Opinion Flash

May 13, 2002
Volume 8 — Number 83

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

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
03 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
04 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


BILLY DON GEORGE, SR. v. CLARENDON NATIONAL INSURANCE,  et. al.

Court:TSC - Workers Comp Panel

Attorneys:  

Joseph M. Huffaker, Nashville, Tennessee, for the appellants,
Clarendon National  Insurance Company and Weaver Transport, Inc.

William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee for
the appellee,  Billy Don George, Sr.                         

Judge: WEATHERFORD

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 defendants contend that the trial court erred in awarding
the plaintiff 50% permanent partial disability to the right arm and
65% permanent partial disability to his left arm  for injuries
sustained  when he slipped on ice and fell  while stretching a
tarpaulin over a flatbed trailer which led to diagnoses and surgery
for carpal tunnel syndrome in both wrists and chronic lateral
epicondylitis (tennis elbow) of his left elbow.  The defendants also
contend the trial court abused its discretion in commuting a portion
of the award to Mr. George to a lump sum amount.  After a complete
review of the entire record, the briefs of the parties, and the
applicable law, we affirm the judgment of the trial court.

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

HERSCHEL EDWIN LUNA v. GAF FIBERGLASS CORPORATION, et al.

Court:TSC - Workers Comp Panel

Attorneys: 

James H. Tucker, Jr., Nashville, Tennessee, for the appellants, GAF
Fiberglass Corporation, Building Materials Manufacturing Corporation,
Zurich Insurance Company

Ann Buntin Steiner, Nashville, Tennessee, for the appellee, Herschel
Edwin Luna                         

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 insists (1) the claim is barred by Tenn. Code
Ann. S 50-6-203 and (2) the trial court's award of permanent partial
disability benefits based on 100 percent hearing loss is excessive. 
As discussed below, the panel has concluded the judgment should be
affirmed.

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

JOHN MARSHALL V. SVERDRUP TECHNOLOGIES, INC.

Court:TSC - Workers Comp Panel

Attorneys:   

Robert J. Uhorchuk, Spicer, Flynn & Rudstrom, Chattanooga, Tennessee,
for the Appellant, Sverdrup Technology, Inc.

Jerre M. Hood, Winchester, Tennessee, for the Appellee, John Marshall 
                     
Judge: PEOPLES

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) for hearing and reporting of findings of fact and
conclusions of law.  The employer appeals an award of permanent total
disability benefits to age 65, and the Second Injury Fund appeals the
apportionment of liability for 30 percent of the benefits to the Fund.
 We affirm the judgment of the trial court.

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

MICHELE RENEE SMITH v. COOKEVILLE REGIONAL MEDICAL CENTER

Court:TSC - Workers Comp Panel

Attorneys:

Robert R. Davies, Nashville, Tennessee, for the appellant, Cookeville
Regional Medical Center.

W.I. Howell Acuff, Cookeville, Tennessee, for the appellee, Michele
Renee Smith.                       

Judge: WEATHERFORD

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 defendant appeals the judgment of the trial court finding
that the employee, an ICU nurse: 1) suffered a back injury while
caring for a patient that aggravated her pre-existing back condition;
2) gave proper notice of her injury  under the circumstances; and 3)
sustained a 17% anatomical impairment and 37% permanent partial
disability to the body as a whole.  We hold that the evidence does not
preponderate against the trial court's findings.  Accordingly, the
judgment of the trial court is affirmed.

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

ROBERT LEWIS DAVIDSON, Individually and as Administrator of the Estate
of Joyce Davidson, Deceased, et al v. Charles R. Lindsey, et al.

Court:TCA

Attorneys:   

Russell E. Reviere, Michael L. Mansfield, Jackson, TN, for Appellants

Edward L. Martindale, Jr., Jackson, TN, for Appellee Davidson

Raymond G. Prince, Nashville, TN, for Appellees Jason R. Ross and Alan
P. Ross

Fred N. McLean, Paris, TN, for Appellee Charles R. Lindsey

Judge: HIGHERS

First Paragraph:

This appeal arises from an automobile accident involving the
Appellants and the Appellees in which the Appellee's wife was killed
and the Appellee was seriously injured.  The Appellee, individually
and as administrator of the estate of his wife, and the Appellee's
children filed a complaint in the Circuit Court of Henry County
against the Appellants and three of the Appellees.  Following a jury
trial, the jury found that the Appellants were 100% liable for the
accident and dismissed the claims against the three Appellees.  The
jury awarded the Appellee $1,250,000.00 and awarded the estate of the
Appellee's wife $500,000.00.  The trial court entered a judgment on
the jury's verdict.  The Appellants filed a motion for a new trial. 
The trial court denied the motion for a new trial.

The Appellants appeal the jury verdict and denial of the motion for a
new trial entered by the Circuit Court of Henry County.  For the
reasons stated herein, we reverse and remand for a new trial in
accordance with this opinion.

