Opinion FlashMay 10, 2002Volume 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.
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Howard H. Vogel 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! 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