May 2, 2001
Volume 7 — Number 080

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):
 
05 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
10 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

ROBERT W. CUNNINGHAM, JR, ET AL. v. SHELTON SECURITY SERVICE, INC., ET
AL. 
Court:TSC

ORDER

Shelton Security Service, Inc., et al., through counsel, has filed a
petition for rehearing pursuant to Tenn. R. App. P. 39.  After due
consideration, it is ORDERED that the petition for rehearing is
DENIED.

http://www.tba.org/tba_files/TSC/cunninghamtorehearord.wpd


KENNETH DARON v. DEPARTMENT OF CORRECTION AND THE TENNESSEE CIVIL SERVICE COMMISSION Court:TSC Attorneys: Alan D. Johnson, Nashville, Tennessee, for the appellant, Kenneth Daron. Paul G. Summers, Attorney General and Reporter, and William J. Marett, Jr., Assistant Attorney General, for the appellees, Department of Correction and the Tennessee Civil Service Commission. Judge: BIRCH First Paragraph: Kenneth Daron was terminated as a Correction Officer I for violating Department of Correction policy. Pursuant to Tenn. Code Ann. S 4-5-301 (1998), he appealed, and the administrative law judge concluded that a ten-day suspension was a more appropriate discipline. The judge, however, denied Daron's application for attorney's fees "because he did not prevail on all aspects of his appeal," in that he was found guilty of misconduct. The Tennessee Civil Service Commission approved the findings. Daron appealed, and the Chancery Court for Davidson County found that the phrase, "successfully appealing employee," under Tenn. Code Ann. S 8-30-328(f) (1998), was analogous to the phrase "prevailing party" under 42 U.S.C S 1988(b) (1994), which permits an employee who is partially successful on appeal to receive attorney's fees. Thus, the trial court found that Daron was a "successfully appealing employee" under Tenn. Code Ann. S 8-30-328(f) and was therefore eligible for an award of attorney's fees. The Court of Appeals reversed the trial court's judgment and held that there was no legislative intent to make Tenn. Code Ann. S 8-30-328(f) analogous to 42 U.S.C. S 1988(b). The court further held that because Daron had been adjudicated guilty of misconduct, the Commission did not abuse its discretion in denying attorney's fees. We hold that Daron was a "successfully appealing employee" under Tenn. Code Ann. S 8-30-328(f) in that he succeeded on a "significant claim"; that is, he obtained a reduction in punishment. Accordingly, we reverse the decision of the Court of Appeals and remand this case to the Commission for proceedings pursuant to Tenn. Code Ann. S 8-30-328(f). http://www.tba.org/tba_files/TSC/daronk.wpd
ANTHONY KEITH ELDRIDGE v. JULIA EDITH ELDRIDGE Court:TSC Attorneys: Michael May, Kingsport, Tennessee, for defendant-appellant, Julia Edith Eldridge. Harold Wayne Graves, Johnson City, Tennessee, for plaintiff-appellee, Anthony Keith Eldridge. Stephen R. Scarborough, Atlanta, Georgia, and William Allen Mynatt, Knoxville, Tennessee, for amicus curiae, Lambda Legal Defense and Education Fund, Inc. Susan Elizabeth Mackenzie, Memphis, Tennessee, and William Allen Mynatt, Knoxville, Tennessee, for amicus curiae, Memphis National Organization for Women. Shannon Minter, San Francisco, California, and William Allen Mynatt, Knoxville, Tennessee, for amicus curiae, National Center for Lesbian Rights. William Allen Mynatt, Knoxville, Tennessee, for amicus curiae, Tennessee National Organization for Women. Abby Rose Rubenfeld, Nashville, Tennessee, and Bruce S. Kramer, Memphis, Tennessee, for amicus curiae, The American Civil Liberties Union of Tennessee. Judge: HOLDER First Paragraph: We granted review of this child visitation case to determine whether the trial court abused its discretion in ordering unrestricted overnight visitation with the mother. The Court of Appeals held that the trial court had abused its discretion and imposed restrictions prohibiting the presence of the mother's lesbian partner during overnight visitation. We hold that the record does not support a finding of an abuse of discretion. Accordingly, we reverse the judgment of the Court of Appeals. http://www.tba.org/tba_files/TSC/eldridge.wpd
