Opinion Flash

September 5, 2002
Volume 8 — Number 154

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):
02 New Opinion(s) from the Tennessee Supreme Court
01 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
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
05 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


MEMPHIS PUBLISHING COMPANY, et al., v. CHEROKEE CHILDREN & FAMILY
SERVICES, INC., et al. 

AND 

JOHN MORGAN v. CHEROKEE CHILDREN & FAMILY
SERVICES, INC.

Court:TSC

Attorneys:     

Lucian T. Pera, Kathy Laughter Laizure, and Brian S. Faughnan,
Memphis, Tennessee, for the appellants, Memphis Publishing Company and
Mike Kerr.

Alan J. Wade, Thomas Lang Wiseman, and Lori Hackleman Patterson,
Memphis, Tennessee, for the appellee, Cherokee Children & Family
Services, Inc.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, Albert L. Partee, III, Senior Counsel, for the
appellant, John Morgan (in Morgan).

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, Albert L. Partee, III, Senior Counsel, and William
W. Leech, Assistant Attorney General, for the appellee, Tennessee
Department of Human Services (in Memphis Publishing Co.).                     

Judge: BIRCH

First Paragraph:

These two cases, consolidated for consideration, present two issues of
enormous significance.  First, we must decide whether a non-profit
corporation that provides privatized services to a governmental entity
is subject to the public access requirements of the Tennessee Public
Records Act.  The second issue concerns the authority of the state,
acting through the Comptroller of the Treasury, to require said
corporation to submit to a state audit.  In Memphis Publishing Co. v.
Cherokee Children & Family Services, Inc., Memphis Publishing Company
and others seek access to records belonging to Cherokee Children &
Family Services, Inc., a non-profit corporation which contracted with
the Tennessee Department of Human Services to help administer a
state-subsidized day care program.  In seeking access to the records,
the plaintiffs rely on both the Tennessee Public Records Act and
provisions in the contracts between the corporation and the state.  In
Morgan v. Cherokee Children & Family Services, Inc., the Comptroller
of the Treasury, John Morgan, seeks to require the same corporation to
submit to a state audit.  As authority for the audit, Morgan relies
upon the contracts at issue in Memphis Publishing Co. and upon 2000
Tenn. Pub. Acts. 960 (now codified at Tenn. Code Ann. S 8-4-116 (Supp.
2001)), which authorizes the Comptroller to audit the records of
entities which derive fifty percent or more of their gross revenue
from state or local government.  The trial courts in the two cases
found that Cherokee Children & Family Services, Inc. was not a
governmental agency, but that all records in its possession were state
property pursuant to the contracts between it and the state. 
Additionally, the trial court in Morgan found that an audit was
authorized by 2000 Tenn. Pub. Acts 960.  The Court of Appeals
reversed, holding that (1) the contractual provisions at issue did not
render the records public; (2) Cherokee Children & Family Services,
Inc. was not a governmental agency subject to the Public Records Act;
and (3) retroactive application of 2000 Tenn. Pub. Acts 960 in Morgan
would be unconstitutional.  We granted permission to appeal.  Because
we have determined, for the reasons outlined below, that Cherokee
Children & Family Services, Inc. operates as the "functional
equivalent" of a governmental (state) agency, we hold that all of its
records are subject to the Tennessee Public Records Act and therefore
are accessible by the public.  This resolution effectively resolves
the audit issue, and a separate decision thereupon is unnecessary. 
Accordingly, the judgment of the Court of Appeals is reversed, and the
cause is remanded to the trial court for further proceedings
consistent with this opinion.

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

JACKIE ROBINSON v. PATRICK J. LeCORPS, M.D.

Court:TSC

Attorneys: 

Mary A. Parker and Richard D. Piliponis, Nashville, Tennessee, for the
appellant, Jackie Robinson.

C. Haynes Cooney, Nashville, Tennessee, for the appellee, Patrick J.
LeCorps, M.D.

William B. Hubbard and Robyn E. Smith, Nashville, Tennessee, for
Amicus Curiae, Tennessee Hospital Association.

William L. Penny and Jonathan D. Rose, Nashville, Tennessee, for
Amicus Curiae, Hospital Alliance of Tennessee, Inc.

A. Yarnell Beatty, Nashville, Tennessee, for Amicus Curiae, Tennessee
Medical Association.

David Kumatz, Nashville, Tennessee, for Amicus Curiae, Reciprocal of
America.

R. Sandler Bailey, Jr., Memphis, Tennessee; Randall L. Kinnard,
Nashville, Tennessee; T. J. Emison, Alamo, Tennessee; J. D. Lee and
Dan C. Stanley, Knoxville, Tennessee; and John A. Day, Brentwood,
Tennessee, for Amicus Curiae, The Tennessee Trial Lawyers Association.
                        

