Opinion FlashJune 7, 2002
Volume 8 Number 100
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
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Howard H. Vogel
NELDA JUNE AGE v. HCA HEALTH SVCS. OF TN., INC. d/b/a CENTENNIAL MEDICAL CENTER Court:TCA Attorneys: Richard McCallister Smith, Nashville, Tennessee, for the appellant, Nelda June Age. Clarence James Gideon and Margaret James Moore, Nashville, Tennessee, for the appellee, HCA Health Services of Tennessee, Inc. d/b/a Centennial Medical Center. Judge: INMAN First Paragraph: This is an action for damages for personal injuries to a patient who claims that her injuries resulted from the ordinary negligence of the Hospital's employees, as contrasted to their medical malpractice. The trial judge concluded, in ruling on the motion of the Hospital for summary judgment, that the event described by the plaintiff, if actionable, sounded in malpractice, thus requiring expert proof. We agree. The motion of the appellee to recover discretionary costs was denied without elaboration. We find that certain costs identified in Rule 54.04(2) are properly recoverable. http://www.tba.org/tba_files/TCA/agenelda.wpd
MICHAEL BARAL v. GEORGE JOSHUA BOMBARD Court:TCA Attorneys: Andy Allman and Stephanie Hatchett, Nashville, Tennessee, for the appellant, George Bombard. Phillip Robinson and Christine Carolton, Nashville, Tennessee, for the appellees, Michael and Jocelyn Baral. Judge: ASH First Paragraph: This appeal arises from a dispute over the custody of Austin Bombard, a minor child, and the termination of George Bombard's parental rights on a finding of abandonment. The trial court dismissed the father's Petition for Custody and granted custody of the child to Jocelyn and Michael Baral, the child's maternal aunt and uncle. Mr. Bombard challenges the termination of his parental rights and the trial court's custody order. We affirm the trial court's termination of the father's parental rights and custody order. Costs of this appeal shall be assessed to the appellant. http://www.tba.org/tba_files/TCA/baralvbombard.wpd
DISCOUNT COMMUNICATIONS, INC. v. BELLSOUTH TELECOMMUNICATIONS, INC. Court:TCA Attorneys: Henry Walker, Nashville, Tennessee, for the appellant, Discount Communications, Inc. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Vance L. Broemel, Assistant Attorney General, for the appellant, State of Tennessee. Guy M. Hicks and Patrick W. Turner, Nashville, Tennessee, for the appellant and appellee, BellSouth Telecommunications, Inc. Jonathan N. Wike and Gary R. Hotvedt, Nashville, Tennessee, for the appellee, Tennessee Regulatory Authority. Judge: CANTRELL First Paragraph: Discount Communications, Inc. purchases telephone services from BellSouth Telecommunications, Inc. and resells the services at an increased rate to Discount's own residential and commercial customers. Some of Discount's customers qualify for a Federal Communication Commission program called Lifeline, which provides telephone services at a reduced rate through federal and state subsidies. BellSouth and Discount got into a dispute about whether their agreement required BellSouth (1) to provide directory assistance to Discount's customers and (2) to pass the $3.50 per month state subsidy through to Discount. The Tennessee Regulatory Authority decided that the agreement required BellSouth to provide directory assistance at no charge to Discount's customers and that BellSouth was not required to forward the $3.50 monthly charge to Discount. We affirm. http://www.tba.org/tba_files/TCA/discountcomm.wpd
SONYA GAYLE (BILES) ENGSTROM v. TODD GLEN ENGSTROM Court:TCA Attorneys: Troy Lee Brooks, Mt. Juliet, Tennessee, for the appellant, Todd Glen Engstrom. Jessica Dawn Dugger and Angelique P. Kane, Lebanon, Tennessee, for the appellee, Sonya Gayle (Biles) Engstrom. Judge: CANTRELL First Paragraph: The trial court divided the marital property of a divorcing couple, awarding the wife the marital home and the husband his leather business. The husband appealed, arguing that the property division was inequitable because the home was worth much more than the business. We affirm the trial court. http://www.tba.org/tba_files/TCA/engstromsg.wpd
