July 24, 2000 Volume 6 -- Number 115 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. This Issue (IN THIS ORDER):   01 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 05 New Opinion(s) from the Tennessee Court of Appeals 01 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   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink WILLIAM JAMES LOGAN v. HEISKELL WINSTEAD Court:TSC Attorneys: Kenneth F. Irvine, Jr., Eldridge & Irvine, Knoxville, Tennessee, for the appellant, William James Logan. Thomas L. Kilday and Thomas J. Garland, Milligan & Coleman, Greeneville, Tennessee, for the appellee, Heiskell Winstead. Judge: DROWOTA First Paragraph: This appeal arises from a prisoner's pro se action for legal malpractice against the attorney who represented him in criminal court on the charges underlying his sentence. The attorney filed a motion for summary judgment supported by an expert affidavit. The prisoner, relying upon Whisnant v. Byrd, 525 S.W.2d 152 (Tenn. 1975), filed a motion to hold the proceedings in abeyance until he was released from prison and able to appear in court. The trial court failed to rule on the motion for abeyance. The trial court entered summary judgment in favor of the attorney on the grounds that the prisoner had not offered an expert affidavit to rebut the attorney's proof. The Court of Appeals upheld the judgment. We granted review to determine under what circumstances an incarcerated plaintiff is entitled to have a civil action held in abeyance until he or she is released from custody. http://www.tba.org/tba_files/TSC/logan.wpd R. DAVID ASHLEY and E. DIANA ASHLEY v. THOMAS A. SNAPP and ROBIN GRATIGNY Court:TCA Attorneys: David Day, Cookeville, Tennessee, for the appellants, R. David Ashley and E. Diana Ashley Donald K. Vowell, Knoxville, Tennessee, for the appellee, Thomas A. Snapp Robin Gratigny, Pro Se Judge: GODDARD First Paragraph: This appeal arises from a grant of summary judgment in the Knox County Circuit Court. On appeal, R. David Ashley and E. Diana Ashley, the Appellants, argue that there are genuine issues of material fact with respect to their suit for malicious prosecution and abuse of process against Thomas A. Snapp and Robin Gratigny, the Appellees, and thus, the Trial Court erred in granting summary judgment. We vacate the Circuit Court's grant of summary judgment on the issue of malicious prosecution and remand to the Trial Court on that issue, and we affirm the Trial Court's grant of summary judgment on the issue of abuse of process. http://www.tba.org/tba_files/TCA/ashleyrd.wpd RICHARD HAROLD DEMPSEY v. SANDRA MUSCAT DEMPSEY Court:TCA Attorneys: James L. Curtis, Nashville, Tennessee, for the appellant, Richard Harold Dempsey. Edward P. Silva, Franklin, Tennessee, for the appellee, Sandra Muscat Dempsey. Judge: COTTRELL First Paragraph: This appeal involves the award of alimony and the division of one particular piece of marital property at the dissolution of a nineteen year marriage. Mr. Dempsey appeals the award of alimony in futuro rather than rehabilitative alimony, the amount of alimony as beyond his ability to pay, and the award of a tax refund for the year of the divorce to Ms. Dempsey. We modify the award of alimony in futuro to an award of rehabilitative alimony and affirm the distribution of marital property. http://www.tba.org/tba_files/TCA/DEMPSEYR.wpd IN RE: K. A. H. Court:TCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, Gail Ann Heller. Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Assistant Attorney General, Nashville, Tennessee, for the appellee, Department of Children's Services. Judge: COTTRELL First Paragraph: This case involves the termination of parental rights regarding a child who was removed from the mother's home by the Department of Children's Services in 1996 and placed in foster care. DCS devised a Plan of Care for the mother, which, among other things, required her to address her drug and alcohol addictions. During the two years between the removal from the home and the filing by DCS of the petition to terminate parental rights, the mother made some efforts to improve her situation, but her substance abuse continued. The trial court terminated the mother's parental rights on grounds (1) that the conditions that led to the child's removal continued to persist with little likelihood of remedy and (2) that the mother failed to comply with the Statement of Responsibilities as provided in the Plan of Care. Because DCS has established grounds for termination and has established that termination is in the best interest of the child, we affirm. http://www.tba.org/tba_files/TCA/InreKAH.wpd METROPOLITAN DEVELOPMENT AND HOUSING AGENCY v. TRINITY MARINE NASHVILLE, INC. Court:TCA Attorneys: Clark H. Tidwell and Michael J. Passino, Nashville, Tennessee, for the appellant, Trinity Marine Nashville, Inc. George H. Nolan, Nashville, Tennessee, for the appellee, Metropolitan Development and Housing Agency. Judge: SWINEY First Paragraph: In this eminent domain condemnation proceeding, the Trial Court granted partial summary judgment to the condemnor on the amount of relocation expenses to be awarded the property owner as incidental damages based upon deposition testimony of an officer of the property owner. The property owner argues on appeal that summary judgment is improper in condemnation proceedings, and that the Trial Court erred in excluding from incidental damages amounts for a "burden rate" the property owner added to its actual hourly labor costs incurred in relocating from the condemned property. As the issue is a question of law and there are no questions of disputed material fact, summary judgment is appropriate. As the "burden rate" claimed by the property owner is not recoverable under the applicable statute, the judgment of the Trial Court is affirmed. http://www.tba.org/tba_files/TCA/MetroDevHousing.wpd JOE H. WALKER v. SIDNEY GILREATH & ASSOCIATES, et al. Court:TCA Attorneys: Norbert J. Slovis, Knoxville, Tennessee, for the appellant, Joe H. Walker. R. Franklin Norton and Geoffrey D. Kressin, Knoxville, Tennessee, for the appellee, Sidney Gilreath & Associates. Darryl G. Lowe, Knoxville, Tennessee, for the appellees, Gary McDonald and Brenda Hall. Judge: CAIN First Paragraph: This is a legal malpractice action in which Plaintiff appeals summary judgment entered for all Defendants. Plaintiff claims that Defendants, attorneys who represented him in a personal injury case, failed to file a Tenn. R. Civ. P. 54.04 motion for discretionary costs. The trial court held that compliance with the applicable standard of care involved genuine issues of material fact but sustained the summary judgment of all Defendants on the basis of the speculative character of Plaintiff's damages. We reverse and remand. http://www.tba.org/tba_files/TCA/WalkerJoeH.wpd STATE OF TENNESSEE v. JORGE OBDULIO HERRERA Court:TCCA Attorneys: Terry C. Frye, Bristol, Virginia, for the appellant, Jorge Obdulio Herrera. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Patricia C. Kussmann, Assistant Attorney General, H. Greeley Welles, Jr., District Attorney General, and Barry Staubus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: Pursuant to a plea agreement, the appellant entered a "best interest" plea to the offense of attempted rape of a child and received a sentence of eight years. Following a sentencing hearing the trial court ordered that the appellant's sentence be served in the Department of Correction. On appeal, the appellant contends (1) the trial court erred in denying an alternative sentence and (2) he is entitled to sentence credits for time spent in Immigration and Naturalization Service (INS) custody. After review, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/HerreraJO.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! 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