Opinion Flash

November 20, 2002
Volume 8 — Number 205

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
02 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
04 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


LARRY THRASHER v. CARRIER CORPORATION, et al.

Court:TSC - Workers Comp Panel

Attorneys:

B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Carrier
Corporation and Insurance Company of the State of Pennsylvania.

Donald J. Ray, Tullahoma, Tennessee, for the appellee, Larry Thrasher.
                        
Judge: INMAN

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 suffers from plantar fasciitis in both feet.  Causation was
vigorously contested.  The trial judge found that the plaintiff's
condition was job-related.  A podiatrist opined that the plaintiff
retained a 29 percent impairment to both feet.  The trial judge
"assessed a permanent, partial disability of 100 percent to the two
feet of the plaintiff," notwithstanding that the plaintiff had
returned to his pre- injury job, "substantially improved," and in his
words, "doing good," with no complaints other than first-step pain
upon arising.  The finding of 100 percent is excessive and is reduced
to 40 percent.

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

CYNTHIA L. URSERY v. LIBERTY MUTUAL INSURANCE GROUP, et al.

Court:TSC - Workers Comp Panel

Attorneys:      

David T. Hooper, Brentwood, Tennessee, for the appellants, Liberty
Mutual Insurance Group and United Parcel Service, Inc.

H. Tom Kittrell, Jr., Nashville, Tennessee, for the appellee, Cynthia
Ursery.                    

Judge: WEATHERFORD

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel 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.  In this case, the
employer appeals the trial court's award of 80% permanent partial
disability to the employee where 1) the medical proof established a 5%
anatomical impairment to both elbows; and 2) a vocational expert gave
the employee a 90% vocational disability rating based on loss of
access to 90.4% of the jobs available to her prior to her injury due
to her permanent medical restrictions.  We find that the evidence does
not preponderate against the trial court's findings, and therefore the
award is not excessive.  We affirm the judgment of the trial court in
all respects.

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

CITY OF COOKEVILLE, TENNESSEE, et al. v. WILLIAM M. HUMPHREY, M.D., et al.

Court:TCA

Attorneys:    

William H. West, Nashville, Tennessee and John Acuff, Cookeville,
Tennessee, for the appellants, William M. Humphrey, M.D., John P.
Limbacher, M.D., Daniel F. Coonce, M.D., George O. Mead, M.D., and
Putnam Radiology, P.C.

Andree Sophia Blumstein, Nashville, Tennessee, for the appellees, City
of Cookeville, Tennessee, by and through Cookeville Regional Medical
Center, and Cookeville Regional Medical Center Authority.

William B. Hubbard, Nashville, Tennessee, for amicus curiae, Tennessee
Hospital Association. Andrew Yarnell Beatty, Nashville, Tennessee, for
amicus curiae, Tennessee Medical Association. David L. Steed,
Nashville, Tennessee, for amicus curiae, Medical Staff of Cookeville
Regional Medical Center.                       

Judge: CAIN

First Paragraph:

This is a declaratory judgment action wherein a private act hospital
authority, established pursuant to Tennessee Code Annotated sections
7-57-601 to 604, seeks a declaration that it has the authority to
enter into an exclusive contract for professional radiology services,
thus limiting the use of imaging equipment and hospital support staff
situated in the hospital to such exclusive providers of radiology
services.  Defendants are four competent radiologists, presently on
the medical staff of the hospital, who have also established Premier
Diagnostic Imaging Center, LLC to provide outpatient radiology
services independent of the hospital.  The exclusive contract sought
by the hospital would effectively "close" use of the hospital imaging
facilities and support staff to all radiologists except the providers
named in the exclusive contract.  The trial court declared that the
hospital was authorized to enter into such an exclusive provider
contract, and we affirm the judgment of the trial court.

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

PATRICIA PAULETTE FULGHUM GRICE v. LARRY RANDOLPH GRICE

Court:TCA

Attorneys: 

G. Sumner R. Bouldin, Jr., Murfreesboro, TN, for Appellant

Clifford K. McGown, Jr., Waverly, TN, for Appellee                         

Judge: HIGHERS

First Paragraph:

This appeal arises from a divorce proceeding initiated by the wife. 
The trial court, holding that both parties contributed to the demise
of the marriage, granted the parties a divorce.  The trial court then
granted the wife rehabilitative alimony for a period of eighteen
months, as well as alimony in solido, but denied the wife's request
for alimony in futuro.  The primary issue on appeal is whether the
trial court erred in granting the wife rehabilitative alimony as
opposed to alimony in futuro.  For the following reasons, we affirm,
as modified.

