Opinion Flash

December 5, 2002
Volume 8 — Number 213

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):
01 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
11 New Opinion(s) from the Tennessee Court of Appeals
00 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


SUSAN R. GODFREY, et al. v. JESUS RUIZ, et al.

Court:TSC

Attorneys: 

Catherine S. Hughes and Joseph M. Dalton, Jr., Nashville, Tennessee,
for the Appellants, Susan R. Godfrey and Rickey E. Godfrey.

Clifton B. Sobel, Jr., Nashville, Tennessee, for the Appellees, Jesus
Ruiz and Shawanda Ruiz.

Judge: HOLDER

First Paragraph:

This case arises out of an action by the plaintiffs to recover damages
for personal injuries sustained in an automobile accident.  The
plaintiffs claim their injuries were caused by the negligent operation
of a van owned by the defendants and driven by a cousin of one of the
defendants.  In support of their motion for summary judgment, the
defendants offered affidavits and deposition testimony stating that
the driver was operating the van without their permission and that the
driver was not their employee.  Despite the prima facie evidence of an
owner-driver agency relationship created by Tennessee Code Annotated
section 55-10-311(a) (1998), the trial court granted the motion for
summary judgment.  The Court of Appeals affirmed the trial court's
ruling.  We hold that an owner's offer of testimony negating the issue
of agency, standing alone, cannot overcome the prima facie evidence
created by Tennessee Code Annotated section 55-10-311(a).

