Opinion Flash

February 4, 2003
Volume 9 — Number 020

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
13 New Opinion(s) from the Tennessee Court of Appeals
02 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


BOBBY BOBBITT, et al. v. DOROTHY B. SHELL, COMMISSIONER, et al.

Court:TCA

Attorneys: 

Larry D. Woods, Nashville, For Appellants, Bobby Bobbitt, James
Donehew, Everett Jones, Douglas Lawson, James McCallie, and Dwight
Shelton

Paul G. Summers, Attorney General and Reporter, William J. Marett,
Jr., Senior Counsel, Nashville, For  Appellees, Dorothy B. Shell,
Commissioner of the Tennessee Department of Personnel and Department
of Personnel

Judge: CRAWFORD

First Paragraph:

Appellants, state employees, were subjects of a Reduction In Force
("RIF") and appeal the order of the chancery court dismissing their
petition for review of the Commissioner of Personnel's decision that
their respective positions were correctly resolved in the RIF.

http://www.tba.org/tba_files/TCA/BobbittB.wpd


IN RE: ESTATE OF ADAM JAMES BURRESS

Court:TCA

Attorneys:                          

Janette L. Taylor, Oneida, for the Appellant, Sue Michelle Burress

Johnny V. Dunaway, LaFollette, for the Appellees, Jeff Burress, Linda
Burress, Roy Burress and Eva Burress

Judge: GODDARD

First Paragraph:

This appeal involves several issues regarding the disposition of
certain assets of and relating to the estate of Adam James Burress
("Decedent"), who died intestate in a one-car accident on March 5,
2001.  The Trial Court imposed an equitable lien on the insurance
proceeds of an automobile collision policy in favor of Eva Burress,
the Decedent's grandmother, in the amount which the Court found she
loaned to Decedent in order to purchase the automobile, which was
totally destroyed in the accident.  The Appellant, Sue Michelle
Burress ("Widow"), Decedent's wife, argues on appeal that the Trial
Court erred in failing to award her the insurance proceeds, and in
ruling that payment of the funeral expenses should take precedence
over the spousal support allowances and all other claims.  The
Appellees, Roy and Eva Burress, Decedent's grandparents, and Jeff and
Linda Burress, Decedent's parents, have appealed the Court's ruling
that the mobile home in which Decedent and Widow lived prior to their
separation was not permanently affixed to the grandparents' land and
thus was the Widow's personal property.  We modify the judgment so as
to provide that the Widow's statutory year's support allowance is
exempt from claim against the estate for reimbursement of funeral
expenses. We affirm the judgment of the Trial Court in all other
respects.

http://www.tba.org/tba_files/TCA/burressad.wpd


DAVID CHILTON v. JAMES AUSTIN

Court:TCA

Attorneys:      

David B. Lyons, Nashville, Tennessee, for the appellant James Austin.

Judge: CANTRELL

First Paragraph:

In an action between former partners, their various claims against
each other were submitted to the jury.  The jury returned a verdict
that did not award damages to either side.  One of the partners
appeals, asserting that issues were submitted to the jury that should
not have been submitted, that there is no evidence to support the
verdict, and that the verdict was a result of passion and prejudice
because it was returned the day after the tragedy in New York and
Washington on September 11, 2001.  We hold that the appellant waived
any objection to the issues submitted to the jury, and that the
objection to the verdict based on the lack of evidence cannot be
sustained.  We also fail to find any evidence that the events of
September 11, 2001  had any effect on the jury.  Therefore we affirm.

http://www.tba.org/tba_files/TCA/ChiltonD.wpd


SANDRA YVONNE ELMORE  v. GREG CRUZ, et al.

Court:TCA

Attorneys:  

Ronald D. Wells, Chattanooga, Tennessee, for the Appellant, City of
Chattanooga

Jennifer H. Lawrence, Chattanooga, Tennessee, for the Appellee, Sandra
Yvonne Elmore

Judge: GODDARD

First Paragraph:

In this case the Appellant/Defendant, City of Chattanooga, appeals the
judgment of the Circuit Court for Hamilton County awarding the
Appellee/Plaintiff, Sandra Yvonne Elmore, compensatory damages for
injuries sustained as a result of her arrest and imprisonment by the
Chattanooga Police Department.  We vacate the judgment of the Trial
Court and remand.

http://www.tba.org/tba_files/TCA/elmoresan.wpd

----------------------------------------------------------------------

H&SS EXCAVATING v. JERRY W. WALKER

Court:TCA

Attorneys:  

David W. Lawrence, Lebanon, Tennessee, for the appellant, Jerry W.
Walker.

David Bass, Carthage, Tennessee, for the appellee, H&S Excavating.

