Opinion FlashJanuary 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.
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Howard H. Vogel
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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