Opinion FlashJune 27, 2002Volume 8 — Number 111 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 CHARLES DALLAS CAUTHERN, et al. v. CITY OF WHITE BLUFF, TENNESSEE Court:TCA Attorneys: Kevin T. Sommers, Kingston Springs, Tennessee, for the appellants, Charles Dallas Cauthern and Carolyn Sue Cauthern. Stan Reynolds, Dickson, Tennessee, for the appellee, The City of White Bluff, Tennessee. Judge: KOCH First Paragraph: This appeal stems from two landowners' efforts to change the zoning classification of their property from residential to commercial and industrial. After the White Bluff Town Council denied their request, the landowners filed a petition for writ of common-law certiorari in the Chancery Court for Dickson County alleging that the council's action was invalid because one council member who had recused himself from voting on the proposed zoning change actively opposed their request and caused another council member to recuse himself. The trial court, sitting without a jury, denied the landowners' petition, and the landowners have appealed. Treating the petition as a complaint of declaratory judgment, we have determined that the effectiveness of the council member's recusal is a nonjusticiable political question. Accordingly, we affirm the trial court's conclusion that the landowners were not entitled to judicial relief. http://www.tba.org/tba_files/TCA/cautherncd.wpd K. MAHENDRA CHOWBAY v. BRIAN DAVIS, et al. Court:TCA Attorneys: J. Todd Faulkner, Nashville, Tennessee, for the Appellant, K. Mahendra Chowbay. C. Bennett Harrison, Jr., and Nicole R. Paulk, Nashville, Tennessee, for the Appellees, Pat Patton and Eight Track Management Company, L.L.C., d/b/a Silverado's Saloon and Dance Hall. Judge: SWINEY First Paragraph: In this premises liability case, K. Mahendra Chowbay ("Plaintiff") sued the owners of a club, Silverado's Saloon and Dance Hall ("Silverado's"), for injuries Plaintiff received during an assault by one of Silverado's patrons, Brian Davis. Plaintiff also sued Davis. Silverado's owners, Pat Patton and Eight Track Management Company, LLC, d/b/a Silverado's Saloon and Dance Hall ("Defendants"), filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss which must be treated as a motion for summary judgment because matters outside the pleadings were submitted to the Trial Court. Defendants contended in their motion that since Davis' assault of Plaintiff occurred on property neither owned nor operated by Defendants, Defendants owed no duty of care to Plaintiff to protect him from such an assault. The Trial Court granted Defendants' motion. Plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/chowbaykm.wpd JAMES E. GUNTER v. U.C.H.R.A. AND KRISTI A. POORE Court:TCA Attorneys: Michael A. Walker, Jamestown, Tennessee, for the appellant, James E. Gunter. Lane Moore, Cookeville, Tennessee, for the appellees, U.C.H.R.A. and Kristi A. Poore. Judge: COTTRELL First Paragraph: In this appeal, the appellant, Mr. Gunter, filed a claim for personal injury and property damages against a local governmental entity in general sessions court. The governmental entity orally moved to dismiss citing the Tennessee Governmental Tort Liability Act, which grants exclusive jurisdiction over these cases to the circuit court. The general sessions court denied the motion and transferred the case to circuit court, and that court dismissed the action based on the statute of limitations. Mr. Gunter now appeals the dismissal of his case by the circuit court. http://www.tba.org/tba_files/TCA/gunterj.wpd JAMES H. KELLEY, et al. v. JOHN CAGE, M.D., et al. Court:TCA Attorneys: Steven R. Walker, Memphis, Tennessee, and Daniel L. Clayton, Nashville, Tennessee, for the appellants, James H. Kelley, et al. Brian D. Cummings, Nashville, Tennessee, and Clarence James Gideon, Nashville, Tennessee, for the appellee, John Cage, M. D. and Mid-State Cardiology Associates, P. C. Judge: WHEATCRAFT First Paragraph: This appeal involves the granting of a summary judgment motion in a medical malpractice case. The issue is whether the trial court properly granted summary judgment on the basis that there was never a physician/patient relationship between the decedent, Lillie Donnette Kelley, and Dr. John Cage, a cardiologist, and an employee of Mid-State Cardiology Associates, P.C. http://www.tba.org/tba_files/TCA/kellyvcagecorr.wpd KUEHNE & NAGEL, INC. v. PRESTON, SKAHAN & SMITH INTERNATIONAL, INC. Court:TCA Attorneys: Paul J. Bruno, Nashville, Tennessee, for the appellant, Preston, Skahan & Smith International, Inc. John E. Buffaloe, Jr. and Joel A. Vallejo, Nashville, Tennessee, for the appellee, Kuehne & Nagel, Inc. Judge: KOCH First Paragraph: This appeal involves a contract dispute between a customs broker and an importer of Russian vodka. The customs broker sued the importer in the Davidson County General Sessions Court seeking to recover $4,781.16, and the importer counterclaimed alleging fraud, breach of fiduciary duty, and usury. After the general