Opinion Flash

October 16, 2002
Volume 8 — Number 182

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

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
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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


MOHAMED ALI v. TENNESSEE BOARD OF PAROLES

Court:TCA

Attorneys:   

Mohamed Ali, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General; Michael E. Moore, Solicitor
General; and Mark A. Hudson, Senior Counsel, for the appellee,
Tennessee Board of Paroles.                       

Judge: CAIN

First Paragraph:

Appellant, an inmate of the Department of Corrections, appeals the
dismissal of his Petition for Certiorari in the Chancery Court of
Davidson County.  He was convicted in 1993 of one count of rape and
one count of attempted bribery of a witness.  He received sentences of
twelve years and three years, respectively, to be served
consecutively.  He seeks mandatory parole under Tennessee Code
Annotated section 40-28-117(b) and other relief.  We affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCA/alim1.wpd

JOHN ASBURY and DIANA ASBURY v. LAGONIA-SHERMAN, LLC and LAGONIA REALTY

Court:TCA

Attorneys:

Kevin A. Snider, Germantown, Tennessee, for the appellants John Asbury
and Diana Asbury.

John B. Turner, Jr., Germantown, Tennessee, for appellees
Lagonia-Sherman, LLC and Lagonia Realty.                         

Judge: LILLARD

First Paragraph:

This appeal arises from the sale of real property.  Prior to closing,
the buyers questioned the sellers about the property lines.  The
sellers contacted a surveyor to mark the property corners.  The buyers
did not receive the survey prior to the closing, but nevertheless went
ahead with the closing.  After the closing, the buyers received the
survey.  It showed less square footage than what the buyers allege had
been represented to them.  The buyers filed a lawsuit against the
sellers, alleging breach of contract, unjust enrichment, detrimental
reliance, fraud or misrepresentation, and violation of the Tennessee
Consumer Protection Act.  The sellers filed a
motion),ie(Ae),OEefailure to s)Yev  a claim upon which relief may
be granted, or, in the alternative, for summary judgment.  The trial
court dismissed the buyers' claim.  On appeal, buyers argue that the
trial court erred in dismissing their case, and that genuine issues of
fact remain.  We affirm, on the basis that the buyers failed to look
at the publicly recorded plat on the property, referenced in the sales
contract.

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

JOHN ASBURY and DIANA ASBURY v. LAGONIA-SHERMAN, LLC and LAGONIA REALTY

Court:TCA

BAILEY DISSENTING

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

BARRY DUANE BERNSTEIN  v.  DEBRA DARLENE BILL BERNSTEIN

Court:TCA

Attorneys:

Sam E. Wallace, Jr., Nashville, Tennessee, for the appellant, Barry
Duane Bernstein.

D. Scott Parsley, Nashville, Tennessee, for the appellee, Debra
Darlene Bill Bernstein.                        

Judge: KOCH

First Paragraph:

This appeal involves the dissolution of a nineteen-year marriage. 
After the husband filed a complaint in the Circuit Court for Davidson
County seeking a divorce on the grounds of irreconcilable differences
and inappropriate marital conduct, the wife counterclaimed for divorce
on the same grounds.  Following a bench trial, the trial court
declared the parties divorced, divided their meager marital estate,
and ordered the husband to pay the wife $350 per month as long-term
spousal support.  The husband asserts on this appeal that he is unable
to pay the amount of long-term spousal support ordered by the trial
court.  We disagree and have determined that the record supports the
trial court's decision regarding spousal support.

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

RONNIE LYNN CARROLL v. NANCY GAY BRADEN (AGRESTA) v. JAMES PALMER

Court:TCA

Attorneys:

Greg Alford, Dyersbug, TN, for Appellant

Marianna Williams, Dyersburg, TN, for Appellee                          

Judge: HIGHERS

First Paragraph:

This appeal involves a disputed tract of land that the third-party
plaintiff allegedly purchased in 1983 and received a deed for in 1987.
 The trial court held that plaintiff's statutes of limitation had
expired and granted a motion for summary judgment in favor of the
third-party defendant who executed the deed.  For the following
reasons, we affirm.

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

VINCENT J. CUSANO, a/k/a-p/k/a VINNIE VINCENT v. STERLING/McFADDEN
PARTNERSHIP, d/b/a METAL EDGE, ET AL.

