Opinion FlashJune 5, 2002Volume 8 — Number 99 Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
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Howard H. Vogel COLUMBIA ADVERTISING AGENCY v. RALPH ISENHOUR, et al. Court:TCA Attorneys: Paul W. Duty and John H. Lowe, Goodlettsville, Tennessee, for the appellant, Columbia Advertising Agency. Lawrence H. Hart, Nashville, Tennessee, for the appellee, Ralph Isenhour, individually and D/B/A Isenhour and Associates. Judge: WEATHERFORD First Paragraph: In this suit to collect payments for advertising services allegedly rendered to defendant pursuant to an oral agreement, the plaintiff failed to file an order setting the case for trial within the time period allowed by an agreed scheduling order. Shortly thereafter, the trial court dismissed the case for failure to prosecute. The plaintiff filed a Tennessee Rule of Civil Procedure 60 motion seeking relief from the order of dismissal on the grounds that by mistake, counsel had failed to calendar the scheduling deadlines. The trial court found that plaintiff failed to offer an adequate basis to grant relief from the order of dismissal under Rule 60 and denied the motion. For the reasons set out in this opinion, we reverse the decision of the trial court and remand this case for a trial on the merits. http://www.tba.org/tba_files/TCA/columbiaopn.wpd FLEET ONE, LLC v. JOHN COOK, et al. Court:TCA Attorneys: Melissa Blackburn, Nashville, Tennessee, for appellant, Fleet One, LLC Robert M. Burns and Stephen W. Elliott, Nashville, Tennessee, for appellees, John Cook and Bennett Hill Spring, LLC Judge: KURTZ First Paragraph: This appeal challenges the dismissal of a defendant. The circuit court granted John Cook's Tenn. R. Civ. P. 41.02 motion for involuntary dismissal and found that he did not personally guarantee the debt of Bennett Hill Spring, LLC when he signed the Credit Application as "Operations Manager." Appellant challenges the circuit court's decision to grant the motion which dismissed John Cook as an individual defendant. As discussed below, we affirm the judgment of the circuit court granting John Cook's motion for involuntary dismissal. The circuit court was correct that, from a reading of the contract as a whole, it is not apparent that John Cook personally guaranteed payment by signing the Credit Application. http://www.tba.org/tba_files/TCA/fleetone.wpd DAVID FROUNFELKER v. IDENTITY GROUP, INC. Court:TCA Attorneys: Kenneth Douthat, Nancy A. Vincent, and W. Edward Ramage, Nashville, Tennessee; Carole S. Katz, Darren P. O'Neill, of counsel, Pittsburgh, Pennsylvania, for the appellant, Identity Group, Inc. Jon E. Jones and Cynthia A. Wilson, Cookeville, Tennessee, for the appellee, David Frounfelker. Judge: FARMER First Paragraph: Plaintiff agreed to sell his company to Defendant pursuant to an Asset Purchase Agreement. In addition to acquiring the assets of Plaintiff's company, Defendant agreed to hire Plaintiff for a one year term. The Asset Purchase Agreement contained an arbitration clause, and the Employment Agreement provided judicial remedies in the event of a dispute. Plaintiff sued Defendant for the breach of the Employment Agreement, asserting that Defendant terminated his employment prior to the one year term. Plaintiff determined his hiring date from the Asset Purchase Agreement. Defendant filed a motion to compel arbitration, which the trial court denied. Defendant appeals the trial courts ruling. We affirm. http://www.tba.org/tba_files/TCA/frounfelkerdavid.wpd JACK HUTTER v. H. ALLEN BRAY, ROBERT M. COHEN, GEOFFREY D. KRESSIN, R.D. HASH, R. FRANKLIN NORTON, WARREN P. LUHN, GARY G. SPANGLER, and NORTON & LUHN, P.C. Court:TCA Attorneys: Jack Hutter, Maryville, Tennessee, pro se. R. Franklin Norton and R. David Benner, Knoxville, Tennessee, for Appellees, H. Allen Bray, Robert M. Cohen, Geoffrey D. Kressin, R.D. Hash, R. Franklin Norton, Warren P. Luhn, Gary G. Spangler, and Norton and Luhn, P.C. Judge: FRANKS First Paragraph: In plaintiff's action for conspiracy, fraud and malicious harassment, the Trial Court dismissed the action for failure to state a claim for which relief could be granted. We affirm. http://www.tba.org/tba_files/TCA/hutterj.wpd BAMBI KENNEDY, d/b/a KENNEDY MARKETING SERVICES v. TITAN SPECIALIZED SERVICES, INC. Court:TCA Attorneys: G. Kline Preston, IV., Nashville, Tennessee, for Appellant. Brad Hornsby, Murfreesboro, Tennessee, for Appellee. Judge: FRANKS First Paragraph: On appeal from Sessions Court, the Chancellor allowed a set-off on the indebtedness. Plaintiff appeals, contending defendant filed no pleading which would entitle him to a set-off. We affirm. http://www.tba.org/tba_files/TCA/kennedyb.wpd NASHVILLE SASH & DOOR, INC. v. TRISTAR BUILDERS, INC., et al. Court:TCA Attorneys: Melissa Blackburn, Nashville, Tennessee, for the appellant, Nashville Sash and Door Co. Bob Lynch, Jr., Nashville, Tennessee, for the appellee, Richard L. Cameron. Judge: STEWART First Paragraph: In this case Nashville Sash and Door, Inc. sued Tristar Builders, Inc. and its two stockholders, Robert J. Ivy and Richard L. Cammeron on a debt arising from credit extended under an application of credit. At the conclusion of the plaintiff's proof the trial judge granted the defendants motion under Rule 41 of the Tennessee Rules of Civil Procedure and dismissed the complaint. Nashville Sash and Door, Inc. has appealed