BOBBY R. GEORGE v. BUILDING MATERIALS CORPORATION OF AMERICA, et al. Court:TSC Attorneys: Ann Buntin Steiner, Nashville, Tennessee, for plaintiff-appellant, Bobby R. George. James H. Tucker, Jr., Nashville, Tennessee, for defendant-appellee, Building Material Corporation of America, and for defendant, Zurich Insurance Company. Judge: HOLDER First Paragraph: In this workers' compensation case, the trial court awarded Bobby R. George 90% permanent partial disability for loss of hearing in both ears. Mr. George's employer, Building Materials Corporation of America d/b/a GAF Materials Corporation ("GAF"), filed a post-judgment motion for leave to amend its answer to allege a statute of limitations defense. The trial court denied the motion. The Special Workers' Compensation Appeals Panel ("the Panel") reversed the trial court's denial of the motion to amend the answer and remanded the case for further proceedings on the statute of limitations defense. The Panel also reduced the award to 50% permanent partial disability should the statute of limitations defense be unsuccessful on remand. We disagree with the Panel's recommendation and affirm the trial court's judgment in all respects. http://www.tba.org/tba_files/TSC/georgebr.wpd
DEXTER L. WILLIAMS v. STATE OF TENNESSEE Court:TSC Attorneys: Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General, Nashville, Tennessee, for the appellant, State of Tennessee. John E. Eldridge, Knoxville, Tennessee, for the appellee, Dexter L. Williams. Judge: BARKER First Paragraph: The appellee in this case was convicted of first degree murder and sentenced to life imprisonment. After the Court of Criminal Appeals affirmed the conviction, the appellee averred that his trial counsel failed to notify him of counsel's withdrawal from the case, or to explain to him his rights for filing a pro se petition to this Court. Although a Rule 11 petition was eventually filed, it was dismissed as time-barred. Appellee then filed a post-conviction petition for relief, which the trial court dismissed without a full evidentiary hearing because the appellee was unprepared to present evidence. The Court of Criminal Appeals remanded the case for an evidentiary hearing. The State appealed, arguing that the post-conviction petition was untimely pursuant to the 1995 Post- Conviction Procedure Act and should have been dismissed. We agree that the appellee filed his petition after the statute of limitations had run. However, because the appellee may have been deprived by his counsel of a reasonable opportunity to seek post-conviction relief, due process considerations may have tolled the limitations period during this time when the appellee was unable to seek such relief. Because the record needs further development for this Court to decide this issue, we affirm the decision of the Court of Criminal Appeals to remand the case to the trial court for further evidentiary hearing to determine the circumstances surrounding the appellee's untimely filing of his post-conviction petition. http://www.tba.org/tba_files/TSC/williamsdl_opn.ame2.wpd
WILLIAM DAVID HOLDEN v. PETERBILT MOTORS COMPANY Court:TSC - Workers Comp Panel Attorneys: Patrick A. Ruth, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellant, Peterbilt Motors Company. William E. Farmer, Lebanon, Tennessee, for the appellee, William David Holden. Judge: LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer contends the evidence preponderates against the trial court's finding that the employee's carpal tunnel syndrome was work related and that the award of permanent partial disability benefits based on 50 percent to the arm is excessive. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/holdenwilliamdavidopn.wpd
IN RE: PROPOSED AMENDMENTS TO SUPREME COURT RULE 31 - ALTERNATIVE DISPUTE RESOLUTION Court:TSC - Rules Order extending deadline for comment to May 31, 2001. http://www.tba.org/tba_files/TSC_Rules/rule31extension.pdf
IN RE: PROPOSED AMENDMENTS TO SUPREME COURT RULE 31 - ALTERNATIVE DISPUTE RESOLUTION Proposed amendments to Rule 31. http://www.tba.org/tba_files/TSC_Rules/solicitrule31.pdf
