Opinion FlashApril 8, 2004
Volume 10 Number 068
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
TONY BILBREY v. KENNETH O. LESTER CO., INC. CORRECTED OPINION Court:TSC - Workers Comp Panel Attorneys: John R. Lewis, Nashville, Tennessee, for Appellant, Kenneth O. Lester Co., Inc. Anthony E. Hagan, Lebanon, Tennessee, for Appellee, Tony Bilbrey. Judge: TURNBULL First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. 50-6-225(e)(3) to hear and report to the Supreme Court Findings of Fact and Conclusions of Law. The trial court found that the employer had made voluntary medical payments within one year of the filing of suit; that the statute of limitations had not expired; and that the plaintiff suffered a work related back injury. The trial court fixed plaintiff's disability at 22-1/2 percent to the body as a whole. We affirm the judgment of the trial court. CORRECTED OPINION http://www.tba.org/tba_files/TSC_WCP/bilbreyt.wpd
CATHERINE A. HOBACK v. GLENN D. HOBACK Court:TCA Attorneys: George M. Allen, Brentwood, TN, for the appellant, Glenn D. Hoback. Sandra Jones, Nashville, TN, for the appellee, Catherine D. Hoback. Judge: GRAY First Paragraph: The issues on appeal in this divorce action are: (1) Whether the trial court erred in awarding alimony in futuro; (2) Whether the trial court was in error in finding wife's IRA of Wal-mart stock was her separate property in its entirety; (3) Whether the trial court erred in failing to make a downward deviation in child support. http://www.tba.org/tba_files/TCA/hobackc.wpd
GRETTA IRION v. SUN LIGHTING, INC., ET AL. Court:TCA Attorneys: David Zager, Scott Collins, Nashville, Tennessee, for the appellant, Gretta Irion. J. Frank Thomas, Lynn T. Vo, Richard D. Moore, Nashville, Tennessee, for the appellees, Sun Lighting, Inc., and The Home Depot, Inc. Judge: COTTRELL First Paragraph: Consumer brought products liability suit under theories of negligence, strict liability in tort, and breach of implied warranty for property damage arising out of a fire caused when the consumer's son placed a pillow on top of a halogen torchiere lamp supplied by defendant Sun Lighting, Inc. and sold by defendant The Home Depot, Inc. The trial court granted summary judgment to both defendants and dismissed the lawsuit. The consumer appeals. Because we find the joint summary judgment motions were properly granted, we affirm the trial court. http://www.tba.org/tba_files/TCA/iriong.wpd
DEBORAH L. JORDAN v. WALTER B. JORDAN Court:TCA Attorneys: Ronald J. Berke, Chattanooga, Tennessee, for the appellant, Deborah L. Jordan. David Haines Rotroff, Chattanooga, Tennessee, for the appellee, Walter B. Jordan. Judge: SUSANO First Paragraph: This appeal presents a question of first impression. Deborah L. Jordan ("Wife") filed a proposed "qualified" domestic relations order ("QDRO") with the trial court clerk more than 10 years after her divorce from Walter B. Jordan ("Husband"). The trial court entered the proposed QDRO. Husband filed a motion for relief from judgment, arguing that the entry of the proposed QDRO was barred because Wife failed to act "within ten (10) years of the entry of [the] judgment contained in the Final Decree of Divorce," citing Tenn. Code Ann. S 28-3-110 (2000). The trial court granted Husband's motion and set aside the previously-entered QDRO. Wife appeals, arguing that the ten- year statute of limitations does not apply to the filing of a proposed QDRO because, according to her, such a filing is not an action to enforce a judgment. We agree with Wife's position. Accordingly, we reverse the judgment of the trial court. http://www.tba.org/tba_files/TCA/jordandl.wpd
ED NETHERLAND, ET AL. v. BILL HUNTER, ET AL. Court:TCA Attorneys: James L. Weatherly, Jr. and Joseph T. Howell, Nashville, Tennessee, for the appellants, Bill and Lawson Hunter. Philip N. Elbert and Gerald D. Neenan, Nashville, Tennessee, for the appellees, Ed and Desiree Netherland. Judge: CAIN First Paragraph: In this matter we are asked to determine which statute controls the issue of venue for a claim filed under the Tennessee Consumer Protection Act, the venue provision of that act, Tennessee Code Annotated section 47-18-109, or Tennessee's general venue provision, section 20-4-101 of the Code. The trial court determined that section 47-18-109 controls venue in this action and denied Defendants' Motion to Dismiss for Improper Venue. We affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/netherland.wpd
