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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- 00-New Opinons From TSC-Rules
- 01-New Opinons From TSC-Workers Comp Panel
- 11-New Opinons From TCA
- 03-New Opinons From TCCA
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WILLIAM ALLEN FRAZIER vs. LANDAIR SERVICES, INC., d/b/a LANDAIR TRANSPORT, INC. Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Howard R. Dunbar Steven H. Trent, Esq. Dunbar & Dunbar Baker, Donelson, Bearman & Caldwell P.O. Box 1215 207 Mockingbird Lane Johnson City, TN 37605 P.O. Box 3038 Johnson City, TN 37602 Judge:BYERS First Paragraph: The plaintiff alleged in his petition that he was injured while unloading a trailer while in the employment of the defendant. The defendant filed a Motion for Summary Judgment supported by affidavits, and the plaintiff answered the motion by filing affidavits also. The trial judge granted summary judgment to the defendant and dismissed the plaintiff's petition. URL:http://www.tba.org/tba_files/TSC_WCP/frazier_wc.WP6 DEBORAH L. CARSON, next of kin and parent of MALLORY D. LEDBETTER vs. AGRI-PRODUCTS SPECIAL MARKETS, INC. d/b/a SUNCOAST, and ARMOR-ALL PRODUCTS CORP., and ORGAIN BUILDING SUPPLY, CO. Court:TCA Judge:TODD First Paragraph: This appeal involves a wrongful death case filed by the parent of a six year-old child. The parent filed suit in the Circuit Court for Montgomery County alleging that her daughter's death was caused by exposure to a household cleaning product marketed and distributed by Armor-All Corporation. The complaint named as defendants Armor-All Corporation, Agri-Products Special Markets, Inc., the company from whom Armor-All had purchased the line of household cleaning products, and Orgain Building Supply Company, the company from whom the parents had purchased the product. The complaint also alleged four causes of action including negligence, strict liability, misrepresentation, and breach of warranty. URL:http://www.tba.org/tba_files/TCA/carson_ord.WP6 BILLY and LOIS CULP vs. J. B. HINSON and ROY PEVAHOUSE d/b/a/ PEVAHOUSE BROTHERS Court:TCA Attorneys: W. ANDREW YARBROUGH P.O. Box 456 504 Highway 64 East Waynesboro, Tennessee 38485 ATTORNEY FOR PLAINTIFFS/APPELLEES J. DOUGLAS DICUS P.O. Box 1119 210B So. Main Street Waynesboro, Tennessee 38485 ATTORNEY FOR DEFENDANTS/APPELLANTS Judge:TODD First Paragraph: This is a suit by purchasers of a home against the builder-seller and the septic system contractor for rescission or damages for failure of the septic system of the home. The Trial Judge rendered a non jury judgment in favor of the plaintiffs and against all defendants for $5,246; and defendants have appealed. URL:http://www.tba.org/tba_files/TCA/culpbl_opn.WP6 CARA ANNETTE HOLLIS vs. FREEMAN HARDIN HOLLIS Court:TCA Attorneys: CAROL L. SOLOMAN, Nashville, Tennessee Attorney for Defendant/Appellant VIRGINIA LEE STORY, Franklin, Tennessee Attorney for Plaintiff/Appellee Judge:FARMER First Paragraph: This divorce case involves the dissolution of the twenty-one year marriage of Cara Annette Hollis (Wife) and Freeman Hardin Hollis (Husband). The trial court entered a final decree declaring the parties divorced pursuant to T.C.A. S 36-4-129(b). Husband has appealed from the final decree, challenging the trial court's decisions regarding child custody and alimony. For reasons as hereinafter stated, we affirm. URL:http://www.tba.org/tba_files/TCA/hollisca_opn.WP6 STATE OF TENNESSEE, CHILD SUPPORT SERVICES OF DAVIDSON COUNTY, EX REL. CETTA COBBLE JACKSON vs. HUBERT RUSSELL, IN THE MATTER OF: TIMOTHY BRYANT DEWAN COBBLE A Child Under the Age of Eighteen Court:TCA Attorneys: JOHN KNOX WALKUP Attorney General & Reporter KIMBERLY M. FRAYN Assistant Attorney General 2nd Floor Cordell Hull Building 425 Fifth Avenue, North Nashville, Tennessee 37243-0499 Attorney for Petitioner/Appellee EVALINA C. CHEADLE 129 Second Avenue North Nashville, Tennessee 37201 Attorney for Respondent/Appellant Judge:CANTRELL First Paragraph: The primary question presented by this appeal is whether a Juvenile Referee's decision giving a father credit for social security payments made to his child could be reversed by the Juvenile Judge after it allegedly had become final. The State argues that a change in the law makes the issue moot. We reject the mootness argument and affirm the lower court's order reversing the Referee's decision. URL:http://www.tba.org/tba_files/TCA/jacksocc_opn.WP6 MAURICE KARR and MAURICE KARR, Trustee vs. PAUL C. GIBSON a/k/a PAUL CALVIN GIBSON Court:TCA Attorneys: For Plaintiffs/Appellees: For Defendant/Appellant: Robert J. Notestine, III Ramsey B. Leathers, Jr. Nashville, Tennessee Blackburn, Slobby, Freeman & Happell Nashville, Tennessee Judge:KOCH First Paragraph: This appeal involves a deficiency judgment obtained against a Canadian resident following service by publication. The Canadian resident filed a Tenn. R. Civ. P. 60.02 motion in the Chancery Court for Davidson County seeking to set aside the default judgment obtained against him on the grounds that service by publication was ineffective and that he received no notice of the lawsuit before the trial court granted the default judgment. The trial court denied the motion, and the Canadian resident has appealed. We have determined that the judgment must be set aside because a personal judgment cannot be rendered against a nonresident defendant who is served only by publication. URL:http://www.tba.org/tba_files/TCA/karrm_opn.WP6 JOHN WATSON LITTLE and LESLIE EARL LITTLE, Executors for the Estate of LESLIE H. LITTLE, deceased. vs. MICHAEL HOGAN, JEFF PAYNE, and MIKE WILHELM TRUCKING, INC. Court:TCA Attorneys: D. Russell Thomas, Herbert M. Schaltegger 218 W. Main St., Suite One Murfreesboro, TN 37130 ATTORNEY FOR PLAINTIFFS/APPELLANTS James D. Kay Jr. Washington Square One, Suite 340M 222 Second Avenue, North Nashville, TN 37201 ATTORNEY FOR DEFENDANTS/APPELLEES Judge:TODD First Paragraph: The captioned executors filed this suit to recover damages for the wrongful death of 88 year old Leslie H. Little, deceased, who lost his life in a motor vehicle collision at the intersection of North Main Street and Colloredo Boulevard in Shelbyville, Bedford County, Tennessee. Movement of traffic through the intersection was controlled by the multicolored lights of an ordinary traffic control signal. URL:http://www.tba.org/tba_files/TCA/littlejw_opn.WP6 URL:http://www.tba.org/tba_files/TCA/littlejw_con.WP6 ROGER PERRY and DORIS PERRY vs. DONALD VAN HISE and JOSEPHINE VAN HISE, individually, and d/b/a VAN HISE CONSTRUCTION COMPANY Court:TCA Attorneys: Aubrey Harper, BR: 015817 P.O. Box 588 McMinnville, TN 37110 ATTORNEY FOR PLAINTIFFS/APPELLANTS J. Hilton Conger, BR: 3607 Thomas Bratcher, BR: 3869 200 South Third Street P.O. Box 568 Smithville, TN 37166 McMinnville, TN 37110 ATTORNEYS FOR DEFENDANTS/APPELLEES Judge:TODD First Paragraph: This appeal involves the construction of a home. Plaintiffs engaged one of the defendants, Donald Van Hise, (hereafter, the defendant) to construct a home on their property. On May 24, 1994, defendant signed a proposal to construct the house, reserving the right to withdraw the proposal within 30 days, if not accepted by plaintiff. One of the plaintiffs signed an acceptance of the proposal. The other did not. On June 25, 1994, defendant tendered another proposal on different terms, which proposal was accepted by both plaintiffs. The second proposal contained an estimated time of completion of 3-1/2 - 4-1/2 months. Both proposals contained a base contract price subject to revision for changes during construction. Both contracts refer to "plans and specifications" but the record contains no plan and only a partial set of specifications. The plans and specifications were not specifically prepared for plaintiffs, but were "generic," that is, sold on the general market, to be altered as desired; and alterations were made, producing part of the present controversy. URL:http://www.tba.org/tba_files/TCA/perryrd_opn.WP6 KEVIN SANDERS and wife, PATRICIA SANDERS, Property Owners and Citizens of Lincoln County, Tennessee vs. JERRY MANSFIELD, County Executive, and DONNY RAY HUDSON, Road Superintendent, Both of Lincoln County, Tennessee Court:TCA Attorneys: WILLIAM W. BURTON P. O Box 960 401 West Main Street Murfreesboro, TN 37133-0960 Attorney for Plaintiffs/Appellants ROBERT W. SIMMS P. O. Box 53 104 North Main Street Fayetteville, Tennessee 37334 Attorney for Defendants/Appellees Judge:CANTRELL First Paragraph: The primary question in this appeal is whether a road that splits the appellants' farm is a public road. Kevin Sanders and his wife filed suit against two Lincoln County officials, to enjoin enforcement of a county resolution that required them to remove stock gaps on a road that crossed their farm. The trial court dismissed the complaint and granted the defendants' counterclaim to enjoin the plaintiffs from willfully allowing their cattle to roam at large along the road. We affirm the trial court. URL:http://www.tba.org/tba_files/TCA/sandersk_opn.WP6 KARLA WYNETTE SHERRELL vs. ROBBIE JAMES SHERRELL Court:TCA Attorneys: CHARLES W. HOLT, JR. BOSTON, BATES, HOLT & SOCKWELL 235 Waterloo Street P. O. Box 357 Lawrenceburg, TN 38464 Attorney for Plaintiff/Appellee DAVID L. ALLEN 200 Mahr Avenue P. O. Box 369 Lawrenceburg, Tennessee 38464 Attorney for