Opinion Flash

December 19, 2002
Volume 8 — Number 223

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):
03 New Opinion(s) from the Tennessee Supreme Court
00 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


JOANNE CARTER v. FIRST SOURCE FURNITURE GROUP

Court:TSC

Attorneys:

S. Newton Anderson and Gayle B. Lakey, Memphis, Tennessee, for the
appellant, First Source Furniture Group.

Gregory A. Petrinjak and Mark P. Barnett, Jackson, Tennessee, for the
appellee, Joanne Carter.

Judge: DROWOTA

First Paragraph:

In this workers' compensation case, we granted the defendant's motion
for review pursuant to Tennessee Code Annotated section 50-6-225(e)
primarily to determine whether the trial court erred by finding that
the two and one-half times cap on the permanent partial disability
award set forth in Tennessee Code Annotated section 50-6-241(a)(1) did
not apply, where the plaintiff was fired by the employer for gross
misconduct prior to being treated for her injury. We hold that an
employer should be permitted to enforce workplace rules without being
penalized in a workers' compensation case.  Thus, the trial court
erred in refusing to apply the two and one-half times cap found in
Tennessee Code Annotated section 50-6-241(a)(1).  Furthermore, under
our review, where expert medical testimony is by deposition, we may
draw our own conclusions about the weight and credibility to be given
to the medical testimony. Given the disagreement between the
evaluating and treating physicians over the surgical procedure
performed on the plaintiff, we are of the opinion that the physician
who actually performed the surgery was better situated to understand
and rate the resulting impairment.  We adopt the medical impairment
rating of the treating physician, equating to 6% to the body as a
whole and set the plaintiff's permanent partial disability at 15% to
the body as a whole.

