Opinion Flash

March 1, 2002
Volume 8 — Number 038

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):
 
03 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


DANIEL B. BARGE III v. EARL H. SADLER, et al.

Court:TSC

Attorneys: 

Dan R. Bradley, Waverly, Tennessee, and G. Sumner R. Bouldin, Jr.,
Murfreesboro, Tennessee, for the appellants, Earl and Vera Sadler.

George A. Dean, Nashville, Tennessee, for the for appellee, Daniel B.
Barge III.                         

Judge: BIRCH

First Paragraph:

Daniel B. Barge III filed a petition seeking to condemn a portion of
Earl and Vera Sadler's property for use as an easement for access to
his landlocked property.  The trial court found that Barge already
enjoyed an easement by implication across John Sonday's property;
thus, he could not show, as required by the condemnation statute, that
he had no other access to a public road.  The Court of Appeals
reversed the trial court's judgment and held that the Sadler property
was the proper location for an easement to Barge's land.  The Sadlers
make two contentions on appeal:  (1) that the Court of Appeals erred
in designating the property to be burdened by the easement; and (2)
that Barge failed to join all adjoining landowners as indispensable
parties defendant.  We hold that the jury of view, not the
intermediate appellate court, is the proper body to determine the
location of an easement granted pursuant to Tenn. Code Ann. S
54-14-101(a)(1) (Supp 2000). We further hold that those owning
property upon which an easement could practically be constructed
should be named as parties defendant.  Therefore, we affirm the
judgment of the Court of Appeals holding that the property is
landlocked and reverse the judgment locating the easement; in all
other respects, the judgment is affirmed.  The cause is remanded to
the trial court for the appointment of a jury of view and other
proceedings consistent with this opinion.

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

TAMMY L.M. KLINE, for herself and for the use and benefit of LORI
MICHELLE KLINE, KRISTY LAINE KLINE, and DIANA MARIE KLINE  v.  DANIEL
P. EYRICH, et al.

Court:TSC

Attorneys:    

Jerry A. Farmer and Bradley A. Farmer, Knoxville, Tennessee, for the
appellant, Tammy L.M. Kline.

Thomas S. Scott and Christopher T. Cain, Knoxville, Tennessee, and
Paul G. Beers, Roanoke, Virginia, for the appellees, Lori Michelle
Kline, Kristy Laine Kline, and Diana Marie Kline, by their next
friend, mother, and natural guardian, Marcia Kline Newcomb.

Judge: BARKER

First Paragraph:

The primary issue in this case is whether a trial court may use the
common fund doctrine in a wrongful death action to spread attorneys'
fees equitably among the surviving beneficiaries of the action.  The
trial court consolidated two wrongful death actions, which were
brought by the surviving spouse and children of the decedent, and it
gave the surviving spouse control of the consolidated action.  After
the suit was settled, the trial court awarded the surviving spouse's
attorney one-third of the settlement proceeds as a fee.  On appeal,
the children argued that the trial court improperly awarded fees to
the surviving spouse's attorney from their share of the settlement
because they possessed no contract with that attorney.  A majority of
the Court of Appeals held that although the award of fees could be
proper under the common fund doctrine, the case should be remanded to
resolve factual ambiguities in the record.  We granted permission to
appeal and hold that a trial court has the discretion to apply the
common fund doctrine to the proceeds of a wrongful death action,
thereby obliging the beneficiaries of that action to pay a reasonable
fee to the attorney procuring the judgment or settlement.  We also
hold that the record contains no evidence showing that the trial court
abused its discretion in awarding fees to the surviving spouse's
attorney.  The judgment of the Court of Appeals is affirmed in part
and reversed in part.

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

WOODLAWN MEMORIAL PARK, INC.  v.  ROGER KEITH, et al.

Court:TSC

Attorneys:

Michael A. Geracioti and Dale A. Tipps, Nashville, Tennessee, for the
appellant, Woodlawn Memorial Park, Inc.

William A. Cameron, Charles L. Hardin, and Arnold E. Lefkovitz,
Cookeville, Tennessee, for the appellees, Roger Keith, individually,
as Widower of Connie Keith, decedent, and as guardian of Amber
Breedlove, the minor child of the decedent; Bruce Breedlove, as
natural father and legal guardian of Amber Breedlove.

