Opinion Flash

October 31, 2002
Volume 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):
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
05 New Opinion(s) from the Tennessee Court of Appeals
01 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


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

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