Court:TCA

Attorneys:

J. William Lincoln, III, Nashville, Tennessee, and Theodore M.
Greenberg, New York, New York, for appellees, Sterling/McFadden
Partnership, d/b/a Metal Edge Magazine and Sterling's Magazines, Inc.                        

Judge: CANTRELL

First Paragraph:

The plaintiff filed this action for damages for breach of contract
alleging that he telephoned the publisher's office of a specialty
magazine to discuss the insertion of an ad extolling and advertising
his talents and product, and that the ad coordinator to whom he talked
agreed to insert the ad.  The ad coordinator called the plaintiff a
few days later and informed him that the proposed ad was not
acceptable.  A principal issue was whether the ad coordinator, as
agent, had the apparent authority to bind the magazine.  The
Chancellor concluded that the agent had the requisite apparent
authority because, in effect, he never told the plaintiff that he had
no authority to bind the magazine, but that the plaintiff was entitled
to recover only nominal damages.  The judgment is reversed upon a
finding that agency cannot be proved solely by statements of the
agent.

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

STATE OF TENNESSEE v. TAMBERLEY LORRAINE DANIELS

Court:TCA

Attorneys: 

John P. Cauley, Franklin, Tennessee, for the appellant, Tamberley
Lorraine Daniels.

Paul G. Summers, Attorney General and Reporter; and Elizabeth,
Assistant Attorney General, for the appellee, State of Tennessee,
Department of Children's Services.

Judge: CAIN

First Paragraph:

The non-custodial parent of two minor girls appeals the decision of
the Juvenile Court of Hickman County terminating her parental rights
on the grounds of willful abandonment.  We affirm the action of the
trial court.

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

FORREST CATE MOTOR COMPANY, INC. v. DEALER COMPUTER SERVICES, INC.

Court:TCA

Attorneys:

Catherine M. White, Chattanooga, Tennessee, for the appellant, Forrest
Cate Motor Company, Inc.

Thomas O. Helton and Cameron S. Hill, Chattanooga, Tennessee, for the
appellee, Dealer Computer Services, Inc.                           

Judge: CAIN

First Paragraph:

Plaintiff appeals a declaratory judgment wherein the trial judge held
that the mandatory arbitration provisions in the contract between the
parties controlled and declared accordingly.  We affirm.

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

ROBIN A. HOWELL v. CITY OF COLUMBIA

Court:TCA

Attorneys:

Gary Howell, Columbia, Tennessee, for the appellant, Robin A. Howell.

Patrick A. Flynn, Columbia, Tennessee, for the appellee, City of
Columbia.                        

Judge: COTTRELL

First Paragraph:

Petitioner, a police officer, filed a petition in Maury County
Chancery Court pursuant to Tenn. Code Ann. S 4-5-322 seeking review of
a decision of the Civil Service Board for the City of Columbia.  After
the Department of Narcotics and Vice, including Petitioner's position
as Deputy Chief, was abolished by city ordinance, the Civil Service
Board determined that the City Manager was justified in returning
Petitioner to his previously held position with the City of Columbia
Police Department as a patrolman at a lower rate of pay.  The court
dismissed the petition finding that the actions of the City did not
contravene the City Charter or deny the Petitioner due process of law.
 We affirm the decision of the trial court.

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

HENRY FRANK KERR, JR., et al. v. EARL LEMOINE

Court:TCA

Attorneys:

Paul R. White, Nashville, Tennessee, for the appellant, Earl Lemoine.

Henry Frank Kerr, Jr. and Gretchen Kathleen Kerr, Mt. Juliet,
Tennessee, Pro Se.

Judge: CAIN

First Paragraph:

Appellant judgment creditor appeals from the action of the trial court
in post-judgment proceedings allowing installment payments of the
underlying judgment.  The record before the Court is inadequate for
appellate review, and acting within our discretion, we remand the case
to the trial court for further proceedings.

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

ANNA LAMB v. STATE OF TENNESSEE

Court:TCA

Attorneys:

John H. Little and Lynda Simmons, Livingston, Tennessee, and Onnie L.
Winebarger, Byrdstown, Tennessee, for the appellant, Anna Lamb.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Martha A. Tarleton, Senior Counsel, for the
appellee, State of Tennessee.                       

