Opinion Flash

May 10, 2002
Volume 8 — Number 82

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):
 
01 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 New Opinion(s) from the Tennessee Court of Appeals
03 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
 

There are three ways for TBALink members to get the full-text versions of these opinions from the Web:

Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


LINDELL HOLLINGSWORTH, et al. v. S & W PALLET COMPANY, et al.

Court:TSC

Attorneys: 

Marc A. Sorin and D. Scott Turner, Memphis, Tennessee, for the
appellant, S & W Pallet Company.

Ricky L. Boren, Jackson, Tennessee, for the appellee, Lindell
Hollingsworth.

Michael Alan Jaynes and Danny R. Ellis, Jackson, Tennessee, for the
appellee, Blue Cross/Blue Shield of Tennessee. Paul G. Summers,
Attorney General and Reporter, and E. Blaine Sprouse, Assistant
Attorney General, for the appellee, Second Injury Fund.

Judge: BIRCH

First Paragraph:

In this workers' compensation action involving the Second Injury Fund,
the employee has suffered two disabling heart attacks.  The first was
non-compensable; the trial court found the second compensable and
awarded permanent and total disability benefits, with 40 percent of
the disability allocated to the second heart attack.  The court held
that the Second Injury Fund would have been responsible for the
remaining 60 percent of benefits, but the statute of limitations
barred recovery against the Fund.  The Special Workers' Compensation
Appeals Panel affirmed the trial court's award of permanent total
disability but held the employer liable for 100 percent of the benefit
award.  We granted a motion for review before the entire Supreme Court
pursuant to Tenn. Code Ann. S 50- 6-225(e)(5)(B) (1997).  Primarily,
we are asked to determine whether an employer's allegations of a
pre-existing condition covered by the Second Injury Fund statute
should be treated as an affirmative defense that is waived if not
timely raised.  We hold that the employer is not barred from
attributing liability to the Fund after the running of the statute of
limitations.  Additionally, the employee asserts that the trial court
erred in attributing 40 percent disability, rather than 100 percent,
to the second heart attack.  We hold that the evidence supports a
finding that the second injury resulted in 40 percent disability.  In
regard to all remaining issues, we adopt the memorandum opinion of the
Special Workers' Compensation Appeals Panel affirming the award of
permanent total disability and remanding the cause for determination
of temporary total disability.

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

AIMEE GRACE CATHEY v. CITY OF DICKSON, et al.

Court:TCA

Attorneys:

Tony L. Turnbow, Franklin, Tennessee, for the appellant, Aimee Grace
Cathey.

Jerry V. Smith, Dickson, Tennessee, for the appellee, City of Dickson.
                       
Judge: FARMER

First Paragraph:

This appeal emanates from dismissal of Plaintiff's claims pursuant to
Tenn. Code Ann. S 6-58-101, et seq. and Tenn. Code Ann. S 8-44-101, et
seq.  The trial court dismissed the case as moot after the annexation
ordinance at dispute was repealed by the defendant City of Dickson. 
Plaintiff filed her notice of appeal, and the court below subsequently
granted the City's Tenn. R. Civ. P. 60 motion to allow the City to
amend its answer to include an affirmative defense to Plaintiff's
constitutional claims.  The case was again dismissed.  We affirm
dismissal, but vacate the order granting the City's Rule 60 motion.

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

ALBERTA STEWART DODSON v. JAMES ROBERT DODSON

Court:TCA

Attorneys:  

D. Scott Parsley, Nashville, Tennessee, for the appellant Alberta
Stewart Dodson.

Judge: CANTRELL

First Paragraph:

The trial court awarded a divorce to the parties, and ordered the
husband to pay $1,000 per month as alimony in futuro.  In light of the
needs of the wife, and of the husband's ability to pay, we increase
the alimony award to $1,500 per month.

