Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.
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DOUGLAS AMES and wife, SIDNEY STROUD AMES, vs. PHILLIPS BUILDERS, INC. Court:TCA Attorneys: For the Plaintiffs/Appellants: For the Defendant/Appellee: D. Russell Thomas Todd E. Panther Sonya W. Henderson Nashville, Tennessee Murfreesboro, Tennessee Judge: LILLARD First Paragraph: This is a negligence case, involving the construction and repair of a residential building. The plaintiff owner of a condominium alleged that the builder's negligence resulted in the presence of a harmful microorganism in the building. The trial court granted summary judgment in favor of the builder. We affirm. URL:http://www.tba.org/tba_files/TCA/amesdoug_opn.WP6 WALTER J. BIDDLE, SR. vs. NORFOLK SOUTHERN RAILWAY COMPANY Court:TCA Attorneys: For the Plaintiff/Appellee: For the Defendant/Appellant: Patrick S. O'Brien Everett B. Gibson C. Marshall Friedman Ralph T. Gibson St. Louis, Missouri Memphis, Tennessee Eugene A. Laurenzi Memphis, Tennessee Judge: LILLARD First Paragraph: This case involves a claim of negligence under the Federal Employers' Liability Act. The plaintiff railroad employee suffered foot and ankle injuries from walking on oversized ballast over an extended period of time. The jury found the railroad fifty percent negligent and the employee fifty percent negligent. In response to a post-trial motion, the trial court struck the jury's finding that the employee was negligent. We affirm. URL:http://www.tba.org/tba_files/TCA/biddlewj_opn.WP6 EDWIN HAROLD BURNETTand wife, CAROL HOFFMAN BURNETT, vs. CHARLES HAMBY Court:TCA Attorneys: For the Plaintiffs/Appellees: For the Defendant/Appellant: Darrell L. Scarlett Larry K. Tolbert Murfreesboro, Tennessee Murfreesboro, Tennessee C. Tracey Parks Gallatin, Tennessee Judge: LILLARD First Paragraph: This case involves a restrictive covenant in a subdivision. The Appellant sought to construct a "driveway" across a residential subdivision lot to provide ingress and egress to property located outside the subdivision. The trial court found that the proposed driveway would violate a restrictive covenant forbidding the use of any subdivision lot for any purpose not residential, and permanently enjoined construction of the driveway. We affirm. URL:http://www.tba.org/tba_files/TCA/burneteh_opn.WP6 JEANETTE FRAZIER vs. STONEY KYLE GEORGE and, SHERMAN A. GEORGE Court:TCA Attorneys: Doyle E. Richardson, ROGERS, RICHARDSON & DUNCAN, Manchester, Tennessee Attorney for Plaintiff/Appellant. Barbara J. Perutelli, SCHULMAN, LeROY & BENNETT, P.C., Nashville, Tennessee Attorney for Defendants/Appellees. Judge:FARMER First Paragraph: The plaintiff, Jeanette Frazier, sued the defendants, Stoney Kyle George and Sherman A. George, for injuries and damages sustained as a result of an automobile accident on November 16, 1994. The complaint alleges that the plaintiff was traveling north on U.S. Hwy. 41 when defendant Stoney Kyle George crossed the southbound lane of the highway and struck the vehicle driven by the plaintiff. It is alleged in the complaint and admitted that the George vehicle was owned by Sherman A. George, driven by his son Stoney and was a family purpose vehicle. URL:http://www.tba.org/tba_files/TCA/frazierj_opn.WP6 ALEXANDER FRIEDMANN vs. CHARLES BASS, et al. Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendants/Appellees: Alexander Friedmann, Pro Se John Knox Walkup Attorney General and Reporter Michael E. Moore Solicitor General Sohnia W. Hong Assistant Attorney General Judge:KOCH First Paragraph: This appeal involves a prison disciplinary proceeding. After being found guilty of engaging in an unauthorized monetary transaction, the prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County alleging that the disciplinary proceeding violated his due process rights. The trial court granted the prison officials' motion for summary judgment and dismissed the petition on the ground that the petitioner had failed to make out a due process claim as a matter of law. We affirm the summary judgment in accordance with Tenn. Ct. App. R. 10(b). URL:http://www.tba.org/tba_files/TCA/friedmna_opn.WP6 LARRY LeMASTERS vs. LINDA LeMASTERS ROSS Court:TCA Attorneys: For the Plaintiff/Appellee: For the Defendant/Appellant: Daniel C. Masten Charles Galbreath Richard D. Taylor, Jr. Nashville, Tennessee V.A. (Bo) Melton, Jr. Nashville, Tennessee Judge:KOCH First Paragraph: This appeal concerns the enforceability of an Indiana judgment for unpaid child support. The judgment creditor filed an action to register and enforce the judgment in the Circuit Court for Davidson County. The judgment debtor contested the enforceability of the debt on the ground that it had been discharged in bankruptcy. Following a bench trial, the trial court held that the judgment had not been discharged, and the judgment debtor appealed. We affirm the trial court's conclusion that the debt for unpaid child support was not dischargeable in bankruptcy. URL:http://www.tba.org/tba_files/TCA/lemastl_opn.WP6 ANDREW D. MITCHELL and wife, VIRGINIA K. MITCHELL vs. MELVIN C. RENO and wife, ALTA M. RENO, and EDDIE ALFORD Court:TCA Attorneys: For the Plaintiffs/Appellants: For the Defendants/Appellees: John B. Melton, III Frank Buck Murfreesboro, Tennessee Smithville, Tennessee Judge: LILLARD First Paragraph: This is a boundary line case. The litigants are adjacent landowners. Appellants initiated proceedings against Appellees for the wrongful cutting of timber. Appellees then filed a counter claim asking the trial court to establish the boundary between the adjacent tracts of land. The trial court established the boundary line in favor of Appellees but found that Appellants were entitled to damages for timber cut from their property. We affirm. URL:http://www.tba.org/tba_files/TCA/mitchead_opn.WP6 IN RE: JEFFREY THOMAS MORGAN Court:TCA Attorneys: For the Appellee, United Methodist For the Appellees, Adoption Services: Adopting Couple: Diana L. Schmied Kevin W. Weaver Bartlett, Tennessee Cordova, Tennessee For the Appellant, The Tohono For Jeffrey Thomas Morgan By His O'odham Nation: Court-Appointed Attorney Ad Litem: Mark E. Curry Kay F. Turner Sells, Arizona Attorney Ad Litem Memphis, Tennessee Russell C. Winston Memphis, Tennessee Judge: LILLARD First Paragraph: This is an adoption case in which the Tohono O'odham Indian Nation seeks to intervene pursuant to the federal Indian Child Welfare Act. The trial court denied the motion to intervene, finding the Act inapplicable under the "existing Indian family doctrine." In a case of first impression in Tennessee, we affirm the decision of the trial court. URL:http://www.tba.org/tba_files/TCA/morganjt_opn.WP6 NORMAN DEAN NILSEN vs. JENNIFER LEA BLACK Court:TCA Attorneys: NORMAN DEAN NILSEN 318 6th Avenue S. #117 Seattle, Washington 98104 Pro Se/Plaintiff/Appellee GORDON W. RAHN TROY L. BROOKS 127 South Third Street Clarksville, Tennessee 37040 Attorneys for Defendant/Appellant Judge:CANTRELL First Paragraph: The divorced father of a fourteen year old girl filed a Petition for Writ of Habeas Corpus in the Chancery Court of Montgomery County, to compel the mother to return the girl to his physical custody in the state of Washington. The trial court found that custody jurisdiction remained in the state of Washington, and that a prior order of the Washington court had transferred custody to the petitioner. The court accordingly granted the writ. We affirm. URL:http://www.tba.org/tba_files/TCA/nilsennd_opn.WP6 GARY W. PHELPS vs. TENNESSEE BOARD OF PAROLES, ET AL. Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendants/Appellees: Gary W. Phelps, Pro Se J. Knox Walkup Attorney General and Reporter Patricia C. Kussmann Assistant Attorney General Judge:KOCH First Paragraph: This appeal involves a state prisoner's efforts to obtain judicial review of the decision of the Tennessee Board of Paroles to deny him parole. After exhausting his available remedies before the Board, the prisoner filed a petition for writ of certiorari in the Chancery Court for Davidson County challenging the Board's decision. The trial court dismissed the petition on the ground that it had not been filed within sixty days as required by Tenn. Code Ann. S 27-9-102 (1980). We find that the petition was timely filed and, therefore, vacate the order of dismissal. URL:http://www.tba.org/tba_files/TCA/phelpsgw_opn.WP6 URL:http://www.tba.org/tba_files/TCA/phelpsgw_ord.WP6 CHRISTOPHER C. RINGLING vs. TENNESSEE BOARD OF PAROLES Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee: Christopher C. Ringling, Pro Se John Knox Walkup Attorney General and Reporter John R. Miles Counsel for the State Judge:KOCH First Paragraph: This appeal involves a prisoner's efforts to be released on parole in accordance with the terms of his plea bargain agreement. After the Tennessee Board of Paroles declined to release him on parole, the prisoner filed a petition for common-law writ of certiorari in the Circuit Court for Davidson County alleging that the Board had acted arbitrarily and illegally by failing to honor the terms of his plea agreement. The trial court, treating the Board's motion to dismiss as one for summary judgment, dismissed the petition, and the prisoner has appealed. While the trial court should not have converted the motion, we have determined that the prisoner's petition should be dismissed for failure to state a claim upon which relief can be granted. URL:http://www.tba.org/tba_files/TCA/ringlinc_opn.WP6 IN RE: ESTATE OF ALLA MAE LOCKE SIMMONS, DECEASED vs. CHRISTINE LOCKE FOSTER, ET AL. Court:TCA Attorneys: For the Defendants/Appellants: For the Petitioner/Appellee: Allen Shoffner John C. Shofner Shelbyville, Tennessee Shelbyville, Tennessee Judge: LILLARD First Paragraph: This case involves the petition of the administrator of an estate to probate an allegedly stolen will. The trial court found that the will had been stolen and admitted the will to probate. We affirm. URL:http://www.tba.org/tba_files/TCA/simmonse_opn.WP6 WILLIAM TOWNE YOUNG vs. MARTHA McCOOL YOUNG, Court:TCA Judge:HIGHERS First Paragraph: The appellant has filed a petition to rehear, alleging that the Court overlooked her constitutional argument relative to the Tennessee Child Support Guidelines. URL:http://www.tba.org/tba_files/TCA/youngwt_opn.WP6 ALEXANDER ZANETIS, and wife, THELMA ZANETIS vs. DAVID MCMACKIN and BOATMEN'S NATIONAL MORTGAGE COMPANY, INC. Court:TCA Attorneys: CHARLES GALBREATH, #2779 211 Union Street, Suite 901 Nashville, Tennessee 37201 ATTORNEY FOR PLAINTIFFS/APPELLANTS WINSTON S. EVANS, #6281 EVANS, JONES & REYNOLDS 1810 First Union Tower 150 Fourth Avenue, North Nashville, Tennessee 37219-2424 ATTORNEY FOR DEFENDANTS/APPELLEES Judge: TODD First Paragraph: The captioned plaintiffs have appealed from a summary judgment dismissing their suit against the captioned defendants. URL:http://www.tba.org/tba_files/TCA/zanetisa_opn.WP6 URL:http://www.tba.org/tba_files/TCA/zanetisa_con.WP6 STATE OF TENNESSEE vs. DANNY HORN Court:TCCA Attorneys: For the Appellant: For the Appellee: David Neal Brady Charles W. Burson District Public Defender Attorney General of Tennessee and and H. Marshall Judd Clinton J. Morgan Assistant Public Defender Asst Attorney General of Tennessee 215 Reagan Street 450 James Robertson Parkway Cookeville, TN 38501 Nashville, TN 37243-0493 William Edward Gibson District Attorney General and Ben Fann Asst District Attorney General 145 South Jefferson Avenue Cookeville, TN 38501 Judge:Tipton First Paragraph: The defendant, Danny Horn, appeals as of right from the