April 1, 1999
Volume 5 -- Number 044

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

This Issue (IN THIS ORDER):
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
20 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


DEBRA FAY ABBOTT, surviving spouse of Jeffrey Abbott,and
RAYMOND MITCHELL ABBOTT, a minor, by next friend, Debra Fay Abbott



J. Anthony Farmer, Knoxville, for the Appellants.

Linda J. Hamilton Mowles, Knoxville, for the Appellee.


First Paragraph:

Jeffrey Abbott was killed in an industrial accident on the premises of
the defendant, who had engaged his services through Atwork Personnel
Services, Inc.
Atwork and its insurer settled the workers' compensation claim of the
surviving spouse of Jeffrey Abbott, who filed this tort action against
the defendant for damages for the alleged wrongful death of her
husband.  The defendant moved for summary judgment, pleading the bar
of the workers' compensation law on the theory that the decedent was
its special employee and thus both parties were bound by the workers'
compensation law.  The trial judge granted the motion, holding that
workers' compensation was the exclusive remedy because the defendant
was the statutory employer of the deceased.  The correctness of this
ruling is the issue presented.


IN THE MATTER OF MACK JAY BELLAIRE LOUIS C. HURLEY and B. VESTINE HURLEY VS. MACK JAY BELLAIRE, M. D. and FAYE SAUCEMAN Court:TCA Attorneys: MARK A. COWAN OF MORRISTOWN FOR APPELLANTS EDWARD R. SEMPKOWSKI OF MORRISTOWN FOR APPELLEE MACK JAY BELLAIRE, M.D. Judge:GODDARD First Paragraph: This is a petition filed by Louis C. Hurley and his wife B. Vestine Hurley against Mack Jay Bellaire, M.D., and his wife Faye Sauceman. The petition seeks the appointment of a conservator for Dr. Bellaire and an injunction "against Respondent Faye Sauceman from exercising any control over Bellaire or his property." http://www.tba.org/tba_files/TCA/Bellairm_opn.WP6
CURTIS EUGENE BUNCH VS. SYNDIE TARENE MURPHY BUNCH Court:TCA Attorneys: For Appellant For Appellee CHARLES H. CHILD BROWDER G. WILLIAMS O'Connor, Petty, Child Harriman, Tennessee & Boswell Knoxville, Tennessee Judge:SUSANO First Paragraph: This is a divorce case that was before us on an earlier occasion. On the first appeal, we held that the trial court had improperly valued one of the marital assets. Accordingly, we directed the trial court to "redetermin[e]" its division of property between the parties. Following our remand, the trial court concluded that the defendant, Syndie Tarene Murphy Bunch ("Wife"), was entitled to an additional $12,500 as her share of the increase in value of her husband's business -- an increase that had occurred in the last year of the parties' marriage. Being dissatisfied with the trial court's new judgment, Wife appeals. http://www.tba.org/tba_files/TCA/Bunchce_opn.WP6
SANDY LYNN BURRELL VS. MARK ALLEN BURRELL Court:TCA Attorneys: M. DREW ROBINSON, BATES & ROBINSON, P.A., Cleveland, for Defendant/Counter-Plaintiff/Appellee. JES BEARD, Chattanooga, for Plaintiff/Counter-Defendant/Appellant. Judge:FRANKS First Paragraph: In this child custody dispute between the parents, the Trial Judge changed the custody from the mother to the father jointly with the paternal grandparents. The Judge directed that the children were not to be left alone with the father's girlfriend, and the children were not to spend the night with the father if the father and the girlfriend were staying together in the same household. The mother was granted visitation and ordered to pay child support. http://www.tba.org/tba_files/TCA/Burrells_opn.WP6
