Opinion Flash

August 7, 2002
Volume 8 — Number 137

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
14 New Opinion(s) from the Tennessee Court of Appeals
00 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


ELIZABETH ANN BAKER v. MERROL HYDE, et al.

Court:TCA

Attorneys:

James L. Harris, Nashville, Tennessee, for the Appellant, Elizabeth
Ann Baker.

William R. Wright and Leah May Dennen, Gallatin, Tennessee, for the
Appellees, Merrol Hyde, Jeff Helbig and Steve Shepard.

Roger A. Sindle, Hendersonville, Tennessee, for the Appellee, Sheila
Pryor.                      

Judge: SWINEY

First Paragraph:

Elizabeth Ann Baker ("Plaintiff") is a school teacher.  Plaintiff sued
Steve Shepard, the principal of her school, and Sheila Pryor, another
teacher.  Plaintiff also sued Merrol Hyde, the director of Sumner
County Schools, and Jeff Helbig, the school system's assistant
director.  Plaintiff claimed the four defendants ("Defendants") were
liable for negligent and intentional infliction of emotional distress
and civil conspiracy.  In addition to her Answer, Pryor filed a
Counter-Complaint against Plaintiff for slander. All four Defendants
filed Tenn. R. Civ. P. 12.02(6) Motions to Dismiss.  The Trial Court
granted Defendants' Motions to Dismiss but did not address Pryor's
pending Counter- Complaint.  Plaintiff appeals.  Because the judgment
appealed from is not a final judgment under Tenn. R. App. P. 3, we
dismiss and remand.

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

IN THE MATTER OF THE ESTATE OF S.W. BRINDLEY, DECEASED

Court:TCA

Attorneys:

Thomas W. Hardin, Kim B. Kettering, Columbia, Tennessee, for the
appellant, Robert Brindley, Sr.

Robert C. Henry, William Stuart Fleming, Columbia, Tennessee, for the
appellee, Linda Brindley Dale.

Judge: COTTRELL

First Paragraph:

This is a will contest between two siblings.  After the onset of the
parties' father's final illness, during which his competence was
questioned and eventually a conservator appointed, the father executed
a codicil to his will that materially altered the distribution of his
estate in favor of his son, the appellant herein.  The testator's
daughter challenged the validity of the codicil in the underlying
action.  After the jury found that the codicil was not the testator's
"own free act," but was instead the result of undue influence on the
son's part, the codicil was declared a nullity.  We affirm the jury's
verdict.

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

IN RE: ESTATE OF THERESA JOAN CUNNINGHAM, DECEASED

Court:TCA

Attorneys:

Guy R. Dotson, Sr. and Gregory M. Reed, Murfreesboro, Tennessee, for
the appellant, David Pitts.

Judge: CANTRELL

First Paragraph:

The plaintiff filed a claim against the estate of the deceased more
than eighteen months after the first publication of notice to
creditors and twenty months after her death.  The trial court granted
him a judgment against the estate for the full amount of his claim. 
We reverse.

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

IN THE MATTER OF D.L.B., A MINOR

Court:TCA

Attorneys:  

Barbaralette G. Davis, Webb A. Brewer, Nancy Percer Kessler, Memphis,
TN, for Appellant

Larry E. Parrish, Memphis, TN, for Appellees, Donald Joe Nickleson, et
ux

Paul G. Summers, Attorney General & Reporter, Dianne Stamey Dycus,
Deputy Attorney General, Nashville, for Appellee, Tennessee Department
of Children's Services

Judge: HIGHERS

First Paragraph:

This is a case involving the termination of parental rights.  The
Appellees filed a petition in the Chancery Court of Shelby County to
terminate the Appellant's parental rights to his child.  Following a
hearing, the trial court entered an order terminating the Appellant's
parental rights on the basis of abandonment.  The Appellant appeals
the trial court's order terminating his parental rights.  For the
reasons stated herein, we affirm the trial court's decision.

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

GALLATIN HOUSING AUTHORITY v. REBECCA & DIONISIO MONTESILLO AND

GALLATIN HOUSING AUTHORITY v. MARGARITA FLORES

Court:TCA

Attorneys:       

Zoe Laakso Doyle, Gallatin, Tennessee, for the Appellants Rebecca
Montesillo and Margarita Flores.

Kurt O. E. Tschaepe, Gallatin, Tennessee, for the Appellee, Gallatin
Housing Authority.                   

Judge: BROTHERS

First Paragraph:

This is a case involving the termination of parental rights.  The
Appellees filed a petition in the Chancery Court of Shelby County to
terminate the Appellant's parental rights to his child.  Following a
hearing, the trial court entered an order terminating the Appellant's
parental rights on the basis of abandonment.  The Appellant appeals
the trial court's order terminating his parental rights.  For the
reasons stated herein, we affirm the trial court's decision.

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

PAUL E. JOHNSON v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND
DAVIDSON COUNTY, TENNESSEE, AND LESTER L. WILLIAMS, JR., DIRECTOR OF
THE DEPARTMENT OF WATER AND SEWERAGE SERVICES OF THE METROPOLITAN
GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY.