Judge: BARKER

First Paragraph:

In this workers' compensation appeal, an employee was allegedly
injured in the course and scope of her employment.  While purportedly
seeking medical treatment for these injuries, she contracted an
infection and died.  The employer filed suit in the Davidson County
Chancery Court claiming that no compensable injury occurred and that
the employee used the excuse of an injury to seek prescription drugs
for her addiction.  The trial court held for the employer and later
granted the employer's motion for discretionary costs.  The Special
Workers' Compensation Appeals Panel reversed, finding that a
preponderance of the evidence established that a work-related injury
did occur and that the employee died as a result of seeking treatment
for those injuries.  We then granted the employer's application for
full court review and hold that the trial court's findings are
supported by a preponderance of the evidence.  We also hold that the
trial court did not abuse its discretion in awarding discretionary
costs to the employer.  The judgment of the Davidson County Chancery
Court is affirmed.

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

KAY E. DUNCAN v. MODINE MANUFACTURING CO., INC. and JIM FARMER/THE
SECOND INJURY FUND

Court:TSC - Workers Comp Panel

Attorneys:     

Michael J. Mollenhour, Knoxville, Tennessee for the appellant, Modine
Manufacturing Co. Inc.

Roger L. Ridenour, Clinton, Tennessee, for the appellee, Kay E.
Duncan.

E. Blaine Sprouse, Nashville, Tennessee, for the appellee, Second
Injury Fund.                     

Judge: BYERS

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 that in the current work-related injury
the plaintiff sustained an 80 percent permanent partial disability to
the body as a whole and a 15 percent permanent partial disability to
the body as a whole as a result of an aggravation of her pre-existing
depression.  The plaintiff had previously sustained a work-related
carpal tunnel injury and received an award of 35 percent for the
injury, which was stipulated to convert to 17.5 percent.  The trial
court found the plaintiff's current 95 percent disability coupled with
her pre-existing right arm condition rendered her permanently and
totally disabled in accordance with Tennessee Code Annotated S
50-6-207(4)(A)(i).  The trial court assessed 82.5 percent of the award
to the defendant employer and the balance to the Second Injury Fund. 
We affirm the judgment of the trial court and remand the case to the
trial court for entry of such orders as are necessary to carry out the
judgment.

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

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. DONALD GRANT
IN THE MATTER OF: E.G.

Court:TCA

Attorneys:  

Carl E. Seely, Jackson, Tennessee, for the Appellant, Donald Grant.

Paul G. Summers, Attorney General and Reporter, and Dianne Stamey
Dycus, Deputy Attorney General, Nashville, Tennessee, for the
Appellee, State of Tennessee Department of Children's Services.                        

Judge: LILLARD

First Paragraph:

This case involves the termination of parental rights.  The child was
voluntarily placed in the custody of the Department of Children's
Services in April 1996 due to the parents' substance abuse.  A
petition was filed to terminate the parental rights of both parents. 
The mother's parental rights were terminated by default, but the
petition was dismissed as to the father.  The trial court then ordered
visitation and child support.  The father stopped making visits after
two months and failed to pay any child support.  A second petition to
terminate the father's parental rights was filed on the grounds, inter
alia, of abandonment and that the conditions which led to the child's
removal persisted and were unlikely to be remedied. The trial court
granted the petition to terminate parental rights and the father
appeals.  We affirm, finding clear and convincing evidence to support
the termination of the father's parental rights.

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

ANGELA HODGES, et al. v. STATE OF TENNESSEE

Court:TCA

Attorneys:

Robert D. Flynn, Marc A. Sorin, Memphis, For Appellants, Angela
Hodges, et al.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, Meredith Devault, Senior Counsel, for Appellee,
State of Tennessee                     

Judge: CRAWFORD

First Paragraph:

This is an appeal of a decision of the Tennessee Claims Commission. 
Claimant's complaint seeks damages for her husband's death by suicide
after he had been treated by a state employed psychologist.  Claimant
alleges that the psychologist was negligent in his care and treatment
of the deceased which resulted in the suicide.  The Claims
Commissioner dismissed the claim for lack of jurisdiction because it
was not a medical malpractice claim within the meaning of T.C.A. S
9-8-307 (a)(1)(D).  Claimant has appealed.  We reverse.