CLEVELAND SURGERY CENTERL.P., and OCOEE PHYSICAL THERAPY, INC. VS. BRADLEY COUNTY MEMORIAL HOSPITAL, BRADLEY BUILDING LLC, and OCOEE HEALTH ALLIANCE Court:TCA Attorneys: Michael E. Callaway, Cleveland, for Appellant Bradley County Memorial Hospital. Donald J. Cocke, Memphis, for Appellant Ocoee Health Alliance. William H. West, Nashville, and Buddy B. Presley, Jr., Chattanooga, for Appellees Cleveland Surgery Center and Ocoee Physical Therapy, Inc. William B. Hubbard and Jerry W. Taylor, Nashville, for Amici Curiae, Tennessee Hospital Association and Health Systems and Hospital Alliance of Tennessee, Inc. Judge:INMAN First Paragraph: Two private health care providers sought a declaratory judgment that a county-owned hospital and its business partners had entered into business ventures which were ultra vires and in violation of the Tennessee Constitution. The trial court held that the county hospital had exceeded its authority by entering into unconstitutional business dealings with private entities, and issued an injunction permanently restraining the hospital from participating in these or any similar ventures. We affirm the judgment of the trial court as to the specific business ventures involving these defendants. We modify the judgment by narrowing the permanent injunction consistent with this opinion. http://www.tba.org/tba_files/TCA/Clevelan_ca3.WP6
RALPH E. DAVIS, JR., et ux CYNTHIA DAVIS VS. ALEXSIS, INC. Court:TCA Attorneys: SAM JONES, Chattanooga, for Plaintiffs-Appellants. JOHN THOMAS FEENEY and M. KEITH SISKIN, FEENEY & MURRAY, PLLC, Nashville, for Defendant-Appellee. Judge:FRANKS First Paragraph: This is an action by a worker against an adjusting company hired by a workers' compensation carrier to manage the worker's claim. The complaint charges that the defendant improperly stopped paying temporary total disability benefits which caused the worker to suffer serious emotional and mental injury by aggravating an underlying past traumatic stress disorder. Defendant later resumed payments. http://www.tba.org/tba_files/TCA/Davisr_opn.WP6
FIDELITY & CASUALTY CO. OF NEW YORK VS. GREGORY ENTERTAINMENT, INC. Court:TCA Attorneys: DAVID A. LUFKIN LUFKIN HENLEY & CONNER Attorneys at Law 530 S. Gay St. 7th Floor Knoxville, Tennessee 37902 Attorney for Plaintiff/Appellant J. RUSSELL FARRAR JOHN E. CARTER FARRAR & BATES, L.L.P. 211 Seventh Avenue, N., Suite 320 Nashville, Tennessee 37219-1823 Attorneys for Defendant/Appellee Judge:COTTRELL First Paragraph: The primary issue in this case is whether the trial court should have granted Plaintiff's motion to amend its complaint to correct deficiencies that were raised by Defendant in a motion for judgment on the pleadings. Plaintiff disputes that the Complaint is deficient, but requested to be allowed to amend the Complaint by attaching discoverable documents that would have been introduced at trial. We are of the opinion that leave to amend should have been granted. http://www.tba.org/tba_files/TCA/Fidelity_opn.WP6
DAVID HILL VS. PAMELA GAYE HILL Court:TCA Attorneys: DENISE TERRY STAPLETON OF MORRISTOWN FOR APPELLANT MARTHA MEARES and ANNE T. McCOLGAN OF MARYVILLE Judge:GODDARD First Paragraph: Pamela Gay Hill appeals a divorce judgment rendered by the Hamblin County Circuit Court. Ms. Hill raises three issues on appeal: ISSUE ONE The Trial Judge erred in not considering evidence on the issue of alimony. ISSUE TWO The Trial Judge erred in mechanically dividing the marital property in proportion to debts assumed by the parties. ISSUE THREE The Trial Court erred in allowing standard, unsupervised visitation with the husband. http://www.tba.org/tba_files/TCA/Hillda_opn.WP6
CHRISTINA HOOD VS. PRIME TIME RENTALS, INC. Court:TCA Attorneys: RICHARD J. BRAUN 501 UNION STREET SUITE 500 NASHVILLE, TENNESSEE 37219 ATTORNEY FOR PLAINTIFF/APPELLANT JACK, LYON & JONES PHILLIP K. LYON BRUCE H. PHILLIPS 11 MUSIC CIRCLE SOUTH, SUITE 202 NASHVILLE, TENNESSEE 37203 ATTORNEYS FOR DEFENDANT/APPELLEE Judge:COTTRELL First Paragraph: The Plaintiff, Christina Hood, appeals the dismissal of her complaint and the imposition of court costs in state court, following the removal of her suit to federal court by the Defendant. In this appeal Plaintiff asserts that, under 28 U.S.C. S1446(d), once a case is removed to federal court, state court has no authority to dismiss a case or assess costs, unless and until the case is remanded. We agree. http://www.tba.org/tba_files/TCA/Hoodc_opn.WP6
