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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):
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| 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)
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| 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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