Opinion Flash

June 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.

This Issue (IN THIS ORDER):
 
00 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
11 New Opinion(s) from the Tennessee Court of Appeals
02 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


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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