http://www.tba.org/tba_files/TSC/carterj.wpd							
								
JOHN T. KING v. ANNE B. POPE Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Janet M. Kleinfelter, Senior Counsel, Nashville, Tennessee, for Appellant, Anne B. Pope, Commissioner of the Tennessee Department of Commerce and Insurance. R. Louis Crossley, Jr., Knoxville, Tennessee, and W. Davidson Broemel, Nashville, Tennessee, for Appellee, John T. King. Judge: DROWOTA First Paragraph: In this case, we must decide whether a pay telephone sale-leaseback program marketed and sold by the plaintiff constitutes an investment contract, and thus a security under the Tennessee Securities Act of 1980. In finding that the program was a security, the trial court applied the definition of "investment contract" adopted by the Court of Criminal Appeals in State v. Brewer, 932 S.W.2d 1 (Tenn. Crim. App.), perm. app. denied (Tenn. 1996). Under this test, an investment contract exists where (1) An offeree furnishes initial value to an offeror, and (2) a portion of this initial value is subjected to the risks of the enterprise, and (3) the furnishing of the initial value is induced by the offeror's promises or representations which give rise to a reasonable understanding that a valuable benefit of some kind, over and above the initial value, will accrue to the offeree as a result of the operation of the enterprise, and (4) the offeree does not receive the right to exercise practical and actual control over the managerial decisions of the enterprise. Brewer, 932 S.W.2d at 11 (quoting State v. Hawaii Market, 485 P.2d 105, 109 (Haw. 1971)). The Court of Appeals rejected the Brewer test and instead adopted the federal test for determining whether a particular transaction is an investment contract. See United Hous. Found., Inc. v. Forman, 421 U.S. 837 (1975); SEC v. W.J. Howey Co., 328 U.S. 293 (1946). Applying this test, the Court of Appeals held that the pay telephone sale-leaseback program at issue in this case is not a security. After careful consideration, we agree with the trial court's finding that the appropriate test for determining the presence of an investment contract is set forth in Brewer. Applying this test, we agree with the trial court that the plaintiff's payphone sale-leaseback program is an investment contract and that the plaintiff was thus marketing and selling unregistered securities in violation of Tennessee law. http://www.tba.org/tba_files/TSC/kingjt.wpd
GLORIA B. LANE v. W.J. CURRY & SONS Court:TSC Attorneys: Elder Shearon, III, Memphis, Tennessee, for the plaintiff-appellant, Gloria B. Lane. Robert A. Cox and James F. Horner, Jr., Memphis, Tennessee, for the defendant-appellee, W.J. Curry & Sons. Judge: DROWOTA First Paragraph: We granted review in this case to determine whether a landowner can bring a nuisance action against an adjoining landowner when tree branches and roots from the adjoining landowner's property encroach upon and damage the neighboring landowner's property. The plaintiff asserts that encroaching branches and roots from the defendant's trees constitute a nuisance for which she is entitled to seek damages. The defendant responds that the plaintiff's sole remedy is self-help and, therefore, the plaintiff may not recover for any harm caused by the defendant's trees. The trial court and Court of Appeals agreed with the defendant, and held that an adjoining landowner's only remedy is self-help and that a nuisance action cannot be brought to recover for harm caused by encroaching tree branches and roots. We have determined that self-help is not the sole remedy of an adjoining landowner and that a nuisance action may be brought when tree branches and roots from the adjacent property encroach upon and damage the neighboring landowner's property. Although encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they encroach upon adjoining property either above or below the ground, they may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. We do not, however, alter existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or potential harm to the adjoining property. We further find that the record in this case is sufficient to establish liability for nuisance. Accordingly, the judgment of the Court of Appeals affirming the trial court's dismissal of the case is reversed. The case is remanded to the trial court for a determination of damages and other appropriate relief. http://www.tba.org/tba_files/TSC/lanegb.wpd
