Opinion Flash

June 19, 2003
Volume 9 — Number 110

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):
05 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
03 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




Arthur M. Fowler, Johnson City, Tennessee, for the appellant, Dianna

K. Erickson Herrin, Johnson City, Tennessee, for the appellee, George


First Paragraph:

Dianna Boarman, the Clerk and Master for the Washington County
Chancery Court, filed a complaint on September 30, 1998, pursuant to
Tennessee Code Annotated section 8-20-101, et. seq., seeking a pay
increase for the three chief deputy clerks working in her office. 
Boarman later filed a second and third complaint for fiscal years
1999-2000 and 2000-01.  Defendant George Jaynes, the Washington County
Executive, answered denying that salary increases were necessary to
enable Boarman to properly and efficiently conduct the business of her
office.  Jaynes also filed a counterclaim seeking the elimination of
one deputy clerk position in Boarman's office.  Boarman's complaints
were consolidated, and a hearing was conducted before Chancellor
Thomas R. Frierson, II, sitting by interchange.  The trial court
approved salary increases for the three chief deputy clerks.  It
denied the defendant's counterclaim.  The Court of Appeals affirmed
the trial court's denial of the county executive's counterclaim, but
reversed the trial court's judgment increasing the salaries of
Boarman's three chief deputy clerks.  For the reasons stated herein,
we reverse that part of the decision of the Court of Appeals which
reverses the trial court's judgment approving the position of deputy
clerk and increase in compensation.  We affirm the Court of Appeals'
dismissal of defendant Jaynes counterclaim.

