Opinion FlashMarch 1, 2002Volume 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.
There are three ways for TBALink members to get the full-text versions of these opinions from the Web:
Howard H. Vogel 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 PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN TBALink! SUBSCRIBE TO OPINION FLASH! For the HTML Text Version: UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: Home • Contact Us • PageFinder • What's New • Help |
|
© Copyright 2002 Tennessee Bar Association
|