Opinion Flash

February 7, 2002
Volume 8 — Number 024

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):
 
01 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
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
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


STATE OF TENNESSEE v. JERRY W. YANCEY, JR.

Court:TSC

Attorneys:

John S. Colley, III, Columbia, Tennessee, for the appellant, Jerry W.
Yancey, Jr.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Elizabeth T. Ryan, Assistant Attorney General;
Jennifer L. Bledsoe, Assistant Attorney General; Sharon Tyler,
Assistant District Attorney; and Robert S. Hassell, Assistant District
Attorney, for the appellee, State of Tennessee.                        

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine the following issues: (1) whether
the Court of Criminal Appeals, in reviewing the denial of pretrial
diversion, erred by considering evidence presented at trial and
failing to limit its review to evidence considered by the district
attorney general; and (2) whether the trial court applied the correct
standard in reviewing the district attorney general's denial of
pretrial diversion pursuant to a petition for writ of certiorari.

After a thorough review of the record and relevant authority, we hold
that in reviewing the denial of pretrial diversion, the Court of
Criminal Appeals erred in failing to limit its review to the evidence
that was considered by the district attorney general and any factual
disputes resolved by the trial court.  We also hold that in
considering the petition for writ of certiorari, the trial court
failed to apply the proper standard of review, which requires that it
determine whether the district attorney general has considered and
weighed all of the relevant factors and whether there is substantial
evidence to support the district attorney general's decision. 
Accordingly, the judgment of the Court of Criminal Appeals is
reversed, and this case is remanded to the trial court to apply the
appropriate standard of review.        

http://www.tba.org/tba_files/TSC/yanceyjw_opn.wpd

STATE OF TENNESSEE v. JERRY W. YANCEY, JR.

HOLDER DISSENTING

http://www.tba.org/tba_files/TSC/yanceyjw _dis.wpd

BRENDA BRADEN, v. MODINE MANUFACTURING COMPANY, INC . 

Court:TSC - Workers Comp Panel

Attorneys:

Michael J. Mollenhour, Knoxville, for the appellant, Modine
Manufacturing Company, Inc.

Roger L. Ridenour, Clinton, for the appellee, Brenda Braden                         

Judge: THOMAS

First Paragraph:

The issue in the appeal on this workers' compensation case is whether
the evidence supports the finding of the trial court that the
plaintiff is forty percent disabled where the treating physician found
no impairment, where the independent medical examiner found ten
percent impairment to each upper extremity and where the plaintiff
testified to continuous pain necessitating medication following
surgical releases of carpal tunnel syndrome. Based upon a review of
the record, the briefs of the parties and the argument of counsel, we
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TSC_WCP/braden.wpd

JOYCE RAMSEY v. CITY OF DYERSBURG, et al.

Court:TSC - Workers Comp Panel

Attorneys:

John D. Burleson and V. Latosha Mason, Jackson, Tennessee, for the
appellants, City of Dyersburg, Tennessee Police Department and TML
Risk Management Pool.

Charles S. Kelly, Jr., Dyersburg, Tennessee, for the appellee, Joyce
Ramsey, widow of George Harrell Ramsey.                         

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 appeal, the appellant contends the
evidence preponderates against the trial court's finding that the
claimant's husband's fatal heart attack arose out of and in the course
of employment.  As discussed below, the panel has concluded the
judgment should be affirmed.

http://www.tba.org/tba_files/TSC_WCP/ramseyjoyce.wpd

(NOTE:  This opinion replaces the opinion released in this case on
1/4/02, which has been withdrawn.  Filed date on the new opinion is
2/7/02.)

IN RE: THE MATTER OF JOHN ADAMS, DECEASED, et al. v. CITY OF LEBANON,
TENNESSEE v. THE TENNESSEAN, et al.

Court:TCA

Attorneys:      

Alfred H. Knight and Alan D. Johnson, Nashville, Tennessee, for the
Appellant, The Tennessean.

