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
DR. BRIAN E. BACARDI v. TENNESSEE BOARD OF REGISTRATION IN PODIATRY
Court:TCA
Attorneys:
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
Judge: CRAWFORD
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.
http://www.tba.org/tba_files/TCA/bacardibrian.wpd
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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