Opinion FlashAugust 18, 2004
Volume 10 Number 159
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):
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Howard H. Vogel
IN THE MATTER OF: C.T.S. Court:TCA Attorneys: Cyburn Hillard Sullivan, III and Richard D. Cartwright, Covington, Tennessee, for the appellants, V.A.T. and W.N.S. a/k/a N.W.S. Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services. Judge: FARMER First Paragraph: The trial court terminated Father's parental rights based on Tenn. Code Ann. S 36-1-113(g)(6) and Mother's parental rights based on Tenn. Code Ann. S 36-1-113(g)(1). Mother and Father appeal. We affirm. http://www.tba.org/tba_files/TCA/cts.wpd
JORDAN ASHTON DANELZ v. JOHN GAYDEN Court:TCA Attorneys: Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellant, Jordan Ashton Danelz. Andrew C. Clarke, Memphis, Tennessee, for the appellee, John Gayden. Judge: FARMER First Paragraph: Mother and husband divorced. In her complaint for divorce, mother stated that her son was born of their marriage. Husband paid son's child support. Upon reaching the age of majority, son filed a paternity action against alleged father. Son relied upon mother's affidavit as proof of requisite sexual contact. The alleged father filed a motion to dismiss for failure to state a claim arguing mother was judicially estopped from making the statements contained in her affidavit in light of her statements made in her divorce complaint. The juvenile court granted the motion to dismiss. For the following reasons, we reverse the decision of the trial court and remand for proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/danelzja.wpd
TAMI SPRINTZ HALL ET AL v. RICHARD HAMBLEN, ET AL. Court:TCA Attorneys: Robert J. Notestine III, Nashville, Tennessee, for the appellant, Richard Hamblen d/b/a Contractor's Mirror & Glass. Jill A. Hanson, Nashville, Tennessee, for the appellees, Tami Sprintz Hall and Jeffrey Hall. Judge: COTTRELL First Paragraph: Homeowners of a new residence brought an action against a subcontractor for breach of contract, negligent misrepresentation, professional negligence, and violation of the Tennessee Consumer Protection Act. The trial court found that there was a breach of contract and awarded attorney's fees under the Tennessee Consumer Protection Act. Subcontractor appealed insisting that because no violation of the TCPA was found, the trial court lacked a basis to award attorney's fees. We agree and reverse the judgment of the trial court with respect to the award of attorney's fees. http://www.tba.org/tba_files/TCA/halltamis.wpd
TERESA A. MARTIN, ET AL. v. JOHNNY L. DRINNON Court:TCA Attorneys: Phillip L. Boyd, Rogersville, Tennessee, for the appellants, Teresa A. Martin and Paul Martin. Jack M. Vaughn and Daniel D. Coughlin, Kingsport, Tennessee, for the appellee, Johnny L. Drinnon. Judge: SUSANO First Paragraph: This litigation arises out of a two-vehicle collision in Hawkins County. Teresa A. Martin ("the plaintiff") and her husband sued the driver of the other vehicle, Johnny L. Drinnon ("the defendant"), seeking damages and charging him with common law and statutory acts of negligence. The defendant answered and filed a counterclaim. The jury returned a verdict, finding the parties equally at fault. Judgment was entered on the jury's verdict and the trial court denied the plaintiff's motion for a new trial. The plaintiff appeals, raising, in effect, three issues. We vacate the trial court's judgment and remand for further proceedings. http://www.tba.org/tba_files/TCA/martintera.wpd
In the matter of: M.E., M.E., R.B., M.B., S.B. Court:TCA Attorneys: Thomas H. Miller, Franklin, Tennessee, for the appellant, D.B., the mother. Merrilyn Feirman, Nashville, Tennessee, for the appellant, L.B., the father. Paul G. Summers, Attorney General and Reporter; Dianne Stamey Dycus, Deputy Attorney General, Elizabeth C. Driver, and Patricia Arnold Mayes, for the appellee, Tennessee Department of Children's Services. Judge: CLEMENT First Paragraph: Mother and father of three children appeal termination of their respective parental rights. Mother appeals arguing that the trial court erred in finding persistence of conditions sufficient to terminate her rights. We reverse, finding that the Department failed