TBALink Opinion-Flash

December 28, 1998 -- Volume 4 -- Number 183

What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
01-New Opinion(s) from the Tennessee Supreme Court
00-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
01-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05-New Opinion(s) from the Tennessee Court of Appeals
00-New Opinion(s) from the Tennessee Court of Criminal Appeals
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


ROBERT L. DeLANEY
vs.
BROOK THOMPSON, ET AL

with DISSENTING Opinion

Court:TSC

Attorneys: 

For Plaintiff-Appellant:                For Defendants-Appellees:
Robert L. DeLaney                       John Knox Walkup
Nashville                               Attorney General and Reporter
                                        Nashville
    
                                        Michael E. Moore
                                        Solicitor General
                                        Nashville

                                        Michael W. Catalano
                                        Associate Solicitor General
                                        Nashville                         

Judge: Davis

First Paragraph:

In this case, we are invited to decide whether the Tennessee Plan for
election of appellate judges, codified as Title 17, Chapter 4 of the
Tennessee Code Annotated, is unconstitutional for a variety of
reasons, but most particularly because it contemplates "retention
elections" for incumbent appellate judges.  In general, the Tennessee
Plan provides that an incumbent appellate judge may run for reelection
unopposed on the ballot, provided the incumbent's retention has been
recommended by the judicial evaluation commission; the judge will be
retained in office if a majority of those voting in the election for
that judge's seat vote for such retention.  Tenn. Code Ann. S
17-4-115(d)(1)(1994).  It is the duty of all courts, including the
Supreme Court, to pass on a constitutional question only when it is
absolutely necessary for the determination of the case and of the
rights of parties to the litigation.  Glasgow v. Fox, 214 Tenn. 656,
666- 667, 383 S.W. 2d 9, 13-14 (1964).  See also, Jackson v. Davis,
530 F. Supp. 2, 4 n. 1 (E.D. Tenn.), aff'd, 667 F. 2d 1026 (6th Cir.
1981).  We hold that it is not necessary to address the
constitutionality of the Tennessee Plan in this case, because it is
not applicable to the facts of this case. For that reason, the Court
of Appeals erred in holding the Tennessee Plan constitutional, just as
the trial judge erred in holding the Plan unconstitutional.  We reach
this conclusion because the express provisions of the Tennessee Plan
render it inapplicable to the election for which defendant Brook
Thompson, State Coordinator of Elections, refused to accept a
qualifying petition submitted by the plaintiff, Robert L. DeLaney.

URL:http://www.tba.org/tba_files/TSC/delaney_opn.WP6
URL:http://www.tba.org/tba_files/TSC/delaneyd_dis.WP6
Opinion-Flash

SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL
December 28, 1998       

Court:TSC - Rules

URL:http://www.tba.org/tba_files/TSC_Rules/statelst_28.WP6
Opinion-Flash

W. J. CROWELL and wife, 
MILDRED P. CROWELL
vs.
LARRY DON HASTY and wife,
CONNIE MARIE HASTY

Court:TCA

Attorneys:

For the Plaintiffs/Appellants:          For the Defendants/Appellees:
C. Kelly Wilson                         Andrew C. Rambo
Shelbyville, Tennessee                  Shelbyville, Tennessee                          

Judge: KOCH

First Paragraph:

This appeal involves a dispute between neighbors over the location of
approximately five acres of property along Old Virginia Road in rural
Bedford County.  The owners of the property filed suit in the Chancery
Court for Bedford County alleging that their neighbors were
trespassing on the property and requesting a judicial determination of
the property's location.  Their neighbors asserted that they owned the
disputed property and that the plaintiff property owners were mistaken
about the location of their tract.  Following a bench trial, the trial
court determined that the plaintiff property owners' tract was
actually over 1,150 feet to the south of where they thought it was and
that the plaintiff property owners had not established a claim to the
disputed property by adverse possession.  On this appeal, the
plaintiff property owners assert that the evidence does not support
the trial court's decision regarding the location of the property and
their adverse possession claim.  We disagree and, therefore, affirm
the judgment.

