Opinion Flash
March 21, 2003
Volume 9 — Number 051
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 |
| 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 |
| 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
ELIZABETH A. MCBROOM v. OWENS-CORNING CORP.
Court:TSC - Workers Comp Panel
Attorneys:
W. Stephen Gardner and Robert Joseph Leibovich, Memphis, Tennessee,
for the appellant, Owens- Corning Corp.
Scott G. Kirk, Jackson, Tennessee, for the appellee, Elizabeth A.
McBroom
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 employer questions the trial court's findings with respect
to causation, permanency and extent of disability. As discussed
below, the panel has concluded the evidence fails to preponderate
against the trial court's findings.
http://www.tba.org/tba_files/TSC_WCP/mcbroom.wpd
SHIRLEY JEANETTE BARLOW v. JARVIS KAY BARLOW
Court:TCA
Attorneys:
Vicky V. Klein, Madison, Tennessee, for the appellant, Shirley
Jeanette Barlow.
David B. Lyons, Nashville, Tennessee, for the appellee, Jarvis Kay
Barlow.
Judge: CANTRELL
First Paragraph:
These parties were married for twenty-seven years before the wife
abandoned the marriage and sought a divorce which was uncontested.
She was awarded one-half of the net marital estate, and rehabilitative
alimony. Wife appeals, claiming that because of her illness she is
entitled to more than 50 percent of the marital property, is entitled
to alimony in futuro rather than rehabilitative alimony, and is
entitled to attorney fees. We affirm the trial court's judgment,
except as to the period of spousal support, which is extended from
three years to five years. We also remand this case to the trial
court for a determination of whether the post-judgment facts alleged
by the husband warrant a further modification of the alimony award.
http://www.tba.org/tba_files/TCA/barlowsj.wpd
In re: SHIANN MARIE HORNER, a minor
Court:TCA
Attorneys:
Russell D. Mays, Greeneville, Tennessee, for the appellant, Lori Lynn
Kopsi.
Douglas L. Payne, Greeneville, Tennessee, guardian ad litem for Shiann
Marie Horner, a minor.
Kenneth N. Bailey, Jr., Greeneville, Tennessee, for the appellees,
Ralph L. Hensley and Diana Hensley.
Judge: SUSANO
First Paragraph:
This appeal focuses on the trial court's guardianship decree regarding
Shiann Marie Horner (DOB: November 18, 1996) ("the child"). When the
child's mother died, she moved in with her father, Charles E. Horner
("the father"), in Greene County. Following the father's
incarceration as a result of his second arrest for driving under the
influence of an intoxicant ("DUI"), the child started living full-time
with her weekend caregivers, Ralph L. Hensley and Diana Hensley ("the
Greeneville couple"), a married couple who are not related to the
child by blood or marriage. The child's maternal aunt, Lori Lynn
Kopsi, a resident of Menominee, Michigan ("the Michigan aunt"), filed
a petition seeking custody of the child. The Greeneville couple
responded with their own petition for custody. Following a hearing on
the competing petitions, the trial court determined that it was in the
child's best interest that the Greeneville couple should serve as the
child's guardian. The Michigan aunt appeals, challenging the trial
court's judgment. We affirm.
http://www.tba.org/tba_files/TCA/hornersm.wpd
JAMES E. JOHNSON v. TENNESSEE BOARD OF MEDICAL EXAMINERS and TENNESSEE
DEPARTMENT OF HEALTH
Court:TCA
Attorneys:
Paul G. Summers, Attorney General and Reporter, and Sue A. Sheldon,
Senior Counsel, Office of the Attorney General, for appellants,
Tennessee Board of Medical Examiners and Tennessee Department of
Health.
James E. Johnson, Nashville, Tennessee, appellee, pro se.
Judge: LILLARD
First Paragraph:
This case involves the revocation of a physician's medical license. A
patient saw a physician regarding a chronic skin condition. A series
of unorthodox treatment methods resulted in the patient having upper
respiratory problems, pain, dizziness, blurred vision, a small stroke,
infection, and an abscess that had to be surgically drained and
removed. As a result, the Tennessee Department of Health filed
charges against the physician. After an administrative hearing, the
Tennessee Board of Medical Examiners found that the physician engaged
in unprofessional and unethical conduct, committed acts of gross
malpractice, and demonstrated a pattern of incompetence and ignorance
in the course of medical practice. The Board revoked the physician's
medical license and assessed civil penalties. The physician sought
judicial review in the chancery court. The chancellor affirmed the
civil penalties but reversed the Board's revocation of the physician's
medical license. The Tennessee Department of Health and the Tennessee
Board of Medical Examiners appeal, arguing that the trial court
substituted its judgment for the judgment of the Board. We reverse
the ruling of the trial court, finding that the Tennessee Board of
Medical Examiners did not abuse its discretion, did not act
arbitrarily or capriciously, and that its revocation of the
physician's medical license was supported by substantial and material
evidence. Thus, we reinstate the Board's decision to revoke the
physician's medical license.
http://www.tba.org/tba_files/TCA/johnsonje.wpd
FERRYL THERESITA McCLAIN v. RICHARD PERRY McCLAIN
Court:TCA
Attorneys:
Leslie W. Bailey, Jr., Kingsport, Tennessee, for the appellant, Ferryl
Theresita McClain.