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

IN RE:  ESTATE OF HAROLD L. JENKINS

Court:TCA

Attorneys:

Timothy L. Warnock, Nashville; Michael D. Sontag, Nashville, For
Appellant, Dolores Henry Jenkins

Charles W. McElroy, Nashville; Brenda Clark, Nashville, For Appellees,
Joni L. Jenkins and Kathy A. Jenkins

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Janet M. Kleinfelter, For Appellees' Constitutional Challenge                     

Judge: CRAWFORD

First Paragraph:

This appeal involves the narrow issue of the applicability of the
"changing fraction" method of calculation of estate income as provided
for in T.C.A. S 35-6-202 (b)(1), a part of the revised Tennessee
Uniform Principal and Income Act (TUPIA).  The revised Act was enacted
after the estate was opened but before it was closed.  On the
surviving spouse's motion to apply the "changing fraction" method to
the calculation, the chancery court ruled that that method did not
apply to this estate but that the "fixed fraction" method did apply. 
The order was made final pursuant to Tenn.R.Civ.P. 54.02 and the
surviving spouse appeals.  We reverse in part and affirm in part.

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

LINDA KINARD v. JOHN ANDERSON KINARD

Court:TCA

Attorneys:

William Kennerly Burger, Murfreesboro, Tennessee, for the appellant,
Linda Kinard.

Daryl M. South, Murfreesboro, Tennessee, for the appellee, John
Anderson Kinard.                        

Judge: COTTRELL

First Paragraph:

Upon remand from earlier appeal, the trial court determined (1)
Husband owed Wife past due alimony without interest; (2) Husband owed
Wife additional $47,933.50 on note with interest from 30 days after
the entry of the Court of Appeals opinion until the amount is paid;
(3) Husband was  not required to release the residence as collateral
on the home equity loan; (4) Husband retained  ownership of the
insurance policy; (5) no attorney's fees were awarded to either party.
 Wife filed a second appeal to dispute the decision of the trial court
and to determine the date at which post- judgment interest begins to
accrue, whether husband should be required to discharge the home
equity loan, whether husband should be restricted in use of life
insurance policy, and whether attorney's fees should have been
awarded.  For the following reasons, we affirm the decision of the
trial court in regards to the attorney's fees, life insurance policy,
and home equity loan and reverse the decision of the trial court with
respect to post-judgment interest.

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

RONALD C. MEREDITH, JR., et al. v. JAMES F. STAIR 

Court:TCA

Attorneys:

Dail R. Cantrell, Clinton, Tennessee, for the Appellant, James F.
Stair

C. Mark Troutman, LaFollette, Tennessee, for the Appellees, Ronald C.
Meredith, Jr., and Clinton Broadcasters, Inc.                        

Judge: GODDARD

First Paragraph:

In this suit seeking damages for breach of contract, Ronald C.
Meredith, Jr., and Clinton Broadcasters, Inc., were granted a judgment
against James F. Stair in the amount of $84,326.  Mr. Stair appeals. 
His single issue insists that the Trial Court was in error in finding
a breach of contract.  We disagree and affirm.

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

SHARON KAYE OUTTEN v. RUSSELL CAMPBELL

Court:TCA

Attorneys:

L. G. Burnett, Jr., Nashville, Tennessee, for the appellant, Russell
Campbell.

Paul G. Summers, Attorney General & Reporter; Stuart F. Wilson-Patton,
Senior Counsel, for the appellee, State of Tennessee, ex rel., Sharon
Kaye Outten.                       

Judge: CANTRELL

First Paragraph:

A Tennessee woman filed a petition in a Tennessee court to establish
paternity, naming a Georgia resident who had minimal contacts with the
State of Tennessee.  The defendant failed to respond, and the court
granted the petitioner a default judgment, ordering the defendant to
pay retroactive child support of over $63,000.  The defendant's
employer subsequently began withholding money from his paycheck
pursuant to a wage assignment.  We find that the judgment was void ab
initio because the court lacked personal jurisdiction over the
defendant.  We also find that the defendant's subsequent appearance in
the Tennessee court for the purpose of objecting to jurisdiction and
obtaining a refund of the money he lost through wage assignment cannot
revive the void judgment.

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

STATE OF TN DEPT. OF CHILDREN'S SVCS. v. T. S. W., et al.

Court:TCA

Attorneys:  

Robert Thomas Carter, Tullahoma, Tennessee, for the appellant, J. A.
J.

Ralph M. Bard, Tullahoma, Tennessee, Guardian Ad Litem.

Paul G. Summers, Attorney General & Reporter; Douglas Earl Dimond,
Assistant Attorney General, for the appellee, State of Tennessee,
Department of Children's Services (DCS).

