Opinion FlashSeptember 5, 2002Volume 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):
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Howard H. Vogel 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 PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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