Opinion Flash

June 3, 2003
Volume 9 — Number 100

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):
02 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
06 New Opinion(s) from the Tennessee Court of Appeals
03 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


MELISSA COMBS CRANSTON v. EDWARD SCOTT COMBS

Court:TSC

Attorneys:

R. Allan Thompson, Clarksville, Tennessee, for the appellant, Edward
Scott Combs.

Steven C. Girskey and J. Matthew Miller, Clarksville, Tennessee, for
the appellee, Melissa Combs Cranston.                         

Judge: ANDERSON

First Paragraph:

We granted review to determine whether the Court of Appeals erred in
determining that the appellant (father) in this post-divorce case
failed to present evidence of a material change of circumstances
justifying a change of custody of the parties' two minor children. 
The Chancellor granted a change in custody from the appellee (mother)
after finding that there was a material change in circumstances that
presented a substantial risk of harm to the children.  A majority of
the Court of Appeals reversed, holding that there was no material
change of circumstances that presented a threat of substantial harm to
the children.  After reviewing the record and applying our recent
decision in Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn. 2002), we
conclude that a material change of circumstances occurred after the
initial custody determination and that the modification of custody was
in the best interest of the children.  Although the Chancellor and the
Court of Appeals did not have the benefit of Kendrick in this case,
and therefore applied an incorrect legal standard, we affirm the
result reached by the Chancery Court.  Accordingly, the judgment of
the Court of Appeals is reversed, and the judgment of the Chancery
Court is reinstated.

