November 28, 2001 Volume 7 — Number 219 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 01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 05 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   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 KARY RAY FRAZIER v. BRIDGESTONE/FIRESTONE, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Mary B. Little and B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Bridgestone/Firestone and Insurance Company of the State of Pennsylvania. William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee, for the appellee, Kary Ray Frazier. Judge: LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the employer and its insurer contend (1) the trial court erred by referring the case to a special master for trial of all issues raised by the pleadings, (2) the evidence preponderates against the special master's finding, adopted by the trial court, that the injured employee has a permanent medical impairment of 13 percent to the body as a whole, and (3) the evidence preponderates against the trial court's award of permanent partial disability benefits based on 32.5 percent to the body as a whole. As discussed below, the panel has concluded the award of permanent partial disability benefits should be reduced to one based on 20 percent to the body as a whole. http://www.tba.org/tba_files/TSC_WCP/frazierkaryray.wpd STACY HARRIS v. THOMAS HALL Court:TCA Attorneys: Stacy Harris, Pro Se, Nashville, Tennessee. Roger T. May, Alan D. Johnson, Nashville, Tennessee, for the appellee, Thomas Hall. Judge: COTTRELL First Paragraph: This case was transferred to a judge in another county for "binding mediation," and the mediating judge entered an order dismissing the lawsuit and enjoining plaintiff from certain actions, including further litigation. The original trial court later denied the plaintiff's Tenn. R. Civ. P. 60.02 motion for relief from orders, and the plaintiff appealed. We find the trial court had no authority to order the case to any alternative dispute resolution procedure other than one established in Tenn. R. Sup. Ct. 31, that the mediating judge had no authority to dispose of the case and, consequently, all orders entered by that judge are void. We reverse the trial court's denial of Rule 60.02 relief, vacate orders entered in the court of the mediating judge, and remand for further proceedings. http://www.tba.org/tba_files/TCA/harriss.wpd JACKSON-MADISON COUNTY GENERAL HOSPITAL DISTRICT v. TENNESSEE HEALTH FACILITIES COMMISSION, et al. Court:TCA Attorneys: William M. Barrick and William R. Willis, Jr., Nashville, Tennessee, for the appellant, Jackson- Madison County General Hospital District. J. Richard Lodge, Jr., Robert E. Cooper, and W. Brantley Phillips, Jr., Nashville, Tennessee, for the appellee, Methodist Healthcare-Jackson Hospital. Paul G. Summers, Attorney General and Reporter, and Michelle Hohnke Joss, Assistant Attorney General, for the appellee, Tennessee Health Facilities Commission. Judge: KOCH First Paragraph: This appeal involves a dispute between two hospitals regarding one hospital's desire to expand its intensive care and open-heart surgery services. After Methodist Healthcare-Jackson Hospital applied to the Tennessee Health Facilities Commission for a certificate of need, Jackson-Madison County General Hospital District objected on the ground that the proposed services would unnecessarily duplicate services it was already providing. Even though the Commission denied the application, the Commission's staff issued the certificate of need after the Attorney General and Reporter opined that the Commission's vote on reconsideration was inconsistent with the Commission's enabling statute. Rather than pursuing a contested case hearing before the Commission, Jackson-Madison County filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County asserting that the Commission's vote to deny the certificate of need was proper and that one Commission member who voted to approve the certificate should have been disqualified because of a financial conflict of interest. The trial court granted the writ of certiorari but, following a hearing, dismissed the writ because Jackson-Madison County had not exhausted its administrative remedies. Jackson-Madison County appealed to this court. While this appeal was