Opinion Flash

November 25, 2003
Volume 9 — Number 216

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
14 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


AMERICAN CORRECTIONS TRANSPORT, INC. v. RUTH E. JOHNSON, COMMISSIONER
OF REVENUE, STATE OF TENNESSEE

Court:TCA

Attorneys:                          

W. Gary Blackburn and Malcolm L. McCune, Nashville, Tennessee, for the
appellant, American Corrections Transport, Inc.

Paul G. Summers, Attorney General & Reporter, Michael E. Moore,
Solicitor General, and Wyla M. Posey, Assistant Attorney General,
Nashville, Tennessee, for the appellee, Ruth E. Johnson, Commissioner
of Revenue, State of Tennessee.

Judge: KIRBY

First Paragraph:

This is a claim for a refund of Tennessee franchise and excise taxes. 
From 1987 through 1998, the taxpayer corporation was the sole owner of
stock in a subsidiary corporation.  In the taxpayer's 1996 Tennessee
franchise and excise tax return, the taxpayer claimed a deduction
based on its assertion that the stock in the subsidiary became
worthless or was abandoned in 1996, and that its basis in that stock
for state tax purposes was greater than its basis for federal tax
purposes.  The defendant Tennessee Commissioner of Revenue disallowed
the deduction and sent the taxpayer a notice of assessment.  The
taxpayer paid the assessment, then filed the instant lawsuit for a
refund.  After a  bench trial, the trial court rejected the taxpayer's
claim and denied the refund.  The taxpayer appeals.  We affirm,
finding that the taxpayer submitted insufficient evidence that there
was an "other disposition" of its stock in 1996 to entitle it to
deduction under T.C.A. S 67-4-805(b)(2)(D).  In the alternative, we
affirm the trial court's conclusion that the taxpayer did not submit
sufficient evidence of the difference in its basis for state tax
purposes and its basis for federal tax purposes so as to justify the
claimed deduction under T.C.A. S 67-4-805(b)(2)(D).

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

EDDIE W. BELCHER, ET AL. v. STATE OF TENNESSEE

Court:TCA

Attorneys:                          

Wade V. Davies and Tasha C. Blakney, Knoxville, Tennessee, for the
appellants, Eddie W. Belcher, deceased, and Sara O. Belcher, deceased,
through their executrix and daughter, Beverly J. Ritchie.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and George H. Coffin, Jr., Assistant Attorney
General, for the appellee, State of Tennessee.

Judge: SUSANO

First Paragraph:

This claim against the State of Tennessee arises out of a two-vehicle
accident.  Eddie W. Belcher  was driving to church with his wife, Sara
O. Belcher, when their vehicle struck the rear of a vehicle driven by
Eric Wilson .  The Belchers, who sustained severe injuries as a result
of this accident, filed a claim against the State, alleging that a
dangerous condition existed on the portion of the interstate where the
accident occurred and that the section of the interstate was
negligently designed and maintained.  The Claims Commission determined
that the State was negligent in its design of that stretch of
interstate, but held that its negligence was not the proximate cause
of the Belchers' injuries.  The Belchers appeal, arguing that the
Claims Commission erred in the second of these two determinations.  By
way of a separate issue, the State contends that the Belchers' claim
is barred by the four-year statute of repose.  We affirm.

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

MONTE BOUNDS, ET AL. v. ZELLA CUPP

Court:TCA

Attorneys:                          

Wade V. Davies and Tasha C. Blakney, Knoxville, Tennessee, for the
appellants, Eddie W. Belcher, deceased, and Sara O. Belcher, deceased,
through their executrix and daughter, Beverly J. Ritchie.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and George H. Coffin, Jr., Assistant Attorney
General, for the appellee, State of Tennessee.