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

In re: K.A.Y. and A.M.Y.

Court:TCA

Attorneys:

Scarlett A. Beaty, Knoxville, Tennessee, for the Appellants, Wayne and
Mary Stuart.

Dawn Coppock, Strawberry Plains, Tennessee, for the Appellees, Paul
and Susan Young.

Paul G. Summers and Douglas Earl Dimond, Nashville, Tennessee, for the
Appellee, State of Tennessee.                         

Judge: SWINEY

First Paragraph:

Wayne and Mary Stuart ("Stuarts"), as foster parents, had physical
custody of a set of twins ("Children") for approximately a year and a
half when the Department of Children's Services ("DCS") removed the
Children from the Stuarts' home and placed them with Paul and Susan
Young ("Youngs").  The Stuarts later filed a petition in Knox County
Juvenile Court seeking custody of the Children.  While the custody
matter was pending, the Youngs filed an adoption petition in the Trial
Court which was granted.  The Stuarts filed a motion to intervene and
to set aside the adoption decree.  The Trial Court granted this
motion.  The Youngs filed a Motion for Summary Judgment and cited
three grounds in support of their motion: (1) the requirement that
adoptive parents have custody of the child; (2) DCS's consent to the
adoption; and (3) the statutory foster parent preference for adoption.
 Without deciding the Stuarts' petition for custody, the Trial Court
granted summary judgment as a matter of law to the Youngs.  The
Stuarts appeal.  We affirm.

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

ROBERT PHILLIP MANNERY v. WAL-MART DISTRIBUTION CENTER

Court:TCA

Attorneys:

B. Chadwick Rickman, Knoxville, Tennessee, for the appellant, Wal-Mart
Distribution Center.

John T. Milburn Rogers, Greenville, Tennessee, for the appellee,
Robert Phillip Mannery.                       

Judge: DROWOTA

First Paragraph:

The dispositive issue in this workers' compensation appeal is factual:
whether the right inguinal hernia for which the plaintiff claims
recovery existed prior to the work-related accident that occurred on
April 24, 1998.  If the hernia existed prior to the accident, recovery
is barred by Tenn. Code Ann. S 50-6-212(a)(5) which provides that an
employee must prove that the "hernia or rupture did not exist prior to
the accident for which compensation is claimed."  The trial court
found that the hernia did not exist prior to the work-related
accident, concluded that the plaintiff had a compensable workers
compensation claim, and awarded the plaintiff twenty-one percent
permanent partial disability to the body as a whole.  The Special
Workers' Compensation Appeals Panel affirmed the decision of the trial
court.  We granted the defendant's motion for review and now affirm
the decision of the trial court and the Special Workers' Compensation
Appeals Panel.

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

NEW COVENANT BAPTIST CHURCH v. PANTHER SARK, et al.

Court:TCA

Attorneys:

Thomas M. Hale, Knoxville, Tennessee, for the Appellants, Panther
Sark, Carter Rome Eddleman Real Estate, LLC, Subland, LLC, and Koontz,
Loy & Taylor, LLC

George W. Morton, Jr., Knoxville, Tennessee, for the Appellee, New
Covenant Baptist Church

Judge: GODDARD

First Paragraph:

In this suit New Covenant Baptist Church seeks a declaration that
certain restrictions applicable to Technology Park West subdivision do
not preclude New Covenant from using one of the lots for driveway
purposes to other unrestricted property owned by New Covenant outside
the subdivision.  Panther Sark, a partnership, and certain other
owners of lots in the subdivision were named as Defendants and they
filed a counter-complaint seeking a declaration to the contrary.  The
Trial Court found in favor of New Covenant.  We reverse and hold in
favor of the partnership and other owners of lots in the subdivision.

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

ROBERT PERRY, et al. v. WINN-DIXIE STORES, INC.

Court:TCA

Attorneys:

Rufus W. Beamer, Jr., Knoxville, Tennessee, for the Appellants Robert
and Lorene Perry.

Douglas L. Dutton and Kristi M. Davis, Knoxville, Tennessee, for the
Appellee, Winn-Dixie Stores, Inc.

