Opinion Flash

November 13, 2003
Volume 9 — Number 208

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06 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


BEVERLY A. TAYLOR v. EBASCO CONSTRUCTORS, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

Robert M. Shelor and Kristi D. McKinney, of Knoxville, for Appellant,
Ebasco Constructors, Inc.

Bruce D. Fox, of Clinton, Tennessee, for Appellee, Beverly A. Taylor.

Judge: THAYER

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.  The trial
court found the employee was permanently and totally disabled as a
result of her exposure to aluminum during the course of her
employment.  The employer contends the evidence is not sufficient to
establish a compensable work injury.  The judgment of the trial court
is affirmed.

http://www.tba.org/tba_files/TSC_WCP/taylorb.wpd

IN RE: PROPOSED AMENDMENT TO SUPREME COURT RULE 13
ORDER

Court:TSC - Rules

First Paragraph:

The Tennessee Bar Association, the Tennessee District Attorneys
General Conference, the Tennessee District Public Defenders
Conference, the Tennessee Post-Conviction Defender, and the Tennessee
Association of Criminal Defense Lawyers (collectively "Movants") filed
a joint motion on November 3, 2003, requesting that this Court (1)
extend the November 14, 2003, deadline for filing comments on the
proposed revisions to Tennessee Supreme Court Rule 13; (2) schedule
oral argument on the proposed rule; and (3) instruct the
Administrative Office of the Courts to cooperate with and assist
Movants in their "exploration of the administrative and fiscal impact
of the proposals and alternatives."

http://www.tba.org/tba_files/TSC_Rules/rule13propamd.wpd

HOLLINGSWORTH, INC. , a.k.a. LONG HEALTH ENTERPRISES, INC. v. RUTH E.
JOHNSON, COMMISSIONER OF REVENUE, STATE OF TENNESSEE

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General & Reporter, and Mary Bernadette
Welch, Assistant Attorney General, Nashville, Tennessee, for the
Appellant, Ruth E. Johnson, Commissioner of Revenue, State of
Tennessee

George H. Buxton and Harold P. Cousins, Jr., Oak Ridge, Tennessee, for
the Appellee, Hollingsworth, Inc. a.k.a. Long Health Enterprises, Inc.

Judge: GODDARD

First Paragraph:

This appeal questions the holding of the Trial Court regarding the
right of a corporation to claim bad debt credits for sales tax
remitted relative to health club membership contracts which were
subsequently defaulted upon.  We affirm in part and reverse and
dismiss in part.

http://www.tba.org/tba_files/TCA/hollingsw.wpd

In re C.R.B. and A.L.B.

Court:TCA

Attorneys:                          

Joe R. Johnson, II, Springfield, Tennessee, for the appellant, A.I.B.

Paul G. Summers, Attorney General and Reporter, and Dianne Stamey
Dycus, Deputy Attorney General, for the appellee, Tennessee Department
of Children's Services.

Judge: KOCH

First Paragraph:

This appeal involves the termination of the parental rights of the
mother of two children under the age of six.  The mother is a chronic
substance abuser who voluntarily surrendered custody of her children
to another family in 1999.  The Tennessee Department of Children's
Services removed the children from this family in 2000 and established
a parenting plan designed to reunify the mother with her children.  In
September 2001, the Department filed a petition in the Juvenile Court
for Robertson County seeking to terminate the parental rights of the
mother and the fathers of the two children.  Following a trial in
October 2002, the juvenile court entered an order on December 30,
2002, terminating the parental rights of all parents.  Only the mother
has appealed.  We have determined that the December 30, 2003 order
does not comply with Tenn. Code Ann. S 36-1-113(k) (Supp. 2003) and,
therefore, that the case must be remanded for the preparation of
findings of fact and conclusions of law as required by In re D.L.B.,
___ S.W.3d ___, ___ (Tenn. 2003).

http://www.tba.org/tba_files/TCA/inrecrb.wpd

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. MW, IN THE
MATTER OF: IW, A CHILD UNDER 18 YEARS OF AGE

Court:TCA

Attorneys:                          

J. Eric Harrison, Morristown, Tennessee, for Appellant.

Paul G. Summers, Attorney General and Reporter, and Juan G.
Villasenor, Assistant Attorney General, Nashville, Tennessee, for
Appellee.

Judge: FRANKS

First Paragraph:

The Trial Judge held the minor child was dependent and neglected and
that the mother had committed severe child abuse against her child. 
Custody was awarded to DCS who was relieved of making reasonable
efforts to reunify the mother and child.  The mother appealed,
insisting there is no evidence to support the Trial Court's findings. 
We affirm the Trial Court.

http://www.tba.org/tba_files/TCA/mw.wpd

PACHE INDUSTRIES, LLC v. WALLACE HARDWARE CO., INC.

Court:TCA

Attorneys:                          

Lori L. Jessee, Morristown, Tennessee, for the Appellant, Wallace
Hardware Co., Inc.

J. Randall Shelton, Morristown, Tennessee, for the Appellee, Pache
Industries, LLC.

Judge: SWINEY

First Paragraph:

Pache Industries, LLC ("Plaintiff") sued Wallace Hardware Co., Inc.
("Defendant") for unpaid invoices.  Defendant was served with the
summons and complaint, but did not answer within thirty days. 
Plaintiff filed a motion for default judgment.  After being served
with the motion for default judgment, Defendant hired an attorney,
filed an answer to the complaint, and filed responses to discovery
requests.  The Trial Court granted Plaintiff a default judgment. 
Defendant filed a motion to set aside the default judgment.  The Trial
Court denied the motion.  Defendant appeals.  We affirm.

http://www.tba.org/tba_files/TCA/pachei.wpd

RDM v. STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, IN THE
MATTER OF: AGM, A Child Under Eighteen Years of Age

Court:TCA

Attorneys:                          

Spence R. Bruner, Kingston, Tennessee, for Appellant.

Paul G. Summers, Attorney General and Reporter, and Juan G.
Villasenor, Assistant Attorney General, Nashville, Tennessee, for
Appellee.
 
Judge: FRANKS

First Paragraph:

The Trial Court terminated parents' parental rights.  The father has
appealed.  We affirm the Trial Court.

http://www.tba.org/tba_files/TCA/rdm.wpd

RENA THOMPSON v. CHARLES HENSLEY, ET AL.

Court:TCA

Attorneys:                          

J. Lewis Kinnard, Madisonville, Tennessee, for the Appellant Rena
Thompson.

Peter Alliman, Madisonville, Tennessee, for the Appellees Charles
Hensley and Karen Hensley.

Judge: SWINEY

First Paragraph:

Rena Thompson ("Plaintiff") filed this lawsuit claiming her grandson,
Charles Hensley, and his wife, Karen Hensley (collectively
"Defendants"), breached an oral contract.  Specifically, Plaintiff
claims she conveyed her house and real property to Defendants in
exchange for their oral promise to take care of her and allow her to
remain living in the house with them.  Plaintiff suffered a stroke and
went to live with her son, Perrian Hensley ("Plaintiff's son" or "her
son").  After living with her son for approximately one year,
Plaintiff wanted to return to her house.  When she was not allowed to
return to her house, Plaintiff sued Defendants for specific
performance.  The Trial Court found there was no contract.  Plaintiff
appeals.  We affirm.

http://www.tba.org/tba_files/TCA/thompr.wpd

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