URL:http://www.tba.org/tba_files/TCA/crowellw_opn.WP6
Opinion-Flash

MARGIE FRADY
and
ROBERT EUGENE FRADY
vs.
JEFFREY C. LADD

Court:TCA

Attorneys: 

For Appellant                     For Appellee
REBECCA L. HICKS                  HOWARD L. UPCHURCH
McPheeters Law Offices            Pikeville, Tennessee
Dayton, Tennessee                         

Judge: Susano

First Paragraph:

This is a negligence action arising out of a two-vehicle, head-on
collision that occurred on a rural road in Bledsoe County on March 31,
1995.  The jury found the defendant, Jeffrey C. Ladd, 100% at fault,
and awarded the plaintiff, Margie Frady, $52,078 in compensatory
damages for her personal injuries.  The defendant appealed, presenting
the following issues for our review: 1.  Whether the trial court erred
in failing to set aside the verdict as thirteenth juror in that the
verdict was contrary to the weight of the evidence. 2.  Whether the
trial court erred in failing to grant a remittitur. 3.  Whether the
trial court erred in failing to give special instructions requested by
the defendant. We affirm.

URL:http://www.tba.org/tba_files/TCA/fradym_opn.WP6
Opinion-Flash

WENDY ANN (JONES) GILLIAM
vs.
SCOTT DAVID JONES

Court:TCA

Attorneys:

Robert T. Carter, HENRY, McCORD, BEAN & MILLER, P.L.L.C., Tullahoma,
Tennessee
Attorney for Defendant/Appellant.

C. Kelly Wilson, Shelbyville, Tennessee
Attorney for Plaintiff/Appellee.                          

Judge: FARMER

First Paragraph:

Plaintiff Wendy Ann (Jones) Gilliam appeals an order of the trial
court removing the parties' minor child from her custody and placing
the child in the custody of Defendant Scott David Jones.  For the
reasons set forth below, we affirm the trial court's modification of
custody.

URL:http://www.tba.org/tba_files/TCA/gilliamw_opn.WP6
Opinion-Flash

GLENNA KIDD
vs.
ANN HAWTHORNE

Court:TCA

Attorneys: 

GLENNA KIDD, Appellant
P. O. Box 499
1508 Highway 64 West
Shelbyville, TN 37162

Pro Se                         

Judge: Goddard

First Paragraph:

This suit originated in the General Sessions Court for Bedford County
wherein Ann Hawthorne prosecuted an unlawful detainer warrant as to
certain real estate against Glenna Kidd. Thereafter, Ms. Kidd filed a
claim against Ms. Hawthorne and sometime during the proceedings,
perhaps after the counter-claim was filed, the parties and the Court
treated the original Plaintiffs and counter-Defendants as Ann
Hawthorne and Ken Hawthorne.

URL:http://www.tba.org/tba_files/TCA/kiddgl_opn.WP6
Opinion-Flash

FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, as Executor of the 
ESTATE OF GLENN P. WEBB, SR.
vs.
GLENN P. WEBB, JR.

Court:TCA

Attorneys:

For Appellant                   For Appellee
BRUCE C. BAILEY                 WILLIAM G. COLVIN
ALICIA BROWN OLIVER             PHILLIP E. FLEENOR
Chambliss, Bahner               JANE M. STAHL
  & Stophel, P.C.               Shumacker & Thompson, P.C.
Chattanooga, Tennessee          Chattanooga, Tennessee
                          
Judge: Susano

First Paragraph:

This intra-family legal dispute arose out of a real property transfer
from the now-deceased Glenn P. Webb, Sr. ("Mr. Webb") to his son, the
defendant Glenn P. Webb, Jr. ("Pat Webb").  One of Mr. Webb's
daughters, Patty Webb, filed this action seeking to set aside a
warranty deed to Pat Webb conveying Mr. Webb's interest in a nine-acre
tract of property.  She also sought to invalidate a power of attorney
that Mr. Webb had granted to Pat Webb immediately following Mr. Webb's
execution of the warranty deed.  Less than a month after these
documents were executed, Mr. Webb died, and the executor of his
estate, First Tennessee Bank, N.A. ("First Tennessee"), was
substituted as plaintiff in this litigation.  Following a bench trial,
the court held that the execution of the power of attorney had created
a confidential relationship between Mr. Webb and his son, thus giving
rise to a presumption that Pat Webb had procured the conveyance of the
subject property by undue influence.  The trial court found that this
presumption had not been rebutted by clear and convincing evidence
and, consequently, set aside the warranty deed.

URL:http://www.tba.org/tba_files/TCA/webbgp_opn.WP6

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