Opinion FlashFebruary 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.
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Howard H. Vogel
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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