Opinion FlashJuly 24, 2002Volume 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.
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Howard H. Vogel 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 PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! 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