Judge: COTTRELL

First Paragraph:

This appeal arises out of a dispute over the construction of a water
system that was to serve two complexes of broiler chicken houses.  The
landowner refused to pay the final two invoices for the work because,
he claimed, the water system was not completed by the deadline and the
workmanship on part of the system was poor, requiring him to incur
additional expenses to correct it.  The installers filed suit in the
Macon County General Sessions Court and were awarded a judgment
against the landowner; the landowner appealed and counter-claimed for
damages in the Macon County Circuit Court, raising the additional
issue of whether the plaintiff company was limited in its recovery of
damages because it was an unlicensed contractor.  The circuit court
awarded the company a judgment of $9,714.32 and upheld the landowner's
counter-claim for $3,673.70, resulting in a net judgment in favor of
the company of $6,040.62.  The landowner appeals.  Because we find
that the trial court was correct in finding that the excavators were
not "contractors" under Tenn. Code. Ann. S 62-6-101 et. seq., the
"Tennessee Contractor's Licensing Act," and because the evidence does
not preponderate against the amount of damages awarded, we affirm the
trial court's decision.

http://www.tba.org/tba_files/TCA/HSExcavating.wpd


FRANCES B. JONES ex rel. NELL HAMPTON v. LaFOLLETTE NURSING HOME 

Court:TCA

Attorneys:

Frances B. Jones, Pro Se

W. Mitchell Cramer, Knoxville, Tennessee, for the Appellee, LaFollette
Nursing Home

Judge: GODDARD

First Paragraph:

Frances B. Jones, on behalf of her mother, Nell Hampton, sues
LaFollette  Nursing Home, alleging Ms. Hampton was entitled  to
damages for improper care  given to her while a  resident  patient
there.  The Trial Court granted a summary judgment in favor of the
Nursing Home upon finding that Ms. Hampton's claim was barred by the
applicable statutes of limitations and that she introduced no proof to
rebut the Nursing Home's proof that they met the appropriate standard
of care in ministering to Ms. Hampton.  We dismiss the appeal.

http://www.tba.org/tba_files/TCA/jonesfr.wpd


LaFOLLETTE MEDICAL CENTER, et al. v. THE CITY OF LaFOLLETTE,
TENNESSEE, et al.

Court:TCA

Attorneys:     

Reid Troutman, LaFollette, Tennessee, for the Appellant, The City of
LaFollette, Tennessee

David H. Dunaway, LaFollette, Tennessee, for the Appellees, LaFollette
Medical Center, et al.

Judge: GODDARD

First Paragraph:

This is a suit initiated by LaFollette Medical Center and its Board of
Trustees against the City of LaFollette, seeking to prohibit the sale
of LaFollette Medical Center without a consent of the Board of
Trustees.  The Trial Court, in a preliminary ruling, held that the
City did have authority to sell the facility, but that the proceeds of
the sale would be held in trust to be used for one of the original
purposes for which the Hospital was built-to render indigent health
care.  We affirm.

http://www.tba.org/tba_files/TCA/lafollettem.wpd


ROBERT MORRIS v. COLUMBIA CONSTRUCTION COMPANY, INC.

Court:TCA

Attorneys:   

Donald D. Zuccarello, Nashville, Tennessee, for the appellant, Robert
Morris.

James T. DuBois and D. Scott Porch, IV, Columbia, Tennessee, for the
appellee, Columbia Construction Company, Inc.

Judge: CAIN

First Paragraph:

In this suit for retaliatory discharge, Appellant asserts that his
filing of a worker's compensation claim was a substantial factor in
his employer's decision to terminate him.  The trial court granted
summary judgment to the employer.  We affirm.

http://www.tba.org/tba_files/TCA/MOrrisR.wpd


JOE H. PARKS v. GEORGE ESLINGER, et al.

Court:TCA

Attorneys:       

Tom Bloom, Nashville, Tennessee, for the appellants, George and
Virginia Eslinger.

Patrick A. Flynn, Columbia, Tennessee, for the appellee, Joe H. Parks.

Judge: COTTRELL

First Paragraph:

This second appeal in this dispute involves the trial court's
modifications of a special  master's report regarding the liabilities
of the parties after the dissolution of their partnership.  The
special master reported that one partner, Mr. Eslinger, owed the other
partner, Mr. Parks, $10,051.30.  Mr. Parks objected, and the trial
court modified the special master's report, awarding Mr. Parks an
additional $45,427.04, and ordered that Mr. Eslinger pay the costs of
the special master.  Mr. Eslinger now appeals the trial court's
modifications and award of costs.  Because the record does not support
the trial court's modifications, we reverse and reinstate the master's
findings as amended.  We modify the award of the costs of the special
master.

http://www.tba.org/tba_files/TCA/ParksJ.wpd


ARTHUR STIGALL v. BRONSON M. LYLE, et al.

Court:TCA

Attorneys:   

Arthur Stigall, Sacramento, California, Pro Se.

Charles N. Griffith, Waverly, Tennessee, for the appellees, Bronson
Lyle, Christina R. Lyle, and Genie V. Dixon.

David B. Herbert and Julie Bhattacharya Peak, Nashville, Tennessee,
for the appellee, Robert Martin, Dorothy Martin, Jeffery J. Garland,
and Misty L. Garland.

