Opinion Flash

January 29, 2004
Volume 10 — Number 019

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
04 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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


KATHY GARDENHIRE, ET AL. v. REAL ESTATE INSPECTION SERVICE, INC., ET
AL.

Court:TCA

Attorneys:                          

George M. Derryberry, Chattanooga, Tennessee, for the appellants, Real
Estate Inspection Service, Inc. and Stephen Eady dba Stephen Eady
Company.

Ronald J. Berke, Chattanooga, Tennessee, for the appellees, Kathy
Gardenhire and Todd Gardenhire.

Judge: SUSANO

First Paragraph:

Todd Gardenhire and his wife, Kathy Gardenhire ("the plaintiffs"), own
a residence and lot on Signal Mountain.  In 1995, they contracted with
Real Estate Inspection Service, Inc. and Stephen Eady, doing business
as Stephen Eady Company (collectively "the defendants"), for the
construction of a sunroom addition, a swimming pool, and other work at
their residence.  Later that same year, the plaintiffs sued the
defendants alleging that the defendants had failed to complete the
work and that "much of the work" was not accomplished according to the
parties' agreement.  The defendants answered and filed a counterclaim
seeking money allegedly due them for work performed in connection with
the contract.  Following a bench trial, the court awarded the
plaintiffs $35,000 and dismissed the defendants' counterclaim.  The
defendants appeal.  We affirm the judgment in part and reverse in part
and remand for further proceedings.

http://www.tba.org/tba_files/TCA/gardenhirek.wpd

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. G.C.

Court:TCA

Attorneys:                          

John A. Shoaf, Chattanooga, Tennessee, for the appellant, G.C.

Paul G. Summers, Attorney General and Reporter, and P. Robin Dixon,
Jr., Assistant Attorney General, Nashville, Tennessee, for the
appellee, State of Tennessee Department of Children's Services.

Judge: SUSANO

First Paragraph:

The trial court terminated the parental rights of G.C. ("Mother") with
respect to her minor children,  I.A.J.C. (DOB: April 3, 1999),
M.L.K.L.II (DOB: July 31, 2000), and J.E.L. (DOB:  July 22, 2002). 
Mother appeals, arguing that the evidence preponderates against the
trial court's finding, by clear and convincing evidence, that
statutory grounds exist for termination.  We affirm.

http://www.tba.org/tba_files/TCA/gc.wpd

HITCHCOCK METAL SOURCES, INC., ET AL. v. JOHN D. MULFORD, JR., ET AL.

Court:TCA

Attorneys:                          

John A. Lucas, Knoxville, Tennessee, for the appellants, John D.
Mulford, Jr., and Mulford Enterprises, Inc.

Charles G. Taylor, III, Knoxville, Tennessee, for the appellees,
Hitchcock Metal Sources, Inc., and Diane Hitchcock.

Judge: SUSANO

First Paragraph:

Diane Hitchcock ("Mrs. Hitchcock") and Hitchcock Metal Sources, Inc.
("HMS") sued John D. Mulford, Jr. ("Mulford") and Mulford Enterprises,
Inc. ("the defendant corporation") for breach of an oral contract
between Mulford and Mrs. Hitchcock's deceased husband, James H.
Hitchcock ("Mr. Hitchcock").  Mulford and the defendant corporation
responded by filing a counterclaim against Mrs. Hitchcock and HMS,
asserting, inter alia, breach of contract.  At the conclusion of a
bench trial, the court found in favor of Mrs. Hitchcock, awarding her
damages of $87,896.74 jointly and severally against Mulford and the
defendant corporation, and an additional amount of $8,855.93 against
the defendant corporation.  The trial court dismissed the counterclaim
of Mulford and the defendant corporation, as well as the original
claim of HMS.   Mulford and the defendant corporation appeal the trial
court's dual determinations that the parties' oral agreement did not
prohibit either party from pursuing other business opportunities and
that the defendant corporation converted Mrs. Hitchcock's steel by
selling it without her knowledge or consent.  In addition, the
defendants contend that the trial court erred in failing to reform the
parties' contract and in its calculation of damages.  By way of a
separate issue, Mrs. Hitchcock asserts that the trial court abused its
discretion in failing to award her prejudgment interest.  We affirm
the trial court's judgment in toto.

http://www.tba.org/tba_files/TCA/hitchco.wpd

KENNETH E. SUTTON, and wife, JUANITA SUTTON v. LISA BAYSDEN

Court:TCA

Attorneys:                          

William Allen, Oak Ridge, Tennessee, for Appellant.

J. Polk Cooley, Rockwood, Tennessee, for Appellees.

Judge: FRANKS

First Paragraph:

In an action to enforce right to easement, the Trial Court enjoined
defendant to remove gate across easement and otherwise not interfere
with plaintiffs' use.  On appeal, we affirm.

http://www.tba.org/tba_files/TCA/suttonk.wpd

STATE OF TENNESSEE v. LARRY K. BOMBAILEY
CORRECTED OPINION

Court:TCCA

Attorneys:                          

Steve McEwen, Mountain City, Tennessee (on appeal); Stephen M.
Wallace, District Public Defender, and Terry L. Jordan, Assistant
Public Defender (at trial), for the appellant, Larry K. Bombailey.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Joseph E. Perrin, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Larry K. Bombailey, pled guilty in the Sullivan County
Criminal Court to violating a motor vehicle habitual offender order, a
Class E felony; theft of property valued at $500 or less, a Class A
misdemeanor; and public intoxication, a Class C misdemeanor.  The
defendant agreed to a sentence as a Range I offender of eleven months,
twenty-nine days for the theft; thirty days for the public
intoxication, to be served concurrently to the theft; and eighteen
months for violating a motor vehicle habitual offender order, to be
served consecutively to the theft.  The parties stipulated that the
trial court would determine the manner of service for the defendant's
conviction for violating a motor vehicle habitual offender order. 
After a sentencing hearing, the trial court denied the defendant's
request for an alternative sentence for the motor vehicle habitual
offender violation.  The defendant appeals, claiming that the trial
court erred by denying him an alternative sentence.  We affirm the
trial court's denial of an alternative sentence but remand the case
for entry of a corrected judgment for the theft conviction.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/bombaileylarryk.wpd

Jurisdiction of trial courts to order diversion without certificate of
prior convictions from TBI

Date: January 27, 2004

Opinion Number: 04-009                       

http://www.tba.org/tba_files/AG/2004/op9.pdf

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