Opinion Flash

January 28, 2004
Volume 10 — Number 018

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
07 New Opinion(s) from the Tennessee Court of Appeals
03 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


DENNIS LEE BEEDLE v. STEPHANIE J. BEEDLE

Court:TCA

Attorneys:   

J. Hilton Conger, Smithville, Tennessee, for the appellant, Dennis Lee Beedle.

Shawn McBrien, Lebanon, Tennessee, for the appellee, Stephanie J. Beedle.                     

Judge:

First Paragraph:

In this divorce appeal the Husband challenges the distribution of the only
significant marital asset, the Husband's retirement benefit.  The trial court
divided that benefit by ordering the Husband to pay $530.82 of each monthly
payment to the Wife.  We affirm.

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

LISA D. HUCKABEE v. MICHAEL E. MAGILL, COMMISSIONER OF THE TENNESSEE DEPARTMENT
OF LABOR AND WORKFORCE DEVELOPMENT, ET AL.

Court:TCA

Attorneys:          

Stephen S. Duggins, Chattanooga, Tennessee, for the Appellant Watkins & Son, Inc.

Paul G. Summers, Attorney General and Reporter, and Warren A. Jasper, Assistant
Attorney General, Nashville, Tennessee, for the Appellee Michael E. Magill,
Commissioner, Department of Labor and Workforce Development.

Brian C. Frye, Chattanooga, Tennessee, for the Appellee Lisa D. Huckabee.

Judge: SWINEY

First Paragraph:

This appeal involves a claim for unemployment compensation benefits by Lisa
Huckabee ("Claimant").  When Claimant was hired by Watkins & Son, Inc. (the
"Employer"), the Employer's policy prohibiting fraternization between employees
was explained to her.  Nevertheless, Claimant began a consensual affair with a
coworker.  The coworker's employment was terminated when the Employer learned of
the affair.  It is disputed as to whether Claimant was discharged or quit before
she could be discharged.  The Board of Review concluded that Claimant was
disqualified from receiving benefits regardless of whether she quit or was
discharged.  The Trial Court reversed after concluding, inter alia, that the
issue of whether Claimant was discharged for work related misconduct was not an
issue the Board of Review could properly consider because the Employer did not
raise that issue at the previous two administrative levels.  The Trial Court also
concluded that the decision by the Board of Review was not supported by
substantial and material evidence.  We reverse the judgment of the Trial Court
and reinstate the judgment of the Board of Review.

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

INTERNATIONAL MERCHANT SERVICES, INC. v. ATM CENTRAL, L.L.C., ET AL.

Court:TCA

Attorneys:     

John B. Philip, Memphis, For Appellant, International Merchant Services, Inc.

Eugene J. Podesta, Jr., Memphis, For Appellee, ATM Central, L.L.C.                    

Judge: CRAWFORD

First Paragraph:

Appellant appeals the order of the trial court dismissing the appeal apparently
pursuant to Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which
relief can be granted.  The record reflects that, although the trial court
considered extraneous evidence in ordering the dismissal, the court refused to
treat the matter as a Tenn. R. Civ. P. 56 motion for summary judgment and to
allow additional time for disposal of such a motion.  We reverse and remand.

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

TODD JONES, ET AL. v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY

Court:TCA

Attorneys:  

Steven A. Dix, Murfreesboro, Tennessee, for the appellant, Tennessee Farmers
Mutual Insurance Company.

Paul A. Bates, Charles M. Bates, Lawrenceburg, Tennessee, for the appellees, Todd
Jones and Michelle Jones.                    

Judge: CAIN

First Paragraph:

By pre-complaint Petition under Tennessee Rule of Civil Procedure 27, insureds
seek to obtain from their insurer copies of previous unsworn oral statements
given to an adjuster before they will submit to a statement under oath pursuant
to their obligations under the policy.  The trial court granted the Petition, and
insurer appeals.  The judgment of the trial court is reversed, and the case is
remanded with instructions to dismiss the Petition.

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

MICHAEL W. LAMBERSON v. KATHY SUE LAMBERSON

Court:TCA

Attorneys:  

Clark Lee Shaw, John David Moore, Nashville, Tennessee, for the appellant,
Michael W.Lamberson.

David Lyle, Nashville, Tennessee, for the appellee, Kathy Sue Lamberson.
                       
Judge: CAIN

First Paragraph:

In this appeal, the ex-husband challenges the trial court's order denying his
post-divorce petition to modify alimony and finding him in "technical contempt." 
We find that the proof is inadequate to establish willful efforts to defeat
alimony obligations, that his change of employment was not voluntary and that a
substantial and material change of circumstances has occurred, justifying some
relief from the alimony obligation.  The trial court did not err in holding the
ex-husband to be in contempt.  We reverse the judgment in part, affirm the
judgment in part, and remand the case for further proceedings.

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

MICKIE R. McBEE v. J. LYNN NANCE

Court:TCA

Attorneys:  

Mickie R. McBee, pro se Appellant.

Kenneth W. Holbert, Knoxville, Tennessee, for the Appellee J. Lynn Nance.

Judge: SWINEY

First Paragraph:

Mickie R. McBee ("Plaintiff") signed a Promissory Note evidencing an indebtedness
to J. Lynn Nance ("Defendant") in the amount of $15,000.  The Promissory Note
("Note") was secured by a Deed of Trust on Plaintiff's house.  After Plaintiff
failed to make any payments on the Note, Defendant foreclosed on the house. 
Plaintiff then filed this lawsuit challenging the adequacy of the consideration
supporting the Note.  At trial, Defendant testified to various cash loans he made
to Plaintiff which he claimed constituted adequate consideration for the Note. 
Plaintiff claimed these were gifts, not loans.  The Trial Court concluded the
Note was supported by adequate consideration and dismissed the complaint. 
Plaintiff appeals.  We affirm.

