Opinion Flash

JuLY 11, 2003
Volume 9 — Number 123

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


LAZARETH ARDOIN v. TAMMY LAVERTY

Court:TCA

Attorneys:   

Sharon T. Massey, Clarksville, Tennessee, for the appellant, Lazareth
Ardoin.

Mark A. Rassas, Julia P. North, Clarksville, Tennessee, for the
appellee, Tammy Laverty.                

Judge: COTTRELL

First Paragraph:

This appeal involves Lazareth Ardoin's attempt to obtain a judicial
declaration that he is the father of a child whose mother was married
to another man when the child was born.  The trial court found that
the twelve (12) month statute of limitations provided in Tenn. Code
Ann. S 36-2-304(B)(2)(A) had long since run and dismissed the petition
to establish paternity and visitation as untimely.  We affirm the
trial court.

http://www.tba.org/tba_files/TCA/ardoinl.wpd
								
SARAH CARLETON HIGH (NUCKOLLS) v. JAMES ROSCOE HIGH Court:TCA Attorneys: Jeffrey L. Levy, Nashville, Tennessee, for the appellant, James Roscoe High. L. L. Harrell, Jr., Trenton, Tennessee, for the appellee, Sarah Carleton High (Nuckolls). Judge: FARMER First Paragraph: This case involves an appeal from the trial court's determination of Appellant's child support and alimony arrearages, as well as the denial of a request to modify a previous award of alimony and child support. We affirm in part, reverse in part, and remand for further proceedings. http://www.tba.org/tba_files/TCA/high.wpd
PATRICK L. MCCOLLUM v. DAN HUFFSTUTTER (CORRECTED OPINION) Court:TCA Attorneys: Michael D. Noel, Nashville, For Appellant, Dan Huffstutter Stephen C. Knight, Nashville, For Appellee, Patrick L. McCollum Judge: CRAWFORD First Paragraph: This is an appeal from a Judgment on a jury verdict for Plaintiff. Plaintiff sued Defendant on grounds of trespass, abuse of process, and outrageous conduct arising from Defendant's attempt to serve a writ of possession at Plaintiff's place of business. A jury found for Plaintiff on all grounds. Defendant appeals, alleging seven grounds for reversal: (1) The Trial Court erred in not dismissing the complaint on the grounds of an executed Settlement Agreement and Full Release of All Claims; (2) The Trial Court erred in failing to grant a new trial on the grounds of newly discovered evidence; (3) The Trial Court erred in not granting Defendant's Motion for Summary Judgment, and in failing to grant the Defendant's Motion for Directed Verdict; (4) The jury verdict should be set aside and the complaint dismissed on the grounds of an oral agreement not to file civil proceedings; (5) The Trial Court erred in failing to give the special instructions requested by the Defendant; (6) The Trial Court erred in not granting a new trial on the grounds of improper conduct by counsel for the Plaintiff; (7) The verdict and remittitur were excessive and given under the influence of passion and prejudice. We affirm. http://www.tba.org/tba_files/TCA/mccullomp.wpd
MESSER GRIESHEIM INDUSTRIES, INC. D/B/A MG INDUSTRIES v. CRYOTECH OF KINGSPORT, INC., et al. Court:TCA Attorneys: Gregory M. Leitner, Chattanooga, Tennessee; Mark G. Arnold, St. Louis, Missouri and Arthur G. Seymour, Jr., Knoxville, Tennessee, for the Appellants, Messer Griesheim Industries, Inc. d/b/a MG Industries Pamela Blass Bracher, Chattanooga, Tennessee; William Randall Wilson, Chattanooga, Tennessee and Robert C. Divine, Chattanooga, Tennessee, for the Appellee, Eastman Chemical Company Judge: GODDARD First Paragraph: This appeal from the Knox County Circuit Court questions whether the Trial Court erred in granting a summary judgment in favor of the Appellee/Defendant, Eastman Chemical Company, with respect to various claims connected with the purchase and sale of contaminated carbon dioxide by the Appellant/Plaintiff, Messer Griesheim Industries, Inc., d/b/a MG Industries. We affirm in part, vacate in part and remand. http://www.tba.org/tba_files/TCA/messer.wpd
JOE CLARK MITCHELL v. CORRECTIONS CORPORATION OF AMERICA, et al. Court:TCA Attorneys: Joe Clark Mitchell, Clifton, Tennessee, Pro Se. Tom Anderson, Jackson, Tennessee, for the appellees, Corrections Corporation of America, Doctor R. Crants, Kevin Myers, Danny Scott, Edwin Hampton, Daryl Crews, Arvil Chapman, Charles Grimes, Lee Campbell, Eric Milligan, Gene Maples, Linda Rochell and LaRonda Kelly. Paul G. Summers, Attorney General and Reporter; Stephanie R. Reevers, for the appellees, Donal Campbell and Jim Rose. Judge: CANTRELL First Paragraph: An inmate in a Tennessee prison operated by Corrections Corporation of America (CCA), filed suit against CCA, twelve of its employees and officers, and four officials of the Tennessee Department of Correction (TDOC) claiming that they were responsible for the illegal confiscation of his personal property. The trial court granted summary judgment to the CCA defendants, and dismissed the complaint against the TDOC defendants for failure to state a claim. We affirm the trial court's dismissal of the TDOC defendants, but reverse the summary judgment for CCA and those of its agents who directly participated in the confiscation of the plaintiff's property. http://www.tba.org/tba_files/TCA/mitchellj_opn.wpd
JOE CLARK MITCHELL v. CORRECTIONS CORPORATION OF AMERICA, et al. Court:TCA KOCH CONCURRING http://www.tba.org/tba_files/TCA/mitchellj_con.wpd
SALLY ANNE NIGRO v. VINCENT JOHN NIGRO Court:TCA Attorneys: Nicholas D. Hare, Nashville, Tennessee, for the appellant, Vincent John Nigro. Joanie L. Abernathy, Franklin, Tennessee, for the appellee, Sally Anne Nigro. Judge: CANTRELL First Paragraph: In this divorce case the husband appeals the grant of the divorce to the wife, the division of the marital property, the award of alimony to the wife, the trial court's failure to make the wife pay child support, and its failure to allow the husband to relocate out of the state with the son. For her part, the wife seeks a larger portion of the husband's retirement pay and the proceeds of the marital home. We affirm. http://www.tba.org/tba_files/TCA/nigrosa.wpd
