Opinion FlashAugust 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.
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Howard H. Vogel
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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