January 22, 2001
Volume 7 -- Number 014

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):
 
00 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
11 New Opinion(s) from the Tennessee Court of Appeals
04 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

ALPHA FINANCIAL SERVICES, INC., v. KARL KINDERVATER
WITH CONCURRING OPINION

Court:TCA

Attorneys:

R. Deno Cole, Knoxville, Tennessee, for Defendant-Appellant, Karl
Kindervater.

Stephen R. Beckham, Chattanooga, Tennessee, for Plaintiff-Appellee,
Alpha Financial Services, Inc.
                        
Judge: FRANKS

First Paragraph:

This is a dispute over the amount of debt owing under a factoring
agreement for which the defendant signed a "continuing guaranty."  The
Trial Court granted summary judgment.  We vacate.

http://www.tba.org/tba_files/TCA/alphafinser_opn.wpd


CONCURRING OPINION
http://www.tba.org/tba_files/TCA/alphafinser_con.wpd


MARIE CROWNOVER v. FREDIA WADLEY, COMMISSIONER TENNESSEE DEPARTMENT OF HEALTH, BUREAU OF TENNCARE Court:TCA Attorneys: Debra L. House, Cleveland, Tennessee, for the appellant, Marie Crownover. Paul G. Summers, Attorney General and Reporter; John W. Dalton, Assistant Attorney General, Nashville, Tennessee, for the appellee, Fredia Wadley, Commissioner Tennessee Department of Health, Bureau of Tenncare. Judge: CAIN First Paragraph: This appeal involves judicial review of an administrative decision. The issue on this appeal is whether the chancery court properly dismissed this case based on the Petitioner's failure to timely file the Petition for Review within the sixty (60) day requirement pursuant to T.C.A. S 4-5-322(b)(1). The Tennessee Department of Health, Bureau of TennCare denied the Petitioner coverage for adult dental services. The Petitioner appealed the denial which resulted in an administrative hearing in which the denial of benefits was upheld. Next, the Petitioner filed a Petition for Review in the Chancery Court for Davidson County sixty-three (63) days after the entry of the final order. The Respondent filed a motion to dismiss. The motion to dismiss was granted on jurisdictional grounds. We affirm the order of dismissal because the Petitioner did not file her petition within the sixty(60) day mandatory, jurisdictional requirement. http://www.tba.org/tba_files/TCA/crownovermarie.wpd
CUSTOM PACKAGING, INC. v. PATTI HOLLIDAY, et al. Court:TCA Attorneys: John E. Buffaloe, Jr., Nashville, Tennessee, for the Appellant, Custom Packaging, Inc. John P. Newton, Jr., Knoxville, Tennessee, for the Appellee, Patti Holliday Judge: GODDARD First Paragraph: Custom Packaging, Inc., appeals a summary judgment granted against it in its suit seeking recovery on a sworn account for merchandise sold according to the complaint to "Patti Holliday, Ind. & d/b/a Repeat Fibre." The Trial Court sustained Ms. Holliday's motion for summary judgment, finding there are no material disputed facts. We vacate the judgment below and remand the case for further proceedings. http://www.tba.org/tba_files/TCA/custompack.wpd
RICHARD E. GARRISON v. KEVIN L. BURCH Court:TCA Attorneys: Clark Lee Shaw, Nashville, Tennessee, for the appellant, Kevin L. Burch. Richard E. Garrison, Nashville, Tennessee, Pro Se. Judge: KOCH First Paragraph: This appeal involves a dispute regarding an order of protection. After the petitioner was threatened and attacked by his girlfriend's former husband, he sought an order of protection from the Davidson County General Sessions Court. The general sessions court granted the order of protection, and the former husband appealed to this court. We reverse and vacate the general sessions court's order because the parties are not within the degree of relationship required by the statute authorizing the issuance of orders of protection. http://www.tba.org/tba_files/TCA/garrisonre.wpd
JANINE S. TAYLOR HINES v. RICHARD MICHAEL TILIMON Court:TCA Attorneys: Laura Rule, Knoxville, Tennessee, for the appellant, Richard Michael Tilimon. Jonathan A. Moffatt, Knoxville, Tennessee, for the appellee, Janine S. Taylor Hines. Paul G. Summers, Attorney General and Reporter, and Kim Beals, Assistant Attorney General, for the State of Tennessee. Judge: SUSANO First Paragraph: This is an interstate custody dispute. Janine S. Taylor Hines ("Mother") filed this action seeking a declaratory judgment pertaining to the custody of the parties' minor child. She also sought to modify certain foreign orders pertaining to the visitation rights of the defendant, Richard Michael Tilimon ("Father"). The trial court (a) entered a default judgment against Father, (b) declared Tennessee to be the child's home state, (c) decreed that custody would remain with Mother, and (d) limited Father's visitation to supervised visits in the state of Tennessee. The court later denied Father's motion to set aside the default judgment. Father appeals, raising issues as to subject matter jurisdiction, in personam jurisdiction, venue, and service of process. He also argues that the trial court erred (1) in denying his request for a continuance of the hearing on the plaintiff's motion for default judgment; (2) in not allowing him to participate by telephone in the hearing on his motion to set aside the default judgment; (3) in denying his motion to set aside the default judgment; (4) in ordering supervised visitation; and (5) in awarding Mother her attorney's fees. By a separate issue, Mother seeks attorney's fees for this appeal. We affirm and remand for a hearing to set Mother's fees on appeal. http://www.tba.org/tba_files/TCA/hinesjst.wpd