JENNIFER SKERRETT v. THE ASSOCIATION FOR GUIDANCE, AID, PLACEMENT AND EMPATHY, INC. Court:TCA Attorneys: Clark Lee Shaw, Nashville, Tennessee, for the appellant, Jennifer Skerrett. Jade A. Rogers, Gallatin, Tennessee, for the appellee, The Association for Guidance, Aid, Placement, and Empathy, Inc. Judge: KOCH First Paragraph: This appeal involves a paternal grandmother's efforts to obtain permanent custody of her grandson. After the child's mother surrendered him to a licensed child-placing agency, the grandmother intervened in the proceeding commenced in the Davidson County Juvenile Court to terminate her son's parental rights. Following a bench trial, the trial court terminated the father's parental rights and denied the grandmother's request for custody. While the grandmother does not contest the termination of her son's parental rights, she asserts on this appeal that the juvenile court erred by awarding custody of the child to the child-placing agency rather than to her. We have determined that, under the facts of this case, the grandmother lacked standing to intervene in the proceeding to terminate her son's parental rights. Therefore, we affirm the dismissal of her custody petition. http://www.tba.org/tba_files/TCA/skerrettj.wpd
SQUEEKY CLEAN LAUNDRIES, INC. v. DAVID E. HARVEY, et al. Court:TCA Attorneys: Jeffrey Greene and Gregory Oakley, Nashville, Tennessee, for the appellant, Squeeky Clean Laundries, Inc. Thomas F. Mink, II, Nashville, Tennessee, for the appellees, David E. Harvey, individually, Campus Concepts, Inc., formerly d/b/a Harvey Washbangers. Judge: JOHNSON First Paragraph: This appeal arose after the trial court dismissed Squeeky Clean Laundries, Inc.'s action against David E. Harvey, et al. for failure to prosecute. Because there was no proof of a willful violation of a court order, we find that the trial court abused its discretion. We reverse the trial court's decision and remand. http://www.tba.org/tba_files/TCA/squeekycleanlaundries.wpd
NARVIN TUNSTALL, SR., et al. v. MEMPHIS PUBLISHING COMPANY, et al. Court:TCA Attorneys: Carl Wyatt, David Riley, Memphis, TN, for Appellants William M. Larsha, Jr., Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a personal injury action. One of the defendants filed a motion for summary judgment, which motion was granted by the trial court. This appeal ensued. For the following reasons, we reverse. http://www.tba.org/tba_files/TCA/tunstal.wpd
JAMES C. BREER v. STATE OF TENNESSEE Court:TCCA Attorneys: James Cleveland Breer, pro se, Henning, Tennessee. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, James C. Breer, appeals the summary dismissal of his pro se petition for post- conviction relief. The Henry County Circuit Court dismissed Breer's petition upon the ground that it failed to state a colorable claim. Tenn. Code Ann. S 40-30-206(f) (1997). After review, we conclude that a colorable claim is presented and the post-conviction court erred in dismissing Breer's petition without conducting an evidentiary hearing and without appointing counsel. Accordingly, we remand for proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/breer.wpd
STATE OF TENNESSEE v. THOMAS A. CARTER Court:TCCA Attorneys: Julie A. Rice, Knoxville, Tennessee (on appeal); and Charles Herman, Jacksboro, Tennessee (at trial), for the appellant, Thomas A. Carter. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; William Paul Phillips, District Attorney General; and Michael Ripley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Campbell County Jury convicted the Defendant of theft of property valued over $10,000, evading arrest, reckless endangerment with a deadly weapon, and simple possession of marijuana. The trial court sentenced the Defendant to an effective sentence of eight years in the Tennessee Department of Correction. The Defendant now appeals, alleging (1) that insufficient evidence identifying the Defendant as the perpetrator of the felony offenses was presented at trial, and (2) that the trial court erred in its sentencing determinations. Finding no reversible error, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/carterta.wpd
STATE OF TENNESSEE v. FELIX BARTOLO JOSE Court:TCCA Attorneys: Guy T. Wilkinson, District Public Defender; W. Jeffery Fagan, Assistant District Public Defender, Camden, Tennessee, for the Appellant, Felix Bartolo Jose. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy D. Aslinger, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Felix Bartolo Jose, was convicted of one count of aggravated sexual battery, a class B felony, following a jury trial. The trial court sentenced Jose to an eight-year sentence in the Department of Correction. On appeal, Jose raises the single issue of whether the evidence was sufficient to support the verdict. After review of the record, we affirm the conviction. http://www.tba.org/tba_files/TCCA/josef.wpd
WILLIAM KIRK RILEY v. STATE OF TENNESSEE Court:TCCA Attorneys: Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, William Kirk Riley. Paul G. Summers, Attorney General & Reporter, and Thomas E. Williams, III, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, William Kirk Riley, appeals the trial court's summary dismissal of his petition for post-conviction relief. The issue presented for review is whether the petition was properly dismissed without any opportunity to amend, without the appointment of counsel, and without an evidentiary hearing. The judgment is reversed and the cause is remanded for an evidentiary hearing. http://www.tba.org/tba_files/TCCA/rileywk.wpd

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