Opinion Flash

October 18, 2004
Volume 10 — Number 201

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
08 New Opinion(s) from the Tennessee Court of Appeals
02 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

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


JUDY GAY TODD  v. CONTINENTAL CASUALTY COMPANY

Court:TSC - Workers Comp Panel

Attorneys:                          

P. Allen Phillips, Jackson, Tennessee, for the appellant, Continental
Casualty Company.

Art D. Wells, Jackson, Tennessee, for the appellee, Judy Gay Todd.

Judge: BUTLER

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.  The trial court determined that the plaintiff suffered a 69%
vocational impairment to the body as a whole.  The defendant insurer
asserts that: 1)  that the plaintiff had a meaningful return to work
and that the 2.5 times caps should apply; and 2) that if the caps do
not apply, the award was excessive and not supported by the evidence. 
For the reasons set forth below, we affirm the judgement of the trial
court.

http://www.tba.org/tba_files/TSC_WCP/toddjudyg.wpd

JOHN CARTER d/b/a CARTER REAL ESTATE v. MARIA PATRICK

Court:TCA

Attorneys:                          

Francis Xavier Santore, for the Appellant, Maria Patrick

William S. Nunnally, for the Appellee, John Carter d/b/a Carter Real
Estate

Judge: LEE

First Paragraph:

This is a suit brought by a real estate broker against a client for a
commission which he claimed she owed him under a listing agreement to
sell real property belonging to her. Client alleged that, in order to
induce her to enter into the listing agreement, the broker had
promised to make mortgage payments due on her property, that broker
subsequently discontinued making these payments and that, as a result,
her property was placed at risk of foreclosure and she was thereby
compelled to sell the property at a price lower than the price set
forth in the listing agreement with broker. Client alleged that, in
consequence of broker's failure to continue making the mortgage
payments he was in breach of contract and guilty of fraud. Client
further alleged that  broker breached their agreement by failing to
properly maintain the property. The trial court held that the broker
did not fail to meet his obligations under the parties' agreement with
respect to either the payment of the landowner's mortgage or the
maintenance of the subject property and was not in breach of their
agreement or guilty of fraud. Accordingly, the trial court awarded
broker a commission in the amount of $13,600.00, along with
pre-judgment interest in the amount of $1,497.86. We affirm the
judgment of the trial court and remand for collection of costs.

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

CHRISTOPHER GREY CUMMINGS v. PEPPER LYNNE WERNER CUMMINGS

Court:TCA

Attorneys:                          

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Pepper Lynne
Werner Cummings.

Robert Todd Jackson, Virginia Lee Story, Nashville, Tennessee, for the
appellee, Christopher Grey Cummings.

Judge: COTTRELL

First Paragraph:

The trial court granted the husband a divorce on the ground of the
wife's adultery and made various rulings regarding the parenting
arrangement for the parties' one year old son, child support, property
division, and award of attorney's fees.  The parties have appealed
most of the those rulings.  Although we affirm the equal sharing of
residential placement, we find the six month alternating schedule is
not in this child's best interests.  We also find other parts of the
plan must be vacated in view of recent holdings by the Tennessee
Supreme Court.  Therefore, we vacate the parenting plan and remand for
entry of a new permanent parenting plan addressing the residential
schedule, the designation of primary residential parent, allocation of
decision-making authority, and child support.  In the interim, we
reinstate the trial court's pendente lite arrangement, as modified,
and establish interim support.   We affirm the division of property,
modify the allocation of debt, and modify the award of attorney's
fees.

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

MARILYN JANE SCHULZ GORDON v. DAVID LOUIS GORDON

Court:TCA

Attorneys:                          

Kevin W. Shepherd, Maryville, Tennessee, for the Appellant David Louis
Gordon.

