Opinion Flash
March 13, 2003
Volume 9 — Number 045
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 |
| 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 |
| 08 |
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
CHARLOTTE MCCALL v. NATIONAL HEALTH CORPORATION, et al.
Court:TSC
Attorneys:
John W. Rodgers, Murfreesboro, Tennessee, and Terry L. Hill and John
L. Meadows, Nashville, Tennessee, for the appellant, National Health
Corporation.
Larry R. McElhaney II and S. Alexa Whittemore, Nashville, Tennessee,
for the appellee, Charlotte McCall.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and E. Blaine Sprouse, Assistant Attorney General,
Nashville, Tennessee, for the Amicus Curiae, State of Tennessee.
Gary S. Napolitan, D. Scott Bennett, and Bruce D. Gill, Chattanooga,
Tennessee, for the Amicus Curiae, Tennessee Defense Lawyers'
Association. April Carroll Meldrum, Clinton, Tennessee, for the Amicus
Curiae, Tennessee Trial Lawyers Association.
Judge: BIRCH
First Paragraph:
We granted interlocutory appeal in this workers' compensation case,
and in the companion case of Shelton v. ADS Environmental Services,
pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.
These cases present the following issues: whether the trial court has
the authority to initiate temporary benefits pre-trial and, assuming
the trial court has this authority, whether it must hold a full
evidentiary hearing prior to initiating temporary benefits. After
careful examination of the workers' compensation statutes and the
applicable case law, we hold that the trial court has the power to
initiate temporary workers' compensation benefits prior to trial and
that it may do so without first holding a full evidentiary hearing.
http://www.tba.org/tba_files/TSC/mccallcharlotte.wpd
MITZI GAY GREGORY BLAIR v. JOHN DAVID BLAIR
Court:TCA
Attorneys:
John R. Phillips, Jr., Gallatin, Tennessee, for the appellant, John
David Blair.
Bruce N. Oldham and Sue Hynds Dunning, Gallatin, Tennessee, for the
appellee, Mitzi Gay Gregory Blair.
Judge: CAIN
First Paragraph:
This divorce case involves issues of property classification and
division regarding real property purchased by Wife prior to the
parties' marriage and titled jointly in both Wife and Husband's names.
The property became the marital residence where the couple lived
during their marriage, but the majority of payments on the house
mortgage were made by Wife's parents. Husband contributed virtually
nothing to the marriage and substantially dissipated the couples
assets through gambling and drug use. The trial court found the house
to be marital property and divided the equity by giving the first
$75,000.00 to Wife, as her original contribution, then dividing the
remaining equity between the parties: 75% to Wife, 25% to Husband.
Husband claims that half of the $75,000.00 down payment was a gift
made to him by Wife prior to the marriage and, thus, his separate
property. We affirm the decision of the trial court.
http://www.tba.org/tba_files/TCA/blairmitzi.wpd
CARLOS JEROME CASTILLION v. SARAH SNODGRASS CASTILLION
Court:TCA
Attorneys:
Alan R. Beard, Chattanooga, for Appellant.
William H. Horton, Chattanooga, for Appellee.
Judge: FRANKS
First Paragraph:
In this divorce case, the husband questions on appeal the valuation of
marital property and distribution made by the Trial Court. We affirm
the Trial Court.
http://www.tba.org/tba_files/TCA/castillionc.wpd
NAOMI HAUSLER v. DISCOUNTS R US, INC.
Court:TCA
Attorneys:
Naomi Haulser, Carthage, Tennessee, Pro Se.
Arthur C. Grisham, Chattanooga, Tennessee, for the appellee, Discounts
R Us, Inc.
Judge: CAIN
First Paragraph:
Plaintiff, pro se, appeals the action of the trial court in denying
her Petition in the Nature of a Petition to Vacate a Void Judgment and
Collateral Attack. We affirm the trial court.
http://www.tba.org/tba_files/TCA/hauslernaomi.wpd
CHARLES R. HEAD, JR., et al. v. JAMES LYNN GIBSON, et al.
Court:TCA
Attorneys:
George J. Duzane, Nashville, Tennessee, for the appellants, Charles R.
Head, Jr. And Donna M. Head.
Richard Douglas Taylor, Nashville, Tennessee, for the appellee, State
Farm Mutual Automobile Insurance.
Judge: CANTRELL
First Paragraph:
This is an appeal from a judgment granting a motion for summary
judgment in favor of State Farm Mutual Automobile Insurance Co. that
the uninsured motorist coverage offered to the plaintiffs was not
implicated under the circumstances of this litigation. We affirm.
http://www.tba.org/tba_files/TCA/headcr.wpd
TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v.
