8th Annual Labor & Employment Law Forum
April 7 - Nashville

The traditional CLE format will be pushed beyond the norm with a pair
of intriguing and informative panels. These panels will offer labor
and employment practitioners an invaluable opportunity to gain insight
that will directly and immediately improved their practice
Additionally, the forum will include an update on the new developments
at the National Labor Relations Board and recent case law involving
EEO issues.

Today's Opinions: January 28, 2005
Volume 11 — 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.
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
13 New Opinion(s) from the Tennessee Court of Appeals
09 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

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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


KENNETH E. BRASWELL v. LOWE'S HOME CENTERS, INC.

Court:TCA

Attorneys:                          

David S. Gardner, Nashville, Tennessee, for the appellant, Kenneth E.
Braswell.

Reid D. Leitner, Nashville, Tennessee, for the appellee, Lowe's Home
Centers, Inc.

Judge: KOCH

First Paragraph:

This appeal involves a customer who tripped over a floor mat while
waiting in a cashier's line at a home improvement store.  The customer
filed suit against the store in the Circuit Court for Davidson County,
and a jury returned a verdict for the store after determining that the
customer was sixty-five percent at fault for his injuries.  The
customer asserts on this appeal that the evidence does not support the
jury's verdict.  We affirm the judgment.

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

STEVIE CALDWELL v. BRIDGETT COLLETTE CALDWELL

Court:TCA

Attorneys:                          

Stevie Wilson Caldwell, Pikeville, Tennessee, Pro Se.

Judge: COTTRELL

First Paragraph:

This appeal involves a lawsuit brought by a prison inmate against his
former wife for defamation and failure to properly care for their
child including the failure to facilitate visitation.  The trial court
dismissed the complaint after determining that the inmate's slander
claim was barred by the statute of limitations and that the remainder
of the complaint failed to state a claim for which relief could be
granted.  We affirm the judgment.

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

CANNON COUNTY BOARD OF EDUCATION v. GOLDY WADE, ET AL.

Court:TCA

Attorneys:                          

Robert G. Wheeler, Jr., and Samuel L. Jackson, Nashville, Tennessee,
for the appellant, Cannon County Board of Education.

Richard L. Colbert and Marty S. Turner, Nashville, Tennessee, for the
appellees, Goldy Wade and Cannon County Education Association.

Judge: CLEMENT

First Paragraph:

School Board filed a Declaratory Judgment action pursuant to Tenn.
Code Ann. S 29-14-101, et seq., to avoid binding arbitration with a
non-tenured teacher concerning the School Board's decision to not
extend the teacher's contract of employment beyond its one year term. 
Defendants, the teacher and the education association, filed a Tenn.
R. Civ. P. 12.02(6) Motion to Dismiss.  Finding that the parties had
entered into a binding agreement to submit such grievances to
arbitration, the trial court granted the motion holding that there was
no state of facts the School Board could prove that would warrant
relief.  We are unable to conclude that there is no state of facts the
School Board can prove that would warrant relief.  Moreover, Tenn. R.
Civ. P. 12.02(6) motions are rarely appropriate in declaratory
judgment actions.  Therefore, we vacate the judgment, reinstate the
complaint and remand the matter for further proceedings.

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

IN THE MATTER OF: E.H. STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S
SERVICES v. KENNETH HARAZA

Court:TCA

Attorneys:                          

Gary J. Swayne, Paris, Tennessee, for Respondent/Appellant Kenneth
Harazak

Paul G. Summers, Attorney General and Reporter, and Douglas Earl
Diamond, Assistant Attorney General, Nashville, Tennessee, for the
Petitioner/Appellee, State of Tennessee, Department of Children's
Services

Judge: KIRBY

First Paragraph:

This involves the termination of parental rights.  The child at issue
was taken into protective custody after police raided the parents'
home and found an active methamphetamine lab.  Drug charges were filed
against the child's mother and father.  The father was on parole from
a prior murder conviction in Illinois, and his drug-related activities
were a violation of his parole.  As a result, the father was returned
to Illinois to serve further time in prison on the prior murder
conviction.  The mother's parental rights were terminated by default
judgment.  The father's parental rights were terminated based on
having the child in the home with a meth lab, and the father's
resulting incarceration in Illinois.  The father appealed, arguing
that the Tennessee Department of Children's Services did not make
reasonable efforts to reunite him with his child.  We affirm, finding
that under the circumstances of this case, the Department of
Children's Services was not required to make reasonable efforts to
reunite the father with the child.

