Opinion FlashOctober 29, 2002
Volume 8 Number 191
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):
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Howard H. Vogel
NIKKI LYNN HERRINGTON BOWIE v. RICHARD ROY BOWIE Court:TCA Attorneys: James F. Logan, Jr., Cleveland, Tennessee, for the Appellant, Richard Roy Bowie. Charles H. Child, Knoxville, Tennessee, for the Appellee, Nikki Lynn Herrington Bowie. Judge: SWINEY First Paragraph: Richard Roy Bowie ("Husband") and Nikki Lynn Herrington Bowie ("Wife") were divorced in 2000. Wife was awarded sole custody of the couple's young child. Husband was granted visitation pursuant to a custody agreement filed March 1, 2000. The Trial Court found that Wife's monthly need was $7,200, but that Husband was unable to pay this amount. The Trial Court awarded Wife monthly child support in the amount of $1,057, and alimony in futuro of $1,500 per month. Husband appeals the type of alimony awarded to the Wife, the Trial Court's finding regarding the amount of Wife's monthly need, and the amount of alimony awarded. Wife raises an additional issue regarding whether the Trial Court erred in not awarding her attorney's fees. We affirm. http://www.tba.org/tba_files/TCA/bowienlh.wpd
JAMES EDWARDS, et al. v. BANCO LUMBER COMPANY, INC. et al. Court:TCA Attorneys: J. Russell Pryor, Greeneville, Tennessee, for the Appellants James Edwards and Margaret Edwards. William B. Lawson, Erwin, Tennessee, for the Appellee Banco Lumber Company, Inc. Douglas K. Shults, Erwin, Tennessee, for the Appellees Nathan Byrd, Betty Byrd, Fred Byrd, and Barbara Byrd. Judge: SWINEY First Paragraph: James and Margaret Edwards ("Plaintiffs") sued Banco Lumber Company Inc., ("Banco") claiming Banco had trespassed on their property and removed timber. Banco filed a third-party complaint against Nathan Byrd, Betty Byrd, Fred Byrd, and Barbara Byrd (the "Byrds") for indemnification relying on a Timber Deed and Contract between Banco and the Byrds. Plaintiffs nonsuited their action against Banco and an Order was entered on May 16, 2000, dismissing only Plaintiffs' action. Apparently realizing this was not a final order, the Trial Court entered a "Final Order" three days later which disposed of not only Plaintiffs' claims but also Banco's third-party complaint against the Byrds. Plaintiffs re-filed their lawsuit against Banco one year and two days after the first order was entered, but less than a year after the "Final Order" was entered. Plaintiffs also sued the Byrds, for the first time, in this second complaint. The Trial Court held the entry date of the first Order should be used when determining whether the second complaint had been re-filed within the one-year time period under the "Saving Statute." The Trial Court dismissed Plaintiffs' claims against Banco and the Byrds holding the statute of limitations had run. We vacate in part and affirm in part. http://www.tba.org/tba_files/TCA/edwardsj.wpd
BASIL MARCEAUX v. CHATTANOOGA PRINTING Court:TCA Attorneys: Basil Marceaux, Soddy Daisy, Tennessee, pro se Appellant. Arthur C. Grisham, Jr., Chattanooga, Tennessee, for the Appellee, Chattanooga Printing. Judge: SWINEY First Paragraph: Basil Marceaux ("Mr. Marceaux") sued Chattanooga Printing for the loss or destruction of certain printing plates. The Trial Court found that Mr. Marceaux failed to carry the burden of proof showing he owned or had any ownership interest in the printing plates. The record contains neither a transcript nor a statement of the evidence. Mr. Marceaux appeals. We affirm. http://www.tba.org/tba_files/TCA/marceauxb.wpd
RICHARD R. PEYTON, M.D. v. JOHNSON CITY MEDICAL CENTER Court:TCA Attorneys: Howell H. Sherrod, Johnson City, Tennessee, for the Appellant Richard R. Peyton, M.D. Ronald T. Hill, Knoxville, Tennessee, for the Appellee Johnson City Medical Center. William B. Hubbard, Robyn E. Smith, William L. Penny, Nashville, Tennessee, for Amici Curiae Tennessee Hospital Association and Hospital Alliance of Tennessee. Andrew Yarnell Beatty, Nashville, Tennessee, for Amici Curiae, Tennessee Medical Association and American College of Radiology. Thomas C. Jessee, Johnson City, Tennessee, Andrew L. Schlafly, Far Hills, New Jersey, for Amicus Curiae The Association of American Physicians and Surgeons. Judge: SWINEY First Paragraph: In April of 1994, Johnson City Medical Center (the "Hospital") summarily suspended the hospital privileges of Dr. Richard R. Peyton ("Dr. Peyton"). Dr. Peyton was told the reason for this action and about his right to request a hearing. Dr. Peyton requested a hearing, which took place over three days and in which 18 witnesses testified. After the hearing, the decision to revoke Dr. Peyton's hospital privileges was upheld by the hearing panel. Dr. Peyton appealed this decision, all to no avail, through the Hospital's internal appeal procedures. Dr. Peyton then filed suit claiming his hospital privileges were improperly revoked and sought injunctive relief and monetary damages in the amount of ten million dollars. The Trial Court granted the Hospital's motion for partial summary judgment pursuant to the federal Health Care Quality Improvement Act of 1986, 42 U.S.C. S 11101, et seq. This decision effectively prevented Dr. Peyton from receiving any monetary damages. Dr. Peyton appeals the granting of partial summary judgment. We affirm. http://www.tba.org/tba_files/TCA/peytonr.wpd
