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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Lucian T. Pera
FIRST TENNESSEE BANK NATIONAL ASSOCIATION vs. RONALD A. WHITE, BERYL A. WHITE, and DEBRA K. WHITE Court:TCA Attorneys: F. D. GIBSON, Maryville, for Appellants. GORDON D. FOSTER, Lacy & Winchester, Knoxville, for Appellee. Judge:McMurray First Paragraph: This action was instituted in the Chancery Court for Blount County seeking to revive, by scire facias, a judgment previously obtained by the plaintiff against the defendants. The previous judgment had been obtained in the Circuit Court of Blount County. The chancellor elected to order this action transferred to the circuit court rather than dispose of the matter in chancery court. The chancery court action was filed less than ten (10) years after the previous judgment was obtained in circuit court. Ten (10) years had expired, however, before the action was transferred to the circuit court. The defendants moved to dismiss the circuit court action on the grounds that the ten year statute of limitations for judgments as provided in T.C.A. S 28-3-110 had expired. The motion was overruled. Thereafter, judgment was entered reviving and extending the previous judgment for a new statutory period. This appeal resulted. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/1sttnbkn_opn.WP6 LEROY DAMRON vs. YELLOW FREIGHT SYSTEM, INC., JERI ELLISON, CAROL HERTHEL Court:TCA Attorneys: Leroy Damron 514 Temple Ford Road Shelbyville, Tennessee 37160 PRO SE FOR PLAINTIFF/APPELLANT Wade B. Cowan 315 Deaderick Street Suite 1425 Nashville, Tennessee 37238-1425 ATTORNEY FOR DEFENDANTS/APPELLEES Judge:TODD First Paragraph: The plaintiff, Leroy Damron, has appealed from a summary judgment dismissing his suit against his former employer Yellow Freight Systems, Inc., (hereafter "Yellow") and two of its office employees for wages withheld because of levy process issued by the U.S. Internal Revenue Service (hereafter IRS) to collect delinquent income taxes assessed against plaintiff. Plaintiff presents the following issues: I. Whether the trial court erred in failing to consider that the Notice of Levy was defective. II. Whether trial court erred in granting summary judgment in favor of defendant/appellee, Yellow Freight System, Inc., on the grounds that there was no relief available from state courts and Tennessee Law because defendant/appellee had immunity under the Internal Revenue Code for turning over wages in compliance with a defective Notice of Levy issued by the Internal Revenue Service. URL:http://www.tba.org/tba_files/TCA/damronle_opn.WP6 MARY F. HALL and DON K. HALL vs. MARY ROSE PIPPIN and DALE DELANEY Court:TCA Attorneys: For Plaintiffs/Appellees: For Defendants/Appellants: Manuel F. Edwards William R. Draper Cookeville, Tennessee Cookeville, Tennessee T. Michael O'Mara Thomas F. Bloom Cookeville, Tennessee Nashville, Tennessee Judge:KOCH First Paragraph: This appeal stems from a dispute between neighbors over the use of an old road in rural Putnam County. After the owners of one tract began to erect a fence across the road, the owners of the neighboring tract filed suit in the Chancery Court for Putnam County seeking injunctive and declaratory relief concerning their right to continue to use the road to gain access to their property. The trial court heard the case without a jury and determined that the disputed road ran along the roadbed of an old public road and that the abutting landowners had not abandoned their use of the old road even though it had fallen into disrepair. Accordingly, the trial court granted the plaintiff landowners an easement over the portion of the defendant neighbors' property where the old road ran. On this appeal, the defendant neighbors assert that the old public road had been abandoned and that the disputed road did not run along the roadbed of the old road. Accordingly, they insist that the old road could not supply a basis for an easement. We have determined that the judgment should be affirmed. URL:http://www.tba.org/tba_files/TCA/hallmf_opn.WP6 DONALD EUGENE HARRIS vs. GLENN S. BUCKSPAN, M.D., individually and GLENN S. BUCKSPAN, M.D.,P.C. Court:TCA Attorneys: LARRY D. ASHWORTH 227 Second Avenue, North Nashville, Tennessee 37201 PETER D. HEIL P. O. Box 40651 Nashville, Tennessee 37204 ATTORNEYS FOR PLAINTIFF/APPELLANT C. J. GIDEON, JR. JOE W. ELLIS, II NationsBank Plaza, Suite 1900 414 Union Street Nashville, Tennessee 37219-1782 ATTORNEYS FOR DEFENDANT/APPELLEE Judge:CAIN First Paragraph: This is a medical malpractice action in which the plaintiff appeals from a directed verdict in favor of the defendant. URL:http://www.tba.org/tba_files/TCA/harrisd_opn.WP6 JEROME R. HERBISON and MARGARET H. HERBISON vs. HANSEN CHRYSLER-PLYMOUTH, INC. Court:TCA Attorneys: Robert L. Whittaker, #17209 1712 Parkway Towers 404 James Robertson Parkway Nashville, Tennessee 37219 John E. Herbison, #12659 2016 Eighth Avenue South Nashville, Tennessee 37204 ATTORNEYS FOR PLAINTIFFS/APPELLANTS Gareth S. Aden, #2371 GULLETT, SANFORD, ROBINSON & MARTIN, PLLC 230 Fourth Avenue North, 3rd Floor P.O. Box 198888 Nashville, Tennessee 37219-8888 ATTORNEY FOR DEFENDANT/APPELLEE Judge:TODD First Paragraph: The plaintiffs, Jerome R. And wife Margaret Herbison, have appealed from the summary dismissal of their suit against the defendant, Hansen Chrysler-Plymouth, Inc., for injuries received by Mr. Herbison on the premises of the defendant when he tripped on a metal strip imbedded in the concrete floor on the premises of defendant. URL:http://www.tba.org/tba_files/TCA/herbijer_opn.WP6 BARBARA JEAN HOPPER vs. DAVID C. TABOR, Individually and d/b/a EAST TENNESSEE HEMOTOLOGY-ONCOLOGY, P.C. Court:TCA Attorneys: THOMAS R. BANDY, III, Kingsport, for Appellant. CHARLES T. HERNDON IV, Johnson City, for Appellees. Judge:McMurray First Paragraph: This is a medical malpractice case. The defendants filed a motion for summary judgment supported by the affidavit of defendant, Dr. David C. Tabor, which, among other things, specifically stated that he was familiar with the standard of care for physicians and surgeons practicing the specialty of oncology in Johnson City, Tennessee, and similar communities. He further deposed that at all times, in his care and treatment of the plaintiff's decedent, Mark A. Hopper, he "conformed to the standard of care for physicians in the practice of oncology and did not deviate or depart therefrom." Thus, Dr. Tabor, through his affidavit, prima facie, established that he was entitled to judgment as a matter of law absent countervailing evidence presenting a genuine issue of a material fact. URL:http://www.tba.org/tba_files/TCA/hopperbj_opn.WP6 STEVE W. KILLIAN vs. TABOR CONSTRUCTION, INC. Court:TCA Attorneys: THOMAS R. HENLEY, Lufkin, Henley & Conner, Knoxville, for Appellant. C. PAUL HARRISON, Long Ragsdale & Waters, Knoxville, for Appellee. Judge:McMurray First Paragraph: This is an action for breach of contract. The plaintiff alleged in his complaint that he had contracted with the defendant whereby the defendant was to construct a house for him. During the course of the construction, he removed the defendant from the job, allegedly for breach of contract, and hired a substitute to complete the project. The defendant denied that it had breached the contract, but on the contrary, filed a counterclaim seeking damages from the plaintiff alleging that the plaintiff was the party guilty of breaching the contract. After a bench trial, the court took the matter under advisement and subsequently issued a memorandum opinion wherein the original complaint was dismissed. The plaintiff was found to have breached the contract with the defendant, however, the court found that no damages had been proved and gave no judgment for damages on the counterclaim. The defendant appealed. We modify the judgment of the trial court and affirm as modified. URL:http://www.tba.org/tba_files/TCA/killianw_opn.WP6 KENNETH RAY MAYFIELD, SR. vs. NANCY PRECELLA MAYFIELD Court:TCA Judge:Inman First Paragraph: Appellant seeks rehearing or reconsideration of the memorandum opinion filed by this Court on July 30, 1998, and for cause avers that "no marital dissolution agreement was ever signed or entered by the parties. The parties simply appeared before the court and announced an agreement to the court." Further, that "wife, nor her counsel, had no time to retract the agreement at that time, as it was not learned by counsel, until the next day, that the verbal agreement which Wife stated before the court had actually been coerced by Husband under duress." URL:http://www.tba.org/tba_files/TCA/mayfield_prh.WP6 MICHAEL MEYERS vs. MARK A. COLE Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant /Appellee: Stephen M. Miller George E. Copple, Jr. Nashville, Tennessee Nashville, Tennessee Judge:LILLARD First Paragraph: This case involves the dissolution of a partnership formed to create and sell music. The trial court determined the partners' respective rights in some properties and ordered some items sold. We remand. URL:http://www.tba.org/tba_files/TCA/meyersm_opn.WP6 GERALD A. OTTINGER vs. KIMBERLY S. OTTINGER Court:TCA Attorneys: J. RONNIE GREER, Greeneville, for Appellant. CLYDE A. DUNN, Newport, for Appellee Judge:McMurray First Paragraph: This is a child custody case in which both Gerald Ottinger (father) and Kimberly Ottinger (mother) filed petitions for primary residential custody of their daughter, Marlah Whitley Ottinger. The trial court granted joint legal custody to the parties and awarded primary residential custody to the father. The mother appeals, asserting that the court should have awarded her primary residential custody. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/ottinger_opn.WP6 REBA PINSON vs. HOPKINS SURVEYING GROUP, INC. Court:TCA Attorneys: CHARLES P. DUPREE, Chattanooga, for Appellant. R. DEE HOBBS, Chattanooga, for Appellee. Judge:McMurray First Paragraph: The genesis of this action is a property boundary line dispute between the plaintiff and others. Plaintiff, Reba Pinson, filed suit against Hopkins Surveying Group, Inc., alleging that she had hired the defendant to survey her property in conjunction with the boundary line dispute. Here she alleges that the defendant negligently and erroneously conducted a survey of the disputed property line. Defendant moved for summary judgment and the trial court granted the motion and dismissed the case. This appeal resulted. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/pinsonr_opn.WP6 CHARLES STEPHEN SANFORD vs. TENNESSEE DEPARTMENT OF ENVIRONMENT & CONSERVATION and TENNESSEE CIVIL SERVICE COMMISSION Court:TCA Attorneys: James G. Stranch III Bryan E. Pieper Branstetter, Kilgore, Stranch & Jennings of Nashville For Appellee John Knox Walkup, Attorney General and Reporter Eugenia B. Whitesell, Assistant Attorney General For Appellants Judge:CRAWFORD First Paragraph: This is an appeal from the trial court's reversal of a final order of the Tennessee Civil Service Commission (the Commission). The Commission's final order upheld Petitioner/Appellee Charles Sanford's termination of employment with the Department of Environment and Conservation (TDEC) based on insubordination. The trial court reversed the Commissioner's order, finding that it was not supported by substantial and material evidence. URL:http://www.tba.org/tba_files/TCA/sanfordc_opn.WP6
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