AMERICAN NATIONAL PROPERTY & CASUALTY COMPANIES v. JAMES E. ROBERTS, et al. Court:TCA Attorneys: Alan M. Sowell, Nashville, Tennessee, for the appellant, American National Property and Casualty Companies. Keith Jordan, Nashville, Tennessee, and J. Thomas Smith, Franklin, Tennessee, for the appellee, James E. Roberts. Michael P. Dolan, Nashville, Tennessee, for the appellee, Stephen E. Spittle. Harry A. Wilson, Jr., Indianapolis, Indiana, and Phillip B. Jones, Nashville, Tennessee, for the appellees, Donald R. Yeoman and Janice M. Yeoman. Larry L. Crain, Brentwood, Tennessee, for the appellee, Jeffrie Todd White. Shelley I. Stiles, Brentwood, Tennessee, for the appellee, Mike Keil & Associates. James D. Kay, Jr. and Matthew Brothers, Nashville, Tennessee, for the appellee, George Durnin & Assoc., Inc., d/b/a Tennessee Car & Van Rental. Judge: KOCH First Paragraph: This appeal involves a coverage dispute between the driver of a rented van and his insurance company. Following a single-vehicle accident that killed one passenger and injured two others, the driver's insurance company denied coverage because the driver was not operating the van with its owner's permission. Thereafter, the insurance company filed a declaratory judgment action in the Chancery Court for Davidson County. The trial court denied the insurance company's motion for summary judgment after concluding that the term "owner" as it appeared in the policy was ambiguous. Thereafter, the trial court granted the driver's motion for summary judgment after concluding, as a matter of law, that he had been operating the rented van with the owner's permission. We have determined that the trial court should not have granted the driver a summary judgment because the record contains material factual disputes regarding whether the driver was operating the rented van with the owner's permission. http://www.tba.org/tba_files/TCA/americannational.wpd
ANR PIPELINE CO., COLONIAL PIPELINE CO., COLUMBIA GULF TRANSMISSION CO., et al. v. TN BOARD OF EQUALIZATION Court:TCA Attorneys: Harlan Dodson, III, and Paul Parker, Nashville, Tennessee, for the appellant, ANR Pipeline. Everett B. Gibson, Memphis, Tennessee, and Ron L. Quigley, Atlanta, Georgia, for the appellant, Colonial Pipeline Company. Brigid M. Carpenter, Nashville, Tennessee, James W. McBride, Washington, D.C., and Stephen Dorr Goodwin, Memphis, Tennessee, for the appellants, Columbia Gulf Transmission, East Tennessee Natural Gas, Midwestern Gas Transmission, Southern Natural Gas Company, Tennessee Gas Pipeline Company, Texas Eastern Transmission Corporation, Texas Gas Transmission Corp., and Trunkline Gas Co. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mary Ellen Knack, Assistant Attorney General; Robert Lee, Staff Attorney, for the appellee, State of Tennessee. James Charles and Jennifer Clinard Surber, Nashville, Tennessee, for Intervenor, Metropolitan Government of Nashville & Davidson Co. Jean Dyer Harrison, Nashville, Tennessee, and Jeffrey Dean Moseley, Franklin, Tennessee for Intervenor, Williamson County Government. Judge: CANTRELL First Paragraph: Pipelines for the transport of petroleum products were installed sub-surface by various companies which acquired easements over affected freeholds. These pipelines were assessed as real estate for purposes of taxation. Petitions for Review were filed by the Pipeline Companies alleging that the pipelines were personal property. The decision of the Board of Equalization is reversed. http://www.tba.org/tba_files/TCA/anrpipeline.wpd
TERESA LYNN KIDWELL ATKINS v. RONAL LEE ATKINS Court:TCA Attorneys: Danny C. Garland, II, Knoxville, Tennessee, for the appellant, Ronal Lee Atkins. Sherry L. Mahar, Knoxville, Tennessee, for the appellee, Teresa Lynn Kidwell Atkins. Judge: SUSANO First Paragraph: This is a divorce case involving the enforceability of a reconciliation agreement ("the Agreement"), providing that Teresa Lynn Kidwell Atkins ("Wife") will not make a claim "in any subsequent [d]ivorce [s]uit or [l]egal [p]roceeding" to a mobile home and acreage titled in the name of Ronal Lee Atkins ("Husband"). The trial court held that the Agreement - which was some nine years old when Wife filed the instant divorce action - was no longer enforceable. The court then found the subject property to be marital property and proceeded to award it to Wife as a part of her equitable division of marital property. Husband appeals, insisting that he is entitled to the mobile home and acreage pursuant to the terms of the Agreement. We affirm. http://www.tba.org/tba_files/TCA/atkinst_opn.wpd