STATE OF TENNESSEE ex rel. NANCY SCHLEIGH v. STEVEN SCHLEIGH, JR. Court:TCA Attorneys: Paul Summers and Stuart Wilson-Patton, Nashville, Tennessee, for the Appellant State of Tennessee ex rel. Nancy Schleigh. Roger D. Hyman, Powell, Tennessee, for the Appellee Steven Schleigh, Jr. Judge: SWINEY First Paragraph: This is an action to enforce a child support order entered against Steven Schleigh in another state. After the State of Tennessee filed a petition seeking enforcement of the out-of-state order, Steven Schleigh denied he was the biological father of the minor child. The Referee entered an order requiring both Mr. and Ms. Schleigh to submit to DNA testing. When Ms. Schleigh did not comply with this order, the Referee recommended the case be dismissed. The Trial Court confirmed the findings of the Referee and dismissed the case. The State appeals. We reverse. http://www.tba.org/tba_files/TCA/schleighn.wpd
AARON DEL SHANNON v. DARLA JEAN SHANNON Court:TCA Attorneys: Rebecca A. Bell, Knoxville, Tennessee, for the appellant, Darla Jean Shannon. D. Vance Martin, Knoxville, Tennessee, for the appellee, Aaron Del Shannon. Judge: SUSANO First Paragraph: In this post-divorce case, Aaron Del Shannon ("Father") filed a petition against his former wife, Darla Jean Shannon ("Mother"), seeking to modify the parties' divorce judgment, which judgment, inter alia, had awarded Mother custody of the parties' two minor children. In his petition, Father sought a change of custody and asked to be named primary residential parent of the children. The trial court found a substantial and material change of circumstances and granted Father's petition. We reverse. http://www.tba.org/tba_files/TCA/shannonad.wpd
FLOYD MICHAEL WOODY v. JOY DARLENE WOODY Court:TCA Attorneys: P. Richard Talley, Dandridge, Tennessee, for the Appellant, Floyd Michael Woody Paul Whetstone, Mosheim, Tennessee, for the Appellee, Joy Darlene Woody Judge: GODDARD First Paragraph: In this case from the Chancery Court of Hamblen County the Appellant, Floyd Michael Woody contends that the Trial Court erred in amending a final judgment for divorce to include one half of his pension fund as part of the marital property to be awarded the Appellee, Joy Darlene Woody. The judgment of the Trial Court is affirmed as modified. http://www.tba.org/tba_files/TCA/woodyfloyd.wpd
STATE OF TENNESSEE v. JAMES L. PARTIN Corrected Opinion Court:TCCA Attorneys: Michael G. Hatmaker, Jacksboro, Tennessee for the appellant, James L. Partin. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; William Paul Phillips, District Attorney General; Jared Effler, Assistant District Attorney General; and Todd Longmire, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, James L. Partin, was indicted for the offenses of second degree murder, aggravated assault, three counts of felony reckless endangerment, and unlawful possession of a weapon with intent to use it in the commission of felony reckless endangerment. Pursuant to a negotiated plea agreement, Defendant pled guilty to voluntary manslaughter, a lesser-included offense of second degree murder, and all other charges were dismissed. The plea agreement further provided that the trial court would determine the length and manner of service of Defendant's sentence, with the sole parameter being that he be sentenced as a standard Range I offender. Following a sentencing hearing, the trial court ordered that Defendant serve five years in confinement in the Department of Correction. In this appeal, Defendant contends that the trial court erred in determining the length and manner of service of his sentence. After a thorough review of the sentencing proceeding, we affirm the judgment of the trial court concerning the length of Defendant's sentence. We reverse the trial court's judgment regarding manner of service, however, and order that Defendant serve his sentence on split-confinement. http://www.tba.org/tba_files/TCCA/partinjameslcx.wpd
STATE OF TENNESSEE v. JAMES DALE WALKER Corrected Opinion Court:TCCA Attorneys: George Waters, District Public Defender, Maryville, Tennessee, and Steve McEwen, Mountain City, Tennessee, for the appellant, James Dale Walker. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Mike Flynn, District Attorney General; and John Bobo, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, James Dale Walker, pled guilty to aggravated sexual exploitation of a minor, a Class C felony, and sexual exploitation of a minor, a Class E felony. Pursuant to the plea agreement, the Defendant received concurrent sentences of six years and two years, respectively, with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court denied alternative sentencing and ordered the Defendant to serve his effective sentence of six years in the Department of Correction. It is from this order that the Defendant now appeals as of right. We reverse the trial court's order that the Defendant serve his sentences in total confinement and remand to the trial court for consideration of some form of alternative sentence. http://www.tba.org/tba_files/TCCA/walkerjdcx.wpd
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