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

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. F.S.B.

Court:TCA

Attorneys:                          

Murry C. Groseclose, Kingsport, Tennessee, for the appellant, F.S.B.

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

Judge: SUSANO

First Paragraph:

The trial court terminated the parental rights of F.S.B. ("Father")
with respect to his two minor children, K.L.B. (DOB: September 19,
1997) and S.L.B. (DOB: July 21, 1999).  Father appeals, arguing, inter
alia, that the evidence preponderates against the trial court's
finding, stated to be by clear and convincing evidence, that grounds
for termination exist.  We affirm.

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

IN RE K.A.S. 

Court:TCA

Attorneys:                          

Melanie R. Bean, Lebanon, Tennessee, for the appellant, William Andrew
Surratt.

Stephen Walker Pate, Murfreesboro, Tennessee, for the appellees, Lee
Allen, Gail Allen, and Jordan Ashley Surratt

Judge: KOCH

First Paragraph:

This Tenn. R. App. P. 9 interlocutory appeal concerns a father's
efforts to set aside a default judgment granting custody of his
daughter to the child's maternal grandparents.  The grandparents
asserted in their petition for custody that the father's whereabouts
were unknown and they therefore served their petition on the father by
publication in a Lebanon, Tennessee newspaper.  Two and one-half years
later, the father filed a motion to set aside the custody order
asserting that service by publication was insufficient because the
grandparents knew or should have known he was residing in Greensboro,
North Carolina at the time they filed their petition for custody.  We
have determined that the default judgment is void for lack of personal
jurisdiction and we thus reverse the trial court's order denying the
father's motion to set aside.

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

MARY WARREN KESSER v. PETER HALE KESSER

Court:TCA

Attorneys:                          

Allan J. Wade, Lori Hackleman Patterson, Memphis, TN, for Appellant

Darrell D. Blanton, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

Following their divorce in 1995, Wife filed a petition for contempt
against Husband in 1997, alleging Husband failed to comply with
certain provisions of the parties' marital dissolution agreement. 
Husband filed an answer and submitted his counter-petition for
modification of his child support obligation based on changed
circumstances.  Wife, in turn, filed a motion asking the court to
determine Husband's child support obligation following his receipt of
a large severance payment from his previous employer.  After holding a
hearing on the parties' respective petitions, the trial court entered
one order addressing the visitation of the parties' minor daughter and
another order addressing the financial issues.  In the order
addressing the financial issues, the trial court increased Husband's
base child support obligation, ordered Husband to pay additional child
support in various amounts pursuant to the marital dissolution
agreement, ordered Husband to pay additional amounts from improperly
withheld taxes on the exercise of certain stock appreciation rights,
and ordered Husband to pay Wife's attorney's fees.  For the reasons
set forth herein, we affirm in part, reverse in part, and remand to
the trial court for further proceedings consistent with this opinion.

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

JUDY KESTERSON v. BRUCE VARNER

Court:TCA

Attorneys:                          

Penny Harrington, Nashville, Tennessee, for the appellant, Bruce Varner

P. Edward Schell, Franklin, Tennessee, for the appellee, Judy
Kesterson

Judge: CAIN

First Paragraph:

Bruce Varner seeks review of the trial court's dismissal of his
Petition to Modify Custody.  The trial court dismissed the petition at
the close of the petitioner's proof, holding that petitioner had
failed to carry his burden of proof that a change of custody was in
the best interest of the child.  The trial court assessed attorney's
fees and costs to the petitioner.  We affirm the decision of the trial
court.

