Opinion FlashDecember 22, 2003Volume 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel 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 PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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