TBALink Opinion-Flash

October 26, 1998 -- Volume #4 -- Number #153

What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
05-New Opinion(s) from the Tennessee Supreme Court
09-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
00-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00-New Opinion(s) from the Tennessee Court of Appeals
00-New Opinion(s) from the Tennessee Court of Criminal Appeals
00-New Judicial Ethics Opinion(s)
00-New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Lucian T. Pera
Editor-in-Chief, TBALink



VICTOR JAMES CAZES
VS.
STATE OF TENNESSEE  

Court:TSC

Attorneys:  

For Appellant:      For Appellee:

PETER D. HEIL       JOHN KNOX WALKUP
Nashville, TN       Attorney General and Reporter
        
                    MICHAEL E. MOORE
                    Solicitor General

                    ELIZABETH T. RYAN
                    Assistant Attorney General
                    Nashville, TN

                    WILLIAM L. GIBBONS
                    District Attorney General

                    JOHN W. CAMPBELL
                    Assistant District Attorney General
                    Memphis, TN                        

Judge:BIRCH

First Paragraph:

We granted Victor James Cazes's application for permission to appeal,
pursuant to Tenn. R. App. P. 11, to determine whether the dismissal
with prejudice of a post-conviction petition bars consideration of a
subsequent one.  We conclude that the dismissal with prejudice compels
dismissal of a later petition that is predicated on grounds in
existence prior to the dismissal of the former petition.

URL:http://www.tba.org/tba_files/TSC/cazesv_opn.WP6
Opinion-Flash

JAMES AND CAROLYN CHRISMAN
VS.
HILL HOME DEVELOPMENT, INC. and JIM HILL

Court:TSC

Attorneys:  

For Appellees:                      For Appellants:

DONALD E. OVERTON                   TERRILL L. ADKINS
GLENNA W. OVERTON                   Knoxville, TN
Knoxville, TN                       
                        

Judge:BIRCH

First Paragraph:

We granted permission to appeal under Rule 11, Tenn. R. App. P., to
Jim Hill and Hill Home Development, Inc., the defendants, in order to
determine whether they are entitled to summary judgment on the
plaintiffs' claims of concealment or nuisance.  With regard to the
claim of concealment, we find that Hill is entitled to summary
judgment because he has demonstrated that the plaintiffs are unable to
prove an essential element of their claim.  As respects the claim of
nuisance, we find that the statute of repose bars that claim, thereby
entitling the defendants to summary judgment.

URL:http://www.tba.org/tba_files/TSC/chrismaj_opn.WP6
Opinion-Flash

JAMES AND CAROLYN CHRISMAN
VS.
HILL HOME DEVELOPMENT, INC. and JIM HILL        

Court:TSC

First Paragraph:

This cause came to be heard upon briefs, argument of counsel, and the
record on appeal from the Court of Appeals.

The Court is of the opinion that under the facts of this case, summary
judgment is appropriate for the claim of fraudulent concealment
against Hill because Hill demonstrated that plaintiffs will be unable
to prove an essential element of the tort.  We are also of the opinion
that summary judgment is appropriate for the  claim of nuisance
against Hill and Hill Home Development because the four-year statute
of repose in Tenn. Code Ann. S 28-3-202 bars that claim.  In
accordance with the opinion filed herewith, it is therefore, ORDERED
AND ADJUDGED by this Court that the judgment of the Court of Appeals
is reversed.

URL:http://www.tba.org/tba_files/TSC/chrismaj_ord.WP6
Opinion-Flash

PREMIUM FINANCE CORPORATION OF AMERICA
VS.
CRUMP INSURANCE SERVICES OF MEMPHIS, INC.,
CRUMP E & S OF MEMPHIS, INC., NORTHLAND INSURANCE COMPANY,
NATIONAL INDEMNITY COMPANY, CANAL INSURANCE COMPANY,
THOMAS JEFFERSON INSURANCE COMPANY, SCOTTSDALE INSURANCE COMPANY,
STRATFORD INSURANCE COMPANY, NATIONAL CASUALTY COMPANY, 
NATIONAL FIRE & CASUALTY COMPANY, 
NATIONAL LIABILITY & FIRE INSURANCE COMPANY, 
NATIONAL FIR & MARINE INSURANCE, CONTINENTAL INSURANCE COMPANY,
LLOYDS OF LONDON, and GLENS FALLS INSURANCE COMPANY 