VICTORIA L. HENRY, et al. v. TIMOTHY A. GOINS, et al. Court:TCA Attorneys: Eugene Nicholas Bulso, Jr. and Julie C. Murphy Burnstein for the appellant, Robert Orr - Sysco Food Services Company. Robert L. Whitaker and Bart Durham for the appellees, Victoria L. Henry and Peggy Henry. Judge: INMAN First Paragraph: The suit of the plaintiffs was dismissed for failure to prosecute. The judgment did not provide that the dismissal was without prejudice. More than thirty days after entry of the Order of Dismissal, the plaintiffs filed a Rule 60.02 Motion that the Order of Dismissal be set aside. Their failure to file a timely motion was attributed to the asserted excusable neglect of a paralegal who assumed that a motion filed by a cross-claimant sufficed for the plaintiffs as well. The trial judge set the Order of Dismissal aside. We hold that the conduct of the paralegal cannot be treated as excusable neglect. A defendant, Robert Orr-Sysco Food Systems Company ["Robert Orr-Sysco"], incurred reporting expenses before a non-suit was taken by the plaintiffs. The defendant moved for discretionary costs which were disallowed. We reverse. http://www.tba.org/tba_files/TCA/henryvictoria.wpd
CHARLES P. IVEY, et al. v. PAT HAMLIN, et al. Court:TCA Attorneys: Daniel W. Cook, Ashland City, Tennessee, and Michael E. Evans, Nashville, Tennessee, for the Appellants, Pat Hamlin and Cheatham County, Tennessee. J. Todd Faulkner, Nashville, Tennessee, for the Appellees, Charles P. Ivey, Karolina Windorfer, Ernestine O'Guin and Maria Pennington. Judge: INMAN First Paragraph: This is an action for damages for the deliberate killing of a dog by a Deputy Sheriff. The owner of the dog claims damages under 42 U.S.C. Section 1983 for the alleged violation of his 14th Amendment rights, the witnesses to the shooting sue for damages for the infliction of emotional distress. The motion of the Deputy and the County for summary judgment was denied. http://www.tba.org/tba_files/TCA/iveycp.wpd
MAURICE KARR, et al. v. PAUL C. GIBSON a/k/a PAUL CALVIN GIBSON Court:TCA Attorneys: Ramsey B. Leathers, Jr., Nashville, TN, for Appellant Robert J. Notestine, III, Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a complaint for a deficiency judgment filed by the Appellee against the Appellant in the Chancery Court of Davidson County. The trial court entered an order awarding the Appellee a deficiency judgment which included interest at the note rate of six percent per annum. The trial court also awarded the Appellee prejudgment interest at the rate of six percent per annum, expenses, costs, and attorney's fees. The Appellee appeals the award of prejudgment interest and, in part, the award of attorney's fees entered by the Chancery Court of Davidson County. For the reasons stated herein, we reverse and remand. http://www.tba.org/tba_files/TCA/karrmaurice.wpd
JAMIE LYNN FISH MASON v. CHARLES E. MASON, Jr. Court:TCA Attorneys: Denise Terry Stapleton, Morristown, Tennessee, for the Appellant, Charles E. Mason, Jr. Jill R. Tally, Dandridge, Tennessee, and James R. Scroggins, Jefferson City, Tennessee for the Appellee, Jamie Fish Mason. Judge: GODDARD First Paragraph: This appeal from the Chancery Court of Cocke County questions whether the Trial Court erred in failing to grant Mr. Mason standard visitation with his minor son. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/masonjamie.wpd
LINDA K. PLUNK, et al. v. NATIONAL HEALTH INVESTORS, INC. Court:TCA Attorneys: Randy Hillhouse, Lawrenceburg, Tennessee, for the appellants, Linda K. Plunk and Billy M. Plunk. William C. Moody, Nashville, Tennessee, for the appellee, National Health Investors, Inc. Judge: KOCH First Paragraph: This appeal involves a nursing home visitor who injured herself by stepping into a grassy depression in the building's landscaping. The visitor and her husband filed suit in the Circuit Court for Lawrence County alleging that the nursing home's owner had failed to maintain the premises in a reasonably safe condition. A jury apportioned sixty percent of the fault to the nursing home and forty percent to the visitor and awarded the visitor $40,000 for medical expenses and permanent impairment. Both parties filed post-trial motions after the trial court entered a $24,000 judgment for the visitor. The visitor and her husband sought a new trial or an additur because the jury had not awarded damages for pain and suffering. The nursing home filed a Tenn. R. Civ. P. 50.02 motion for a judgment in accordance with its motion for a directed verdict. The trial court denied the nursing home's motion and suggested a $5,000 additur. The nursing home accepted the additur, and both parties appealed. The visitor asserts that the trial court erred by failing to grant a new trial, and the nursing home asserts that the trial court erred by denying its Tenn. R. Civ. P. 50.02 motion. We have determined that the trial court erred by denying the nursing home's Tenn. R. Civ. P. 50.02 motion because it was not reasonably foreseeable that visitors would be walking on the grassy area where the plaintiff fell. Accordingly, we reverse the judgment. http://www.tba.org/tba_files/TCA/plunklk.wpd
