Opinion FlashDecember 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.
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Howard H. Vogel
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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