Opinion Flash

December 28, 2001
Volume 7 — Number 237

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
03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
14 New Opinion(s) from the Tennessee Court of Appeals
00 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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

DARYL K. COLLINS v. TOWER AUTOMOTIVE PRODUCTS COMPANY, d/b/a TOWER
AUTOMOTIVE

Court:TSC - Workers Comp Panel

Attorneys: 

Deana C. Seymour, Jackson, TN, for the appellant, Tower Automotive
Products Company, Inc., d/b/a Tower Automotive.

George L. Morrison, III, Jackson, TN, for the appellee, Daryl Collins.                         

Judge: LAFFERTY

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.  The trial court found Plaintiff suffered permanent impairment
and awarded Plaintiff twenty-two percent (22%) permanent partial
impairment to each upper extremity.  Defendant asserts that the award
of twenty- two percent (22%) was excessive and not supported by the
evidence.  From our review of the trial record, we affirm the trial
court's judgment as modified.

http://www.tba.org/tba_files/TSC_WCP/collinsd.wpd

NATHANIEL HAMPTON v. CONNECTICUT INDEMNITY COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

Steve Taylor, Memphis, Tennessee, for the appellant, Nathaniel Hampton

Jeffery G. Foster, Jackson, Tennessee, for the appellee, Connecticut
Indemnity Company

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 employee insists the evidence preponderates against the
trial court's finding that he did not suffer a permanent injury.  As
discussed below, the panel has concluded the judgment should be
affirmed.

http://www.tba.org/tba_files/TSC_WCP/hamptonn.wpd

DIANA NOLES v. AMERISTEEL CORPORATION

Court:TSC - Workers Comp Panel

Attorneys: 

John D. Burleson and L. Beth Williams, Jackson, Tennessee, for the
appellant, Ameristeel Corporation.

Paul Todd Nicks, Jackson, Tennessee, for the appellee, Diana Noles.

Judge: LAFFERTY

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tennessee Code
Annotated S 50-6-225(e)(3) for a detailed analysis of the evidence in
the trial record.  The trial court in this cause found that Plaintiff
sustained a thirty-five percent (35%) permanent partial disability to
the right and left arm.  Defendant, Ameristeel Corporation, appeals
and asserts that the trial court's award of thirty-five percent (35%)
permanent partial disability to each arm is excessive and not
supported by a preponderance of the evidence.  From our review of the
entire record and applicable law, the judgment of the trial court is
affirmed as modified.

http://www.tba.org/tba_files/TSC_WCP/nolesd.wpd

STATE ex rel. BENJAMIN M. BOWMAN, et al. v. CITY OF ELIZABETHTON

Court:TCA

Attorneys: 

Joseph E. May, Mount Carmel, Tennessee, for the Appellants

Charlton R. DeVault, Jr., Kingsport, Tennessee, and Roger G. Day,
Elizabethton, Tennessee, for the Appellee                         

Judge: GODDARD

First Paragraph:

In this condemnation suit the landowners, whose property was
originally proposed to be annexed but later excluded, appeal the Trial
Judge's determination that they have no standing to prosecute the suit
contesting the annexation.  Other landowners who were in the original
annexation ordinance and remained therein after the amended ordinances
excluding realtors, sought to intervene and contest the City's right
to annex.  Their suit was likewise dismissed upon a finding by the
Trial Court that they had not filed an exception within the 30-day
period allowed by Statute.  We affirm the Trial Court's resolution
both as to the Realtors and the parties attempting to intervene.

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

EDDIE COOLEY v. JOE MAY

Court:TCA

Attorneys: 

Eddie Cooley, Pikeville, Tennessee, Pro Se.                         