TERESA LYNN KIDWELL ATKINS v. RONAL LEE ATKINS Court:TCA SWINEY CONCURRING http://www.tba.org/tba_files/TCA/atkinst_con.wpd
THE TENNESSEE DEPARTMENT OF HEALTH, et al. v. GARY C. BOYLE, M.D., et al. Court:TCA Attorneys: Thomas C. Jessee, Johnson City, Tennessee, for the appellants, Gary C. Boyle, M.D., Wesley A. Adams, Jr., M.D., Adams & Boyle, P.C., d/b/a The Women's Center; Angus McDonald Green Crook, M.D., Debra Jo Adams, Leisa Boyle, Welshwood Partnership, Adams & Boyle Partnership, and Regina Taylor Hensley. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael W. Catalano, Associate Solicitor General; and E. Blaine Sprouse, Assistant Attorney General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: The issue in this case is the constitutionality of a Tennessee statute requiring a private clinic that performs a "substantial number" of abortions to acquire a certificate of need from the Health Facilities Commission and a license from the Department of Health. The Chancery Court of Davidson County upheld the statute, enjoined the defendants from operating without a certificate and a license, and imposed substantial monetary sanctions for civil contempt. We hold that the statute violates relevant provisions of the United States and Tennessee Constitutions. We therefore reverse the judgment below and dismiss the contempt charge. http://www.tba.org/tba_files/TCA/boylegc.wpd
BILLY ALLAN BRASWELL, et ux. v. AC and S, INC., et al. Court:TCA Attorneys: Hugh B. Bright, Jr., Michael J. King, and Robert L. Vance, for Appellant, National Service, Industries, Inc. Mike G. Nassios, Timothey M. McLaughlin and Robert S. Patterson, Knoxville, Tennessee, for Appellees, Billy Allan Braswell, Nannie Mae Bunton and Henry L. Bales. Judge: FRANKS First Paragraph: The Trial Court allowed plaintiff to add seller as party to products liability action more than one year after injury and denied seller summary judgment on defense of the statute of limitations. We affirm. http://www.tba.org/tba_files/TCA/braswellb.wpd
FIRST NATIONAL BANK OF CHICAGO, et al. v. CUMBERLAND BEND INVESTORS, L.P., et al. Court:TCA Attorneys: Steven C. Douse, Nashville, Tennessee, for the appellant, The First National Bank of Chicago. Gary S. Rubenstein, Nashville, Tennessee, for the appellees, Cumberland Bend Investors, L.P.; River Investors, Inc.; William Moss Wilson; and Debra C. Stanton. Judge: KOCH First Paragraph: This appeal involves a dispute between a buyer and a seller of commercial property in Nashville over the buyer's obligation to indemnify the seller for legal expenses incurred in a successful defense of a suit for commissions filed by the former manager of the property. The seller filed suit in the Chancery Court for Davidson County seeking to recover its legal expenses from the buyer under the theories of indemnification and contribution. The trial court granted the buyer's motion for summary judgment and dismissed the complaint because the seller failed to prove that it had an express or implied right to indemnification and because, as a matter of law, contribution was inappropriate under the circumstances. We concur and, therefore, affirm the trial court's dismissal of the complaint. http://www.tba.org/tba_files/TCA/firstnationalchicago.wpd
THE ESTATE OF ALLINE ELIZABETH GLASGOW, CLARENCE E. BIGGS, et al. v. VIRGIL S. WHITTUM, et al. Court:TCA Attorneys: James Robin McKinney, Jr., Nashville, Tennessee, for the appellant, Virgil S. Whittum. Paul T. Housch, Nashville, Tennessee, for the appellees, Clarence E. Biggs, Raymond Glasgow, Jr., R.B. Biggs, Richard Biggs, and William Ray Biggs. Judge: CAIN First Paragraph: Proponents appeal judgment of the trial court on a jury verdict against the Will on a finding of undue influence by the proponents upon the testatrix. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/glasgowae.wpd
JOHN JAY HOOKER v. DON SUNDQUIST, et al. Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, Michael E. Moore Solicitor General, and Janet M. Kleinfelter, Senior Counsel, for the Appellants, Governor Don Sundquist, Paul Summers, Lt. Governor John Wilder and Jimmy Naifeh. John Jay Hooker, Pro se. Judge: FRAMER First Paragraph: This case involves an appeal from an order denying a motion for Rule 11 sanctions. We reverse and remand. http://www.tba.org/tba_files/TCA/hookerjj.wpd