http://www.tba.org/tba_files/TSC/cranston.wpd
								
ROBERT LEWIS DAVIDSON, Individually and as Administrator of the Estate of Joyce Davidson, Deceased, et al v. CHARLES R. LINDSEY, et al. CORRECTED OPINION REVISES PAGE NINE Court:TSC Attorneys: Edward L. Martindale, Jr., Jackson, Tennessee, for the appellant, Robert Lewis Davidson. Fred N. McLean, Paris, Tennessee, for the appellant, Charles R. Lindsey. Raymond G. Prince, Nashville, Tennessee, for the appellants, Jason R. Ross and Alan P. Ross. Russell E. Reviere and Michael L. Mansfield, Jackson, Tennessee, for appellees, Allen Briggs and Southland Transportation. Judge: DROWOTA First Paragraph: In this personal injury case, we address whether the trial judge properly performed his duties as thirteenth juror in denying the appellees' motion for new trial. The Court of Appeals found that based on statements made by the trial judge during the trial, at the hearing for the motion for new trial, and at the hearing to set bond and stay execution of the judgment, there was "an appearance of bias" against two of the defendants due to their failure to reach a settlement with the plaintiffs. As a result, the Court of Appeals found that the trial judge could not have properly discharged his duty as thirteenth juror. We reverse. There is no indication that the trial judge was biased against the defendants; instead, it is clear that the trial judge believed that the ultimate outcome was obvious from the outset, and that the bad facts and poor testimony of one of the defendants should have prompted a substantial settlement offer from the defendants. The record indicates that the trial judge considered the issues in the case and explicitly approved the jury's apportionment of fault and the amount of damages awarded. Additionally, acting in our discretion under Tennessee Rule of Appellate Procedure 13(b), we address the other issues raised on appeal by the appellees, and find that they are without merit. As such, we reinstate the judgment of the trial judge approving the jury's verdict. http://www.tba.org/tba_files/TSC/davidsoncx_opn.wpd
HAZEL ANN EDDE v. GLADYS DALTON EDDE Court:TCA Attorneys: Donald Arkovitz, James R. Tomkins, Nashville, Tennessee, for the appellant, Gladys Dalton Edde. L.G. Burnett, Jr., Nashville, Tennessee, for the appellee, Hazel Ann Edde. Judge: COTTRELL First Paragraph: After a thirty-six year marriage, Wife filed for divorce on the grounds of irreconcilable differences, inappropriate marital conduct, and adultery. The trial court granted the divorce to Wife, divided the marital property, and awarded Wife alimony in futuro in the amount of $425 per month. Husband appeals. Because the evidence does not preponderate against the trial court's decision, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/eddeh.wpd
JOHN M. HOLLIS, Individually and as the Surviving Parent of RAVEN BLAIR HOLLIS v. W. CHARLES DOERFLINGER, Administrator Ad Litem for the Estate of RHONDA B. HOLLIS, and OHIO FARMERS INSURANCE COMPANY and WESTFIELD INSURANCE COMPANY Court:TCA Attorneys: Warren M. Smith, Nashville, Tennessee, for appellants, Ohio Farmers Insurance Company and Westfield Insurance Company. J. Russell Parkes, Columbia, Tennessee, for appellant W. Charles Doerflinger, Administrator Ad Litem for the Estate of Rhonda B. Hollis. Paul B. Plant, Lawrenceburg, Tennessee, Eugene N. Bulso, Jr. and Barbara Hawley Smith, Nashville, Tennessee, for appellee, John M. Hollis, Individually and as the Surviving Parent of Raven Blair Hollis. Judge: LILLARD First Paragraph: This is an insurance case. The mother and the father were covered by an automobile insurance policy that excluded coverage for certain family members who were residents of the same household as the insureds. The mother was pregnant with a viable fetus. She was at fault in an automobile accident in which she and the fetus died. On behalf of the deceased fetus, the father filed a wrongful death action against the mother's estate. On a motion for partial summary judgment, the father sought a declaratory judgment to determine whether the insurance company was obligated to provide coverage for the deceased fetus. The trial court found that the insurance policy's family exclusion provision was ambiguous. Consequently, it construed the policy in favor of the father, finding that the fetus was not considered a resident of the father's household and that the insurance company was required to provide coverage for the deceased fetus. After a trial, the father was awarded damages plus prejudgment interest. The insurance company and the administrator ad litem of the mother's estate appeal. The insurance company argues that the fetus was excluded from coverage. The administrator ad litem of the mother's estate asserts that the trial court erred in awarding prejudgment interest. We reverse, finding that the fetus was a resident of the mother's household, and consequently a resident of the father's household, and that the insurance company was therefore not obligated to provide coverage for the fetus. The award of prejudgment interest is reversed as well. http://www.tba.org/tba_files/TCA/hollis.wpd
WILLIAM H. JOHNSON d/b/a SOUTHERN SECRETS BOOKSTORE, et al. v. CITY OF CLARKSVILLE Court:TCA Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, William H. Johnson d/b/a Southern Secrets Bookstore. David Haines, Clarksville, Tennessee, for the appellee, City of Clarksville. Judge: FARMER First Paragraph: Plaintiffs filed an action for declaratory judgment and injunctive relief alleging that a City of Clarksville ordinance was unconstitutionally vague and/or overbroad. The trial court consolidated Plaintiffs' motion for temporary injunction with a hearing on the merits, struck out small portions of the ordinance, and dismissed the complaint sua sponte. We affirm in part, vacate the order dismissing the action, and remand for further proceedings. http://www.tba.org/tba_files/TCA/johnsow.wpd
