Opinion FlashJanuary 07, 2004
Volume 10 Number 004
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
ARTHUR CREECH, ET AL. v. ROBERT R. ADDINGTON, ET AL. Court:TCA Attorneys: David H. Parton, Gatlinburg, Tennessee, for the Appellants, Arthur Creech and wife, Glenda Creech; Claude Hatfield and wife, Deborah Hatfield; Wayne Martin and wife, Alice Martin; Brent Chitwood and Marvin B. Chitwood, Jr., d/b/a Triad Partners; Darlene Reinier; Vicki Jacobs; Joann L. (Maddy) Wolfe; Laurel Group, Inc.; and Golden Girls, Inc. Rick L. Powers and Dan D. Rhea, Knoxville, Tennessee, for the Appellees, D.C. Parker and Richard B. Flowers. Judge: SWINEY First Paragraph: The plaintiffs leased land in Mississippi from D.C. Parker and Richard B. Flowers ("Defendants") for the purpose of building motels on the land. Plaintiffs claim they were told by Defendants' agent that financing was in place to build immediately and that this representation induced them to enter into the leases. Financing never materialized and the motels never were built. Plaintiffs sued Defendants, the parties expected to provide financing, and others. Defendants filed a motion for summary judgment, which the Trial Court granted. Plaintiffs appeal. We vacate and remand. http://www.tba.org/tba_files/TCA/creecha.wpd
CHER LYNN HOGUE v. JOSEPH RANDOLPH HOGUE, JR. Court:TCA Attorneys: Robert J. Turner, Nashville, Tennessee, for the appellant, Joseph Randolph Hogue. Rose Palermo, Nashville, Tennessee, for the appellee, Cher Lynn Hogue. Judge: CLEMENT First Paragraph: Chancellor found father of minor child, who told child he is gay, in contempt for violating restraining order which prohibited father "from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle." Father appeals, asserting the restraining order was overbroad and/or vague, not issued pursuant to Tenn. R. Civ. P. 65.03, and had expired prior to the alleged offense. While we find the restraining order was issued properly and not overly broad, we find the father's act of telling child he is gay did not violate the restraining order as written. http://www.tba.org/tba_files/TCA/hoguecher.wpd
TENNESSEE INDUSTRIAL MACHINERY COMPANY, INC. v. ACCURIDE CORPORATION Court:TCA Attorneys: Bradley A. MacLean, James B. Johnson, Nashville, TN, for Appellant James T. DuBois, D. Scott Porch, IV, Columbia, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal involves the lower court's award of a garnishment judgment against Accuride Corporation, as well as its subsequent denial of Accuride's Tenn. R. Civ. P. 59.04 motion to alter or amend the judgment. For the following reasons, we reverse the judgment of the lower court and remand for further proceedings. http://www.tba.org/tba_files/TCA/tennesseeindumc.wpd
JAMES L. WAGNER, M.D. v. ROBERT FLEMING, JR., ET AL. Court:TCA Attorneys: Douglas M. Cox, Chattanooga, for the appellants, Robert Fleming, Jr. and Charles Schenck. William G. Colvin and Everett L. Hixson, Jr., Chattanooga, for the appellee, James. L. Wagner, M.D. Judge: SUSANO First Paragraph: James L. Wagner, M.D. ("the plaintiff") scheduled a public auction to sell his Bledsoe County property. The plaintiff rejected the high bids received at the auction, believing them to be too low. He then sued Robert Fleming, Jr. and Charles Schenck ("the defendants"), alleging that their activities depressed the bids at the auction. He sued the defendants under the Tennessee Consumer Protection Act, Tenn. Code Ann. S 47-18-101, et seq. ("the Act"), and under the common law tort theories of injurious falsehood and defamation. The jury returned a verdict in favor of the plaintiff, awarding him $20,000 in damages. The trial court also awarded attorney's fees to the plaintiff under the Act. We reverse and remand. http://www.tba.org/tba_files/TCA/wagnerjl.wpd
