TBALink Opinion-Flash

August 6, 1998 -- Volume #4 -- Number #115

What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.

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Editor-in-Chief, TBALink



MARVIN E. ALEXANDER
d/b/a ALEXANDER AUCTIONS &
REAL ESTATE SALES
vs.
JOHN HOPKINS and RHONDA                     
HOPKINS, individually and d/b/a
RICHLAND CREEK SOD FARM

Court:TCA

Attorneys:

THOMAS W. HARDIN
102 West 7th Street
P. O. Box 692
Columbia, Tennessee 38402-0692
Attorney for Plaintiff/Appellee

M. ANDREW HOOVER
JOHN P. DAMRON
134 North Second Street
P. O. Box 288
Pulaski, Tennessee 38478                          

Judge:CANTRELL

First Paragraph:

A licensed auctioneer and real estate broker filed suit against the
defendant landowners for breach of an auction contract, because the
defendants sold their land prior to the scheduled auction without his
participation.  The trial court held that the auctioneer was entitled
to the anticipated commission amount.  We affirm the trial court's
holding that the property owners are liable, but we modify the amount
of damages.

URL:http://www.tba.org/tba_files/TCA/alexanme_opn.WP6
Opinion-Flash

MICHAEL G. BINKLEY and wife,
MARTHA Y. BINKLEY, and ROBERT
A. JONES, SR., and wife, MARY EVELYN
JONES, and CHARLES H. CATHEY and
wife, MARY JUNE CATHEY
vs.
RODNEY TREVOR MEDLING

Court:TCA

Attorneys:

William G. McCaskill, Jr., #12716
TAYLOR, PHILBIN, PIGUE, MARCHETTI & BENNETT, PLLC
2908 Poston Avenue
Nashville, Tennessee 37203

Anthony L. Sanders, #2283
129 North Court Square
Waverly, Tennessee 37185
ATTORNEY FOR PLAINTIFFS/APPELLEES


Andrew B. Frazier, Jr.
116 East Main Street
P.O. Box 208
Camden, Tennessee 38320
ATTORNEY FOR DEFENDANT/APPELLANT                          

Judge:TODD

First Paragraph:

The captioned defendant has appealed from a judgment of the Trial
Court which reads in full as follows: This cause came on to be heard
on this the 23rd day of July, 1997, before the Honorable Allen W.
Wallace, Chancellor, upon stipulation of the parties, certified copies
of various documents, statement of counsel, and upon the entire
record.  From all of which the Court finds that the Defendant
improperly opened a cul-de-sac located on Timberland Drive, New
Johnsonville, Tennessee, and Lot No. D-6 of the Countrywood Estates
Subdivision, Section IV, and further that the Defendant violated the
restrictions and protective covenants of Countrywood Estates
Subdivision, Section IV, as a street or driveway to unrestricted and
non-conforming adjoining property, and particularly the 11.7 acre
tract that was purchased by the Defendant. The Court further finds
that certain orders, including an injunction should issue against the
Defendant.

URL:http://www.tba.org/tba_files/TCA/binkleym_opn.WP6
Opinion-Flash

DANIEL SCOTT BRADLEY
et ux LINDA BRADLEY
vs.
GENEVA LYNN McCORD McLEOD
et vir RODRICK McLEOD

Court:TCA

Attorneys:

For Plaintiffs/Appellees:           For Defendants/Appellants:

M.T. Taylor, Jr.                    E. Covington Johnston, Jr.
Franklin, Tennessee                 Franklin, Tennessee                          

Judge:KOCH

First Paragraph:

This case involves a dispute between two neighbors in the Fairview
community of Williamson County concerning the use of a gravel
driveway.  Three years after purchasing a tract of land on which
portions of the driveway were located, the property owners filed suit
in the Chancery Court for Williamson County to quiet title to the
portions of the driveway they believed to be on their property.  Their
neighbors responded that the driveway was their only access to a pubic
road and that they had acquired a right to use the driveway by adverse
possession.  After the trial court granted the plaintiffs' uncontested
motion for summary judgment, the defendants filed a Tenn. R. Civ. P.
59.04 motion asserting that they had an "easement of presumption" to
use the driveway.  The trial court denied the post-judgment motion on
the ground that the new defense had not been timely raised.  On this
appeal, the losing property owners take issue with the trial court's
decision to grant the summary judgment and to deny their post-judgment
motion.  We affirm the summary judgment.

