Opinion Flash

May 30, 2003
Volume 9 — Number 098

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
09 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




W. Gary Blackburn, Nashville, For Appellant, Dr. Brian E. Bacardi

Paul G. Summers, Attorney General and Reporter; Sara E. Sedgewick,
Assistant Attorney General, Nashville, For Appellee, Tennessee Board
of Registration in Podiatry                      

First Paragraph:

This is an appeal from a final order, upholding the validity of a
settlement agreement.  Appellant, a podiatrist, entered into a
settlement agreement with the Tennessee Board of Registration in
Podiatry.  The settlement agreement contained a provision whereby
Appellant voluntarily relinquished his right to reapply for a podiatry
license in Tennessee.  Upon discovering that loss of the right to
apply for license barred participation in all federal health care
programs, Appellant sought to have the provision excised from the
agreement on the basis that the Board had no statutory authority to
mandate a bar on application for a license.  The trial court upheld
the validity of the settlement agreement.  We affirm.

STATE OF TENNESSEE ex rel. JENNIFER KAMILLE BOND BARNES v. ANTHONY WAYNE BRANDENBURG Court:TCA Attorneys: David A. Winchester, LaFollette, Tennessee, for the appellant, Anthony Wayne Brandenburg. Paul G. Summers, Attorney General and Reporter, and Stuart F. Wilson-Patton, Assistant Attorney General, for the appellee, State of Tennessee ex rel. Jennifer Kamille Bond Barnes. Judge: SUSANO First Paragraph: The State of Tennessee, on relation of Jennifer Kamille Bond Barnes ("Mother"), filed a petition to increase the child support obligation of Anthony Wayne Brandenburg ("Father"). The trial court increased Father's child support obligation from $430 per month to $473 per month, a 10% increase. Father appeals, contending that the trial court failed to properly apply the provisions of the Child Support Guidelines ("the guidelines"). We affirm. http://www.tba.org/tba_files/TCA/barnesjkb.wpd
J. S. HAREN COMPANY v. THE CITY OF CLEVELAND, et al. Court:TCA Attorneys: Lex A. Coleman, Chattanooga, Tennessee, for the appellant, J.S. Haren Company. W. Randall Wilson, Leah M. Gerbitz and Jay R. McCurdy, Chattanooga, Tennessee, for the appellee, Cleveland Utilities. Judge: SUSANO First Paragraph: J. S. Haren Company ("Haren") filed a complaint against The City of Cleveland ("the City") and the City's utility board - the Cleveland Utilities ("CU") - as well as other defendants, alleging, in general terms, that CU's failure to properly locate and, where necessary, relocate its utility services and facilities had hampered Haren's ability to do road improvements on a segment of U.S. Highway 11 in Bradley County, to Haren's damage. It seeks $578,400 in damages plus prejudgment interest. CU, along with four individuals, all of whom were sued as members of CU's Board of Public Utilities, filed a motion to dismiss, in which the City joined. The trial court granted the motion as to all of the filing defendants. Haren appeals, contending that the factual allegations of the complaint make out a cause of action against CU. We vacate the dismissal as to Haren's claim against CU based upon the statutory remedy set forth in Tenn. Code Ann. S 54-5-854(g) (1998), affirm as to the remainder of the order of dismissal, and remand for further proceedings. http://www.tba.org/tba_files/TCA/harenjs.wpd
KIMBERLY SUE JENKINS v. JODY DALE JENKINS, et al. Court:TCA Attorneys: Brian M. House, Ringgold, Georgia, for the Appellant, Kimberly Sue Jenkins Glenna M. Ramer, Chattanooga, for the Appellee, E. Jean Dabovich Judge: GODDARD First Paragraph: Kimberly Sue Jenkins (Mother) appeals the Trial Court's decision to terminate her parental rights regarding her daughter (Child). In the final decree of divorce between Mother and Jody Dale Jenkins (Father), custody of Child was awarded to Child's paternal grandmother, Appellee E. Jean Dabovich (Grandmother). Mother filed a petition requesting modification of the visitation order set forth in the divorce decree. Grandmother filed a counter-petition for termination of Mother's parental rights. The Trial Court found that there had been no visitation between Mother and Child for more than four years, and that Mother had never paid any child support as ordered in the divorce decree. The Court found it in Child's best interest to terminate Mother's parental rights. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/jenkinsk.wpd