JAMES L. WEST, ET AL. v. FRANK LUNA Court:TCA Attorneys: Brad W. Hornsby, Aaron S. Guin, Murfreesboro, Tennessee, for the appellant, Frank Luna. R. Whitney Stevens, Jr., Fayetteville, Tennessee, for the appellees, James L. West and wife, Nancy West; W. Thomas Norman and wife, Kathryn Norman; Paul Johnson and wife, Elizabeth Johnson; Margaret C. Jennings; David R. McCauley and wife, Rachel McCauley; Hubert C. Jennings and wife, Syble Jennings; Delbert McGee; Richard McGee and wife, Jean McGee; Roger J. Jones and wife, Wanda M. Jones; Paul D. Sain and wife, Cara Sain; Carl Kinkle; Ernest L. Jennings and wife, Sharon Jennings; Ray Barhorst and wife, Fay Barhorst. Judge: CAIN First Paragraph: This appeal is the second in a 24 year long dispute over a proposed raceway in Lincoln County. After hearing additional proof as this Court required in West v. Luna, No. 01A01-9707-CH-00281, 1998 WL 467106 (Tenn.Ct.App.1998), the trial court entered a new injunction prohibiting the defendant Luna from operating a race track on Old Boonshill Road in Lincoln County. In this appeal, Mr. Luna challenges the trial court's injunction as noncompliant with our decision in the first appeal, and in imposing a noise limitation effectively making the race track a nuisance per se. We affirm the trial court. http://www.tba.org/tba_files/TCA/westJames.wpd
TIMOTHY BICKERS, THOMAS CARTER, AND GREGORY HEDGES v. STATE OF TENNESSEE Court:TCCA Attorneys: Timothy Bickers, Thomas Carter, and Gregory Hedges, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; and C. Berkeley Bell, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioners, Timothy Bickers, Thomas Carter, and Gregory Hedges, appeal the post-conviction court's dismissal of their joint pro se petition for post-conviction relief. On appeal, the petitioners contend: (1) due process mandates the statute of limitations be tolled; and (2) the post-conviction court erred in denying their motion for recusal. We affirm the post-conviction court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/bickerstimothy.wpd
STATE OF TENNESSEE v. GERALD L. "PETE" SHIRLEY Court:TCCA Attorneys: Julie A. Rice, Knoxville, Tennessee, for the appellant, Gerald L. Shirley. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H. Findley, Assistant Attorney General; William Paul Phillips, District Attorney General; John W. Galloway, Jr., and Lori Ann Phillips-Jones, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Scott County jury convicted the Defendant, Gerald L. "Pete" Shirley, of especially aggravated kidnapping, one count of aggravated sexual battery, five counts of aggravated rape, one count of aggravated assault as a lesser-included offense of attempted second degree murder, and another count of aggravated assault. The trial court imposed an aggregate sentence of sixty years in prison. On appeal, the Defendant contends the following: (1) the trial court erred in permitting the jury to take the "bill of particulars" into the jury room during deliberations; (2) the Defendant's convictions for aggravated rape by digital penetration and aggravated rape by oral sex violate the principles of double jeopardy and duplicity of offenses; (3) the trial court erred in failing to dismiss or merge the especially aggravated kidnapping conviction into one of the aggravated rape convictions; (4) the trial court erred in refusing to permit the jury to review a copy of the statement that the victim gave to a police officer; (5) the trial court erred in failing to instruct on the lesser-included offense of false imprisonment; (6) insufficient evidence exists to support the convictions; and (7) the trial court erred in sentencing the Defendant to an effective sixty-year sentence. After thoroughly reviewing the record, we conclude that the trial court committed plain error by instructing the jury that aggravated assault was a lesser included-offense of attempted second degree murder. Accordingly, we reverse the Defendant's conviction of aggravated assault in count eleven of the indictment and modify his sentence to an aggregate fifty years in prison. We affirm the Defendant's remaining convictions. http://www.tba.org/tba_files/TCCA/shirleygl.wpd
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