August 16, 2000
Volume 6 -- Number 129

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):
 
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
16 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
 

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Lucian T. Pera
Editor-in-Chief, TBALink

AMERICAN AIRLINES, INC. v. RUTH E. JOHNSON, COMMISSIONER OF REVENUE,
STATE OF TENNESSEE

Court:TCA

Attorneys:

Charles A. Trost and Michael G. Stewart, Nashville, Tennessee, for the
appellant, American Airlines, Inc.

Paul G. Summers, Attorney General and Reporter, and Jimmy G. Creecy,
Chief Special Counsel, for the appellee, Ruth E. Johnson, Commissoner
of Revenue, State of Tennessee.                          

Judge: FARMER

First Paragraph:

American Airlines, Inc., appeals the trial court's final judgment
denying its request for a refund of use taxes paid on aviation fuel
purchased out of state during the years 1992 through 1995.  We affirm
the trial court's judgment.

http://www.tba.org/tba_files/TCA/AmericanAirlines.wpd


HARTSVILLE HOSPITAL, INC. v. THE BAY NATIONAL BANK AND TRUST COMPANY Court:TCA Attorneys: David B. Foutch, Lebanon, for Appellant Sharon Linville, Hartsville, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a dispute over the ownership of monies held in a bond fund. Hartsville Hospital Incorporated ("Hartsville") filed suit against Bay National Bank ("Bank") seeking the contents of the fund. The court below entered judgment for Hartsville, holding that Bank had no claim to the bond fund money pursuant to a release agreement between the parties and that Hartsville was not estopped from asserting ownership. Bank appeals. http://www.tba.org/tba_files/TCA/hartsvillehosp.wpd
BETTYE JOYCE HUFFER, et al. v. STATE OF TENNESSEE Court:TCA Attorneys: J. Stanley Rogers, Manchester, Tennessee, for the appellants, Bettye Joyce Huffer, Ronald C. Huffer, Larry E. Huffer and Doyle R. Huffer. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Michael W. Catalano, Associate Solicitor General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: The claimants sought to hold the State liable for the personal injuries and deaths caused in an automobile accident on U.S. Highway 64 in Franklin County. After first holding that the State's negligence was the cause of twenty-five percent of the damages, the Claims Commissioner modified his findings and concluded that the State had a discretionary function immunity and that the sole proximate cause of the accident was the negligence of the driver of the automobile in which the injured persons were riding. We affirm on the proximate cause issue. http://www.tba.org/tba_files/TCA/hufferbj.wpd
IN RE: ADOPTION OF J.D.W. Court:TCA Attorneys: Ronald K. West, Nashville, Tennessee, Pro Se. Hubert D. Patty, Maryville, Tennessee, for the appellee, Anthony Blaine Mayberry. Judge: COTTRELL First Paragraph: This case involves a father's objection to the trial court's order terminating his parental rights pursuant to Tenn. Code Ann. S 36-1-102(1)(A)(i), finding that the father had abandoned the boy and that the termination of the father's parental rights was in the boy's best interest. The father was not represented by counsel at trial, and no transcript was made of the proceedings. The father appeals, claiming that the evidence does not support the trial court's finding of abandonment and that his rights to due process were violated by his lack of representation. The lack of a transcript prevents us from determining whether sufficient evidence supported the termination and denies the father proper appellate consideration of his claims. We therefore vacate the judgment of the trial court and remand the case for proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/InreJDW.wpd
INTERNATIONAL FLIGHT CENTER v. CITY OF MURFREESBORO, et al. Court:TCA Attorneys: Susan Emery McGannon and Jerry E. Farmer, Murfreesboro, Tennessee, for Appellant, City of Murfreesboro and City of Murfreesboro Airport Committee. Daniel C. Masten and W. H. Stephenson, Nashville, Tennessee, for appellee, International Flight Center. Judge: FARMER First Paragraph: This appeal arises out of a dispute between Plaintiff International Flight Center ("IFC") and Defendants City of Murfreesboro ("City") and City of Murfreesboro Airport Committee ("Airport Committee") regarding the alleged breach of a lease agreement and the nonpayment of certain property taxes. The trial court granted a judgment in favor of IFC in the amount of $174,718.00 plus ten percent prejudgment interest. Additionally, the court ruled that the City is estopped from collecting the property taxes allegedly owed to the City by IFC. http://www.tba.org/tba_files/TCA/Internationalflictr.wpd
CALVIN JOHNSON v. ALLSTATE INSURANCE COMPANY v. STEVEN UTAH JOHNSON Court:TCA Attorneys: Michele E. Cooper; Michael P. Mills, Nashville, For Appellant, Allstate Insurance Company Howell G. Clements; Carl E. Shiles, Jr., Chattanooga, For Appellee, Calvin Johnson Earlene Y. Speer, Altamont, For Appellee Steven Johnson Judge: CRAWFORD First Paragraph: Insured sued his insurer to recover policy coverage due on a fire loss to his automobile after the insurer denied coverage under the fraud provision of the policy. Judgment was entered on a jury verdict for the insured, and the insurer has appealed. http://www.tba.org/tba_files/TCA/johnsoncu.wpd
