Opinion Flash

December 22, 2003
Volume 9 — Number 233

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
10 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


SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_1222.wpd

CLEMENT BERNARD v. SUMNER REGIONAL HEALTH SYSTEM

Court:TCA

Attorneys:                          

Joe Bednarz, Jr., Joe Bednarz, Sr., Nashville, Tennessee, for the
appellant, Clement F. Bernard, M.D.

James C. Bradshaw, III, Elizabeth H. Foss, Nashville, Tennessee, for
the appellee, Sumner Regional Health Systems, Inc., d/b/a Sumner
Regional Medical Center.

Judge: CAIN

First Paragraph:

This case was dismissed by the trial court on summary judgment for res
judicata.  Plaintiff had previously filed an action against the same
Defendant for actions of Defendant surrounding a sexual harassment
allegation.  The previous action was for procurement of breach of
contract and defamation.  A final judgment has been rendered in that
case.  The current action is for failure to follow internal procedures
resulting in breach of contract.  The issue to be decided on appeal is
whether these two cases involve the same "cause of action" necessary
for a finding of res judicata.  We find that they do involve the same
"cause of action" and affirm the trial court's decision.

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

THOMAS K. BOWERS  v. GUTTERGUARD OF TENNESSEE, INC.

Court:TCA

Attorneys:                          

Michael D. Fitzgerald, Nashville, Tennessee, for the appellant,
Gutterguard of Tennessee, Inc.

W. H. (Steve) Stephenson, II, Nashville, Tennessee, for the appellee,
Thomas K. Bowers.

Judge: CLEMENT

First Paragraph:

The defendant challenges the Circuit Court's dismissal of an appeal
from General Sessions Court for failure to comply with Davidson County
Local Rule of Practice 20(b).  The Local Rule required the appealing
party to set the matter for trial no more than 45 days following the
Circuit Court Clerk's receipt of the appeal.  Though the defendant had
filed a motion to set, an order setting the matter for trial had not
been entered when the Circuit Judge dismissed the appeal and made the
judgment of the General Sessions Court the final judgment.  The
defendant/appellant sought Rule 60.02(1) relief, claiming excusable
neglect, which was denied.  Based upon recent authority, determination
of "excusable neglect" for Rule 60 purposes now requires an evaluation
of three factors: whether the defaulting party's conduct was willful,
whether there exists a meritorious defense, and whether the
non-defaulting party has been  prejudiced.  We find the defendant's
negligence was not willful and that the plaintiff suffered no
prejudice; however, the record is silent concerning whether the
defendant has a meritorious defense.  Therefore, we reverse the trial
court and remand the matter to the Circuit Court for further
proceedings consistent with this ruling.

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

KATHY CLARK , ET AL. v. RANDALL McCLUNG

Court:TCA

Attorneys:                          

Lawrence H. Hart, Nashville, Tennessee, for the appellant, Kathy Clark
and Jerry W. Clark.

Amy Adams Gowan, Nashville, Tennessee, for the appellee, Randall S.
McClung.

Judge: CLEMENT

First Paragraph:

Due to Plaintiffs' failure to file an alias summons within one year of
the date the original complaint and summons were filed, the Circuit
Court granted Defendant's Motion to Dismiss for Plaintiffs' failure to
Comply with Rule 3, Tenn. R. Civ. P.  Plaintiffs appealed asserting
the error was due to the Circuit Court Clerk's refusal to file the
alias summons and that the trial court abused its discretion in
dismissing the case.   We affirm the judgment of the trial court.

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

ALAN REECE CUNNINGHAM v. SYLVIA DELAIN CUNNINGHAM

Court:TCA

Attorneys:                          

Rankin P. Bennett, Cookeville, Tennessee, for the Sylvia Delain
Cunningham.

Henry D. Fincher, Cookeville, Tennessee, for the appellee, Alan Reece
Cunningham.

Judge: COTTRELL

First Paragraph:

The case involves the dissolution of a marriage of seven years.  The
trial court granted the divorce to the wife, divided the marital
property between the parties in roughly equal proportions, found that
the wife was not economically disadvantaged, and declined to award her
any form of alimony.  The wife appeals the court's alimony decision. 
We find the wife is entitled to alimony because, contrary to the trial
court's finding, we believe the evidence shows that she is
economically disadvantaged when compared to her former spouse.  We
modify the judgment to award her alimony in solido.

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

MARY ANN GURGANUS EURE v. BARRY LYNN EURE

Court:TCA

Attorneys:                          

Lisa Z. Espy, Chattanooga, Tennessee, for the appellant, Mary Ann
Gurganus Eure.