http://www.tba.org/tba_files/TSC/godfreysr.wpd
								
JEFF GASTON v. RSKCo and LOVE'S COUNTRY STORES, INC. Court:TSC - Workers Comp Panel Attorneys: B. Duane Willis, Jackson, Tennessee, for appellant, RSKCo and Love's Country Stores, Inc. Gayden Drew IV, Jackson, Tennessee, for appellee, Jeff Gaston Judge: MALOAN 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. S50-6-285(e)(3) for hearing and reporting to the Supreme Court of findings and fact and conclusions of law. The defendant employer contends the plaintiff employee failed to give proper notice of a back injury and the evidence preponderates against the trial court's award of twelve percent (12%) to the body as a whole. For the reasons stated in this opinion, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/gaston.wpd
MICHAEL LLOYD TODD v. BEKAERT STEEL WIRE CORPORATION, et al. Court:TSC - Workers Comp Panel Attorneys: Paul C. Peel, Memphis, Tennessee, for the appellants, Bekaert Steel Wire Corporation and Liberty Mutual Insurance Company Jeffrey A. Garrety and Joseph R. Taggart, Jackson, Tennessee, for the appellee, Michael Lloyd Todd 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 the award of benefits based on 36 percent to the left arm is excessive. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/todd.wpd
BARBARA CAGLE v. GAYLORD ENTERTAINMENT CO. Court:TCA Attorneys: Mark. G. Fendley, Nashville, trial counsel for Appellant, Barbara Cagle R. Stephen Doughty, Nashville, on appeal for Appellant, Barbara Cagle Rose P. Cantrell, Joel P. Surber, Nashville, for Appellee, Gaylord Entertainment Company Judge: TURNBULL First Paragraph: This premises liability action involves injuries suffered in a fall in the Opryland Hotel parking lot. Plaintiff alleges in her complaint that the hotel created a dangerous condition in its parking lot by constructing a curb or carrier on which plaintiff claims she tripped. The hotel moved for summary judgment on the grounds that (1) there was no proof the curb constituted a dangerous condition; and (2) there was no proof of causation, e.g., that the plaintiff tripped over the curb. The trial court granted the motion, and plaintiff has appealed. We find no proof in the record that the curb created a dangerous, perilous, or unsafe condition. Thus, there is no proof in the record of conduct falling below the standard of care. http://www.tba.org/tba_files/TCA/cagleb.wpd
EXTENDICARE INTERNATIONAL, INC., et al. v. JAMES P. ANDERSON, III, et al. Court:TCA Attorneys: Elliott Ozment, Nashville, Tennessee, for the appellants, Extendicare International, Inc., Extendicare of Colorado, Inc., Extendicare of Texas, Inc., and Gerald Hunter. Darrell G. Townsend and Neil M. McIntire, Nashville, Tennessee, for the appellees, James P. Anderson, III, James P. Anderson, II, and Anderson & Bridges. Judge: CAIN First Paragraph: Appellants filed a legal malpractice action against James P. Anderson, III on July 20, 1999. Appellants filed an Amended Complaint against Anderson III on February 14, 2001 and, in such Amended Complaint, asserted for the first time a claim against James B. Anderson, II and his law firm, Anderson & Bridges. The trial court granted summary judgment to Anderson II and Anderson & Bridges upon a finding, as a matter of law, that the statute of limitations as to them had expired. We affirm the action of the trial judge. http://www.tba.org/tba_files/TCA/extendicare.wpd
RAY C. HALL, et al. v. TENNESSEE WORKERS CREDIT UNION Court:TCA Attorneys: Harry W. Miller, III, Nashville, Tennessee, for the appellants, Ray C. Hall and Jacqueline S. Hall. L. Gino Marchetti, Jr., A. Allen Smith, III, Nashville, Tennessee, for the appellee, Tennessee Workers Credit Union. Judge: COTTRELL First Paragraph: Husband and Wife obtained a loan from a credit union and pledged their home as security for the note under a Deed of Trust. The Deed of Trust required Husband and Wife to maintain property taxes and insurance on the property. The credit union foreclosed on the property after Husband and Wife continuously failed to maintain the taxes and insurance. Husband and Wife filed suit against the credit union, arguing that the agreement between the parties did not provide the remedy of foreclosure for mere nonpayment of taxes and insurance. The trial court granted summary judgment for the credit union. Because we find that the agreement between the parties provides the remedy of foreclosure for breach of any promise made under the agreement, including the promise to pay property taxes and insurance, we find that the trial court was correct in granting summary judgment for the credit union and affirm that decision. http://www.tba.org/tba_files/TCA/hallr1.wpd
BEHI HAMIDY v. W. DYRK HALSTEAD Court:TCA Attorneys: J. Britt Phillips and Robbie T. Beal, Franklin, Tennessee, for the appellant, W. Dyrk Halstead. Larry D. Craig, Nashville, Tennessee, for the appellee, Behi Hamidy. Judge: CAIN First Paragraph: This is a suit for breach of contract wherein the trial court held that a promissory note, rendered non- negotiable by provisions relating to payment prior to maturity by means other than money, was nonetheless a binding contract between the parties thereto. Holding that parol evidence was inadmissible to vary the unambiguous terms of the contract, the trial court entered judgment for the plaintiff. We affirm the action of the trial court. http://www.tba.org/tba_files/TCA/hamidyb.wpd
