Opinion FlashOctober 18, 2004Volume 10 — Number 201 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel JUDY GAY TODD v. CONTINENTAL CASUALTY COMPANY Court:TSC - Workers Comp Panel Attorneys: P. Allen Phillips, Jackson, Tennessee, for the appellant, Continental Casualty Company. Art D. Wells, Jackson, Tennessee, for the appellee, Judy Gay Todd. Judge: BUTLER 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 determined that the plaintiff suffered a 69% vocational impairment to the body as a whole. The defendant insurer asserts that: 1) that the plaintiff had a meaningful return to work and that the 2.5 times caps should apply; and 2) that if the caps do not apply, the award was excessive and not supported by the evidence. For the reasons set forth below, we affirm the judgement of the trial court. http://www.tba.org/tba_files/TSC_WCP/toddjudyg.wpd JOHN CARTER d/b/a CARTER REAL ESTATE v. MARIA PATRICK Court:TCA Attorneys: Francis Xavier Santore, for the Appellant, Maria Patrick William S. Nunnally, for the Appellee, John Carter d/b/a Carter Real Estate Judge: LEE First Paragraph: This is a suit brought by a real estate broker against a client for a commission which he claimed she owed him under a listing agreement to sell real property belonging to her. Client alleged that, in order to induce her to enter into the listing agreement, the broker had promised to make mortgage payments due on her property, that broker subsequently discontinued making these payments and that, as a result, her property was placed at risk of foreclosure and she was thereby compelled to sell the property at a price lower than the price set forth in the listing agreement with broker. Client alleged that, in consequence of broker's failure to continue making the mortgage payments he was in breach of contract and guilty of fraud. Client further alleged that broker breached their agreement by failing to properly maintain the property. The trial court held that the broker did not fail to meet his obligations under the parties' agreement with respect to either the payment of the landowner's mortgage or the maintenance of the subject property and was not in breach of their agreement or guilty of fraud. Accordingly, the trial court awarded broker a commission in the amount of $13,600.00, along with pre-judgment interest in the amount of $1,497.86. We affirm the judgment of the trial court and remand for collection of costs. http://www.tba.org/tba_files/TCA/carterjohn.wpd CHRISTOPHER GREY CUMMINGS v. PEPPER LYNNE WERNER CUMMINGS Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for the appellant, Pepper Lynne Werner Cummings. Robert Todd Jackson, Virginia Lee Story, Nashville, Tennessee, for the appellee, Christopher Grey Cummings. Judge: COTTRELL First Paragraph: The trial court granted the husband a divorce on the ground of the wife's adultery and made various rulings regarding the parenting arrangement for the parties' one year old son, child support, property division, and award of attorney's fees. The parties have appealed most of the those rulings. Although we affirm the equal sharing of residential placement, we find the six month alternating schedule is not in this child's best interests. We also find other parts of the plan must be vacated in view of recent holdings by the Tennessee Supreme Court. Therefore, we vacate the parenting plan and remand for entry of a new permanent parenting plan addressing the residential schedule, the designation of primary residential parent, allocation of decision-making authority, and child support. In the interim, we reinstate the trial court's pendente lite arrangement, as modified, and establish interim support. We affirm the division of property, modify the allocation of debt, and modify the award of attorney's fees. http://www.tba.org/tba_files/TCA/cummingschrisg.wpd MARILYN JANE SCHULZ GORDON v. DAVID LOUIS GORDON
Court:TCA
Attorneys:
Kevin W. Shepherd, Maryville, Tennessee, for the Appellant David Louis
Gordon.
C. Dwaine Evans, Morristown, Tennessee, for the Appellee Marilyn Jane
Schulz Gordon.