M. Drew Robinson, Cleveland, Tennessee, for the appellee, Barry Lynn
Eure.

Judge: SUSANO

First Paragraph:

This is a post-divorce modification case involving the custody of, and
support for, the parties' minor child, Matthew Chandler Eure (DOB: 
July 22, 1996) ("the child").   Mary Ann Gurganus Eure ("Mother")
filed a complaint seeking custody of the child.  Barry Lynn Eure
("Father"), the child's custodian, answered and filed a counterclaim
seeking an increase in Mother's weekly child support obligation. 
Following a hearing, the trial court denied Mother's complaint.  The
court subsequently increased Mother's support obligation to $113 per
week.  Mother appeals, arguing, in so many words, that the evidence
preponderates against both of the trial court's rulings.  We affirm.

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

ALICE HALE v. WAYNE CULPEPPER

Court:TCA

Attorneys:                          

Robert T. Carter, Tullahoma, Tennessee, for the appellant, Wayne
Culpepper.

H. Thomas Parsons, Manchester, Tennessee, for the appellee, Alice
Hale.

Judge: COTTRELL

First Paragraph:

Following the death of a child's mother, the maternal grandmother
filed a petition to establish grandparent visitation with her
grandson.  After a hearing where the trial court heard testimony and
after an independent psychological report, the trial court awarded
visitation to the grandmother.  The father appeals, arguing that the
evidence preponderates against the trial court's decision.  Because
the record contains no evidence of danger of substantial harm to the
child, we reverse the decision of the trial court.

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

THOMAS G. HYDE, d/b/a MANAGEMENT RECRUITERS OF MURFREESBORO-NASHVILLE
v. ISHIKAWA GASKET AMERICA, INC.

Court:TCA

Attorneys:                          

Gary D. Beasley, Murfreesboro, TN, for Appellant

Richard W. Rucker, Murfreesboro, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This case involves the breach of a contract when Defendant refused to
pay fees to which Plaintiff claims an entitlement.  The trial court
below found that, under the facts of the case, the contract did not
apply and, therefore, refused to award Plaintiff its fees.  Instead,
the trial court awarded Plaintiff a lesser amount under the theory of
quantum meruit.  Plaintiff timely appealed that decision and, for the
reasons stated below, this Court reverses the ruling of the lower
court.

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

ERIK MAASIKAS v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
COUNTY

Court:TCA

Attorneys:                          

Worrick G. Robinson, Nashville, Tennessee, for the appellant, Erik
Maasikas.

Wm. Michael Safley, Nashville, Tennessee, for the appellee,
Metropolitan Government of Nashville and Davidson County.

Judge: CAIN

First Paragraph:

Appellant, a former Metropolitan Nashville police officer, appeals an
adverse judgment of the Chancery Court of Davidson County wherein that
court affirmed the decision of the Metropolitan Civil Service
Commission imposing a two-day suspension for a disciplinary
infraction.  We affirm the trial court.

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

PAUL A. MILLER v. CONNIE MARIE MILLER

Court:TCA

Attorneys:                          

Nan Shelby Calloway, Nashville, Tennessee, for the appellant, Paul A.
Miller.

Connie Marie Miller, Nashville, Tennessee, Pro Se.

Judge: CAIN

First Paragraph:

This is a post-divorce custody proceeding involving two young girls
wherein the trial court denied the Father's Petition for a Change of
Custody.  We affirm the action of the trial court.

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

THOMAS NEWSOME v. QUENTON WHITE

Court:TCA

Attorneys:                          

Thomas Newsome, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Christopher Michael Fancher, Assistant Attorney
General, for the appellee, Quenton White.

Judge: KOCH

First Paragraph:

This appeal involves a prisoner who was disciplined for assaulting a
prison employee.  After the Department extended his release
eligibility date by thirty percent under Tenn. Dep't Corr. Policy
Index No. 502.02, the prisoner requested a declaratory order that the
policy did not apply to him because the Department had failed to give
him fair warning of the policy as required by Tenn. Code Ann. S
41-21-218 (2003).  The Department denied the request, and the prisoner
filed a Tenn. Code Ann. S 4-5-225 (1998) petition for declaratory
judgment in the Chancery Court for Davidson County against the
Commissioner of Correction.  The trial court, treating the petition as
a petition for common-law writ of certiorari, granted the
Commissioner's motion to dismiss after determining that it lacked
subject matter jurisdiction over the prisoner's claim and that the
prisoner had failed to state a claim because the punishment he
received was not serious enough to infringe upon a protected liberty
interest.  The prisoner has appealed.  We affirm the dismissal of the
prisoner's petition because he has misconstrued Tenn. Code Ann. S
41-21-218

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

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