Keith A. Hopson, Kingsport, Tennessee, for the appellee, Richard Perry
McClain.
Judge: SUSANO
First Paragraph:
This is a divorce case. The trial court dissolved the parties'
marriage based upon a stipulated ground for divorce; divided the
marital property; and awarded Richard Perry McClain ("Father") primary
physical custody of the parties' two minor children. Ferryl Theresita
McClain ("Mother") appeals the grant of custody to Father. In
addition, she raises several procedural issues. We affirm.
http://www.tba.org/tba_files/TCA/mcclainft.wpd
ADRIAN B. SCAIFE v. A. CHANTELLE ROBERSON, ADMINISTRATRIX OF THE
ESTATE OF JOHN D. KNOWLES, JR.
Court:TCA
Attorneys:
John E. Eberly, Chattanooga, Tennessee, for the Appellant, Adrian B.
Scaife.
A. Chantelle Roberson, Chattanooga, Tennessee for the Appellee, A.
Chantelle Roberson, Administratrix of the Estate of John D. Knowles,
Jr.
Judge: SWINEY
First Paragraph:
John D. Knowles, Jr. ("Deceased") died intestate in December of 2000.
A Petition for Intestate Administration ("Petition") filed in April of
2001, listed Adrian Scaife ("Plaintiff") as one of Deceased's
daughters. This Petition never was granted. Several months later, an
Amended Petition for Intestate Administration ("Amended Petition")
was filed. The Amended Petition listed Plaintiff as an heir, but did
not state Plaintiff's relationship to the Deceased. A. Chantelle
Roberson ("Defendant") sought to be appointed administratrix of the
Deceased's estate (the "Estate") and signed the Amended Petition. The
Amended Petition was granted and Defendant was named administratrix of
the Estate in June of 2001. The Notice to Creditors for the Estate
was published in June and July of 2001. Notice to Creditor letters
were sent to all known creditors and any persons having claims, or
believed to have claims, against the Estate. Plaintiff received a
copy of the Letters of Administration and a Notice to Creditor letter
informing her that in order to inherit from the Deceased, she would
need to establish paternity within the four month time period allowed
to creditors for filing claims. Plaintiff took no steps to establish
paternity within the four month period. In February of 2002,
Plaintiff sued seeking to prohibit Defendant from denying Plaintiff is
a child of the Deceased. The Trial Court granted Defendant summary
judgment. Plaintiff appeals. We affirm.
http://www.tba.org/tba_files/TCA/scaifeab.wpd
STATE OF TENNESSEE v. TRAVIS THOMPSON, Individually and doing
business as Thompson Enterprises, LLC and Gold's Gym, and THOMPSON
ENTERPRISES, LLC, a Delaware Limited Liability Company, doing business
as Gold's Gym
Court:TCA
Attorneys:
Paul G. Summers, Attorney General and Reporter; Timothy C. Phillips,
Assistant Attorney General; and Dana M. Ausbrooks, Assistant Attorney
General, Nashville, Tennessee, for appellants, State of Tennessee.
William B. Jakes, III, for appellees Travis Thompson, Individually and
doing business as Thompson Enterprises, LLC and Gold's Gym, and
Thompson Enterprises, LLC, a Delaware Limited Liability Company, doing
business as Gold's Gym.
Judge: LILLARD
First Paragraph:
This case involves the Tennessee Health Club Act. The
defendant/appellees purchased a health club and failed to obtain a
certificate of registration. Three months later, the health club
owners obtained a certificate of registration. The State of
Tennessee, through the Attorney General, filed a lawsuit against the
health club owners alleging violations of the Tennessee Consumer
Protection Act and the Health Club Act seeking injunctive relief,
substantial fines, and several hundred thousand dollars in
restitution. The trial court granted partial summary judgment to the
health club owners, holding that the remedies under the Health Club
Act were available only to consumers, not the State, and that there
was no proof of an "ascertainable loss" under the Tennessee Consumer
Protection Act. The trial court also granted the health club owners'
request for attorney's fees and costs. The State appeals. We affirm
in part and reverse in part, finding, inter alia, that the State may
seek remedies under the Health Club Act on behalf of consumers,
affirming the trial court's ruling that proof of an ascertainable loss
is required, and affirming the award of attorney's fees.
http://www.tba.org/tba_files/TCA/thompsont.wpd
STATE OF TENNESSEE v. LEON J. ROBINS and TABATHA R. WHITE
Court:TCCA
Attorneys:
John E. Rodgers, Jr., Nashville, Tennessee, for the appellant, Leon J.
Robins; and David P. Byrne and Charles E. Sizemore, Nashville,
Tennessee, for the appellant, Tabatha R. White.
Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Bret T. Gunn, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The defendants, Leon J. Robins and Tabatha R. White, both were
convicted of first degree premeditated murder and sentenced to life
imprisonment. In their appeals, they argue that the evidence was
insufficient to sustain their convictions for first degree murder; the
trial court should have instructed as to the lesser offenses of
voluntary manslaughter and facilitation to commit voluntary
manslaughter; evidence of a photographic lineup was improperly
admitted; and the trial court improperly admitted Robins' mugshots as
exhibits and improperly limited the cross- examination of a
prosecution witness as to prior bad acts. Based upon our review of
the record, we affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/robins.wpd
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