February 2, 1999
Volume 5 -- Number 016

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

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
11 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




For the Plaintiff/Appellant:    For the Defendant/Appellee:

David Haines Rotroff            Sandra J. Bott             
Chattanooga, Tennessee          Chattanooga, Tennessee                         


First Paragraph:

This is a post-divorce action to modify child support and alimony. 
The mother sought to increase child support, and the father sought to
terminate periodic alimony payments.  The trial court granted the
mother's request for an increase in child support, with a portion of
the child support to be placed in an educational trust, and denied the
father's petition for modification of alimony.  Both parties appealed.
 We affirm in part, reverse in part, and modify.


CARL G. BERNING VS. STATE OF TENNESSEE, DEPARTMENT OF CORRECTION Court:TCA Attorneys: WILLIAM KENNERLY BURGER SunTrust Bank Building, Suite 306 201 E. Main Street, P. O. Box 1969 Murfreesboro, Tennessee 37133-1969 Attorney for Petitioner/Appellant JOHN KNOX WALKUP Attorney General and Reporter WILLIAM J. MARETT, JR. Assistant Attorney General 425 Fifth Avenue, North Nashville, Tennessee 37243-0490 Attorney for Respondent/Appellee Judge:CANTRELL First Paragraph: The Tennessee Civil Service Commission upheld the termination of a veteran supervisory employee for sexual harassment, conduct unbecoming a state employee, and failure to maintain a satisfactory and harmonious working relationship with fellow employees. The Chancery Court of Davidson County affirmed the Commission's order. On appeal the employee asserts that he was denied progressive discipline prior to termination, and that he was denied due process of law. On the strength of the proof, he also claims that his conduct does not fit the definition of "conduct unbecoming" or support a conclusion that he failed to maintain a harmonious working relationship, and that his conduct was constitutionally protected. We affirm the trial court. http://www.tba.org/tba_files/TCA/Bernincg_opn.WP6
ROBERT LELAND BRYANT and wife, LINDA KAY WOLFSON BRYANT SANDRA LYNN TODD BRYANT VS. JAMES ASHLEY BRYANT Court:TCA Attorneys: Wende J. Rutherford, Paul A. Rutherford; Rutherford, Demarco, White & Soloman of Nashville For Appellants Robert L. Jackson, W. Scott Rosenberg; Jackson, Kweller, McKinney & Badger of Nashville For Appellee Judge:CRAWFORD First Paragraph: This is a termination of parental rights and adoption case. Petitioners-Appellants, Robert Leland Bryant and Linda Kay Wolfson Bryant, appeal the trial court's order denying their petition to terminate the parental rights of Respondent-Appellee, James Ashley Bryant, with respect to his minor children, Megan Rae Bryant, born December 13, 1991, and Devon Michael Bryant, born December 30, 1993. http://www.tba.org/tba_files/TCA/Bryantro_opn.WP6
RANDALL CRAIG COBB VS. SHARON RUBEN COBB Court:TCA Attorneys: THOMAS F. BLOOM 500 Church Street, 5th floor Nashville, Tennessee 37219 ATTORNEY FOR PLAINTIFF/APPELLANT JEANAN MILLS STUART 501 Union Street, Suite 503 Nashville, Tennessee 37219 ATTORNEY FOR DEFENDANT/APPELLEE Judge:CAIN First Paragraph: In this case Appellant challenges the action of the trial court in denying his application for relief under Rule 60.02 of the Tennessee Rules of Civil Procedure, holding him to be in criminal contempt of court and denying his application for modification of alimony. http://www.tba.org/tba_files/TCA/Cobbrc_opn.WP6
CURTIS G. MAYES VS. MARGARET C. CULPEPPER, Commissioner of the Tennessee Department of Employment Security and WAL-MART STORES, INC. Court:TCA Attorneys: LEE ANN SWARM, Knoxville Legal Aid Society, Inc., for Appellant. JOHN KNOX WALKUP, Attorney General and Reporter, and DOUGLAS EARL DIAMOND, Assistant Attorney General, for the appellee, Commissioner of the Tennessee Department of Employment Security. FREDERICK W. HODGE, Nashville, for appellee, Wal-Mart Stores, Inc. Judge:MCMURRAY First Paragraph: This is an appeal from the denial of unemployment compensation benefits. Through the entire procedure, including an appeal to the Chancery Court for Knox County, the appellant has been denied unemployment compensation benefits because he had been guilty of misconduct arising out of the scope and course of him employment and T.C.A. S 50-7-303(a)(2) bars him from recovery of unemployment compensation benefits. We reverse the judgment of the Chancery Court and remand this case to the trial court for entry of an order awarding unemployment benefits as provided by law. http://www.tba.org/tba_files/TCA/Mayescg_opn.WP6
MARGARET MCCORMICK VS. DONALD MCCORMICK Court:TCA Attorneys: John R. Phillips, Jr., Timothy R. Rector Phillips & Ingrum of Gallatin For Appellee Mark Walker Walker & Associates of Goodlettsville For Appellant Judge:CRAWFORD First Paragraph: This case concerns a dispute over the division of marital property, alimony, and attorney's fees. Appellant, Donald F. McCormick (Husband), appeals from the Final Decree of Divorce that, inter alia, awarded Appellee, Margaret Ann McCormick (Wife), proceeds from a 401K account, rehabilitative alimony, and attorney's fees. http://www.tba.org/tba_files/TCA/Mccormar_opn.WP6
