Opinion Flash

January 4, 2002
Volume 8 — Number 003

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):
 
00 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
07 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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


IN RE: THE MATTER OF JOHN ADAMS, DECEASED, et al. v. CITY OF LEBANON,
TENNESSEE v. THE TENNESSEAN, et al.

Court:TCA

Attorneys:

Alfred H. Knight and Alan D. Johnson, Nashville, Tennessee, for the
Appellant, The Tennessean.

Rich Cassidy, Nashville, Tennessee, for the appellee, Lorrine Adams.

Larry Stewart, Charles W. Cook, III, Nashville, Tennessee, and Peggy
F. Williams, Lebanon, Tennessee, for the appellee, City of Lebanon,
Tennessee.                        

Judge: FARMER

First Paragraph:

This appeal challenges the jurisdiction of the trial court to issue a
protective order sealing a settlement agreement between the City of
Lebanon, Tennessee, and a private citizen, Mrs. Lorrine Adams.  The
trial court issued the protective order in response to the City's
motion, a motion which followed a request by The Tennessean, a daily
newspaper, for information regarding the settlement.  The protective
order was issued ex parte, despite the fact that no action had been
filed against the City by Mrs. Adams or by The Tennessean. We hold
that the circuit court lacked jurisdiction to enter the protective
order.  The order is therefore void and vacated.

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

DARLETTE I. BILLINGSLEY, et al. v. JANELLE C. WAGGENER

Court:TCA

Attorneys:

W. Scott Sims, Nashville, Tennessee for the Appellants Darlette and
Rodney Billingsley.


James L. Woodard, Franklin, Tennessee, for the Appellee Janelle C.
Waggener.

Judge: SWINEY

First Paragraph:

This is an automobile accident case where each party claims she had
the green light when she entered the intersection where the accident
occurred.  In addition to the depositions of the parties, Defendant
submitted expert testimony to the effect that Plaintiff's version of
the accident was physically impossible while Defendant's version was
not.  The Trial Court granted summary judgment to Defendant after
concluding, as a matter of law, that Plaintiff's negligence was at
least 50% under comparative fault principles.  We conclude that
genuine issues of material fact exist and vacate the judgment of the
Trial Court.

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

KIMBERLY BEARD DAY v. JOHN ARTHUR DAY

Court:TCA

Attorneys:  

James G. Martin, III, and Gregory D. Smith, Nashville, Tennessee, for
the appellant, John Arthur Day.

Stevan L. Black and Vickie Hardy Jones, Memphis, Tennessee, for the
appellee, Kimberly Beard Day.

Judge: SUSANO

First Paragraph:

This is a post-divorce case.  It is before the Court on the
application of John Arthur Day ("Husband") seeking relief from the
interlocutory order of the trial court denying his motion for summary
judgment.  Husband's summary judgment motion was filed in response to
the Tenn. R. Civ. P. 60.02(1) motion filed by his former wife,
Kimberly Beard Day ("Wife"), in which she seeks relief from portions
of the parties' judgment of divorce (sometimes referred to herein as
"the judgment"), specifically the child support, division of property,
and alimony provisions of the incorporated marital dissolution
agreement.  Husband's application to this Court was originally filed
pursuant to Tenn. R. App. P. 10.  Before his application was acted
upon, he converted it to a request for relief pursuant to Tenn. R.
App. P. 9.  This change in approach followed the trial court's
reversal of its earlier order denying him Rule 9 relief.  We granted
Husband's Rule 9 application.  We find that the material facts are not
in dispute and that those facts establish that Husband is entitled to
a judgment as a matter of law.  Accordingly, we (1) reverse the trial
court's order of April 24, 2001, denying Husband's motion for summary
judgment and (2) dismiss Wife's Rule 60.02(1) motion.

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

WILLIAM GARRETT v. TENNESSEE BOARD OF PAROLES

Court:TCA

Attorneys:

William Garrett, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Mark A. Hudson, Senior Counsel, for the
appellee, Tennessee Board of Paroles.                         

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a prisoner and the Tennessee
Board of Paroles regarding the Board's decision to schedule his next
consideration for parole in September 2003.  Believing that his
current sentence will expire in May 2002, the prisoner filed a
petition for common-law writ of certiorari in the Chancery Court for
Davidson County asserting that the Board had acted illegally by
deferring its next consideration of his parole until after the
expiration of his sentence.  He also asserted that the Board had
misunderstood the evidence presented at his 1998 parole hearing and
that the Board improperly denied him parole because of the seriousness
of his offense.  After the trial court dismissed his petition, Mr.
Garrett appealed to this court.  We have determined that the prisoner
sued the wrong party with regard to the sentence expiration date claim
and that his remaining claims do not entitle him to the relief
available in a certiorari proceeding.  Accordingly, we affirm the
trial court's dismissal of the prisoner's petition.