sentence to confinement imposed by the Putnam County Criminal Court for his conviction of attempted aggravated sexual battery, a Class C felony. As a Range I, standard offender, the defendant received a sentence of six years in the custody of the Department of Correction. On appeal, the defendant contends that the trial court erred by denying probation or some other form of sentencing alternative to confinement. We affirm the trial court. URL:http://www.tba.org/tba_files/TCCA/hornd_opn.WP6 STATE OF TENNESSEE vs. DAVID PALMER Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: KARL DEAN JOHN KNOX WALKUP Public Defender Attorney General and Reporter JEFFREY A. DeVASHER (appeal only) KAREN M. YACUZZO Senior Assistant Public Defender Assistant Attorney General 1202 Stahlman Building 450 James Robertson Parkway Nashville, TN 37201 Nashville, TN 37243-0493 WENDY S. TUCKER VICTOR S. JOHNSON, III SHEILA JONES District Attorney General Assistant Public Defenders 1202 Stahlman Building WILLIAM R. REED Nashville, TN 37201 Asst District Attorney General Washington Square, Suite 500 222 Second Avenue, N. Nashville, TN 37201-1649 Judge: RILEY First Paragraph: The defendant, David Palmer, was convicted by a Davidson County jury of aggravated child abuse. He was sentenced as a Class A felon to seventeen (17) years as a Standard Offender in the Tennessee Department of Correction. URL:http://www.tba.org/tba_files/TCCA/palmerd_opn.WP6 STATE OF TENNESSEE vs. TIMOTHY MARK REDD Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: A. JACKSON DEARING, III JOHN KNOX WALKUP 117 South Main Street Attorney General & Reporter Suite 101 Shelbyville, TN 37160 PETER M. COUGHLAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 WILLIAM MICHAEL McCOWN District Attorney General ROBERT G. CRIGLER Assistant District Attorney General One Public Square, Suite 300 Shelbyville, TN 37160 Judge:WOODALL First Paragraph: The Defendant, Timothy Mark Redd, appeals as of right following a jury trial in the Circuit Court of Bedford County. He was convicted of attempted burglary, assault, resisting arrest, and possession of burglary tools. He argues on appeal (1) that the evidence was insufficient to support the conviction for assault, (2) that the trial court erred by not merging the conviction for possession of burglary tools with the conviction for attempted burglary, (3) that the trial court erred by not merging the conviction for resisting arrest with the conviction for assault, (4) that the trial court erred by ordering consecutive sentencing, and (5) that the trial court erred by ordering a sentence of split confinement for the conviction of attempted burglary. We affirm the convictions and sentences, but modify the manner of service URL:http://www.tba.org/tba_files/TCCA/reddtm_opn.WP6 STATE OF TENNESSEE vs. DAVID C. VOLZ Court:TCCA Attorneys: FOR THE APPELLEE: FOR THE APPELLANT: LEE OFMAN JOHN KNOX WALKUP 317 Main Street, Suite 203 Attorney General & Reporter Franklin, TN 37064 KAREN M. YACUZZO Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 JOSEPH D. BAUGH, JR. District Attorney General DEREK K. SMITH Asst District Attorney General Williamson Cty Courthouse, Ste. G-6 P.O. Box 937 Franklin, TN 37065-0937 Judge:WOODALL First Paragraph: The State appeals as of right from the trial court's order granting the Defendant's motion to suppress evidence. In this felony possession of marijuana case, the action of the trial court had the substantive effect of dismissing the indictment against Defendant. The issue on appeal is whether or not the trial court erred by granting the Defendant's motion to suppress the evidence. We agree with the State and reverse the trial court's order granting the motion to suppress and remand this case for further proceedings. URL:http://www.tba.org/tba_files/TCCA/volzdc_opn.WP6
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