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

EVELEAN MORGAN v. STATE OF TENNESSEE

Court:TCA

Attorneys: 

David H. Dunaway, LaFollette, Tennessee, for the appellant, Evelean Morgan.

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

Judge: KOCH

First Paragraph:

This appeal involves a fatal accident at the Colditz Cove State Natural Area in
Fentress County.  The mother of a woman who fell to her death from the bluff
surrounding Northrup Falls filed a claim with the Tennessee Claims Commission. 
The State of Tennessee denied liability based on (1) the recreational use defense
in Tenn. Code Ann. S 70-7-102 (1995), (2) its lack of actual or constructive
notice of a dangerous condition, and (3) its assertion that the decedent's fault
exceeded its own.  The commissioner granted the State's motion for summary
judgment.  While he did not rely on the statutory recreational use defense, the
commissioner determined that the State had no notice of a dangerous condition at
the natural area, it was not reasonably foreseeable that intoxicated persons who
were unfamiliar with the natural area would hike into the area of the falls in
the middle of the night, and the decedent's actions were the sole proximate cause
of her death.  The decedent's mother has appealed.  We have determined that the
commissioner properly granted the summary judgment because, as a matter of law,
(1) the State established a defense under Tenn. Code Ann. S 70-7-102, (2) the
decedent's estate presented no evidence that the State had actual or constructive
notice of an allegedly dangerous condition on the trail in the natural area, and
(3) the decedent's fault far exceeded whatever fault could be attributed to the
State.

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

STATE OF TENNESSEE v. LARRY K. BOMBAILEY

Court:TCCA

Attorneys:  

Steve McEwen, Mountain City, Tennessee (on appeal); Stephen M. Wallace, District
Public Defender, and Terry L. Jordan, Assistant Public Defender (at trial), for
the appellant, Larry K. Bombailey.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant
Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph E.
Perrin, Assistant District Attorney General, for the appellee, State of
Tennessee.
                      
Judge: TIPTON

First Paragraph:

The defendant, Larry K. Bombailey, pled guilty in the Sullivan County Criminal
Court to violating a motor vehicle habitual offender order, a Class E felony;
theft of property valued at $500 or less, a Class A misdemeanor; and public
intoxication, a Class C misdemeanor.  The defendant agreed to a sentence as a
Range I offender of eleven months, twenty-nine days for the theft; thirty days
for the public intoxication, to be served concurrently to the theft; and eighteen
months for violating a motor vehicle habitual offender order, to be served
consecutively to the theft.  The parties stipulated that the trial court would
determine the manner of service for the defendant's conviction for violating a
motor vehicle habitual offender order.  After a sentencing hearing, the trial
court denied the defendant's request for an alternative sentence for the motor
vehicle habitual offender violation.  The defendant appeals, claiming that the
trial court erred by denying him an alternative sentence.  We affirm the trial
court's denial of an alternative sentence but remand the case for entry of a
corrected judgment for the theft conviction.

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

 ROGER L. HICKMAN VS. STATE OF TENNESSEE
 
Court:TCCA

Attorneys: 

Doug Trant, Knoxville, Tennessee, for the appellant, Roger L. Hickman.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; and Randall E. Nichols, District Attorney General, for the
appellee, State of Tennessee

Judge: WELLES

First Paragraph:

The Defendant, Roger L. Hickman, appeals from the trial court's dismissal of his
petition for post- conviction relief, in which he alleged that, in 1986, he
entered a guilty plea to a misdemeanor without the assistance of counsel and
without waiving his right to counsel.  We affirm the dismissal of the Defendant's
post-conviction petition because it was time-barred.  Furthermore, we conclude
that the Defendant is not entitled to habeas corpus relief.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. MICHAEL D. MARTIN

Court:TCCA

Attorneys:  

George Todd East, Kingsport, Tennessee, for the appellant, Michael D. Martin.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant
Attorney General; H. Greeley Wells, Jr., District Attorney General; and B. Todd
Martin, Assistant District Attorney General, for the appellee, State of
Tennessee.                     

Judge: TIPTON

First Paragraph:

The defendant, Michael D. Martin, pled guilty in the Sullivan County Criminal
Court to violating a motor vehicle habitual offender order, a Class E felony. 
After a sentencing hearing, the trial court sentenced the defendant as a Range
II, multiple offender to four years in the Department of Correction (DOC) and
ruled that despite the general prohibition on probation contained in T.C.A. S
55-10-616(c) of the Motor Vehicle Habitual Offenders (MVHO) Act, trial courts can
consider probation for defendants who violate motor vehicle habitual offender
orders.  Nevertheless, the trial court denied the defendant's request for
probation.  The defendant appeals, claiming that his sentence is excessive and
that he should have received full probation.  We conclude that the defendant's
sentence should be reduced to three years.  We conclude that the Criminal
Sentencing Reform Act of 1989 repealed by implication the MVHO Act's prohibition
of probation in T.C.A. S 55-10-616(c).  However, we also conclude that the trial
court erred in denying any form of alternative sentencing, and we remand the case
for the entry of an appropriate sentence.

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

STATE OF TENNESSEE v. MICHAEL D. MARTIN

Court:TCCA

WADE CONCURRING

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

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