CHARLES MONTAGUE v. TENNESSEE DEPARTMENT OF CORRECTION, et al. Court:TCA Attorneys: Charles Montague, Nashville, Tennessee, Pro Se. John Knox Walkup, Attorney General and Reporter; Michael E. Moore, Solicitor General, and Sohnia W. Hong, Assistant Attorney General, Nashville, Tennessee, for the appellees, Tennessee Department of Correction and Warden Howard Carlton Judge: CAIN First Paragraph: This Court determined a previous appeal by Charles Montague to be frivolous and remanded the case to the trial court to set attorney's fees. The state submitted evidence of attorney's fees incurred, both in the trial court and in this Court. Montague appeals and we modify the judgment of the trial court so as to only allow attorney's fees on the initial appeal. http://www.tba.org/tba_files/TCA/montaguecharles.wpd
KALLEY DEE FREY MUIRHEAD v. SCOTT ALLEN MUIRHEAD Court:TCA Attorneys: David B. Lyons, Nashville, Tennessee, for the appellant, Kalley Dee Frey Muirhead. John M. L. Brown, Nashville, Tennessee, for the appellee, Scott Allen Muirhead. Judge: CAIN First Paragraph: This appeal involves the custody of four minor children following dissolution of a sixteen (16) year marriage. The trial court awarded a divorce to Father on the ground of inappropriate marital conduct but awarded custody of the parties' four minor children to Mother. The trial court set child support, awarded rehabilitative alimony, and divided the marital property, awarding Mother the marital residence. The Mother appeals the property division and alimony award. The Father appeals the award of custody. We reverse the trial court's award of custody because Father is comparatively more fit than Mother to have custody, modify the award of rehabilitative alimony, vacate the child support award, and remand to the trial court for child support and visitation issues. http://www.tba.org/tba_files/TCA/muirheadkalley.wpd
WILLIE PERRY v. TENNESSEE BOARD OF PAROLES, et al. Court:TCA Attorneys: Willie Perry, Jr., Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Patricia C. Kussmann, Assistant Attorney General, for the appellees, Tennessee Board of Paroles; Charles Traughber, Chairperson; Tom Biggs, Vice Chairperson; Don Dills; Rose Hill; John Harwell; Ancel McDuffee; and Larry Hassell, Board Members. Judge: KOCH First Paragraph: This appeal involves a prisoner's efforts to be released on parole. After the Tennessee Board of Paroles declined to release him on parole, the prisoner filed petitions for both common-law and statutory certiorari in the Chancery Court for Davidson County asserting that the Board had acted illegally, arbitrarily, and fraudulently. The trial court dismissed the prisoner's petition. We affirm. http://www.tba.org/tba_files/TCA/perryw.wpd
WILLIE PERRY v. DONAL CAMPBELL, et al. Court:TCA Attorneys: Willie Perry, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Elena J. Xoinis, Assistant Attorney General, for the appellees, Donal Campbell; West Tennessee High Security Facility Disciplinary Board; Warden Robert Conley; Sgt. Lloyd Moore; Janice Sanders; Greg Helton; and Dennis Talley. Judge: KOCH First Paragraph: This appeal involves a prisoner's challenge to a prison disciplinary board's decision to place him in involuntary administrative segregation. After exhausting his remedies within the Department of Correction, the prisoner filed petitions for a common-law and a statutory writ of certiorari in the Chancery Court for Davidson County complaining that he had been denied the right to call witnesses, that the board's decision was racially motivated, and that the board's decision lacked evidentiary support. The trial court granted the State's motion for summary judgment and dismissed the prisoner's petitions. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCA/perrywillie.wpd
TERRY W. STONE v. FAULKNER, MACKIE & COCHRAN, et al. Court:TCA Attorneys: James L. Harris, Nashville, Tennessee, for the appellant, Terry Stone. H. Rowan Leathers, III, Nashville, Tennessee, for the appellees, Faulker, Mackie & Cochran, P.C., and David Cochran, individually. Judge: CAIN First Paragraph: Plaintiff, Terry Stone d/b/a Medical Claims and Collections Specialist, sued Defendants, David Cochran, and Faulkner, Mackie & Cochran, for interference with contractual and business relationships between Plaintiff and Plaintiff's third-party client, Levine & Sharp Associates. The trial court granted Defendants' motion for summary judgment in this matter finding no genuine issue of material fact and dismissed Plaintiff's claims. The question presented to the Court is whether or not there are genuine issues of material fact such that the trial court erred in granting Defendants' Motion for Summary Judgment on the claim for interference with a business relationship. We affirm the trial court's dismissal of this claim. http://www.tba.org/tba_files/TCA/stoneterry.wpd
