August 31, 2000
Volume 6 -- Number 138

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink.

This Issue (IN THIS ORDER):
 
01 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
14 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Lucian T. Pera
Editor-in-Chief, TBALink

IN RE: PETITION TO REQUIRE ALTERNATIVE DISPUTE RESOLUTION EDUCATION

Court:TSC

Judge: ANDERSON

First Paragraph:

The Mediation Association of Tennessee has petitioned this Court to
amend the current mandatory Continuing Legal Education requirements
for lawyers to add a specific requirement for Alternative Dispute
Resolution education.

http://www.tba.org/tba_files/TSC/adrcomment.wpd


APRIL LEIGH BURKHART v. JASON TODD BURKHART Court:TCA Attorneys: Steven T. Atkins, Clarksville, Tennessee, for the appellant, April Leigh Burkhart. Clifford K. McGown, Jr., Waverly, Tennessee, for the appellee, Jason Todd Burkhart. Judge: COTTRELL First Paragraph: This is a divorce case. The trial court awarded the divorce to the father on the ground of the mother's inappropriate marital conduct and awarded custody of the minor child to the father. The mother appeals the award of the divorce and custody of the child to the father. We modify the award of the divorce, relying instead on Tenn. Code Ann. S 36-4-129(b), and "declare the parties to be divorced, rather than awarding a divorce to either party alone." We affirm the award of custody of the minor child to the father. http://www.tba.org/tba_files/TCA/burkharta.wpd
BRANDON MICHAEL CRUSE, et al. v. TAMMY PEAK Court:TCA Attorneys: Clark Lee Shaw, Nashville, Tennessee, for the appellant, Tammy Peak. Stephanie C. Hatchett, Nashville, Tennessee, for the appellees, Brandon Michael Cruse and Amber Kay Cruse. Judge: CANTRELL First Paragraph: This appeal arises from the trial court's refusal to grant the appellant's request for visitation with her granddaughter. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/crusebm.wpd
HOME BUILDERS ASSOCIATION OF MIDDLE TENNESSEE, et al. v. MAURY COUNTY, TENNESSEE, et al. WITH CONCURRING OPINION Court:TCA Attorneys: L. Bruce Peden, Columbia, Tennessee, for the appellants, Homebuilders Association of Middle Tennessee, Larry Reaves, and Dino Roberts Homes, Inc. William H. Dale, Jr., Columbia, Tennessee, for the appellee, Maury County. Paul G. Summers, Attorney General and Reporter, and Winston B. Sitton, Assistant Attorney General, for the appellee, Paul G. Summers. Judge: CANTRELL First Paragraph: Two homebuilders and their trade association asked the trial court to declare that a privilege tax imposed on new construction in Maury County was in fact an unconstitutional impact fee. The County and the State both filed motions for summary judgment, which were granted by the trial court. We affirm. http://www.tba.org/tba_files/TCA/homebuilders_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/homebuilders_con.wpd
SUSAN TRABUE HOWARD v. ROBERT MARK HOWARD Court:TCA Attorneys: Michael E. Terry, Nashville, for Appellant Virginia Lee Story, Franklin, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a dispute over a contractual provision in a Marital Dissolution Agreement ("MDA") between the parties. Susan Trabue Howard ("Mother") filed a Petition for Enforcement of Contractual Obligation, alleging that Robert Mark Howard ("Father") had failed to abide with a provision in the MDA providing that Father would be responsible for Daughter's "related costs of education." The court below found in favor of Mother, holding that Father was responsible for all of Daughter's expenses for the time specified in MDA. Father appeals. http://www.tba.org/tba_files/TCA/howardsusan.wpd
TANYA R. (WENGER) KIBBY v. JASON M. KIBBY Court:TCA Attorneys: Mitchell A. Byrd, Chattanooga, Tennessee, for the appellant, Tanya R. (Wenger) Kibby. M. Keith Davis, Dunlap, Tennessee, for the appellee, Jason M. Kibby. Judge: CAIN First Paragraph: This appeal presents a dispute of custody, visitation, and attorney fees. The parties are parents of one child, Ian Kibby, who is the subject of this dispute. The father was awarded primary custody when the parties divorced in May of 1996. The mother filed a Petition for Contempt and Modification seeking primary residential placement of Ian and later requested that the court refer this matter to mediation. The father filed a counter-petition requesting a change in the mother's visitation privileges and attorney's fees. The trial court dismissed the mother's petition but granted the father's petition reducing the mother's visitation rights. The court also refused to refer this matter to mediation and did not award attorney fees to the father. The mother now appeals the court's dismissal of her petition, failure to refer the matter to mediation, and change in visitation; the father also appeals the failure of the trial court to award attorney fees to him. http://www.tba.org/tba_files/TCA/kibbytanya.wpd