Court:TSC

Attorneys:  

For Appellee:           For Appellants:
                        Crump Insurance Services of Memphis,
J. ALLAN HANOVER        Inc., f/k/a Crump E & S of Memphis, Inc.
BARBARA B. LAPIDES      J. RICHARD BUCHIGNANI
JEFFERY S. ROSENBLUM    ROSS HIGMAN
Memphis, TN             Memphis, TN

                        Northland Insurance Company
                        RICHARD GLASSMAN
                        Memphis, TN

                        National Indemnity Company
                        National Liability & Fire Insurance Company
                        National Fire & Marine Insurance Company
                        JOHN D. RICHARDSON
                        Memphis, TN
 
                        Canal Insurance Company
                        Thomas Jefferson Insurance Company
                        Scottsdale Insurance Company
                        National Casualty Company
                        National Fire and Casualty Company
                        HENRY T. V. MILLER
                        WILLIAM A. LUCCHESI
                        Memphis, TN

                        Stratford Insurance Company
                        JAMES R. GARTS, JR.
                        Memphis, TN

                        Continental Insurance Company
                        Glens Falls Insurance Company
                        SAM B. BLAIR, JR.
                        Memphis, TN
                        

Judge:BIRCH

First Paragraph:

In the current case, the plaintiff, a premium finance company, alleged
damage as a result of the defendant insurance companies' failure to
return unearned premiums to the plaintiff after cancellation of the
underlying insurance contracts.  The defendants filed motions to
dismiss for failure to state a claim upon which relief can be granted,
which the trial court granted as to the plaintiff's claim under the
Premium Finance Company Act, Tenn. Code Ann. S 56-37-101 et seq.
(1994) (hereinafter "the Act").  The trial court certified its order
as final in accordance with Tenn. R. Civ. P. 54.02, and the plaintiff
appealed.  The Court of Appeals reversed the trial court, holding that
the plaintiff had stated a cause of action under Tenn. Code Ann. S
56-37-111 (1994).

URL:http://www.tba.org/tba_files/TSC/premium_opn.WP6
Opinion-Flash

THE CITY OF WHITE HOUSE
VS.
LAWRENCE RAY WHITLEY, District Attorney General for the
Eighteenth Judicial District of the State of Tennessee, JOHN CARNEY,
District Attorney General For the Nineteenth Judicial District of the
State of Tennessee and STATE OF TENNESSEE
AND
TAYLOR (TED) EMERY, Sheriff for Robertson County, Tennessee;
J.D. VANDERCOOK, Sheriff for Sumner County, Tennessee

Court:TSC

Judge:HOLDER

First Paragraph:

I respectfully dissent from the majority's opinion.  The legislature
has set forth the requirements for judges.  While a rule mandating
attorney municipal judges may be desirable, no provision of either the
state or federal constitution requires attorney judges.  Mere
disagreement with legislative mandate is neither a sufficient reason
for this Court to redraft legislation nor a sufficient reason for this
Court to redefine the Tennessee Constitution.  The policy rejected as
unconstitutional by the majority was not only the norm when the
constitution was drafted, but also has passed federal constitutional
muster in North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d
534 (1976).  Accordingly, I would hold that this area is purely one of
legislative prerogative and reserved for the voting public.  I further
disagree with the majority's holding that rules designed to eliminate
practices which deprive accused of their fundamental right to fair
trials should not be applied retroactively.

URL:http://www.tba.org/tba_files/TSC/whitehou_dis.WP6
Opinion-Flash

NORMA J. BAKER
VS.
SALLY BEAUTY SUPPLY and THE TRAVELERS INSURANCE COMPANY	

Court:TSC - Workers Comp Panel

Attorneys:   

For the Appellants:			For the Appellee:

Joseph H. Crabtree			James F. Butler
Gayle B. Lakey				Jonathan O. Steen
80 Monroe Ave, Ste 500		Spragins, Barnett, Cobb & Butler
Memphis, TN  38103			P.O. Box 2004
							Jackson, TN  38302-2004                       

Judge:BYERS

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. ¤ 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The trial
judge found the plaintiff had suffered a 55 percent vocational
impairment to her left leg and also awarded medical expenses in the
amount of $1,112.00, which the defendant says were unauthorized.