Judge: INMAN

First Paragraph:

J. A. J. is the father of T. L. J., date of birth 7-25-92; C. S. J.,
date of birth 7-1-93; and S. S. J., date of birth 7-21-94.  A petition
to terminate his parental relationship was filed on May 13, 1996.  The
mother of the children surrendered her parental rights in 1997.  She
is not involved in this litigation.  The case was heard on January 11,
2001 and resulted in a judgment terminating the relationship.  J. A.
J. appeals, insisting that the grounds for termination were not proved
by clear and convincing evidence.  We affirm.

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

STATE OF TENNESSEE v. STEPHEN BART WOOD

Court:TCA

Attorneys:

C. Dawn Deaner and Jonathan F. Wing, Nashville, Tennessee (on appeal);
Jonathan F. Wing and Holly Ruskin, Nashville, Tennessee (at hearing),
for the appellant, Stephen Bart Wood.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General (on appeal) and Angelita Dalton, Assistant
District Attorney General, Nashville, Tennessee (at hearing), for the
appellee, State of Tennessee.                         

Judge: CANTRELL

First Paragraph:

The General Sessions Court of Davidson County found the defendant
guilty of thirty-six violations of an order of protection and ordered
him to serve ten days for each violation.  Each sentence was to be
served consecutively and day-for-day.  The defendant appealed to the
Criminal Court and that court affirmed.  We find that the Criminal
Court lacked subject matter jurisdiction to hear the appeal and that
the sentence should be vacated.  Because Tenn. Code Ann. S
36-3-601(2)(F) now provides for an appeal in the Circuit Court from a
final ruling on an order of protection by a General Sessions Court, we
remand this cause to the Circuit Court for a review of the sentence
for excessiveness, in accordance with the guidelines we adopt in this
opinion.

http://www.tba.org/tba_files/TCA/woodsb1.wpd

FLOYD CAMPBELL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Thomas L. Whiteside, Nashville, Tennessee, for the appellant, Floyd
Campbell.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and David L. Puckett, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: WILLIAMS

First Paragraph:

Petitioner, alleging ineffective assistance of counsel, appeals the
trial court's denial of post- conviction relief.  Petitioner claims
counsel failed to adequately investigate evidence and properly file a
motion for new trial and an amended motion for new trial.  We conclude
counsel was not ineffective and affirm the post-conviction court's
judgment.

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

ROBERT L. FREEMAN v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Randy P. Lucas, Gallatin, Tennessee, for the appellant, Robert L.
Freeman.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Lawrence Ray Whitley, District Attorney
General; and Cara E. Loeffler, Assistant District Attorney General,
for the appellee, State of Tennessee.                          

Judge: RILEY

First Paragraph:

The petitioner originally pled guilty pursuant to a negotiated plea
agreement to one count of aggravated assault for an agreed eight-year
sentence as a Range II multiple offender.  He timely sought
post-conviction relief, which was denied by the post-conviction court.
 In this appeal, the petitioner contends his trial counsel was
ineffective, and his guilty plea was involuntary.  We affirm.

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

STATE OF TENNESSEE v. WILLIAM DAVID MARKS

Court:TCCA

Attorneys:

Frank Lannom, Lebanon, Tennessee, for the appellant, William David
Marks.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. (Tory) Johnson, III, District
Attorney General; and Bret T. Gunn, Assistant District Attorney
General, for the appellee, State of Tennessee.                        

Judge: RILEY

First Paragraph:

The defendant brings this interlocutory appeal in which he challenges
the prosecutor's denial of pretrial diversion for simple assault and
the trial court's denial of his certiorari petition.  We conclude the
prosecutor properly considered the need for deterrence for domestic
violence, the defendant's lack of remorse and failure to take
responsibility for his actions, and the seriousness of the offense and
its impact upon the victim.  However, we conclude the prosecutor
wrongfully considered certain factors relating to domestic violence
cases that have no application to the circumstances of this case, and
wrongfully considered the defendant's depression for which he takes
prescription medication.  Accordingly, we reverse the order of the
trial court and remand this matter to the district attorney general
for further consideration in accordance with this opinion.

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


PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi

© Copyright 2002 Tennessee Bar Association