to make reasonable efforts to reunite Mother with her children. Father appeals alleging that he was denied counsel and/or the effective assistance of counsel. The trial court appointed counsel to represent Father but thereafter relieved appointed counsel without stating a basis and did not appoint substitute counsel. Father retained an attorney on the eve of trial but this retained attorney only appeared on four of the seven days of trial and was absent during significant portions of the days he attended. Since the trial court initially found that Father was entitled to appointed counsel and never made a finding that Father was no longer entitled to appointed counsel or that he had waived the right to counsel, we find that the trial court erred when it failed to appoint substitute counsel. Father attempted to retain counsel; however, retained counsel's repeated failures to attend the hearings was equivalent to Father having no counsel. Thus, Father was deprived of the right to counsel. Accordingly, we vacate the judgment terminating Father's parental rights. http://www.tba.org/tba_files/TCA/meme.wpd
SUSAN PYKOSH, ET AL. v. STEPHANIE A. EARPS, ET AL. Court:TCA Attorneys: Gary M. Kellar, Brentwood, Tennessee, for the appellants, Stephanie A. Earps, Clarence Earps, and Colleen Earps. Frank Lannom, Lebanon, Tennessee, for the appellees, Susan Pykosh and William Pykosh. Judge: KOCH First Paragraph: This extraordinary appeal involves a Tenn. R. Civ. P. 35.01 request for a physical examination of an opposing party. Following a vehicular collision in Wilson County, one of the drivers and her passenger filed suit in the Circuit Court for Wilson County seeking damages from the driver and owners of the other vehicle. Issues involving the extent and permanency of the plaintiff driver's injuries caused by this collision arose after the plaintiff driver was injured in another accident, and the defendants requested permission for their medical expert to examine the plaintiff driver. The trial court denied the request, and the defendants filed a Tenn. R. App. P. 10 application with this court. We have determined that, under the facts of this case, the trial court's denial of the defendants' Tenn. R. Civ. P. 35.01 motion departs from the accepted and usual course of judicial proceedings of this sort. Therefore, we grant the Tenn. R. App. P. 10 application and reverse the order denying the Tenn. R. Civ. P. 35.01 motion. http://www.tba.org/tba_files/TCA/pykoshs.wpd
IN THE MATTER OF: S.R.C. Court:TCA Attorneys: Jason C. Scott, Trenton, Tennessee, for the Appellant, M.C. Paul G. Summers, Attorney General and Reporter, and Juan G. Villasenor, Assistant Attorney General, for the Appellee, State of Tennessee, Department of Children's Services. Judge: FARMER First Paragraph: The trial court terminated Mother's parental rights. We affirm. http://www.tba.org/tba_files/TCA/src.wpd
WILLIAMS HOLDING COMPANY d/b/a RALEIGH HILLS APARTMENTS v. SHARON T. WILLIS, ET AL. Court:TCA Attorneys: Bruce D. Brooke, Memphis, Tennessee, for the appellant, Joe Leavy. James W. Cook, Memphis, Tennessee, for the appellee, Williams Holding Company, d/b/a Raleigh Hills Apartments. Judge: FARMER First Paragraph: Plaintiff, owner of an apartment complex, filed suit seeking damages caused by a fire in an apartment occupied by Defendants. The parties consented to arbitration. The parties stipulated to the damages in the amount of $73,414.64. Further, it was stipulated that Plaintiff settled with two of the three Defendants whereby the two Defendants payed 50%, $36,707.32, of the property damage. Subsequently, the arbiter ruled that the remaining Defendant was 100% at fault and liable for the total amount of damages, $73,414.64. Plaintiff filed a motion with the trial court to confirm the arbiter's award. In response, the remaining Defendant filed a motion to modify, correct, and/or to vacate the arbitration award and a motion for credit, set off and reduction of award. The trial court confirmed the arbiter's award, thereby denying Defendant's motions. Defendant appeals. For the following reasons, we reverse the decision of the trial court and modify the arbitration award. http://www.tba.org/tba_files/TCA/willholdco.wpd
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