Judge: SWINEY
First Paragraph:
Marilyn Schulz Gordon ("Wife") filed for divorce after thirteen and
one-half years of marriage to David Louis Gordon ("Husband"). Wife
works as a physician and earns a substantial income. Husband is a
photographer but was voluntarily unemployed throughout the entire
marriage. The Trial Court emphasized several factors when making a
distribution of the marital property. In particular, the Trial Court
discussed: Husband's minimal contribution to the acquisition of
assets; Husband's minimal to nonexistent contribution as a homemaker,
and; Husband's significant dissipation of the marital assets. The
Trial Court divided the marital property in a manner which resulted in
Wife being awarded almost three-fourths of the marital property as
valued by the Trial Court. Husband appeals claiming the Trial Court's
division of the marital property was inequitable. We affirm.
http://www.tba.org/tba_files/TCA/gordonmarilyn.wpd
LINDA C. GORRELL v. TYREE B. HARRIS, IV Court:TCA Attorneys: George Ellis Copple, Jr., Nashville, Tennessee, for the appellant, Linda C. Gorrell. Alfred H. Knight, Katherine A. Brown, William R. Willis, Jr. and Alan Dale Johnson, Nashville, Tennessee, for the appellee, Tyree B. Harris, IV. Judge: CAIN First Paragraph: This is a child support modification case. The child involved was born out of wedlock to the parties on June 13, 1996. Mother brought suit in the Juvenile court of Davidson County in July of 1996 seeking to establish paternity of the father and to establish child support. Both parties were represented by counsel, and on May 30, 1997, the juvenile court entered an Order of Compromise and Dismissal. The parties settled the case by Settlement Agreement under which Mr. Harris agreed to pay to Ms. Clark (now Gorrell) the sum of $20,000 cash for any and all claims against Mr. Harris through June 30 of 1998, including her child support claims as to the minor child. From June 13, 1998 forward, Mr. Harris agreed to pay $12,000 per year as child support together with medical insurance until the child reached age 18. On February 23, 2001, Mother filed a Petition to Modify the child support in order to bring it in compliance with Child Support Guidelines. The trial court held the Settlement Agreement to be void and set prospective child support but declined to either award retroactive child support or to order an upward deviation in child support because of failure of the father to visit the child. We affirm the ruling of the trial court that the Settlement Agreement is void, modify prospective child support, reverse the trial court on retroactive child support, deny an upward deviation as to retroactive support, but grant such deviation as to future support. The case is remanded for further proceedings. http://www.tba.org/tba_files/TCA/gorrelllindac.wpd KATHY HILL v. MELVIN SNEED d/b/a THE MOVIE STATION, INC.
Court:TCA
Attorneys:
Carol Ann Barron, Dayton, Tennessee, for the Appellant Kathy Hill.
Jack W. Piper, Jr., Knoxville, Tennessee, for the Appellee Melvin
Sneed d/b/a The Movie Station, Inc.
Judge: SWINEY
First Paragraph:
Kathy Hill ("Plaintiff") filed this lawsuit after she slipped and fell
while cleaning a tanning bed at Defendant's business. Plaintiff
claimed she was standing on a rug and the rug slipped out from under
her feet, causing her to fall onto the tanning bed. Defendant filed a
motion for summary judgment claiming Plaintiff would be unable to
prove an essential element of her negligence claim. The Trial Court
agreed and granted Defendant's motion for summary judgment. We
conclude that Defendant failed to negate an essential element of
Plaintiff's negligence claim and, therefore, Plaintiff's burden to
offer proof to establish the existence of a genuine issue of material
fact or the existence of the essential elements of her claim never was
triggered. Accordingly, we reverse the judgment of the Trial Court.
http://www.tba.org/tba_files/TCA/hillkathy.wpd
RICHARD LYNN NORTON v. STATE OF TENNESSEE
Court:TCA
Attorneys:
Richard Lynn Norton, Clifton, Tennessee, pro se Appellant.
Paul G. Summers, Attorney General & Reporter, and John H. Bledsoe,
Assistant Attorney General, for the Appellee, State of Tennessee.