pending, Jackson- Madison County requested and received a contested case hearing before an administrative law judge sitting in place of the Commission. After the administrative law judge determined that the Commission's vote to deny Methodist Healthcare's application for a certificate of need was proper and that one of the Commission members who voted to grant the certificate of need should have been disqualified, Jackson-Madison County moved to dismiss its appeal. Methodist Healthcare opposed dismissing the appeal. We have determined that the trial court properly dismissed Jackson-Madison County's petition for writ of certiorari and that this appeal should be dismissed. http://www.tba.org/tba_files/TCA/jacksonmadison.wpd JOY MCVEY PORTER v. MONEY TREE FINANCE CORPORATION II, LLC D/B/A CASH EXPRESS, II Court:TCA Attorneys: Michael A. Eastridge, Johnson City, Tennessee, for the appellant, Money Tree Finance Corporation II, LLC, d/b/a, Cash Express, II. William L. Francisco and Eric D. Miller, Johnson City, Tennessee, for the appellee, Joy McVey Porter. Judge: SUSANO First Paragraph: The plaintiff, Joy McVey Porter, entered into a loan agreement - referred to as a title pledge agreement - with the defendant, Money Tree Finance Corporation II, LLC d/b/a Cash Express, II ("Money Tree"). The agreement contains an arbitration provision wherein the parties agree to arbitrate all disputes "arising out of" the agreement. Pursuant to the agreement, Money Tree loaned Porter $500 in exchange for the title to her automobile. When Porter defaulted, Money Tree sold her vehicle and attempted to collect the loan deficiency remaining after the sale. Money Tree's efforts prompted Porter to file this suit alleging that Money Tree's collection efforts violated the Tennessee Consumer Protection Act, T.C.A. S 47-18-101, et seq. Porter also alleges that Money Tree violated the Federal Truth in Lending Act, 15 U.S.C. S 1601, et seq., by failing to provide an accurate statement of all financing charges in the body of the agreement. Money Tree moved the court to require arbitration. The trial court held that Porter was not required to submit her claims to arbitration because, according to the lower court, those claims do not "aris[e] out of" the agreement. Money Tree appeals pursuant to T.C.A. S 29-5-319(a)(1). We reverse. http://www.tba.org/tba_files/TCA/porterjm.wpd THE TERMINIX INTERNATIONAL COMPANY, L.P., ET AL. V. THE TENNESSEE DEPARTMENT OF LABOR, ET AL. Court:TCA Attorneys: Alan G. Crone and James Julius Webb, Jr., Memphis, Tennessee; and Lawrence S. Ebner, Washington, D.C., for the appellants, Terminix a/k/a The Terminix International Company and TruGreen, Inc., L.P. Paul G. Summers, Attorney General and Reporter; and E. Blaine Sprouse, Assistant Attorney General, for the appellees, Tennessee Department of Labor and Tennessee Occupational Safety and Health Review Commission. Judge: CLEMENT First Paragraph: This matter is before the Court upon a petition seeking judicial review of our administrative order. The Petition was initiated in the Chancery Court of Davidson County, Tennessee, wherein the appellants challenged the jurisdiction of the Tennessee Department of Labor, Division of Occupational Safety and Health ("TOSHA") to conduct safety inspections concerning pesticide applicators (i.e., persons who apply pesticides) and to enforce such regulations. The Chancery Court ruled that the Tennessee Occupational Safety and Health Review Commission (TOSHA) has subject matter jurisdiction to conduct inspections and issue citations concerning the safety of pesticide applicators in the work place. We affirm. http://www.tba.org/tba_files/TCA/terminix.wpd TRINITY INDUSTRIES, INC. v. MCKINNON BRIDGE COMPANY, INC., et al. Court:TCA Attorneys: Don L. Smith, Donald N. Capparella, John W. Heacock, and Kenneth S. Schrupp, Nashville, Tennessee, for the appellant, McKinnon Bridge Company, Inc. Kenneth S. Schrupp, Nashville, Tennessee, for the appellant, Safeco Insurance Companies. David L. Johnson, Hugh C. Howser, Jr. and Mary Ellen Morris, Nashville, Tennessee, for the appellee, Trinity Industries, Inc. Mary G. Moody, Nashville, Tennessee, for the defendants/appellees, Bruce J. Saltsman, Sr. and Tennessee Department of Transportation, and defendant, State of Tennessee. David Key Taylor, Nashville, Tennessee, for the