Opinion Flash
JuLY 11, 2003
Volume 9 — Number 123
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):
| 00 |
New Opinion(s) from the Tennessee Supreme Court |
| 00 |
New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel |
| 00 |
New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court |
| 09 |
New Opinion(s) from the Tennessee Court of Appeals |
| 04 |
New Opinion(s) from the Tennessee Court of Criminal Appeals |
| 00 |
New Opinion(s) from the Tennessee Attorney General (PDF format) |
| 00 |
New Judicial Ethics Opinion(s) |
| 00 |
New Formal Ethics Opinion(s) from the Board of Professional Responsibility |
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
LAZARETH ARDOIN v. TAMMY LAVERTY
Court:TCA
Attorneys:
Sharon T. Massey, Clarksville, Tennessee, for the appellant, Lazareth
Ardoin.
Mark A. Rassas, Julia P. North, Clarksville, Tennessee, for the
appellee, Tammy Laverty.
Judge: COTTRELL
First Paragraph:
This appeal involves Lazareth Ardoin's attempt to obtain a judicial
declaration that he is the father of a child whose mother was married
to another man when the child was born. The trial court found that
the twelve (12) month statute of limitations provided in Tenn. Code
Ann. S 36-2-304(B)(2)(A) had long since run and dismissed the petition
to establish paternity and visitation as untimely. We affirm the
trial court.
http://www.tba.org/tba_files/TCA/ardoinl.wpd
SARAH CARLETON HIGH (NUCKOLLS) v. JAMES ROSCOE HIGH
Court:TCA
Attorneys:
Jeffrey L. Levy, Nashville, Tennessee, for the appellant, James Roscoe
High.
L. L. Harrell, Jr., Trenton, Tennessee, for the appellee, Sarah
Carleton High (Nuckolls).
Judge: FARMER
First Paragraph:
This case involves an appeal from the trial court's determination of
Appellant's child support and alimony arrearages, as well as the
denial of a request to modify a previous award of alimony and child
support. We affirm in part, reverse in part, and remand for further
proceedings.
http://www.tba.org/tba_files/TCA/high.wpd
PATRICK L. MCCOLLUM v. DAN HUFFSTUTTER
(CORRECTED OPINION)
Court:TCA
Attorneys:
Michael D. Noel, Nashville, For Appellant, Dan Huffstutter
Stephen C. Knight, Nashville, For Appellee, Patrick L. McCollum
Judge: CRAWFORD
First Paragraph:
This is an appeal from a Judgment on a jury verdict for Plaintiff.
Plaintiff sued Defendant on grounds of trespass, abuse of process, and
outrageous conduct arising from Defendant's attempt to serve a writ of
possession at Plaintiff's place of business. A jury found for
Plaintiff on all grounds. Defendant appeals, alleging seven grounds
for reversal: (1) The Trial Court erred in not dismissing the
complaint on the grounds of an executed Settlement Agreement and Full
Release of All Claims; (2) The Trial Court erred in failing to grant a
new trial on the grounds of newly discovered evidence; (3) The Trial
Court erred in not granting Defendant's Motion for Summary Judgment,
and in failing to grant the Defendant's Motion for Directed Verdict;
(4) The jury verdict should be set aside and the complaint dismissed
on the grounds of an oral agreement not to file civil proceedings; (5)
The Trial Court erred in failing to give the special instructions
requested by the Defendant; (6) The Trial Court erred in not granting
a new trial on the grounds of improper conduct by counsel for the
Plaintiff; (7) The verdict and remittitur were excessive and given
under the influence of passion and prejudice. We affirm.
http://www.tba.org/tba_files/TCA/mccullomp.wpd
MESSER GRIESHEIM INDUSTRIES, INC. D/B/A MG INDUSTRIES v. CRYOTECH OF
KINGSPORT, INC., et al.