Judge: KOCH

First Paragraph:

This appeal stems from a mother's allegations that her mentally
impaired daughter was sexually abused while in the custody of the
Alvin C. York Agricultural Institute.  The mother filed a claim on her
daughter's behalf with the Division of Claims seeking $300,000 in
damages.  The claim was transferred to the Tennessee Claims Commission
where, following a hearing, a Commissioner dismissed the claim because
the mother had failed to establish that her daughter had been sexually
abused while she was in the State's custody.  The mother asserts on
this appeal that the evidence preponderates against the Commissioner's
findings.  We affirm the Commissioner's dismissal of the claim.

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

STATE OF TENNESSEE, EX REL. ROSE PARKER v. CHARLES PARKER

Court:TCA

Attorneys: 

Paul G. Summers, Attorney General & Reporter; and Kim Beals, Assistant
Attorney General, Nashville, Tennessee, for the appellant, State of
Tennessee ex rel. Rose Parker.

Charles Parker, Nashville, Tennessee, Pro Se.

Judge: CAIN

First Paragraph:

The State of Tennessee, having provided child support services to Rose
Parker pursuant to Title IV- D of the Social Security Act, 42 USC SS
651-669, appeals the action of the trial court in retroactively
reducing the child support obligations of Charles Parker by
terminating his obligation to his two oldest children as of the date
of their respective emancipation rather than making such modification
effective only upon the filing of petitions by Mr. Parker to terminate
his obligations.  We are compelled by Tennessee Code Annotated section
35-6-101(a)(5)(2001) to reverse.

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

STATE OF TENNESSEE v. MICHAEL E. PATE

Court:TCA

Attorneys:

John P. Cauley, Franklin, Tennessee, for the appellant, Michael E.
Pate.

Paul G. Summers, Attorney General & Reporter; and Kim R. Helper,
Assistant Attorney General, Nashville, Tennessee, for the appellee,
State of Tennessee.                        

Judge: CAIN

First Paragraph:

This case originated in the Juvenile Court of Dickson County,
Tennessee and was appealed to the circuit court pursuant to Tennessee
Code Annotated section 37-1-159(a).  Michael Pate appeals the action
of the circuit court adopting the juvenile court action with slight
modifications.  We affirm the action of the trial court.

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

JUDY RODRIGUEZ v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND
DAVIDSON COUNTY

Court:TCA

Attorneys:

Phillip L. Davidson, Nashville, For Appellant, Judy Rodriguez

Kelli A. Hass, Rita M. Roberts-Turner, Nashville, For Appellee,
Metropolitan Government of Nashville and Davidson County                       

Judge: CRAWFORD

First Paragraph:

Municipal employee filed a petition for review of civil service
commission order terminating her employment.  The chancery court
affirmed the order of the commission, finding that the record
contained substantial and material evidence to support the
termination.  The employee has appealed.  We affirm.

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

CAROL L. SOLOMAN v. KLEBBER DUNKLIN MURREY

Court:TCA

Attorneys:   

Thomas Jay Norman, Nashville, Tennessee, for the appellant, Klebber
Dunklin Murrey.

D. Scott Parsley, Nashville, Tennessee, for the appellee, Carol L.
Soloman.                       

Judge: CANTRELL

First Paragraph:

Before their marriage, the parties signed a pre-nuptial agreement,
which among other things, declared their intention to "equally divide
any and all living expenses."  When they divorced, the trial court
enforced the agreement, and ordered the husband to reimburse the wife
for her far greater contribution to such expenses during the course of
the marriage.  The husband argues on appeal that the living expenses
provision should not have been enforced, because it is contrary to
public policy. We affirm the trial court.

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

JESSE E. ROGERS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

John S. Anderson, Rogersville, Tennessee, for the appellant, Jesse E.
Rogers.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; C. Berkeley Bell, District Attorney
General; and Douglas Godbee, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: MCGEE OGLE

First Paragraph:

The petitioner, Jesse E. Rogers, entered "best interest" guilty pleas
to five counts of rape of a child.  He was sentenced to twenty-five
years incarceration in the Tennessee Department of Correction for each
offense, with the sentences to be served concurrently.  The petitioner
subsequently filed for post-conviction relief.  Following an
evidentiary hearing, the post-conviction court denied relief and the
petitioner timely appealed.  We affirm the judgment of the
post-conviction court.

http://www.tba.org/tba_files/TCCA/rogersj1.wpd

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