Court:TCA

Attorneys:

Carol D. Kilgore, Nashville, Tennessee, for the appellant, Paul E.
Johnson.

Thomas G. Cross, Nashville, Tennessee, for the appellees, The
Metropolitan Government of Nashville and Davidson County, Tennessee.

Judge: ASH

First Paragraph:

Paul E. Johnson, a Nashville real estate developer, filed a complaint
demanding a refund for sewer access fees paid to the Metropolitan
Department of Water and Sewerage Services.  A counterclaim was filed
by Metro alleging Mr. Johnson executed a valid contract to contribute
$1,000,000 toward the construction of the Mill Creek sewer trunk line,
less the net amount of any excess access fees paid under a previous
agreement.  Mr. Johnson denied the existence of a contract to share
the cost of extending the trunk sewer link.  The trial court dismissed
Mr. Johnson's claims and entered judgment in favor of the Metropolitan
Department of Water and Sewerage Services for $688,942.88. Mr. Johnson
appealed.

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

JOSEPH W. LAURENZI v. CITY OF MEMPHIS 

Court:TCA

Attorneys: 

Sam L. Crain, Jr., Burch, Porter & Johnson, of Memphis, Tennessee, for
the appellant, City of Memphis.

Clyde W. Kennan, Keenan, Dabbous & Lazarini, of Memphis, Tennessee,
for the appellee, Joseph W. Laurenzi.                         

Judge: LILLARD

First Paragraph:

This is an action by a police officer for on-the-job-injury benefits. 
The police officer joined the city police department in 1967.  In
1998, it was discovered that he had coronary heart disease, and he
underwent triple by-pass surgery.  He applied for on-the-job-injury
benefits, but his application was denied.  In January 2000, the
officer filed this lawsuit against the city, asserting that he was
entitled to benefits.  After a bench trial, the trial court granted
the officer benefits, finding that the city failed to produce
sufficient evidence to rebut the presumption in Tennessee Code
Annotated S 7-51-201 that the officer's heart condition was caused by
his employment.  The city now appeals.  We find that the city
submitted competent medical evidence sufficient to rebut the statutory
presumption, and that the burden then shifted to officer to show that
his condition was precipitated by a specific stressful job-related
event.  Because the officer failed to do so, we must reverse the award
of benefits.

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

VICKIE LEWIS v. OTIS CAMPBELL and ROBERT M. DINWIDDIE, JR.

Court:TCA

Attorneys:

Aubrey Harper and Billy K. Tollison, III, McMinnville, Tennessee, for
the appellant, Vickie Lewis.

Daniel H. Rader, III, Cookeville, Tennessee, for the appellee, Otis
Campbell.

Henry Hine, Franklin, Tennessee, for the appellee, Robert M.
Dinwiddie, Jr.                         

Judge: LILLARD

First Paragraph:

This case involves allegations of medical malpractice and
misrepresentation.  In September 1998, the plaintiff patient began
visiting the office of the defendant physician for medical treatment. 
In February or March 1999, the patient discovered that the person
treating her was not the defendant physician.  In June 1999, the
patient discovered that the person treating her was a pharmacist.  In
April 2000, the plaintiff patient filed a lawsuit against the
physician and the pharmacist, asserting medical malpractice and
misrepresentation.  The trial court granted summary judgment to the
defendants based on the one-year statute of limitations.  The
plaintiff now appeals.  We affirm, finding that plaintiff had
sufficient knowledge in February or March 1999 to put her on notice of
her cause of action, and, consequently, her April 2000 lawsuit was
barred by the statute of limitations.

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

TRENT WRIGHT MARCUS v. LORRAINE BURTON SPIERS MARCUS

Court:TCA

Attorneys:

Edward M. Bearman, Memphis, Tennessee, for the appellant, Lorraine
Burton Spiers Marcus.

Daniel Loyd Taylor and John N. Bean, Memphis, Tennessee, for the
appellee, Trent Wright Marcus.                        

Judge: LILLARD

First Paragraph:

This case involves a petition to enroll a foreign judgment.  The
parties were married in Tennessee and later moved to North Carolina. 
While living in North Carolina, the parties separated and the husband
filed for divorce in North Carolina.  The wife filed a counterclaim
for divorce in North Carolina, seeking permanent and pendente lite
alimony. The North Carolina court ordered the husband to pay pendente
lite alimony.  While the North Carolina proceedings were pending,
husband moved to Arkansas and obtained a divorce in Arkansas.  In
light of the Arkansas divorce, the wife  filed a voluntary dismissal
of her North Carolina counterclaim.  The husband then filed a motion
in North Carolina under a North Carolina statute, seeking
reimbursement of the pendente lite alimony he had paid to the wife. 
The North Carolina court entered a judgment ordering the wife to
reimburse the husband for the alimony payments.  The wife did not file
an appeal in North Carolina.  The husband then filed a petition to
enroll the North Carolina judgment in Tennessee.  The Tennessee trial
court enrolled the North Carolina judgment.  The wife now appeals.  We
affirm, finding that the North Carolina court had subject matter
jurisdiction under its statutes to enter the judgment and that the
North Carolina judgment was not contrary to Tennessee public policy.