LOYAL MILLER VS. TENNESSEE BOARD OF PAROLES Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee: Kenneth L. Miller John Knox Walkup Logan Thompson Miller Bilbo Thompson & Fisher Attorney General and Reporter Cleveland, Tennessee Michael E. Moore Solicitor General Patricia C. Kussmann Assistant Attorney General Judge:KOCH First Paragraph: This appeal involves the fundamental fairness of the procedures used by the Tennessee Board of Paroles to revoke the parole of a person accused of committing child sexual abuse. The Board revoked the parole based solely on hearsay testimony concerning statements made by his alleged victim. The parolee filed a petition for a common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the Board's decision-making process. After the trial court denied the petition, the parolee appealed to this court. We have determined that the Board's hearing officer acted arbitrarily and illegally by applying an incorrect standard to determine whether good cause existed for not allowing the parolee to confront or to cross-examine his only accuser. Accordingly, we reverse the trial court's denial of the parolee's petition for a common-law writ of certiorari and remand the case to the trial court for the entry of an order directing the Board either to conduct a proper parole revocation hearing forthwith or to return the parolee to parole status. http://www.tba.org/tba_files/TCA/Millerl_opn.WP6
STATE OF TENNESSEE, ex rel., KIMBERLY NORFLEET VS. TOMMY DOBBS, JR. Court:TCA Attorneys: For Plaintiff/Appellant: For Defendant/Appellee: John Knox Walkup No appearance Attorney General and Reporter Tammy L. Kennedy Assistant Attorney General Judge:KOCH First Paragraph: This appeal involves a parent's efforts to avoid paying child support for her two children. Approximately two years after the Circuit Court for Davidson County awarded custody of the parties' two children to their father, the children's mother, with the assistance of a lawyer furnished by the IV-D contractor for Davidson County, filed a petition to eliminate her child support obligation because she was unemployed and her only income was Supplemental Security Income ("SSI") payments. Following a bench trial, the trial court denied the mother's petition on the ground that she was voluntarily unemployed. The mother asserts on this appeal that the trial court's order conflicts with the child support guidelines because she will be required to use her SSI payments to pay her child support. We have determined that the evidence does not preponderate against the trial court's finding that the mother is voluntarily unemployed and that the trial court's order is consistent with the child support guidelines. Therefore, we affirm the trial court. http://www.tba.org/tba_files/TCA/Norfleet_opn.WP6
D. D. ROBERTS d/b/a ROBERTS CONSTRUCTION COMPANY and ROBERTS CONSTRUCTION COMPANY, INC. VS. TOMMY YARBROUGH d/b/a TOMMY YARBROUGH PAINTING CONTRACTOR, YARBROUGH PAINTING AND DRYWALL and THOMAS LUMBER COMPANY, INC. VS.NARAN PATEL and KUSUM PATEL and TOMMY YARBROUGH and MAYA GRAU d/b/a YARBROUGH PAINTING, and HERITAGE BANK and TOMMY YARBROUGH d/b/a YARBROUGH PAINT AND DRYWALL VS. D. D. ROBERTS, ROBERTS CONSTRUCTION COMPANY, NARAN TAPEL, KUSUM PATEL and HERITAGE BANK Court:TCA Attorneys: LARRY J. WALLACE 118 Franklin Street Clarksville, Tennessee 37040 Attorney for D. D. Roberts, Roberts Construction Co., Roberts Construction Co., Inc. and Continental Casualty Co. RODGER N. BOWMAN 601 North Second Street, Suite 4 Clarksville, Tennessee 37041-1404 Attorney for Tommy Yarbrough d/b/a Tommy Yarbrough Contracting, Yarbrough Painting & Drywall MICHAEL K. WILLIAMSON 121 South Third Street Clarksville, Tennessee 37040 Attorney for Thomas Lumber Company, Inc. Judge:CANTRELL First Paragraph: Two subcontractors recovered judgments for work done on a construction project in Clarksville. On appeal the general contractor and the surety on his bond allege that the appellees were not licensed contractors and that neither complied with the notice of nonpayment statute. In addition, the appellant disputes the trial court's version of the proof and the award of prejudgment interest. We affirm the trial court. http://www.tba.org/tba_files/TCA/Robertdd_opn.WP6
PATRICIA SCOTT (CHAPPELL) VS. RICHARD SCOTT, D.C. SCOTT and wife, LEONA SCOTT Court:TCA Attorneys: J. RONNIE GREER OF GREENEVILLE FOR APPELLANT KENNETH N. BAILEY, JR., OF GREENEVILLE FOR APPELLEES Judge:GODDARD First Paragraph: This is a child custody case filed by Patricia Scott (Chappell), mother of a mentally retarded 20-year old daughter, seeking--pursuant to T.C.A. 36-6-101--to modify the Court's prior child custody award. The Trial Court was of the opinion that because the daughter was no longer a minor the foregoing code section was inapplicable. Ms. Chappell's appeal questions this determination. http://www.tba.org/tba_files/TCA/Scottpa_opn.WP6
SCOTTIE ALLEN YANT VS. ARROW EXTERMINATORS, INC Court:TCA Attorneys: JOE F. GILLESPIE, JR. 6408-A Clarksville Highway Joelton, Tennessee 37080 Attorney for Plaintiff/Appellant SHELBY R. GRUBBS DENISE ARENTH MILLER MILLER & MARTIN LLP 832 Georgia Avenue Suite 1000, Volunteer Building Chattanooga, TN 37402-2289 Attorneys for Defendant/Appellee Judge:CANTRELL First Paragraph: The manager of an exterminating company brought criminal charges against the owner of a competing company for the alleged theft of a piece of equipment. The general sessions court determined that probable cause existed, but the grand jury declined to indict. The defendant in the criminal case subsequently filed suit for malicious prosecution. The trial court granted summary judgment to the civil defendant. We affirm. http://www.tba.org/tba_files/TCA/Yantsa_opn.WP6

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