Today's Opinions: December 30, 2004
Volume 10 — Number 249
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
09 New Opinion(s) from the Tennessee Court of Appeals
03 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


GLORIA J. BEVILL v. ELLIS M. BEVILL, SR. 

Court:TCA

Attorneys:                          

John R. Meldorf, III, Hixson, Tennessee, for the appellant, Ellis M.
Bevill, Sr.

Flossie Weill, Chattanooga, Tennessee, for the appellee, Gloria J.
Bevill.

Judge: SUSANO

First Paragraph:

This is a post-divorce case.  The parties were divorced in 1999.  The
judgment of divorce awarded Gloria J. Bevill ("Wife") alimony in
futuro of $1,750, subject to provisions pertaining to the retirement
of her then-former spouse, Ellis M. Bevill, Sr. ("Husband").  In
specific terms, the judgment provided that upon Husband's retirement,
he was entitled to reduce the amount of his alimony payment to $1,300,
subject, however, to a stipulation in the judgment providing that
Husband's post-retirement earnings could affect the amount of his
obligation.  Husband retired and, pursuant to the divorce judgment,
unilaterally reduced the amount of his monthly alimony payments.  In
response, Wife filed a petition to interpret the divorce judgment
and/or modify the spousal support award.  The trial court interpreted
the divorce judgment as permitting an upward modification of Husband's
alimony obligation.  Upon review of the evidence, the trial court
subsequently increased Wife's alimony award to $1,900 per month, in
addition to awarding her attorney's fees.  It is from this order that
Husband appeals.  We affirm.

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

IN RE: ESTATE OF ALLEN DEE COOK

Court:TCA

Attorneys:                          

David M. Cook and Virginia M. Patterson, Memphis, Tennessee, for the
appellants, Lisa Donnelly Gelfand and Sandra Donnelly Schweitzer.

Lois B. Shults-Davis, Erwin, Tennessee, and Anthony A. Seaton, Johnson
City, Tennessee, for the appellees, Jo Ann P. Cook and Ronald S. Cook,
co-executors.

Judge: SUSANO

First Paragraph:

Following the death of Allen Dee Cook ("the testator"), his
co-executors - his widow, Jo Ann P. Cook, and his son, Ronald S. Cook
(collectively "the defendants") - filed the testator's will for
probate in the trial court.  That court admitted the will to probate. 
Thereafter, two of the testator's stepchildren - Lisa Donnelly Gelfand
and Sandra Donnelly Schweitzer (collectively "the plaintiffs") - filed
a complaint in the trial court seeking to establish that a prior
irrevocable joint will was the last will and testament of the
testator.  In addition, the plaintiffs alleged (1) that the
previously-probated will was the product of undue influence, and (2)
that the testator was not of sound mind when he executed the second
will.  Following removal to circuit court and a later remand, the
trial court held, in summary fashion, that the plaintiffs had not
filed a timely, properly-supported claim against the testator's
estate.  As a part of its judgment, the trial court also held (1) that
the failure of the plaintiffs to produce the original of the first
will gives rise to a presumption that it was revoked; (2) that the
presumption of revocation had not been overcome by the requisite
degree of proof; and (3) that the facts before the court precluded a
grant of summary judgment to the defendants on their defense that the
plaintiffs had violated the in terrorem provision of the testator's
will when they contested its validity.  The plaintiffs appeal.  We
affirm so much of the trial court's judgment as holds (1) that the
plaintiffs failed to file a properly-supported, properly-verified
claim for breach of contract not to revoke the earlier will; and (2)
that there are facts in the record precluding a determination, at this
stage in the proceedings, that the in terrorem clause should be
enforced against the plaintiffs.  In all other respects, we reverse
the trial court's judgment.

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

LAURA STOHL HALKIADES v. DAVID ALLAN HALKIADES, ET AL.

Court:TCA

Attorneys:                          

Dan T. Bing, Memphis, Tennessee, for the appellant, David Allan
Halkiades.

Amy J. Amundsen, Memphis, Tennessee, for the Appellee, Laura Stohl
Halkiades.