sessions court dismissed both cases, the parties appealed to the Circuit Court for Davidson County. On the day of trial, the trial court denied the importer's motion to exclude nine invoices that the customs broker had failed to produce during discovery. Thereafter, the trial court, sitting without a jury, awarded the customs broker a $4,623.16 judgment and dismissed the importer's countersuit. On this appeal, the importer asserts that the trial court erred by refusing to exclude the nine invoices and that the evidence preponderates against the judgment. We have determined that the trial court did not abuse its discretion by denying the importer's motion in limine and that the evidence supports the judgment for the customs broker. Accordingly, we affirm the judgment. http://www.tba.org/tba_files/TCA/kuehnenagel.wpd LAWRENCE COUNTY v. JERRY BREWER, et al. Court:TCA Attorneys: William R. Willis, Jr. and Alfred H. Knight, Nashville, Tennessee, for the appellant, Lawrence County. James M. Marshall, Columbia, Tennessee, for the appellee, Johnny Daniels. Judge: CAIN First Paragraph: This matter involves a dispute over payment of solid waste disposal fees, which the Lawrence County Commission attempted to charge the citizens of Lawrence County, and application of late payment penalties to these fees. Lawrence County filed complaints in order to collect overdue solid waste fees that the Commission allegedly enacted on May 25, 1999 by Resolution #11052599. The trial court determined that Resolution #11051599 did not impose any solid waste fees on the residents of Lawrence County and dismissed Plaintiff's complaints. We affirm the trial court. http://www.tba.org/tba_files/TCA/lawrencecounty.wpd JIMMY ALAN PARDUE v. THERESA DOYLE PARDUE Court:TCA Attorneys: Ivan D. Harris, Jr., Collierville, For Appellant, Jimmy Alan Pardue Andrew S. Johnston, Somerville, For Appellee, Theresa Doyle Pardue Judge: BAILEY First Paragraph: This is an appeal from the trial court's decision denying Appellant's motion to void an Irreconcilable Differences divorce decree because it was granted within ninety-days of the divorce's filing. Though the Appellant sought the voiding of the decree as alternative relief, it appears the essence of the relief sought is child support modification. Thus, the attempt to void the decree is a collateral attack on the judgment and the ninety-day requirement cannot be used in a collateral attack to void a divorce decree. The second issue is raised by the Appellee as to whether the trial court erred in modifying a child support amount previously agreed to by the parties The trial court was correct in lowering the amount of support which was substantially above the guidelines. The circumstances on which an agreed upward variation is based are essential information in order to weigh whether there are changes of circumstances justifying a modification of support. If that information is missing from the agreement, the only standard the court can properly apply for modification is the significant variance test set forth in the statute. http://www.tba.org/tba_files/TCA/parduejimmy.wpd DAVID SWETT, SR. v. GRACE Z. ALEMAN SWETT Court:TCA Attorneys: Joe P. Binkley, Jr., Nashville, Tennessee, for the appellant, Grace Zuniga Aleman Swett. Lucinda E. Smith, Nashville, Tennessee, for the appellee, David Swett, Sr. Judge: KOCH First Paragraph: This appeal involves the dissolution of a nine-year marriage. Following a bench trial in the Circuit Court for Davidson County, the trial court found both parties to be at fault but awarded the divorce to the wife. The court also granted the parties joint custody of their son and divided their property. On this appeal, the wife asserts that the trial court erred by concluding that her conduct contributed to the divorce and by refusing to give her sole custody of the parties' son. Both parties take issue with the manner in which the trial court divided their property. The wife asserts that the trial court erred by classifying the husband's interest in the real property on which his family's restaurant is located as separate property and by failing to award her a portion of the appreciation in the value of his family restaurant business. The husband takes issue with the trial court's refusal to award him certain items of household furnishings. Finally, the wife asserts that she is entitled to post-judgment interest on the judgment used to equalize the distribution of the marital estate, as well as her legal expenses incurred on appeal. We have determined that the trial court's fault determination, joint custody arrangement, and division of marital property are supported by the record. Accordingly, we affirm the judgment and deny the wife's request for appellate legal expenses. http://www.tba.org/tba_files/TCA/swettd.wpd CALVIN TANKESLY v. SGT. PUGH, et al. Court:TCA Attorneys: Calvin Tankesly, Pikeville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Hudson, Senior Counsel, Nashville, Tennessee, for the