Opinion Flash

December 14, 2003
Volume 9 — Number 009

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):
01 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
06 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


STATE OF TENNESSEE v. GERALD POWERS
Dissenting opinion contains a correction on page 10

Court:TSC

BARKER DISSENTING

http://www.tba.org/tba_files/TSC/powersgcorrex_dis.wpd
								
MICHAEL GLENN BINKLEY v. E. I. DUPONT DE NEMOURS & COMPANY Court:TSC - Workers Comp Panel Attorneys: Charles L. Hicks, Camden, Tennessee, for the appellant, Martha Binkley, widow of Michael Glenn Binkley John R. Lewis, Nashville, Tennessee, for the appellee, E. I. Dupont De Nemours & Company 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 claimant insists the evidence preponderates against the trial court's finding that the employee's death did not arise out of and in the course of his employment. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/binkleymichael.wpd
TROY DALE BUCKLES v. SHIRA DAWN McKAY BUCKLES RIGGS Court:TCA Attorneys: Douglas T. Jenkins, Rogersville, Tennessee, for the Appellant Troy Dale Buckles. Daniel B. Minor, Kingsport, Tennessee, for the Appellee Shira Dawn McKay Buckles Riggs. Paul G. Summers, Attorney General and Reporter, and Warren A. Jasper, Assistant Attorney General, Nashville, Tennessee, for the Appellee State of Tennessee, Department of Human Services ex rel. Shira Dawn McKay Buckles Riggs. Judge: SWINEY First Paragraph: Shira Dawn McKay Buckles Riggs ("Mother") and Troy Dale Buckles ("Father") were divorced in 1994. Mother was awarded custody of the parties' minor son. In 2001, Father first sought increased visitation and then custody. Mother claimed Father was in arrears in his child support payments. After a trial, the Trial Court concluded there had been no material change in circumstances and custody should, therefore, remain with Mother. The Trial Court determined Father was in arrears in his child support payments in the amount of $13,894. The Trial Court also prohibited both parties from drinking alcohol "while in possession of the child." Father appeals. We modify the judgment to require the parties to undergo counseling, and affirm as modified. http://www.tba.org/tba_files/TCA/bucklest.wpd
KELLY LEE CRAWFORD, et al. v. BRIAN C. BEATTY, M.D., et al. Court:TCA Attorneys: Kelly Lee Crawford and James R. Crawford, Nashville, Tennessee, Pro Se. David L. Steed and Kristen Murphy Anderson, Nashville, Tennessee, for the appellees, Brian C. Beatty, M.D. and Bruce R. Goodman, M.D. Judge: CANTRELL First Paragraph: The Circuit Court of Davidson County granted summary judgment to the defendants on this medical malpractice case, holding that the claim was barred by the statute of limitations. The court also awarded the defendants their costs and attorney's fees as sanctions for the plaintiffs' false answers in discovery. We affirm. http://www.tba.org/tba_files/TCA/crawfordkl.wpd
TAWNYA LYNN DUKE v. ROBERT S. DUKE Court:TCA Attorneys: Jeffrey L. Levy, Nashville, Tennessee, for the appellant, Robert S. Duke. Thomas F. Bloom, Nashville, Tennessee, for the appellee, Tawnya Lynn Duke. Judge: CANTRELL First Paragraph: In this opinion we will dispose of two appeals involving these parties. In the first appeal, the husband asserted that the trial court erred in awarding alimony in futuro and in the division of the marital property. While that appeal was pending in this court, the husband appealed (1) the trial court's subsequent refusal to modify the amount of alimony in futuro and (2) the trial court's award of attorney's fees to the wife. We reverse the court's order of alimony in futuro in the first proceeding, because we believe that under the circumstances of this case, the wife is only entitled to rehabilitative alimony. We also modify the amount of alimony awarded in the second proceeding, and we reverse the award of attorney's fees in the second proceeding. In all other respects, the court's orders are affirmed. http://www.tba.org/tba_files/TCA/duketl.wpd
MICHAEL LEE HAYES v. COMPUTER SCIENCES CORPORATION, et al. Court:TCA Attorneys: H. Thomas Parsons, Manchester, Tennessee, for the appellant, Michael Lee Hayes. Patricia Head Moskal and Luther Wright, Jr., Nashville, Tennessee and William C. Rieder, Tullahoma, Tennessee, for the appellee, Aerospace Contractor Support. Judge: CANTRELL First Paragraph: Michael Hayes sued Aerospace Contractor Support (ACS) for retaliatory discharge. He alleged that he was fired because he had filed a workers' compensation claim against a previous employer. The trial court granted summary judgment to ACS stating that the current law in Tennessee did not allow such a cause of action. We reverse the judgment of the trial court. http://www.tba.org/tba_files/TCA/hayesml.wpd
Mildred Howell and Dillon Howell v. Baptist Hospital, Neil Price, M.D., and Josephine Vicente, R.N. Court:TCA Attorneys: Larry D. Ashworth and Peter D. Heil, Nashville, Tennessee, for the appellants, Mildred Howell and Dillon Howell. E. Reynolds Davies, Jr., and John T. Reese, Nashville, Tennessee, for the appellee, Neil Price, M.D. Judge: LILLARD First Paragraph: This is a medical malpractice case. In January 1999, the plaintiff underwent an endoscopic medical procedure performed by the defendant physician. During the procedure, the plaintiff developed multiple air emboli in her brain, which resulted in permanent neurological difficulties. The plaintiff and her husband sued the physician, claiming that the plaintiff's injuries were due to the physician's negligence. The physician moved for summary judgment and submitted his own affidavit in support. In response, the plaintiffs submitted affidavits of two medical experts, asserting that the defendant physician had breached the applicable standard of care. The trial court granted the physician's motion for summary judgment, concluding that the plaintiffs' experts' affidavits did not comply with Tennessee Code Annotated S 29-26-115. The plaintiffs moved to alter or amend the judgment, submitting an amended affidavit and curriculum vitae of one of the two experts. The trial court refused to consider the additional evidence and denied the motion. The plaintiffs now appeal. We affirm in part and reverse in part, concluding that, while the trial court did not err in finding that the initial expert affidavits submitted by the plaintiffs were insufficient, the trial court abused its discretion in failing to consider the amended affidavit and curriculum vitae submitted by the plaintiffs. http://www.tba.org/tba_files/TCA/howellm.wpd
CHARLES MONTAGUE v. TENNESSEE DEPARTMENT OF CORRECTION, et al. Court:TCA Attorneys: Charles Montague, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Dawn Jordan, Assistant Attorney General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: The appellant, Charles Montague, filed suit in the Circuit Court of Davidson County seeking a declaration that his inmate trust account was exempt from seizure to satisfy court costs under Tenn. Code Ann. S 26-2-101, et seq., and that the funds previously taken from the account should be restored. The court granted summary judgment to the state. We affirm. http://www.tba.org/tba_files/TCA/montaguec.wpd

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