Opinion Flash

June 25, 2002
Volume 8 — Number 109

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
05 New Opinion(s) from the Tennessee Court of Appeals
01 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


JOSEPHINE BRYANT v. IMPERIAL MANOR CONVALESCENT CENTER, LLC., et al.

Court:TSC - Workers Comp Panel

Attorneys:         

Clarence E. Lutz, Nashville, Tennessee, for the appellant, Imperial
Manor Convalescent Center, LLC.

Carson W. (Bill) Beck, Nashville, Tennessee, for the appellee,
Josephine Bryant                 

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-appellant questions (1) the trial court's finding
of compensability and (2) the imposition of  a 6 percent penalty.  As
discussed below, the panel has concluded the judgment should be
affirmed.

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

BETSY D. COKER v. BEVERLY ENTERPRISES TENNESSEE, INC.

Court:TSC - Workers Comp Panel

Attorneys:  

Pamela M. McCord and Richard E. Spicer, Nashville, for the appellant,
Beverly Enterprises, Inc., d/b/a Beverly Healthcare

Robert T. Carter, Tullahoma, Tennessee, for the appellee, Betsy D.
Coker                        

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-appellant questions (1) the trial court's finding
that the employee's injury arose out of and in the course of her
employment and (2) the award of permanent partial disability benefits
based on 65 percent to the leg.  As discussed below, the panel has
concluded the judgment should be affirmed.

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

DARIN MONTGOMERY v. WAL-MART STORES, INC.

Court:TSC - Workers Comp Panel

Attorneys:

M. Scott Ogan, Nashville, Tennessee, for the appellant, Wal-Mart
Stores, Inc.

Michael D. Ponce, Tim L. Bowden and Gundega D. Gaigals,
Goodlettesville, Tennessee, for the appellee, Darin Montgomery        
               
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-appellant insists (1) the trial court erred in
finding the employee suffered a work related injury, (2) the award of
permanent partial disability benefits is excessive, (3) the trial
court erred in awarding payment of unauthorized medical expenses, and
(4) the trial court erred in commuting the award to a lump sum.  As
discussed below, the panel has concluded the judgment should be
affirmed.

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

VICKY LYNN PRESLEY v. VF WORKWEAR, INC.

Court:TSC - Workers Comp Panel

Attorneys:     

Robert V. Durham, Cookeville, Tennessee, for the appellant, VF
Workwear, Inc.

Donald G. Dickerson, Cookeville, Tennessee, for the appellee, Vicky
Lynn Presley                     

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 trial court erred by considering
the operating surgeon's medical impairment rating and (2) the award of
permanent partial disability benefits is excessive.  As discussed
below, the panel has concluded the judgment should be affirmed.

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

STATE OF TENNESSEE v. DAVID M. BLACK

Court:TCA

Attorneys:

Darrell L. Scarlett, Murfreesboro, Tennessee, for the appellant, David
M. Black.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; for the appellee, State of Tennessee.
                       
Judge: COTTRELL

First Paragraph:

Petitioner sought a second restoration of citizenship rights after his
sentence for a felony conviction expired.  The State opposed the
motion primarily on the basis of Mr. Black's pre-conviction conduct
and the fact he had previously had his rights restored.  The trial
court denied restoration of the right to hold public office but
restored the right to vote.  We affirm the restoration of the right to
vote and vacate the order denying the right to seek and hold public
office.

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

WILLIAM R. LINDGREN, and wife, MELANIE LINDGREN 
v. CITY OF JOHNSON CITY

Court:TCA

Attorneys:

Earl R. Booze, Johnson City, Tennessee, for Appellant, City of Johnson
City.

Anthony Alan Seaton, Johnson City, Tennessee, for Appellees, William
R. Lindgren and wife, Melanie Lindgren.