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

MICHAEL C. MALLEN v. AMERICAN INTERNATIONAL GROUP, INC., ET AL.

Court:TCA

Attorneys:                          

Jonathan E. Kaplan, Memphis, Tennessee; T. Maxfield Bahner, W. Jeffrey
Hollingsworth, and Anthony A. Jackson, Chattanooga, Tennessee, for the
appellants, American International Group, Inc., American International
Specialty Lines Insurance Co., American International Surplus Lines
Agency, Inc., Willis North America, Inc., John F. Killebrew, and Annis
Trevarthen.

Kyle E. Hedrick and Glenna M. Ramer, Chattanooga, Tennessee, for the
appellee, Michael C. Mallen.

Judge: SUSANO

First Paragraph:

We granted the Tenn. R. App. P. 9 application of the AIG defendants 
to review their claim that an order of the trial court entered
December 31, 2003, nunc pro tunc December 22, 2003,  pertaining to
pre-trial discovery is "overly broad, unduly burdensome, and
extraordinarily costly both in terms of human effort and financial
expense, and that disclosure of the documents ordered by the trial
court would violate the [federal] Gramm-Leach-Bliley Act."  We have
determined that the AIG defendants' application was improvidently
granted.  Accordingly, this appeal is dismissed.  This case is
remanded to the trial court for further proceedings as outlined in
this opinion.

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

DEBORAH KAY PARKER HOXIT OHME v. FREDERICK HERMAN OHME, IV

Court:TCA

Attorneys:                          

Richard A. Spivey, Kingsport, Tennessee, for the appellant, Frederick
Herman Ohme, IV.

John P. Chiles, Kingsport, Tennessee, and Thomas F. Bloom, Nashville,
Tennessee, for the appellee, Deborah Kay Parker Hoxit Ohme.

Judge: SUSANO

First Paragraph:

This is a divorce case.  The trial court granted Deborah Kay Parker
Hoxit Ohme ("Wife") a divorce from Frederick Herman Ohme, IV
("Husband"), divided the parties' marital property and debts, and
awarded Wife transitional alimony of $500 per month.  In addition, the
court approved Wife's parenting plan, in which she was designated as
the primary residential parent of the parties' child, and ordered
Husband to pay child support of $854 per month.  Husband appeals the
granting of the divorce to Wife, the division of debt, the award of
alimony, and the trial court's decree regarding responsibility for
transporting the parties' child to and from visitation.  We affirm.

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

LISA WYATT ROWAN v. MICHAEL HOWARD ROWAN

Court:TCA

Attorneys:                          

D. Scott Parsley and Joshua G. Strickland, Nashville, Tennessee, for
the appellant, Michael Howard Rowan.

John J. Hollins, Sr., and James L. Weatherly, Jr., Nashville,
Tennessee, for the appellee, Lisa Wyatt Rowan.

Judge: CAIN

First Paragraph:

In this appeal, Appellant Michael Rowan challenges the trial court's
grant of a post-divorce contempt petition.  Appellee Lisa Rowan
challenges the trial court's denial of her attorney's fees in
connection with the petition, and seeks frivolous appeal damages in
this court.  We hold that the language of the parties' marital
dissolution agreement is plain and unambiguous, affirm the trial
court's grant of the wife's petition, reverse the trial court's
refusal to award attorney's fees, and hold the appeal frivolous.

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

MICHELLE STALLS v. DOROTHY J. POUNDERS, ET AL

Court:TCA

Attorneys:                          

Tim Edwards, Memphis, TN, for Appellant

Jef Feibelman, Memphis, TN, for Appellees

Judge: HIGHERS

First Paragraph:

This case arises out of an action filed by the former client of an
attorney, seeking damages pursuant to the Tennessee Consumer
Protection Act and theories of breach of contract, fraudulent
misrepresentation, and common law fraud.  Appellees filed a motion for
summary judgment in the trial court below, and the court granted the
motion.  Appellant now seeks review by this Court, and, for the
following reasons, we remand for further proceedings consistent with
this opinion.