Judge: ANDERSON

First Paragraph:

We granted review in this medical malpractice action to address
whether the trial court erred by excluding expert medical testimony
offered by the plaintiff and dismissing the complaint.  The Court of
Appeals affirmed.  After reviewing the record and applicable
authority, we conclude (1) that the plaintiff did not produce expert
testimony to establish the standard of professional care in the
community in which the defendant practiced or a similar community as
required by Tenn. Code Ann. S 29-26-115(a)(1) (2000 & Supp. 2001), and
(2) that the trial court did not abuse its discretion in excluding the
testimony and dismissing the complaint.  We therefore affirm the Court
of Appeal's judgment.

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

ALCOA FUJIKURA, LTD. v. KENNETH ANDERSON

Court:TSC - Workers Comp Panel

Attorneys: 

David T. Hooper, of Brentwood, Tennessee, for Appellant, Alcoa
Fujikura, Ltd.

N. Evan Harris, of Nashville, Tennessee, for Appellee, Kenneth
Anderson.                         

Judge: BYERS

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.  The
plaintiff appeals the trial judge's decision that the defendant
suffered the work-related injury of bilateral carpal tunnel syndrome
which resulted in a 12 percent permanent partial disability to each
arm.  We affirm the judgment of the trial court.

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

GLENN RAY ALCORN v. COFFEE COUNTY SHERIFF'S DEPARTMENT

Court:TCA

Attorneys:

Glenn Ray Alcorn, Terre Haute, Indiana, Pro Se.                        

Judge: COTTRELL

First Paragraph:

The appellant sought return of money he alleges was confiscated from
him by the Sheriff's department.  Although the department has never
responded denying that it holds the money or denying Mr. Alcorn's
entitlement to it, the trial court dismissed his petition because he
failed to appear at the hearing.  He could not appear because he was
incarcerated in another state.  We vacate the dismissal for failure to
prosecute.

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

THOMAS DYER v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

Attorneys:

Thomas Dyer, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Dawn Jordan, Assistant Attorney General, for the
appellee, State of Tennessee.                         

Judge: CANTRELL

First Paragraph:

The release eligibility date of a prisoner was extended by 30% after
he assaulted a correctional employee.  The prisoner petitioned for
judicial review of the extension, arguing that it amounted to an
unconstitutional violation of the ex post facto prohibition, double
jeopardy, and separation of powers.  The trial court dismissed his
petition.  We affirm.

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

THOMAS DYER v. TENNESSEE DEPARTMENT OF CORRECTION

Court:TCA

KOCH CONCURRING

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

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY v. DAVID A. JEFFERSON

Court:TCA

Attorneys:  

Thomas H. Bilbrey, Lafayette, Tennessee, for the appellant, David A.
Jefferson.

Tyree B. Harris, IV and Lisa Ramsay Cole, Nashville, Tennessee, for
the appellee, Massachusetts Mutual Life Insurance Company.                        

Judge: KOCH

First Paragraph:

This appeal involves a clinical psychologist who lost his professional
license following a sexual affair with a former patient.  Five months
after the Board of Examiners in Psychology revoked his license, the
psychologist filed a claim with his disability insurance carrier
asserting that depression had prompted him to have the affair and had
also rendered him unable to practice psychology.  The insurance
company denied coverage and filed a declaratory judgment action in the
Circuit Court for Sumner County seeking to establish its obligations
under the psychologist's policy.  Following a bench trial, the court
determined that the psychologist has failed to demonstrate that he was
disabled within the meaning of the policy.  On this appeal, the
psychologist asserts that he is entitled to disability benefits, and
the insurance company insists that it was entitled to discretionary
costs under Tenn. R. Civ. P. 54.04(2).  We concur with the trial
court's conclusion that the psychologist has not demonstrated that he
is entitled to benefits under his disability policy.  We also find
that the insurance company was entitled to recover part of its
requested discretionary costs.

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

H. DALE MINOR v. FARMERS INSURANCE EXCHANGE, et al.

Court:TCA

Attorneys:  

W. Brantley Phillips, Jr., Nashville, Tennessee, for the appellants,
Farmers Insurance Exchange, et al.

James D. Lane, II, Tullahoma, Tennessee, for the appellee, H. Dale
Minor.

