Opinion Flash

January 16, 2004
Volume 10 — Number 011

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 New Opinion(s) from the Tennessee Court of Appeals
02 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


NPS ENERGY SERVICES, INC., Appellant v. NELSON E. MOORE, Appellee

Court:TSC - Workers Comp Panel

Attorneys:                          

Raymond S. Leathers, Ruth, Howard, Tate & Sowell, Nashville,
Tennessee, for the appellant NPS Energy Services, Inc.

George E. Copple, Jr., Nashville, Tennessee, for the appellee  Nelson
E. Moore.

Judge: CLEMENT

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
S 50-6-225(e)(3) for hearing and reporting findings of fact and
conclusions of law.  The employer/appellant contends: (1) that the
trial court erred in determining that the employee suffered an injury
arising out of and in the course of his employment, and (2) that the
trial court erred in awarding forty percent (40%) permanent partial
disability to the body as a whole.  As discussed herein, the panel has
concluded that the judgment of the trial court should be affirmed

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

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. A.W.S. and
E.S. In re: R.T.S.

Court:TCA

Attorneys:                          

Jon A. Anderson, Maryville, Tennessee, for the Appellant, A.W.S.

Wm. Lee Gribble, II, Maryville, Tennessee, for the Appellant, E.S.

Paul G. Summers and John H. Bledsoe, Nashville, Tennessee, for the
Appellee, State of Tennessee, Department of Children's Services.

Judge: SWINEY

First Paragraph:

The State of Tennessee, Department of Children's Services ("DCS")
filed a petition seeking to terminate the parental rights of A.W.S.
("Mother") and E.S. ("Father"), the biological parents of the minor
child, R.T.S. ("the Child").  The Juvenile Court granted DCS' petition
to terminate Mother's and Father's parental rights.  Both Mother and
Father appeal.  We affirm.

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

JANET LYNN DITZER v. CURTIS J. DITZER

Court:TCA

Attorneys:                          

Grace E. Daniell, Chattanooga, Tennessee, for Appellant.

Janet Lynn Ditzer, Chattanooga, Tennessee, pro se

Judge: FRANKS

First Paragraph:

The Trial Court ordered the father to pay one-half of the daughter's
college expenses pursuant to the parties' Marital Dissolution
Agreement, and reimburse the mother for one-half of expenses already
paid.  On appeal, we affirm.

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

MARY LEE DOTSON v. WILLIAM ENNIS DOTSON

Court:TCA

Attorneys:                          

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant,
William Ennis Dotson.

Kim B. Tycer, Pulaski, Tennessee, for the appellee, Mary Lee Dotson.

Judge: KOCH

First Paragraph:

This appeal involves the dissolution of a 28-year marriage by default.
 The wife filed for divorce in the Chancery Court for Maury County
and, after the husband failed to file a timely answer, filed for a
default judgment.  The trial court granted the default judgment even
though the husband had filed an answer and counterclaim on the day
before the hearing and later denied the husband's Tenn. R. Civ. P.
55.02 motion to set aside the default.  The husband has appealed.  We
have determined that the trial court properly granted the default
judgment but erred by refusing to later set the default judgment
aside.

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

IN RE: ESTATE OF CARL MYERS, REBECCA DYKE and KEVIN BRUCE BRANTLY v.
GLENDA SEYMOUR and JUDY A. TOLLIVER and COMMERCIAL BANK

Court:TCA

Attorneys:                          

Timothy P. Coode, Knoxville, Tennessee, for Appellant.

David H. Stanifer, Tazewell, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

The Trial Court voided agreements with Bank by Decedent creating
survivorship accounts with his daughter on grounds of incompetency. 
On appeal, we affirm.

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

THE POLK COUNTY BOARD OF EDUCATION v. THE POLK COUNTY EDUCATION
ASSOCIATION

Court:TCA

Attorneys:                          

Richard L. Colbert and W. Gregory Miller, Nashville, Tennessee, for
Appellant.