Judge: FARMER

First Paragraph:

This appeal arises from a divorce action.  Defendant/Dr. Halkaides
appeals the trial court's order dividing the parties' property and
debt and awarding Wife/Ms. Stohl alimony.  He also asserts the trial
court erred in finding Dr. Halkaides had dissipated the parties'
marital assets.  We affirm as modified

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

BERTA MARGARITA DE LOS RIOS LEE v. DANIEL LEE

Court:TCA

Attorneys:                          

Daniel M. Lee, Collierville, Tennessee, Pro Se.

Lee Ann Pafford Dobson, Germantown, Tennessee, for the appellee, Berta
Margarita De Los Rios Lee.

Paul G. Summers, Attorney General and Reporter; Pamela A. Hayden-Wood,
Senior Counsel, In Defense of Tenn. Code Ann. S 36-6-101(a)(1).

Judge: COTTRELL

First Paragraph:

As part of a divorce, the trial court granted custody of the parties'
child to the mother, with visitation by the father.  The father
appealed, and this court affirmed the trial court.  The father
subsequently filed a petition to change custody.  After lengthy
proceedings brought on by various filings by the parties, the trial
court ruled that it no longer had jurisdiction over the child's
custody.  We affirm the jurisdictional ruling, making all other issues
moot.

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

CITY OF MEMPHIS, A Municipal Corporation v. THE CIVIL SERVICE
COMMISSION OF THE CITY OF MEMPHIS and TOMMY MOORE

Court:TCA

Attorneys:                          

Joseph Michael Cook, Memphis, TN, for Appellant, Tommy Moore

Sara L. Hall, Gerald L. Thornton, and Barbaralette G. Davis, City
Attorneys, Memphis, TN, for Appellee, City of Memphis

Judge: HIGHERS

First Paragraph:

This case involves the demotion of an Air Crash Chief employed by the
City of Memphis Fire Department following the revocation of his
security clearance and driving privileges by the Memphis-Shelby County
Airport Authority.  Following his demotion, the Chief appealed the
city's decision to the City of Memphis Civil Service Commission.  The
civil service commission reversed the city's ruling and held that the
Chief must be reinstated.  The city filed a common law writ of
certiorari in the Chancery Court of Shelby County to appeal the
finding of the civil service commission.  The chancery court reversed,
finding that the civil service commission exceeded its authority in
reversing the city's decision and reinstating the Chief.  We affirm.

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

DONNA MULHERN v. PULTE HOMES

Court:TCA

Attorneys:                          

Malcolm L. McCune and Michael D. Hornback of Nashville for Appellant,
Donna Mulhern

Carol M. Hayden of Memphis for Appellee, Pulte Homes

Judge: CRAWFORD

First Paragraph:

Appellant/Homeowner appeals from the trial court's grant of summary
judgment in favor of Appellee/Homebuilder.  Appellant/Homeowner sued
Appellee/Homebuilder on theories of faulty installation and
construction of Appellant/Homeowner's roof and under the Tennessee
Consumer Protection Act.  The trial court found that
Appellant/Homeowner's claims were time barred under both T.C.A.
S28-3-202 and T.C.A. S47-18-110.  We affirm.

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

ROBERT STEWART SHOFNER v. ANN MARGARET KALISZ SHOFNER

Court:TCA

Attorneys:                          

John E. Herbison, Nashville, Tennessee, for the appellant, Ann
Margaret Kalisz Shofner.

John J. Hollins, Sr., and James L. Weatherly, Jr., Nashville,
Tennessee, for the appellee, Robert Stewart Shofner.

Judge: KOCH

First Paragraph:

This appeal involves an acrimonious dispute over the custody of three
children between the ages of eight and twelve.  Following a
contentious ten-year marriage, the children's parents both sought a
divorce and custody of the children in the Circuit Court for Davidson
County.  The trial judge originally assigned to the case devised a
temporary parenting plan that placed the eldest child with his mother
and the two youngest children with their father.  Thereafter the
original trial judge disqualified herself, and the case was assigned
to a new trial judge.  The newly assigned trial judge declined to
revisit her predecessor's custody and support order and eventually
entered a final decree (1) declaring the parents divorced in
accordance with Tenn. Code Ann. S 36-4-129(b) (2001), (2) approving
the parent's marital dissolution agreement, and (3) making the
temporary parenting plan permanent.  On this appeal, the mother takes
issue with the decision to designate the father the primary
residential parent of the two youngest children.  We have determined
that the successor trial judge erred by (1) failing to comply with the
requirements of Tenn. R. Civ. P. 63 after the case was reassigned, (2)
declining to consider the pending post-trial motions, and (3) refusing
to permit the mother to make an offer of proof regarding the
circumstances of the children.  Despite these serious procedural
errors, we have conducted our own independent review of the record and
have determined that it contains no factual or legal basis for
overturning the parenting plan at this time.