Appellees, Sgt. Pugh, Disciplinary Board Chairman, and James Bowlen, Warden, Southeastern Tennessee State Regional Correctional Facility. Judge: COTTRELL First Paragraph: Petitioner, a state inmate, filed the underlying pro se petition for writ of certiorari to challenge the result of a disciplinary proceeding against him. The trial court dismissed the suit for failure to state a claim. We affirm. http://www.tba.org/tba_files/TCA/tankesly_opn.wpd CALVIN TANKESLY v. SGT. PUGH, et al. Court:TCA KOCH DISSENTING http://www.tba.org/tba_files/TCA/tankesly_dis.wpd TRACEY L. (YANUSZ) TAYLOR v. JOHN J. YANUSZ Court:TCA Attorneys: Gary M. Williams, Hendersonville, Tennessee, for the appellant, John J. Yanusz. Curtis M. Lincoln, Hendersonville, Tennessee, for the appellee, Tracey L. (Yanusz) Taylor. Judge: KOCH First Paragraph: This appeal involves a dispute over the custody of a five-year-old boy. His parents were divorced following his mother's extramarital affair. Their marital dissolution agreement established a joint custody arrangement with the father having primary physical custody. Following an unsuccessful two-year reconciliation effort, the child's mother petitioned the Sumner County General Sessions Court for sole custody. The father insisted that the child's circumstances had not changed and that he continued to be more fit than the mother to be the child's primary custodian. The trial court, sitting without a jury, determined that the child's circumstances had changed and that the child's interests would be best served by placing him in his mother's custody. The father asserts on this appeal that the child's circumstances have not changed materially and that the evidence does not support giving sole custody to the mother. While we have determined that the child's circumstances changed following his parents' divorce, we have determined that the evidence preponderates against the trial court's conclusion that the changes are so escalating and dangerous that they required a change in the original custody arrangement. Accordingly, we vacate the order awarding the mother sole custody of the child and remand the case for further proceedings. http://www.tba.org/tba_files/TCA/taylortlv.wpd AMY WILSON, JUDITH JOHNSON, and DANIEL POWELL v. WOODLAND PRESBYTERIAN SCHOOL Court:TCA Attorneys: Saul C. Belz, Robert S. Kirk, and Quitman R. Ledyard, Memphis, Tennessee, for the appellant, Woodland Presbyterian School. Richard L. Winchester, Memphis, Tennessee, for the appellees, Amy Wilson, Judith Johnson, and Daniel Powell. Judge: LILLARD First Paragraph: This case involves the application of protective covenants in a residential subdivision. The plaintiffs are homeowners in the subdivision. The defendant school is located adjacent to the subdivision and also owns two lots in the subdivision. These two lots are near the plaintiffs' lots. All lots in the subdivision are subject to a protective covenant which limits structures to one or two family dwellings and incidental outbuildings. The school began building a playground on its lots. The plaintiff homeowners filed a lawsuit to enforce the protective covenants. After trial, the trial court ordered the removal of permanent playground equipment but allowed use of movable playground equipment on the school's lots. The school then obtained the approval of a majority of the lot owners in the subdivision of an amendment to the covenants to remove the restrictions from the two lots owned by the school. In light of this, the school filed a motion to modify the judgment. The trial court denied the motion, finding that the amendment was void because it did not apply to all lots within the subdivision. The school appealed. We affirm, finding that the homeowners are not barred from enforcing the protective covenant and that, because the amendment to the covenant was neither applicable to all of the lots subject to the covenant nor approved by nearby affected lot owners, the amendment was invalid. http://www.tba.org/tba_files/TCA/wilsona.wpd WILLIAM R. DIAZ v. STATE OF TENNESSEE Court:TCCA Attorneys: Mart S. Cizek, Clinton, Tennessee, for the appellant, William R. Diaz. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, William R. Diaz, appeals the Anderson County Criminal Court's denial of his petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. He contends that his trial attorney was ineffective for (1) failing to file a motion to suppress his statement to the police on the grounds that it was coerced and (2) failing to file a motion to suppress evidence that the police took from his garage without a search warrant. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/diazwr.wpd STATE OF TENNESSEE v. HERMAN HOLSTON Court:TCCA Attorneys: A C Wharton, Jr., Shelby County Public Defender; W. Mark Ward, Assistant Shelby County Public Defender, for the Appellant, Herman Holston. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Angele M. Gregory, Assistant Attorney General; William L. Gibbons, District Attorney General; and Katrina Earley and John Tibbetts, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Herman Holston, was convicted after a trial by jury of sale of cocaine, a class C felony, and was sentenced as a Range II offender to eight years and six months confinement in the Department of Correction. On appeal, Holston raises the following issues for our review: (1) whether the evidence was sufficient to support the verdict, and (2) whether his sentence was proper. After a review of the record, we find that Holston's issues are without merit. Accordingly, the judgment of the Shelby County Criminal Court is affirmed. http://www.tba.org/tba_files/TCCA/holstonherman.wpd STATE OF TENNESSEE v. JUDY JOHNSON and STANLEY JOHNSON Court:TCCA Attorneys: Scott G. Kirk, Jackson, Tennessee, for the appellants, Judy Johnson and Stanley Johnson. Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, Assistant Attorney General; Garry G. Brown, District Attorney General; Larry Hardister, Assistant District Attorney General; and Hal Dorsey, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The husband and wife defendants, Stanley and Judy Johnson, were convicted of eleven counts of cruelty to animals, as the result of conditions at a kennel in Gibson County where they were keeping approximately 350 dogs. Stanley Johnson was sentenced to eleven months and twenty-nine days on each count, with all sentences to be served concurrently, and, as to these sentences, to serve ninety days in the county jail with the remainder on probation. Judy Johnson was sentenced, likewise, to eleven months and twenty-nine days on each count, with all sentences to be served concurrently, but she was to serve six months before being put on probation. Both defendants were fined $1000 in each of the eleven counts. On appeal, they argue that the trial court erred in allowing testimony as to a prior similar complaint against Stanley Johnson and in denying total probation for both. Additionally, they argue that the proof is insufficient to sustain the verdicts. We affirm the judgments of conviction. http://www.tba.org/tba_files/TCCA/johnsonjudy_opn_wpd STATE OF TENNESSEE v. JUDY JOHNSON and STANLEY JOHNSON Court:TCCA WADE CONCURRING http://www.tba.org/tba_files/TCCA/johnsonjudy_con_wpd STATE OF TENNESSEE v. ERNEST LEE LITTLES Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Joseph P. Atnip, District Public Defender, Dresden, Tennessee (of counsel on appeal); and Charles Perry Roney, Union City, Tennessee (at trial), for the appellant, Ernest Lee Littles. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: An Obion County Circuit Court jury convicted the defendant, Ernest Lee Littles, of rape of a child, a Class A felony. The trial court sentenced him as a child rapist to twenty years in the Tennessee Department of Correction, with 100% of the sentence to be served. In his appeal as of right, the defendant claims only that there was insufficient evidence to support his conviction. We affirm the judgment of the trial court but remand for entry of a corrected judgment. http://www.tba.org/tba_files/TCCA/littlesernestlee.wpd STATE OF TENNESSEE v. RICKY RAY REED, JR., aka "RICCO" Court:TCCA Attorneys: Gary F. Antrican, District Public Defender, and David S. Stockton, Assistant District Public Defender, for the appellant, Ricky Ray Reed, Jr. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and James W. Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was indicted for first degree murder and convicted by the jury of second degree murder. He filed a petition for post-conviction relief, and was permitted to make a delayed motion for a new trial, which ultimately was denied by the trial court. The defendant appeals the denial, arguing that the evidence at trial was insufficient to support his conviction for second degree murder. After a review of the record, we conclude that there was sufficient evidence to convict the defendant of second degree murder and that the trial court properly denied the defendant's motion for judgment of acquittal and a new trial. http://www.tba.org/tba_files/TCCA/reedrickyray.wpd STATE OF TENNESSEE v. PATSY WEBSTER Court:TCCA Attorneys: Guy T. Wilkinson, District Public Defender, and W. Jeffery Fagan, Assistant District Public Defender, for the appellant, Patsy Webster. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Patsy Webster, appeals the Henry County Circuit Court's ordering her to serve one year of her effective two-year sentence in continuous confinement. She claims that the trial court erred in requiring her to serve a full year in jail because she was eligible as a Range I offender with only a two-year sentence for release after serving thirty percent of her sentence. The state agrees. We hold that the defendant was improperly sentenced and remand the case for resentencing. http://www.tba.org/tba_files/TCCA/websterpatsy.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! 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