Court:TCA
Attorneys:
Gregory M. Leitner, Chattanooga, Tennessee; Mark G. Arnold, St. Louis,
Missouri and Arthur G. Seymour, Jr., Knoxville, Tennessee, for the
Appellants, Messer Griesheim Industries, Inc. d/b/a MG Industries
Pamela Blass Bracher, Chattanooga, Tennessee; William Randall Wilson,
Chattanooga, Tennessee and Robert C. Divine, Chattanooga, Tennessee,
for the Appellee, Eastman Chemical Company
Judge: GODDARD
First Paragraph:
This appeal from the Knox County Circuit Court questions whether the
Trial Court erred in granting a summary judgment in favor of the
Appellee/Defendant, Eastman Chemical Company, with respect to various
claims connected with the purchase and sale of contaminated carbon
dioxide by the Appellant/Plaintiff, Messer Griesheim Industries, Inc.,
d/b/a MG Industries. We affirm in part, vacate in part and remand.
http://www.tba.org/tba_files/TCA/messer.wpd
JOE CLARK MITCHELL v. CORRECTIONS CORPORATION OF AMERICA, et al.
Court:TCA
Attorneys:
Joe Clark Mitchell, Clifton, Tennessee, Pro Se.
Tom Anderson, Jackson, Tennessee, for the appellees, Corrections
Corporation of America, Doctor R. Crants, Kevin Myers, Danny Scott,
Edwin Hampton, Daryl Crews, Arvil Chapman, Charles Grimes, Lee
Campbell, Eric Milligan, Gene Maples, Linda Rochell and LaRonda Kelly.
Paul G. Summers, Attorney General and Reporter; Stephanie R. Reevers,
for the appellees, Donal Campbell and Jim Rose.
Judge: CANTRELL
First Paragraph:
An inmate in a Tennessee prison operated by Corrections Corporation of
America (CCA), filed suit against CCA, twelve of its employees and
officers, and four officials of the Tennessee Department of Correction
(TDOC) claiming that they were responsible for the illegal
confiscation of his personal property. The trial court granted
summary judgment to the CCA defendants, and dismissed the complaint
against the TDOC defendants for failure to state a claim. We affirm
the trial court's dismissal of the TDOC defendants, but reverse the
summary judgment for CCA and those of its agents who directly
participated in the confiscation of the plaintiff's property.
http://www.tba.org/tba_files/TCA/mitchellj_opn.wpd
JOE CLARK MITCHELL v. CORRECTIONS CORPORATION OF AMERICA, et al.
Court:TCA
KOCH CONCURRING
http://www.tba.org/tba_files/TCA/mitchellj_con.wpd
SALLY ANNE NIGRO v. VINCENT JOHN NIGRO
Court:TCA
Attorneys:
Nicholas D. Hare, Nashville, Tennessee, for the appellant, Vincent
John Nigro.
Joanie L. Abernathy, Franklin, Tennessee, for the appellee, Sally Anne
Nigro.
Judge: CANTRELL
First Paragraph:
In this divorce case the husband appeals the grant of the divorce to
the wife, the division of the marital property, the award of alimony
to the wife, the trial court's failure to make the wife pay child
support, and its failure to allow the husband to relocate out of the
state with the son. For her part, the wife seeks a larger portion of
the husband's retirement pay and the proceeds of the marital home. We
affirm.
http://www.tba.org/tba_files/TCA/nigrosa.wpd
JENNIFER SKERRETT v. THE ASSOCIATION FOR GUIDANCE, AID, PLACEMENT AND
EMPATHY, INC.
Court:TCA
Attorneys:
Clark Lee Shaw, Nashville, Tennessee, for the appellant, Jennifer
Skerrett.
Jade A. Rogers, Gallatin, Tennessee, for the appellee, The Association
for Guidance, Aid, Placement, and Empathy, Inc.
Judge: KOCH
First Paragraph:
This appeal involves a paternal grandmother's efforts to obtain
permanent custody of her grandson. After the child's mother
surrendered him to a licensed child-placing agency, the grandmother
intervened in the proceeding commenced in the Davidson County Juvenile
Court to terminate her son's parental rights. Following a bench
trial, the trial court terminated the father's parental rights and
denied the grandmother's request for custody. While the grandmother
does not contest the termination of her son's parental rights, she
asserts on this appeal that the juvenile court erred by awarding
custody of the child to the child-placing agency rather than to her.
We have determined that, under the facts of this case, the grandmother
lacked standing to intervene in the proceeding to terminate her son's
parental rights. Therefore, we affirm the dismissal of her custody
petition.
http://www.tba.org/tba_files/TCA/skerrettj.wpd
SQUEEKY CLEAN LAUNDRIES, INC. v. DAVID E. HARVEY, et al.
Court:TCA
Attorneys:
Jeffrey Greene and Gregory Oakley, Nashville, Tennessee, for the
appellant, Squeeky Clean Laundries, Inc.
