Opinion Flash

June 10, 2004
Volume 10 — Number 112

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
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
01 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


CATINA L. FASON v. SPHERION

Court:TSC - Workers Comp Panel

Attorneys:                          

Joshua M. Booth, Knoxville, Tennessee, for the appellant, Spherion.

Christopher L. Taylor, Memphis, Tennessee, for the appellee, Catina L.
Fason.

Judge: HOLDER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel 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.  In this
appeal, Employer argues that the trial court's finding that Employee's
injury was causally related to her October 20, 2000 accident is not
supported by a preponderance of the evidence.  We conclude that the
evidence fails to preponderate against the trial court's award, and
therefore, we affirm the judgment of the trial court.

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

SUSAN J. SMITH v. S-R OF TENNESSEE

Court:TSC - Workers Comp Panel

Attorneys:                          

William B. Walk, Jr., Memphis, Tennessee, for the appellant, S-R of
Tennessee.

J. Thomas Caldwell, Ripley, Tennessee, for the appellee, Susan J.
Smith.

Judge: HOLDER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel 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.  In this
appeal, Employer argues that the trial court's award of benefits based
on 55% permanent partial disability to the right upper extremity and
45% permanent partial disability to the left upper extremity is
excessive and is not supported by a preponderance of the evidence.  We
conclude that the evidence fails to preponderate against the trial
court's award, and therefore, we affirm the judgment of the trial
court.

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

JOANN MALLINAK GLASSELL v. RICHARD LEE GLASSELL

Court:TCA

Attorneys:                          

Appellant James M. Crain, Attorney, Knoxville, Tennessee.

Kimberly R. Taylor, Knoxville, Tennessee, for the Appellee Richard Lee
Glassell.

Judge: SWINEY

First Paragraph:

Joann Mallinak Glassell ("Plaintiff") was represented by attorney
James M. Crain ("Crain") throughout divorce proceedings she filed
against Richard Lee Glassell ("Defendant").  After a trial, the Trial
Court ordered the equity from the sale of the marital residence to be
divided equally between the parties.  The Trial Court then applied
various off-sets to the amount awarded Plaintiff, thereby reducing the
net amount of Plaintiff's recovery to $0.00.  The Trial Court
concluded that Crain's attorney's fee lien was lower in priority to
the various off-sets.  Crain appeals, claiming the Trial Court
improperly subordinated his attorney's fee lien to the off-sets and
that his lien should be given priority.  We modify the judgment of the
Trial Court and affirm as modified.

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

JEFFREY P. HOPMAYER v. ALADDIN INDUSTRIES, LLC 

Court:TCA

Attorneys:                          

William N. Ozier, Nashville, Tennessee, for the appellant, Aladdin
Industries, LLC.

George H. Nolan and Jonathan D. Rose, Nashville, Tennessee, for the
appellee, Jeffrey S. Hopmayer.

Judge: FARMER

First Paragraph:

Plaintiff filed suit alleging Defendant breached its employment
contract by failing to provide Plaintiff with phantom units when
Plaintiff was terminated without cause.  Defendant denied that
Plaintiff's phantom units had vested, and therefore, Plaintiff was not
entitled to any phantom units at the time of his termination.  The
trial court found that the letter memorializing the Defendant's offer
of employment was sufficiently definite and met the other requirements
for a valid contract, including mutual assent.  The trial court also
found that the terms of the employment contract did not include any
vesting requirements for Plaintiff's phantom units.  As a result, the
trial court found that Defendant had breached its employment contract
and awarded Plaintiff the value of his phantom units contained in the
employment agreement plus pre-judgment interest dating back to
Plaintiff's termination.  Defendant appeals. We affirm.

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

IN RE: B. B. & T. S. B.
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

David Kozlowski, Columbia, Tennessee, for the appellant, S.L.

Paul G. Summers, Attorney General and Reporter; Dianne Stamey Dycus,
Deputy Attorney General, for the appellee, State of Tennessee,
Department of Children's Services.

Judge: COTTRELL

First Paragraph:

This appeal involves a petition filed by the Department of Children's
Services to terminate the parental rights of Mother to two of her
minor children.  The trial court granted the petition and Mother
appeals the decision.  Because we find there was not clear and
convincing evidence of a ground for termination, we reverse the
judgment.

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

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/inrebbtsb_con.wpd

STATE  RESOURCES CORPORATION v. THOMAS E. TALLEY

Court:TCA

Attorneys:                          

Sam J. Watridge of Humboldt for Appellant, Thomas E. Tally

Gregory D. Smith of Clarksville and Stephen L. Hughes of Milan for
Appellee, State Resources Corporation

Judge: CRAWFORD

First Paragraph:

Appellee purchased Appellant's overdue Note from FDIC, who was
receiver of The Bank of Alamo. Appellee sought to enforce the Note and
trial court entered Judgment for Appellee.  Appellant contends that
Appellee had no right to enforce the Note because Appellee was not a
holder in due course.  Since no defenses to enforcement were raised by
Appellant, the question of whether Appellee is a holder in due course
is irrelevant.  We affirm.

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

STATE OF TENNESSEE v. JEFF WILKES

Court:TCCA

Attorneys:                          

Noel H. Riley, II, Dyersburg, Tennessee, for the appellant, Jeff
Wilkes.

Paul G. Summers, Attorney General and Reporter; Michelle R. Chapman,
Assistant Attorney General; C. Phillips Bivens, District Attorney
General; and Karen Waddell Burns, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Dyer County Circuit Court jury convicted the defendant, Jeff Wilkes,
of robbery, a Class C felony, and the trial court sentenced him as a
Range I, standard offender to six years in the Department of
Correction (DOC).  The defendant appeals, claiming (1) that the
evidence is insufficient to support his conviction and (2) that his
sentence is excessive.  We affirm the judgment of the trial court.

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

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