Judge: SUSANO

First Paragraph:

The appellees filed suit against the appellant, alleging that the
appellees, Lawrence R. Bozeman and wife, Imogene Bozeman ("the
appellees Bozeman"),  owned a 12-foot wide easement accross the
property of the appellant.  The appellant filed an answer, relying
upon "the affirmative defense of abandonment plus adverse possession
by the [appellant]."  Following a plenary trial, the court below found
that the appellees Bozeman had an express easement across the property
of the appellant and that they "ha[d] not taken action of clear and
unmistakable character indicating an abandonment of the easement."  
The appellant contends on this appeal that the trial court erred in
failing to find abandonment of the easement.  Since there is no
transcript or statement of the evidence in the record before us, we
affirm the judgment of the trial court.

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

BRICK CHURCH TRANSMISSION, INC. v. SOUTHERN PILOT INSURANCE CO.

Court:TCA

Attorneys:                          

Keith Jordan and Theodora Pappas, Nashville, Tennessee, for the
appellant, Brick Church Transmission, Inc.

Alan Mark Sowell and M. Kristen Selph, Nashville, Tennessee, for the
appellee, Southern Pilot Insurance Co.

Judge: CAIN

First Paragraph:

Insured, Plaintiff/Appellant, filed suit under a policy of commercial
insurance alleging a loss by theft that was covered by the policy. 
Defendant/Appellee filed a Tennessee Rule of Civil Procedure 12.02(6)
Motion to Dismiss based upon expiration of the two year period in
which suit could be brought under the terms of the policy.  The trial
court granted the motion to dismiss, and we affirm the action of the
chancellor.

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

DAN BILL JOHNSON v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:                          

Dan Bill Johnson, Mountain City, Tennessee, Pro Se. 

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Dawn Jordan, Assistant Attorney General, for
the appellee, Tennessee Department of Correction.

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a prisoner and the Tennessee
Department of Correction regarding historical sentencing information
contained in his records.  The prisoner filed a petition for writ of
mandamus in the Chancery Court for Davidson County seeking an order
directing the Department to remove an outmoded release eligibility
date from his records and to certify him as eligible for parole.  The
trial court granted the Department's motion for summary judgment, and
the prisoner has appealed.  We affirm the judgment because the manner
in which the Department maintains its records is not a ministerial
function and because the prisoner does not have a legal right to
require the Department to maintain his records in any particular way.

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

J.W.G. v. T.L.H.G.

Court:TCA

Attorneys:                          

Thomas R. Meeks and Gregory D. Smith, Clarksville, Tennessee, for the
appellant, T.L.H.G.

Rodger N. Bowman, Clarksville, Tennessee, for the appellee, J.W.G.

Judge: SUSANO

First Paragraph:

This is a child custody case.  At an earlier time - on October 15,
1996 - J.W.G. ("Father") petitioned the juvenile court for custody of
his daughter, H.N.G. (DOB: 8/24/96) ("the child").  The juvenile court
granted Father custody of the child.  Later - on October 12, 1997 -
Father married the child's mother, T.L.H.G. ("Mother").  The parties
were divorced in May, 2001.  The chancery court, in granting the
divorce, gave the parties joint custody of the child, naming Mother as
the primary residential custodian.  Later that year, the chancery
court, acting on Father's petition, reversed its order of custody,
holding that it did not have jurisdiction to determine custody. 
Subsequently, the juvenile court, following a hearing, again awarded
custody to Father.  Mother appeals, arguing that, contrary to the
chancery court's ruling, the juvenile court did not have exclusive
jurisdiction to determine custody; that the trial court's findings are
not supported by the evidence; and that a parenting plan was never
submitted to the trial court.  By way of a separate issue, Father
argues that Mother's notice of appeal is deficient.  We affirm.

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

RONALD KEITH LOINES, JR. v. KIMBERLY LOINES

Court:TCA

Attorneys:                          

Kimberly Loines, appellant, Pro Se.

Brian M. House, Ringgold, Georgia, for the appellee, Ronald Keith
Loines, Jr.