JERRY L. JOHNS v. DONAL CAMPBELL, et al. Court:TCA Attorneys: Jerry L. Johns, Mountain City, Tennessee, Pro Se. Michael E. Moore, Solicitor General; Kimberly J. Dean, Deputy Attorney General, for the appellees, Donal Campbell and the Tennessee Department of Correction Judge: CAIN First Paragraph: Jerry L. Johnson, pro se, seeks a declaratory judgment that he is being held in the Tennessee Department of Correction without proper authority. The trial court sustained a Motion for Summary Judgment filed by the Commissioner and we affirm the trial court. http://www.tba.org/tba_files/TCA/johnsjl.wpd
TONY MAKOKA v. HOWARD COOK, et al. Court:TCA Attorneys: Tony Makoka, Oakdale, Louisiana, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Stephanie R. Reevers, Associate Deputy Attorney General, for the appellee, Howard Cook, et al. Judge: COTTRELL First Paragraph: An inmate filed a pleading in the chancery court complaining his parole hearing had been delayed because the Department of Correction misapplied a statute and misclassified him as close custody by improperly convicting him of disciplinary infractions and/or assigning too many custody points for a federal immigration detainer warrant. We affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/makokatony_opn.wpd
TONY MAKOKA v. HOWARD COOK, et al. Court:TCA KOCH CONCURRING http://www.tba.org/tba_files/TCA/makokatony_con.wpd
SALLY QUALLS MERCER, et al. v. VANDERBILT UNIVERSITY, INC., et al. Court:TCA Attorneys: Robert J. Walker and Steven E. Anderson, Nashville, Tennessee, for the appellant, Vanderbilt University, Inc., d/b/a Vanderbilt University Medical Center. R. Dulin Kelly, Clinton L. Kelly and Andy L. Allman, Hendersonville, Tennessee, for the appellee, Sally Qualls Mercer, as conservator of the person of Larry Thomas Qualls. Judge: CANTRELL First Paragraph: This appeal involves a medical malpractice case arising out of the emergency treatment of an intoxicated driver who sustained catastrophic injuries in a single-vehicle accident. The driver's conservator filed suit in the Circuit Court for Davidson County alleging that the negligence of the driver's healthcare providers at Vanderbilt University Medical Center caused him to suffer irreversible brain injury that left him in a persistent vegetative state. A jury returned a verdict for the driver, assessing his damages at $7,366,000 and allocating seventy percent of the fault to Vanderbilt and thirty percent of the fault to the driver. Thereafter, the trial court determined as a matter of law that the driver's damages had been caused by a separate injury for which Vanderbilt was entirely responsible. Accordingly, the trial court set aside the jury's allocation of fault and entered a judgment holding Vanderbilt one hundred percent at fault for the entire amount of the driver's damages. We have determined that the judgment must be vacated and that Vanderbilt is entitled to a new trial because of the cumulative effect of the trial court's errors in excluding the testimony of three of Vanderbilt's witnesses as well as evidence of the driver's alcohol-related conduct. http://www.tba.org/tba_files/TCA/mercersq.wpd
MARSHALL MOFFETT v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Marshall Moffett, Clifton, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn Jordan, Assistant Attorney General, for the appellee, Tennessee Department of Correction. Judge: CAIN First Paragraph: Petitioner filed, pro se, a "Petition for Nunc Pro Tunc" in which he asserted that he was presently confined and that the defendant added 1775 days to his sentence unlawfully. The trial court granted the defendant's Motion for Summary Judgment and we affirm the trial court. http://www.tba.org/tba_files/TCA/moffettm.wpd
ANDRE MAYFIELD v. RICKY BELL, et al. Court:TCA Attorneys: Andred Mayfield, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General & Reporter; Arthur Crownover, II, Senior Counsel, for the appellees, Ricky Bell, Robert Waller, Cheryl Donaldson and Richard Merchant. Judge: CAIN First Paragraph: Appellant, a pro se inmate in the Department of Corrections, appeals the dismissal by the chancellor of his case pursuant to Tennessee Code Annotated section 41-21-812. We affirm the action of the chancellor. http://www.tba.org/tba_files/TCA/nayfielda.wpd
DANIEL PAUL SPATAFORE v. CATHERINE JUANELLE SPATAFORE Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for Appellant, Catherine Juanelle Spatafore. Eric S. Armstrong, Cleveland, Tennessee, for Appellee, Daniel Paul Spatafore. Judge: FRANKS First Paragraph: Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed. http://www.tba.org/tba_files/TCA/spatafored.wpd
ESTATE OF ANTHONY D. VANLEER V. SARA HARAKAS, ET AL. Court:TCA Attorneys: Karla C. Hewitt, Nashville, Tennessee, for the appellants, Sara Harakas and Andre Harakas. Ronald Kilgore, Kirk Vandivort, Charlotte, Tennessee, for the appellee, The Estate of Anthony Douglas Vanleer. Judge: COTTRELL First Paragraph: A default judgment was entered against Sara and Andre Harakas, the Appellants herein, in a dispute over defects in the construction of a residence. At the time the default judgment was entered, Mr. and Mrs. Harakas had not answered the complaint. Mr. and Mrs. Harakas filed a pro se motion to set aside the default judgment, arguing that they did not receive the notice of the motion for default judgment, which the trial court denied after a hearing that included testimony from Mrs. Harakas. Mr. and Mrs. Harakas then retained an attorney who filed a motion to alter or amend the refusal to set aside the default judgment and a second motion to set aside the judgment taken by default. The trial court denied these motions. Because there was reasonable doubt as to whether the default judgment should have been set aside, we reverse the trial court's refusal to set aside. http://www.tba.org/tba_files/TCA/vanleerad.wpd

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