June 19, 2003
Volume 9 Number 110
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):
||New Opinion(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
||New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Court of Appeals
||New Opinion(s) from the Tennessee Court of Criminal Appeals
||New Opinion(s) from the Tennessee Attorney General (PDF format)
||New Judicial Ethics Opinion(s)
||New Formal Ethics Opinion(s) from the Board of Professional Responsibility
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Howard H. Vogel
DIANNA BOARMAN v. GEORGE JAYNES
Arthur M. Fowler, Johnson City, Tennessee, for the appellant, Dianna
K. Erickson Herrin, Johnson City, Tennessee, for the appellee, George
Dianna Boarman, the Clerk and Master for the Washington County
Chancery Court, filed a complaint on September 30, 1998, pursuant to
Tennessee Code Annotated section 8-20-101, et. seq., seeking a pay
increase for the three chief deputy clerks working in her office.
Boarman later filed a second and third complaint for fiscal years
1999-2000 and 2000-01. Defendant George Jaynes, the Washington County
Executive, answered denying that salary increases were necessary to
enable Boarman to properly and efficiently conduct the business of her
office. Jaynes also filed a counterclaim seeking the elimination of
one deputy clerk position in Boarman's office. Boarman's complaints
were consolidated, and a hearing was conducted before Chancellor
Thomas R. Frierson, II, sitting by interchange. The trial court
approved salary increases for the three chief deputy clerks. It
denied the defendant's counterclaim. The Court of Appeals affirmed
the trial court's denial of the county executive's counterclaim, but
reversed the trial court's judgment increasing the salaries of
Boarman's three chief deputy clerks. For the reasons stated herein,
we reverse that part of the decision of the Court of Appeals which
reverses the trial court's judgment approving the position of deputy
clerk and increase in compensation. We affirm the Court of Appeals'
dismissal of defendant Jaynes counterclaim.
STATE OF TENNESSEE v. MICHAEL D. EVANS
John McFarland, Kingston, Tennessee, for the appellant, Michael D.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; John H. Bledsoe, Assistant Attorney General;
Charles Hawk, District Attorney General; Dennis Humphrey, Assistant
District Attorney General; and James Scott, Assistant District
Attorney General, for the appellee, State of Tennessee.
We granted this appeal primarily to clarify the procedure that governs
when a trial court or the Court of Criminal Appeals determines that a
criminal defendant was unilaterally deprived of the right to seek
second-tier review pursuant to Tennessee Rule of Appellate Procedure
11. We conclude that Tennessee Supreme Court Rule 28, section (9)(D)
has superseded the procedural framework of State v. Pinkston, 668
S.W.2d 676 (Tenn. Crim. App. 1984). However, the State has raised
valid concerns about voids in the procedure, and as a result, we have
filed contemporaneously with this opinion an order publishing for
public comment a proposed amendment to Rule 28, section (9)(D). The
amendment addresses the concerns raised by the State in this case, as
well as other procedural issues likely to arise in the delayed appeal
context. The Court solicits comments from all interested parties.
Although the trial court's order granting a delayed appeal in this
case contained inappropriate language purporting to "vacate and
reinstate" the judgment of the Court of Criminal Appeals, the trial
court otherwise substantially complied with the procedure set forth in
Rule 28, Section (9)(D). Therefore, the defendant's delayed
application for permission to appeal was properly filed in this Court.
This Court granted the application, and after reviewing the record
and considering the issues raised, we conclude that none of the
assigned errors warrant reversal. Therefore, the judgment of the
Court of Criminal Appeals is affirmed.
JAMES LEE JONES, III, et al. v. PIERCE BRANDON GARRETT a/k/a PERRY
(CORRECTS HEADING ON PAGE 3)
Douglas R. Beier, Morristown, Tennessee, for the appellant, Pierce
Jonathan R. Perry and Laura D. Perry, Franklin, Tennessee, for the
appellees, James Lee Jones, III and Stephanie Trent Jones.
This case arises from a proceeding to terminate parental rights. In
that proceeding, the prospective adoptive parents sought a
determination that the father of the child in their custody had
abandoned him. The trial court terminated the father's parental
rights, and the Court of Appeals affirmed the termination. We granted
permission to appeal to determine whether the trial court erred in
terminating parental rights on the basis of Tennessee Code Annotated
section 36-13-113(g)(8)(A)(vi) (1996 & Supp. 1999) (failure to file a
petition to establish paternity within thirty days after notice of
alleged paternity by the child's mother) when the father had been
adjudicated the legal parent of the child at the time of the hearing.
We hold that Tennessee Code Annotated section 36-1-113(g)(8)(A)(vi)
applies only to cases in which no legal relationship between the
parent and child has been established.
JERRY BRANDON LAY v. SCOTT COUNTY SHERIFF'S DEPARTMENT and THE LOCAL
GOVERNMENT WORKERS' COMPENSATION FUND
William A. Lockett and Michael A. Kent, Chattanooga, Tennessee, for
the appellant, Scott County Sheriff's Department and The Local
Government Workers' Compensation Fund.
W. Holt Smith, Madisonville, Tennessee, and Howard R. Ellis, Oneida,
Tennessee, for the appellee, Jerry Brandon Lay.