PAUL DAVID CREWS, et al. v. HOOTERS RESTAURANT OF NASHVILLE, INC., et al. Court:TCA Attorneys: Ben Boston, Charles W. Holt, Jr. and Christopher V. Sockwell, Lawrenceburg, Tennessee, for the appellants, Paul David Crews and Sue Crews, as surviving parents and next of kin of Gregory Paul Crews, and Nathan Orton and Katrina Orton. Tom Corts, Nashville, Tennessee, for the appellees, Hooters Restaurant of Nashville, Inc.; Hooters of Nashville, L.P.; RMD Corporation d/b/a Hooters; and John Doe d/b/a Hooters. Judge: KOCH First Paragraph: This appeal involves two shootings during an attempted armed robbery of a restaurant, that left one man dead and one man wounded. The parents of the deceased victim and the wounded victim and his wife filed suit in the Circuit Court for Davidson County against the restaurant and the persons who attempted to rob the restaurant, alleging that the restaurant had negligently failed to use reasonable care to protect its patrons from foreseeable harm. The trial court granted the restaurant a summary judgment and dismissed the negligence claim against it. The plaintiffs, relying on McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891 (Tenn. 1996), assert on this appeal that the trial court erred by granting the restaurant's summary judgment motion. We concur with the trial court's conclusion that the material facts are not in dispute and that the restaurant is entitled to a judgment as a matter of law because it demonstrated that the plaintiffs would be unable to prove an essential element of their case. Accordingly, we affirm the trial court's order dismissing the claims against the restaurant. http://www.tba.org/tba_files/TCA/crewspd.wpd
FIRST AMERICAN TRUST CO. v. FRANKLIN-MURRAY DEVELOPMENT COMPANY, L.P. Court:TCA Attorneys: Winston S. Evans, Nashville, Tennessee, for the appellant, Shumacker & Thompson, P.C. Alan Mark Turk, Brentwood, Tennessee, and Guy C. Nicholson, Los Angeles, California, for the appellee, Franklin-Murray Development Co., L.P. Judge: KOCH First Paragraph: This appeal involves a post-judgment receivership proceeding commenced while the case was pending on appeal. The seller of a large tract of Brentwood property obtained a judgment against the defaulting purchaser in the Chancery Court for Williamson County. While the purchaser's appeal was pending, the seller proceeded to execute on its judgment and requested the trial court to appoint a receiver to protect the interests of the purchaser's creditors. After the trial court appointed a receiver, the purchaser's former law firm filed a claim with the receiver for over $100,000 in unpaid legal expenses. When the seller's judgment against the purchaser was satisfied outside of the receivership proceeding, the trial court granted the receiver's motion to dissolve the receivership without addressing the law firm's claim. The law firm asserts on this appeal that the trial court should not have closed the receivership until its claim was addressed. We have determined that the trial court lacked jurisdiction to establish the receivership and, therefore, that the receivership proceedings were null and void. Accordingly, the trial court did not err by declining to address the law firm's claim in the receivership proceeding. http://www.tba.org/tba_files/TCA/firstam.wpd
CURLEY HOWSE v. DONAL CAMPBELL, et al. Court:TCA Attorneys: Curley Howse, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn Jordan, Assistant Attorney General, Nashville, Tennessee, for the appellees, Donal Campbell, Darrell Alley, Troy Ferrell, and Brad Poole. C. Hayes Cooney, Nashville, Tennessee, for the appellee, Harold D. Butler. Judge: KOCH First Paragraph: This is a pro se civil rights action brought by a prisoner challenging the conditions of his confinement and his treatment by employees of the Tennessee Department of Correction and the Northwest Correctional Center in Lake County. After the prisoner's suit was transferred from the Chancery Court for Davidson County to the Circuit Court for Davidson County, the various defendants filed separate motions to dismiss the case for improper venue. The trial court granted the motions and dismissed all the prisoner's claims. On this appeal, the prisoner asserts that his claims should not have been dismissed. We have determined that the prisoner has not properly perfected an appeal with regard to the dismissal of his claims against the Commissioner of Correction and three other employees and that the trial court correctly dismissed his claim against the medical director of the Northwest Correctional Center for improper venue. Accordingly, we affirm the dismissal of the prisoner's complaint. http://www.tba.org/tba_files/TCA/howsec.wpd