URL:http://www.tba.org/tba_files/TSC_WCP/bakernor_opn.WP6
Opinion-Flash

LINDA BUTLER
VS.
LUMBERMEN'S MUTUAL CASUALTY INSURANCE CO.

Court:TSC - Workers Comp Panel

Attorneys:   

For the Appellant:              For the Appellee:
D. Brett Burrow                 Floyd Don Davis
Sharon E. England               John R. Colvin
Brewer, Krause & Brooks         Floyd Don Davis, P.C.
611 Commerce St, Ste 2600       201 First Avenue, N.W.
P. O. Box 23890                 Winchester, TN 37398
Nashville, TN 37202-3890                       

Judge:INMAN

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. The
Chancellor found that the plaintiff sustained an injury to her left
foot which resulted in a 30 percent vocational impairment.  This
finding is challenged on appeal.  Review of the findings of fact made
by the trial court is de novo upon the record of the trial court,
accompanied by a presumption of the correctness of the finding, unless
the preponderance of the evidence is otherwise.  Tenn. Code Ann. S
50-6-225(e)(2).  Stone v. City of McMinnville, 896 S.W.2d 548, 550
(Tenn. 1995).

URL:http://www.tba.org/tba_files/TSC_WCP/butler_opn.WP6
Opinion-Flash

CONNIE S. COVINGTON
VS.
NAGLE INDUSTRIES, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:          For the Appellee:
James B. Crenshaw           Sean Antone Hunt
108 South Second Street     Spicer, Flynn & Rudstrom, PLLC
Clarksville, TN 37040       424 Church Street, Suite 1350
                            Nashville, TN 37219-2305                         

Judge:

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 case
the plaintiff ran afoul of the well-settled principle that the issues
in a workers' compensation case, like any other, must be proved by a
preponderance of the evidence.  The trial judge ruled that the
appealing plaintiff failed to carry her burden of proving causation
and dismissed her claim for permanent, partial disability benefits. 
Our review of the findings of fact made by the trial court is de novo
upon the record of the trial court, accompanied by a presumption of
the correctness of the finding, unless the preponderance of the
evidence is otherwise.  Tenn. Code Ann. S 50-6-225(e)(2).  Stone v.
City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995). 

URL:http://www.tba.org/tba_files/TSC_WCP/covingto_opn.WP6
Opinion-Flash

INGRAM BOOK COMPANY 
VS.
STACEY FITZGERALD   

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                  For Appellee:

David B. Burrow                 Herbert M. Schaltegger
Brewer, Krause & Brooks         Thomas, Henderson & Pate
Nashville, Tennessee            Murfreesboro, Tennessee
                         

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. section 50-6-225(e)(3) for hearing and reporting
of findings of fact and conclusions of law.  In this appeal, the
employer, Ingram Book Company, contends the evidence preponderates
against the trial court's findings that (1) the employee's injury was
one arising out of and in the course of employment, (2) the award is
not barred by the last injury rule and (3)  the claimant retains a
twelve percent  vocational disability award.  As discussed below, the
panel has concluded the judgment should be affirmed.

URL:http://www.tba.org/tba_files/TSC_WCP/ingram_opn.WP6
Opinion-Flash

BRUCE WESLEY LINK
VS.
THE AEROSTRUCTURES CORPORATION

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:          For the Appellee:
Frederick W. Hodge          James G. Stranch, III
Court Square Building       Branstetter, Kilgore, Stranch 
300 James Robertson Parkway         & Jennings
Nashville, TN 37201-1107    227 Second Avenue North, 4th Flr.
                            Nashville, TN 37201-1631                         

Judge:INMAN

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. A finding of
12 percent disability to the plaintiff's left leg is derided by the
employer who strenuously argues that the evidence strongly weighs
against the judgment and that the claim for permanent, partial
disability should be denied.