defendant/appellee, E. L. Conwell & Company. Stephen A. Cobb, Nashville, Tennessee, for the defendant, Tensor Company. John Wingo and M. Clark Spoden, Nashville, Tennessee, and Vincent G. Torpy, Jr., Melbourne, Florida, for the defendant/appellee, Tensor Engineering Company. Judge: CANTRELL First Paragraph: An uncompleted highway bridge over the Tennessee River collapsed, triggering a lengthy and convoluted course of litigation between the parties involved in its construction. Litigation began when the company that fabricated the bridge's structural steel components sued the general contractor for non-payment on the contract. The general contractor filed a counter-claim which alleged that the fabricator had breached the contract by producing defective steel components that caused the collapse. The contractor named some of its other subcontractors as third party defendants, claiming that they also bore some responsibility for the collapse of the bridge. In a series of orders, the trial court dismissed the counterclaim and third party claims, and declared that its judgments were final for purposes of Tenn. R. Civ. P. Rule 54.02. After this court heard oral argument on the first of the Rule 54.02 appeals, but before it could issue an opinion, the trial court conducted a hearing on the merits of the steel fabricator's claim, and rendered a judgment in its favor. We affirm the judgment for the price of the steel and the judgment for the fabricator on the general contractor's counterclaim. We reverse the judgment dismissing the third party claims. http://www.tba.org/tba_files/TCA/trinityindustries.wpd STATE OF TENNESSEE v. DEAN BYARD Court:TCCA Attorneys: Sam E. Wallace, Jr., Nashville, Tennessee, for the appellant, Dean Byard. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Lisa Angela Naylor, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Defendant appeals from a bench trial where he was found guilty of one count of assault and one count of aggravated assault. Sufficient evidence exists to support the conviction of aggravated assault. The ineffective assistance of counsel claim is wholly unsubstantiated. We affirm the judgments from the trial court. http://www.tba.org/tba_files/TCCA/byardd.wpd STATE OF TENNESSEE v. DEADRICK M. PIGG Court:TCCA Attorneys: Larry B. Felts, Nashville, Tennessee, for the appellant, Deadrick M. Pigg. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Grady Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Deadrick Pigg, was convicted in the Criminal Court of Davidson County of the sale of less than .5 grams of cocaine. After a sentencing hearing, the Defendant was sentenced to serve eight years in the Department of Correction. In his appeal as of right pursuant to Rule 3(b) of the Tennessee Rules of Appellate Procedure, the Defendant argues that (1) the evidence presented at trial was insufficient to support the jury's guilty verdict because the verdict was based solely on uncorroborated accomplice testimony and (2) the trial court erred in allowing the State to impeach the Defendant with evidence of past convictions. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/piggdm.wpd STATE OF TENNESSEE v. DANIEL THOMASON WITH ORDER Court:TCCA Attorneys: Kathryn S. Evans (at trial), Assistant Public Defender; Jeffrey A. DeVasher, (on appeal), Assistant Public Defender, Nashville, Tennessee, for the Appellant, Daniel Thomason. Paul G. Summers, Attorney General & Reporter; Jennifer L. Smith, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Derrick Scretchen, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Daniel Thomason appeals from the aggravated robbery conviction he received at a jury trial in the Davidson County Criminal Court. Thomason is serving an eight-year sentence in the Department of Correction for his crime. In this appeal, he challenges the sufficiency of the convicting evidence that he accomplished the robbery "by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon." Because the record before us is does not contain all of the relevant evidence presented at trial, we are precluded from reviewing the sufficiency of the evidence and therefore affirm. http://www.tba.org/tba_files/TCCA/thomasond_opn.wpd ORDER http://www.tba.org/tba_files/TCCA/thomasond_ord.wpd PLEASE FORWARD THIS E-MAIL! 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