Opinion Flash

January 29, 2003
Volume 9 — Number 016

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
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 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


Court:TSC - Rules

JOHN OLIVER HARPER v. CATHY LYNN HARPER Court:TCA Attorneys: Robert W. White, Maryville, Tennessee, for the Appellant Cathy Lynn Harper. Jerry G. Cunningham, Maryville, Tennessee, for the Appellee John Oliver Harper. Judge: SWINEY First Paragraph: John Oliver Harper ("Husband") sued for a divorce from Cathy Lynn Harper ("Wife") on the basis of Wife's alleged habitual drunkenness. Wife was represented by counsel early in the litigation, but was not represented when the trial occurred. Early in the morning on the day of trial, Wife was arrested for public intoxication and was not present at trial as she was in jail. The Trial Court entered judgment and distributed the property based solely on Husband's testimony and/or that of his witnesses. Wife filed a motion for relief from the judgment and attempted to offer proof as to why she was unable to be at trial. The Trial Court refused Wife the opportunity to present proof why it was not her fault she was not present at trial, and denied her motion for relief from the judgment. We vacate and remand. http://www.tba.org/tba_files/TCA/harperjo.wpd
IN RE: ESTATE OF DONALD BEN HENDERSON, DECEASED, JEFF HENDERSON v. KENNETH HENDERSON Court:TCA Attorneys: John W. Cleveland, Sweetwater, Tennessee, for the Appellant, Jeff Henderson. Charles Dungan, Maryville, Tennessee, for the Appellee, Kenneth Henderson. Judge: SWINEY First Paragraph: Donald Ben Henderson ("Deceased") died in 1998. Jeff Henderson ("Appellant") is the Deceased's grandson. Kenneth Henderson ("Appellee") is the Deceased's son. Appellant and Appellee each submitted documents for probate purporting to be the last will and testament of the Deceased. In total, three wills and a revocation were filed with the Probate Court. The Probate Court entered its Order of Probate on October 18, 2001, holding that none of the three documents submitted should be admitted to probate as the Deceased's will. Based upon this determination, the Probate Court held the Deceased died intestate. More than thirty days after October 18, 2001, Appellee filed a motion to excuse the administrator ad litem and requested he be appointed personal representative of the estate. Appellant opposed the motion and filed a will contest. The Probate Court's order of April 23, 2002, appointed Appellee personal representative of the estate and stated its earlier order holding the Deceased died intestate was a final order. Appellant appealed. Appellee argues this Court lacks jurisdiction to hear the appeal because the notice of appeal was filed late. We hold the notice of appeal was not filed timely. We, therefore, are without jurisdiction to hear this appeal and, accordingly, dismiss the appeal. http://www.tba.org/tba_files/TCA/hendersonj.wpd
J.D. HICKMAN v. LYNN BROWN Court:TCA Attorneys: J.D. Hickman, Mountain City, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter, and Martha A. Campbell, Senior Counsel, Nashville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: Plaintiff charged a Trial Judge with violating Plaintiff's civil rights by assessing him with court costs in another case. The Trial Judge dismissed the action. We Affirm. http://www.tba.org/tba_files/TCA/hickmanj.wpd
K. D. F. , et al. v. J. F. Court:TCA Attorneys: J. Russell Pryor, Greeneville, Tennessee, for the Appellant, J. F. J. Gregory Bowman, Greeneville, Tennessee, for the Appellees, K. D. F. and R. J. F., Jr. Judge: GODDARD First Paragraph: This is a suit by K. D. F. and her present husband, R. J. F., Jr., seeking to terminate the parental rights of J. F. as to Z.T.J.F (d.o.b. June 8, 1998), preparatory to Mr. F. adopting the child in a future proceeding. Mr. F. appeals a determination by the Trial Court that his parental rights should be terminated, contending that the statutory grounds for such a determination were not met. We affirm. http://www.tba.org/tba_files/TCA/kdf.wpd
L & L TILE v. BRUCE BABB AND DAVE'S PLUMBING v. BRUCE BABB Court:TCA Attorneys: Timothy P. Webb, Jacksboro, Tennessee, for the Appellant, Bruce Babb Max E. Huff, Oneida, Tennessee, for the Appellees, L & L Tile and Dave's Plumbing Judge: GODDARD First Paragraph: The suits giving rise to this appeal were initiated in the Circuit Court for Scott County and consolidated for trial below. Both suits are on a sworn account. The Trial Court entered judgment against Bruce Babb and in favor of L & L Tile in the amount of $1500 and Dave's Plumbing in the amount of $1639.50. Whereupon Mr. Babb's counsel filed a Rule 60 motion seeking relief from the judgment on the grounds that neither he nor his client had notice of the date of the hearing. The Court in responding to a Rule 60 motion, contending that neither the Defendant nor his attorney had notice of the date of the hearing, set aside the original judgments and also set September 17, 2001, as the new trial date. Neither Mr. Babb nor his counsel appeared on the date set. The Trial Court reinstated the judgment previously entered. Mr. Babb appeals, arguing that he had no notice regarding the second hearing, notwithstanding that his counsel, as shown by letter received by the Trial Court on the date of trial sought a continuance because he had a conflict which precluded his attendance. We affirm. http://www.tba.org/tba_files/TCA/llbabb.wpd
KEVIN McNAMARA v. MARSHALL MONROE Court:TCA Attorneys: William S. Lockett, Jr., Knoxville, Tennessee, for Appellant. Robert A. Cole, Knoxville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: In this Breach of Contract and Negligence action, the Trial Court held Appellant did not reasonably rely on Appellee's survey and dismissed the action. On appeal, we Affirm. http://www.tba.org/tba_files/TCA/mcnamarak.wpd
JOHN ROBERT REWCASTLE, JR., et al. v. STATE OF TENNESSEE Court:TCA Attorneys: David L. Franklin, Chattanooga, Tennessee, for the appellants, John Robert Rewcastle, Jr., and Amy Naylor Rewcastle. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Laura T. Kidwell, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: SUSANO First Paragraph: The claimant, John Robert Rewcastle, Jr., was injured in a motorcycle accident on property owned by the State of Tennessee ("the State"). The claimant filed a claim against the State with the Tennessee Claims Commission ("the Claims Commission"), alleging that the State's negligence was the proximate cause of his injuries. The State answered, relying upon the affirmative defense of immunity from suit under Tenn. Code Ann. S 70-7-101, et seq. (1995) ("the Recreational Use Statutes"). The State filed a motion for summary judgment based upon this immunity. In opposing summary judgment, the claimant contended that the gross negligence exception to immunity found in the Recreational Use Statutes negates the State's defense. The Claims Commission granted the State's motion. The claimant appeals. We vacate the judgment of the Claims Commission and remand for further proceedings. http://www.tba.org/tba_files/TCA/rewcastle.wpd

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