Opinion FlashJanuary 29, 2004
Volume 10 Number 019
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
KATHY GARDENHIRE, ET AL. v. REAL ESTATE INSPECTION SERVICE, INC., ET AL. Court:TCA Attorneys: George M. Derryberry, Chattanooga, Tennessee, for the appellants, Real Estate Inspection Service, Inc. and Stephen Eady dba Stephen Eady Company. Ronald J. Berke, Chattanooga, Tennessee, for the appellees, Kathy Gardenhire and Todd Gardenhire. Judge: SUSANO First Paragraph: Todd Gardenhire and his wife, Kathy Gardenhire ("the plaintiffs"), own a residence and lot on Signal Mountain. In 1995, they contracted with Real Estate Inspection Service, Inc. and Stephen Eady, doing business as Stephen Eady Company (collectively "the defendants"), for the construction of a sunroom addition, a swimming pool, and other work at their residence. Later that same year, the plaintiffs sued the defendants alleging that the defendants had failed to complete the work and that "much of the work" was not accomplished according to the parties' agreement. The defendants answered and filed a counterclaim seeking money allegedly due them for work performed in connection with the contract. Following a bench trial, the court awarded the plaintiffs $35,000 and dismissed the defendants' counterclaim. The defendants appeal. We affirm the judgment in part and reverse in part and remand for further proceedings. http://www.tba.org/tba_files/TCA/gardenhirek.wpd
STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. G.C. Court:TCA Attorneys: John A. Shoaf, Chattanooga, Tennessee, for the appellant, G.C. Paul G. Summers, Attorney General and Reporter, and P. Robin Dixon, Jr., Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee Department of Children's Services. Judge: SUSANO First Paragraph: The trial court terminated the parental rights of G.C. ("Mother") with respect to her minor children, I.A.J.C. (DOB: April 3, 1999), M.L.K.L.II (DOB: July 31, 2000), and J.E.L. (DOB: July 22, 2002). Mother appeals, arguing that the evidence preponderates against the trial court's finding, by clear and convincing evidence, that statutory grounds exist for termination. We affirm. http://www.tba.org/tba_files/TCA/gc.wpd
HITCHCOCK METAL SOURCES, INC., ET AL. v. JOHN D. MULFORD, JR., ET AL. Court:TCA Attorneys: John A. Lucas, Knoxville, Tennessee, for the appellants, John D. Mulford, Jr., and Mulford Enterprises, Inc. Charles G. Taylor, III, Knoxville, Tennessee, for the appellees, Hitchcock Metal Sources, Inc., and Diane Hitchcock. Judge: SUSANO First Paragraph: Diane Hitchcock ("Mrs. Hitchcock") and Hitchcock Metal Sources, Inc. ("HMS") sued John D. Mulford, Jr. ("Mulford") and Mulford Enterprises, Inc. ("the defendant corporation") for breach of an oral contract between Mulford and Mrs. Hitchcock's deceased husband, James H. Hitchcock ("Mr. Hitchcock"). Mulford and the defendant corporation responded by filing a counterclaim against Mrs. Hitchcock and HMS, asserting, inter alia, breach of contract. At the conclusion of a bench trial, the court found in favor of Mrs. Hitchcock, awarding her damages of $87,896.74 jointly and severally against Mulford and the defendant corporation, and an additional amount of $8,855.93 against the defendant corporation. The trial court dismissed the counterclaim of Mulford and the defendant corporation, as well as the original claim of HMS. Mulford and the defendant corporation appeal the trial court's dual determinations that the parties' oral agreement did not prohibit either party from pursuing other business opportunities and that the defendant corporation converted Mrs. Hitchcock's steel by selling it without her knowledge or consent. In addition, the defendants contend that the trial court erred in failing to reform the parties' contract and in its calculation of damages. By way of a separate issue, Mrs. Hitchcock asserts that the trial court abused its discretion in failing to award her prejudgment interest. We affirm the trial court's judgment in toto. http://www.tba.org/tba_files/TCA/hitchco.wpd
KENNETH E. SUTTON, and wife, JUANITA SUTTON v. LISA BAYSDEN Court:TCA Attorneys: William Allen, Oak Ridge, Tennessee, for Appellant. J. Polk Cooley, Rockwood, Tennessee, for Appellees. Judge: FRANKS First Paragraph: In an action to enforce right to easement, the Trial Court enjoined defendant to remove gate across easement and otherwise not interfere with plaintiffs' use. On appeal, we affirm. http://www.tba.org/tba_files/TCA/suttonk.wpd
STATE OF TENNESSEE v. LARRY K. BOMBAILEY CORRECTED OPINION Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee (on appeal); Stephen M. Wallace, District Public Defender, and Terry L. Jordan, Assistant Public Defender (at trial), for the appellant, Larry K. Bombailey. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph E. Perrin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Larry K. Bombailey, pled guilty in the Sullivan County Criminal Court to violating a motor vehicle habitual offender order, a Class E felony; theft of property valued at $500 or less, a Class A misdemeanor; and public intoxication, a Class C misdemeanor. The defendant agreed to a sentence as a Range I offender of eleven months, twenty-nine days for the theft; thirty days for the public intoxication, to be served concurrently to the theft; and eighteen months for violating a motor vehicle habitual offender order, to be served consecutively to the theft. The parties stipulated that the trial court would determine the manner of service for the defendant's conviction for violating a motor vehicle habitual offender order. After a sentencing hearing, the trial court denied the defendant's request for an alternative sentence for the motor vehicle habitual offender violation. The defendant appeals, claiming that the trial court erred by denying him an alternative sentence. We affirm the trial court's denial of an alternative sentence but remand the case for entry of a corrected judgment for the theft conviction. CORRECTED OPINION http://www.tba.org/tba_files/TCCA/bombaileylarryk.wpd
Jurisdiction of trial courts to order diversion without certificate of prior convictions from TBI Date: January 27, 2004 Opinion Number: 04-009 http://www.tba.org/tba_files/AG/2004/op9.pdf
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