RANDY J. OVERSTREET v. REBECCA D. OVERSTREET Court:TCA Attorneys: Vicky V. Klein, Madison, Tennessee, for the appellant, Randy J. Overstreet. D. Scott Parsley, Joshua G. Strickland, Nashville, Tennessee, for the appellee, Rebecca D. Overstreet. Judge: COTTRELL First Paragraph: In this divorce Husband appeals the type and amount of alimony awarded Wife at the end of a twenty-three year marriage. Because the evidence does not preponderate against the trial court's findings and the trial court acted within its discretion in applying relevant legal principles, we affirm. http://www.tba.org/tba_files/TCA/overstr.wpd
IN THE MATTER OF: R.L.H., A Child under Eighteen (18) Years of Age, STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. DARLENE MEDLEY HALL Court:TCA Attorneys: John R. Colvin, Winchester, For Appellant, Darlene Medley Hall Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Assistant Attorney General, For Appellee, State of Tennessee Department of Children's Services Judge: HIGHERS First Paragraph: Department of Children's Services filed petition to terminate parental rights of mother of abused, dependent and neglected minor child. Department's termination petition was based on allegations of abandonment, mother's failure to substantially comply with a permanency plan, the removal of the child for at least six months with little likelihood that the conditions causing removal would be remedied, and the best interests of the child. Juvenile Court granted petition terminating mother's parental rights. Mother appeals. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/rlh_opn.wpd
IN THE MATTER OF: R.L.H., A Child under Eighteen (18) Years of Age, STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. DARLENE MEDLEY HALL Court:TCA CRAWFORD DISSENTING http://www.tba.org/tba_files/TCA/rlh_dis.wpd
IN RE Z.J.S. and M.J.P. Court:TCA Attorneys: J. Reese Holley, Dickson, Tennessee, for the appellant, K.L.P. Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services. Judge: KOCH First Paragraph: This appeal involves the termination of parental rights with regard to two children being raised by a single mother. The Tennessee Department of Children's Services removed both children from their mother's custody and placed them in foster care after she physically abused the older child. The mother later pled guilty to child abuse and neglect of a child under six years old and was placed on probation. She also agreed to permanency plans with the Department intended to reunite her with her children. Approximately twenty-one months later, the Department filed a petition in the Dickson County Juvenile Court seeking to terminate the mother's parental rights, as well as the parental rights of the non-resident fathers of the two children. Following a bench trial, the juvenile court terminated the mother's parental rights, as well as the parental rights of both fathers. The mother has appealed. We have determined that the termination of the parental rights of the biological fathers of both children must be vacated because of serious procedural irregularities. We have also determined that the record contains clear and convincing evidence (1) that the mother has failed to comply substantially with the terms of her permanency plans, (2) that the conditions that led to the children's removal persist and the mother has not demonstrated that she can remedy them, and (3) that the children's interests will be best served by terminating their mother's parental rights. Accordingly, we affirm the termination of the biological mother's parental rights. http://www.tba.org/tba_files/TCA/zjs_opn.wpd
IN RE Z.J.S. and M.J.P. Court:TCA CAIN CONCURRING http://www.tba.org/tba_files/TCA/zjs_con.wpd
CHESLEY RANDELL THOMPSON v. STATE OF TENNESSEE Court:TCCA Attorneys: R. Mack Garner, District Public Defender, for the appellant, Chesley Randell Thompson. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Edward P. Bailey, Jr. and Kirk Andrews, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Chesley Randell Thompson, appeals the trial court's denial of his petition for post- conviction relief, claiming that he received the ineffective assistance of counsel before and during trial. We hold that this case is not properly before us because the petitioner failed to file his petition for post-conviction relief within the one-year statute of limitations provided in Tenn. Code Ann. S 40-30-202(a). Thus, we dismiss the appeal because of the lack of jurisdiction. http://www.tba.org/tba_files/TCCA/thompsnch.wpd
JEFFREY WHITAKER v. STATE OF TENNESSEE Court:TCCA Attorneys: Spence R. Bruner, Kingston, Tennessee, for the Appellant, Jeffrey Whitaker. Michael E. Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; J. Scott McCluen, District Attorney General; and Frank Harvey, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Aggrieved that the lower court denied post-conviction relief following an evidentiary hearing, the petitioner, Jeffrey Whitaker, appeals and claims that his convictions resulted from the ineffective assistance of counsel and involuntary guilty pleas. We affirm the denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/whitakr.wpd
STATE OF TENNESSEE v. CHRISTOPHER ALAN WHITE Court:TCCA Attorneys: Raymond Mack Garner, District Public Defender (on appeal); and Eugene B. Dixon, Maryville, Tennessee (at trial), for the appellant, Christopher Alan White. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Ellen Lee Berez and William Reed, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Christopher Alan White, appeals as of right his conviction by a Blount County Circuit Court jury for aggravated assault and the resulting ten-year sentence as a Range II, multiple offender. He contends that (1) the evidence is insufficient to support his conviction, (2) prosecutorial misconduct during closing argument required a mistrial, and (3) his sentence is excessive. We affirm the trial court's judgment of conviction. http://www.tba.org/tba_files/TCCA/whitech.wpd

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