July 5, 2001 Volume 7 — Number 122 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 02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 06 New Opinion(s) from the Tennessee Court of Appeals 01 New Opinion(s) from the Tennessee Court of Criminal Appeals 06 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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink MURRAY CARTER v. MURRAY, INC. Court:TSC - Workers Comp Panel Attorneys: J. Arthur Crews, II and B. Duane Willis, Waldrop & Hall, Jackson, Tennessee, for the appellant, Murray, Inc. Lewis L. Cobb, Spragins, Barnett, Cobb & Butler, Jackson, Tennessee, for the appellee, Murray Carter. 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. 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 employer contends the award of permanent partial disability benefits based on 35 percent to the arm is excessive and should be reduced to one based on 10 percent to the arm. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/cartermurray.wpd DREW DAVIS v. AVRON TRUSS COMPANY, INC. Court:TSC - Workers Comp Panel Attorneys: Richard Lane Moore, Cookeville, Tennessee, for the appellant Avron Truss Company, Inc. James P. Smith, Crossville, Tennessee, for the appellee, Drew Davis. 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 fired plaintiff's return to work non-meaningful and awarded eighteen percent vocational disability. The plaintiff's misconduct was found irrelevant because he had not reached maximum medical improvement on the day he was fired. The trial court also awarded discretionary costs to the plaintiff. We find an employer may dismiss an injured employee for egregious misconduct, such as fighting with a fellow employee, regardless of the injured employee's medical status at the time of the misconduct. We therefore affirm the judgment of the trial court, but we modify the award to two and one-half times the impairment rating given by the employee's physician or fifteen percent. We also affirm the trial court's judgment fully with respect to discretionary costs. http://www.tba.org/tba_files/TSC_WCP/davis.wpd CITY OF SPRINGFIELD v. HOBSON CLEANING, INC., et al. Court:TCA Attorneys: Martin C. Giner, Nashville, Tennessee, for the appellants, Hobson Cleaning, Inc., and United Services Unlimited, Inc. J. Russell Farrar, Robyn Beale Williams, Nashville, Tennessee, for the appellee, City of Springfield. Judge: COTTRELL First Paragraph: This case involves a contract between the City of Springfield and defendant, United Services Unlimited, formerly Hobson Cleaning, to clean the floors of the police department. Defendant appeals whether the evidence preponderated against the judgment of the trial court. We affirm the judgment. http://www.tba.org/tba_files/TCA/cityofspringfield.wpd WILLIAM P. LIVINGSTON v. STATE OF TENNESSEE BOARD OF PAROLES Court:TCA Attorneys: William P. Livingston, Wartburg, Tennessee, Pro Se. Paul G. Summers, Michael Moore, Pamela S. Lorch, for appellee, State of Tennessee Board of Paroles. Judge: COTTRELL First Paragraph: Petitioner appeals the trial court's decision to deny his petition for common law writ of certiorari challenging a Board of Paroles decision to revoke his parole and the court's grant of Respondent's motion for summary judgment. Petitioner appeals the order on two grounds, (1) his due process rights were violated by the introduction of inadmissible evidence, and (2) these procedural flaws led to the hearing officer becoming biased and unable to conduct a fair and impartial hearing. For the reasons below, we find both claims without merit and affirm the trial court. http://www.tba.org/tba_files/TCA/livingstonw.wpd JOE D. MARTIN v. STATE OF TENNESSEE Court:TCA Attorneys: Joe D. Martin, Pro Se, Henning, Tennessee. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Terri L. Bernal, Assistant Attorney General, for the appellee, State of Tennessee. Judge: COTTRELL First Paragraph: Claimant, an inmate who was housed in a prison operated by a private prison operating company, filed a claim against the State for the loss of his personal property due to acts of employees of the company. The Claims Commission dismissed the claim for lack of jurisdiction because the private prison employees responsible for the loss were not "state employees." We affirm. http://www.tba.org/tba_files/TCA/martinj.wpd BILLY and MARY MILLIKEN v. CRYE-LEIKE REALTORS, ET AL. Court:TCA Attorneys: W. Gary Blackburn and Cathy C. Speers, Nashville, Tennessee for the appellants, Billy and Mary Milliken. J. Russell Farrar and Kristin Ellis Berexa, Nashville, Tennessee for the appellees, Crye-Leike Realtors and Brenda White. Judge: COTTRELL First Paragraph: The buyers of a new residence filed this action against the builder and their realtor after discovering that the house was defective. The claims against the realtor alleged negligent misrepresentation and violations of the Tennessee Consumer Protection Act based in part on the agent's representation that the builder was licensed. The jury, using a jury verdict form, found that the realtor had committed a deceptive act or practice prohibited by the Consumer Protection Act, but determined that the buyers had