SARA ETHEL WEST and JERRY KEITH WEST, v. LOWELL JUSTIN WIKRE Court:TCA Attorneys: Paul G. Whetstone, Morristown, Tennessee, for Appellants, Sara Ethel West and Jerry Keith West. Angela M. Cirina, Chattanooga, Tennessee, and John F. Kimball, Cleveland, Tennessee, for Appellee, Lowell Justin Wikre. Judge: FRANKS First Paragraph: The plaintiffs refused to comply with the Rules of Discovery and the Trial Court as a sanction dismissed the suit. We affirm. http://www.tba.org/tba_files/TCA/wests.wpd
STATE OF TENNESSEE v. DARRON LENON Court:TCCA Attorneys: Tom W. Crider, District Public Defender; and Kevin McAlpin, Assistant Public Defender, later substituted by Shannon A. Jones, Humboldt, Tennessee, for the appellant, Darron Lenon. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; Clayburn Peeples, District Attorney General; and William Bowen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: In this case the Defendant, Darron Lenon, was found guilty of unlawful delivery of a Schedule II controlled substance, a Class B felony, following a jury trial. The trial court imposed a maximum Range I sentence of twelve years. In this appeal, the Defendant, in three issues, argues that the trial court erroneously applied an enhancement factor; failed to apply a mitigating factor; and failed to follow the mandates of the Tennessee Criminal Sentencing Reform Act of 1989. The Defendant asks this court to reverse the trial court and impose the minimum sentence of eight years. We decline to do so, and therefore affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lenond.wpd
HAROLD WAYNE NICHOLS v. STATE OF TENNESSEE Court:TCCA Attorneys: Ardena J. Garth, District Public Defender; Mary Ann Green, Assistant Public Defender; and Donald E. Dawson, Post-Conviction Defender, for the appellant, Harold Wayne Nichols. Paul G. Summers, Attorney General and Reporter; Marvin S. Blair, Assistant Attorney General; William H. Cox, III, District Attorney General; C. Leland Davis, Assistant District Attorney General; C. Caldwell Huckabay, Assistant District Attorney General; and Glenn R. Pruden, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner filed petitions for post-conviction relief for his conviction for first degree felony murder and his sentence of death, as well as for a number of convictions for sexual attacks on four additional victims. The bases of his complaints were that he had ineffective assistance of counsel at both the guilt and punishment phases of his capital trial, as well as in the noncapital cases, two of which were resolved by pleas of guilty. Specifically, he claimed that counsel failed to adequately investigate and prepare his cases; failed to question the probable cause for his arrest; and failed to question whether his confessions were "false." He raised additional claims of ineffective assistance of counsel and claims regarding the unconstitutionality of the imposition of capital punishment. The post-conviction court denied the claims other than to order new sentencing hearings in the noncapital cases. The petitioner then timely appealed the post-conviction court's rulings, other than the ordering of new sentencing hearings. We have carefully reviewed the record and, based upon our review, we affirm the judgments of the post-conviction court. http://www.tba.org/tba_files/TCCA/nicholshw.wpd
JAMES RINES v. STATE OF TENNESSEE Court:TCCA Attorneys: James Rines, Pro Se Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; James B. Dunn, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner appeals the trial court's dismissal of his "petition to correct illegal judgment/sentence." Finding no basis for a rightful appeal or a discretionary appeal via the common law writ of certiorari, we dismiss the appeal. http://www.tba.org/tba_files/TCCA/rinesj.wpd
STATE OF TENNESSEE v. JOHN RUFF WITH CONCURRING OPINION Court:TCCA Attorneys: John Ruff, Memphis, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Thomas Hoover, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, John Ruff, appeals the dismissal without prejudice of the charges against him. He asks this Court to enter an order dismissing his case with prejudice. We hold that the trial court properly dismissed the charges against the Defendant without prejudice; thus, we affirm the action of the trial court. http://www.tba.org/tba_files/TCCA/ruffj_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/ruffj_con.wpd

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