Rich Cassidy, Nashville, Tennessee, for the appellee, Lorrine Adams.

Larry Stewart, Charles W. Cook, III, Nashville, Tennessee, and Peggy
F. Williams, Lebanon, Tennessee, for the appellee, City of Lebanon,
Tennessee.                    

Judge: FARMER

First Paragraph:

This appeal challenges the jurisdiction of the trial court to issue a
protective order sealing a settlement agreement between the City of
Lebanon, Tennessee, and a private citizen, Mrs. Lorrine Adams.  The
trial court issued the protective order in response to the City's
motion, a motion which followed a request by The Tennessean, a daily
newspaper, for information regarding the settlement.  The protective
order was issued ex parte, despite the fact that no action had been
filed against the City by Mrs. Adams or by The Tennessean. We hold
that the circuit court lacked jurisdiction to enter the protective
order.  The order is therefore void and vacated.

http://www.tba.org/tba_files/TCA/adamsjohn.wpd

MEGAN ARNOLD, et al. v. CHARLES ARNOLD, et al.

Court:TCA

Attorneys:

R. Wayne Culbertson, Kingsport, Tennessee, for the Appellants, Megan
Arnold, b/n/f and mother, Bobbie Arnold, and Bobbie Arnold
individually

Thomas L. Kilday, Greeneville, Tennessee, for the Appellant, Charles
Arnold

Rockforde D. King, Knoxville, Tennessee, for the Appellee, Randy L.
Arnold

Judge: GODDARD

First Paragraph:

This is a suit by a minor brought by her mother, and also by her
mother individually against the minor's grandfather, Charles Arnold
and her father Randy Arnold.  The child was injured when she placed
her hand into the fan belt of a tractor which was stationary with the
engine running.  The Trial Court granted the father's motion for
summary judgment and denied the grandfather's.  We affirm.

http://www.tba.org/tba_files/TCA/arnoldmeg.wpd

ROY BAINES v. WILSON COUNTY, TENNESSEE, et al.

Court:TCA

Attorneys:

Neal Agee, Jr., Lebanon, Tennessee, for the appellant, Roy Baines.

Christopher W. Cardwell, Nashville, Tennessee, for the appellees,
Wilson County Tennessee, Wilson County Emergency Management Agency,
and David Hale, individually, and in his official capacity as Chief of
the Wilson Emergency Management Agency.                         

Judge: COTTRELL

First Paragraph:

This appeal involves a suit for retaliatory discharge brought by the
plaintiff against Wilson County, Wilson Emergency Management Agency
and the plaintiff's supervisor.  The plaintiff asserts that he was
fired in retaliation for filing a workers' compensation claim.  The
trial court dismissed the plaintiff's claim because, it held, Wilson
County and Wilson Emergency Management Agency were both immune
pursuant to the Tennessee Governmental Tort Liability Act.  Further,
it held that the plaintiff did not allege a prima facie case of
retaliatory discharge against his supervisor because his supervisor
was not his employer.  We agree and, therefore, affirm the holdings of
the trial court.

http://www.tba.org/tba_files/TCA/bainesr.wpd

BOYD'S CREEK ENTERPRISES, LLC, et al. 
v. SEVIER COUNTY, TENNESSEE, et al.

Court:TCA

Attorneys:

L. Caesar Stair, III, and C. Scott Taylor, Knoxville, Tennessee, for
the appellant, Weigel Stores, Inc.

G. Kenneth Gilleland, Sevierville, Tennessee, for the appellant,
Boyd's Creek Enterprises LLC.

Jerry H. McCarter, Gatlinburg, Tennessee, for the appellees, Sevier
County, Tennessee and Sevier County Beer Board.

Judge: INMAN

First Paragraph:

These beer permit cases were consolidated for trial, with a common
issue: whether the proposed sale location was located within 2000 feet
of a "public gathering place," and if so, whether the restriction was
waived, owing to a discriminatory practice.

http://www.tba.org/tba_files/TCA/boydscreek.wpd

RENA M. FOSTER, et al. v. COLONIAL DEVELOPMENT, INC. d/b/a COLONIAL
HILLS NURSING CENTER, et al.