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

ROY L. TIDWELL, ET AL. v. CITY OF MEMPHIS

Court:TCA

Attorneys:                          

Sam L. Crain, Jr., Memphis, TN, for Appellant

Timothy Taylor, Memphis, TN, for Appellee Roy L. Tidwell

Mark Allen, Memphis, TN, for Appellees Richard Coggins, et al

Judge: HIGHERS

First Paragraph:

The City of Memphis promulgated an On-the-Job Injury Program to handle
claims filed by city employees seeking benefits for on-the-job
injuries.  Thirteen firefighters and one police officer filed
applications for benefits with the city.  When the city denied the
applications, the employees filed appeals to the On-the-Job Injury
Appeals Panel which affirmed the city's denial of benefits.  Each
employee appealed the panel's determination to the Chancery Court of
Shelby County by filing a Petition for Writ of Certiorari seeking
review under a statutory writ of certiorari or, in the alternative, a
common law writ of certiorari.  The chancellor reversed the panel's
decision and held that, pursuant to section 27-9-114 of the Tennessee
Code,  proceedings before the panel are subject to the contested case
procedures set forth in the Tennessee Uniform Administrative
Procedures Act.  In addition, the chancellor held that, pursuant to
section 27-9-114 of the Tennessee Code, judicial review of the panel's
decision is neither by common law or statutory writ, but review must
be conducted in accordance with section 4-5-322 of the Tennessee Code.
 The city appealed the chancery court's ruling to this Court arguing
that the chancellor erred in applying section 27-9-114 of the
Tennessee Code to the panel.  We reverse the chancery court's ruling.

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

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. T.N.S.S.

Court:TCA

Attorneys:                          

James D. Purple, Sr., Chattanooga, Tennessee, for the appellant,
T.N.S.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: SUSANO

First Paragraph:

The trial court terminated the parental rights of T.N.S.S. ("Mother")
with respect to her three children, D.D.M. (DOB: February 10, 1989),
D.S.Jr. (DOB: August 7, 1990), and D.J.S. (DOB: July 27, 1991). 
Mother appeals, arguing, inter alia, that the evidence preponderates
against the trial court's dual findings, by clear and convincing
evidence, that grounds for termination exist and that termination is
in the best interest of the children.  We affirm.

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

STATE OF TENNESSEE v. DONNA K. BUCK

Court:TCCA

Attorneys:                          

Julie A. Rice, Knoxville, Tennessee; Raymond Mack Garner, District
Public Defender; Stacy Nordquist and George Waters, Assistant Public
Defenders, for the appellant, Donna K. Buck.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General;  Michael L. Flynn, District Attorney
General; and Ellen Berez, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals her conviction for first degree premeditated
murder.  On appeal, the defendant challenges the sufficiency of the
evidence to support the conviction and contends that the trial court
erred in disallowing cross-examination of an unavailable witness.  We
affirm the conviction.

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

STATE OF TENNESSEE v. ANTHONY DAVIDSON

Court:TCCA

Attorneys:                          

Steve McEwen, Mountain City, Tennessee (on appeal), and Leslie Hale,
Assistant Public Defender (at trial), for the appellant, Anthony
Davidson.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; and J. Lewis Combs, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Anthony Davidson, appeals the trial court's order
revoking his probation.  The single issue presented for review is
whether the trial court abused its discretion by ordering the
remainder of the sentence to be served.  The judgment is affirmed.

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

DEBORAH GRAHAM v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

James R. Hickman, Jr., Sevierville, Tennessee, for the appellant,
Deborah Graham.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; and  Al Schmutzer, Jr., District Attorney
General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Deborah Graham, appeals the trial courts denial of her
petition for post-conviction relief.  The single issue presented for
review is whether the petitioner was denied the effective assistance
of counsel at trial.  The judgment is affirmed.

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

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