Opinion Flash

July 24, 2002
Volume 8 — Number 127

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
05 New Opinion(s) from the Tennessee Court of Appeals
00 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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


CONSTANCE CHERRY AND MARCUS CHERRY, as next of kin of STEVEN CHERRY,
deceased v. STATE OF TENNESSEE

Court:TCA

Attorneys:

Ricky L. Boren, Jackson, Tennessee, for the appellants, Constance
Cherry and Marcus Cherry, as next of kin of Steven Cherry, deceased.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, and Martha A. Campbell, Senior Counsel, for the
appellee, State of Tennessee.                       

Judge: LILLARD

First Paragraph:

This is a wrongful death case.  The decedent was a patient at a state
mental health institution.  He died at the institution because he was
not properly treated for urinary problems.  The mother of the decedent
filed this wrongful death action against the State, seeking damages
for the decedent's loss of earning capacity, pain and suffering, as
well as her loss of consortium.  The complaint was later amended to
add the decedent's son as a plaintiff.  The son sought damages only
for his loss of consortium.  After a hearing, the Tennessee Claims
Commission denied the mother any damages for wrongful death, holding
that persons of unequal kinship cannot both maintain a wrongful death
action relating to the same death.  However, the Claims Commission
awarded the mother her out-of- pocket funeral expenses, and awarded
$25,000 to the son for his loss of consortium.  The mother and son now
appeal.  We affirm, finding that, as between the mother and son of the
decedent, the son has the greater degree of kinship with the decedent,
and therefore the mother cannot be awarded damages for the decedent's
wrongful death.

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

THOMAS H. NELSON v. ROBIN L. NELSON

Court:TCA

Attorneys:

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Thomas H.
Nelson.

Richard Gossum, Trenton, Tennessee, for the appellee, Robin L. Nelson.

Judge: FARMER

First Paragraph:

In this divorce case, Husband appeals the type and amount of alimony
awarded Wife, the award to Wife of his military Survivor Benefit Plan,
the calculation of his retirement pay and the award to Wife of her
attorney's fees.  We have determined, based on this record, that the
judgment be modified to reduce the amount of alimony in futuro, but
otherwise affirm.

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

DOCTOR THOMAS PONCHIK v. DAVID LARE, FRED FIGUEROA, GEORGIA CROSS,
WHITEVILLE CORRECTIONAL FACILITY, AND CORRECTIONS CORPORATION OF
AMERICA

Court:TCA

Attorneys:

Doctor Thomas Ponchik, Sayre, Oklahoma, Appellant, Pro Se.

Tom Anderson, Jackson, Tennessee, for the appellees, David Lare, Fred
Figueroa, Georgia Cross, Whiteville Correctional Facility, and
Corrections Corporation of America.

Judge: LILLARD

First Paragraph:

This is a civil lawsuit filed by a prisoner against the prison
facility at which he was housed.  The plaintiff prisoner filed this
action in forma pauperis, claiming he was wrongfully terminated from
his prison job. The trial court dismissed his claim with prejudice,
apparently finding the plaintiff did not satisfy the requirement of
Tennessee Code Annotated S 41-21-805 that he file a complete list of
previous lawsuits filed, or the requirement of Tennessee Code
Annotated S 41-21-806 that he state the date his grievance was filed
and the date of the decision of the grievance committee.  The
plaintiff appeals.  We reverse, finding that the plaintiff was not an
inmate within the statutory definition and, therefore, the
requirements of Tennessee Code Annotated SS 41-21-805 and 806 did not
apply.

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

LIZABETH ELLEN (SORRELL) RAMSEY 
v. 
LARRY AUBREY HENSON

Court:TCA

Attorneys:  

Larry Aubrey Henson, appellant, pro se.

Susan A. Shubert, for the appellee Elizabeth Ellen (Sorrell) Ramsey.

Judge: LILLARD

First Paragraph:

This is an appeal from a juvenile court proceeding regarding child
support and visitation.  The minor child was born in 1996; the mother
and father never married each other.  Mother filed a petition to
establish paternity, and a blood test established the father's
paternity of the child.  On June 20, 1996, a consent order was entered
providing that the mother would have full custody of the minor child, 
and that the parties would work out a child support agreement between
themselves, as well as a visitation schedule.  The consent order
stated that if either party moved more than 90 miles from the
permanent residence of the other party, both parties would share
equally in transportation costs.  After much litigation, including two
prior appeals, the trial court entered an order which included inter
alia the denial of several motions by the defendant father, an
increase in the father's child support obligation, an awarding of
attorney's fees to the plaintiff mother, and the setting aside of any
future visitation by the father with the minor child until the father
obtains substantial psychological counseling and demonstrates that the
resumption of visitation is in the child's best interest.  The father
again appeals.  We affirm, finding ample support for the order of the
trial court.

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

ROBERT EMMETT VAN HORN v. LINDA GAIL VAN HORN

Court:TCA

Attorneys:     

Leroy Phillips, Jr., Chattanooga, Tennessee, for the appellant, Linda
Gail Van Horn.

Phillip C. Lawrence, Chattanooga, Tennessee, for the appellee, Robert
Emmett Van Horn.                     

Judge: SUSANO

First Paragraph:

This is a divorce case.  In 1992, the trial court granted Linda Gail
Van Horn ("Wife") a bed and board divorce from her husband, Robert
Emmett Van Horn ("Husband").  In 1993, Husband filed a complaint
seeking an absolute divorce.  Six years later, following the filings
of various pleadings by each of the parties and the filing of a new
divorce complaint by Husband under a new docket number, the trial
court consolidated the two proceedings, held a hearing, and declared
the parties divorced pursuant to T.C.A. S 36-4-129 (2001).  Wife
appeals, arguing that the trial court erred in granting an absolute
divorce; that the trial court's division of marital property is not
equitable;  that the trial court erred in failing to require Husband
to carry insurance on his life for the benefit of Wife; that the trial
court erred in requiring Husband to pay only one-third of Wife's
uncovered medical expenses; and that the trial court erred in failing
to require Husband to pay the taxes and insurance on the former
marital residence.  We affirm.

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

Costs for Indigent Defense under Tenn. Code Ann.  40-14-210

Date: July 19, 2002

Opinion Number: 02-081                         

http://www.tba.org/tba_files/AG/2002/OP81.pdf

Effect of unpaid civil penalties and/or unfiled campaign disclosure
reports on write-in candidates

Date: July 19, 2002

Opinion Number:   02-082                        

http://www.tba.org/tba_files/AG/2002/OP82.pdf

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