Opinion Flash

January 15, 2002
Volume 8 — Number 010

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
06 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


MELISSA COMBS CRANSTON v. EDWARD SCOTT COMBS

Court:TCA

Attorneys: 

Steven C. Girsky, Clarksville, Tennessee, for the appellant, Melissa
Combs Cranston.

R. Allan Thompson, Clarksville, Tennessee, for the appellee, Edward
Scott Combs.                         

Judge: CAIN

First Paragraph:

This matter involves only the issue of child custody and a
determination of whether there was a material change of circumstances
sufficient to alter the previously ordered custody arrangement. We
find no such material change of circumstances and reverse the trial
court's decision in this regard.

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

MELISSA COMBS CRANSTON v. EDWARD SCOTT COMBS

ASH DISSENTING

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

MALLORY VALLEY UTILITY DISTRICT OF WILLIAMSON COUNTY, TENNESSEE, v.
JEFFREY R. CANTWELL, CAROLYN W. CANTWELL, and SUNTRUST BANK,
NASHVILLE, N.A.

Court:TCA

Attorneys:   

Donald L. Scholes, Nashville, Tennessee, for Appellant, Mallory Valley
Utility District of Williamson County, Tennessee.

Ralph W. Mello, Brentwood, Tennessee, for Appellees, Jeffrey R.
Cantwell and Carolyn W. Cantwell.

Mike Powell, Knoxville, Tennessee, for Appellee, Suntrust Bank,
Nashville, N.A.               

Judge: FRANKS

First Paragraph:

The Trial Court dismissed plaintiff's condemnation action on grounds
that the taking was arbitrary and capricious.  On appeal, we vacate
and remand for an evidentiary hearing.

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

JULIANN MORANDO v. WILLIAM MICHAEL MCGAHAN

Court:TCA

Attorneys:

Jeffrey Spark, Nashville, Tennessee, for the appellant, Juliann
Morando.

Clark Lee Shaw, Nashville, Tennessee, for the appellee, William
Michael McGahan.                         

Judge: FARMER

First Paragraph:

This appeal arose after the trial court made its final determination
on issues involving the support of the parties' minor child.  Mother
petitioned the trial court to establish parentage, to be awarded
custody of the parties' child, and to establish other issues regarding
the care of the child.  At trial, Father conceded paternity and did
not contest the custody issue.  In making its child support award, the
trial court based its decision on Father's new found employment.  The
court also set a payment schedule for the child support arrearage,
determined that Father should claim the child as a dependent for tax
purposes, split medical costs associated with the child's birth, and
refused to award mother filing fees and attorney's fees.  Mother
contends that Father is voluntarily underemployed for purposes of
child support and challenges several other decisions of the trial
court.  We reverse the court's decision in part, modify in part,
affirm in part, and remand to the trial court for proceedings
consistent with this opinion.

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

RICHARD C. O'LEARY, et ux. v. ANN M. JOHNSON, et al.

Court:TCA

Attorneys:

Blakeley D. Matthews, Nashville, For Appellant, Chicago Title
Insurance Company

Boyd W. Venable, III, Sevierville, For Appellee, Ann M. Johnson

Mark A. Ellmore, Jr., Nashville, For Appellee, Richard C. O'Leary and
Sherrye H. O'Leary                         

Judge: CRAWFORD

First Paragraph:

This case involves a payoff of a loan secured by a deed of trust on
real estate and the failure to release the deed of trust on the
record.  In connection with a refinancing by the property owner, the
title company closing agent issued a check to pay off the existing
loan secured by a deed of trust.  The check-payees, husband and wife,
failed to negotiate the check and did not release the deed of trust. 
Some ten years later, after the death of the husband, the wife-payee
found the check in her husband's files, and her attempt to negotiate
the check failed because the account on which it was drawn was closed.
 She duly notified the title company closing agent, but it refused to
reissue the check.  Some three years later, the owners of the property
tried again to refinance their loan, and in examining the title, it
was discovered that the deed of trust, which presumably had been paid
off, had not been released.  The property owners filed suit against
the title company closing agent and the holder of the note secured by
the unreleased trust deed.  The holder of the note filed a
counter-claim against the property owners and a cross-claim against
the title company closing agent.  After a nonjury trial, the trial
court awarded plaintiffs judgment against the title company closing
agent for the amount of the payoff check issued to pay the previous
loan and dismissed the cross-claim against the title company.  The
holder of the previous loan was awarded a judgment against the
property owners for the amount of the principal balance due, plus
attorney fees.  The title company has appealed.  We vacate in part,
modify and affirm as modified.