Judge: FRANKS

First Paragraph:

Plaintiff was injured by falling on defendant's sewer covering.  The
Trial Court found for plaintiff and awarded damages against City.  On
appeal, we affirm finding of liability, but vacate award of damages
and remand with instructions to determine the total amount of damages,
find percentage of fault, and then enter judgment in accordance with
the Governmental Tort Liability Act.  We Affirm in Part, Vacate in
Part and Remand.

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

IN RE: MACKENZIE J. MARLOWE, GREGORY MARLOWE v. STACY SMITH (GRAVES)

Court:TCA

Attorneys: 

Judith Fain, Johnson City, Tennessee, for Appellant.

Lisa D. Rice, Elizabethton, Tennessee, for Appellee.                         

Judge: FRANKS

First Paragraph:

In this action the Trial Judge changed custody of the minor child to
the father from the mother.  On appeal, we reverse.

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

CHERYL NICHOLS v. TRANSCOR AMERICA, INC.

Court:TCA

Attorneys:

Sidney Gilreath and Elizabeth Murphy, Knoxville, Tennessee; Steve
Gibbins, Austin, Texas, for the appellant, Cheryl Nichols.

Robert J. Walker, J. Mark Tipps, and W. Scott Sims, Nashville,
Tennessee, for the appellee TransCor America, Inc.

Judge: CANTRELL

First Paragraph:

A female prisoner who was allegedly raped by an employee of TransCor
America, Inc., an inmate transportation company, brought suit against
the company for negligence and breach of contract.  The trial court
granted partial summary judgment to the defendant company on the
negligence claim, ruling among other things that it is not a common
carrier under Tennessee law.  The court also denied the company's
motion for summary judgment on the plaintiff's contract claim.  Both
parties filed applications for an interlocutory appeal, which we
granted.  We affirm the trial court as to both issues.

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

KEVIN SANDERS, et al. v. JERRY MANSFIELD, et al.

Court:TCA

Attorneys:

Kevin Sanders, Fayetteville, Tennessee, Pro Se.

Robert W. Simms, Fayetteville, Tennessee, for the appellees, Jerry
Mansfield and Donny Ray Hudson.                     

Judge: CAIN

First Paragraph:

Plaintiffs appeal an injunction preventing them from interfering with
county maintenance of a public road running through their property. 
We affirm the trial court in this matter and uphold the injunction
against Plaintiffs.

http://www.tba.org/tba_files/TCA/sandersk1.wpd

STATE OF TENNESSEE v. ROBERT B. RIGGS

Court:TCCA

Attorneys:

Susanne Bales, Assistant Public Defender (on appeal), Dandridge,
Tennessee; and James W. Greenlee (at trial), Sevierville, Tennessee,
for the Appellant, Robert B. Riggs.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and Steven R. Hawkins, Assistant District Attorney General,
for the Appellee, State of Tennessee.                         

Judge: WEDEMEYER

First Paragraph:

A Sevier County jury found the Defendant guilty of three counts of
misapplication of contract funds.  The trial court sentenced the
Defendant to two years for each conviction, ordered the Defendant to
serve the sentences consecutively, and ordered the Defendant to pay a
fine of $3,000.00 for each conviction.  The trial court also ordered
restitution in the amounts of  $68,654.00 to Robert Taylor, $64,689.42
to Carroll D. Patterson, and $45,000.00 to Jerry Grimes.  The
Defendant now appeals, raising the following issues: (1) whether
Tennessee Code Annotated SS 66-11-138, -140, the statutes dealing with
the misapplication of contract funds, is unconstitutional, (2) whether
the trial court committed plain error in instructing the jury on the
"intent to defraud" element of the offense, (3) whether the evidence
was sufficient to support the convictions for misapplication of
contract funds, (4) whether the trial court erred by imposing the
maximum term for each conviction and by ordering that the sentences
run consecutively, and (5) whether the trial court ordered an
excessive amount of restitution.  Finding no error, we affirm the
judgments of the trial court.

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

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