CYNTHIA MILHOUS v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Court:TCA Attorneys: Sandra C. Isom, Memphis, Tennessee, for the appellant, Cynthia Milhous. James L. Murphy, III and William Michael Safley, Nashville, Tennessee, for the appellee, Metropolitan Government for Nashville and Davidson County. Judge: KOCH First Paragraph: This appeal involves a dispute between a city employee and her employer regarding a sexual harassment claim. The employee originally filed suit in the United States District Court for the Middle District of Tennessee alleging violations of both federal and state law. After the federal court dismissed her state law claims, the employee filed suit against the city in the Chancery Court for Davidson County alleging violations of the Tennessee Human Rights Act. The trial court dismissed the complaint because the applicable one-year statute of limitations had elapsed by the time the employee filed her complaint in state court. The employee argues on this appeal that the savings statute in Tenn. Code Ann. S 28-1-115 (Supp. 1999) tolled the statute of limitations for one year after the federal court dismissed her state law claim. http://www.tba.org/tba_files/TCA/milhousc.wpd
LOIS LYNN MILLER v. JAMES EARL MILLER Court:TCA Attorneys: Jack Green, Nashville, For Appellant, James Earl Miller Robert L. Jackson, Nashville; Larry Hayes, Jr., Nashville, For Appellee, Lois Lynn Miller Judge: CRAWFORD First Paragraph: In this divorce, both Husband and Wife have appealed contesting the trial court's division of marital property and alimony awards. The division of marital property is affirmed, alimony awards are modified, and the case is remanded for a determination of the value of Husband's retirement plan and a proper division thereof. http://www.tba.org/tba_files/TCA/millerloi.wpd
DAVID A. SCHOLZ v. S.B. INTERNATIONAL, INC. Court:TCA Attorneys: W. Gary Blackburn and William J. Shreffler, Nashville, Tennessee, for the appellant, David A. Scholz. Clark H. Tidwell and Jordan S. Keller, Nashville, Tennessee, for the appellee, S.B. International, Inc. Judge: KOCH First Paragraph: This appeal arises from a dispute over the severance benefits in an employment contract. Following his termination, a corporate officer filed suit against his former employer in the Chancery Court for Davidson County seeking his severance benefits. The employer asserted that its former officer was not entitled to the severance benefits. Following a jury trial, the trial court entered a judgment awarding the officer $111,623.33 but denying his requests for prejudgment interest and discretionary costs. On this appeal, the officer asserts that the trial court erred by failing to award him prejudgment interest and discretionary costs. We agree and, therefore, remand the case for further proceedings. http://www.tba.org/tba_files/TCA/scholzda.wpd
KEN SHUMAN v. JAMES PARKHURST d/b/a PARKHURST HOME IMPROVEMENT Court:TCA Attorneys: John R. Phillips, Jr., Gallatin, Tennessee, for the appellant, James Parkhurst d/b/a Parkhurst Home Improvement. C. Tracey Parks, Gallatin, Tennessee, for the appellee, Ken Shuman. Judge: FARMER First Paragraph: James Parkhurst d/b/a Parkhurst Home Improvement appeals the trial court's final judgment awarding Ken Shuman $8,021.14 in actual damages for breach of oral construction contract and $2,406.33 in attorney's fees based upon a finding of fraud in violation of the Tennessee Consumer Protection Act. Parkhurst raised two issues on appeal, contending that the damages awarded in this home construction dispute were not legally warranted and that the trial court erred in finding fraud, therefore justifying an award for attorney's fees under the Act. We conclude that Shuman presented sufficient proof to find a violation of the Act and to support his claim for damages and for attorney's fees. Accordingly, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCA/shumank.wpd