URL:http://www.tba.org/tba_files/TCA/bradleyd_opn.WP6
Opinion-Flash

R.S. BRANDT, K.M. LUNDIN
M.I. LUNDIN, N.B. LUNDIN
and A.T. WILTSHIRE, JR.
vs.
BIB ENTERPRISES, LTD., A
Tennessee Limited Partnership,
and GREGORY SMITH, Individually,
and VIRGINIA ABERNETHY

Court:TCA

Attorneys: 

WILLIAM S. FLEMING, FLEMING
HOLLOWAY, FLYNN & SANDS, P.C
207 West Eighth Street
Columbia, TN 38401
For Plaintiffs-Appellees.

HENRY, HENRY, STACK, GARNER & SPEER, P.C.
119 South First Street
Pulaski, TN  
For Defendants-Appellants.                         

Judge:FRANKS

First Paragraph:

This cases involves a dispute over a limited partnership.  BIB
Enterprises, Ltd. ("BIB") was formed on December 30, 1982 for the
stated purpose of acquiring real estate, equipment and other personal
property of a Bonanza Restaurant in Lawrenceburg, Tennessee. 
Defendant-appellant Greg Smith was named General Partner.

URL:http://www.tba.org/tba_files/TCA/brandtrs_opn.WP6
Opinion-Flash

BROOKRIDGE APARTMENTS, LTD.
vs.
UNIVERSAL CONSTRUCTORS, INC.,
BADGER-BOGLE ARCHITECTS, P.C.,
BOYD BOGLE, III, and GEORGE VOLAK

Court:TCA

Attorneys:

JOHN H. ROWLAND and SCOTT D. CAREY,
BAKER DONELSON, BEARMAN & CALDWELL 
A Professional Corporation
1700 Nashville City Center
511 Union Street
Nashville, Tennessee 37219
For Plaintiff-Appellant.

DARRELL G. TOWNSEND and DERRICK C. SMITH 
HOWELL & FISHER, PLLC
Court Square Building
300 James Robertson Parkway
Nashville, Tennessee 37201-1107
For Defendant-Appellee Universal Constructors, Inc.

JOHN W. HEACOCK
2100 First Union Tower
150 Fourth Avenue, North
Nashville, Tennessee 37219
For Defendant-Appellee Badger-Bogle Architects, P.C., Boyd Bogle, III,
and George Volak.

Judge:FRANKS

First Paragraph:

Plaintiff appeals to this Court on the refusal by the Trial Judge to
grant plaintiff relief pursuant to Tennessee Rules of Procedure,
60.02(1).  The underlying action was dismissed on July 23, 1996 by the
Trial Judge "for want of prosecution."  On July 18, 1997, plaintiff
filed a motion to set aside the judgment pursuant to Rule 60, T.R.C.P.
on the ground the judgment was entered because of mistake,
inadvertence, and excusable neglect.  The motion explained that the
plaintiffs "former counsel William J. Hart, did not receive notice
from the Court that the case would be dismissed for lack of
prosecution pursuant to local Rule 37.02."

URL:http://www.tba.org/tba_files/TCA/brkrdgap_opn.WP6
Opinion-Flash

YVETTE MICHEL PORTER CAIRA
vs.
RONALD STEPHEN CAIRA

Court:TCA

Attorneys:

GREGORY D. SMITH
One Public Square, Suite 321
Clarksville, Tennessee  37040
ATTORNEY FOR THE PLAINTIFF/APPELLANT

MARK A. RASSAS
Suite 104, Glenn Building
Clarksville, Tennessee 37040
ATTORNEY FOR THE DEFENDANT/APPELLEE                          

Judge:CAIN

First Paragraph:

This case is before us on appeal from the trial court's decree of
divorce and grant of child custody and support to the Appellee, Ronald
Steven Caira. In bringing this appeal, Appellant raises two issues for
consideration. 1.  Whether the trial court erred in failing to award
primary custody of the minor children of this marriage with
Defendant/Appellee. 2.  Whether the trial court made an equitable
property distribution of the debts, assets and retirement proceeds of
this marriage.

URL:http://www.tba.org/tba_files/TCA/cairay_opn.WP6
Opinion-Flash

JON HOSCHEIT
vs.
JOHANNA G. HOSCHEIT

Court:TCA

Attorneys:

F. DULIN KELLY, CLINTON L. KELLY and ANDY L. ALLMAN, Kelly & Kelly,
Hendersonville, for Appellant.

JOHN R. PHILLIPS, JR., Gallatin, for Appellee.                          