CARL O. KOELLA, JR. v. FRED McHARGUE, et al. Court:TCA Attorneys: Boyd W. Venable, III, Sevierville, Tennessee, for the appellants, Fred McHargue and wife, Grace McHargue. Robert L. Kahn, Knoxville, Tennessee, for the appellee, Maribel Koella. Judge: SUSANO First Paragraph: This is the second time that this case has been before us on appeal. On the first appeal, which was filed with respect to an order entered pursuant to Tenn. R. Civ. P. 54.02, we affirmed the trial court's grant of partial summary judgment to the plaintiff on the primary issue raised by the original complaint for declaratory judgment. While that case was pending on appeal, the original plaintiff, Carl O. Koella, Jr., died, and, on motion of his counsel, we entered an order substituting his widow, Maribel Koella, in his place. On remand, the plaintiff -- not otherwise identified in the pleading -- filed a motion in the trial court to dismiss the defendants' still-pending counterclaim. That motion was based on the failure of the defendants, in their capacity as counter-plaintiffs, to file a motion "to substitute the proper party for [Mr. Koella] in the trial court." The trial court granted the motion. We reverse. http://www.tba.org/tba_files/TCA/KoellaCO.wpd
CHARLES LIPSCOMB, et al. v. ELEANOR YOAKUM, COMMISSIONER, et al. Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter; William J. Marett, Jr., Assistant Attorney General, for the appellants, Eleanor Yoakum, as Commissioner of the Department of Personnel and George Hattaway, as Commissioner of the Department of Children's Services. Larry D. Woods, Nashville, Tennessee, for the appellees, Charles Lipscomb, John Maiuri, Arlene Martin-Norman, Brenda Neal, Nancy Work, Betty Barrett, Susan Hall-Huffman, Patricia Harwood, and Leslie Nims. Judge: CANTRELL First Paragraph: This appeal arises from the trial court's finding that the Commissioner of the Department of Children's Services was in direct violation of Tenn. Code Ann. S 37-5-105(1) when he eliminated the appellees' payment differential after their transfer into the department. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/lipscombc.wpd
DAVID MILLS v. LINDA SOLOMON Court:TCA Attorneys: Frank M. Fly, Murfreesboro, Tennessee, for the appellant, David Mills. John B. Melton, Jr., Woodbury, Tennessee, and Frank Buck and Lena Ann Buck, Smithville, Tennessee, for the appellee, Linda Solomon. Judge: FARMER First Paragraph: These proceedings began when David Mills filed a complaint seeking to condemn an easement across Linda Solomon's property. In bifurcated proceedings, the jury first determined the location of Mills' easement across Solomon's property and, later, found that Solomon was entitled to an award of damages totaling $11,908 for the easement, including $9900 in incidental damages. On appeal from the trial court's judgment entered on the jury's verdict, Mills challenges only the award of $9900 in incidental damages. We agree with Mills' contention that the record fails to contain material evidence to support the award of incidental damages, and we reverse that portion of the trial court's judgment. http://www.tba.org/tba_files/TCA/Millsd.wpd
BYRON LOWELL MITTS v. VIRGINIA ANN JONES MITTS Court:TCA Attorneys: Phillip C. Lawrence and David H. Lawrence, Chattanooga, Tennessee, for the appellant, Virginia Ann Jones Mitts. Rosemarie L. Bryan and William R. Hannah, Chattanooga, Tennessee, for the appellee, Byron Lowell Mitts. Judge: SUSANO First Paragraph: The trial court dissolved a marriage of over 26 years. Wife appeals, arguing (1) that the increase in value of Husband's separate property interest in two stock holdings is, in each instance, marital property; (2) that the trial court erred in its award of alimony; (3) that the trial court erred in calculating Husband's child support obligation; and (4) that she is entitled to an award of attorney's fees, both at the trial level and on appeal. We affirm the trial court's classification of the increase in value of Husband's Rivermont stock as his separate property. We also affirm the trial court's finding that no portion of the value of the Coca-Cola stock is marital property. http://www.tba.org/tba_files/TCA/MittsBL.wpd
CYNTHIA RICHARDSON, et al. v. JAMES MILLER, M.D., et al. WITH DISSENTING OPINION Court:TCA Attorneys: Mary A. Parker and C. Michael Lawson, Nashville, Tennessee, for the appellants, Cynthia Richardson and William Richardson. Douglas Berry, Nashville, Tennessee, for the appellant, Principal Mutual Life Insurance Company. Judge: KOCH First Paragraph: This appeal involves a medical malpractice action stemming from the use of an infusion pump to administer terbutaline sulphate subcutaneously to arrest a pregnant woman's labor. After suffering a heart attack shortly before giving birth to a healthy child, the woman and her husband filed suit in the Circuit Court for Davidson County against her attending physician, the supplier of the infusion pump, and others alleging that their negligence had caused her heart attack. The woman's medical insurance carrier intervened to assert its contractual reimbursement rights based on the payments it had advanced for the woman's medical expenses. The trial court dismissed the insurance carrier's complaint, and a jury returned a verdict for the physician and the pump supplier. http://www.tba.org/tba_files/TCA/richardsonc_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/richardsonc_dis.wpd
