Opinion Flash

June 28, 2002
Volume 8 — Number 112

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
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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


DOXIE M. FRAYSER v. DENTSPLY INTERNATIONAL, INC.

Court:TSC - Workers Comp Panel

Attorneys:    

Donald A. Donati and William B. Ryan, Memphis, Tennessee, for the
Plaintiff/Appellant, Doxie M. Frayser.

Howard B. Hayden, Memphis, Tennessee, for the Defendant/Appellee,
Dentsply International, Inc.

Judge: LAFFERTY

First Paragraph:

This workers' compensation appeal was 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.  The trial
court found that Plaintiff's workers' compensation claim for an injury
occurring in 1994, was barred by the statute of limitations and that
the doctrine of equitable estoppel was not applicable to the case.  We
hold that an employer may not offer an employee an alternative benefit
option that would circumvent Tennessee Workers' Compensation Law when
the employer is aware that the employee's injury is work-related.  As
discussed below, the trial court's judgment is reversed and remanded
in part and affirmed in part.

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

IN RE:  AMENDMENTS TO RULES 9, 21, 25, AND 33, 
RULES OF THE SUPREME COURT OF TENNESSEE

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/bprrules9-21-25-33.wpd

LORENZO CHILDRESS, JR., d/b/a SOUTHGATE MEDICAL GROUP v. UNION REALTY
COMPANY, LTD., a Tennessee Limited Partnership, et al.

Court:TCA

Attorneys:

R. Douglas Hanson, Memphis, Tennessee, for the appellant, Union Realty
Company, Ltd.

Bruce D. Brooke, Memphis, Tennessee, for the appellee, Lorenzo
Childress, Jr., d/b/a Southgate Medical Group.                         

Judge: FARMER

First Paragraph:

Plaintiff lessee in this case sued Defendant landlord for damages
associated with loss of personal property, interruption of business,
and lost profits which resulted from the collapse of a roof and
flooding of Plaintiff's leased medical offices.  The jury awarded
Plaintiff $168,000.00 in damages.  Defendant appeals, arguing that
this is, in effect, a subrogation suit by Plaintiff's insurance
carrier.  We find no evidence that this is a subrogation suit and
affirm judgment for Plaintiff.

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

JOHN DOE v. COMMISSIONER GEORGE W. HATTAWAY OF THE DEPARTMENT OF
CHILDREN'S SERVICES OF THE STATE OF TENNESSEE

Court:TCA

Attorneys:  

Paul G. Summers, Attorney General and Reporter, and Douglas Earl
Dimond, Assistant Attorney General, Nashville, for the appellant,
Commissioner George W. Hattaway of the Department of Children's
Services of the State of Tennessee.

Alan Everett, Knoxville, for the appellee, John Doe.                        

Judge: SUSANO

First Paragraph:

John Doe filed a petition in the trial court challenging a final order
of the Tennessee Department of Children Services ("DCS") validating a
report of minor physical abuse of a student by Mr. Doe, the student's
teacher.  The trial court reviewed the record of the administrative
law judge ("the ALJ").  Upon doing so, the court concluded that it
"totally disagree[d] with all" of the ALJ's findings; it reversed
DCS's final order.  DCS appeals.  We find and hold that the trial
court lacked subject matter jurisdiction to review DCS's final order. 
Accordingly, we vacate the judgment of the trial court.

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

JAN W. GAMBLE v. ALEX GRADY GAMBLE, III

Court:TCA

Attorneys: 

Jes Beard, Chattanooga, Tennessee, for the Appellant Alex Grady
Gamble, III.


Sandra J. Bott, Chattanooga, Tennessee, for the Appellee Jan W.
Gamble.

Judge: SWINEY

First Paragraph:

This appeal involves the second attempt of Alex Grady Gamble, III
("Husband") to modify his alimony obligations to Jan W. Gamble
("Wife").  In the initial divorce proceeding, the parties agreed to,
and the Trial Court approved, the payment of "periodic" alimony to
Wife which would vary depending on Wife's income, if any.  The first
time Husband sought modification of his alimony obligation, the
parties agreed to fix the alimony payment at $700 per month.  An
agreed order was entered by the Trial Court reflecting this change. 
Over four years later, Husband filed a second petition to modify his
alimony payment, essentially claiming Wife no longer was entitled to
receive rehabilitative alimony.  Wife filed a counter-petition seeking
an increase in alimony.  Wife also denied she was receiving
rehabilitative alimony, claiming she was receiving alimony in futuro. 
The Trial Court agreed with Wife that the alimony payment was properly
classified as alimony in futuro.  The Trial Court also held Wife was
entitled to an increase in alimony from $700 to $750 per month. 
Husband appeals both of these determinations.  We affirm.

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

MITZI MOORE LYNE v. GEORGE "TIC" PRICE, Individually and in his
official capacity as Head Basketball Coatch and DR. V. LANE RAWLINS,
in his official capacity as President of The University of Memphis

Court:TCA

Attorneys: 

Stephen M. Markowitz, Memphis, Tennessee, for the Appellant, Mitzi
Moore Lyne.

Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Leslie Ann Bridges, Senior Counsel, and William J.
Marett, Jr., Assistant Attorney General, Nashville, Tennessee, for the
Appellee, George "Tic" Price.                         

Judge: LILLARD

First Paragraph:

This is an intentional interference with employment case.  An at-will
employee worked as a secretary for a university's athletic department.
 The employee was discharged when she allegedly refused to cooperate
with her supervisor and remain silent about conduct she believed was
illegal and in violation of the university's policies.  The employee
filed a lawsuit against, among others, her former supervisor in both
his individual and his official capacities for intentional
interference with her employment with the university.  The trial court
dismissed the complaint in its entirety.  The employee appeals the
dismissal of the claims against the former supervisor in his
individual capacity.  We reverse, finding that the employee's
complaint states a cause of action based on the allegations that the
employee's supervisor procured her discharge to further his own
personal interests and for reasons unrelated to furthering the
interests of the university.

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

STATE OF TENNESSEE v. STEVEN LEE WHITEHEAD

Court:TCCA

Attorneys:

Sam J. Watridge, Humboldt, Tennessee, for the appellant, Steven Lee
Whitehead.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and Jody Pickens, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Steven Lee Whitehead, was convicted by a jury of three
counts of rape.  The trial court subsequently sentenced the Defendant
to ten years in the Department of Correction for each conviction, with
the sentences running concurrently.  On direct appeal by the
Defendant, this Court reversed all three convictions due to the trial
court's failure to instruct the jury on sexual battery as a
lesser-included offense of rape.  See State v. Steven Lee Whitehead,
No. W2000-01062-CCA-R3- CD, 2001 Tenn. Crim. App. LEXIS 732, at *68-69
(Jackson, Sept. 7, 2001).  The State then filed an application for
permission to appeal to our supreme court pursuant to Tennessee Rule
of Appellate Procedure 11.  The supreme court granted the State's
application for the sole purpose of remanding the case to this Court
for reconsideration in light of its recent opinion in State v. Allen,
69 S.W.3d 181 (Tenn. 2002).  Upon reconsideration, we again reverse
the Defendant's three convictions of rape and remand this matter for a
new trial.

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

STATE OF TENNESSEE v. STEVEN LEE WHITEHEAD

Court:TCCA

MCGEE OGLE DISSENTING

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

Constitutionality of Amendment No. 2 to Senate Bill 1201/
House Bill 1767

Date: June 27, 2002

Opinion Number: 02-076                         

http://www.tba.org/tba_files/AG/2002/OP76.pdf

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