Opinion Flash

March 29, 2004
Volume 10 — Number 060

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
03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Court of Appeals
04 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


HELEN M. ASHFORD v. THE AEROSTRUCTURES CORPORATION, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Stephen W. Elliott, Nashville, Tennessee, for appellants, The
Aerostructures Corporation and Travelers Property Casualty.

William Edward Farmer, Lebanon, Tennessee, for appellee, Helen M.
Ashford.

Judge: WALLACE

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court  in
accordance with Tennessee Code Annotated section 50-6-225(e)(3) for
hearing and reporting to the Supreme Court of findings of fact and
conclusions of law.  The trial court found that employee had sustained
a permanent partial disability of 90% to the body as a whole as a
result of the gradual injury she sustained during her employment and
that the events on December 7, 1999, aggravated a preexisting lung
condition.  The trial court awarded workers' compensation benefits in
the lump sum amount of $188,632.80, along with certain discretionary
costs.  The trial court also allowed employer a setoff for medical
benefits in the amount of $3,036.37 but disallowed setoff for
disability benefits.  We find no error and affirm the judgment of the
trial court.

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

TONY BILBREY v. KENNETH O. LESTER CO., INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

John R. Lewis, Nashville, Tennessee, for Appellant, Kenneth O. Lester
Co., Inc.

Anthony E. Hagan, Lebanon, Tennessee, for Appellee, Tony Bilbrey.

Judge: TURNBULL

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. 50-6-225(e)(3) to hear and report to the Supreme
Court Findings of Fact and Conclusions of Law.  The trial court found
that the employer had made voluntary medical payments within one year
of the filing of suit; that the statute of limitations had not
expired; and that the plaintiff suffered a work related back injury. 
The trial court fixed plaintiff's disability at 22-1/2 percent to the
body as a whole.  We affirm the judgment of the trial court.

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

ROBERT W. KELLEY v. LUMBERMENS MUTUAL CASUALTY COMPANY AND WILSON
SPORTING GOODS CO.

Court:TSC - Workers Comp Panel

Attorneys:                          

Rick L. Moore, Moore & Hedges, Tullahoma, Tennessee, for the
Appellant, Robert W. Kelley.

Edward A. Hadley, North, Pursell, Ramos and Jameson, PLC, Nashville,
Tennessee, for the Appellees, Lumbermens Mutual Casualty Company and
Wilson Sporting Goods, Co.

Judge: PEOPLES

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) for hearing and reporting of findings of fact and
conclusions of law.  The trial court found the claim to be barred by
the statute of limitations.  We affirm.

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

EVELYN MARIE ABERCROMBIE v. STEPHEN EUGENE ABERCROMBIE

Court:TCA

Attorneys:                          

Selma Cash Paty, Chattanooga, Tennessee, for the appellant, Stephen
Eugene Abercrombie.

Marvin Berke, Chattanooga, Tennessee, for the appellee, Evelyn Marie
Abercrombie.

Judge: SUSANO

First Paragraph:

Stephen Eugene Abercrombie ("Father"), the custodian of the parties'
two minor children, filed a complaint against his former wife, Evelyn
Marie Abercrombie  ("Mother"), seeking to modify the trial court's
January 19, 2000, order awarding him custody.  That order had directed
that, if Father decided to enroll the children in private school,
Mother would pay one-half of the children's tuition and other private
school expenses.  The same order, however, recited that Mother was not
required to pay any general child support to Father.  In his
post-divorce complaint, Father asked the trial court to set a sum
certain to be paid by Mother to Father as general child support under
the Child Support Guidelines ("the Guidelines").  The trial court
declined to modify its previous order and dismissed Father's complaint
"on the ground[] that the guidelines currently do not show any . . .
child support due."  Father appeals, arguing that Mother should be
required to pay a set amount of general child support in addition to
her obligation to pay one-half of the children's private school
tuition and related expenses.  We reverse and remand with
instructions.

