Opinion FlashSeptember 12, 2002
Volume 8 Number 159
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.This Issue (IN THIS ORDER):
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Howard H. Vogel
VICKIE BARA, et al. v. CLARKSVILLE MEMORIAL HEALTH SYSTEMS, INC., d/b/a CLARKSVILLE MEMORIAL HOSPITAL, ET AL. Court:TCA Attorneys: Joe Bednarz, Sr. and Joe Bednarz, Jr., Nashville, Tennessee, for the appellants, Vickie Bara and John Paul Bara. Wayne L. Robbins, Jr., Nashville, Tennessee, for the defendant, David S. Miller, M.D. Robert L. Trentham and G. Brian Jackson, Nashville, Tennessee, for the appellee, Clarksville Memorial Hospital. Judge: CAIN First Paragraph: Parents of deceased child sued Clarksville Memorial Hospital and Dr. David Miller for the death of their child. They alleged this death occurred due to Defendants' mis-diagnosis of their daughter's injuries following an automobile accident and subsequent incorrect and negligent treatment. The jury returned a verdict for Defendants. Plaintiffs now appeal alleging two points of error in the jury instructions; (1) that it was error to charge the jury that Plaintiffs must prove causation to a reasonable degree of medical certainty and; (2) that it was error to charge the jury that they must find the child's death to be reasonably foreseeable. We find that the jury instructions on reasonable degree of medical certainty and foreseeability were incorrect statements of the law, confusing to the jury, and more probably than not, affected the jury's verdict. We thus reverse the judgment and remand for a new trial as to Defendant Miller. We affirm the judgment in favor of Clarksville Memorial Hospital. http://www.tba.org/tba_files/TCA/barav.wpd
BEDFORD COUNTY, TENNESSEE v. JOSEPH J. BIALIK Court:TCA Attorneys: Joseph James Bialik, Chapel Hill, Tennessee, Pro Se. Ginger Bobo Shofner, John T. Bobo, Shelbyville, Tennessee, for the appellee Bedford County, Tennessee. Judge: COTTRELL First Paragraph: A landowner appeals from a decision finding him in violation of county zoning laws, ordering him to take corrective measures, and enjoining future activities of the same type. Because the record before us does not include a transcript of the trial or a statement of the evidence, we must presume the evidence supported the trial court's findings and, consequently, affirm. http://www.tba.org/tba_files/TCA/bedfordco.wpd
JOE BURTON v. WARREN FARMERS COOPERATIVE Court:TCA Attorneys: Chantal M. Eldridge, Cookeville, Tennessee, for the appellant, Joe Burton. Steven A. Dix, Murfreesboro, Tennessee, for the appellee, Warren Farmers Cooperative. Judge: KOCH First Paragraph: This appeal involves a dispute between a farmer and a co-op over a disappointing soybean crop. The farmer filed suit against the co-op in the Circuit Court for Warren County, alleging that his crop had been damaged by the manner in which the co-op had sprayed herbicide on his fields early in the growing season. At the close of the farmer's proof, the trial court granted the co-op's motion for involuntary dismissal under Tenn. R. Civ. P. 41.02(2) after concluding that he had failed to prove his breach of contract and negligence claims. The farmer asserts on this appeal that the trial court erred by dismissing his lawsuit. We have determined that the trial court properly dismissed the farmer's complaint at the close of his proof. http://www.tba.org/tba_files/TCA/burtonj.wpd
CHARLES E CREWS, d/b/a DEXTER RIDGE SHOPPING CENTER v. MICHAEL L. CAHHAL, BOBBIE S. CAHHAL, NANCY NICHOLS, R. BRET TAYLOR, KENNETH HILL, and EVELYN LORRAINE HENDRIX Court:TCA Attorneys: Julie C. Bartholomew, Somerville, Tennessee, for the appellant, Charles E. Crews, d/b/a Dexter Ridge Shopping Center. Keith V. Moore, Memphis, Tennessee, for the appellees, Michael L. Cahhal, Bobbie S. Cahhal, Nancy Nichols, R. Bret Taylor, Kenneth Hill, and Evelyn Lorraine Hendrix. Judge: KIRBY LILLARD First Paragraph: This is a breach of contract case. The plaintiff developer leased space to a corporation for use as a restaurant. The shareholders of the corporation entered into a separate agreement with the developer to guarantee the lease. The corporation defaulted on the lease. The developer filed unlawful detainer warrants in general sessions court against both the corporation and the shareholder guarantors. Thereafter, the corporation filed for bankruptcy, thus staying the general sessions court proceedings as to the corporation. The general sessions court dismissed the entire action, including the claim against the guarantors, because the bankruptcy stay prevented the developer from recovering possession. This decision was appealed to circuit court. Meanwhile, the developer had filed a second lawsuit for breach of contract against the guarantors. The second lawsuit was consolidated with the appeal of the unlawful detainer action pending in circuit court. After a trial, the circuit court affirmed the dismissal of the unlawful detainer action and dismissed the breach of contract action based on the doctrine of former suit pending. This appeal followed. We reverse and remand, finding, inter alia, that the action in general sessions court against the guarantors was for breach of contract and, therefore, recovery of possession of the premises was not required in order to obtain an award of damages against the guarantors. http://www.tba.org/tba_files/TCA/crewsce.wpd
