Opinion FlashJanuary 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.
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Howard H. Vogel
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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