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

DONALD CAMPBELL, ET AL. v. BEDFORD COUNTY REGIONAL PLANNING COMMISSION

Court:TCA

Attorneys:                          

Andrew C. Rambo, Shelbyville, Tennessee, for the appellant Donald W.
Campbell Jr., and wife Melissa K. Campbell.

Ginger Bobo Shofner and John T. Bobo, for the appellee Bedford County
Regional Planning Commission.

Judge: WEATHERFORD

First Paragraph:

In this declaratory judgment action, plaintiffs appeal the decision of
the trial court finding that they were not operating an auto repair
business on the property in question prior to the adoption of a zoning
resolution of Bedford County; and were therefore not entitled relief
pursuant to the "grandfather clause" exceptions in Tennessee Code
Annotated S 13-7-208(b)-c).  The plaintiffs did not seek judicial
review of the Board of Zoning Appeals decision by filing a Petition
for Writ of Certiorari pursuant to Tenn. Code Ann. S 27-9-102 within
60 days after the Board's action.  We find that this was also the
applicable period of limitation for filing the declaratory judgment
action which was not filed until almost 10 months after the Board's
decision.  We find that this case is therefore time barred and the
trial court did not have subject matter jurisdiction. We affirm the
decision of the trial court for the reasons stated herein

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

DEBORAH L. JORDAN v. WALTER B. JORDAN

Court:TCA

Attorneys:                          

Ronald J. Berke, Chattanooga, Tennessee, for the appellant, Deborah L.
Jordan.

David Haines Rotroff, Chattanooga, Tennessee, for the appellee, Walter
B. Jordan.

Judge: SUSANO

First Paragraph:

This appeal presents a question of first impression.  Deborah L.
Jordan ("Wife") filed a proposed "qualified" domestic relations order
("QDRO") with the trial court clerk more than 10 years after her
divorce from Walter B. Jordan ("Husband").  The trial court entered
the proposed QDRO.   Husband filed a motion for relief from judgment,
arguing that the entry of the  proposed QDRO was barred because Wife
failed to act "within ten (10) years of the entry of [the] judgment
contained in the Final Decree of Divorce," citing Tenn. Code Ann. S
28-3-110 (2000).  The trial court granted Husband's motion and set
aside the previously-entered QDRO.  Wife appeals, arguing that the
ten- year statute of limitations does not apply to the filing of a
proposed QDRO because, according to her, such a filing is not an
action to enforce a judgment. We agree with Wife's position. 
Accordingly, we reverse the judgment of the trial court.

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

KOKOMO GRAIN CO., INC. v. RANDY COLLINS, ET AL.

Court:TCA

Attorneys:                          

Jerre Michael Hood, Winchester, Tennessee, for the appellants Randy
Collins and Jerre M. Hood.

Stephen M. Worsham, Tullahoma, Tennessee, for the appellee, Kokomo
Grain Co., Inc.

Judge: CLEMENT
 
First Paragraph:

This is a dispute between the former tenant of a grain storage
facility and the new owners of the premises who acquired the property
at a foreclosure sale.  The issues in dispute are whether the tenant
was a bailor or a holdover tenant following foreclosure and the fair
market storage or rental value of the premises.  The trial judge ruled
that the former tenant was a holdover tenant and that the previous
rental rate was the fair market rental value for the holdover period. 
We affirm.

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

BELINDA KULLMAN RHOADS v. CHRISTOPHER KULLMAN, SR.
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Kirk Vandivort, Charlotte, Tennessee, for the appellant Belinda
Kullman Rhoads.

Jennifer Davis Roberts, Dickson, Tennessee, for the appellee
Christopher Kullman, Sr.

