February 28, 2001 Volume 7 -- Number 037 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. This Issue (IN THIS ORDER):   00 New Opinion(s) from the Tennessee Supreme Court 04 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 11 New Opinion(s) from the Tennessee Court of Appeals 00 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   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink PEGGY BIRMINGHAM v. PORTER-CABLE CORPORATION Court:TSC - Workers Comp Panel Attorneys: M. V. Tichenor, Memphis, Tennessee, for the Appellant, Porter-Cable Corporation. Gayden Drew, IV, Jackson, Tennessee, for the Appellee, Peggy Birmingham. Judge: MALOAN 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. S50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant, Porter-Cable Corporation, appeals the judgment of the Chancery Court of Madison County which awarded the plaintiff, Peggy Birmingham, permanent partial disability of sixty percent (60%) to the body as a whole. For the reasons stated in this opinion, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/birmingham.wpd WILLIAM R. CLARK v. WILLAMETTE INDUSTRIES, INC. Court:TSC - Workers Comp Panel Attorneys: Michael E. Large, Bristol Tennessee, for the appellant, William R. Clark. Michael L. Forrester, Kingsport, Tennessee, for the appellee, Willamette Industries, Inc. 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 dispositive issue is whether the evidence preponderantly proved that the condition of the plaintiff's right knee was causally related to a fall he suffered in March 1997. The expert proof was divergent, and the plaintiff's credibility was remarked by the trial judge. http://www.tba.org/tba_files/TSC_WCP/clarkwillamet.wpd JAMES EAKES v. GOODYEAR TIRE & RUBBER COMPANY Court:TSC - Workers Comp Panel Attorneys: Mike H. White, Cordova, Tennessee, and John E. Dunlap, Memphis, Tennessee, for the appellant, James Eakes. James M. Glasgow, Union City, Tennessee, for the appellee, Goodyear Tire & Rubber Company. Judge: LOSER First Paragraph: This workers' compensation appeal has been referred to the Supreme Court's Special Workers' Compensation Appeals Panel pursuant to 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 appeal, the employee contends the evidence preponderates against the trial court's finding that the preponderance of the evidence fails to establish a causal connection between his injury and his employment. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/eakesjam.wpd BETTY JEANE SCOTT, v. CUMBERLAND HEALTH CARE CENTER, INC., d/b/a GENERAL CARE CONVALESCENT CENTER, et al. Court:TSC - Workers Comp Panel Attorneys: Jill A. Hanson, Nashville, Tennessee, for the appellants Cumberland Health Care Center, Inc., d/b/a General Care Convalescent Center and Legion Insurance Company. Stacy A. Turner, Clarksville, Tennessee, for the appellee, Betty Jeane Scott. 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 Tennessee Code Annotated 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 found the plaintiff had suffered an injury arising out of her employment with the defendant and awarded her thirty-five percent vocational disability to the body as a whole. Further, the trial court ordered the defendant to pay medical expenses incurred by the plaintiff as a result of the injury. The defendant argues the evidence does not support the finding of the trial court as to a compensable injury and the vocational disability, and claims the medical bills incurred by the plaintiff were not necessary We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/scottbettyjeane.wpd MOHAMED F. ALI v. HOWARD CARLTON, et al. Court:TCA Attorneys: Mohamed F. Ali, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mark A. Hudson, Senior Counsel, for the appellees, Howard Carlton and David Torbett. Judge: SUSANO First Paragraph: In each of these consolidated appeals, the trial court dismissed a complaint filed by Mohamed F. Ali, a prisoner in state custody. We affirm in both cases. http://www.tba.org/tba_files/TCA/AliM.wpd ELIZABETH NICOLL DORAMUS, et al. v. ROGERS GROUP, INC., AND T.W. COMER Court:TCA Attorneys: James V. Doramus, Nashville, Tennessee for the appellants, Elizabeth Nicoll Doramus and Victoria Lynn Doramus, b/n/f James V. Doramus. W. Lee Corbett, David F. Lewis, Thor Y. Urness, Nashville, Tennessee, for the appellees, Rogers Group, Inc., and T.W. Comer. Judge: COTTRELL First Paragraph: This appeal involves an intrafamily