C. Dwaine Evans, Morristown, Tennessee, for the Appellee Marilyn Jane
Schulz Gordon.

Judge: SWINEY

First Paragraph:

Marilyn Schulz Gordon ("Wife") filed for divorce after thirteen and
one-half years of marriage to David Louis Gordon ("Husband").  Wife
works as a physician and earns a substantial income.  Husband is a
photographer but was voluntarily unemployed throughout the entire
marriage.  The Trial Court emphasized several factors when making a
distribution of the marital property.  In particular, the Trial Court
discussed:  Husband's minimal contribution to the acquisition of
assets; Husband's minimal to nonexistent contribution as a homemaker,
and; Husband's significant dissipation of the marital assets.  The
Trial Court divided the marital property in a manner which resulted in
Wife being awarded almost three-fourths of the marital property as
valued by the Trial Court.  Husband appeals claiming the Trial Court's
division of the marital property was inequitable.  We affirm.

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

LINDA C. GORRELL v. TYREE B. HARRIS, IV

Court:TCA

Attorneys:                          

George Ellis Copple, Jr., Nashville, Tennessee, for the appellant,
Linda C. Gorrell.

Alfred H. Knight, Katherine A. Brown, William R. Willis, Jr. and Alan
Dale Johnson, Nashville, Tennessee, for the appellee, Tyree B. Harris,
IV.

Judge: CAIN

First Paragraph:

This is a child support modification case.  The child involved was
born out of wedlock to the parties on June 13, 1996.  Mother brought
suit in the Juvenile court of Davidson County in July of 1996 seeking
to establish paternity of the father and to establish child support. 
Both parties were represented by counsel, and on May 30, 1997, the
juvenile court entered an Order of Compromise and Dismissal.  The
parties settled the case by Settlement Agreement under which Mr.
Harris agreed to pay to Ms. Clark (now Gorrell) the sum of $20,000
cash for any and all claims against Mr. Harris through June 30 of
1998, including her child support claims as to the minor child.  From
June 13, 1998 forward, Mr. Harris agreed to pay $12,000 per year as
child support together with medical insurance until the child reached
age 18.  On February 23, 2001, Mother filed a Petition to Modify the
child support in order to bring it in compliance with Child Support
Guidelines.  The trial court held the Settlement Agreement to be void
and set prospective child support but declined to either award
retroactive child support or to order an upward deviation in child
support because of failure of the father to visit the child.  We
affirm the ruling of the trial court that the Settlement Agreement is
void, modify prospective child support, reverse the trial court on
retroactive child support, deny an upward deviation as to retroactive
support, but grant such deviation as to future support.  The case is
remanded for further proceedings.

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

KATHY HILL v. MELVIN SNEED d/b/a THE MOVIE STATION, INC.

Court:TCA

Attorneys:                          

Carol Ann Barron, Dayton, Tennessee, for the Appellant Kathy Hill.

Jack W. Piper, Jr., Knoxville, Tennessee, for the Appellee Melvin
Sneed d/b/a The Movie Station, Inc.

Judge: SWINEY

First Paragraph:

Kathy Hill ("Plaintiff") filed this lawsuit after she slipped and fell
while cleaning a tanning bed at Defendant's business.  Plaintiff
claimed she was standing on a rug and the rug slipped out from under
her feet, causing her to fall onto the tanning bed.  Defendant filed a
motion for summary judgment claiming Plaintiff would be unable to
prove an essential element of her negligence claim.  The Trial Court
agreed and granted Defendant's motion for summary judgment.  We
conclude that Defendant failed to negate an essential element of
Plaintiff's negligence claim and, therefore, Plaintiff's burden to
offer proof to establish the existence of a genuine issue of material
fact or the existence of the essential elements of her claim never was
triggered.  Accordingly, we reverse the judgment of the Trial Court.

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

RICHARD LYNN NORTON v. STATE OF TENNESSEE

Court:TCA

Attorneys:                          

Richard Lynn Norton, Clifton, Tennessee, pro se Appellant.

Paul G. Summers, Attorney General & Reporter, and John H. Bledsoe,
Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: SWINEY

First Paragraph:

Richard Lynn Norton ("Mr. Norton") is incarcerated pursuant to a
conviction for a drug offense.  Mr. Norton seeks a writ of mandamus to
obtain his release and to arrest and prosecute the trial judge and the
prosecuting attorney in his criminal case.  The Trial Court held that
the writ of mandamus is not available to redress Mr. Norton's
grievances.  We affirm.

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

D.E. RYAN v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY,
ET AL.