Judge:McMurray

First Paragraph:

This action began with a complaint filed by the appellee, Jon
Hoscheit, (husband) seeking an absolute divorce from the appellant,
Johanna G. Hoscheit (wife).  After a bench trial, the court entered a
final judgment granting an absolute divorce, custody of the parties'
minor child to the father, dividing the marital estate and awarding
alimony to the wife.  From the judgment of the trial court the wife
has appealed.  We affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCA/hoscheit_opn.WP6
Opinion-Flash

JIMMY KEY
vs.
TENNESSEE BOARD OF PAROLES

Court:TCA

Attorneys: 

For Plaintiff/Appellant:        For Defendant/Appellee:

Jimmy Key                       John Knox Walkup
Pro Se                          Attorney General and Reporter

                                Brenda Rhoton Little
                                Parker, Allen & Crofford
                                Nashville, Tennessee                        

Judge:KOCH

First Paragraph:

This appeal involves a dispute between the Board of Paroles and a
prisoner convicted of being an habitual criminal over the inmate's
right to custodial parole and the calculation of his sentence credits.
 The Chancery Court for Davidson County granted the Board's motion to
dismiss, and the prisoner has appealed.  We affirm the dismissal of
the prisoner's suit in accordance with Tenn. Ct. App. R. 10(b).

URL:http://www.tba.org/tba_files/TCA/keyj_opn.WP6
Opinion-Flash

JOHN ANDERSON KINARD
vs.
LINDA KINARD

Court:TCA

Attorneys:

For Plaintiff/Appellee:             For Defendant/Appellant:

Dicken E. Kidwell                   J. Russell Heldman
Murfreesboro, Tennessee             Franklin, Tennessee

Judge:KOCH

First Paragraph:

This appeal involves a divorce ending a long-term marriage.  The
husband filed suit to divorce his wife of thirty years in the Chancery
Court for Rutherford County, and the wife counterclaimed for a divorce
from bed and board.  The trial judge, sitting without a jury, declared
the parties divorced, divided the marital property, and awarded the
wife rehabilitative alimony for three years.  The wife takes issue on
this appeal with the decision to declare the parties divorced, the
division of marital property, and the failure to award her long-term
spousal support and attorney's fees.  She also insists that the trial
judge should have recused himself because of his prior professional
association with the husband's lawyer.  We conclude that the trial
judge was not disqualified from hearing this case.  While we also find
that declaring the parties divorced was proper, we have determined
that the division of marital property and the spousal support award
should be modified but that the wife should not receive an additional
award for her legal expenses.

URL:http://www.tba.org/tba_files/TCA/kinardja_opn.WP6
Opinion-Flash

TRACY RENEE MIGLIN
vs.
DANIEL WALTER MIGLIN

Court:TCA

Attorneys: 

BARBARA J. WALKER
22 Public Square
P. O. Box 1574
Columbia, Tennessee 38402-1574
Attorney for Plaintiff/Appellee

LOUISE R. FONTECCHIO
2075 First American Center
315 Deaderick Street
Nashville, Tennessee 37238-2075
Attorney for Defendant/Appellant                         

Judge:CANTRELL

First Paragraph:

The husband in this divorce case challenged almost every aspect of the
trial court's orders, including child custody, alimony, the division
of marital property and the terms of an injunction imposed to prevent
him from interfering with the wife's authority over the children.  We
modify the injunction because we believe that its provisions are
overbroad.  In all other respects, we affirm the trial court.

URL:http://www.tba.org/tba_files/TCA/miglintr_opn.WP6
Opinion-Flash

JASON RAINS, CRYSTAL L.
CARNEY and KATHY CARNEY
vs.
EDWIN SCOTT SUSSDORFF, III
a/k/a/ ED SUSSDORFF, VICKI R.
SUSSDORFF, E. SCOTT SUSSDORF
and ALLSTATE INSURANCE COMPANY

Court:TCA

Attorneys:

Richard A. Schulman, Chattanooga, for Appellants Crystal and Kathy
Carney.
Samuel R. Anderson, David L. Moss, Chattanooga, for Appellees.                          

Judge:INMAN

First Paragraph:

While riding as passengers in an automobile owned by defendant and
driven by a close friend of defendant's son, the intervening plaintiff
was seriously injured in a one-car accident when the driver apparently
fell asleep at the wheel.  The passenger intervened in the driver's
petition and alleged that the vehicle had been driven with the express
or implied permission of its owner and sought a declaratory judgment
that his insurer was therefore liable for her injuries.  The trial
court found the driver did not have such permission and dismissed
intervenor's petition, and she appeals.

URL:http://www.tba.org/tba_files/TCA/raines_ca3.WP6
Opinion-Flash

HEATHER ALICIA ROACH THOMSON
vs.
PATRICK JAMES THOMSON

Court:TCA

Attorneys:

A. THOMAS MONCERET, Knoxville, for Appellant

F. D. GIBSON, Maryville, for Appellee                          

Judge:McMurray

First Paragraph:

This is an appeal from a post-divorce proceeding wherein the appellant
sought a change in custody of the parties minor child on the grounds
that there had been a material change of circumstances justifying such
a change.  The trial court dismissed the complaint and this appeal
resulted.  We affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCA/thmsonha_opn.WP6

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