dispute over the use of a 498 acre farm. The conflict's seeds were sown nearly fifty years ago when the now-deceased owners conveyed the farm to a corporation and entered into a long-term lease which created successive leasehold tenancies for life for them, followed by their son, T. W. Comer. T. W. Comer's heirs at law were given the option to choose to become tenants upon his death. Years later, after T. W. Comer had become the tenant, he and Rogers Group, Inc., a mining company which had purchased the remainder interest in the farm, entered into an agreement involving the removal of limestone from the property. Mr. Comer's daughters and his granddaughters responded by commencing this action, seeking to prevent any mining on the property. After the daughters voluntarily dropped their claims, the trial court dismissed the complaint, and the granddaughters appealed. We affirm the trial court's ruling because we find that the granddaughters' interest is not sufficient to warrant an injunction against the lessor and the current lessee. http://www.tba.org/tba_files/TCA/doramuse.wpd JAMES THOMAS FRAYSIER v. KAREN KAY SINGLETON FRAYSIER Court:TCA Attorneys: Nat H. Thomas, Kingsport, Tennessee, for the Appellant, James Thomas Fraysier. R. Wayne Culbertson, Kingsport, Tennessee, for the Appellee, Karen Kay Singleton Fraysier. Judge: SWINEY First Paragraph: James Thomas Fraysier ("Husband") filed a complaint seeking a divorce from Karen Kay Singleton Fraysier ("Wife") on the grounds of inappropriate marital conduct or, in the alternative, irreconcilable differences. Wife filed an answer and counterclaim seeking a divorce on the same grounds. The parties agreed upon the distribution of the marital assets, which was approved by the Trial Court. The two issues to be decided at trial were who should be granted the divorce and whether Wife was entitled to alimony. The Trial Court determined that Husband was entitled to a divorce on the basis of inappropriate marital conduct and that Wife was entitled to rehabilitative alimony in the amount of $600.00 per month for a period of 48 months or until further order of the court. Both parties appeal the Trial Court's determination with regard to alimony. We affirm. http://www.tba.org/tba_files/TCA/fraysierjt.wpd FTA ENTERPRISES, INC. v. POMEROY COMPUTER RESOURCES, INC., and DANIEL K. COLE Court:TCA Attorneys: Stephen E. Roth, Knoxville, Tennessee, for Appellant, Pomeroy Computer Resources, Inc. Mark S. Dessauer, Kingsport, Tennessee, for Appellant, Daniel K. Cole. Hugh W. Morgan and John E. Winters, Knoxville, Tennessee, for Appellee, FTA Enterprises, Inc. Judge: FRANKS First Paragraph: In this action for interference with business relations, interference with contract, breach of fiduciary duty, et., a jury awarded both compensatory and punitive damages in differing amounts against the defendants. The Trial Judge approved the jury verdicts and defendants have appealed. We affirm. http://www.tba.org/tba_files/TCA/ftainc.wpd MARY F. HALL, et al. v. MARY ROSE PIPPIN, et al. Court:TCA Attorneys: Mary Rose Pippin and Dale Delaney, Baxter, Tennessee, pro se. Judge: KOCH First Paragraph: This is an original contempt proceeding filed by the appellants against the Clerk and Master of the Chancery Court for Putnam County in a now-concluded appeal. The appellants assert that the clerk and master knowingly and willfully violated our September 3, 1998 order directing her to file a supplemental record containing seven exhibits that had not been previously transmitted to this court. We have determined that we no longer have jurisdiction to consider the contempt motion because it was not filed until after our jurisdiction over the appeal had ended. http://www.tba.org/tba_files/TCA/HallMF.wpd JOSEPH HOUGH v. STATE OF TENNESSEE Court:TCA Attorneys: Joseph Hough, Claimant, Nashville, Tennessee, Pro Se Paul G. Summers, Attorney General & Reporter, and Abigail Turner, Assistant Attorney General, Nashville, Tennessee, for Respondent, State of Tennessee Judge: GODDARD First Paragraph: Joseph Hough sues the State of Tennessee seeking damages for conversion of his personal property by law enforcement officers employed by Greene County. On motion of the State, the Trial Court dismissed the case on two grounds. First, that a timely response was not made to the motion to dismiss, and second, it is alleged that officers of Greene County, not the State of Tennessee, converted his property. We