STATE OF TENNESSEE v. MICHAEL D. EVANS Court:TSC Attorneys: John McFarland, Kingston, Tennessee, for the appellant, Michael D. Evans. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; Charles Hawk, District Attorney General; Dennis Humphrey, Assistant District Attorney General; and James Scott, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: DROWOTA First Paragraph: We granted this appeal primarily to clarify the procedure that governs when a trial court or the Court of Criminal Appeals determines that a criminal defendant was unilaterally deprived of the right to seek second-tier review pursuant to Tennessee Rule of Appellate Procedure 11. We conclude that Tennessee Supreme Court Rule 28, section (9)(D) has superseded the procedural framework of State v. Pinkston, 668 S.W.2d 676 (Tenn. Crim. App. 1984). However, the State has raised valid concerns about voids in the procedure, and as a result, we have filed contemporaneously with this opinion an order publishing for public comment a proposed amendment to Rule 28, section (9)(D). The amendment addresses the concerns raised by the State in this case, as well as other procedural issues likely to arise in the delayed appeal context. The Court solicits comments from all interested parties. Although the trial court's order granting a delayed appeal in this case contained inappropriate language purporting to "vacate[] and reinstate[]" the judgment of the Court of Criminal Appeals, the trial court otherwise substantially complied with the procedure set forth in Rule 28, Section (9)(D). Therefore, the defendant's delayed application for permission to appeal was properly filed in this Court. This Court granted the application, and after reviewing the record and considering the issues raised, we conclude that none of the assigned errors warrant reversal. Therefore, the judgment of the Court of Criminal Appeals is affirmed. http://www.tba.org/tba_files/TSC/evansm.wpd
JAMES LEE JONES, III, et al. v. PIERCE BRANDON GARRETT a/k/a PERRY GARRETT (CORRECTS HEADING ON PAGE 3) Court:TSC Attorneys: Douglas R. Beier, Morristown, Tennessee, for the appellant, Pierce Brandon Garrett. Jonathan R. Perry and Laura D. Perry, Franklin, Tennessee, for the appellees, James Lee Jones, III and Stephanie Trent Jones. Judge: HOLDER First Paragraph: This case arises from a proceeding to terminate parental rights. In that proceeding, the prospective adoptive parents sought a determination that the father of the child in their custody had abandoned him. The trial court terminated the father's parental rights, and the Court of Appeals affirmed the termination. We granted permission to appeal to determine whether the trial court erred in terminating parental rights on the basis of Tennessee Code Annotated section 36-13-113(g)(8)(A)(vi) (1996 & Supp. 1999) (failure to file a petition to establish paternity within thirty days after notice of alleged paternity by the child's mother) when the father had been adjudicated the legal parent of the child at the time of the hearing. We hold that Tennessee Code Annotated section 36-1-113(g)(8)(A)(vi) applies only to cases in which no legal relationship between the parent and child has been established. http://www.tba.org/tba_files/TSC/jonesjamescx.wpd
JERRY BRANDON LAY v. SCOTT COUNTY SHERIFF'S DEPARTMENT and THE LOCAL GOVERNMENT WORKERS' COMPENSATION FUND Court:TSC Attorneys: William A. Lockett and Michael A. Kent, Chattanooga, Tennessee, for the appellant, Scott County Sheriff's Department and The Local Government Workers' Compensation Fund. W. Holt Smith, Madisonville, Tennessee, and Howard R. Ellis, Oneida, Tennessee, for the appellee, Jerry Brandon Lay. Judge: DROWOTA First Paragraph: The primary issue in this workers' compensation appeal is whether the attainment of maximum medical improvement is a necessary factor in determining whether there has been a meaningful return to work under Tennessee Code Annotated section 50-6-241. The trial court found that since the pre-injury employer returned the employee to work at a lower wage than his pre-injury wage, Section 50-6-241(a)(1) did not apply, and the trial court set the employee's permanent partial disability award based on 60% to the body as a whole, approximately 4.6 times the employee's 13% impairment rating. We reverse the trial court and find that where an employee has had a meaningful return to work for five months, resigns for reasons unrelated to his injury, and then returns to the same employer a year later at a lower wage, the employee may not take advantage of this statute by arguing that he has not had a meaningful return to work. Thus, Section 50-6-241(a)(1) applies to limit the employee's recovery to two and one-half times his impairment rating, and the employee's award is modified to 32.5% permanent partial disability to the body as a whole. http://www.tba.org/tba_files/TSC/layjb.wpd
KAILA B. WILLIAMS SANDERS, Individually and as Next of Kin to CATHI D. WILLIAMS, Deceased v. TRACIE A. TRAVER, M.D., ALL WOMEN'S CARE, P.C., SHELBY B. SHIVERS, M.D., MARYVILLE ANESTHESIOLOGISTS, P.C., d/b/a MARYVILLE ANESTHESIA GROUP, and BLOUNT MEMORIAL HOSPITAL INCORPORATED Court:TSC Attorneys: Carl P. McDonald, Maryville, Tennessee, for the appellant, Blount Memorial Hospital, Incorporated. Sidney Gilreath and Timothy Housholder, Knoxville, Tennessee, for the appellee, Kaila B. Williams Sanders. Judge: DROWOTA First Paragraph: In this wrongful death case brought under the Governmental Tort Liability Act, we address the issue of whether Tennessee Rule of Civil Procedure 6.01, which provides the computation of time for statutes of limitations, is applicable to actions involving governmental entities. Having determined that the Tennessee Rules of Civil Procedure are applicable to actions involving governmental entities in Doyle v. Frost, 49 S.W.3d 853, 858 (Tenn. 2001), and finding that Rule 6.01 defines, rather than extends, the Governmental Tort Liability Act's statute of limitations, we hold that the Court of Appeals did not err in finding that Rule 6.01 applies to actions brought under the Governmental Tort Liability Act. Accordingly, we affirm the judgment of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/sanderskb.wpd
SALLY BISHOP v. SCOTT MILNER Court:TCA Attorneys: Lori F. Fleishman, Knoxville, Tennessee, for Appellant. Billy P. Sams, Oak Ridge, Tennessee, for Appellee. Judge: FRANKS First Paragraph: The Trial Court ruled the New Jersey Divorce Court retained jurisdiction of the case where a New Jersey decree had been enrolled in the Tennessee Court. Appellant argues the Trial Court failed to make a record of conversation with the New Jersey Judge in accordance with Tenn. Code Ann. S36- 6-213. We vacate and remand. http://www.tba.org/tba_files/TCA/bishops.wpd
KAREN CHELTON v. PROVIDENT COMPANIES, INC., et al. Court:TCA Attorneys: Boyd Stewart Jenkins, Chattanooga, Tennessee, for the Appellant, Karen Chelton Christopher Harper Steger, Chattanooga, Tennessee, for the Appellees, Provident Companies, Inc. and Provident Life & Accident Insurance Company Judge: GODDARD First Paragraph: In this appeal from the Chancery Court for Hamilton County the Plaintiff/Appellant, Karen Chelton, asserts that the Trial Court erred in granting the Defendants/Appellees, Provident Companies, Inc. and Provident Life & Accident Insurance Company (hereinafter "Provident"), summary judgment against her with regard to her cause of action for age discrimination under the Tennessee Human Rights Act. We affirm the judgment of the Trial Court in part, vacate in part and remand for a trial on the merits. Costs of this appeal are adjudged equally against Ms. Chelton and Provident. http://www.tba.org/tba_files/TCA/cheltonkaren.wpd
IN THE MATTER OF: H.E.J. AND H.E.J. Court:TCA Attorneys: Rebecca E. Byrd, Franklin, Tennessee, for the appellant, J.L.B. Jade A. Rogers, Gallatin, Tennessee, for the appellee, The Association for Guidance, Aid, Placement and Empathy, Inc. Judge: CANTRELL First Paragraph: The trial court terminated the parental rights of a father of twins on multiple grounds, including abandonment and the commission of severe child abuse against the twin's mother while she was a minor child residing in his home. The court also ordered him to pay $14,400 in child support arrearages. We affirm the termination, but we reverse the child support award. http://www.tba.org/tba_files/TCA/ej.wpd
STATE OF TENNESSEE v. SUSAN SOPHIA MCDANIEL Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal); David Neal Brady, District Public Defender; and Joe L. Finley, Jr., Assistant District Public Defender (on appeal and at trial), for the appellant, Susan Sophia McDaniel. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; William Edward Gibson, District Attorney General; and Gary McKenzie, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: In this direct appeal, the defendant argues the evidence was insufficient to support the jury's verdict convicting her of theft over $1,000. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mcdanielsusan_opn.wpd
STATE OF TENNESSEE v. SUSAN SOPHIA MCDANIEL Court:TCCA WITT CONCURRING http://www.tba.org/tba_files/TCCA/mcdanielsusan_con.wpd

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