Opinion FlashOctober 31, 2002Volume 8 — Number 193 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel PHILLIP STEVENSON v. STATE OF TENNESSEE Court:TSC - Workers Comp Panel Attorneys: Ronald W. McNutt, Nashville, Tennessee, for the appellant, Phillip Stevenson Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, and Pamela S. Lorch, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee Judge: LOSER 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. In this appeal, the employee insists the commission erred in dismissing his claim for failure to state a claim for which relief can be granted. As discussed below, the panel has concluded the judgment should be vacated and the cause remanded for further proceedings. http://www.tba.org/tba_files/TSC_WCP/stevensnp.wpd STATE OF TENNESSEE v. STEVEN KEITH ARRINGTON Court:TCA Attorneys: William K. Ricker, Greeneville, Tennessee, for the Appellant, Steven Keith Arrington Paul G. Summers, Attorney General and Reporter, and Kathy D. Aslinger, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee Judge: GODDARD First Paragraph: In this case from the Greene County Criminal Court the Appellant, Steven Keith Arrington, a juvenile, contends that there was insufficient evidence to support the jury's finding that he was guilty of aggravated kidnaping. Mr. Arrington also asserts that, assuming his conviction was proper, the Trial Court erred in failing to sentence him to an indeterminate commitment. We affirm the judgment of the Trial Court and remand. http://www.tba.org/tba_files/TCA/arrington.wpd STEVEN R. BELFORD v. J & J PLASTERING, INC., et al. Court:TCA Attorneys: Morgan G. Adams, Chattanooga, Tennessee, for the Appellant Steven R. Belford. Robert A. Crawford, Knoxville, Tennessee, for the Appellees J & J Plastering, Inc., and Danny W. Cox. Judge: SWINEY First Paragraph: Steven R. Belford (Plaintiff") sued Danny W. Cox ("Cox") and J & J Plastering, Inc., ("Company") after he was rear-ended by a vehicle owned by the Company and driven by Cox. The jury returned a verdict for $9,000 in favor of Plaintiff. Plaintiff appealed to this Court without first filing a motion for new trial. Plaintiff raises four issues on appeal, all of which center around the exclusion or admission of evidence at trial. Because Plaintiff did not raise these issues in a motion for new trial, we deem them to be waived and dismiss this appeal. http://www.tba.org/tba_files/TCA/belfordsr.wpd LARRY MORGAN d/b/a MORGAN CONTRACTING, INC. v. TOWN OF TELLICO PLAINS, TENNESSEE, et al. Court:TCA Attorneys: John W. Cleveland, Sweetwater, for the Appellant, Morgan Contracting, Inc. Wm. P. Biddle, III, Athens, for the Appellee, Town of Tellico Plains, Tennessee Judge: GODDARD First Paragraph: In this contract dispute, the Plaintiff, Morgan Contracting, Inc. ("Morgan") sued the Town of Tellico Plains, alleging that it was due $68,464.86 under the terms of the contract. Tellico Plains answered with the defense that Morgan's claim was time-barred under the sixty-day limitations period set forth in the contract. After a non-jury trial, the Court ruled that Morgan had not filed suit within the contractual limitations period and consequently dismissed Morgan's cause of action. On appeal, Morgan argues that the Trial Court erred in not finding that Tellico Plains waived its right to rely upon the contractual limitations period provision. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/morganl.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, v. R.S.P. Court:TCA Attorneys: David L. Leonard, Greeneville, Tennessee, for the appellant, R.S.P. Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services. Judge: SUSANO First Paragraph: This is a termination of parental rights case. The rights in question are those of R.S.P., who is, by blood relationship, the paternal grandmother of C.W.P., a minor child ("the child"). As a result of a West Virginia proceeding, R.S.P. is also the adoptive mother ("the adoptive mother") of the child. The Department of Children's Services ("DCS") sued the adoptive mother seeking to terminate her parental rights with respect to the child. Following a bench trial, the court below terminated her parental rights. The adoptive mother appeals, contending that the evidence fails to show, clearly and convincingly, that a ground for termination exists or that termination is in the "best interests,"see Tenn. Code Ann. S 36-1-113(c)(2), of the child. We affirm. http://www.tba.org/tba_files/TCA/rsp.wpd CHARLES SMITH, EXECUTOR OF THE ESTATE OF ETHEL ROGERS SMITH, DECEASED v. JERRY SMITH Court:TCA Attorneys: Christopher P. Capps, Morristown, Tennessee, for the Appellant, Charles Smith, Executor of the Estate of Ethel Rogers Smith. Douglas R. Beier, Morristown, Tennessee, for the Appellee, Jerry Smith. Judge: SWINEY First Paragraph: Ethel Rogers Smith ("Ethel") executed a will in 1991 that provided that her property would go to her husband, if he survived her, and if not, would be split equally between her two sons, Charles Smith ("Charles") and Jerry Smith ("Jerry"). Ethel's husband predeceased her. Ethel executed a Durable Power of Attorney with Springing Clause in 1994, naming Jerry as her attorney-in-fact. Although the power of attorney never became operative under its terms, Ethel and Jerry treated it as though it were operative and Jerry signed numerous documents as his mother's attorney-in-fact. Ethel died in February of 2000. The majority of Ethel's money is in a SunTrust Securities account held as joint tenants with right of survivorship with Jerry. The Trial Court found that no confidential relationship existed between Jerry and Ethel and that Jerry did not exercise undue influence over his mother. Charles, as executor of his mother's estate, appeals, among other things, the Trial Court's findings of no confidential relationship and no undue influence. We affirm in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/smithc.wpd STATE OF TENNESSEE v. MARK ALLEN HASKETT Court:TCCA Attorneys: Alan R. Beard, Chattanooga, Tennessee, for the appellant, Mark Allen Haskett. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William H. Cox, III, District Attorney General; and Rodney C. Strong, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled guilty to aggravated burglary and assault. The Defendant received a sentence of six years for the aggravated burglary conviction and a sentence of eleven months and twenty-nine days for the assault conviction. The trial court ordered that the six-year sentence for aggravated burglary be served concurrently with the sentence for assault, but consecutively to a sentence for evading arrest from another case. The Defendant's effective sentence in this case is six years in the Tennessee Department of Correction. On appeal, the Defendant challenges the length of his sentence for aggravated burglary and the manner of service of his sentences. Although the trial court misapplied certain enhancement factors, we conclude that the sentences imposed are appropriate and affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/haskettma.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! 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