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

EDDIE LaMARTIN FRITZ v. WANDA LORRAINE WILLIAMS FRITZ

Court:TCA

Attorneys:

Keith A. Hopson and Timothy R. Wilkerson, Kingsport, Tennessee, for
the Appellant Eddie LaMartin Fritz.

Gregory W. Francisco, Kingsport, Tennessee, for the Appellee Wanda
Lorraine Williams Fritz.                        

Judge: SWINEY

First Paragraph:

Eddie LaMartin Fritz ("Husband") filed for divorce alleging
inappropriate marital conduct or, in the alternative, irreconcilable
differences.  Wanda Lorraine Williams Fritz ("Wife") counter-claimed
seeking a divorce on the same grounds.  The parties eventually agreed
how to divide most of their personal property and stipulated to
grounds for the divorce.  Wife had opened two savings accounts into
which she claims she placed funds for the college education of her two
daughters from a previous marriage.  The Trial Court concluded the
funds in these accounts were not marital property, and Husband
challenges this conclusion on appeal.  Husband also challenges the
Trial Court's holding that he be responsible for all of the credit
card debt accumulated during the marriage.  We modify the division of
property, and affirm the judgment as modified.

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

JAMES E. RAY D/B/A RAY'S GULF STATION v. BILLY S. WILLIAMS,
INDIVIDUALLY AND AS PRESIDENT OF U-HAUL CO. OF MEMPHIS, U-HAUL COMPANY
OF MEMPHIS, U-HAUL INTERNATIONAL, INC., JOE SHOEN, PRESIDENT/CHAIRMAN
OF THE BOARD

Court:TCA

Attorneys:

Michael G. McLaren and Michael R. McCusker, Memphis, Tennessee, for
appellants Billy S. Williams, individually and as President of U-Haul
Co. of Memphis, U-Haul Company of Memphis, U-Haul International, Inc.,
Joe Shoen, President/Chairman of the Board.

Herman L. Reviere, Ripley, Tennessee, for the appellee, James E. Ray
d/b/a Ray's Gulf Station.

Judge: LILLARD

First Paragraph:

This case involves the doctrine of promissory fraud.  The plaintiff
service station owner claimed that the defendant rental trailer
company fraudulently induced him into entering into a contract to
operate a rental trailer dealership by orally assuring him that his
dealership rights would be exclusive in Ripley, Tennessee.  At the
bench trial below, the trial court admitted parol evidence of the oral
assurances to show fraud in the inducement of the dealership contract.
 Based on that evidence, the trial court held that the rental trailer
company had committed promissory fraud and awarded damages to the
plaintiff service station owner.  The rental trailer company now
appeals.  We affirm the finding of promissory fraud, but reverse in
part the damage award.

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

STATE OF TENNESSEE v. TRACY T. BOSTIC

Court:TCCA

Attorneys: 

John H. Henderson, District Public Defender, for the Appellant, Tracy
T. Bostic.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Mary Katharine Harvey, Assistant District Attorney
General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The Williamson County Grand Jury returned separate, one-count
presentments against the defendant, Tracy T. Bostic, charging him with
felony sale or delivery of a controlled substance, in violation of
Tennessee Code Annotated section 39-17-417, and with felony sale or
delivery of a counterfeit controlled substance, in violation of Code
section 39-17-423.  The defendant was tried and convicted on the
controlled substance charge, and the trial court imposed an
incarcerative sentence of nine years as a Range II, multiple offender
and assessed a $25,000 fine.   The defendant elected to forego a trial
on the counterfeit controlled substance charge, and he entered a
"blind" guilty plea to that offense, for which he received a
three-year incarcerative sentence as a Range II, multiple offender,
which was ordered to be served consecutively to the nine-year
sentence.  On appeal, the defendant contests the sufficiency of the
evidence upon which his controlled substance conviction rests, and he
complains about the length and manner of service of his combined
sentences and about the $25,000 fine.  Based upon our review of the
video record in this case and our consideration of the briefs of the
parties and applicable law, we affirm the defendant's convictions and
the incarcerative portion of his sentences, but we modify the $25,000
fine imposed to $15,000.

http://www.tba.org/tba_files/TCCA/bostictracyt.wpd

Constitutionality of H.B. 2651 regarding forfeiture of motor vehicles
used in promoting or patronizing prostitution

Date: April 30, 2002

Opinion Number: 02-055                         

http://www.tba.org/tba_files/AG/OP55.pdf

Break-the-mold schools as authorized by Tenn. Code Ann. S 49-3-365.

Date: April 30, 2002

Opinion Number:  02-056                          

http://www.tba.org/tba_files/AG/OP56.pdf

Proposed Private Act for Loudon County Board of Education

Date: April 30, 2002

Opinion Number:  02-057                          

http://www.tba.org/tba_files/AG/OP57.pdf

Write-In Candidate for Sheriff

Date: May 3, 2002

Opinion Number:  02-058                       

http://www.tba.org/tba_files/AG/OP58.pdf

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