Opinion Flash

March 21, 2003
Volume 9 — Number 051

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
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06 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, 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.

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


ELIZABETH A. MCBROOM v. OWENS-CORNING CORP.

Court:TSC - Workers Comp Panel

Attorneys:

W. Stephen Gardner and Robert Joseph Leibovich, Memphis, Tennessee,
for the appellant, Owens- Corning Corp.

Scott G. Kirk, Jackson, Tennessee, for the appellee, Elizabeth A.
McBroom                     

Judge: LOSER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.  In this
appeal, the employer questions the trial court's findings with respect
to causation, permanency and extent of disability.  As discussed
below, the panel has concluded the evidence fails to preponderate
against the trial court's findings.

http://www.tba.org/tba_files/TSC_WCP/mcbroom.wpd
								
SHIRLEY JEANETTE BARLOW v. JARVIS KAY BARLOW Court:TCA Attorneys: Vicky V. Klein, Madison, Tennessee, for the appellant, Shirley Jeanette Barlow. David B. Lyons, Nashville, Tennessee, for the appellee, Jarvis Kay Barlow. Judge: CANTRELL First Paragraph: These parties were married for twenty-seven years before the wife abandoned the marriage and sought a divorce which was uncontested. She was awarded one-half of the net marital estate, and rehabilitative alimony. Wife appeals, claiming that because of her illness she is entitled to more than 50 percent of the marital property, is entitled to alimony in futuro rather than rehabilitative alimony, and is entitled to attorney fees. We affirm the trial court's judgment, except as to the period of spousal support, which is extended from three years to five years. We also remand this case to the trial court for a determination of whether the post-judgment facts alleged by the husband warrant a further modification of the alimony award. http://www.tba.org/tba_files/TCA/barlowsj.wpd
In re: SHIANN MARIE HORNER, a minor Court:TCA Attorneys: Russell D. Mays, Greeneville, Tennessee, for the appellant, Lori Lynn Kopsi. Douglas L. Payne, Greeneville, Tennessee, guardian ad litem for Shiann Marie Horner, a minor. Kenneth N. Bailey, Jr., Greeneville, Tennessee, for the appellees, Ralph L. Hensley and Diana Hensley. Judge: SUSANO First Paragraph: This appeal focuses on the trial court's guardianship decree regarding Shiann Marie Horner (DOB: November 18, 1996) ("the child"). When the child's mother died, she moved in with her father, Charles E. Horner ("the father"), in Greene County. Following the father's incarceration as a result of his second arrest for driving under the influence of an intoxicant ("DUI"), the child started living full-time with her weekend caregivers, Ralph L. Hensley and Diana Hensley ("the Greeneville couple"), a married couple who are not related to the child by blood or marriage. The child's maternal aunt, Lori Lynn Kopsi, a resident of Menominee, Michigan ("the Michigan aunt"), filed a petition seeking custody of the child. The Greeneville couple responded with their own petition for custody. Following a hearing on the competing petitions, the trial court determined that it was in the child's best interest that the Greeneville couple should serve as the child's guardian. The Michigan aunt appeals, challenging the trial court's judgment. We affirm. http://www.tba.org/tba_files/TCA/hornersm.wpd
JAMES E. JOHNSON v. TENNESSEE BOARD OF MEDICAL EXAMINERS and TENNESSEE DEPARTMENT OF HEALTH Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, and Sue A. Sheldon, Senior Counsel, Office of the Attorney General, for appellants, Tennessee Board of Medical Examiners and Tennessee Department of Health. James E. Johnson, Nashville, Tennessee, appellee, pro se. Judge: LILLARD First Paragraph: This case involves the revocation of a physician's medical license. A patient saw a physician regarding a chronic skin condition. A series of unorthodox treatment methods resulted in the patient having upper respiratory problems, pain, dizziness, blurred vision, a small stroke, infection, and an abscess that had to be surgically drained and removed. As a result, the Tennessee Department of Health filed charges against the physician. After an administrative hearing, the Tennessee Board of Medical Examiners found that the physician engaged in unprofessional and unethical conduct, committed acts of gross malpractice, and demonstrated a pattern of incompetence and ignorance in the course of medical practice. The Board revoked the physician's medical license and assessed civil penalties. The physician sought judicial review in the chancery court. The chancellor affirmed the civil penalties but reversed the Board's revocation of the physician's medical license. The Tennessee Department of Health and the Tennessee Board of Medical Examiners appeal, arguing that the trial court substituted its judgment for the judgment of the Board. We reverse the ruling of the trial court, finding that the Tennessee Board of Medical Examiners did not abuse its discretion, did not act arbitrarily or capriciously, and that its revocation of the physician's medical license was supported by substantial and material evidence. Thus, we reinstate the Board's decision to revoke the physician's medical license. http://www.tba.org/tba_files/TCA/johnsonje.wpd