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

JUANITA SWETT v. JOE BINKLEY, JR.

Court:TCA

Attorneys:     

Charles Galbreath, Nashville, Tennessee, for the appellant, Juanita
Swett.

Joe Binkley, Jr., Nashville, Tennessee, Pro Se.                     

Judge: CANTRELL

First Paragraph:

A divorce client sued her attorney on an alleged promise to reimburse
all prepaid fees and expenses at the conclusion of the divorce
proceeding.  The trial judge held that the claim was barred by the
one-year statute of limitations in Tenn. Code Ann. S 28-3-104(a)(2),
and granted the attorney summary judgment.  On appeal the client
asserts (1) that the six-year contract statute of limitations applies,
and (2) in any event, the action was commenced within a year of the
accrual of the cause of action.  We affirm the trial court.

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

GARY EUGENE ALDRIDGE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Edward S. Ryan, Nashville, Tennessee, for the appellant, Gary Eugene
Aldridge.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; and Ronald L. Davis, District Attorney
General, for the appellee, State of Tennessee.                        

Judge: MCGEE OGLE

First Paragraph:

The petitioner, Gary Eugene Aldridge, was convicted by a jury in the
Circuit Court of Hickman County of one count of aggravated kidnapping,
two counts of aggravated rape, one count of rape, and two counts of
simple assault.  The trial court sentenced the petitioner to an
effective sentence of sixty years incarceration in the Tennessee
Department of Correction, followed by an effective consecutive
sentence of seventeen months and twenty-nine days in the local
workhouse.  After an unsuccessful appeal of his convictions, the
petitioner timely filed a petition for post-conviction relief,
alleging, among other grounds, ineffective assistance of counsel.  The
petitioner now brings this appeal challenging the post-conviction
court's denial of his petition.  After reviewing the record and the
parties' briefs, we affirm the judgment of the post-conviction court.

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

JERRY NEAL CARPENTER V. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Mark E. Stephens, District Public Defender, John Halstead, Assistant
Public Defender; Knoxville, Tennessee, for the appellant, Jerry Neal
Carpenter.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney general; Randall E. Nichols, District Attorney
General, and Marsha L. K. Selecman, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: TATUM

First Paragraph:

The Petitioner Jerry Neal Carpenter appeals from the order of Knox
County Circuit Court denying  his petition for post-conviction relief.
 The post-conviction court dismissed Carpenter's petition, finding
that the only claim alleged, i.e., the ineffectiveness of counsel, was
without merit.  In this appeal as of right, Petitioner challenges the
lower court's ruling. We affirm the judgment of the post-conviction
court.  All members of the panel are sitting by designation.

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

JESSE CARTER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Jesse
Carter.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; W. Michael McCown, District Attorney
General; and Michael David Randles, Assistant District Attorney
General, for the appellee, State of Tennessee.                      

Judge: RILEY

First Paragraph:

The petitioner appeals the denial of his post-conviction relief
petition.  He argues: (1) his trial counsel was ineffective in
advising him regarding the sentence agreement in which he waived his
right to appeal; and (2) he did not knowingly and voluntarily waive
his right to appeal.  We conclude that although the post-conviction
court erroneously stated that the uncorroborated testimony of the
post-conviction petitioner "should be summarily struck," the
post-conviction court, nevertheless, made proper and adequate findings
which support the denial of relief.  We affirm the judgment of the
post-conviction court.

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

STATE OF TENNESSEE v. ANTHONY R. PARHAM

Court:TCCA

Attorneys:   

Cynthia M. Fort (on appeal) and Monte D. Watkins (at trial),
Nashville, Tennessee, for the appellant, Anthony R. Parham.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Katrin Novak Miller and Christopher R. Buford, Assistant
District Attorneys General, for the appellee, State of Tennessee.                       

Judge: RILEY

First Paragraph:

A Davidson County jury convicted the defendant, Anthony R. Parham, of
sexual battery.  In this appeal as of right, the defendant raises the
issue of whether the evidence was sufficient to support the conviction
for sexual battery.  We affirm the judgment of the trial court.

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

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