Judge: WEATHERFORD

First Paragraph:

In this custody case, the mother appeals the denial of her Tenn. R.
Civ. P. 60.02  Motion for Relief from Judgment and Motion for New
Trial.  The mother's trial counsel withdrew on the day of the final
hearing and the mother failed to appear at the final hearing.  After
hearing testimony from the father, the trial court found a significant
and material change of circumstances had occurred and that it was in
the best interest of the parties' minor children for custody to be
changed to the father.  The mother contends that her failure to appear
at the custody hearing was due to excusable neglect or inadvertence
because her attorney had informed her "that the matter should be
continued to allow her to obtain new counsel for further litigation in
this matter."  For the reasons set out in this opinion, we affirm the
judgment of the trial court.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/rhoadsbelindak_dis.wpd

STATE OF TENNESSEE v. DANIEL ANDREW DECKER
*CORRECTED OPINION*
WITH CONCURRING OPINION

Court:TCCA

Attorneys:                          

Ardena J. Garth, District Public Defender, and Karla G. Gothard,
Assistant District Public Defender, for the appellant, Daniel Andrew
Decker.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; and Barry Steelman, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Daniel Andrew Decker, appeals the trial court's order
removing Assistant District Public Defender Karla Gothard as his
counsel.  Because the trial court did not abuse its discretionary
authority, the judgment is affirmed.

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

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

KENNETH HERRING v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Stanley K. Pierchoski, Lawrenceburg, Tennessee, for the Appellant,
Kenneth Herring.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General; T.
Michael Bottoms, District Attorney General; and J. Douglas Dicus,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Kenneth Herring, appeals as of right from the judgment
of the Wayne County Circuit Court denying his petition for
post-conviction relief.  Herring was convicted in 1999 of two counts
of aggravated sexual battery.  On appeal, Herring first argues that
his right to due process was violated when the trial court failed to
exclude a confession obtained as a result of a "coercive and
deceitful" environment during interrogation and that trial counsel was
ineffective for failing to seek suppression on this ground.  He next
contends that trial counsel was ineffective for failing to file a
motion to sever the seven indicted offenses, which resulted in his two
convictions.  After review of the record, dismissal of the petition is
affirmed.

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

STATE OF TENNESSEE v. FREDERICK T. POINTER

Court:TCCA

Attorneys:                          

John H. Henderson, District Public Defender; and Eugene J. Honea,
Assistant Public Defender, for the appellant, Frederick T. Pointer.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Sharon E. Guffee, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant pled guilty in the Williamson County Circuit Court to
sexual battery by an authority figure and incest, Class C felonies. 
After a sentencing hearing, the trial court sentenced him as a Range
I, standard offender to concurrent sentences of four years for each
conviction to be served as eleven months, twenty-nine days at
seventy-five percent in the county jail and the remainder on
supervised probation.  The defendant appeals, claiming that the trial
court erred by denying his request for full probation.  We affirm the
judgments of the trial court.

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

ANTHONY REID v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Larry D. Wright, Cleveland, Tennessee, for the Petitioner, Anthony
Reid.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Brent C. Cherry, Assistant Attorney General; Jerry
N. Estes, District Attorney General; and Stephen D. Crump, Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Bradley County jury convicted the Petitioner, Anthony Reid, of first
degree felony murder, especially aggravated robbery, aggravated
robbery, attempted aggravated robbery and evading arrest.  The trial
court imposed an effective sentence of life plus twenty-five years. 
On direct appeal, this Court affirmed the convictions, and the
Tennessee Supreme Court denied the Petitioner's application for
permission to appeal.  The Petitioner then sought post-conviction
relief in the trial court, alleging that he was denied effective
assistance of counsel on direct appeal because his counsel failed to
raise the issue of the sufficiency of the convicting evidence. 
Following a hearing, the post-conviction court dismissed the petition.
 In this appeal, the Petitioner contends that it was "per se"
ineffective assistance of counsel for trial counsel to fail to raise
the issue of the sufficiency of the convicting evidence on direct
appeal.  Finding no error, we affirm the trial court's dismissal of
the petition.

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

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