Opinion Flash

August 18, 2004
Volume 10 — Number 159

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
08 New Opinion(s) from the Tennessee Court of Appeals
00 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


IN THE MATTER OF:  C.T.S.

Court:TCA

Attorneys:                          

Cyburn Hillard Sullivan, III and Richard D. Cartwright, Covington,
Tennessee, for the appellants, V.A.T. and W.N.S. a/k/a N.W.S.

Paul G. Summers, Attorney General and Reporter, and Elizabeth C.
Driver, Assistant Attorney General, for the appellee, State of
Tennessee, Department of Children's Services.

Judge: FARMER

First Paragraph:

The trial court terminated Father's parental rights based on Tenn.
Code Ann. S 36-1-113(g)(6) and Mother's parental rights based on Tenn.
Code Ann. S 36-1-113(g)(1).  Mother and Father appeal.  We affirm.

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

JORDAN ASHTON DANELZ v. JOHN GAYDEN

Court:TCA

Attorneys:                          

Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the
appellant, Jordan Ashton Danelz.

Andrew C. Clarke, Memphis, Tennessee, for the appellee, John Gayden.

Judge: FARMER

First Paragraph:

Mother and husband divorced.  In her complaint for divorce, mother
stated that her son was born of their marriage.  Husband paid son's
child support.  Upon reaching the age of majority, son filed a
paternity action against alleged father.  Son relied upon mother's
affidavit as proof of requisite sexual contact.  The alleged father
filed a motion to dismiss for failure to state a claim arguing mother
was judicially estopped from making the statements contained in her
affidavit in light of her statements made in her divorce complaint. 
The juvenile court granted the motion to dismiss.  For the following
reasons, we reverse the decision of the trial court and remand for
proceedings consistent with this opinion.

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

TAMI SPRINTZ HALL ET AL v. RICHARD HAMBLEN, ET AL.

Court:TCA

Attorneys:                          

Robert J. Notestine III, Nashville, Tennessee, for the appellant,
Richard Hamblen d/b/a Contractor's Mirror & Glass.

Jill A. Hanson, Nashville, Tennessee, for the appellees, Tami Sprintz
Hall and Jeffrey Hall.

Judge: COTTRELL

First Paragraph:

Homeowners of a new residence brought an action against a
subcontractor for breach of contract, negligent misrepresentation,
professional negligence, and violation of the Tennessee Consumer
Protection Act.  The trial court found that there was a breach of
contract and awarded attorney's fees under the Tennessee Consumer
Protection Act.  Subcontractor appealed insisting that because no
violation of the TCPA was found, the trial court lacked a basis to
award attorney's fees.  We agree and reverse the judgment of the trial
court with respect to the award of attorney's fees.

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

TERESA A. MARTIN, ET AL. v. JOHNNY L. DRINNON

Court:TCA

Attorneys:                          

Phillip L. Boyd, Rogersville, Tennessee, for the appellants, Teresa A.
Martin and Paul Martin.

Jack M. Vaughn and Daniel D. Coughlin, Kingsport, Tennessee, for the
appellee, Johnny L. Drinnon.

Judge: SUSANO

First Paragraph:

This litigation arises out of a two-vehicle collision in Hawkins
County.  Teresa A. Martin ("the plaintiff")  and her husband  sued the
driver of the other vehicle, Johnny L. Drinnon ("the defendant"),
seeking damages and charging him with common law and statutory acts of
negligence.  The defendant answered and filed a counterclaim.  The
jury returned a verdict, finding the parties equally at fault. 
Judgment was entered on the jury's verdict and the trial court denied
the plaintiff's motion for a new trial.  The plaintiff appeals,
raising, in effect, three issues.  We vacate the trial court's
judgment and remand for further proceedings.

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

In the matter of:  M.E., M.E., R.B., M.B., S.B. 

Court:TCA

Attorneys:                          

Thomas H. Miller, Franklin, Tennessee, for the appellant, D.B., the
mother.

Merrilyn Feirman, Nashville, Tennessee, for the appellant, L.B., the
father.

Paul G. Summers, Attorney General and Reporter;  Dianne Stamey Dycus,
Deputy Attorney General, Elizabeth C. Driver, and Patricia Arnold
Mayes, for the appellee, Tennessee Department of Children's Services.

