Opinion Flash

September 10, 2002
Volume 8 — Number 157

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
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 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

CLIFFORD GOOLESBY v. ABB C-E SERVICES, INC.

Court:TSC - Workers Comp Panel

Attorneys:

Jeffrey Lawrence Cleary, Chattanooga, Tennessee, for the appellant,
Combustion Engineering, Inc., ABB C-E Services, Inc., and ABB
Services, Inc., d/b/a ABB C-E Power Products Manufacturing.

Harry F. Burnette, Chattanooga, Tennessee, for the appellee, Clifford
Goolesby.

Judge: BYERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  The trial
court found the plaintiff was entitled to permanent total disability
benefits.  The trial court further found the defendant was not
entitled to offset social security benefits against the award.  The
defendant appeals only from the judgment of the trial court which
denied the social security offset.  We affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TSC_WCP/goolesbyc.wpd

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. D.G.B. and C.B.

Court:TCA

Attorneys:      

Mitchell A. Byrd, Chattanooga, Tennessee, Guardian Ad Litem for J.E.B.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl
Dimond, Assistant Attorney General, for the appellee, State of
Tennessee Department of Children's Services.

Arthur Bass, Cleveland, Tennessee, for the appellees, D.G.B. and C.B. 
                  
Judge: SUSANO

First Paragraph:

In this termination of parental rights case, the trial court found -
by clear and convincing evidence - that there are multiple grounds for
terminating the parental rights of the mother ("D.G.B.") and father
("C.B.") of J.E.B. (DOB: October 27, 1986).  The trial court, however,
refused to terminate their parental rights because it determined that
the evidence fails to show, in a clear and convincing manner, that
termination is in the "best interests" of the subject child.  See
T.C.A. S 36-1-113(c)(2) (2001).  The court directed the Department of
Children's Services ("DCS") to develop a plan of care for the removal
of the child from Bradley County to Carter County, the present home of
the parents, "then to be provided services toward reunification."  The
Guardian Ad Litem for J.E.B. appeals, contending that the court erred
in refusing to terminate the parents' parental rights and in ordering
the transfer of the child to Carter County.  We find the evidence
preponderates against the trial court's determination that termination
is not in the best interests of the child.  On the contrary, we find
clear and convincing evidence that it is in the child's "best
interests" to terminate the parental rights of D.G.B. and C.B. 
Accordingly, we reverse the judgment of the trial court.

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

HOME FEDERAL BANK, FSB, OF MIDDLESBORO, KENTUCKY v. FIRST NATIONAL
BANK OF LAFOLLETTE, TENNESSEE, et al.

Court:TCA

Attorneys:

C. Mark Troutman, LaFollette, Tennessee, for the appellants, First
National Bank of LaFollette, Tennessee and C. Mark Troutman.

Joseph G. Coker, Jacksboro, Tennessee, for the appellees, Home Federal
Bank, FSB, of Middlesboro, Kentucky.                       

Judge: SUSANO

First Paragraph:

In this case of first impression, we are asked to determine the
priority between (1) a first deed of trust on 12.58 acres of land in
Campbell County - with a so-called dragnet clause - securing a fully-
advanced-at-inception commercial loan of $235,040 and (2) a second
deed of trust on the same property.  The focus of the parties' dispute
is upon the proceeds remaining from a foreclosure sale under the first
deed of trust after all obligations relating to the original
commercial loan of $235,040 had been paid in full.  The holder of the
first deed of trust claims that it is entitled to apply these
remaining proceeds to partially satisfy a separate commercial debt
owed to the beneficiary of the first deed of trust, which debt was
incurred after the second deed of trust was recorded.  The holder of
the second deed of trust disagrees; it claims priority to these
remaining funds by virtue of its deed of trust.  The trial court found
that the obligation secured by the second deed of trust has priority
over the subsequent debt, which debt admittedly falls under the
language of the first deed of trust's dragnet clause.  The trial court
also found that the notice of trustee's sale published in connection
with the foreclosure on the subject property by the holder of the
first deed of trust was deficient.  The court went on to award the
beneficiary of the second deed of trust $30,931.85, being the balance
of the proceeds from the foreclosure sale after the beneficiary of the
first deed of trust had been fully paid for all monies due it in
connection with the original indebtedness of $235,040.  The holder of
the first deed of trust appeals, challenging both of the trial court's
holdings.  The holder of the second deed of trust, on the other hand,
argues that the trial court erred in refusing to award prejudgment
interest.  We vacate the trial court's judgment and remand for further
proceedings.

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

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