Judge: CANTRELL

First Paragraph:

The plaintiff filed this action in the Chancery Court of Houston
County seeking to quiet title to a parcel of property located there. 
The court granted the defendants' Tenn. R. Civ. P. 12.02 motion to
dismiss the plaintiff's complaint, and imposed sanctions pursuant to
Tenn. R. Civ. P. 11.  Although the appellant raises legitimate issues
as to the grounds cited for dismissing the complaint, we nevertheless
affirm, finding that the complaint conclusively shows that the
plaintiff has no colorable title to the subject property.

http://www.tba.org/tba_files/TCA/StigallA.wpd


BOYD STINSON, et al v. BRENDA SUE BOBO

Court:TCA

Attorneys:   

Tony L. Turnbow, Franklin, Tennessee, for the appellant Brenda Sue
Bobo.

M.T. Taylor, Jr., Franklin, Tennessee, for the appellees, Boyd
Stinson, George Stinson, Chester Stinson, Faye Stinson Harris.

Judge: COTTRELL

First Paragraph:

This appeal involves a conflict between neighbors over whether the
Stinsons have a right to use a dirt lane that runs across the edge of
Mrs. Bobo's property and connects the Stinsons' property to a county
road.  The trial court found a prescriptive easement was proved.  Mrs.
Bobo appeals that judgment to this court on two grounds: (1) that the
Stinsons failed to show exclusive use of the easement during the
prescriptive period; and (2) that there was no acquiescence to the
Stinsons' claim of right to use the easement by the prior  owners of
what is now Mrs. Bobo's property during the prescriptive period.  We
affirm the trial court's judgment.

http://www.tba.org/tba_files/TCA/StinsonB.wpd


THE VANDERBILT UNIVERSITY v. CHARLES PHILLIP HAYNES

Court:TCA

Attorneys:   

Richard J. Braun and Patricia E. Crotwell, Nashville, Tennessee, for
the appellant, Charles Phillip Haynes.

Sheree C. Wright, Nashville, Tennessee, for the appellee, The
Vanderbilt University.

Judge: CANTRELL

First Paragraph:

The Circuit Court of Davidson County dismissed an appeal from the
General Sessions Court because the appeal was not perfected within ten
days of the date of the General Sessions judgment.  The appellant
contends that Rules 6.01 and 6.05 of the Tennessee Rules of Civil
Procedure extended the time for filing the appeal to the date it was
actually perfected.  Because the Rules of Civil Procedure do not apply
to the General Sessions Court, we affirm the Circuit Court's judgment.

http://www.tba.org/tba_files/TCA/VanderbiltU.wpd


NANCY S. WEBBER v. GARY D. WEBBER

Court:TCA

Attorneys:    

David A. Stuart and Roger A. Miller, Clinton, Tennessee, for
Appellant, Gary D. Webber.

W. Andrew Fox, Knoxville, Tennessee, for Appellee, Nancy S. Webber.

Judge: FRANKS

First Paragraph:

The Trial Court held it had jurisdiction over marital property and
alimony.  Husband argued since the divorce was granted in Nevada, the
Nevada Decree was res judicata on these issues.  We affirm.

http://www.tba.org/tba_files/TCA/webbern.wpd


STATE OF TENNESSEE v. JOHN LESLIE GEORGE

Court:TCCA

Attorneys:   

John H. Henderson, Jr., District Public Defender (on appeal), and C.
Diane Crosier, Assistant District Public Defender, Franklin, Tennessee
(at trial), for the appellant, John Leslie George.

Paul G. Summers, Attorney General; Elizabeth B. Marney, Assistant
Attorney General; Ronald L. Davis, District Attorney General; and Mary
Katharine Harvey, Assistant District Attorney General, for the
appellee, State of Tennessee.                     

Judge: WEDEMEYER

First Paragraph:

The Defendant was indicted for aggravated rape, aggravated robbery,
and theft of property valued over $500.  The Defendant pled guilty to
facilitation of aggravated rape and to aggravated robbery.  Following
a hearing, the trial court sentenced the Defendant to eleven years for
facilitation of aggravated rape and to eleven years for aggravated
robbery.  Pursuant to the plea agreement, the trial court ordered that
the two sentences run concurrently.  However, the trial court ordered
that the sentences run consecutively to prior sentences in Humphreys
and Dickson Counties.  The Defendant now appeals, arguing that the
trial court erred by imposing an excessive sentence.  Finding no
error, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/georgejl.wpd


CRYSTAL RENA STURGILL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:   

John S. Anderson, Rogersville, Tennessee, for the appellant, Crystal
Rena Sturgill.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney
General; and Eric D. Christiansen, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, Crystal Rena Sturgill, appeals from the Greene County
Criminal Court's denying her post-conviction relief from her
convictions for three counts of first degree murder, one count of
attempted first degree murder, two counts of especially aggravated
kidnapping, two counts of aggravated kidnapping, and one count of
Class D felony theft.  Essentially, she contends (1) that her guilty
pleas were not knowingly, intelligently, and voluntarily entered, (2)
that due process was violated by the mass sentencing procedure, and
(3) that she received the ineffective assistance of counsel.  We
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/sturgillc.wpd
							
							

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