Opinion FlashOctober 16, 2002Volume 8 — Number 182 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel MOHAMED ALI v. TENNESSEE BOARD OF PAROLES Court:TCA Attorneys: Mohamed Ali, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General; Michael E. Moore, Solicitor General; and Mark A. Hudson, Senior Counsel, for the appellee, Tennessee Board of Paroles. Judge: CAIN First Paragraph: Appellant, an inmate of the Department of Corrections, appeals the dismissal of his Petition for Certiorari in the Chancery Court of Davidson County. He was convicted in 1993 of one count of rape and one count of attempted bribery of a witness. He received sentences of twelve years and three years, respectively, to be served consecutively. He seeks mandatory parole under Tennessee Code Annotated section 40-28-117(b) and other relief. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/alim1.wpd JOHN ASBURY and DIANA ASBURY v. LAGONIA-SHERMAN, LLC and LAGONIA REALTY Court:TCA Attorneys: Kevin A. Snider, Germantown, Tennessee, for the appellants John Asbury and Diana Asbury. John B. Turner, Jr., Germantown, Tennessee, for appellees Lagonia-Sherman, LLC and Lagonia Realty. Judge: LILLARD First Paragraph: This appeal arises from the sale of real property. Prior to closing, the buyers questioned the sellers about the property lines. The sellers contacted a surveyor to mark the property corners. The buyers did not receive the survey prior to the closing, but nevertheless went ahead with the closing. After the closing, the buyers received the survey. It showed less square footage than what the buyers allege had been represented to them. The buyers filed a lawsuit against the sellers, alleging breach of contract, unjust enrichment, detrimental reliance, fraud or misrepresentation, and violation of the Tennessee Consumer Protection Act. The sellers filed a motion),ie (Ae),OEefailure to s)Yev a claim upon which relief may be granted, or, in the alternative, for summary judgment. The trial court dismissed the buyers' claim. On appeal, buyers argue that the trial court erred in dismissing their case, and that genuine issues of fact remain. We affirm, on the basis that the buyers failed to look at the publicly recorded plat on the property, referenced in the sales contract. http://www.tba.org/tba_files/TCA/asbury_opn.wpd JOHN ASBURY and DIANA ASBURY v. LAGONIA-SHERMAN, LLC and LAGONIA REALTY Court:TCA BAILEY DISSENTING http://www.tba.org/tba_files/TCA/asbury_dis.wpd BARRY DUANE BERNSTEIN v. DEBRA DARLENE BILL BERNSTEIN Court:TCA Attorneys: Sam E. Wallace, Jr., Nashville, Tennessee, for the appellant, Barry Duane Bernstein. D. Scott Parsley, Nashville, Tennessee, for the appellee, Debra Darlene Bill Bernstein. Judge: KOCH First Paragraph: This appeal involves the dissolution of a nineteen-year marriage. After the husband filed a complaint in the Circuit Court for Davidson County seeking a divorce on the grounds of irreconcilable differences and inappropriate marital conduct, the wife counterclaimed for divorce on the same grounds. Following a bench trial, the trial court declared the parties divorced, divided their meager marital estate, and ordered the husband to pay the wife $350 per month as long-term spousal support. The husband asserts on this appeal that he is unable to pay the amount of long-term spousal support ordered by the trial court. We disagree and have determined that the record supports the trial court's decision regarding spousal support. http://www.tba.org/tba_files/TCA/bernsteinbd.wpd RONNIE LYNN CARROLL v. NANCY GAY BRADEN (AGRESTA) v. JAMES PALMER Court:TCA Attorneys: Greg Alford, Dyersbug, TN, for Appellant Marianna Williams, Dyersburg, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal involves a disputed tract of land that the third-party plaintiff allegedly purchased in 1983 and received a deed for in 1987. The trial court held that plaintiff's statutes of limitation had expired and granted a motion for summary judgment in favor of the third-party defendant who executed the deed. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/carrollr.wpd VINCENT J. CUSANO, a/k/a-p/k/a VINNIE VINCENT v. STERLING/McFADDEN PARTNERSHIP, d/b/a METAL EDGE, ET AL. Court:TCA Attorneys: J. William Lincoln, III, Nashville, Tennessee, and Theodore M. Greenberg, New York, New York, for appellees, Sterling/McFadden Partnership, d/b/a Metal Edge Magazine and Sterling's Magazines, Inc. Judge: CANTRELL First Paragraph: The plaintiff filed this action for damages for breach of contract alleging that he telephoned the publisher's office of a specialty magazine to discuss the insertion of an ad extolling and advertising his talents and product, and that the ad coordinator to whom he talked agreed to insert the ad. The ad coordinator called the plaintiff a few days later and informed him that the proposed ad was not acceptable. A principal issue was whether the ad coordinator, as agent, had the apparent authority to bind the magazine. The Chancellor concluded that the agent had the requisite apparent authority because, in effect, he never told the plaintiff that he had no authority to bind the magazine, but that the plaintiff was entitled to recover only nominal damages. The judgment is reversed upon a finding that agency cannot be proved solely by statements of the agent. http://www.tba.org/tba_files/TCA/cusanov.wpd STATE OF TENNESSEE v. TAMBERLEY LORRAINE DANIELS Court:TCA Attorneys: John P. Cauley, Franklin, Tennessee, for the appellant, Tamberley Lorraine Daniels. Paul G. Summers, Attorney General and Reporter; and Elizabeth, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services. Judge: CAIN First Paragraph: The non-custodial parent of two minor girls appeals the decision of the Juvenile Court of Hickman County terminating her parental rights on the grounds of willful abandonment. We affirm the action of the trial court. http://www.tba.org/tba_files/TCA/danielstl.wpd FORREST CATE MOTOR COMPANY, INC. v. DEALER COMPUTER SERVICES, INC. Court:TCA Attorneys: Catherine M. White, Chattanooga, Tennessee, for the appellant, Forrest Cate Motor Company, Inc. Thomas O. Helton and Cameron S. Hill, Chattanooga, Tennessee, for the appellee, Dealer Computer Services, Inc. Judge: CAIN First Paragraph: Plaintiff appeals a declaratory judgment wherein the trial judge held that the mandatory arbitration provisions in the contract between the parties controlled and declared accordingly. We affirm. http://www.tba.org/tba_files/TCA/forrestcate.wpd ROBIN A. HOWELL v. CITY OF COLUMBIA Court:TCA Attorneys: Gary Howell, Columbia, Tennessee, for the appellant, Robin A. Howell. Patrick A. Flynn, Columbia, Tennessee, for the appellee, City of Columbia. Judge: COTTRELL First Paragraph: Petitioner, a police officer, filed a petition in Maury County Chancery Court pursuant to Tenn. Code Ann. S 4-5-322 seeking review of a decision of the Civil Service Board for the City of Columbia. After the Department of Narcotics and Vice, including Petitioner's position as Deputy Chief, was abolished by city ordinance, the Civil Service Board determined that the City Manager was justified in returning Petitioner to his previously held position with the City of Columbia Police Department as a patrolman at a lower rate of pay. The court dismissed the petition finding that the actions of the City did not contravene the City Charter or deny the Petitioner due process of law. We affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/howellr.wpd HENRY FRANK KERR, JR., et al. v. EARL LEMOINE Court:TCA Attorneys: Paul R. White, Nashville, Tennessee, for the appellant, Earl Lemoine. Henry Frank Kerr, Jr. and Gretchen Kathleen Kerr, Mt. Juliet, Tennessee, Pro Se. Judge: CAIN First Paragraph: Appellant judgment creditor appeals from the action of the trial court in post-judgment proceedings allowing installment payments of the underlying judgment. The record before the Court is inadequate for appellate review, and acting within our discretion, we remand the case to the trial court for further proceedings. http://www.tba.org/tba_files/TCA/kerrh.wpd ANNA LAMB v. STATE OF TENNESSEE Court:TCA Attorneys: John H. Little and Lynda Simmons, Livingston, Tennessee, and Onnie L. Winebarger, Byrdstown, Tennessee, for the appellant, Anna Lamb. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Martha A. Tarleton, Senior Counsel, for the appellee, State of Tennessee. Judge: KOCH First Paragraph: This appeal stems from a mother's allegations that her mentally impaired daughter was sexually abused while in the custody of the Alvin C. York Agricultural Institute. The mother filed a claim on her daughter's behalf with the Division of Claims seeking $300,000 in damages. The claim was transferred to the Tennessee Claims Commission where, following a hearing, a Commissioner dismissed the claim because the mother had failed to establish that her daughter had been sexually abused while she was in the State's custody. The mother asserts on this appeal that the evidence preponderates against the Commissioner's findings. We affirm the Commissioner's dismissal of the claim. http://www.tba.org/tba_files/TCA/lamba.wpd STATE OF TENNESSEE, EX REL. ROSE PARKER v. CHARLES PARKER Court:TCA Attorneys: Paul G. Summers, Attorney General & Reporter; and Kim Beals, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee ex rel. Rose Parker. Charles Parker, Nashville, Tennessee, Pro Se. Judge: CAIN First Paragraph: The State of Tennessee, having provided child support services to Rose Parker pursuant to Title IV- D of the Social Security Act, 42 USC SS 651-669, appeals the action of the trial court in retroactively reducing the child support obligations of Charles Parker by terminating his obligation to his two oldest children as of the date of their respective emancipation rather than making such modification effective only upon the filing of petitions by Mr. Parker to terminate his obligations. We are compelled by Tennessee Code Annotated section 35-6-101(a)(5)(2001) to reverse. http://www.tba.org/tba_files/TCA/parkerr.wpd STATE OF TENNESSEE v. MICHAEL E. PATE Court:TCA Attorneys: John P. Cauley, Franklin, Tennessee, for the appellant, Michael E. Pate. Paul G. Summers, Attorney General & Reporter; and Kim R. Helper, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: CAIN First Paragraph: This case originated in the Juvenile Court of Dickson County, Tennessee and was appealed to the circuit court pursuant to Tennessee Code Annotated section 37-1-159(a). Michael Pate appeals the action of the circuit court adopting the juvenile court action with slight modifications. We affirm the action of the trial court. http://www.tba.org/tba_files/TCA/pateme.wpd JUDY RODRIGUEZ v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Court:TCA Attorneys: Phillip L. Davidson, Nashville, For Appellant, Judy Rodriguez Kelli A. Hass, Rita M. Roberts-Turner, Nashville, For Appellee, Metropolitan Government of Nashville and Davidson County Judge: CRAWFORD First Paragraph: Municipal employee filed a petition for review of civil service commission order terminating her employment. The chancery court affirmed the order of the commission, finding that the record contained substantial and material evidence to support the termination. The employee has appealed. We affirm. http://www.tba.org/tba_files/TCA/rodriguezj.wpd CAROL L. SOLOMAN v. KLEBBER DUNKLIN MURREY Court:TCA Attorneys: Thomas Jay Norman, Nashville, Tennessee, for the appellant, Klebber Dunklin Murrey. D. Scott Parsley, Nashville, Tennessee, for the appellee, Carol L. Soloman. Judge: CANTRELL First Paragraph: Before their marriage, the parties signed a pre-nuptial agreement, which among other things, declared their intention to "equally divide any and all living expenses." When they divorced, the trial court enforced the agreement, and ordered the husband to reimburse the wife for her far greater contribution to such expenses during the course of the marriage. The husband argues on appeal that the living expenses provision should not have been enforced, because it is contrary to public policy. We affirm the trial court. http://www.tba.org/tba_files/TCA/solomanc.wpd JESSE E. ROGERS v. STATE OF TENNESSEE Court:TCCA Attorneys: John S. Anderson, Rogersville, Tennessee, for the appellant, Jesse E. Rogers. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Douglas Godbee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Jesse E. Rogers, entered "best interest" guilty pleas to five counts of rape of a child. He was sentenced to twenty-five years incarceration in the Tennessee Department of Correction for each offense, with the sentences to be served concurrently. The petitioner subsequently filed for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied relief and the petitioner timely appealed. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/rogersj1.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! 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