Judge: SWINEY

First Paragraph:

This lawsuit was filed by Robert Perry ("Plaintiff") against
Winn-Dixie Stores, Inc. ("Defendant").  The Trial Court excluded the
testimony of Plaintiff's treating physician, presented by deposition
at trial, pertaining to expenses for medical treatment provided by
other physicians.  The basis for this ruling was lack of a proper
foundation.  Plaintiff claims Defendant's trial objection to lack of
proper foundation was waived because it was not made during the
doctor's deposition.  After the jury returned its verdict, the parties
continued to negotiate a settlement in lieu of Plaintiff's filing an
appeal.  The amount of the judgment, $15,300.00 after the verdict was
reduced pursuant to comparative fault principles, was deposited by
Defendant's counsel with the Trial Court and later withdrawn by
Plaintiff's counsel.  After the original defense attorney moved out of
state and the case was assigned to new defense counsel, Defendant
offered and Plaintiff accepted $20,000.00 in full and final settlement
of the claim.  A disagreement later arose as to whether this
settlement offer was $20,000.00 in "new money" or whether it included
the $15,300.00 already paid by Plaintiff.  Plaintiff filed a motion to
enforce the settlement agreement claiming he was offered and accepted
$20,000.00 in "new money."  The Trial Court denied enforcement after
concluding, among other things, that there was no meeting of the
minds.  Plaintiff appeals the evidentiary ruling excluding portions of
his medical expenses, as well as the denial of his motion to enforce
the settlement agreement.  We affirm on both issues.

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

JIM REAGAN, et al. v. WILLIAM V. HIGGINS, et al.

AND

CHARLES BLALOCK & SONS, INC. v. WILLIAM V. HIGGINS, et al.

Court:TCA

Attorneys:

Thomas A. Bickers and Summer H. Stevens, Knoxville, Tennessee, for the
appellant, William V. Higgins.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellant,
Marilyn Higgins.

C. Paul Harrison, Knoxville, Tennessee, for the appellees, Jim Reagan
and Howard Sexton d/b/a Precision Construction Company.                         

Judge: SUSANO

First Paragraph:

These consolidated appeals involve disputes arising under a contract
for the construction of a motel.  In the first action, filed in
chancery court, the general contractors, Jim Reagan and Howard Sexton,
doing business as Precision Construction Company ("Precision"), filed
suit against the owners, William V. Higgins and wife, Marilyn Higgins,
seeking to recover money allegedly due pursuant to the parties'
contract and for extra work allegedly requested by the Higgins (this
suit sometimes will be referred to herein as "the Precision
litigation").  The parties were eventually ordered to arbitration,
wherein Precision was awarded a judgment.  The trial court confirmed
the award, and the defendants now appeal, arguing, inter alia, that
the trial court erred in ordering the parties to arbitrate their
dispute.  In the second action, filed in circuit court, which was
brought by a subcontractor, Charles Blalock & Sons, Inc. ("Blalock"),
against the Higgins (this suit sometimes will be referred to herein as
"the Blalock litigation"), the trial court dismissed a third party
complaint filed by Mr. Higgins against Precision on the ground that
the arbitration award in the first litigation was res judicata as to
Precision's liability with respect to Blalock's claim.  The trial
court granted the Higgins an interlocutory appeal as to Precision's
liability in the circuit court action, following which we also granted
a discretionary appeal and consolidated it with the Higgins' appeal in
the chancery court action.  We find that the Chancellor erred in
ordering Precision and the Higgins to arbitration; accordingly, we
vacate the judgment of the trial court in the chancery court action. 
Because the arbitration award is vacated, we further find that Mr.
Higgins is not barred by res judicata from bringing a third-party
action against Precision in the circuit court suit filed by Blalock.

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

KEVIN STUMPENHORST v. JERRY BLURTON, JR., et al.