FLORENCE HOFFMEYER, et al.
Court:TCA
Attorneys:
Mark Walker, Goodlettsville, Tennessee, for the appellant, Florence
Hoffmeyer. Bryce C. Ruth, Jr., White House, Tennessee, for the
appellant, Larry Hoffmeyer.
Paul G. Summers, Attorney General & Reporter and Elizabeth C. Driver,
Assistant Attorney General, for the appellee, State of Tennessee,
Department of Children's Services; In the Matter of: A.L.H., child
under the age of 18 years.
Judge: CAIN
First Paragraph:
The natural parents of a seventeen year old girl appeal the action of
the Juvenile Court of Robertson County terminating their parental
rights based upon a finding of severe child abuse under Tennessee Code
Annotated section 36-1-113(g)(4). Because the appellate record is
incomplete, we vacate the judgment and remand the case to the trial
court for further proceedings.
http://www.tba.org/tba_files/TCA/hoffmeyerf_opn.wpd
TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v.
FLORENCE HOFFMEYER, et al.
Court:TCA
COTTRELL CONCURRING
http://www.tba.org/tba_files/TCA/hoffmeyerf_dis.wpd
RICKEY A. MOORMAN v. TENNESSEE DEPARTMENT OF CORRECTION
Court:TCA
Attorneys:
Rickey A. Moorman, Mountain City, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Rae Oliver, Assistant Attorney General, for the
appellee, Tennessee Department of Correction.
Judge: KOCH
First Paragraph:
This appeal involves a dispute between a prisoner and the Tennessee
Department of Correction regarding the calculation of his sentence
credits and his release eligibility date. After unsuccessfully
petitioning for a declaratory order, the prisoner filed a petition in
the Chancery Court for Davidson County seeking a declaratory judgment
regarding his entitlement to sentence credits as well as a
determination that he was entitled to immediate release. The trial
court granted the Department's Tenn. R. Civ. P. 12.02(6) motion to
dismiss, and the prisoner has appealed. We affirm the trial court's
conclusion that the prisoner's petition fails to state a claim upon
which relief can be granted.
http://www.tba.org/tba_files/TCA/moormanra.wpd
BARBARA VARGO v. LINCOLN BRASS WORKS, INC.
Court:TCA
Attorneys:
Mark C. Travis, Cookeville, Tennessee, for the appellant, Lincoln
Brass Works, Inc.
Alan D. Johnson, Nashville, Tennessee, for the appellee, Barbara
Vargo.
Judge: KOCH
First Paragraph:
This appeal involves a dispute between an employee and her former
employer over severance pay. After the employee obtained a $13,750
judgment in the Metropolitan General Sessions Court of Davidson
County, the employer perfected a de novo appeal to the Circuit Court
for Davidson County. Following a bench trial, the trial court
concluded that the employee had a vested right to severance pay under
the employer's severance policy and awarded the employee $15,262.50.
The employer has appealed. We have determined that the employer's
severance policy contained an enforceable contractual obligation to
pay severance pay to eligible employees. In the absence of proof that
the employee was ineligible, we find that the trial court correctly
interpreted and applied the severance policy. Accordingly, we affirm
the judgment.
http://www.tba.org/tba_files/TCA/vargob.wpd
CHARLES LANKFORD WHITED v. CHRISTY D. FLEENOR, IN RE: CLF,
born February 8, 2001
Court:TCA
Attorneys:
Judith Fain, Johnson City, Tennessee, for appellant.
Timothy W. Hudson, Bristol, Tennessee, for Appellee.
Judge: FRANKS
First Paragraph:
Trial Court ordered child's surname changed from mother's to father's.
We reverse.
http://www.tba.org/tba_files/TCA/whitedc.wpd
THOMAS J. MCKEE v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Kelly S. Johnson, Knoxville, Tennessee, for the appellant, Thomas J.
McKee.
Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and G. Scott Green, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The petitioner, Thomas J. McKee, appeals the Knox County Criminal
Court's denial of his petition for post-conviction relief from his
conviction for first degree premeditated murder and resulting life
sentence. He contends that he received the ineffective assistance of
counsel because his trial attorney failed (1) to request a mental
evaluation for him; (2) to make a contemporaneous objection to the
state's improper closing argument; and (3) to object to the inclusion
of the phrase "moral certainty" in the jury's instruction on
reasonable doubt. We affirm the trial court's denial of the petition.
http://www.tba.org/tba_files/TCCA/mckeethomasj.wpd
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