that decision. We affirm the Trial Court. http://www.tba.org/tba_files/TCA/nashvillesash.wpd TANYA PLATTENBURG v. TABITHA TALLEY, GAIL TALLEY, DAVID BASHAM, and WILLARD BASHAM, ROGERS GROUP, INC., and JOHN DOE, and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Court:TCA Attorneys: Robert T. Carter, Tullahoma, Tennessee, for Appellant, Tanya Plattenburg. L. Marshall Albritton and Joel P. Surber, Nashville, Tennessee, for Appellees, Tabitha Talley and Gail Talley. Harry Weill, Chattanooga, Tennessee, for Appellees, David Basham and Willard Basham. Julie-Karel Elkin, Nashville, Tennessee, for Appellee, The Rogers Group, Inc. Gerald L. Ewell, Jr., Tullahoma, Tennessee, for Appellee, State Farm Mutual Automobile Insurance Company. Judge: FRANKS First Paragraph: The Trial Court dismissed plaintiff's action, pursuant to Tenn. R. Civ. P. 41.02, for failure to pay costs which had been assessed as a sanction. On appeal, we affirm, as modified. http://www.tba.org/tba_files/TCA/plattenburgt.wpd TONY WILLIS, et al. v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Edward Tharpe, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Terri L. Bernal, Assistant Attorney General; for the appellee, Tennessee Department of Correction. Judge: COTTRELL First Paragraph: Petitioners, state inmates, filed the underlying pro se petition for common-law writ of certiorari to seek review of disciplinary sanctions imposed on them by the Tennessee Department of Correction for attempted escape. Petitioners alleged that their due process rights were violated because: (1) they were not given sufficient notice of the hearing; (2) their convictions were based upon information from a confidential informant; (3) they were denied the right to call witnesses, and; (4) they were denied access to exculpatory evidence. The trial court dismissed the suit for failure to state a claim. Because the petition failed to allege sanctions that imposed atypical and significant hardships beyond those ordinarily incident to prison life, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/willist_opn.wpd TONY WILLIS, et al. v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA KOCH DISSENTING http://www.tba.org/tba_files/TCA/willist_dis.wpd STATE OF TENNESSEE v. MARK LEE DALE Court:TCCA Attorneys: John H. Richardson, Jr. (on appeal) and Raymond W. Fraley, Jr. (at trial), Fayetteville, Tennessee, for the appellant, Mark Lee Dale. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; William Michael McCown, District Attorney General; and Ann L. Filer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted by a Lincoln County Circuit Court Jury of robbery, a Class C felony, and was sentenced by the trial court as a Range II, multiple offender to nine years, three months in the Department of Correction. The sole issue he raises on appeal is whether the trial court erred in finding that the State's peremptory challenge of the only African-American member of the venire was exercised on race-neutral grounds. Based on our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/dalemarkl.wpd STATE OF TENNESSEE v. HASKEL D. FINCH Court:TCCA Attorneys: William B. Lockert, III, District Public Defender, and Richard D. Taylor, Jr., Assistant District Public Defender, for the appellant, Haskel D. Finch. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Lisa C. Donegan, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: A Humphreys County Circuit Court jury convicted the defendant of rape, and the trial court sentenced him as a violent offender to ten years, with 100% of his sentence to be served. On appeal, the defendant argues that the trial court erred in finding sufficient evidence to convict him of rape, in admitting a statement he made to the police, in admitting evidence of the victim's mental capacity, in denying his Tennessee Rule of Evidence 412 motion, and in failing to instruct the jury as to assault. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/finchhaskeld.wpd JAMES ROGER FORD v. STATE OF TENNESSEE Court:TCCA Attorneys: Michael R. Giaimo, Livingston, Tennessee, for the appellant, James Roger Ford. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William Edward Gibson, District Attorney General; Anthony J. Craighead, Assistant District Attorney General; and Owen G. Burnett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, James Roger Ford, pled guilty on October 28, 1998, to the following offenses: casual exchange of marijuana, a Class A misdemeanor; sale of diazepam, a Class D felony; sale of more than 1/2 ounce of marijuana, a Class E felony; and two counts of public intoxication, a Class C misdemeanor. In addition, Petitioner entered a "best interest" plea of guilty to the charge of introducing contraband in jail, a Class C felony. The trial court sentenced Petitioner as a Range I offender to eleven months and twenty-nine days for the offense of casual exchange of marijuana, thirty days each for the two counts of public intoxication, two years for the sale of more than 1/2 ounce of marijuana, and four years each for the sale of diazepam and introducing contraband in jail, with all sentences to be served concurrently on a Community Corrections program. On November 24, 1998, a violation of Community Corrections warrant was filed. Petitioner pled guilty to violating the terms of his community-based sentence and agreed to serve the remainder of his