentenced the defendant to
11 months, 29 days for the assault; ordered a term of six months on
the revoked license conviction; and revoked the defendant's license
for one year for violating the implied consent law. In this appeal of
right, the defendant presents the following issues: (1) whether there
was sufficient evidence to support the convictions; (2) whether the
trial court properly charged the jury; (3) whether the trial court
erred by allowing the state to submit a statement of evidence; (4)
whether the trial court erred by denying defendant's motion to stay
the suspension of his license; and (5) whether the trial court erred
by revoking the defendant's license. After a review of the record, we
reverse and dismiss the conviction for driving on a revoked,
suspended, or cancelled license; the judgment for the implied consent
violation is modified to a one-year suspension rather than revocation.
The conviction for simple assault is affirmed.
"Public Hearing" under Tenn. Code Ann. S 5-12-108
Date: April 19, 2001
Opinion Number: 01-061
Authority of local beer board to engage the services of a private
investigator to investigate reports of the sale of beer to minors.
Date: April 20, 2001
Opinion Number: 01-062
Interpretation of Tenn. Code Ann. S 62-6-111(i)(2)
Date: April 20, 2001
Opinion Number: 01-063
State Lottery and the Federal Indian Gaming Regulatory Act
Date: April 24, 2001
Opinion Number: 01-064
Constitutionality of Proposed Amendments to Pawn Shop Laws
Date: April 25, 2001
Opinion Number: 01-065
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