Judge: SUSANO

First Paragraph:

In this divorce case, the trial court awarded Ronald Keith Loines, Jr.
("Husband") a divorce from Kimberly Loines ("Wife") by judgment
entered January 14, 2003.  Wife filed her notice of appeal on February
25, 2003.  Because the notice of appeal was not filed within 30 days
of the entry of the judgment of divorce, we are without jurisdiction
to consider the issues raised by Wife.  Accordingly, Wife's appeal is
dismissed.

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

FRANKIE PAULINE MAPLES  v. FRANK ALLEN MAPLES

Court:TCA

Attorneys:                          

Frank L. Flynn, Knoxville, Tennessee, attorney for appellant, Frank
Allen Maples.

Mike A. Hickman, Maryville, Tennessee, attorney for the appellee,
Frankie Pauline Maples.

Judge: INMAN

First Paragraph:

Husband, for the second time, seeks a reduction in his alimony
obligation, claiming that his bona fide retirement coincided with a
substantial decrease in income.  The trial court modified the
obligation by reducing it to $919.50 monthly.  Wife receives $752.00
from social security.  Her reasonable expenses were found to be
$2176.00.  Husband appeals, insisting that the reduction is
insufficient.  Wife presents for review the issue of whether any
reduction was justified.  We reinstate the initial award, finding that
Husband, as in the prior appeal, continued his pattern of conduct in
restructuring his assets to award his obligation.

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

KELLEY SCOTT McEVOY v. KIMBERLY MARIE BREWER

Court:TCA

Attorneys:                          

Dennis W. Powers, Gallatin, Tennessee, for the appellant, Kimberly
Marie Brewer.

Bruce N. Oldham and Sue Hynds Dunning, Gallatin, Tennessee, for the
appellee, Kelley Scott McEvoy.

Judge: KOCH

First Paragraph:

This appeal involves the custody of a seven-year-old girl.  Her
parents initially agreed to joint custody in their marital dissolution
agreement that was approved by the General Sessions Court for Sumner
County.  Both parties later petitioned for sole custody.  The general
sessions court determined that the father should be the child's
primary custodial parent because the mother had married a man who
posed a credible threat of domestic abuse or violence toward the child
and because the existing alternating custody arrangement was no longer
workable.  The mother asserts on this appeal that the evidence does
not support the general sessions court's decision to change custody. 
We have determined that the evidence does not preponderate against the
court's decision to modify the custody arrangement and to award the
father primary physical custody of the child.

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

IN RE ADOPTION OF WILLIAM DREW MUIR

Court:TCA

Attorneys:                          

Charles G. Jenkins, Sr., Jasper, Tennessee, for the appellant, April
Ann Muir Whited.

Marshall A. Raines, Jr., Jasper, Tennessee, and Lisa Z. Espy,
Chattanooga, Tennessee, for the appellee, Donald Ray Dalton.

Judge: KOCH

First Paragraph:

This appeal involves the termination of the parental rights of the
biological father of a five-year-old child.  The child's mother and
her husband filed a petition in the Circuit Court for Marion County
seeking to terminate the biological father's parental rights and to
approve the husband's adoption of the child.  They proceeded with the
petition even after they were divorced.  Following a bench trial in
May 2002, the trial court entered an order on December 2, 2002 denying
the petition on the ground that the mother and her former husband had
not established by clear and convincing evidence that the biological
father had abandoned the child.  The mother has appealed.  We have
determined that the December 2, 2002 order must be vacated because the
trial court failed to make the specific findings of fact required by
Tenn. Code Ann. S 36-1-113(k) (Supp. 2003).

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

SANTOS PARRA-SOTO v. COLIS NEWBLE, JR.

Court:TCA

Attorneys:                          

Santos Parra-Soto, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Pamela S. Lorch, Assistant Attorney General, for
the appellee, Colis Newble Jr., Director Tennessee Board of Probation
and Parole.

Judge: COTTRELL

First Paragraph:

A prisoner in the custody of the Department of Correction filed a
Petition for Writ of Certiorari to review a decision by the Board of
Probation and Parole declining to release him on parole.  Although the
trial court notified him that under Tenn. Code Ann. S 41-21-807 he had
to make at least a partial payment of the filing fee before his case
could be considered, the prisoner failed to do so.  The court
accordingly dismissed his Petition.  We affirm.