DOUG LONG v. T. ALLEN PANNELL, Jr., et al. Court:TCA Attorneys: Dan D. Rhea and Jay W. Mader, Knoxville, Tennessee, for the Appellants T. Allen Pannell, Jr., and Volunteer Ventures, L.L.C. George W. Morton, Jr., and J. Myers Morton, Knoxville, Tennessee, for the Appellee Doug Long. Judge: SWINEY First Paragraph: Doug Long ("Long") and T. Allen Pannell ("Pannell") began operating Volunteer Beauty Supply as a general partnership in 1996. Pannell claims Long orally agreed to be responsible for one-half of the partnership debts. On June 3, 1997, a Certificate of Domestic Limited Partnership was issued by the State for Volunteer Beauty Supply, L.P. The business never made a profit and incurred rather substantial debts. In an unsuccessful attempt to resolve a dispute over payment of these debts, Pannell and Long deposited certain funds into a joint bank account. Long eventually filed a declaratory judgment action seeking a determination that he was entitled to over $100,000 remaining in this account. Pannell filed a counterclaim seeking contribution from Long for partnership debts, but no mention was made of the alleged oral agreement. The Trial Court refused to grant Pannell relief for an alleged breach of oral contract because that claim was not pled. The Trial Court did, however, award a judgment against Long for $19,922.52 under general partnership contribution principles, after first concluding Long was entitled to the funds in the joint account. Both parties appeal. We affirm. http://www.tba.org/tba_files/TCA/longd.wpd
TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. R.G.T. Court:TCA Attorneys: J. Russell Pryor, Greeneville, Tennessee, for the appellant, R.G.T. Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services. Judge: SUSANO First Paragraph: The trial court terminated the parental rights of R.G.T. ("Father") to his minor child, L.B.T. (DOB: September 20, 2000). Father appeals, arguing that the evidence preponderates against the trial court's dual findings, i.e., (1) that grounds exist for terminating his parental rights and (2) that termination is in the best interest of L.B.T. We affirm. http://www.tba.org/tba_files/TCA/rgt.wpd
WANDA SHADWICK, INDIVIDUALLY, AND AS EXECUTRIX OF THE ESTATE OF KENNETH LEE PHILLIPS v. F. H. SHOEMAKER DISTRIBUTORS, INC., et al. Court:TCA Attorneys: Charles D. Susano, Jr., JJ., joined. Stephen A. Marcum, Huntsville, Tennessee, for the Appellants, F. H. Shoemaker Distributors, Inc., and Floyd H. Shoemaker, II Johnny V. Dunaway, LaFollette, Tennessee, for the Appellee, Wanda Shadwick, individually, and as Executrix of the Estate of Kenneth Lee Phillips Judge: GODDARD First Paragraph: Wanda Shadwick, individually, and as Executrix of the Estate of her common-law husband, Kenneth Lee Phillips, sued F. H. Shoemaker Distributors, Inc., and Floyd H. Shoemaker, II. The theory of the lawsuit is that the Defendants were guilty of abuse of process in connection with the sale of certain real estate and personal property owned by Kenneth Lee Phillips at the time of his death to pay a claim of the Corporation against his Estate. This claim, in the amount of $25,079.54, had been sustained by the Probate Judge. We find that neither the Corporation nor Mr. Shoemaker are liable for the misdeeds of Max Huff, the first attorney employed by them. Having so found, we reverse the judgment both as to compensatory damages in the amount of $156,000 which, incidentally, was higher than Ms. Shadwick's testimony as to the wholesale value of the personal property, and of punitive damages in the amount of $250,000, which was the amount of the ad damnum clause in the complaint. Mr. Shoemaker filed a counter-complaint seeking to recover the amount paid in delinquent taxes as to a house and lot he purchased at the purported sale, as well as delinquent taxes owed thereon. On this issue the jury found in favor of Ms. Shadwick and we affirm this determination. http://www.tba.org/tba_files/TCA/shadw.wpd
THE TUCKER CORPORATION v. THE CITY OF CLARKSVILLE, TENNESSEE Court:TCA Attorneys: James D. Kay, Jr., Nashville, Tennessee, for the appellant, The Tucker Corporation. David Haines, Clarksville, Tennessee, for the appellee, The City of Clarksville, Tennessee. Judge: NEAL First Paragraph: This is an appeal seeking to overturn the action of the trial court in granting a motion for summary judgment in favor of the City of Clarksville in a suit wherein the plaintiff challenged the validity of an ordinance enacted by the defendant setting water and sewage connection fees based on the square footage of the heated and cooled living space of the house connected to those services. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/tuckervclarksville.wpd
SUSAN LOUISE CRONIN-WRIGHT v. WALTER CURTIS WRIGHT, JR. Court:TCA Attorneys: Ricky A. W. Curtis, Knoxville, Tennessee, for the appellant, Walter Curtis Wright, Jr. John K. Harber, Knoxville, Tennessee, for the appellee, Susan Louise Cronin-Wright. Judge: SUSANO First Paragraph: This is a divorce case. Susan Louise Cronin-Wright ("Wife") filed a motion for partial summary judgment, asking the trial court to hold that Walter Curtis Wright, Jr. ("Husband"), "has no equitable interest in the marital residence and never contributed to [its] acquisition, preservation, or enhancement." The trial court granted the motion. Husband appeals, contending that the residence is a marital asset of which he is entitled to an equitable share. We affirm. http://www.tba.org/tba_files/TCA/wrightslc.wpd

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