CAROL NEWELL d/b/a SOLOWELL v. EXIT/IN, INC., ET AL. Court:TCA Attorneys: Luther Wright, Jr., Jennifer L. Ditty, Nashville, Tennessee, for the appellant, Ned Horton. Kenneth R. Jones, Jr., Nashville, Tennessee, for the appellee, Carol Newell, d/b/a Solowell. Judge: COTTRELL First Paragraph: The trial court granted partial summary judgment to plaintiff in this suit to collect on a promissory note. Appellant does not appeal the grant of judgment, but appeals the trial court's certification of that judgment as a final order under Tenn. R. Civ. P. 54.02. We affirm the trial court. http://www.tba.org/tba_files/TCA/newellc.wpd
KRISHNALAL J. PATEL, ET AL. v. DILEEP PATEL Court:TCA Attorneys: Phillip L. Davidson, Nashville, Tennessee, for the appellants, Krishnalal Patel, Vijay Patel, Chilakammari Yeshwant, Mohammad Ghani, Sushil Bagri, Pradeep Kakkad, and Shashan Natarajan. Daniel D. Warlick, Nashville, Tennessee, for the appellee, Dileep Patel. Judge: KOCH First Paragraph: This appeal involves a dispute among the members of a general partnership. In 1997, a group of the partners sued one of the partners in the Chancery Court for Davidson County for negligence and breach of fiduciary duty. The trial court granted a judgment for the defendant partner in 2000. In 2001, the same group of partners filed a similar suit in the Circuit Court for Davidson County. The defendant partner moved to dismiss on the grounds of res judicata. The trial court converted the motion to dismiss into a motion for summary judgment and then granted judgment for the defendant partner on the ground that the 1997 chancery court judgment barred the second state court suit. The plaintiff partners have appealed. We affirm the trial court. http://www.tba.org/tba_files/TCA/patelkj.wpd
PORTLAND UTILITIES CONSTRUCTION COMPANY, LLC v. CHASE CREEK, LLC ET AL. Court:TCA Attorneys: T. Turner Snodgrass, Nashville, Tennessee, for the appellants, Chase Creek, LLC and Travelers Casualty and Surety Company of America. Joe A. Conner, Sheri A. Fox, Chattanooga, Tennessee, for the appellee, Portland Utilities Construction Company, LLC. Judge: COTTRELL First Paragraph: A utilities contractor sued a subdivision developer for payment for work it performed on the subdivision's infrastructure. The court found that the developer was obligated to honor its contract by paying for work with a value of $313,829. The court also found that the developer was entitled to an offset of $55,955 for damages resulting from defects in the contractor's performance. The developer argues on appeal that the trial court erroneously declined to grant it additional offsets. We affirm the trial court. http://www.tba.org/tba_files/TCA/portlandutil.wpd
TIFFANY REED v. CHRISTOPHER KIDD Court:TCA Attorneys: Carrie Kersh Gasaway, Clarksville, Tennessee, for the appellant, Christopher Kidd. Christine Zellar Church, Clarksville, Tennessee, for the appellee, Tiffany Reed. Judge: CAIN First Paragraph: This custody case involves two parents who have never been married and have not been involved in any prior custody determination regarding the child at issue. Father had never seen the child prior to filing this custody action and had not spoken with Mother since the child's birth in 1992. He was served with a paternity action in November 2001 and adjudicated to be the child's father. On June 4, 2002, he filed this custody action. The trial court determined that custody should remain with Mother and adopted a parenting plan offered by Mother. Father appealed. We affirm the trial court's determination. http://www.tba.org/tba_files/TCA/reedt.wpd
STATE OF TENNESSEE v. PAUL GRAHAM Court:TCCA Attorneys: Carrie W. Gasaway, Clarksville, Tennessee, for the appellant, Paul Graham. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted by a jury of second degree murder of his wife. The defendant appeals his conviction and sentence and alleges the following errors: (1) the evidence was insufficient to support the conviction; (2) the admission of hearsay testimony and failure to give a curative instruction; (3) the admission of expert opinion that the death was a result of homicidal violence when cause was undetermined; (4) cumulative errors required a new trial; and (5) improper sentencing. After review, we conclude that there is no reversible error and affirm the conviction and sentence. http://www.tba.org/tba_files/TCCA/grahamp.wpd
