Quarterly Litigation Upate: Recent Developments in Litigation for
Tennessee Attorneys
March 25 Teleseminar

The TBA Litigation section presents this fast-paced, quarterly update
on recent developments in litigation for Tennessee attorneys. This
update will cover breaking developments in Commercial Law and Consumer
Protection, Contracts and Insurance. Listen in from the comfort of
your own office.

Today's Opinions: February 8, 2005
Volume 11 — Number 025
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
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

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


WENDY D. CLIBURN, ET AL. v. FRANKIE DALE SULLIVAN

Court:TCA

Attorneys:                          

Andrea E. Phelan, Donald N. Capparella, and Phillip H. Miller,
Nashville, Tennessee, for the appellant, Wendy D. Cliburn, et al.

C. Tracey Parks and Sharon Linville, Nashville, Tennessee, for the
appellee, Rogers Group, Inc., et al. and Frankie Dale Sullivan,
Intervener.

Judge: CLEMENT

First Paragraph:

This is a dispute between divorced parents over the division of
settlement proceeds awarded for the wrongful death of their seventeen
year old son.  The decedent's mother filed the wrongful death action. 
She settled the claim for $325,000.  Shortly thereafter, the father
sought to intervene claiming entitlement to half of the settlement. 
The mother objected, asserting that Tenn. Code Ann. S 20-5-107(c)
barred the father's claim since he failed to pay court-ordered child
support, visit or contact his child for more than two years prior to
the child's death.  The father countered arguing the statute became
effective after his rights vested and thus could not be applied
retrospectively.  The trial court held that the father's rights vested
at the child's death, which predated the amendment to Tenn. Code Ann.
S 20-5-107(c), and therefore the statute did not apply.  The trial
court awarded the father half of the settlement.  We affirm.

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

VALERIE J. HARGIS, ET AL. v. FREDALENE FULLER, Individually and as
Executrix of the Estate of Barney Loyd Fuller, Jr.

Court:TCA

Attorneys:                          

James Robin McKinney, Jr., Nashville, TN, for Appellants

John Lee Williams, Waverly, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal involves the construction of a will.  The decedent died
owning farmland in excess of twenty acres in size.  Wife admitted the
decedent's properly executed will, which named her as executrix, into
probate.  The decedent's children by a prior marriage filed an action
in the probate court asking the probate court to construe conflicting
provisions in the decedent's will.  One section of the decedent's will
purported to devise to his children the entire farm subject to the
wife's life estate, while the second provision purported to devise to
the wife a life estate in the "homeplace." The decedent's children
argued the term "homeplace" encompassed something significantly less
than the entire farm.  The probate court disagreed, interpreting the
term "homeplace," as used by the decedent, to mean the entire farm. 
In addition, the probate court ruled that, pursuant to section
66-1-106 of the Tennessee Code, the decedent's will created in his
wife an unlimited power of disposition as to the farm.  The decedent's
children have appealed the interpretation of the decedent's will
reached by the probate court to this Court.  We affirm the decision of
the probate court in all respects.

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

GRETHY HIRT v. ERNST H. HIRT

Court:TCA

Attorneys:                          

Robert G. Hinton, Lenoir City, Tennessee, for the Appellant Ernst H.
Hirt.

Loren E. Plemmons, Lenoir City, Tennessee, for the Appellee Grethy
Hirt.

Judge: SWINEY

First Paragraph:

Grethy Hirt ("Wife") filed for divorce from Ernst H. Hirt ("Husband")
after twenty-seven years of marriage.  The parties had five financial
accounts.  Two of these accounts clearly were marital property, were
divided evenly by the Trial Court, and are not at issue on appeal.  As
to the three remaining accounts, the Trial Court concluded two were
marital property with the third being Wife's separate property.  After
making these findings, the Trial Court distributed the property with
Husband receiving 54% of the marital property, and Wife receiving the
remaining 46%.  Husband appeals claiming the Trial Court erred when it
classified two of the accounts as marital property and the third as
Wife's separate property.  Both parties claim the Trial Court's
overall distribution of the marital property was inequitable.  We
conclude the Trial Court properly classified the three accounts at
issue and did not abuse its discretion when distributing the marital
property.  The judgment of the Trial Court is, therefore, affirmed.

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

KEVIN SCAIFE v. ADRIENNE SCAIFE

Court:TCA

Attorneys:                          

Barry L. Gold, Chattanooga, Tennessee, for the appellant, Kevin
Scaife.

Lisa Z. Bowman, Chattanooga, Tennessee, for the appellee, Adrienne
Scaife

Judge: SUSANO

First Paragraph:

In this divorce case, the trial court designated Adrienne Scaife
("Mother") as the primary residential parent of the parties' children,
Laniesha Scaife (DOB: August 10, 1992) and Kevin Scaife, Jr. (DOB: 
July 18, 1996).  The children's father, Kevin Scaife ("Father"),
appeals.  We affirm.

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

STATE OF TENNESSEE v. JASON ALVIN AULT

Court:TCCA

Attorneys:                          

Mark Stephens, Public Defender, and John Halstead, Assistant Public
Defender, Knoxville, Tennessee, for the appellant, Jason Alvin Ault.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and William Wallace, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Jason Alvin Ault, pled guilty to reckless aggravated
assault, a Class D felony.  See Tenn. Code Ann. S 39-13-102(d)(1). 
The Defendant agreed to a sentence of four years with the manner of
service left to the trial court's determination.  After a sentencing
hearing, the trial court ordered the Defendant to serve his sentence
in the Department of Correction.  The Defendant now appeals,
contending that he should have been granted an alternative sentence. 
We reverse the trial court's order mandating that the sentence be
served in confinement and remand this matter for further findings.

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

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