Judge: SWINEY
First Paragraph:
Richard Lynn Norton ("Mr. Norton") is incarcerated pursuant to a
conviction for a drug offense. Mr. Norton seeks a writ of mandamus to
obtain his release and to arrest and prosecute the trial judge and the
prosecuting attorney in his criminal case. The Trial Court held that
the writ of mandamus is not available to redress Mr. Norton's
grievances. We affirm.
http://www.tba.org/tba_files/TCA/nortonrichardl.wpd
D.E. RYAN v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL. Court:TCA Attorneys: J. Brooks Fox and John L. Kennedy, Nashville, Tennessee, for the Appellant, The Metropolitan Government of Nashville and Davidson County, et al. George A. Dean, Nashville, Tennessee, for the Appellee, D.E. Ryan. Judge: LEE First Paragraph: This is a zoning case wherein the Metropolitan Government of Nashville and Davidson County acting by and through the Metropolitan Board of Zoning Appeals contends that the trial court erred in ruling that the Appellant was without jurisdiction to rescind its prior decisions approving a property owner's application to reestablish a nonconforming use of certain property and associated site plan after expiration of the time allowed for appealing such decisions. The Appellant further argues that the trial court erred in holding that the property owner's right to utilize such property is protected under Tenn. Code Ann. S 13-7-208. We affirm in part, reverse in part and remand. http://www.tba.org/tba_files/TCA/ryande.wpd MARY JANE WOODALL v. HARRY MICHAEL WOODALL Court:TCA Attorneys: Mark Stewart, David Stewart, Winchester, Tennessee, for the appellant, Harry Michael Woodall. Joseph E. Ford, Winchester, Tennessee, for the appellee, Mary Jane Woodall. Judge: COTTRELL First Paragraph: In this appeal, a former husband seeks to be relieved of his obligation to pay alimony in futuro to his former wife. In support of his request, the former husband asserts there have been various changes of circumstances, including his former wife's cohabitation with another man. Although the trial court reduced the monthly support payment, it denied the former husband's petition to be relieved entirely from his alimony obligation, finding that his former wife was not living with a third person at the time of trial, that little support from the third party was involved, and that no other material change in circumstances had occurred to warrant modification of the initial award of alimony. We affirm the denial of the husband's petition to be relieved of his alimony obligation. http://www.tba.org/tba_files/TCA/woodallmaryj.wpd STATE OF TENNESSEE v. RANDY PRUITT and ANET AMERICA Court:TCCA Attorneys: P. Richard Talley, Dandridge, Tennessee, for the appellants, Randy Pruitt and Anet America. Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendants, who are brother and sister, were each convicted by a Cocke County jury of assault, a Class A misdemeanor, and sentenced by the trial court to serve 11 months, 29 days on supervised probation. Both defendants challenge the sufficiency of the evidence on appeal. We conclude that sufficient evidence was presented from which a rational trier of fact could reasonably find both defendants guilty of assault. Accordingly, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/pruittrandy.wpd STATE OF TENNESSEE v. PATRICIA WHITE and CRAIG WHITE WITH DISSENTING OPINION Court:TCCA Attorneys: Timothy Crocker, Milan, Tennessee (at trial); and Daniel J. Taylor, Jackson, Tennessee (on appeal), for the Appellees, Patricia White and Craig White. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and John C. Zimmerman, District Attorney General, Pro Tem, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: A Gibson County jury convicted Patricia White of theft of property valued over $10,000, a Class C felony; the trial court sentenced her to a term of four years, suspended, and fifteen years' probation. The same jury also convicted Patricia White's husband, Craig White, of facilitation of theft of property valued over $10,000; the trial court sentenced him to a term of two years suspended, and two years' probation. As a condition of probation, the trial court held the couple jointly liable for $124,000 in restitution. On appeal the defendants contend that the trial evidence is insufficient to support their convictions. They also contest the amount of restitution they have been ordered to pay. After an exhaustive review of the record, the briefs of the parties, and applicable law, we conclude that the evidence is sufficient to support Patricia White's conviction, but we are unable to reach the same conclusion for Craig White's facilitation conviction. Accordingly, we affirm Patricia White's conviction; the conviction of Craig White is reversed, and the charge is dismissed. Finding that the trial court made inadequate findings in assessing restitution, we further remand that issue for determination based on the required statutory findings. Finally, we take notice that based on three statutory enhancement factors (none of which involved prior criminal history), the trial court set the length of Patricia White's sentence at one year above the presumptive minimum sentence of three years; pursuant to Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), we modify her sentence to three years but leave undisturbed the length and terms of her probation. http://www.tba.org/tba_files/TCCA/whitepatricia_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/whitepatricia_dis.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! 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