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):
||New Opinion(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
||New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Court of Appeals
||New Opinion(s) from the Tennessee Court of Criminal Appeals
||New Opinion(s) from the Tennessee Attorney General (PDF format)
||New Judicial Ethics Opinion(s)
||New Formal Ethics Opinion(s) from the Board of Professional Responsibility
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Howard H. Vogel
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS
Court:TSC - Rules
JOHN OLIVER HARPER v. CATHY LYNN HARPER
Robert W. White, Maryville, Tennessee, for the Appellant Cathy Lynn
Jerry G. Cunningham, Maryville, Tennessee, for the Appellee John
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.
IN RE: ESTATE OF DONALD BEN HENDERSON, DECEASED, JEFF HENDERSON v. KENNETH HENDERSON
John W. Cleveland, Sweetwater, Tennessee, for the Appellant, Jeff
Charles Dungan, Maryville, Tennessee, for the Appellee, Kenneth
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.
J.D. HICKMAN v. LYNN BROWN
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.
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.
K. D. F. , et al. v. J. F.
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.
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.
L & L TILE v. BRUCE BABB AND
DAVE'S PLUMBING v. BRUCE BABB
Timothy P. Webb, Jacksboro, Tennessee, for the Appellant, Bruce Babb
Max E. Huff, Oneida, Tennessee, for the Appellees, L & L Tile and
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.
KEVIN McNAMARA v. MARSHALL MONROE
William S. Lockett, Jr., Knoxville, Tennessee, for Appellant.
Robert A. Cole, Knoxville, Tennessee, for Appellee.
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.
JOHN ROBERT REWCASTLE, JR., et al. v. STATE OF TENNESSEE
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.
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
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