Court:TCA

Attorneys:

Lance A. Evans, Maryville, Tennessee, for the appellants, Rena M.
Foster, Mitzy Johnson, Becky G. Breeden, Tracey R. Waters, and Melissa
J. Baker.

Jerry G. Cunningham and Melanie E. Davis, Maryville, Tennessee, for
the appellees, Colonial Development, Inc., d/b/a/ Colonial Hills
Nursing Center, Jon Byron, and James Woodward.

Judge: INMAN

First Paragraph:

This is an action for damages for retaliatory discharge of the
Plaintiffs because they objected to alleged fraudulent practices
involving TennCare or Medicare, brought pursuant to Tenn. Code Ann. S
50-1-304.  The Plaintiffs were prima facie terminated for failing to
clock out for lunch.  Their case was dismissed on motion for summary
judgment.  We affirm.

http://www.tba.org/tba_files/TCA/fosterrm.wpd

CATHY L. HALL, et al. v. CITY OF GATLINBURG

Court:TCA

Attorneys:

E. Jerome Melson, Knoxville, Tennessee, for the Appellant, City of
Gatlinburg.

Ronald J. Zuker, Knoxville, Tennessee, for the Appellees, Cathy L.
Hall and Eddie Lee Hall.

Judge: SWINEY

First Paragraph:

Cathy L. Hall ("Plaintiff"), was attending a convention at the
convention center of the City of Gatlinburg ("Defendant"), when she
fell and sustained physical injury.  Plaintiff fell in one of two
separate areas just mopped by Defendant's employee.  After the parties
submitted proof at trial, the Trial Court found Defendant negligent. 
The Trial Court allocated 80% fault to Defendant and 20% fault to
Plaintiff.  In addition to Plaintiff's compensatory damages, the Trial
Court awarded damages for loss of consortium to Plaintiff's husband,
Eddie Lee Hall ("Husband").  Defendant appeals, as do Plaintiff and
Husband.  We affirm.

http://www.tba.org/tba_files/TCA/hallcathyl.wpd

IN RE C.M.R., et al.

Court:TCA

Attorneys: 

David D. Wolfe, Dickson, Tennessee, for the appellant, Tina S.

Jerry Smith, Dickson, Tennessee, for the appellant, Perry S.

Paul G. Summers, Attorney General and Reporter, Elizabeth C. Driver,
Assistant Attorney General, for the appellee, State of Tennessee,
Department of Children's Services.

Judge: COTTRELL

First Paragraph:

This case involves the termination of parental rights regarding two
children who were removed from Mother and Father's home by the
Department of Children's Services in 1998 and placed in foster care. 
DCS filed a petition to terminate parental rights on August 15, 2000,
on the grounds that parents had received a sentence of ten (10) years
or more and the children were under the age of eight (8) at the time
the sentence was imposed; that the parents had been sentenced to more
than two (2) years for the severe abuse of one child; and that
termination was in the best interest of the children.  The trial court
found that statutory grounds had been proved and that termination of
parental rights was in the best interest of the children. 
Accordingly, the trial court terminated the parental rights of both
Mother and Father.  Because DCS has established grounds for
termination and has established that termination is in the best
interest of the children, we affirm.

http://www.tba.org/tba_files/TCA/inrecmr.wpd

LEON WILLIAMS GENERAL CONTRACTOR, INC., et al. v. HUGH HYATT, et al.