THOMAS EDWARD KNUTH v. SANDRA MARIE KNUTH Court:TCA Attorneys: John T. Maher and Troy L. Brooks, Clarksville, Tennessee, for the appellant, Thomas Edward Knuth. Lew Conner and Grant C. Glassford, Nashville, Tennessee, for the appellee, Sandra Marie Knuth. Judge: KOCH First Paragraph: This appeal involves a procedural quagmire arising from an interstate divorce and custody battle. The parties lived in Tennessee until the wife and the parties' minor child moved to Michigan where the wife filed for divorce. Thereafter, the husband filed for divorce in the Chancery Court for Montgomery County and then filed a second divorce action in the Circuit Court for Davidson County. The trial court in Davidson County dismissed the husband's complaint because the proceeding in Montgomery County was still pending and also determined that the husband had submitted himself to the jurisdiction of the Michigan court. The husband asserts on this appeal that the Davidson County trial court erred by dismissing his divorce complaint and by concluding that the Michigan court had jurisdiction over him. We affirm the dismissal of the husband's complaint. We also find this appeal frivolous, and remand for a determination of the wife's damages. http://www.tba.org/tba_files/TCA/knuthte.wpd
KENNETH R. LEWIS v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Kenneth R. Lewis, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General and Terri L. Bernal, Assistant Attorney General, for the appellee, Tennessee Department of Correction. Judge: CAIN First Paragraph: Appellant, a Department of Corrections inmate, appeals the dismissal of his petition for a writ of certiorari relative to disciplinary action by the TDOC resulting from a positive drug screen. We affirm the trial judge. http://www.tba.org/tba_files/TCA/lewisk.wpd
DEBRA S. McDOWELL v. ROBERT A. McDOWELL, JR. Court:TCA Attorneys: Ernest W. Williams and Dana C. McLendon, III, Franklin, Tennessee, for the appellant, Robert A. McDowell, Jr. Richard Dance, Nashville, Tennessee, for the appellee, Debra S. McDowell. Judge: CAIN First Paragraph: This appeal involves a post divorce dispute over child support payments. In 1998, the father was ordered to pay the mother child support in the amount of $1,907.00 per month based on the father's earning capacity of $102,000.00 per annum. Defendant father never appealed the order setting child support. Instead, he simply repeatedly failed to pay child support. In 1999, Plaintiff filed a complaint seeking to hold Defendant in contempt for failure to pay child support. Thereafter, Defendant responded by filing a petition to modify child support, alleging an inability to pay based on a significant variance in income. Defendant was held in contempt and the trial court found that a significant variance did not exist. Appellant father presents two issues on appeal: (1) Whether the trial court erred by denying Appellant's petition to reduce his child support obligation, and (2) whether the trial court erred by holding Appellant in civil contempt. We affirm the trial court and award Appellee attorney's fees on appeal. http://www.tba.org/tba_files/TCA/mcdowelld.wpd
TAMMY JEWELL ROBERTSON v. WALTER SCOTT ROBERTSON Court:TCA Attorneys: Robert A. Anderson, Nashville, Tennessee, for the appellant, Tammy Jewell Robertson. Clinton H. Swafford, Winchester, Tennessee, for the appellee, Walter Scott Robertson. Judge: KOCH First Paragraph: This appeal involves a dispute over the division of a marital estate following a marriage that lasted approximately two and one-half years. Both parties sought a divorce on the ground of inappropriate marital conduct in the Circuit Court for Franklin County. During a bench trial lasting two days, the parties stipulated that they both had grounds for divorce but hotly contested the classification, valuation, and division of their marital and separate property. The trial court declared the parties divorced and divided their property without clearly classifying or placing a value on it. On this appeal, the wife asserts that the trial court erred by considering the husband's contributions to the marital home as his separate property and that the net division of the marital estate was inequitable. Despite the ambiguity resulting from the trial court's failure to classify and value the parties' property, we have determined that the trial court's division of the martial estate was essentially equitable. http://www.tba.org/tba_files/TCA/robertsontj.wpd