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

UNION COUNTY EDUCATION ASSOCIATION v. UNION COUNTY BOARD OF EDUCATION
and DR. JAMES PRATT, SUPERINTENDENT OF THE UNION COUNTY SCHOOLS

Court:TCA

Attorneys:                          

Charles Wayne Cagle, Nashville, Tennessee, for appellant.

Richard Lee Colbert, Nashville, Tennessee, for appellee.

Judge: FRANKS

First Paragraph:

We dismiss this appeal from a granting of summary judgment because the
appeal was not from a final judgment and the issues are moot.

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

STATE OF TENNESSEE v. JOSEPH BARAJAR

Court:TCCA

Attorneys:                          

Cynthia M. Fort (on appeal), Glenn Funk (at trial), and Kevin McGee
(at trial), Nashville, Tennessee, for the appellant, Joseph Barajar.

Paul G. Summers, Attorney General & Reporter; Michelle Chapman
McIntire, Assistant Attorney General; and Katrin Miller and Chris
Buford, Assistant District Attorneys General, for the appellee, State
of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Joseph Barajar, originally charged with premeditated
first degree murder, was convicted of second degree murder.  The trial
court ordered a twenty-five-year sentence in the Department of
Correction.  In this appeal of right, the defendant challenges the
sufficiency of the evidence, cites error in the admission of the
evidence, and asserts that his sentence is excessive.  See Blakely v.
Washington, 542 U.S. __, 124 S. Ct. 2531 (2004).  The sentence must be
modified to twenty-two years; otherwise, the judgment of the trial
court is affirmed.

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

STATE OF TENNESSEE v. JOE CALVIN BOYCE

Court:TCCA

Attorneys:                          

Gary F. Antrican, Somerville, Tennessee (on appeal) and Karen Tucker
Fleet, Bolivar, Tennessee (at trial), for the Appellant, Joe Calvin
Boyce.

Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Anna M. Banks, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Hardeman County jury convicted the Defendant, Joe Calvin Boyce, of
one count of theft of property valued between $1,000 and $10,000 and
one count of attempted theft of property valued between $500 and
$1,000.  The trial court sentenced the Defendant, as a career
offender, to twelve years in prison for the theft conviction and six
years for the attempted theft conviction, to be served concurrently. 
The Defendant appeals, contending: (1) the evidence presented at trial
is insufficient to sustain his convictions; and (2) the trial court
erred when it sentenced him.  On appeal, we vacate the Defendant's six
year sentence for attempted theft, and impose a sentence of eleven
months and twenty-nine days for that conviction.  The Defendant's
convictions and his sentence for theft are affirmed.

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

STATE OF TENNESSEE v. BILLY BRITTON, III

Court:TCCA

Attorneys:                          

Ross E. Alderman, District Public Defender; and Jeffrey A. Devasher
(on appeal), Emma Rae Tennent (on appeal), and J. Michael Engle (at
trial), Assistant Public Defenders, for the appellant, Billy Britton,
III.

Paul G. Summers, Attorney General and Reporter; Preston Shipp,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Pamela S. Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant challenges his convictions for first degree premeditated
murder and felony unlawful possession of a weapon.  Specifically, he
contends that:  1) the evidence was insufficient to support the
element of premeditation; 2) the trial court improperly admitted the
statement made by the victim identifying the defendant as the shooter;
and 3) the trial court improperly denied his request for judicial use
immunity for a prospective defense witness.  After careful review of
the record and applicable law, we affirm the convictions.