JASON SLOAN d/b/a SLOAN CONSTRUCTION v. SHELBY RAY PERRYMAN, JR., et al. Court:TCA Attorneys: L. Robert Grefseng, Columbia, for Appellant Thomas F. Bloom, Nashville, for Appellees Shelby and Jamie Perryman Scott C. Williams, Columbia, for Appellee First Farmers & Merchants National Bank of Columbia Judge: HIGHERS First Paragraph: This appeal arises from a breach of contract suit and action to assert priority of a mechanics lien filed by Jason Sloan ("Contractor") against Shelby Ray Perryman ("Owners") and First Farmers & Merchants National Bank ("Bank"). Contractor sought recovery for labor and materials under the contract including expenses that exceeded Contractor's original bid price. In the alternative, Contractor sought recovery under quantum meruit. The court granted Bank's motion for summary judgment on the issue of priority of liens. Following trial, the court awarded Contractor damages under an implied contract theory, limiting Contractor's recovery to the bid price. In addition, the court denied Contractor's claim for alternative recovery in quantum meruit. Contractor appeals. http://www.tba.org/tba_files/TCA/sloanjason.wpd
ANGELA L. SPURLOCK, et al. v. JACKSON COUNTY, TENNESSEE, et al. Court:TCA Attorneys: Wm. Gerald McCaskill, Jr. and Ernest D. Bennett, III, Nashville, Tennessee, for the appellant, Angela L. Spurlock. Daniel H. Rader, III, Cookeville, Tennessee, for the appellees, Jackson County, Tennessee, and Charles McBroom, Jackson County Sheriff. Jerry Jared, Cookeville, Tennessee, for the intervening petitioner, Tennessee Farmers Mutual Insurance Company. Judge: CANTRELL First Paragraph: The appellants were hurt in a collision with a subject allegedly being pursued by county officers in a high speed chase. They sued the county, and the Circuit Court of Jackson County granted the county summary judgment. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/spurlockal.wpd
JEROME STREETER v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Jerome Streeter, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; and Pamela S. Lorch, Assistant Attorney General, for the appellee, Tennessee Department of Correction. Judge: CANTRELL First Paragraph: A prison inmate claimed that he was entitled to be released, because he had earned the required sentence reduction credits. The Department of Correction disagreed. The trial court granted summary judgment to the Department on the basis of laches. We affirm the trial court's judgment, but upon a different basis. http://www.tba.org/tba_files/TCA/streeterj.wpd
UNION PLANTERS BANK OF MIDDLE TENNESSEE v. CAROL CHOATE, et al. Court:TCA Attorneys: Robert A. Anderson, Nashville, for Appellant Marcy S. Hardee, Franklin, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a breach of contract case filed against Mickie Davis ("Davis") by Carole Choate ("Choate"). Choate alleged that Davis breached her contractual and fiduciary duties by authorizing release of funds to Rochford Realty ("Rochford") for a construction project. The trial court granted Davis' motion for summary judgment. Choate appeals. http://www.tba.org/tba_files/TCA/upvchoate.wpd
LINDA JEAN ZETTERSTEN v. ROLF BIRGER ZETTERSTEN Court:TCA Attorneys: Mary Frances Lyle, Nashville, for Appellant Maclin P. Davis, Jr., Caroline Thomas Trost, Nashville, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from an action for divorce and division of marital assets. The court below granted Linda Jean Zettersten ("Wife") a divorce on grounds of Rolf Birger Zettersten's ("Husband's") stipulation of inappropriate marital conduct; awarded Wife alimony in futuro and rehabilitative alimony and child support for the parties' minor child; awarded Wife $11,923.50 in attorney's fees, discretionary costs and court costs. Wife appeals. http://www.tba.org/tba_files/TCA/zetterstenlinda.wpd
WILLIE JAMES ROBINSON, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Assistant District Public Defender, for the appellant, Willie James Robinson, Jr. Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; J. Scott McCluen, District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant seeks habeas corpus relief from two life sentences, claiming that the sentences are void because the trial judge failed to sign the judgments or the minutes. We hold that the failure to sign the judgments and the minutes does not render the petitioner's sentences void. The trial court is affirmed. http://www.tba.org/tba_files/TCCA/robinsonwj.wpd

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