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

JERRY DWAYNE NOE v. MELISSA DAWN NOE (BARNES)

Court:TCA

Attorneys:

Lawrence D. Wilson, Nashville, Tennessee, for the appellant, Melissa
Dawn Noe (Barnes).

Jennifer F. Noe, Ashland City, Tennessee, for the appellee, Jerry
Dwayne Noe.

Judge: CAIN

First Paragraph:

This is an appeal by the Wife in a divorce case complaining of the
disposition of marital property.  The Husband also complains about an
award of alimony in solido against him.  We affirm the Chancellor.

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

STATE OF TENNESSEE v. KRISTOPHER ROBERTS

Court:TCA

Attorneys:    

C. Michael Robbins, Memphis, Tennessee, for the appellant, Kristopher
Roberts.

Paul G. Summers, Attorney General and Reporter and Mark E. Davidson,
Assistant Attorney General, for the appellee, State of Tennessee.                      

Judge: FARMER

First Paragraph:

This case involves a juvenile's appeal from an adjudication of
delinquency.  The jury found that the juvenile was guilty of
disorderly conduct as a result of his actions at the Tipton County
School Board building.  The jury also found the juvenile guilty of
assault and resisting arrest due to his actions in the Juvenile Court
of Tipton County.  We affirm the jury's verdict.

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

CHARLES W. SALSMAN and CHARLES M. DUKE, JR. v. TEXCOR INDUSTRIES,
INC., IRBY C. SIMPKINS, JR., WESLEY G. GRACE, JAMES A MASSEY, and
BROWNLEE O. CURREY, JR.

Court:TCA

Attorneys:

John S. Golwen and Ashley S. Old, Memphis, Tennessee for the
Appellants, Charles W. Salsman and Charles M. Duke, Jr.

Steven C. Douse, Nashville, Tennessee and Lee S. Saunders, Somerville,
Tennessee for the Appellees, Texcor Industries, Inc., Irby C.
Simpkins, Jr., Wesley G. Grace, James A. Massey, and Brownlee O.
Currey, Jr.                          

Judge: LILLARD

First Paragraph:

This appeal arises out of a petition filed in Tennessee to enroll a
Texas judgment.  In this case, the plaintiffs filed a petition to
enroll the foreign judgment.  While this was pending, the defendants
filed  a motion for leave to amend their answer to assert a
counterclaim.  Three days later, before the trial court had ruled on
the motion to amend, the plaintiffs filed a notice of voluntary
dismissal, including a proposed order stating that no counterclaim had
been plead.  The trial court entered the proposed order. 
Subsequently, in response to the defendants' motion, the trial court
vacated its earlier order of dismissal and granted the defendants'
motion to amend to assert the counterclaim. In this interlocutory
appeal, we affirm, holding under Rule 41.01(1) of the Tennessee Rules
of Civil Procedure that the proposed counterclaim attached to the
motion to amend is considered a "pleaded" counterclaim, thereby
permitting the defendants to elect to proceed on the counterclaim
despite the plaintiffs' notice of voluntary dismissal.

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

WILLIAM HOWELL STEELE, et al. v. RICHARD A. BERKMAN, M.D., et al.

Court:TCA

Attorneys: 

Steven E. Anderson, Sara E. Fitzpatrick, Nashville, TN, for Appellant
Paul Moots, M.D.

Terry J. Leonard, Camden, TN, for Appellees

Judge: HIGHERS

First Paragraph:

This appeal arises from a medical malpractice complaint filed by the
Appellees in the Circuit Court of Davidson County against the
Appellant, six other doctors, and two hospitals.  The Appellant filed
a motion for summary judgment.  The trial court denied the Appellant's
motion for summary judgment.  The Appellant filed an application for
extraordinary appeal with this Court pursuant to Rule 10 of the
Tennessee Rules of Appellate Procedure.  This Court granted the
application for extraordinary appeal.  For the reasons stated herein,
we reverse the trial court's denial of summary judgment against the
Appellant.

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

ROBERT WADE UTLEY v. ROBERT ORR-SYSCO FOOD SERVICES COMPANY

Court:TCA

Attorneys:

Donald D. Zuccarello, Nashville, Tennessee, for the appellant, Robert
Wade Utley.

Eugene N. Bulso, Jr., and Barbara Hawley Smith, Nashville, Tennessee,
for the appellee, Robert Orr- Sysco Food Services Company.                     

Judge: LILLARD

First Paragraph:

This is a premises liability case.  The plaintiff was shopping in a
store owned by the defendant when the plaintiff slipped and fell on a
clear liquid substance and sustained personal injuries.  The plaintiff
shopper sued the defendant store owner on a theory of premises
liability.  The trial court granted summary judgment in favor of the
defendant.  The plaintiff now appeals.  We affirm, finding that the
plaintiff submitted insufficient evidence to create a genuine issue of
material fact regarding whether the store had actual or constructive
notice of the dangerous condition prior to the plaintiff's fall.

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

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