Court:TCA

Attorneys:                          

J. Brooks Fox and John L. Kennedy, Nashville, Tennessee, for the
Appellant, The Metropolitan Government of Nashville and Davidson
County, et al.

George A. Dean, Nashville, Tennessee, for the Appellee, D.E. Ryan.

Judge: LEE

First Paragraph:

This is a zoning case wherein the Metropolitan Government of Nashville
and Davidson County acting by and through the Metropolitan Board of
Zoning Appeals contends that the trial court erred in ruling that the
Appellant was without jurisdiction to rescind its prior decisions
approving a property owner's application to reestablish a
nonconforming use of certain property and associated site plan after
expiration of the time allowed for appealing such decisions.  The
Appellant further argues that the trial court erred in holding that
the property owner's right to utilize such property  is protected
under Tenn. Code Ann. S 13-7-208.  We affirm in part, reverse in part
and remand.

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

MARY JANE WOODALL v. HARRY MICHAEL WOODALL

Court:TCA

Attorneys:                          

Mark Stewart, David Stewart, Winchester, Tennessee, for the appellant,
Harry Michael Woodall.

Joseph E. Ford, Winchester, Tennessee, for the appellee, Mary Jane
Woodall.

Judge: COTTRELL

First Paragraph:

In this appeal, a former husband seeks to be relieved of his
obligation to pay alimony in futuro to his former wife.  In support of
his request, the former husband asserts there have been various
changes of circumstances, including his former wife's cohabitation
with another man.  Although the trial court reduced the monthly
support payment, it denied the former husband's petition to be
relieved entirely from his alimony obligation, finding that his former
wife was not living with a third person at the time of trial, that
little support from the third party was involved, and that no other
material change in circumstances had occurred to warrant modification
of the initial award of alimony.  We affirm the denial of the
husband's petition to be relieved of his alimony obligation.

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

STATE OF TENNESSEE v. RANDY PRUITT and ANET AMERICA

Court:TCCA

Attorneys:                          

P. Richard Talley, Dandridge, Tennessee, for the appellants, Randy
Pruitt and Anet America.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and James B. Dunn, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendants, who are brother and sister, were each convicted by a
Cocke County jury of assault, a Class A misdemeanor, and sentenced by
the trial court to serve 11 months, 29 days on supervised probation. 
Both defendants challenge the sufficiency of the evidence on appeal. 
We conclude that sufficient evidence was presented from which a
rational trier of fact could reasonably find both defendants guilty of
assault.  Accordingly, we affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. PATRICIA WHITE and CRAIG WHITE
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Timothy Crocker, Milan, Tennessee (at trial); and Daniel J. Taylor,
Jackson, Tennessee (on appeal), for the Appellees, Patricia White and
Craig White.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; and John C. Zimmerman, District Attorney General,
Pro Tem, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

A Gibson County jury convicted Patricia White of theft of property
valued over $10,000, a Class C felony; the trial court sentenced her
to a term of four years, suspended, and fifteen years' probation.  The
same jury also convicted Patricia White's husband, Craig White, of
facilitation of theft of property valued over $10,000; the trial court
sentenced him to a term of two years suspended, and two years'
probation.  As a condition of probation, the trial court held the
couple jointly liable for $124,000 in restitution.  On appeal the
defendants contend that the trial evidence  is insufficient to support
their convictions.  They also contest the amount of restitution they
have been ordered to pay.  After an exhaustive review of the record,
the briefs of the parties, and applicable law, we conclude that the
evidence is sufficient to support Patricia White's conviction, but we
are unable to reach the same conclusion for Craig White's facilitation
conviction.  Accordingly, we affirm Patricia White's conviction; the
conviction of Craig White is reversed, and the charge is dismissed. 
Finding that the trial court made inadequate findings in assessing
restitution, we further remand that issue for determination based on
the required statutory findings.  Finally, we take notice that based
on three statutory enhancement factors (none of which involved prior
criminal history), the trial court set the length of Patricia White's
sentence at one year above the presumptive minimum sentence of three
years; pursuant to Blakely v. Washington, ___ U.S. ___, 124 S. Ct.
2531 (2004), we modify her sentence to three years but leave
undisturbed the length and terms of her probation.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/whitepatricia_dis.wpd

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