Judge: KOCH
 
First Paragraph:

This appeal involves a state prisoner's efforts to obtain an
accounting for the sentence credits he earned while incarcerated in
the Sequatchie County Jail.  After the prisoner discovered that the
Tennessee Department of Correction had received no information from
the Sheriff of Sequatchie County regarding his sentence credits, he
filed a petition for writ of mandamus in the Circuit Court for
Sequatchie County seeking to compel the sheriff to calculate his
sentence credits and forward the information to the Department.  The
sheriff filed a pro se response asserting that the prisoner forfeited
any sentence credits he may have earned by violating his parole. 
Thereafter, the District Attorney General for the Twelfth Judicial
District moved to dismiss the prisoner's petition for lack of subject
matter jurisdiction.  The trial court granted the motion and dismissed
the petition.  The prisoner has now appealed.  We have determined that
the trial court erred by concluding that it lacked subject matter
jurisdiction to consider the prisoner's petition.  Accordingly, we
reverse and remand the case for further proceedings.

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

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. D.G.S.L.
IN THE MATTER OF:  D.L.L. and L.L.L.

Court:TCA

Attorneys: 

Julie Anne Foster, Knoxville, Tennessee, for the Appellant D.G.S.L.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl
Dimond, Assistant Attorney General, Nashville, Tennessee, for the
Appellee State of Tennessee, Department of Children's Services.                         

Judge: SWINEY

First Paragraph:

In this appeal, D.G.S.L. ("Mother") challenges the termination of her
parental rights, claiming there was insufficient proof to establish
grounds for termination or that it was in the best interest of the
children to terminate the parent-child relationship.  Mother also
claims her due process rights were violated when she did not receive
notice of the initial hearings in this matter and, therefore, was not
present or represented at those hearings.  We affirm the decision of
the Juvenile Court terminating Mother's parental rights.

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

PATRICIA GORE v. GEORGE D. GORE

Court:TCA

Attorneys:

Robert L. Jackson, Larry Hayes, Jr., Nashville, TN, for Appellant

Denise Andre, Franklin, TN; Thomas F. Bloom, Nashville, TN, for
Appellee                          

Judge: HIGHERS

First Paragraph:

This appeal arises from a complaint for divorce filed by the Appellee
in the Circuit Court of Williamson County.  The trial court awarded
the Appellee a divorce on the grounds of inappropriate marital conduct
and adultery.  The trial court divided the marital property and
ordered the Appellant to pay the Appellee alimony in futuro and child
support for the parties' two minor children.  The trial court ordered
the Appellant to maintain life insurance to secure the alimony and
child support obligations.  Additionally, the trial court entered a
permanent injunction restraining the Appellant from taking the
children in the presence of the Appellant's girlfriend.

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

SUSAN GREEN v. LEON MOORE, et al.

Court:TCA

Attorneys: 

Eugene N. Bulso, Jr., Barbara Hawley Smith, Nashville, for Appellants

James D. Kay, Jr., Nashville, for Appellee                         

Judge: HIGHERS

First Paragraph:

This appeal arises from the breach of a settlement agreement entered
into by the Appellants and the Appellee.  The Appellee filed a
complaint against the Appellants in the Circuit Court for Williamson
County, seeking damages for loss of reputation, embarrassment,
humiliation, lost wages, loss of earning capacity, and loss of the
ability to advance.  The Appellants filed a motion to dismiss on the
basis that the action was barred by the statute of limitations.  The
trial court granted in part and denied in part the motion to dismiss.

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

WANDA SUE GRUBBS v. RAE PILKINGTON

Court:TCA

Attorneys: 

Gary Howell, Columbia, For Appellant, Wanda Sue Grubbs

Barbara J. Perutelli, Nashville, For Appellee, Rae Pilkington                         

Judge: CRAWFORD

First Paragraph:

Plaintiff was injured when attacked by defendant's dog on August 7,
1996 at defendant's Maury County residence.  Plaintiff filed suit
against defendant on August 7, 1997.  Process was returned September
12, 1997, with notation "unable to locate,  moved to KY."  On November
30, 1998, the trial court dismissed the complaint for failure to renew
process pursuant to Tenn.R.Civ.P. 3.  On August 6, 1999, plaintiff
filed another suit against defendant, and she was duly served by
certified mail at her Kentucky address.  The trial court granted
defendant's motion for summary judgment finding that from the
undisputed facts, plaintiff could not rely upon the tolling statute,
T.C.A. S 28-1-111, and that plaintiff's action is barred by the
one-year statute of limitation.  Plaintiff appeals.  We affirm.