BOWDOIN GRAYSON SMITH v. GINGER LEE MARENCHIN SMITH Court:TCA Attorneys: James L. Weatherly, Jr., Nashville, Tennessee, for the appellant, Ginger Lee Marenchin Smith. Randy Wakefield, Carthage, Tennessee, for the appellee, Bowdoin Grayson Smith. Judge: COTTRELL First Paragraph: This is the second appeal regarding the setting of the amount of the father's child support obligation for four children. In the earlier appeal, this court remanded for a determination of the father's actual net income and his corresponding child support obligation. On remand, the trial court in early 2000 based its award of prospective support on an average of father's income in 1992 through 1995 and established the father's back support based on that figure. We find that the prospective award should be set on the most current income figures, but that an average of the most recent years is appropriate. We also find that the amount of back child support should be computed using actual income for the intervening years. Because the record does not contain sufficient information regarding challenged deductions from gross income for the years now at issue, we remand for an evidentiary hearing on the father's income in the years since the divorce in 1996, and a redetermination of both prospective and back support. We affirm the denial of prejudgment interest. http://www.tba.org/tba_files/TCA/smithbg.wpd
VALERIE JEAN SPIVEY, et al. v. SUMNER COUNTY, TENNESSEE, et al. Court:TCA Attorneys: Jaimee S. Wilson and W. Gary Blackburn, Nashville, Tennessee, for the appellants, Valerie Jean Spivey, Jeffrey Thompson and William J. Heaney. William R. Wright and Leah May Dennen, Gallatin, Tennessee, for the appellees, Sumner County, Tennessee and Dennis Wallace. Judge: CAIN First Paragraph: Plaintiffs in this matter have alleged that their employment was terminated in violation of Tennessee's Public Protection Act, Tennessee Code Annotated section 51-1-304. The trial court ruled in favor of Defendants' Motion for Summary Judgment and dismissed this case in its entirety finding that all three Plaintiffs had failed to prove that their termination was based solely on "whistle blowing". We affirm the trial court's decision in this regard. http://www.tba.org/tba_files/TCA/spivey.wpd
TENNESSEE FARMERS MUTUAL INSURANCE COMPANY v. NICHOLAS REAVES RAMSEY Court:TCA Attorneys: John Thomas Feeney and Gina L. Zylstra, Nashville, Tennessee, for the appellant, Nicholas Reaves Ramsey. Steven A. Dix, Murfreesboro, Tennessee, for the appellee, Tennessee Farmers Mutual Insurance Company. Judge: CAIN First Paragraph: This case seeks declaratory judgment as to whether or not the defendant, Nicholas Reaves Ramsey, was a "covered person" within the omnibus clause of an automobile liability insurance policy. In a non-jury trial the trial judge held that Defendant was not covered under the omnibus clause. We affirm. http://www.tba.org/tba_files/TCA/tnfrmsramsey.wpd
STATE OF TENNESSEE v. CLARENCE DAVIS Court:TCCA Attorneys: Karl Dean, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on appeal); Ralph W. Newman, Assistant Public Defender (at trial), for the appellant, Clarence Davis Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Grady Moore, Assistant District Attorney General, for the appellant, State of Tennessee. Judge: WOODALL First Paragraph: The Defendant, Clarence Davis, was convicted by a jury of premeditated first degree murder and sentenced to a term of life imprisonment. On direct appeal, this Court reduced the Defendant's conviction to second degree murder and remanded the case for re-sentencing. State v. Clarence Davis, No. 01C01-9811-CR-00451, 1999 WL 737873, at *1, Davidson County (Tenn. Crim. App., Nashville, September 22, 1999). After a sentencing hearing, the Defendant was sentenced to the maximum term of twenty-five years. The trial court further ordered the Defendant to serve this sentence consecutively to a previously imposed sentence in a case wherein Defendant's sentence to community corrections had been revoked. The Defendant now appeals contending: 1) the trial court erred in imposing the maximum sentence for second degree murder and 2) the trial court erred in ordering his sentence to run consecutively to a previously imposed sentence in an unrelated case. After a review of the record and applicable law, we affirm the length of the sentence and the order of consecutive sentencing, but remand for a determination of the amount of pretrial jail credit to which the Defendant is entitled. http://www.tba.org/tba_files/TCCA/davisc.wpd

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