Opinion FlashNovember 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):
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Howard H. Vogel
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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