Judge: CANTRELL

First Paragraph:

The defendant group of California-based insurance companies contracted
with the plaintiff to represent it in Coffee County.  Because the
plaintiff was an established, licensed independent agent he was
ineligible to represent the defendant under its guidelines to avoid
which the recruiting official of the defendant described the
plaintiff's prior occupation as a nurseryman.  The contract provided
that in the event the plaintiff resigned he would not solicit or
accept defendant's policy holders for a period of one year.  After
five years the plaintiff resigned, and sought to recover the monetary
benefits available to him in accordance with the contract.  The
defendant resisted payment, relying on the non-compete provision since
the plaintiff admitted that he solicited the defendant's policy
holders.  Plaintiff argued, inter alia, that the non-compete provision
was unenforceable because the defendant was fully aware of the fact
that he represented other companies and for five years freely switched
his clients to and from the defendant with other companies.  Recovery
was allowed.  We affirm.

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

KENNETH W. SULLIVAN v. LINDA R. SULLIVAN 

Court:TCA

Attorneys:

Patricia R. Young, Brentwood, Tennessee, for the appellant, Kenneth W.
Sullivan.

Ernest W. Williams and Anna E. Freeman, Franklin, Tennessee, for the
appellee, Linda R. Sullivan.                        

Judge: FARMER

First Paragraph:

This appeal arises from a divorce action.  The plaintiff/appellant
appeals the division of marital property, award of alimony in futuro,
amount of alimony, and award of attorney's fees.  We affirm the award
of alimony as modified herein, affirm the division of property, and
reverse the award of attorney's fees.

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

STATE OF TENNESSEE v. DONALD E. BRYANT

Court:TCCA

Attorneys:

Julie A. Rice, Knoxville, Tennessee (on appeal only); Mack Garner,
District Public Defender, Maryville, Tennessee (on appeal and at
trial); and Shawn Graham, Assistant Public Defender, Maryville,
Tennessee (at trial only) for the appellant, Donald E. Bryant.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Michael L. Flynn, District
Attorney General; and William R. Reed, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: WOODALL

First Paragraph:

Following a bench trial, Defendant, Donald E. Bryant, was found guilty
of two counts of aggravated assault and one count of misdemeanor
theft.  He was sentenced as a persistent Range III offender to serve
twelve years for each aggravated assault, and eleven months and
twenty-nine days for the misdemeanor theft; all sentences were ordered
to be served concurrently.  In this appeal, Defendant challenges the
sufficiency of the evidence to support the two convictions for
aggravated assault.  After reviewing the record and the applicable
law, we affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. JAMES L. PARTIN

Court:TCCA

Attorneys:

Michael G. Hatmaker, Jacksboro, Tennessee for the appellant, James L.
Partin.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; William Paul Phillips, District Attorney
General; Jared Effler, Assistant District Attorney General; and Todd
Longmire, Assistant District Attorney General, for the appellee, State
of Tennessee.                     

Judge: WOODALL

First Paragraph:

Defendant, James L. Partin, was indicted for the offenses of second
degree murder, aggravated assault, three counts of felony reckless
endangerment, and unlawful possession of a weapon with intent to use
it in the commission of felony reckless endangerment.  Pursuant to a
negotiated plea agreement, Defendant pled guilty to voluntary
manslaughter, a lesser-included offense of second degree murder, and
all other charges were dismissed.  The plea agreement further provided
that the trial court would determine the length and manner of service
of Defendant's sentence, with the sole parameter being that he be
sentenced as a standard Range I offender.  Following a sentencing
hearing, the trial court ordered that Defendant serve five years in
confinement in the Department of Correction.  In this appeal,
Defendant contends that the trial court erred in determining the
length and manner of service of his sentence.  After a thorough review
of the sentencing proceeding, we affirm the judgment of the trial
court concerning the length of Defendant's sentence.  We reverse the
trial court's judgment regarding manner of service, however, and order
that Defendant serve his sentence on split-confinement.

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

Seizure and Disposition of Pawned Items

Date: August 27, 2002

Opinion Number:  02-090                        

http://www.tba.org/tba_files/AG/2002/OP90.pdf

Distribution of Hall Income Tax Revenues to Municipalities and
Counties

Date: August 27, 2002

Opinion Number: 02-091                         

http://www.tba.org/tba_files/AG/2002/OP91.pdf

Legality and Regulation of Sales of Beer and Liquor by the Drink in
the City of Arlington

Date: August 28, 2002

Opinion Number:  02-092                        

http://www.tba.org/tba_files/AG/2002/OP92.pdf

Approval of KIPP nontraditional schools under authority of Tenn. Code
Ann. S 49-1-207

Date: August 28, 2002

Opinion Number: 02-093                         

http://www.tba.org/tba_files/AG/2002/OP93.pdf

Powers and Duties of Williamson County Constables

Date: August 28, 2002

Opinion Number:  02-094                        

http://www.tba.org/tba_files/AG/2002/OP94.pdf

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