suffered no loss therefrom. The jury also found the realtor liable for negligent misrepresentation, calculated the damages resulting from the realtor's negligent misrepresentation, and apportioned fault at 10% to the buyers, 10% to the realtor, and 80% to the builder, a nonparty. On appeal, the buyers argue that the verdict was inconsistent and challenge the assessment of costs and the failure to award attorney fees. We affirm the verdict, the denial of attorney's fees, and the apportionment of court costs. We vacate the denial of discretionary costs and remand for determination of that issue. http://www.tba.org/tba_files/TCA/millikenbo.wpd LARRY NIEDERGESES, et al. v. GILES COUNTY, TENNESSEE Court:TCA Attorneys: David L. Allen, Lawrenceburg, Tennessee, for the appellants, Larry Niedergeses and Roberta Niedergeses, next of kin and parents of John Michael Niedergeses. David J. Sneed, Brentwood, Tennessee, for the appellee, Giles County, Tennessee. Judge: CAIN First Paragraph: This case presents a tragic set of facts involving an automobile accident which occurred in Giles County on May 8 or 9, 1997, sometime between 11:15 p.m. and 12:15 a.m. Michael Niedergeses died as a result of this accident. His parents, Larry Niedergeses and Roberta Niedergeses, instigated this suit against Giles County alleging that the county's negligence in failing to maintain the bridge signage caused their son's accident and resulting death. The case was tried non-jury in the Circuit Court of Giles County. That court found Mr. Niedergeses fifty percent at fault and Giles County fifty percent at fault. Plaintiffs appeal this ruling asserting that the trial judge was in error and should have found Giles County more than fifty percent at fault. The appeal presents for review the question of "whether the evidence preponderated against the trial court's finding that John Michael Niedergeses was fifty percent at fault in the May 9, 1997 accident." We find that the evidence does not preponderate against the judge's findings and affirm the trial court's ruling. http://www.tba.org/tba_files/TCA/niedergeseslarry.wpd LARRY ROBBINS v. CITY OF JOHNSON CITY, TENNESSEE Court:TCA Attorneys: James D. Culp and James H. Epps, IV, Johnson City, Tennessee, for the appellant, City of Johnson City. James T. Bowman and A. Scott Pratt, Johnson City, Tennessee, for the appellee, Larry Robbins. Judge: SUSANO First Paragraph: This case presents a tragic set of facts involving an automobile accident which occurred in Giles County on May 8 or 9, 1997, sometime between 11:15 p.m. and 12:15 a.m. Michael Niedergeses died as a result of this accident. His parents, Larry Niedergeses and Roberta Niedergeses, instigated this suit against Giles County alleging that the county's negligence in failing to maintain the bridge signage caused their son's accident and resulting death. The case was tried non-jury in the Circuit Court of Giles County. That court found Mr. Niedergeses fifty percent at fault and Giles County fifty percent at fault. Plaintiffs appeal this ruling asserting that the trial judge was in error and should have found Giles County more than fifty percent at fault. The appeal presents for review the question of "whether the evidence preponderated against the trial court's finding that John Michael Niedergeses was fifty percent at fault in the May 9, 1997 accident." We find that the evidence does not preponderate against the judge's findings and affirm the trial court's ruling. http://www.tba.org/tba_files/TCA/robbinsl.wpd STATE OF TENNESSEE v. CHRISTINA SUE LIBERTUS Court:TCCA Attorneys: Matthew Quentin Bastian, Columbia, Tennessee, for the Appellant, Christina Sue Libertus. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William Michael McGown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled guilty in 1999 to ten counts of forgery committed in Bedford County. Following a sentencing hearing, the trial court sentenced the Defendant as a Range II multiple offender to an effective sentence of six years, four months incarceration. In this direct appeal, the Defendant argues that she was improperly sentenced. Having reviewed the record, we conclude that the Defendant's sentence is appropriate and therefore affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/libertuscs.wpd City School System's Use of County School Bond Proceeds Date: June 26, 2001 Opinion Number: 01-103 http://www.tba.org/tba_files/AG/OP103.pdf Name Change of Non-U.S. Citizen Date: June 27, 2001 Opinion Number: 01-104 http://www.tba.org/tba_files/AG/OP104.pdf Agency Authority To Promulgate Rule Establishing Stop Work Orders Date: June 27, 2001 Opinion Number: 01-105 http://www.tba.org/tba_files/AG/OP105.pdf Constitutionality of Pawnshop Bill Date: June 27, 2001 Opinion Number: 01-106 http://www.tba.org/tba_files/AG/OP106.pdf McMinn County General Sessions Judge's Salary Date: June 29, 2001 Opinion Number: 01-107 http://www.tba.org/tba_files/AG/OP107.pdf Salary of General Sessions Judge under New Population Classification Date: June 29, 2001 Opinion Number: 01-108 http://www.tba.org/tba_files/AG/OP108.pdf PLEASE FORWARD THIS E-MAIL! 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