KANTA KEITH, et al. v. GENE ERVIN HOWERTON, et al. Court:TCA Attorneys: Donald K. Vowell and Elizabeth K. Johnson, Knoxville, Tennessee, for the appellants, Kanta Keith and Walter Jackson. Craig L. Garrett, Maryville, Tennessee, for the appellees, Gene Ervin Howerton and Easy Money, Inc. Judge: SUSANO First Paragraph: This case is on appeal for the second time. In the first appeal, we held that the defendants violated the Tennessee Consumer Protection Act ("the Act") in certain pawn transactions with the plaintiffs. We remanded the case to the trial court for a determination of whether the plaintiffs were entitled to treble damages and attorney's fees under the Act. Following a bench trial on these issues, the court below determined that the plaintiffs were not entitled to treble damages, but that they were entitled to a slight augmentation of their compensatory awards. In addition, the trial court awarded attorney's fees and costs, in amounts which are substantially less than those claimed by counsel. The plaintiffs appeal, arguing that the trial court erred in refusing to award treble damages and in its award of fees and costs. By way of a separate issue, the defendants argue that the trial court erred in granting a declaratory judgment to the plaintiff, Kanta Keith ("Mr. Keith"), following the death of his wife, the plaintiff, Darlene Keith ("Mrs. Keith"). We affirm in part, vacate in part and remand. http://www.tba.org/tba_files/TCA/keithk.wpd
DAVID RALPH LILES, et al. v. REBECCA SUE MITCHELL, et al. Court:TCA Attorneys: Anthony E. Hagan, Lebanon, Tennessee, for the appellant, Mark Steven Blair. Susan M. Merry, Lebanon, Tennessee, for the appellees, David Ralph Liles and Barbara Ann Liles. Judge: CAIN First Paragraph: Mark Steven Blair appeals the action of the trial judge in granting custody of his minor child, born out of wedlock, to the maternal grandparents. Finding that a substantial risk of harm might occur to the minor child if custody was placed with Mr. Blair and that the biological mother of the child was incarcerated, the trial court vested custody of the child in the maternal grandparents with substantial visitation rights given to Mr. Blair, the biological father. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/lilesdr.wpd
JOSEPH MCCULLOUGH, et ux. v. JOHNSON CITY EMERGENCY PHYSICIANS, P.C., et al. Court:TCA Attorneys: David C. Lee, J.D. Lee, Knoxville, Tennessee, for the Appellants, Joseph McCullough, et. ux. Jimmie C. Miller, Nancy C. Eastridge, Kingsport, Tennessee, for the Appellees, Johnson City Emergency Physicians, P.C. and Linda Monteith, M.D. Jeffrey M. Ward, Greeneville, Tennessee, for the Appellee, Cardiology Consultants of Johnson City, P.C. Charles T. Herndon, IV, Johnson City, Tennessee, for the Appellees, Brett Wyche, M.D. and Wyche and Wyche, M.D., P.C. Judge: SWINEY First Paragraph: Joseph McCullough ("Mr. McCullough") suffered an acute anterior myocardial infarction on September 1, 1997. He was treated in the hospital by Albert R. Blacky, M.D. ("Dr. Blacky") of Cardiology Consultants of Johnson City, P.C. ("Cardiology Consultants") and placed on anticoagulation therapy. Later the same month, Mr. McCullough was treated by Linda Monteith, M.D. ("Dr. Monteith") of Johnson City Emergency Physicians, P.C. ("Johnson City Emergency Physicians") and Brett Wyche, M.D. ("Dr. Wyche") of Wyche and Wyche, M.D., P.C. ("Wyche & Wyche"), for various complaints. Around September 27, 1997, Mr. McCullough suffered a massive cerebellar hemorrhage resulting in permanent impairment. Mr. McCullough and his wife ("Plaintiffs" or "Appellants") sued Johnson City Medical Center Hospital, Inc. ("the Hospital"); Dr. Monteith; Johnson City Emergency Physicians; Dr. Wyche; and Wyche & Wyche. Plaintiffs later filed a second amended complaint adding Cardiology Consultants and Kmart Corporation ("Kmart") as defendants. The various defendants answered the second amended complaint alleging comparative fault against Cardiology Consultants. Cardiology Consultants and Kmart were granted summary judgment. Several days into trial, Plaintiffs moved for leave to file a third amended complaint re-adding Cardiology Consultants as a defendant relying on Tenn. Code Ann. S 20-1-119. The Trial Court denied this motion as well as Plaintiffs' motion for a mistrial. The jury rendered a defense verdict. Plaintiffs appeal. We affirm. http://www.tba.org/tba_files/TCA/mcculloughj.wpd

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