four-year sentence in incarceration. On October 27, 1999, he filed a pro se petition for post-conviction relief, which the trial court denied after a hearing on the merits. Petitioner appeals the court's denial of post-conviction relief, alleging that he received ineffective assistance of counsel prior to and during the plea proceedings and that his guilty plea was not knowingly or voluntarily entered. Following a thorough review of the record, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/fordjamesr.wpd STATE OF TENNESSEE v. THOMAS GATEWOOD Court:TCCA Attorneys: Ross E. Alderman, District Public Defender; C. Dawn Deaner, Assistant Public Defender (on appeal); Jerrilyn R. Manning, Assistant Public Defender (at trial); and Jeffery L. Warfield, Assistant Public Defender (at trial), for the appellant, Thomas Gatewood. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Lisa A. Naylor, Assistant District Attorney General; and Jason W. Lawless, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Thomas Gatewood, was indicted for first degree murder but convicted of second degree murder, for which he was sentenced as a violent offender to twenty-three years imprisonment. In his appeal, the defendant argues that the trial court erred in not granting a continuance because of a missing witness, in not instructing as to the lesser-included offenses of reckless homicide and criminally negligent homicide and that his sentence was excessive. Although issues one and three are without merit, we agree that the jury should have been instructed as to the lesser offenses of reckless homicide and criminally negligent homicide. Accordingly, we reverse the conviction and remand for a new trial. http://www.tba.org/tba_files/TCCA/gatewoodthomas.wpd STATE OF TENNESSEE v. GARY K. HADDON Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; C. Michael Layne, District Attorney General; and Douglas Aaron, Assistant District Attorney General, for the appellant, State of Tennessee. Robert S. Peters, Winchester, Tennessee, for the appellee, Gary K. Haddon. Judge: WOODALL First Paragraph: After the Coffee County Grand Jury indicted the Defendant, Gary K. Haddon, for driving under the influence, second offense, Defendant filed a motion to dismiss the indictment for prosecution as a second offender. As the ground for dismissal, Defendant argued that the State failed to provide him with a copy of the department of safety printout at the arraignment, as required by Tenn. Code Ann. S 55-10-403(g)(3)(ii). The Circuit Court of Coffee County granted Defendant's motion. The State appeals. After a review of the record, we reverse the judgment of the trial court. http://www.tba.org/tba_files/TCCA/haddongaryk.wpd ERIC ROSS SEWELL v. STATE OF TENNESSEE Court:TCCA Attorneys: S. Jason Whatley, Sr., Columbia, Tennessee, for the appellant, Eric Ross Sewell. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Lawrence R. Whitley, District Attorney General; and Sallie W. Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the denial of his petition for post-conviction relief. The petitioner pled guilty to two counts of aggravated sexual battery, Class B felonies, and one count of attempted aggravated sexual battery, a Class C felony. Subsequently, he filed a petition for post-conviction relief, alleging ineffective assistance of counsel as its main issue. Following a hearing, the court denied relief, and the petitioner timely appealed. On appeal, the petitioner argues that the record shows that trial counsel was ineffective and that the post-conviction court showed bias in its ruling and incorrectly limited his proof at the hearing. Following our review, we affirm the denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/sewellericr.wpd STATE OF TENNESSEE v. JEFFREY DOUGLAS STRATTON Court:TCCA Attorneys: Julie A. Rice, Knoxville, Tennessee (on appeal); Raymond M. Garner, District Public Defender; and Shawn G. Graham, Assistant Public Defender (at trial), for the Appellant, Jeffrey Douglas Stratton. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Tammy Harrington, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Jeffrey Douglas Stratton, pleaded guilty to seven counts of theft involving checks that he had forged. Pursuant to a plea agreement with the state, the defendant was sentenced to four years on each count, and two of the sentences were to be served consecutively for an effective sentence of eight years. The trial court was to determine the manner of service of the sentences. After a sentencing hearing, the trial court imposed fully incarcerative sentences to be served in the Department of Correction. The defendant appeals this sentencing determination. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/strattonjeffreyd.wpd Eligibility of non-teaching school employee to run for and serve on local school board Date: May 23, 2002 Opinion Number: 02-070 http://www.tba.org/tba_files/AG/2002/OP70.pdf Application of Uniform Administrative Procedures Act to Revenue Hearings Conducted Pursuant to Tenn. Code Ann. 67-1-105 Date: May 29, 2002 Opinion Number: 02-071 http://www.tba.org/tba_files/AG/2002/OP71.pdf Clerks of Court - Costs - Collection - Successful Party - Payment Date: June 3, 2002 Opinion Number: 02-072 http://www.tba.org/tba_files/AG/2002/OP72.pdf PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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