D. Scott Bennett, Chattanooga, Tennessee, for Appellee.

Judge: FRANKS

First Paragraph:

The Trial Court ruled the School Board did not have to negotiate with
the Teachers Association regarding a dress code policy adopted by the
Board.  On appeal, we reverse and remand.

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

CORDELL C. TAYLOR, ET AL., v. DONNIE H. AND VICK WILLIAMS

Court:TCA

Attorneys:                          

Johnny V. Dunaway, LaFollette, Tennessee, for Appellant.

James W. Brooks, Jr., Wartburg, Tennessee, for Appellees.

Judge: FRANKS

First Paragraph:

In this dispute over the boundary line between the parties' property,
the Trial Court established the line and declared an easement. 
Defendants have appealed.  We affirm.

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

ALEXANDER C. WELLS v. TENNESSEE BOARD OF REGENTS, ET AL.

Court:TCA

Attorneys:                          

Phillip L. Davidson, Nashville, Tennessee, for the appellant,
Alexander C. Wells.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Kae Carpenter Todd, Assistant Attorney General,
for the appellees, Tennessee Board of Regents, Tennessee State
University, and James Hefner.

Judge: KOCH

First Paragraph:

This appeal is the continuation of a protracted dispute between
Tennessee State University and a faculty member stemming from his
termination for sexually harassing a student.  After the courts
vacated the dismissal, the university and the Tennessee Board of
Regents established a process of transitional reinstatement.  The
professor objected and refused to report to work.  Thereafter, the
professor filed a petition in the Chancery Court for Davdison County
to hold the university and the board in contempt.  The trial court
heard the matter without a jury and declined to hold either the
university or the board in contempt.  The professor has appealed.  We
affirm because orders declining to grant contempt petitions are not
appealable.

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

STATE OF TENNESSEE v. COY J. COTHAM, JR. 

Court:TCCA

Attorneys:                          

Amy Harwell (at trial) and William J. Steed (on appeal), Nashville,
Tennessee, for the appellant, Coy Jonathan Cotham, Jr.

Paul G. Summers, Attorney General & Reporter; Christine M. Lapps,
Assistant Attorney General; and Bret T. Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Coy J. Cotham, Jr., charged with criminal impersonation
and aggravated assault, pled guilty to criminal impersonation, a Class
B misdemeanor, see Tenn. Code Ann. S 39-16-301, and simple assault, a
Class A misdemeanor, see Tenn. Code Ann. S 39-13-101.  The trial court
imposed concurrent sentences of six  months for criminal impersonation
and 11 months and 29 days for simple assault.  The sentences were
ordered to be served consecutively to an earlier six-year sentence of
probation for aggravated assault, on which the defendant had
absconded.  In this appeal of right, the defendant asserts that the
trial court erred by (1) ordering his sentences be served
consecutively to his earlier six-year sentence for aggravated assault
and (2) denying an alternative sentence.  The judgments are affirmed.

http://www.tba.org/tba_files/TCCA/cothamcj.wpd

STATE OF TENNESSEE v. GLEN HOLT
CONNCURRING OPINION

Court:TCCA

Judge: TIPTON

First Paragraph:

I concur in most of the conclusions and reasoning in the majority
opinion, but I dissent from the remand in this case.  I believe that
the record sufficiently shows that the defendant made a knowing and
intelligent waiver of his right to testify.  The failure to follow the
specific Momon requirements should not disturb the judgment in this
case.  Counsel told the trial court, in open court with the defendant
present, that he had advised the defendant of his rights to testify
and not to testify and that he thought the defendant understood those
rights.  When the record states that the "Defendant indicates
affirmatively" in response to the trial court's asking him if he
understood his rights and was not going to testify, I have no problem
in concluding that the defendant intentionally relinquished his right
to testify.  Moreover, given the fact that counsel at the motion for
new trial hearing indicated that the defendant had consulted with him
and had made a decision not to testify further justifies my
conclusion.  To require a Momon hearing under the circumstances in
this case would be putting form above substance.  I would affirm the
trial court.

CONCURRING OPINION
http://www.tba.org/tba_files/TCCA/holtglen_con.wpd

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