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

JACQUELINE M. TELFORD v. MICHAEL ALLEN TELFORD

Court:TCA

Attorneys: 

Richard E. Norman, Jr., Nashville, Tennessee, for the Appellant,
Michael Allen Telford.

Irene R. Haude, Nashville, Tennessee, for the Appellee, Jacqueline M.
Telford.                         

Judge: GODDARD

First Paragraph:

This appeal from the Chancery Court of Cheatham County questions
whether the Trial Court erred in awarding Ms. Telford alimony in the
amount of $1,000.00 per month, and in granting Ms. Telford a judgment
of $21,040.00 as the amount owing on the property division. 
Additionally, this appeal questions whether the Trial Court erred in
limiting alimony to eight years and whether the Trial Court erred in
failing to grant retroactive child support.  We vacate the decision of
the Trial Court in part and affirm as modified in part and remand for
further proceedings consistent with this opinion.  We divide costs of
the appeal equally between the Appellant, Michael Allen Telford, and
the Appellee, Jacqueline M. Telford.

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

SHELIA J. TROY v. WILLIAM TROY, et al.

Court:TCA

Attorneys: 

M. Andrew Hoover, Pulaski, Tennessee, for the appellant, Shelia J.
Troy.

Samuel B. Garner, Jr., Pulaski, Tennessee, for the appellees, William
Troy, John Annessi, and Helen Annessi.                         

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a woman and her former in-laws
regarding the title to a tract of property in Prospect, Tennessee and
the in-laws' accounting for $35,000 held for the benefit of the woman
and her former husband.  When she filed for divorce in the Chancery
Court for Giles County, the woman also named her in-laws as defendants
and alleged that they had misappropriated marital assets and breached
a contract to convey the property in Prospect, Tennessee.  After
agreeing to an irreconcilable differences divorce, the woman proceeded
with her claims against her former in-laws.  Following a bench trial,
the trial court held that the in-laws had accounted for all the funds
being held for the benefit of the woman and her former husband and
that the in-laws owned the disputed property.  On this appeal, the
woman takes issue with both of these conclusions.  We have determined
that the trial court properly found that the property belonged to the
in-laws.  However, we have also determined that the in-laws did not
properly account for $892.15 of the funds they were holding. 
Accordingly, we modify the final order to award the woman a $892.15
judgment against her former in-laws.

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

PAMELA J. WRIGHT v. DALE M. QUILLEN

Court:TCA

Attorneys:

Helen Sfikas Rogers, Nashville, Tennessee, for the appellant, Pamela
J. Wright.

Irene R. Haude, Nashville, Tennessee, for the appellee, Dale M.
Quillen.                       

Judge: FARMER

First Paragraph:

This appeal concerns the modification of a 1994 award of in futuro
alimony, where the alimony recipient has improved his financial
condition and resides with a third party.  We affirm in part, reverse
in part, and suspend alimony pursuant to the provisions of Tenn. Code
Ann. S 36-5- 101(a)(3).

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

RANDY D. VOWELL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Billy P. Sams, Oak Ridge, Tennessee, for appellant, Randy D. Vowell.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General;  James N. Ramsey, District Attorney
General; and Jan Hicks, Assistant District Attorney, for appellee,
State of Tennessee.                         

Judge: SMITH

First Paragraph:

An Anderson County jury convicted the petitioner, Randy D. Vowell, of
one count of rape and one count of aggravated rape.  The trial court
sentenced the petitioner to serve  concurrent sentences of
twenty-three years for aggravated rape and eight years for rape as a
Range I standard offender. The petitioner filed a new trial motion,
which the trial court denied, and the petitioner appealed his
conviction to this Court.  We affirmed the decision of the lower
court, finding that all of the petitioner's claims of error were
meritless, with the exception of the petitioner's claim of ineffective
assistance of trial counsel, which this court declined to consider
because the record on appeal was insufficient to review the
petitioner's claim. See State v. Randy D. Vowell, No. 03C01-
9709-CC-003383, 1998 WL 573296, at *2 (Tenn. Crim. App. at Knoxville,
Sept. 8, 1998).  This Court also noted that because the petitioner's
claim of ineffective assistance of counsel had not been waived or
decided on its merits, it was open to collateral attack.  Id. at *2. 
The petitioner filed a petition seeking post-conviction relief
alleging that he received ineffective assistance from his trial
counsel, and the post-conviction court denied his petition.  The
petitioner now brings this appeal, challenging the post-conviction
court's denial of his petition.  For the following reasons, we affirm
the decision of the post-conviction court.

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

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