RENEE SHELBY GRIFFITH v. JAMES ALDEN GRIFFITH Court:TCA Attorneys: Roger A. Maness, Clarksville, Tennessee, for the Appellant, Renee Shelby Griffith. Rodger N. Bowman, Clarksville, Tennessee, for the Appellee, James Alden Griffith. Judge: SWINEY First Paragraph: Renee Shelby Griffith ("Mother") and James Alden Griffith ("Father") were divorced in 1995. Mother originally was awarded primary physical custody of the parties' two minor children. Father later sought a change of custody. The Trial Court granted Father's motion to modify custody, finding that a material change in circumstances had occurred and that a change of custody would serve the best interests of the children. Mother appeals. We affirm, in part, and vacate, in part, and remand. http://www.tba.org/tba_files/TCA/griffithr.wpd
TERRY B. HARDIN v. TERESA DIANE HARDIN Court:TCA Attorneys: Jack Davis and Luther Ernest Cantrell, Nashville, Tennessee, for Appellant. C. Ronald Blanton and Joseph Y. Longmire, Hendersonville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: In this divorce action, the Trial Court classified monthly benefits paid to husband as marital property. On appeal, husband contends payments are disability benefits. We affirm. http://www.tba.org/tba_files/TCA/hardint.wpd
TONY MAKOKA v. WENDY K. MAKOKA-MHLANGA Court:TCA Attorneys: Tony Makoka, Harare, Zimbabwe, Pro Se. Roger K. Smith, Nashville, Tennessee, for the appellee, Wendy K. Makoka-Mhlanga. Judge: CANTRELL First Paragraph: A prisoner filed a petition to enforce an agreed order that granted him visitation rights with his minor daughter. The child's mother asked the trial court to dissolve the agreed order. The court found that it was not in the best interests of the child to compel her to visit her father in prison, dissolved the agreed order, and enjoined the father from engaging in activities that amounted to harassment of the mother. We affirm the trial court. http://www.tba.org/tba_files/TCA/makokat.wpd
LOIS LYNN MILLER v. JAMES EARL MILLER (Opinion originally filed 12/28/2001; today with a correction on pages 4 and 5.) Court:TCA Attorneys: Jack Green, Brentwood, Tennessee, for the appellant, James Earl Miller. Robert L. Jackson and Larry Hayes, Jr., Nashville, Tennessee, for the appellee, Lois Lynn Miller. Judge: CAIN First Paragraph: This is the second appeal to this Court of this divorce case and the appellant disputes attorney's fees awarded for wife's attorney and the division of two marital assets. On remand from this Court, the trial court held that certain assets, including an IRA and pension benefits, were marital property and divided them. The husband appeals. We affirm the trial court's classification of the husband's IRA and Textron retirement account as marital property and its division of the marital property . We also affirm the award of attorney's fees. http://www.tba.org/tba_files/TCA/millerlcorr.wpd
DAVID G. OGILVIE, et al. v. RONALD S. LIGON, et al. Court:TCA Attorneys: E.L. Edwards III, and John D. Kitch, Nashville, Tennessee, for the appellants, David G. Ogilvie and wife Marcia E. Williams. Douglas Fisher, Nashville, Tennessee, for the appellees, Ronald S. Ligon and wife Martha P. Ligon. Judge: WEATHERFORD First Paragraph: In this boundary line dispute case, the appellee, who moved to her property in 1967, used an unopened street and a garage on the unopened street located between her land and the adjacent property, which the appellants acquired in 1987. The appellee stored items in the garage, maintained the unopened street, and made improvements to the garage over the years. Later, a dispute arose between the parties and the appellants filed suit to establish the boundary line between the two properties, their ownership of half the unopened street, the garage and certain land behind the garage. The trial court concluded that the appellee had acquired: 1) a perpetual easement to use the west half of the garage; 2) a perpetual easement by prescription for the use of the entire driveway on the unopened street; 3) fee simple title to all of the land in the unopened street west of the joint driveway; and 4) easement and fee simple title to land to the north or rear of the garage enclosed within and underneath her fence. The trial court found the appellants entitled to an easement for the use of the easterly half of the garage and an easement by prescription for the use of entire driveway located on unopened street. For the reasons set out in this opinion, we affirm, as modified, the judgment of the trial court. http://www.tba.org/tba_files/TCA/ogilviee.wpd
JAMES E. WILLIAMS v. SALVADORE VALDEZ v. TAPCO UNDERWRITERS, INC., etal. Court:TCA Attorneys: Peter B. Murphy, R.R. Ruth, Jr., Chattanooga, Tennessee, for the appellants, TAPCO Underwriters, Inc., and Certain Interested Underwriters at Lloyds, London. Bobby D. Davis, Madison, Tennessee, for the appellee, Salvadore Valdez. James B. Lewis, Nashville, Tennessee, for the appellee, James E. Williams. Judge: COTTRELL First Paragraph: In an action brought by an insured against his insurer for indemnity, the trial court entered judgment after the defendant insurer moved for involuntary dismissal under Tenn. R. Civ. P. 41.02. We vacate the judgment and remand. http://www.tba.org/tba_files/TCA/tapco.wpd