URL:http://www.tba.org/tba_files/TSC_WCP/link_opn.WP6
Opinion-Flash

ROBBY McCURRY
VS.
CONTAINER CORPORATION OF AMERICA, a Division of
Jefferson Smurfit Corporation

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:                  For the Appellee:

Martin L. Ellis &                   David H. Dunaway
Vonda M. Laughlin                   Dunaway & Associates
Butler, Vines & Babb, P.L.L.C.      LaFollette, Tennessee                        

Judge:BARKER

First Paragraph:

In this workers' compensation action, the employer, Container
Corporation of America (C.C.A.), defendant-appellant, has appealed
from a judgment of the Chancery Court of Campbell County finding the
plaintiff-appellee's injuries arose from a work-related dispute and
were thus compensable.  The Special Workers' Compensation Appeals
Panel, upon reference for findings of fact and conclusions of law
pursuant to Tenn. Code Ann. S 50-6-225 (e)(5) (Supp. 1997), affirmed
the trial court.  Thereafter, C.C.A. filed a motion for full court
review of the Panel's decision pursuant to Tenn. Code Ann. S
50-6-225(e)(5)(B)(Supp. 1997).

We granted the appeal in this case to determine whether the appellee's
injuries arose out of and in the course of his employment with the
C.C.A.   For the reasons provided herein, we conclude that the
injuries did not occur during the course of the appellee's employment.
 The decision of the Panel is reversed and the case is dismissed.


URL:http://www.tba.org/tba_files/TSC_WCP/mccurryr_opn.WP6
Opinion-Flash

WILLIAM McDOWELL
VS.
HENRY I. SIEGEL COMPANY, INC. and ROYAL INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellants:						For the Appellee:

Stephen R. Butler						Kenneth L. Walker
Jackson, Shields, Yeiser & Cantrell		Walker Law Office
262 German Oak Drive					P. O. Box 530
Cordova, TN  38018						Lexington, TN  38351
                        

Judge:TATUM

First Paragraph:

This workersÕ compensation appeal has been referred to the Special
WorkersÕ Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. ¤ 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The trial
judge found that the plaintiff had sustained thirty percent permanent
partial disability to each arm and entered judgment accordingly.

URL:http://www.tba.org/tba_files/TSC_WCP/mcdowell_opn.WP6
Opinion-Flash

DIANNA SKELTON
VS.
ROBERTSHAW CONTROLS COMPANY and TRAVELERS INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For the Appellant:              For the Appellee:
William G. McCaskill, Jr.       Hugh Green
Wm. Ritchie Pigue               100 Public Square
TAYLOR, PHILBEN, PIGUE          Lebanon, TN 37087
MARCHETTI & BENNETT, PLLC   
One Union Street
P. O. Box 198169
Nashville, TN 37219-8169                        

Judge:INMAN

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. The trial
court awarded Dianna Skelton ["employee"] workers' compensation
benefits based on one-hundred percent permanent, total disability. 
Robertshaw Controls Company ["employer"] appeals, challenging the
extent of employee's disability, the admissibility of the opinion of a
clinical psychologist as to permanency of employee's disability, and
the failure of the trial court to apply the multiplier caps set forth
in T.C.A. S 50-6-241(a)(1).


URL:http://www.tba.org/tba_files/TSC_WCP/skelton_opn.WP6
Opinion-Flash

JAMES W. SMITH
VS.
WILSON COUNTY CONCRETE COMPANY, INC. and AETNA CASUALTY AND SURETY
COMPANY

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellant:              For the Appellee:
Alice Margaret Essary           Hugh Green
William B. Jakes, III           100 Public Square
Howell & Fisher, PLLC           Lebanon, TN 37087
300 James Robertson Parkway
Court Square Building
Nashville, TN 37201
                        

Judge:INMAN

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 January,
1997, the Supreme Court affirmed a judgment that the plaintiff was
totally and permanently vocationally disabled, with benefits awarded
accordingly. The plaintiff returned to the trial court complaining
that the judgment was not being satisfied in a timely way.  He alleged
that the accrued benefits were not paid timely, and that his "weekly
checks" were sporadic.  To correct this problem he filed a motion to
require the defendant to pay the entire judgment or, alternatively,
"that the Court determine the interest as the parties were in dispute
as to the amount and the method by which it should be figured."

URL:http://www.tba.org/tba_files/TSC_WCP/smithjas_opn.WP6


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