Court:TCA

Attorneys:

Melanie M. Stewart, Joseph H. Crabtree, Jr., Memphis, TN, for
Appellant

Ricky L. Boren, Jackson, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case arises from an automobile accident in which the Appellee was
injured while a passenger in a truck driven by the Appellant's son. 
The Appellee filed a complaint in the Circuit Court of Madison County
against the Appellant and his son.  The Appellant and his son filed an
answer which specifically pled an affirmative defense of comparative
negligence.  The Appellee filed a motion for summary judgment against
the Appellant and his son.  The trial court denied the motion for
summary judgment against the Appellant and granted the motion for
summary judgment against the Appellant's son.  The Appellee filed a
motion to strike the affirmative defense of comparative negligence. 
The trial court granted the motion to strike.  Following a jury trial,
the jury found that the Appellee's injuries were caused by the
negligence of the Appellant's son and that the Appellee was entitled
to recover $1,300,000.00 in damages.  The jury found that the
Appellant was liable under the family purpose doctrine.  The Appellant
filed a motion for a judgment notwithstanding the verdict, for a new
trial, or for a remittitur.  The trial court denied the Appellant's
motion.

The Appellant appeals the decision of the Circuit Court of Madison
County disallowing the Appellant to introduce evidence of the
Appellee's comparative negligence.  The Appellant also appeals the
jury verdict finding the Appellant liable under the family purpose
doctrine for $1,300,000.00 in damages.  For the reasons stated herein,
we reverse and remand this case for a new trial in accordance with
this opinion.

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

BARRY LYNN TEAGUE v. BARBARA ANN CHADWICK TEAGUE

Court:TCA

Attorneys:  

Sherry B. Paty, Chattanooga, Tennessee, for the appellant, Barry Lynn
Teague.

William H. Horton, Chattanooga, Tennessee, for the appellee, Barbara
Ann Chadwick Teague.                        

Judge: SUSANO

First Paragraph:

This is a divorce case.  The trial court granted the parties a divorce
on stipulated grounds; divided their marital property; and awarded
Barbara Ann Chadwick Teague ("Wife") alimony in futuro of $1,800 per
month, plus attorney's fees of $2,500.  Barry Lynn Teague ("Husband")
appeals the nature and amount of the alimony award, the division of
property, and the award of attorney's fees.  We vacate the language in
the trial court's judgment projecting into the future as to Wife's
needs when her mortgage obligation has been paid in full.  In all
other respects, the judgment of the trial court is affirmed.

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

SARAH WHITTEN, Individually and d/b/a CENTURY 21 WHITTEN REALTY v.
DALE SMITH, et al.

Court:TCA

Attorneys:

Terry L. Wood, Corinth, MS, for Appellant

Ed Neal McDaniel, Savannah, TN, for Appellee                          

Judge: HIGHERS

First Paragraph:

This is a suit for the failure to pay a real estate commission.  The
Appellant filed a complaint against the Appellees in the Chancery
Court of Hardin County.  The Appellees filed a motion to dismiss for
lack of subject matter jurisdiction and improper venue.  The trial
court denied the motion to dismiss.  The Appellees filed an answer and
counter-complaint.  A trial was held on the complaint and
counter-complaint.  The trial court entered an order finding that the
Appellees did not owe the Appellant a real estate commission and
dismissing the counter-complaint.

The Appellant appeals the order of the Chancery Court of Hardin County
finding that the Appellees did not owe the Appellant

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

STATE OF TENNESSEE v. RICHARD LYNN BATTS

Court:TCCA

Attorneys:

Joseph P. Atnip, District Public Defender (at trial and on appeal),
and Colin Johnson, Assistant District Public Defender (at trial), for
the appellant, Richard Lynn Batts.

Paul G. Summers, Attorney General & Reporter; Braden H. Boucek,
Assistant Attorney General; and Allen Strawbridge, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Richard Lynn Batts, was convicted of driving under the
influence, third offense, and violation of the implied consent law. 
The trial court imposed a sentence of 11 months and 29 days with 120
days' incarceration and the balance to be served on probation for the
DUI offense.  The judgment provided for a three-year period of license
revocation.  See Tenn. Code Ann. S 55-10- 401(a)(1).  For violation of
the implied consent law, the trial court imposed a concurrent one-year
period of license revocation.  See Tenn. Code Ann. S 55-10-406.  In
this appeal of right, the defendant contends that the evidence was
insufficient to establish that he was in physical control of his
vehicle. The judgment for violation of the implied consent law is
modified to establish that the one-year license revocation period is
to run concurrently with the three-year revocation for the defendant's
DUI conviction.  In all other respects, the judgments are affirmed.

http://www.tba.org/tba_files/TCCA/battsrl.wpd

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