Judge: CLEMENT

First Paragraph:

Mother and father of three children appeal termination of their
respective parental rights.  Mother appeals arguing that the trial
court erred in finding persistence of conditions sufficient to
terminate her rights.  We reverse, finding that the Department failed
to make reasonable efforts to reunite Mother with her children. 
Father appeals alleging that he was denied counsel and/or the
effective assistance of counsel.  The trial court appointed counsel to
represent Father but thereafter relieved appointed counsel without
stating a basis and did not appoint substitute counsel.  Father
retained an attorney on the eve of trial but this retained attorney
only appeared on four of the seven days of trial and was absent during
significant portions of the days he attended.  Since the trial court
initially found that Father was entitled to appointed counsel and
never made a finding that Father was no longer entitled to appointed
counsel or that he had waived the right to counsel, we find that the
trial court erred when it failed to appoint substitute counsel. 
Father attempted to retain counsel; however, retained counsel's
repeated failures to attend the hearings was equivalent to Father
having no counsel.  Thus, Father was deprived of the right to counsel.
 Accordingly, we vacate the judgment terminating Father's parental
rights.

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

SUSAN PYKOSH, ET AL. v. STEPHANIE A. EARPS, ET AL.

Court:TCA

Attorneys:                          

Gary M. Kellar, Brentwood, Tennessee, for the appellants, Stephanie A.
Earps, Clarence Earps, and Colleen Earps.

Frank Lannom, Lebanon, Tennessee, for the appellees, Susan Pykosh and
William Pykosh.

Judge: KOCH

First Paragraph:

This extraordinary appeal involves a Tenn. R. Civ. P. 35.01 request
for a physical examination of an opposing party.  Following a
vehicular collision in Wilson County, one of the drivers and her
passenger filed suit in the Circuit Court for Wilson County seeking
damages from the driver and owners of the other vehicle.  Issues
involving the extent and permanency of the plaintiff driver's injuries
caused by this collision arose after the plaintiff driver was injured
in another accident, and the defendants requested permission for their
medical expert to examine the plaintiff driver.  The trial court
denied the request, and the defendants filed a Tenn. R. App. P. 10
application with this court.  We have determined that, under the facts
of this case, the trial court's denial of the defendants' Tenn. R.
Civ. P. 35.01 motion departs from the accepted and usual course of
judicial proceedings of this sort.  Therefore, we grant the Tenn. R.
App. P. 10 application and reverse the order denying the Tenn. R. Civ.
P. 35.01 motion.

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

IN THE MATTER OF: S.R.C. 

Court:TCA

Attorneys:                          

Jason C. Scott, Trenton, Tennessee, for the Appellant, M.C.

Paul G. Summers, Attorney General and Reporter, and Juan G.
Villasenor, Assistant Attorney General, for the Appellee, State of
Tennessee, Department of Children's Services.

Judge: FARMER

First Paragraph:

The trial court terminated Mother's parental rights.  We affirm.

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

WILLIAMS HOLDING COMPANY d/b/a RALEIGH HILLS APARTMENTS v. SHARON T.
WILLIS, ET AL.

Court:TCA

Attorneys:                          

Bruce D. Brooke, Memphis, Tennessee, for the appellant, Joe Leavy.

James W. Cook, Memphis, Tennessee, for the appellee, Williams Holding
Company, d/b/a Raleigh Hills Apartments.

Judge: FARMER

First Paragraph:

Plaintiff, owner of an apartment complex, filed suit seeking damages
caused by a fire in an apartment occupied by Defendants.  The parties
consented to arbitration.  The parties stipulated to the damages in
the amount of $73,414.64.  Further, it was stipulated that Plaintiff
settled with two of the three Defendants whereby the two Defendants
payed 50%, $36,707.32, of the property damage.  Subsequently, the
arbiter ruled that the remaining Defendant was 100% at fault and
liable for the total amount of damages, $73,414.64.  Plaintiff filed a
motion with the trial court to confirm the arbiter's award.  In
response, the remaining Defendant filed a motion to modify, correct,
and/or to vacate the arbitration award and a motion for credit, set
off and reduction of award.  The trial court confirmed the arbiter's
award, thereby denying Defendant's motions.  Defendant appeals.  For
the following reasons, we reverse the decision of the trial court and
modify the arbitration award.

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

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