Court:TCA

Attorneys:

Wanda G. Sobieski, Diane M. Messer and Nanette J. Landen, Knoxville,
Tennessee, for the Appellants

Charles A. Wagner, III and William Turner Boone, Knoxville, Tennessee,
for the Appellees                         

Judge: GODDARD

First Paragraph:

In this consolidated appeal Leon Williams General Contractor, Inc., 
and Leon Williams, individually and d/b/a Old World Cabinets appeal
orders denying their demands for arbitration.  We reverse the order of
the Chancery Court denying the demand for arbitration filed by Leon
Williams General Contractor, Inc. and affirm the order of the Circuit
Court denying the demand for arbitration filed by Leon Williams,
individually and d/b/a Old World Cabinets.

http://www.tba.org/tba_files/TCA/leonwilli.wpd

LOCKHEED MARTIN ENERGY SYSTEMS, INC. v. RUTH E. JOHNSON, COMMISSIONER
OF REVENUE, STATE OF TENNESSEE

Court:TCA

Attorneys:      

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Margaret M. Huff, Assistant Attorney General,
for the appellant, Ruth E. Johnson, Commissioner of Revenue, State of
Tennessee.

Wayne R. Kramer, Jackson G. Kramer, G. Wilson Horde, Knoxville,
Tennessee, for the appellee, Lockheed Martin Energy Systems, Inc.

Judge: SUSANO

First Paragraph:

Following an audit by the Tennessee Department of Revenue ("the
Department"), the Commissioner of the Department ("the Commissioner")
assessed and collected a use tax on computer software fabricated by
Lockheed Martin Energy Systems, Inc. ("the Taxpayer").  The Taxpayer
responded by filing a complaint seeking a refund of $861,813.  The
Taxpayer claims that the subject software is exempt from the use tax
by virtue of T.C.A. S 67-6-102(25)(B) (1998) as software
"fabricat[ed]" by it "for [its] own use or consumption."  The trial
court agreed with the Taxpayer.  We affirm.

http://www.tba.org/tba_files/TCA/lockheed.wpd

RENE C. MERCER, et al. v. HCA HEALTH SERVICES OF TENNESSEE, INC., et
al. 

Court:TCA

Attorneys: 

Daniel L. Clayton, Nashville, Tennessee and Steven R. Walker, Memphis,
Tennessee, for the appellants, Rene C. Mercer, Sarah Lynne Mercer and
David Leigh Mercer.

C. J. Gideon, Jr., Dixie W. Cooper, and Christi D. Griffin, Nashville,
Tennessee, for the appellee, HCA Health Services of Tennessee, Inc.

Phillip North and Robert Briley, Nashville, Tennessee, for the
appellee, Steven R. Nyquist, M.D.                         

Judge: CANTRELL

First Paragraph:

A widow claimed that her husband's suicide was caused by the
negligence of the defendant hospital and the defendant psychiatrist in
releasing him prematurely from involuntary commitment.  The trial
court granted summary judgment to the defendants, finding that the
hospital was obligated to release the patient when ordered to do so by
the psychiatrist, and that the psychiatrist was entitled to absolute
immunity for actions undertaken under the involuntary commitment
statutes.  We reverse the trial court.

http://www.tba.org/tba_files/TCA/mercerrc.wpd

TERILYN SLOAN v. TRI-COUNTY ELECTRIC MEMBERSHIP CORP., et al.

Court:TCA

Attorneys:

Peter Skeie, Jeffrey S. Frensley, Nashville, Tennessee, for the
appellant, Terilyn Sloan.

Thomas M. Donnell, Jr., Jennifer A. Lawrence, Nashville, Tennessee,
for the appellee, Tri-County Electric Membership Corporation.

Judge: COTTRELL

First Paragraph:

Plaintiff married her co-worker, and one of them was forced to resign
pursuant to the company's anti-nepotism policy prohibiting concurrent
employment of spouses.  Plaintiff resigned and brought this action for
wrongful discharge alleging her dismissal violated public policy
favoring marriage and was due to her exercise of the fundamental right
to marry.  The trial court dismissed for failure to state a cause of
action.  Because Plaintiff has failed to show that a policy
prohibiting concurrent employment of spouses violates a clear mandate
of public policy, we affirm the trial court.

http://www.tba.org/tba_files/TCA/sloant.wpd

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