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

WILLIAM DAVID FARRAR v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Hayley E. Fults (on appeal) and Richard A. Cawley (at trial),
Shelbyville, Tennessee, for the Appellant, William David Farrar.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; William Michael McCowy,
District Attorney General; and Michael D. Randles, Assistant District
Attorney General, for the appellee, State of Tennessee

Judge: WEDEMEYER

First Paragraph:

The Petitioner, William David Farrar, pled guilty to one count of
burglary, and the trial court sentenced him to five years in prison,
to be served consecutively to another sentence in Marshall County. 
The Petitioner did not perfect a direct appeal, but later filed a pro
se petition for post-conviction relief, which was amended by appointed
counsel.  After a hearing, the post-conviction court dismissed the
petition, and the Petitioner now appeals, contending that the
post-conviction court erred because his trial counsel was ineffective.
 Finding no reversible error, we affirm the judgment of the
post-conviction court.

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

ANTHONY JACKSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Anthony Jackson, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Jennifer Bledsoe,
Assistant Attorney General; Victor S. (Torry) Johnson III, District
Attorney General; and Bret Gunn, Assistant District Attorney General,
for the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

In this case, the Appellant, Anthony Jackson, has appealed from the
trial court's order summarily dismissing, without an evidentiary
hearing, his petition for writ of habeas corpus.  The State has filed
a motion for the trial court's judgment to be affirmed pursuant to
Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.  We
grant the motion and affirm the judgment of the trial court.

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

CARL JOHNSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Lance R. Chism, Memphis, Tennessee, for the appellant, Carl Johnson.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Amy Weirich, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Carl Johnson, was convicted by a jury in the Shelby
County Criminal Court of especially aggravated robbery, and he
received a sentence of twenty-five years in the Tennessee Department
of Correction.  Subsequently, the petitioner filed for post-conviction
relief, alleging numerous instances of ineffective assistance of
counsel.  The post-conviction court dismissed the petition without
conducting a full evidentiary hearing.  The petitioner now appeals the
dismissal of his petition.  Upon our review of the record and the
parties' briefs, we reverse the post-conviction court's dismissal of
the petition and remand for an evidentiary hearing

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

MARIO PENDERGRASS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Cynthia M. Fort, Nashville, Tennessee, for the appellant, Mario
Pendergrass.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner appeals the summary dismissal of his petition for
post-conviction relief, arguing that he should have been appointed
post-conviction counsel and given an evidentiary hearing.  We conclude
that the petitioner presents a colorable claim for relief under the
more lenient standards afforded a pro se petition.  Accordingly, we
reverse the summary dismissal of the petition and remand the case to
the post-conviction court for the appointment of counsel.

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

STATE OF TENNESSEE v. BRADDIE ERIC SULLIVAN

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; Clement Dale Potter, District Attorney
General; and Larry G. Bryant, Assistant District Attorney General, for
the appellant, State of Tennessee.

Lisa Zavogiannis, McMinnville, Tennessee, for the appellee, Braddie
Eric Sullivan.

Judge: TIPTON

First Paragraph:

The state was granted an extraordinary appeal pursuant to Rule 10,
T.R.A.P., to challenge the Lincoln County Circuit Court's denying its
motion to use statements made by the defendant, Braddie Eric Sullivan,
to his attorney for impeachment purposes in his first degree murder
and especially aggravated robbery trial.  We affirm the trial court's
denial of the state's motion.

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

STATE OF TENNESSEE v. CHRISTOPHER FRANKLIN WADDELL

Court:TCCA

Attorneys:                          

M. Allen Ehmling, Gallatin, Tennessee, Attorney for the Appellant,
Christopher Franklin Waddell.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth T. Ryan, Senior Counsel; and Thomas Dean,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Christopher Franklin Waddell, appeals the sentencing
decision of the Sumner County Criminal Court which resulted in the
imposition of an effective thirty-year sentence.  Under the terms of a
plea agreement, Waddell pled guilty to two counts of aggravated
assault, four counts of attempted aggravated robbery, and three counts
of coercion of a witness.  On appeal, Waddell argues that the trial
court erred:  (1) in its application of enhancing factors with respect
to his aggravated assault convictions; (2) in imposing consecutive
sentences; and (3) in denying an alternative sentence.  After review,
we affirm.

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

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