Defendant/Appellant Judge:CANTRELL First Paragraph: In this divorce case, we granted the husband's Motion for Interlocutory Appeal solely on the question of the trial court's jurisdiction to determine the custody of the parties' three year old son. Our examination of the applicable law and of the facts in the record lead us to find that the requirements of the Uniform Child Custody Jurisdiction Act (UCCJA) preclude the trial court from deciding child custody without first conferring with the court in the child's home state of Texas. URL:http://www.tba.org/tba_files/TCA/sherrekw_opn.WP6 MARCUS WEST vs. TENNESSEE DEPARTMENT OF CORRECTION and MORGAN COUNTY REGIONAL PRISON Court:TCA Attorneys: MARCUS WEST, PRO SE TDOC No. 234495 C.C.W.C. Caller #1 Roan Mt., Tennessee 37687 JOHN KNOX WALKUP Attorney General and Reporter MICHAEL E. MOORE Solicitor General SOHNIA W. HONG Assistant Attorney General Civil Rights and Claims Division 2nd Floor Cordell Hull Building 425 Fifth Avenue North Nashville, Tennessee 37243-0488 ATTORNEY FOR THE RESPONDENTS/APPELLEES Judge:LEWIS First Paragraph: This is an appeal by petitioner/appellant, Marcus West, from an order of the trial court granting the motion to dismiss for failure to state a basis for a writ of certiorari or summary judgment of respondents/appellees, the Tennessee Department of Correction ("the Department") and the Morgan County Regional Facility ('the Facility"). URL:http://www.tba.org/tba_files/TCA/westm_opn.WP6 STATE OF TENNESSEE vs. MAURICE TRAVON JOHNSON Court:TCCA Attorneys: For the Appellant: For the Appellee: Mark E. Stephens John Knox Walkup District Public Defender Attorney General of Tennessee and and John Halstead Georgia Blythe Felner Assistant Public Defender Asst Attorney General of Tennessee 1209 Euclid Avenue 450 James Robertson Parkway Knoxville, TN 37921 Nashville, TN 37243-0493 (AT TRIAL) Randall E. Nichols Mark E. Stephens District Attorney General District Public Defender and and Paula Gentry and C. Leon Franks Paula R. Voss Asst District Attorney General Assistant Public Defender City County Building 1209 Euclid Avenue Knoxville, TN 37902 Knoxville, TN 37921 (ON APPEAL) Judge:Tipton First Paragraph: The defendant, Maurice Travon Johnson, appeals as of right from the revocation of his probation by the Knox County Criminal Court. He contends that the trial court abused its discretion by revoking his probation. We affirm the revocation. URL:http://www.tba.org/tba_files/TCCA/johnsonm_opn.WP6 CHARLES EDWARD ORREN vs. HOWARD CARLTON, Warden and STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Charles Edward Orren, Pro Se John Knox Walkup N.E.C.C. #108907 Attorney General and Reporter P.O. Box 5000 Mountain City, TN 37683 Michael J. Fahey, II Asst Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 Judge:Hayes First Paragraph: The appellant, Charles Edward Orren, appeals the Johnson County Criminal Court's dismissal of his pro se petition for writ of habeas corpus. The appellant was originally indicted by the Washington County Grand Jury for aggravated rape on May 6, 1985. He pled guilty to this charge in August, 1985 and received a sentence of thirty years imprisonment. The instant petition was filed on February 10, 1997. In seeking issuance of the writ of habeas corpus, the appellant contends that the judgment entered against him is void because the indictment failed to allege the mens rea of the offense charged. The trial court dismissed the appellant's petition finding that the allegations concerning the sufficiency of the indictment are not cognizable in habeas corpus proceedings and should have been raised on direct appeal. Additionally, the court included in its findings that, at the time of the offense, proof of a culpable mental state was not required. The appellant appeals the trial court's ruling. URL:http://www.tba.org/tba_files/TCCA/orrence_opn.WP6 TOMMY HORTON TATE vs. CHARLES JONES, WARDEN Court:TCCA Attorneys: For the Appellant: For the Appellee: Tommy Horton Tate, Pro Se John Knox Walkup M.C.R.C.F. Attorney General of Tennessee P.O. Box 2000 and Wartburg, TN 37887 Michael J. Fahey, II Asst Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493 Charles E. Hawk, Jr. District Attorney General and Frank Harvey Asst District Attorney General P.O. Box 703 Kingston, TN 37763 Judge:Tipton First Paragraph: The petitioner, Tommy Horton Tate, appeals as of right the Morgan County Criminal Court's denial of his petition for habeas corpus relief. He contends that his convictions for rape of a child are void because the indictments do not allege the required mens rea. URL:http://www.tba.org/tba_files/TCCA/tateth_opn.WP6
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