MARY F. HORTON VS. MOUNTAIN LIFE INSURANCE COMPANY Court:TCA Attorneys: Lewis S. Howard, Jr., Knoxville, for Appellant. Phillip L. Boyd, Rogersville, for Appellee. Judge:INMAN First Paragraph: This is the second appeal of this case. The beneficiary of a policy of life insurance issued by the defendant filed the action to recover the proceeds. Following the close of the plaintiff's case, the trial judge directed a verdict for the defendant upon a finding that the death of the insured was not within the coverage provided. http://www.tba.org/tba_files/TCA/Horton_ca3.WP6
JOHN JACO VS. DEPARTMENT OF HEALTH, BUREAU OF TENNCARE Court:TCA Attorneys: THOMAS F. BLOOM, for Plaintiff-Appellant PAUL G. SUMMERS, ATTORNEY GENERAL & REPORTER, and MICHELLE HOHNKE JOSS, ASSISTANT ATTORNEY GENERAL, for Defendant-Appellee. Judge:MCMURRAY First Paragraph: This is an appeal from a chancery court order affirming a final order from an administrative hearing. Appellant John Jaco appeals the order denying his application for Medicaid reimbursement for inpatient nursing home care after the Davidson County Chancery Court concluded that the record contained substantial and material evidence to support the Department of Health's ("Department") decision to deny Medicaid reimbursement. http://www.tba.org/tba_files/TCA/jacoj_opn.WP6
ROBERT A. KEENER, and THE KEENER CORPORATION VS. KNOX COUNTY, TENNESSEE and THE ROGERS GROUP, INC. Court:TCA Attorneys: DONALD E. OVERTON and GLENNA W. OVERTON OF KNOXVILLE FOR APPELLANTS JOHN KNOX WALKUP, Attorney General and Reporter, NASHVILLE, and CYNTHIA L. PADUCH, Senior Counsel, State Attorney General's Office, Knoxville, FOR APPELLEE KNOX COUNTY, TENNESSEE R. FRANKLIN NORTON, GEOFFREY D. KRESSIN and R. DAVID BENNER OF KNOXVILLE FOR APPELLEE THE ROGERS GROUP, INC. Judge:GODDARD First Paragraph: Robert A. Keener and the Keener Corporation appeal a summary judgment granted in favor of Knox County and The Rogers Group, Inc., in a suit seeking as to Knox County compensation on the theory of inverse condemnation and against Rogers, for damages to their property as a result of the construction of what is known in the record as the Henley Connector in downtown Knoxville. http://www.tba.org/tba_files/TCA/Keenerr_opn.WP6
IN THE MATTER OF: THE ESTATE OF CALLIE T. KEY, DECEASED HOWARD WALDEN RODDY VS. HAMILTON COUNTY NURSING HOME Court:TCA Attorneys: For Appellant For Appellee JOHN W. MCCLARTY ARTHUR C. GRISHAM, JR. Chattanooga, Tennessee Grisham, Knight & Hooper Chattanooga, Tennessee Judge:SUSANO First Paragraph: This appeal requires us to decide whether a claim against an estate was timely filed. Howard Walden Roddy ("Roddy"), executor of the Estate of Callie T. Key ("the Estate"), appeals from an order of the trial court allowing the claim of Hamilton County Nursing Home ("the Nursing Home"). He raises one issue that presents the following question for our resolution: Is the Nursing Home's claim time-barred under the provisions of T.C.A. SS 30-2-306 through 30-2-310 (Supp. 1998)? http://www.tba.org/tba_files/TCA/Keyct_opn.WP6
GARY LYNN MACK VS. CHARLIE JONES, et al. Court:TCA Attorneys: GARY LYNN MACK, pro se. PAUL SUMMERS, Attorney General and Reporter, MICHAEL E. MOORE, Solicitor General, and ABIGAIL TURNER, Assistant Attorney General, Nashville, for Appellees Jones, Armes, Newberry & Elmore. Judge:FRANKS First Paragraph: In this action, plaintiff a prisoner, named Charlie Jones, the warden of the Morgan County Regional Correction Facility, Rick Elmore, Regina Armes and Carey Newberry as defendants, alleging a violation of his civil rights under 42 U.S.C. S1983. http://www.tba.org/tba_files/TCA/Mackg_opn.WP6
JOANN WHITE MOONEY, Individually and as Guardian and Next Friend of ALEXANDER FINDLAY MARTIN MOONEY, A Minor VS. JOE SNEED, A. ATKINSON, JOHN DOE and THE CITY OF MEMPHIS Court:TCA Attorneys: For the Plaintiffs/Appellants: For the Defendants/Appellees: Gary K. Smith David A. King Darrell E. Baker, Jr. E. Todd Presnell Estelle C. Gaerig Nashville, Tennessee Memphis, Tennessee Buckner Wellford Memphis, Tennessee Judge:LILLARD First Paragraph: This is a suit against two emergency medical service technician-paramedics for alleged negligent performance of emergency services. The plaintiff asserts that an improperly placed endotracheal tube caused oxygen deprivation and aggravated the patient's injuries. The trial court granted summary judgment in favor of the defendant technicians, holding that they are not "health care practitioners" under Tennessee Code Annotated S 29-30-310(b), and thus are immune from suit under the Tennessee Governmental Tort Liability Act (TGTLA). We reverse. http://www.tba.org/tba_files/TCA/mooneyjw_opn.WP6