JAMES OLIVER ROSS v. COMMISSIONER DONAL CAMPBELL Court:TCA Attorneys: James Oliver Ross, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; and Pamela S. Lorch, Assistant Attorney General, for the appellee, State of Tennessee. Judge: FARMER First Paragraph: An inmate in custody of the Tennessee Department of Correction brought an action for declaratory judgment contending that the Department failed to give him all sentence credits due. The trial court granted the respondent's motion for summary judgment and we affirm on the basis that no genuine issue of material fact was shown. http://www.tba.org/tba_files/TCA/Rossjo.wpd
STATE OF TENNESSEE, Department of Children's Services, v. MR Court:TCA Attorneys: Douglas L. Payne, Greeneville, Tennessee, for appellant, MR. Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney General, Nashville, Tennessee, for Appellee, State of Tennessee, Department of Children's Services. Judge: FRANKS First Paragraph: The Trial Judge granted the Department's petition to terminate parental rights of the mother to her ten year old child on numerous grounds. The mother has appealed, and we affirm termination. http://www.tba.org/tba_files/TCA/stoftnvmr.wpd
CHARLES L. WELBORN v. MELVIN K. SELLARS Court:TCA Attorneys: Wm. Kennerly Burger, Murfreesboro, Tennessee, for the appellant, Charles L. Welborn. Michael B. Leftwich, Nashville, Tennessee, for the appellee, Mid-Century Insurance, Company. Judge: LILLARD First Paragraph: This is an insurance case. The plaintiff was driving a motorcycle when he was involved in an accident with an automobile driven by an uninsured motorist. The plaintiff's motorcycle was not listed in his insurance policy. The plaintiff filed suit seeking damages for his injuries sustained in the accident. The plaintiff's insurance company moved for summary judgment in the case based on an exclusion in the plaintiff's insurance policy which denied uninsured motorist coverage for vehicles for which insurance was not afforded under the policy. The trial court granted the insurance company's motion and the plaintiff appealed. We affirm, finding that the policy exclusion applies to the plaintiff's motorcycle. http://www.tba.org/tba_files/TCA/WelbornCL.wpd
MELANIE TRESSA HEATHMAN-WOOD v. PAUL J. WOOD, et al. Court:TCA Attorneys: Delilah A. Speed, Columbia, Tennessee, for the appellant, Paul J. Wood. Rosemary E. Phillips, Goodlettsville, Tennessee, for the appellees, Jodean and Joseph King Judge: LILLARD First Paragraph: This is a post-divorce child custody case. When the mother and father divorced, by agreed order, they gave custody of their minor child to the child's maternal aunt and uncle. The aunt and uncle later petitioned the trial court to allow them to move with the child to another state. The father then sought custody of the child. The trial court found that the father had failed to prove a change in circumstances warranting a change in custody from the aunt and uncle. Consequently, the father's petition for custody was dismissed and the aunt and uncle's petition to move to another state was granted. We reverse, finding that an erroneous legal standard was used. The cause is remanded for a determination of whether granting the father's petition for custody would result in substantial harm to the child. http://www.tba.org/tba_files/TCA/WoodHeathman.wpd
BILL D. WRIGHT v. BONNIE S. HULL Court:TCA Attorneys: S. N. Garrett, Jamestown, Tennessee, for the appellant, Bonnie S. Hull. Judge: CAIN First Paragraph: Plaintiff/Appellee, Bill D. Wright, sued to set aside a 1986 deed whereby he conveyed a certain tract of land to Defendant/Appellant, Bonnie S. Hull. He charged failure of consideration and fraud. Defendant, Ms. Hull, asserted that she and Mr. Wright cohabited without marriage for twelve years until their separation in 1998. She asserted that the property conveyance was a gift and was also conveyed to her by Mr. Wright to put the property out of the reach of his creditors. The trial court held the parties to be equal tenants in common and ordered the property sold. We reverse the trial court and dismiss the case. http://www.tba.org/tba_files/TCA/WrightBillD.wpd
STATE OF TENNESSEE v. WAYNE MICHAEL FULLER Court:TCCA Attorneys: Gerald L. Gulley, Jr., Knoxville, Tennessee (on appeal), Tommy K. Hinderman, Knoxville, Tennessee (at trial), for the appellant, Wayne Michael Fuller. Paul G. Summers, Attorney General and Reporter, Mark A. Fulks, Assistant Attorney General, Randall E. Nichols, District Attorney General, Scott Green, Assistant District Attorney General for the appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals from his sentence imposed for seven counts of statutory rape, a Class E felony, in the Knox County Criminal Court. The trial court imposed a sentence of two years for each count to be served in the Department of Correction. The trial court imposed consecutive sentencing on five counts and concurrent sentencing was imposed on two counts, for an effective sentence of ten years. In this direct appeal, the defendant challenges the length of the sentence and consecutive sentencing. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/FullerWM.wpd

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