The primary issue in this workers' compensation appeal is whether the
attainment of maximum medical improvement is a necessary factor in
determining whether there has been a meaningful return to work under
Tennessee Code Annotated section 50-6-241. The trial court found that
since the pre-injury employer returned the employee to work at a lower
wage than his pre-injury wage, Section 50-6-241(a)(1) did not apply,
and the trial court set the employee's permanent partial disability
award based on 60% to the body as a whole, approximately 4.6 times the
employee's 13% impairment rating. We reverse the trial court and find
that where an employee has had a meaningful return to work for five
months, resigns for reasons unrelated to his injury, and then returns
to the same employer a year later at a lower wage, the employee may
not take advantage of this statute by arguing that he has not had a
meaningful return to work. Thus, Section 50-6-241(a)(1) applies to
limit the employee's recovery to two and one-half times his impairment
rating, and the employee's award is modified to 32.5% permanent
partial disability to the body as a whole.
KAILA B. WILLIAMS SANDERS, Individually and as Next of Kin to CATHI D.
WILLIAMS, Deceased v. TRACIE A. TRAVER, M.D., ALL WOMEN'S CARE, P.C.,
SHELBY B. SHIVERS, M.D., MARYVILLE ANESTHESIOLOGISTS, P.C., d/b/a
MARYVILLE ANESTHESIA GROUP, and BLOUNT MEMORIAL HOSPITAL INCORPORATED
Carl P. McDonald, Maryville, Tennessee, for the appellant, Blount
Memorial Hospital, Incorporated.
Sidney Gilreath and Timothy Housholder, Knoxville, Tennessee, for the
appellee, Kaila B. Williams Sanders.
In this wrongful death case brought under the Governmental Tort
Liability Act, we address the issue of whether Tennessee Rule of Civil
Procedure 6.01, which provides the computation of time for statutes of
limitations, is applicable to actions involving governmental entities.
Having determined that the Tennessee Rules of Civil Procedure are
applicable to actions involving governmental entities in Doyle v.
Frost, 49 S.W.3d 853, 858 (Tenn. 2001), and finding that Rule 6.01
defines, rather than extends, the Governmental Tort Liability Act's
statute of limitations, we hold that the Court of Appeals did not err
in finding that Rule 6.01 applies to actions brought under the
Governmental Tort Liability Act. Accordingly, we affirm the judgment
of the Court of Appeals and remand the case to the trial court for
further proceedings consistent with this opinion.
SALLY BISHOP v. SCOTT MILNER
Lori F. Fleishman, Knoxville, Tennessee, for Appellant.
Billy P. Sams, Oak Ridge, Tennessee, for Appellee.
The Trial Court ruled the New Jersey Divorce Court retained
jurisdiction of the case where a New Jersey decree had been enrolled
in the Tennessee Court. Appellant argues the Trial Court failed to
make a record of conversation with the New Jersey Judge in accordance
with Tenn. Code Ann. S36- 6-213. We vacate and remand.
KAREN CHELTON v. PROVIDENT COMPANIES, INC., et al.
Boyd Stewart Jenkins, Chattanooga, Tennessee, for the Appellant, Karen
Christopher Harper Steger, Chattanooga, Tennessee, for the Appellees,
Provident Companies, Inc. and Provident Life & Accident Insurance
In this appeal from the Chancery Court for Hamilton County the
Plaintiff/Appellant, Karen Chelton, asserts that the Trial Court erred
in granting the Defendants/Appellees, Provident Companies, Inc. and
Provident Life & Accident Insurance Company (hereinafter "Provident"),
summary judgment against her with regard to her cause of action for
age discrimination under the Tennessee Human Rights Act. We affirm
the judgment of the Trial Court in part, vacate in part and remand for
a trial on the merits. Costs of this appeal are adjudged equally
against Ms. Chelton and Provident.
IN THE MATTER OF: H.E.J. AND H.E.J.
Rebecca E. Byrd, Franklin, Tennessee, for the appellant, J.L.B.
Jade A. Rogers, Gallatin, Tennessee, for the appellee, The Association
for Guidance, Aid, Placement and Empathy, Inc.
The trial court terminated the parental rights of a father of twins on
multiple grounds, including abandonment and the commission of severe
child abuse against the twin's mother while she was a minor child
residing in his home. The court also ordered him to pay $14,400 in
child support arrearages. We affirm the termination, but we reverse
the child support award.
STATE OF TENNESSEE v. SUSAN SOPHIA MCDANIEL
Gregory D. Smith, Clarksville, Tennessee (on appeal); David Neal
Brady, District Public Defender; and Joe L. Finley, Jr., Assistant
District Public Defender (on appeal and at trial), for the appellant,
Susan Sophia McDaniel.
Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; William Edward Gibson, District Attorney
General; and Gary McKenzie, Assistant District Attorney General, for
the appellee, State of Tennessee.
In this direct appeal, the defendant argues the evidence was
insufficient to support the jury's verdict convicting her of theft
over $1,000. We affirm the judgment of the trial court.
STATE OF TENNESSEE v. SUSAN SOPHIA MCDANIEL
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