NORMAN POWER, et al. v. JEFFERSON COUNTY BOARD OF ZONING APPEALS Court:TCA Attorneys: Clinton R. Anderson, Morristown, for the appellants, Norman and Mary Lynne Power. Jeffrey L. Jones and Steven Douglas Drinnon, Dandridge, for the appellee, Jefferson County Board of Zoning Appeals. Judge: SUSANO First Paragraph: Norman Power and Mary Lynne Power (collectively "the Powers") filed a petition for writ of certiorari challenging the decision of the defendant Jefferson County Board of Zoning Appeals ("the Board") finding that the Powers' commercial racetrack and motor cross trail were not pre-existing uses entitled to the protection of the "grandfather" statute, T.C.A. S 13-7-208 (1999). The Board, after hearing conflicting evidence, determined that the subject property was not being used as a racetrack or motor cross facility prior to the enactment of the Jefferson County zoning ordinance that prohibits such use on the subject property. The trial court affirmed the Board's ruling. We affirm. http://www.tba.org/tba_files/TCA/powern.wpd
DAVID L. SCHWAB v. DAVID E. MILLER, AN INDIVIDUAL, et al. Court:TCA Attorneys: Gerald A. Smith, Jr., Brentwood, Tennessee, for the appellant, David L. Schwab. H. Lee Barfield, II, Coburn Dewees Berry, and Rebecca S. Kell, Nashville, Tennessee, for the appellee, David E. Miller, David E. Miller Development Company, and MSB Governors, LLC. Judge: CANTRELL First Paragraph: The Chancery Court of Williamson County held that in order to claim a major benefit of an employment contract the employee had to be employed when the other contingencies in the contract were met. We affirm the lower court's interpretation. http://www.tba.org/tba_files/TCA/schwabdl.wpd
STATE OF TENNESSEE v. CHRISTINE D. McCLAIN Court:TCCA Attorneys: Ricky L. Wood, Parsons, Tennessee, for the appellant, Christine D. McClain. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; T. Michael Bottoms, District Attorney General; and J. Douglas Dicus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Christine D. McClain, was convicted by a Wayne County jury of permitting or facilitating the escape of a person in custody for a felony conviction, Tenn. Code Ann. S 39-16-607, a Class C felony. Following a sentencing hearing, the trial court ordered Defendant to serve three years in confinement. In this appeal, Defendant challenges her conviction and sentence, raising the following issues: (1) whether the evidence was sufficient to support her conviction; (2) whether the trial court erred in its rulings on various evidentiary issues; (3) whether the trial court erred by denying Defendant's request for a continuance on the ground that the State failed to abide by the rules concerning timely discovery; (4) whether the trial court erred by failing to give the proper jury instruction concerning the identification of Defendant; (5) whether the trial court erred by failing to instruct the jury on appropriate lesser-included offenses; and (6) whether the trial court erred by denying Defendant probation and/or any form of alternative sentencing. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mcclainchristined.wpd
STATE OF TENNESSEE v. GENEE HARDIN SNOW, SR. Court:TCCA Attorneys: G. Wayne Davis, Nashville, Tennessee, for the appellant, Genee Hardin Snow, Sr. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Originally charged in an indictment with the offense of attempted first degree murder, the Defendant, Genee Hardin Snow, Sr., entered into a negotiated plea agreement wherein he pled guilty to the lesser-included offense of attempted second degree murder, with the trial court to determine the length and manner of service of his sentence following a sentencing hearing. Additional charges of aggravated assault, reckless endangerment with a deadly weapon, and possession of a weapon in a public place were dismissed pursuant to the plea agreement. Following a sentencing hearing, the trial court sentenced Defendant to serve nine (9) years in the Tennessee Department of Correction. Arguing that he should have received the minimum sentence of eight (8) years, and that he should have been ordered to serve the sentence on probation or some other form of alternative sentence, Defendant has appealed. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/snowgeneeh.wpd
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