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

ROUSE CONSTRUCTION COMPANY v. INTERSTATE STEEL CORPORATION

Court:TCA

Attorneys:

D. Scott Hurley, Knoxville, Tennessee, for the Plaintiff/Appellant,
Rouse Construction Company

Wanda Graham Sobieski and Nanette J. Landen, Knoxville, Tennessee, for
the Defendant/Appellee, Interstate Steel Corporation

Judge: GODDARD

First Paragraph:

This is a case wherein the Plaintiff/Appellant, Rouse Construction
Company, seeks damages for breach of contract from the
Defendant/Appellee, Interstate Steel Corporation. The Chancellor found
that there was no meeting of minds between the parties as to essential
contract terms and, therefore, ordered that Rouse's claim be denied. 
The Chancellor further determined that Interstate should be allowed a
judgment in the amount of $19,090.00 for materials and plans delivered
to Rouse.  We  concur in the determination of the Chancellor and
affirm.

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

STATE COUNCIL OF TENNESSEE, JUNIOR ORDER OF UNITED AMERICAN MECHANICS
v. WILLIAM BOYD, BILLY LOVELL, JOHN PETTY, ROBERT McCLAIN and J.D.
RUNIONS 

Court:TCA

Attorneys:  

Michael E. Gilmer, Columbia, Tennessee, for the appellant, State
Council of Tennessee, Junior Order of United American Mechanics.

Barton E. Kelley, Columbia, Tennessee, for the appellee, William Boyd.

Judge: LILLARD

First Paragraph:

This case involves an action to quiet title between the state chapter
of a national fraternal organization and the members of a local
chapter.  The organization's constitution provides that, upon the
dissolution of a local chapter, all acquired property becomes the
property of the state chapter.  After receiving a letter from three
officers of the local chapter expressing their intent to surrender its
charter, the state chapter sent a letter to all known members of the
local chapter calling a meeting to discuss the future of the chapter. 
At a second meeting, three members attended; two of the members
abstained until a vote of the entire membership could be taken while
the third member voted to remain dissolved.  Thereafter, the state
chapter announced that the local chapter was dissolved and ordered the
local chapter to surrender its bank account and had the door to the
lodge padlocked.  The state chapter then brought a lawsuit to quiet
title.  The defendant members disputed that their chapter had been
properly dissolved.  The trial court held that the dissolution of the
local chapter and surrender of the chapter's premises and bank account
by its officers was improper, dismissed the state chapter's petition
to quiet title and ordered the return of the surrendered funds.  From
this decision, the state chapter now appeals.  We affirm.

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

STATE OF TENNESSEE v. CORNELIUS MICHAEL HYDE

Court:TCCA

Attorneys:   

Eugene B. Dixon, Maryville, Tennessee, for the appellant, Cornelius
Michael Hyde.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan,
Assistant Attorney General; Mike Flynn, District Attorney General;
Kirk Andrews and Edward P. Bailey, Jr., Assistant District Attorneys
General, for the appellee, State of Tennessee.

Judge:  WELLES

First Paragraph:

The Defendant, Cornelius Michael Hyde, was convicted of aggravated
child abuse of a child under seven years old and appealed as of right
on numerous grounds, including the trial court's failure to instruct
the jury on the lesser-included offenses of aggravated assault and
assault.  Judge Welles held that the trial court's failure to so
charge the jury was error, but harmless under State v. Williams, 977
S.W.2d 101, 105 (Tenn. 1998).  Judge Wedemeyer concurred, finding the
error harmless beyond a reasonable doubt; Judge Tipton dissented,
finding that the State failed to carry its burden of demonstrating
that the trial court's error in not instructing the jury on the
lesser-included offenses was harmless beyond a reasonable doubt.  See
State v. Cornelius Michael Hyde, No. E2000-00042-CC-R3-CD, 2000 WL
1877490, at *11 (Tenn. Crim. App., Knoxville, Dec. 28, 2000).  Our
supreme court subsequently granted the Defendant's application to
appeal this case for the purpose of remanding it to us for
reconsideration in light of that court's opinions in State v.
Honeycutt, 54 S.W.3d 762 (Tenn. 2001) and State v. Ely, 48 S.W.3d 710
(Tenn. 2001).  We now conclude that the trial court's error in failing
to instruct the jury on the lesser-included offense of reckless
aggravated assault is reversible error, and therefore remand this case
to the trial court for a new trial.

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

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