FERRYL THERESITA McCLAIN v. RICHARD PERRY McCLAIN Court:TCA Attorneys: Leslie W. Bailey, Jr., Kingsport, Tennessee, for the appellant, Ferryl Theresita McClain. Keith A. Hopson, Kingsport, Tennessee, for the appellee, Richard Perry McClain. Judge: SUSANO First Paragraph: This is a divorce case. The trial court dissolved the parties' marriage based upon a stipulated ground for divorce; divided the marital property; and awarded Richard Perry McClain ("Father") primary physical custody of the parties' two minor children. Ferryl Theresita McClain ("Mother") appeals the grant of custody to Father. In addition, she raises several procedural issues. We affirm. http://www.tba.org/tba_files/TCA/mcclainft.wpd
ADRIAN B. SCAIFE v. A. CHANTELLE ROBERSON, ADMINISTRATRIX OF THE ESTATE OF JOHN D. KNOWLES, JR. Court:TCA Attorneys: John E. Eberly, Chattanooga, Tennessee, for the Appellant, Adrian B. Scaife. A. Chantelle Roberson, Chattanooga, Tennessee for the Appellee, A. Chantelle Roberson, Administratrix of the Estate of John D. Knowles, Jr. Judge: SWINEY First Paragraph: John D. Knowles, Jr. ("Deceased") died intestate in December of 2000. A Petition for Intestate Administration ("Petition") filed in April of 2001, listed Adrian Scaife ("Plaintiff") as one of Deceased's daughters. This Petition never was granted. Several months later, an Amended Petition for Intestate Administration ("Amended Petition") was filed. The Amended Petition listed Plaintiff as an heir, but did not state Plaintiff's relationship to the Deceased. A. Chantelle Roberson ("Defendant") sought to be appointed administratrix of the Deceased's estate (the "Estate") and signed the Amended Petition. The Amended Petition was granted and Defendant was named administratrix of the Estate in June of 2001. The Notice to Creditors for the Estate was published in June and July of 2001. Notice to Creditor letters were sent to all known creditors and any persons having claims, or believed to have claims, against the Estate. Plaintiff received a copy of the Letters of Administration and a Notice to Creditor letter informing her that in order to inherit from the Deceased, she would need to establish paternity within the four month time period allowed to creditors for filing claims. Plaintiff took no steps to establish paternity within the four month period. In February of 2002, Plaintiff sued seeking to prohibit Defendant from denying Plaintiff is a child of the Deceased. The Trial Court granted Defendant summary judgment. Plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/scaifeab.wpd
STATE OF TENNESSEE v. TRAVIS THOMPSON, Individually and doing business as Thompson Enterprises, LLC and Gold's Gym, and THOMPSON ENTERPRISES, LLC, a Delaware Limited Liability Company, doing business as Gold's Gym Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter; Timothy C. Phillips, Assistant Attorney General; and Dana M. Ausbrooks, Assistant Attorney General, Nashville, Tennessee, for appellants, State of Tennessee. William B. Jakes, III, for appellees Travis Thompson, Individually and doing business as Thompson Enterprises, LLC and Gold's Gym, and Thompson Enterprises, LLC, a Delaware Limited Liability Company, doing business as Gold's Gym. Judge: LILLARD First Paragraph: This case involves the Tennessee Health Club Act. The defendant/appellees purchased a health club and failed to obtain a certificate of registration. Three months later, the health club owners obtained a certificate of registration. The State of Tennessee, through the Attorney General, filed a lawsuit against the health club owners alleging violations of the Tennessee Consumer Protection Act and the Health Club Act seeking injunctive relief, substantial fines, and several hundred thousand dollars in restitution. The trial court granted partial summary judgment to the health club owners, holding that the remedies under the Health Club Act were available only to consumers, not the State, and that there was no proof of an "ascertainable loss" under the Tennessee Consumer Protection Act. The trial court also granted the health club owners' request for attorney's fees and costs. The State appeals. We affirm in part and reverse in part, finding, inter alia, that the State may seek remedies under the Health Club Act on behalf of consumers, affirming the trial court's ruling that proof of an ascertainable loss is required, and affirming the award of attorney's fees. http://www.tba.org/tba_files/TCA/thompsont.wpd
STATE OF TENNESSEE v. LEON J. ROBINS and TABATHA R. WHITE Court:TCCA Attorneys: John E. Rodgers, Jr., Nashville, Tennessee, for the appellant, Leon J. Robins; and David P. Byrne and Charles E. Sizemore, Nashville, Tennessee, for the appellant, Tabatha R. White. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendants, Leon J. Robins and Tabatha R. White, both were convicted of first degree premeditated murder and sentenced to life imprisonment. In their appeals, they argue that the evidence was insufficient to sustain their convictions for first degree murder; the trial court should have instructed as to the lesser offenses of voluntary manslaughter and facilitation to commit voluntary manslaughter; evidence of a photographic lineup was improperly admitted; and the trial court improperly admitted Robins' mugshots as exhibits and improperly limited the cross- examination of a prosecution witness as to prior bad acts. Based upon our review of the record, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/robins.wpd

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