affirm. http://www.tba.org/tba_files/TCA/houghjos.wpd MARY JARMAKOWICZ, et al. v. BILLY SUDDARTH, et al. Court:TCA Attorneys: William E. Long, Jr., C. Eric Stevens, and Taylor B. Mayes, Nashville, Tennessee, for the appellants, Mary Jarmakowicz and Mark Heeney. Philip Kelly and Gwynn Smith, Gallatin, Tennessee, for the appellees, Billy Suddarth, Angela Suddarth and Nationwide Travel Services, LLC. Judge: COTTRELL First Paragraph: This appeal arises out of a dispute over the purchase of Nationwide Travel Services, LLC. The jury found that the Sellers were still the owners of the agency and found for Buyers on the Sellers' claim for breach of contract. The jury found for Buyers on their claims of fraud and deceit, conversion and abuse of process and awarded compensatory damages. At the close of the proof, the trial court granted Sellers' motion for directed verdict on the issue of punitive damages. Later, the court denied Buyers' Motion for discretionary costs, and this appeal resulted. Buyers take issue with whether the trial court properly granted a directed verdict on punitive damages and whether the Court abused its discretion by denying discretionary costs. Sellers argue there was not sufficient evidence to support the jury's award on fraud and deceit, conversion and abuse of process. They also argue that the jury should have found for Sellers on the breach of contract claim. For the reasons below, we affirm the jury's award of compensatory damages and hold there was sufficient evidence to support the jury's determination of fraud and deceit, conversion, abuse of process and no breach of contract. Further, we affirm the trial Court's directed verdict on the issue of punitive damages. However, we vacate the denial of Buyers' motion for discretionary costs and remand for consideration consistent with this opinion. http://www.tba.org/tba_files/TCA/Jarmakowiczm.wpd JOHN W. JOHNSON v. EDWARD L. HARDISTER, et al. Court:TCA Attorneys: John W. Johnson, Pro Se Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mary M. Bers, Senior Counsel, Nashville, For Appellees Judge: CRAWFORD First Paragraph: Pro se plaintiff filed a complaint against defendants, district attorney general and four assistant district attorney generals, apparently alleging malicious prosecution. The trial court granted summary judgment, and plaintiff has appealed. We affirm. http://www.tba.org/tba_files/TCA/johnsonhardst.wpd BONNIE S. PRIVETTE, et al. v. DANELLE KEYES, et al. Court:TCA Attorneys: Mark A. Baugh, Nashville, Tennessee, for the appellant, Allstate Insurance Company. Daniel P. Berexa, Nashville, Tennessee, for the appellees, Bonnie and Donald Privette. Mark S. LeVan, Nashville, Tennessee, for the appellee Danelle Keyes. Judge: CANTRELL First Paragraph: This case presents a Rule 10 Extraordinary Appeal on the question of whether certain amendments to Tenn. Code. Ann. S 56-7-1206 of the Uninsured Motor Vehicle Coverage statutes may be retroactively applied to a case that arose before the effective date of the amendments. The trial court ruled that they could. We reverse. http://www.tba.org/tba_files/TCA/privettebs.wpd KARON JANE SPICER v. JAMES O'NEIL SPICER Court:TCA Attorneys: Jennifer Davis Roberts, Dickson, Tennessee, for the appellant, James O'Neil Spicer David D. Wolfe, Dickson, Tennessee, for the appellee, Karon Jane Spicer Judge: COTTRELL First Paragraph: In this divorce case, the husband challenges only the trial court's refusal to award him a portion of the wife's retirement account. Although retirement benefits earned during a marriage are marital property, we find the division of property to be equitable and affirm. http://www.tba.org/tba_files/TCA/SpicerK.wpd JIM VINES d/b/a GOOD STUFF! v. DAVID GIBSON d/b/a GOOD STUFF! Court:TCA Attorneys: Robert M. Bailey, Knoxville, Tennessee, for the appellant, David Gibson, d/b/a Good Stuff!. David S. Clark, Oak Ridge, Tennessee, for the appellee, Jim Vines, d/b/a Good Stuff!. Judge: SUSANO First Paragraph: In this breach of contract case, the defendant appeals from the trial court's refusal to grant a new trial or set aside an order favorable to the plaintiff. Because we find that the defendant did not receive advance notice of the hearing that led to the entry of the order, we vacate the order of the trial court. http://www.tba.org/tba_files/TCA/vinesj.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. 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