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

ISHAAQ (aka ALONZO STEWART) v. TENNESSEE DEPARTMENT OF CORRECTION, et
al.

Court:TCA

Attorneys:

Ishaaq (fsn, Alonzo Stewart), Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; and Pamela S. Lorch, Nashville, Tennessee, for the
appellees, Tennessee Department of Correction, et al.                           

Judge: CAIN

First Paragraph:

Ishaaq, a prisoner in the Department of Corrections serving a combined
130 year sentence for Class X felonies committed prior to July 1,
1982, seeks to rescind a waiver by which he chose, in 1987, to gain
the sentence reduction credit benefits applicable to him under
Tennessee Code Annotated section 41-21-236.  He seeks to rescind the
waiver under the belief that he would thereby become eligible for
mandatory parole.  The trial judge dismissed his complaint, and we
affirm the action of the trial court.

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

STEFFONE MCCLENDON, FATHER OF DAMIEN O'SHAY MAURICE MCCLENDON, THE
NEXT OF KIN OF CYNTHIA VANESSA FRANCIS, DECEASED v. DR. ELAINE BUNICK

Court:TCA

Attorneys: 

H. Naill Falls, Jr., James B. Johnson, Nashville, for Appellant

Wynne C. Hall, Summer H. Stevens, Knoxville, for Appellee                         

Judge: HIGHERS

First Paragraph:

This case involves a medical malpractice claim that was dismissed on
summary judgment by the trial court.  The plaintiff, Steffone
McClendon, appealed to this Court, seeking a reversal of the trial
court's summary judgment.  We affirmed the trial court's decision
based on the legislative history and our interpretation of Section
20-1-119 of the Tennessee code.  The plaintiff sought a review of this
Court's decision with the Tennessee Supreme Court.  Although the
supreme court refused to hear the case, it remanded the case to this
Court for reconsideration in light of Townes v. Sunbeam Oster Co.,
Inc., 50 S.W. 3d 446 (Tenn. Ct. App. 2001) released this year by the
middle section of this Court and recently published.

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

LOIS LYNN MILLER v. JAMES EARL MILLER

Court:TCA

Attorneys:

Jack Green, Brentwood, Tennessee, for the appellant, James Earl
Miller.

Robert L. Jackson and Larry Hayes, Jr., Nashville, Tennessee, for the
appellee, Lois Lynn Miller.                          

Judge: CAIN

First Paragraph:

This is the second appeal to this Court of this divorce case and the
appellant disputes attorney's fees awarded for wife's attorney and the
division of two marital assets.  On remand from this Court, the trial
court held that certain assets, including an IRA and pension benefits,
were marital property and divided them.   The husband appeals.  We
affirm the trial court's classification of the husband's IRA and
Textron retirement account as marital property and its division of the
marital property .  We also affirm the award of attorney's fees.

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

DAVID PITTS v. FLOYD R. BLACKWELL, SR.

Court:TCA

Attorneys: 

Guy R. Dotson, Sr., Gregory M. Reed, Murfreesboro, TN, for Appellant

Fannie J. Harris, Nashville, TN, for Appellee                         

Judge: HIGHERS
 
First Paragraph:

This appeal involves the decision of a probate court to approve the
amended first and final accounting of a conservatorship and award
attorney's fees for the conservator's defense of the accounting.  The
conservator, owner of a funeral home, conducted a $26,367.75 funeral
for the conservatee.  An interested party objected to approval of the
funeral expenses and a hearing was held.  The probate court ordered
the conservator to return the proceeds from a prepaid burial life
insurance policy to the estate, but confirmed the accounting in all
other respects.  For the following reasons, we affirm in part, reverse
in part, vacate in part and remand for further proceedings.

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

DORIS MAE PARKS SANDERS v. SAMUEL BOONE SANDERS, JR. 