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

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. R.A.W.

Court:TCA

Attorneys:                          

Douglas L. Payne, Greeneville, Tennessee, for the Appellant R.A.W.

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

Judge: SWINEY

First Paragraph:

R.A.W. ("Father") challenges the termination of his parental rights,
claiming there was insufficient proof to establish grounds for
termination or that it was in the best interest of the child to
terminate the parent-child relationship.  Father also claims the
Juvenile Court erred when it refused to grant him visitation after the
petition to terminate his parental rights had been filed.  We affirm
the decision of the Juvenile Court.

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

JOHN R. REED, ET AL. v. CARTER COUNTY

Court:TCA

Attorneys:                          

Robert J. Jessee, Johnson City, Tennessee, for the appellants, John R.
Reed and Margaret Reed.

Dana C. Holloway and C. Christopher Brown, Knoxville, Tennessee, for
the appellee, Carter County, Tennessee.

Judge: SUSANO

First Paragraph:

John R. Reed and wife, Margaret Reed, filed suit against Carter
County, alleging they suffered personal injuries and property damage
as a result of an accident that occurred while they were crossing a
one-lane bridge built in 1916 or 1918.  The plaintiffs were in a wagon
being pulled by a horse and mule team.  It is alleged that the mule
slipped off the bridge causing the wagon to become entangled at the
edge of the bridge.  The bridge is owned and maintained by Carter
County; it did not have guardrails.  The plaintiffs charge that the
"defective, unsafe, or dangerous condition of the bridge" proximately
caused the accident and their resulting injuries and damages.  The
county filed a motion for summary judgment, raising the affirmative
defense of governmental immunity pursuant to the Tennessee
Governmental Tort Liability Act ("the GTLA"), Tenn. Code Ann. S
29-20-101, et seq.  The trial court granted the motion.  The
plaintiffs appeal, arguing that the trial court erred in granting
summary judgment.  They argue that there is a genuine issue of
material fact as to whether the bridge was "defective, unsafe, or
dangerous."  In addition, they contend the trial court improperly
weighed the evidence, rather than viewing it in the light most
favorable to the plaintiffs as the nonmoving parties.  We affirm the
grant of summary judgment in part and reverse that grant in part and
remand to the trial court for further proceedings.

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

SHAWN T. VINEYARD v. BILL VARNER DBA FOUNTAIN CITY AUTO SALES

Court:TCA

Attorneys:                          

David L. Bacon, Knoxville, Tennessee, for the appellant, Shawn T.
Vineyard.

Luis C. Bustamante and Robert L. Vance, Knoxville, Tennessee, for the
appellee, Bill Varner.

Judge: SUSANO

First Paragraph:

Shawn T. Vineyard ("the plaintiff") purchased a 1991 Nissan automobile
from Bill Varner, doing business as Fountain City Auto Sales ("the
defendant").  Later, the plaintiff sued the defendant alleging a
fraudulent misrepresentation and a violation of the Tennessee Consumer
Protection Act ("the TCPA") in connection with the sale.  In addition
to other relief, the plaintiff sought compensatory damages; in the
alternative, he asked for rescission of the sale agreement.  After the
trial court denied the defendant's motion for summary judgment, this
matter proceeded to trial before a jury.  The jury, in response to
interrogatories, found the defendant guilty of violating the TCPA, but
found no damages.  The jury also found that the defendant had
committed a fraudulent misrepresentation in connection with the sale
of the automobile and assessed the plaintiff's damages at $2,100.   In
response to post-trial motions, the trial court decreed rescission and
awarded the plaintiff the purchase price of $2,100.  Defendant
appeals, arguing that the trial court erred (1) in denying his motion
for summary judgment; (2) in decreeing rescission and otherwise
modifying the jury's verdict; and (3) in awarding attorney's fees of
$12,000 to the plaintiff.  We affirm.

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

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