STATE OF TENNESSEE v. CHRIS E. HIXSON Court:TCCA Attorneys: Merrilyn Feirman, Nashville, Tennessee and Chris L. Young, Ashland City, Tennessee, for the appellant, Chris E. Hixson. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Dan Alsobrooks, District Attorney General; and Suzanne Lockert, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Chris E. Hixson, pled guilty to two counts of theft and three counts of sale of cocaine, all Class C felonies. He was sentenced to two concurrent four-year terms for the theft offenses, and to three concurrent four-year terms for the cocaine offenses, these latter terms to be served consecutively to the terms for the theft offenses, for an effective sentence of eight years. All of these sentences were ordered to be served on community corrections. The Defendant was subsequently convicted of aggravated burglary and sentenced to serve three years on community corrections, consecutive to the sentences imposed for the theft offenses. The effective sentence of eight years was thus unchanged. Subsequent to the burglary conviction, the Defendant violated the terms of his release and was ordered to serve two years day-for-day in confinement, after which he was to be released back into community corrections. It is from this order that the Defendant now appeals, arguing that the two years of continuous confinement constitutes an illegal sentence. The State concedes that the sentence is illegal. We agree. The trial court's judgment is reversed and this matter is remanded to the trial court. http://www.tba.org/tba_files/TCCA/hixsonce.wpd
CURLEY LEE HOWSE v. STATE OF TENNESSEE Court:TCCA Attorneys: Anne M. Davenport, Nashville, Tennessee, for the appellant, Curley Lee Howse. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: This is an appeal from the denial of a Motion to Re-Open Post Conviction Relief in order to obtain DNA testing of evidence gathered for the 1981 prosecution of the appellant for aggravated rape and sexual battery. Because the filing of the notice of appeal in this case was delinquent by approximately eight months, and because it does not appear to be in the interests of justice to excuse this delinquency, this appeal is DISMISSED. http://www.tba.org/tba_files/TCCA/howsecurleylee.wpd
JOHNNY L. McGOWAN, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Johnny McGowan, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; and Mark A. Hudson, Senior Counsel, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner directly appeals the dismissal of his petition of writ of habeas corpus. The judgment of the habeas court summarily dismissing the petition for writ of habeas corpus is reversed, and this case is remanded to the Circuit Court of Davidson County for appointment of counsel and an evidentiary hearing. If the habeas corpus court finds the sentence to be illegal, the court must then remand the case to the Rutherford County Criminal Court, where the convictions occurred. On remand to the original convicting court, the petitioner's guilty plea may be withdrawn if concurrent sentencing was a condition of his plea agreement. http://www.tba.org/tba_files/TCCA/mcgowanjljr.wpd
RAYMOND RUTTER v. STATE OF TENNESSEE Court:TCCA Attorneys: Raymond Rutter, Mountain City, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and J. Brad Scarbrough, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Raymond Rutter, appeals as of right from the Johnson County Criminal Court's dismissal of his petition for habeas corpus relief. In this pro se appeal, the petitioner contends that he should be granted habeas corpus relief because his judgment of conviction for criminal impersonation of a licensed professional is void. The state contends that the trial court properly dismissed the petition. We affirm the trial court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/rutterraymond.wpd
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