JAMES M. RUTH and wife ANNA RUTH; TOM BURNETTE and wife BRENDA BURNETTE; CHARLIE SMITH and wife LIVONIA SMITH VS. COVE CREEK, LLC Court:TCA Attorneys: RICHARD R. RUTH, JR., OF CHATTANOOGA FOR APPELLANTS LEWIS S. HOWARD, JR., OF KNOXVILLE FOR APPELLEE Judge:GODDARD First Paragraph: The question presented by this appeal is whether the Chancellor was correct in holding the restrictions as to lots in Woodland Acres Subdivision did not preclude its use as a commercial for profit fire hall. http://www.tba.org/tba_files/TCA/Ruthjm_opn.WP6
STATE OF TENNESSEE, HAMILTON COUNTY DEPARTMENT OF CHILDREN'S SERVICES VS. JENNIFER KOBEL and THOMAS KYLE CLAYTON Court:TCA Attorneys: JOHN G. McDOUGAL OF CHATTANOOGA FOR APPELLANT PAUL G. SUMMERS, Attorney General and Reporter, and DOUGLAS EARL DIMOND, Assistant Attorney General, NASHVILLE, FOR APPELLEE Judge:GODDARD First Paragraph: In this suit the State of Tennessee Department of Children's Services filed a petition to terminate the parental rights of Jennifer Kobel and Thomas Kyle Clayton, parents of Seth Thomas Isaiah Kobel, who was born on January 30, 1996. http://www.tba.org/tba_files/TCA/Statedoc_opn.WP6
SHADY COVE HOMEOWNERS ASSOCIATION, INC. VS. LARRY TERRY, AL COLLINGSWORTH, and MARILYN JOYCE COLLINGSWORTH Court:TCA Attorneys: Kenneth W. Holbert, Knoxville, for the Appellant. Michael G. Hatmaker, Jacksboro, for the Appellees. Judge:INMAN First Paragraph: The right of the plaintiffs to the unrestricted use of a private road providing access to Norris Lake is the issue in this case. The deeds of the plaintiffs and those of their predecessors in title granted them a right of way and private road for recreational purposes. Subsequently, the defendant acquired the underlying fee in the road, and installed a locked gate, a key to which required membership in the defendant organization which owned the road. http://www.tba.org/tba_files/TCA/Terry_ca3.WP6
LOIS DIANNE WINBUSH VS. THOMAS DALE WINBUSH Court:TCA Attorneys: Angela R. Scott, BISHOP, SCOTT & BISHOP, Henderson, Tennessee Attorney for Plaintiff/Appellant. David Hardee, HARDEE, MARTIN, JAYNES & IVY, P.A., Jackson, Tennessee Attorney for Defendant/Appellee. Judge:FARMER First Paragraph: Lois Dianne Winbush (Wife) and Thomas Dale Winbush (Husband) were divorced in 1990. The parties entered into a marital dissolution agreement (MDA) which was incorporated into the final decree. As pertinent to this appeal, the parties agreed that Husband would pay child support in the amount of $200 per month for the parties' one minor child. The MDA further provided that [t]he amount to be paid by the Husband to the Wife for the support and maintenance of the minor child of the parties is based upon the Wife's employment at Grinnell and the Husband's present employment as a Supervisor with the Markham Company. Also, there is taken into consideration that the Wife is to be the owner of the former home of the parties and entitled to possession thereof, and the Husband's present physical condition. http://www.tba.org/tba_files/TCA/winbushl_opn.WP6
IN THE MATTER OF: THE ESTATE OF A.W. WOLFE, DECEASED BRENDA MATTHEWS VS. RICHARD BRADLEY WOLFE, Executor Court:TCA Attorneys: For Appellant For Appellee ROBERT L. OGLE, JR. R.B. HAILEY Ogle & Wallace, P.C. Sevierville, Tennessee Sevierville, Tennessee Judge: SUSANO First Paragraph: This lawsuit involves a claim filed by Brenda Matthews ("Matthews") against the Estate of A.W. Wolfe ("the Estate"). Mr. Wolfe died testate on October 17, 1989. In her complaint, Matthews seeks recovery for personal services rendered by her to Mr. Wolfe. The probate court granted the Estate's motion to dismiss. Matthews appeals, raising the sole issue of whether the probate court erred in dismissing her claim. We affirm. http://www.tba.org/tba_files/TCA/Wolfeaw_opn.WP6

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