Thomas F. Mink, II, Nashville, Tennessee, for the appellees, David E.
Harvey, individually, Campus Concepts, Inc., formerly d/b/a Harvey
Washbangers.
Judge: JOHNSON
First Paragraph:
This appeal arose after the trial court dismissed Squeeky Clean
Laundries, Inc.'s action against David E. Harvey, et al. for failure
to prosecute. Because there was no proof of a willful violation of a
court order, we find that the trial court abused its discretion. We
reverse the trial court's decision and remand.
http://www.tba.org/tba_files/TCA/squeekycleanlaundries.wpd
NARVIN TUNSTALL, SR., et al. v. MEMPHIS PUBLISHING COMPANY, et al.
Court:TCA
Attorneys:
Carl Wyatt, David Riley, Memphis, TN, for Appellants
William M. Larsha, Jr., Memphis, TN, for Appellee
Judge: HIGHERS
First Paragraph:
This appeal arises from a personal injury action. One of the
defendants filed a motion for summary judgment, which motion was
granted by the trial court. This appeal ensued. For the following
reasons, we reverse.
http://www.tba.org/tba_files/TCA/tunstal.wpd
JAMES C. BREER v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
James Cleveland Breer, pro se, Henning, Tennessee.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; John H. Bledsoe, Assistant Attorney General; G.
Robert Radford, District Attorney General; and Steven L. Garrett,
Assistant District Attorney General, for the Appellee, State of
Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, James C. Breer, appeals the summary dismissal of his
pro se petition for post- conviction relief. The Henry County Circuit
Court dismissed Breer's petition upon the ground that it failed to
state a colorable claim. Tenn. Code Ann. S 40-30-206(f) (1997).
After review, we conclude that a colorable claim is presented and the
post-conviction court erred in dismissing Breer's petition without
conducting an evidentiary hearing and without appointing counsel.
Accordingly, we remand for proceedings consistent with this opinion.
http://www.tba.org/tba_files/TCCA/breer.wpd
STATE OF TENNESSEE v. THOMAS A. CARTER
Court:TCCA
Attorneys:
Julie A. Rice, Knoxville, Tennessee (on appeal); and Charles Herman,
Jacksboro, Tennessee (at trial), for the appellant, Thomas A. Carter.
Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; William Paul Phillips, District
Attorney General; and Michael Ripley, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
A Campbell County Jury convicted the Defendant of theft of property
valued over $10,000, evading arrest, reckless endangerment with a
deadly weapon, and simple possession of marijuana. The trial court
sentenced the Defendant to an effective sentence of eight years in the
Tennessee Department of Correction. The Defendant now appeals,
alleging (1) that insufficient evidence identifying the Defendant as
the perpetrator of the felony offenses was presented at trial, and (2)
that the trial court erred in its sentencing determinations. Finding
no reversible error, we affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/carterta.wpd
STATE OF TENNESSEE v. FELIX BARTOLO JOSE
Court:TCCA
Attorneys:
Guy T. Wilkinson, District Public Defender; W. Jeffery Fagan,
Assistant District Public Defender, Camden, Tennessee, for the
Appellant, Felix Bartolo Jose.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kathy D. Aslinger, Assistant Attorney General; G.
Robert Radford, District Attorney General; and Steven L. Garrett,
Assistant District Attorney General, for the Appellee, State of
Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Felix Bartolo Jose, was convicted of one count of
aggravated sexual battery, a class B felony, following a jury trial.
The trial court sentenced Jose to an eight-year sentence in the
Department of Correction. On appeal, Jose raises the single issue of
whether the evidence was sufficient to support the verdict. After
review of the record, we affirm the conviction.
http://www.tba.org/tba_files/TCCA/josef.wpd
WILLIAM KIRK RILEY v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant,
William Kirk Riley.
Paul G. Summers, Attorney General & Reporter, and Thomas E. Williams,
III, Assistant Attorney General, for the appellee, State of Tennessee.
Judge: WADE
First Paragraph:
The petitioner, William Kirk Riley, appeals the trial court's summary
dismissal of his petition for post-conviction relief. The issue
presented for review is whether the petition was properly dismissed
without any opportunity to amend, without the appointment of counsel,
and without an evidentiary hearing. The judgment is reversed and the
cause is remanded for an evidentiary hearing.
http://www.tba.org/tba_files/TCCA/rileywk.wpd
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