STATE OF TENNESSEE v. JOSEPH G. BATTS Court:TCCA Attorneys: Leslie Bruce, at trial and sentencing; and C. LeAnn Smith, on appeal, for the appellant, Joseph G. Batts. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Grady Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The appellant, Joseph Batts, was convicted by a jury of the offense of rape. He was sentenced to a term of twelve (12) years in the Tennessee Department of Correction. In this appeal he contends that the evidence is insufficient to sustain the conviction for rape and that his sentence is excessive. After carefully reviewing the record as presented, we are of the opinion that the evidence is legally sufficient to support the conviction. Moreover, in the absence of a transcript of the sentencing hearing we must presume the sentence is correct. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/battsjoseph.wpd
STATE OF TENNESSEE v. DAVID D. BOTTOMS Court:TCCA Attorneys: Ross E. Alderman, District Public Defender; C. Dawn Deaner, Assistant Public Defender, Nashville, Tennessee, for the Appellant, David D. Bottoms. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy D. Aslinger, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, David D. Bottoms, appeals from the Davidson County Criminal Court's order of restitution following his conviction for arson. On appeal, Bottoms argues the amount of restitution was excessive. Upon de novo review, we find that the victim did not provide sufficient evidence of his pecuniary loss for damages to the rental property. Accordingly, the amount of restitution as imposed by the trial court is modified, and the case is remanded for entry of a sentencing order in accordance with this opinion. http://www.tba.org/tba_files/TCCA/bottomsd.wpd
STATE OF TENNESSEE v. CHRISTOPHER JOHN EDDINGER Court:TCCA Attorneys: Charles Galbreath, Nashville, Tennessee, for the appellant, Christopher John Eddinger. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Pamela S. Anderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: A Metropolitan Parks and Recreation Department officer observed the defendant, who was wearing only a T-shirt and fishnet stockings and had a spiked leather strap wrapped around his testicles, as the defendant was sitting in his car, with the door open, in a Nashville public park. The defendant was given a misdemeanor citation charging him with violating Tennessee Code Annotated section 39-13-511, "[p]ublic indecency - [i]ndecent exposure." He was tried and convicted in the general sessions court, and appealed the conviction to the criminal court, where he was convicted of public indecency, a Class B misdemeanor, and ordered to pay a $500 fine. The defendant then timely appealed to this court, arguing that the evidence was insufficient, that the search of his vehicle violated his constitutional rights, that he was acquitted of public indecency in his first trial and, therefore, could not be convicted of it following the appeal, and that the testimony of the arresting officer should have been suppressed. Following our review, we affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/eddingerc.wpd
STATE OF TENNESSEE v. EDWARD BUCK FRANKLIN Court:TCCA Attorneys: David Allen Doyle, District Public Defender; and Thomas J. Smith, Assistant Public Defender, Gallatin, Tennessee, for the appellant, Edward Buck Franklin. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Edward Buck Franklin, pled guilty to two counts of attempted rape and one count of aggravated burglary. He received a sentence of three years for each conviction, with two of the sentences to be served concurrently with each other but consecutive to the sentence for the third conviction, for an effective sentence of six years. After receiving credit for time previously served in jail, his sentences were suspended and he was placed on probation. Thereafter, three probation violation warrants were filed against him. Following a hearing on the third warrant, the trial court revoked Defendant's probation and ordered that he serve his sentence in the Department of Correction. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/frankline.wpd
MORRIS RUCKER v. STATE OF TENNESSEE Court:TCCA Attorneys: Morris Rucker, Mountain City, Tennessee, Pro se. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Jon Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: On September 14, 1984, the petitioner, Morris Rucker, was convicted of three violent offenses and was sentenced to imprisonment for life plus sixty years in the Tennessee Department of Correction. On June 21, 2001, the petitioner mailed from prison a petition for post-conviction relief alleging four grounds for relief. The post-conviction court dismissed the petition as being time-barred. On appeal, the petitioner contends that the post-conviction court erred in dismissing his petition. Upon reviewing the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/ruckerm.wpd
STATE OF TENNESSEE v. KENNETH RAY WHITE Court:TCCA Attorneys: Jake Lockert, District Public Defender; Richard D. Taylor, Jr., Assistant Public Defender, Ashland City, Tennessee, for the Appellant, Kenneth Ray White. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Peter M. Coughlan, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Lisa Donegan, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Kenneth Ray White, appeals from the sentencing decision of the Humphreys County Circuit Court denying his request for probation. In this appeal, White raises the issue of whether the trial court abused its discretion by ordering a sentence of incarceration rather than the less restrictive alternative of community corrections. After review, we find no abuse of discretion. As such, the trial court's decision is affirmed. http://www.tba.org/tba_files/TCCA/whitekennethr.wpd
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