Court:TCA

Attorneys: 

Dot Dobbins, Nashville, Tennessee, for the appellant, Doris Mae Parks
Sanders.

Larry D. Ashwood and Peter D. Heil, Nashville, Tennessee, for the
appellee, Samuel Boone Sanders, Jr.                         

Judge: KOCH

First Paragraph:

This appeal involves a former spouse's right to post-judgment interest
on an award of alimony in solido.  After her former husband failed to
pay the alimony in solido required by the final divorce decree, the
former wife filed a petition in the Circuit Court for Davidson County
seeking $9,847.68 in post-judgment interest.  The trial court
recognized that the post-judgment interest had accrued but decided not
to award the interest to the former wife unless her former husband
failed to make his future periodic alimony payments in a timely
manner.  When her former husband began to pay his alimony payments
late, the former wife renewed her request for the post-judgment
interest.  The trial court found that the former husband had been
delinquent in his alimony payments but again declined to order the
former husband to pay the post-judgment interest if he prepaid the
remaining balance of his periodic alimony.  The former wife has
appealed from the trial court's repeated refusal to award her the
post-judgment interest on her alimony in solido award.  We have
determined that the former wife was entitled to post-judgment interest
as a matter of law and, therefore, that the trial court erred by
failing to award her $9,847.68 for post-judgment interest.

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

CHRISTELL STAGGS v. WILLIAM E. SELLS, et al.

Court:TCA

Attorneys:

Onnie L. Winebarger, Byrdstown, Tennessee, for the appellants, William
Sells and wife, Betty Jean Sells.

Daryl A. Colson, Livingston, Tennessee, for the appellee, Christell
Staggs.

Judge: CAIN

First Paragraph:

This case involves a claim of negligent misrepresentation in the sale
of a home.  The trial court found that Defendants' statements and
actions constituted negligent misrepresentation of the condition of
the property resulting in $25,000.00 in damages to Plaintiff. 
However, the trial court also found, applying principles of
comparative fault, that Defendants were 60% at fault and Plaintiff was
40% at fault.  A judgment of $15,000 was, thus, assessed against
Defendants.  Defendants appeal the court's finding of negligent
misrepresentations, as well as the amount of damages determined by the
court to be suffered by Plaintiff.  We affirm.

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

RICHARD WILSON v. THE UNIVERSITY OF TENNESSEE AT CHATTANOOGA

Court:TCA

Attorneys: 

Rebecca Wells Demaree and Andrew Lawrence Berke, Nashville, Tennessee,
for the Plaintiff/ Appellant, Richard Wilson.

Ronald Courtney Leadbetter, Knoxville, Tennessee, for the
Defendant/Appellee, The University of Tennessee at Chattanooga.                         

Judge: GODDARD

First Paragraph:

In this appeal from the Chancery Court for Davidson County Dr. Richard
Wilson, the Plaintiff/Appellant, contends that the Chancellor erred in
affirming an Administrative Judge's decision  that Dr. Wilson engaged
in conduct warranting his dismissal as a tenured faculty member at the
University of Tennessee at Chattanooga, the Defendant/Appellee, for
violation of the University's  policy against sexual harassment.  We
reverse the judgment of the Chancery Court and remand for further
proceedings consistent with this opinion. We adjudge costs against the
University of Tennessee at Chattanooga.

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

DEE ANN WOOLMAN v. EARL CLENTON WOOLMAN

Court:TCA

Attorneys:

Rebecca E. Byrd, Franklin, TN, for Appellant

Joanie L. Abernathy, Franklin, TN, for Appellee                          

Judge: HIGHERS

First Paragraph:

The Appellant and the Appellee are the parents of three minor
children.  Following the Appellant and the Appellee's divorce, they
shared joint legal and physical custody of the children.  The
Appellant filed a Petition for Modification of Custody in the Circuit
Court of Williamson County seeking to relocate with the children to
Illinois.  Following the close of the Appellant's proof at the hearing
on the Petition, the Appellee made a Motion to Dismiss.  The trial
court granted the Motion to Dismiss and awarded attorney's fees to the
Appellee.

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

						

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