Opinion Flash

March 3, 2003
Volume 9 — Number 037

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):
04 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 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


CONNER BROS. EXCAVATING CO., INC. v. LONG 

Court:TSC

Attorneys:  

J. Robert Stacy, Knoxville, Tennessee, for the appellant, Clyde L.
Long.

Debra L. Fulton and Beverly Dean Nelms, Knoxville, Tennessee, for the
appellee, Conner Bros. Excavating Co., Inc.             

Judge: BARKER

First Paragraph:

We granted this motion for a full court review of the Special Workers'
Compensation Panel decision to determine whether the appellant, Clyde
L. Long, proved by a preponderance of the evidence that his injury
occurred as a result of a work-related incident as required in
Tennessee Code Annotated section 50-6-103(a).  After a careful review
of the record, we hold that the evidence preponderates against the
holding of the trial court and Special Workers' Compensation Panel,
and that the appellant's injury did arise out of and within the scope
of his employment.  The judgment of the trial court and the Special
Workers' Compensation Panel is reversed.  Because the trial court made
no other factual findings, the case is remanded to the trial court
with instructions to make factual findings regarding: (1) the
compensable medical benefits due to the appellant; (2) the temporary
disability benefits to which Mr. Long is entitled, and; (3) the proper
permanent disability award to which Mr. Long is entitled. 
Additionally, in the interest of expediting the payment of Mr. Long's
medical expenses and the receipt of disability benefits, we direct the
trial court to hold such hearing within sixty days of the date of this
Court's order.

http://www.tba.org/tba_files/TSC/connerbros.wpd
								
RICK KYLE v. EARL WILLIAMS and MICHELLE WILLIAMS Court:TSC Attorneys: Van R. Michael, Sweetwater, Tennessee, for the appellant, Rick Kyle. H. Chris Trew, Athens, Tennessee, for the appellees, Earl Williams and Michelle Williams. Judge: DROWOTA First Paragraph: We granted the plaintiff's application for permission to appeal to determine whether the Chancellor erred in holding that a contractor is unlicensed for purposes of Tennessee Code Annotated section 62-6-103(b), and therefore is limited to a recovery of documented expenses proven by clear and convincing evidence, where the contractor possessed a valid contractor's license when the contract was formed but did not maintain a valid license throughout the entire time contracting services were performed under the contract. After carefully considering the relevant statutes, we conclude that the Chancellor properly held that a contractor who does not maintain a valid license throughout the entire contract period is unlicensed for purposes of Tennessee Code Annotated section 62-6-103(b) and limited to a recovery of documented expenses proven by clear and convincing evidence. http://www.tba.org/tba_files/TSC/kyle.wpd
ANTHONY McNABB, et al. v. HIGHWAYS, INC., et al. Court:TSC Attorneys: Donald W. Strickland, Chattanooga, Tennessee, for the appellant, Highways, Inc. Andrew R. Tillman, Knoxville, Tennessee, and Roger E. Jenne, Cleveland, Tennessee, for the appellees, Anthony McNabb and wife, Sherry McNabb, and Paul Harrison. Judge: ANDERSON First Paragraph: We granted this appeal to determine whether the trial court erred in granting summary judgment to the defendant based on the plaintiff's failure to join all of the tortfeasors in a single proceeding under Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn. 1998). The Court of Appeals reversed the trial court's judgment after concluding that the plaintiff's settlement with one tortfeasor did not require dismissal of the plaintiff's complaint against a second tortfeasor. After reviewing the record and the applicable authority, we hold that the trial court erred in granting summary judgment to the defendant based on the plaintiff's failure to join the tortfeasors in a single proceeding and that Samuelson is not applicable to the facts of this case. We therefore affirm the Court of Appeals' judgment and remand to the trial court for further proceedings. http://www.tba.org/tba_files/TSC/mcnabbanthony.wpd
LINDSAY TAYLOR, Et Al. v. AL BEARD, Et Al. Court:TSC Attorneys: Larry E. Parrish, Memphis, Tennessee, for the appellants, Lindsay Taylor, Rachel Taylor, and Bradford Taylor. Tim Wade Hellen, Memphis, Tennessee, for the appellees, Al Beard and Southeastern Motor Freight Company. Judge: ANDERSON First Paragraph: We granted review to determine whether Tennessee should adopt a cause of action allowing a child to recover for loss of parental consortium due to an injury to the child's parent. The trial court dismissed the claims for loss of parental consortium after finding that no such cause of action exists. The Court of Appeals affirmed. We hold that this Court should not adopt a common law cause of action for loss of parental consortium in personal injury cases and that the issue of whether to create such a cause of action is a matter of legislative discretion. We therefore affirm the Court of Appeals' judgment. http://www.tba.org/tba_files/TSC/taylorlindsay.wpd
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0303.wpd
STATE OF TENNESSEE, ex rel. ANNE B. POPE v. UNITED STATES FIRE INSURANCE COMPANY, et al. Court:TCA Attorneys: Thomas L. Wyatt, Chattanooga, Tennessee, for the Appellants/Intervening Petitioners, Carlise Cagle, David Seale, Bradley Hatfield, Doug West, Sr., Richard Cole, James Workman, Silas Passmore, Jim T. Dickson and Eddie Hart, Sr. Paul G. Summers, Attorney General and Reporter, and Sarah Ann Hiestand, Senior Counsel, Finance Division, Office of the Attorney General, for the Appellee State of Tennessee, ex rel. Anne B. Pope, Commissioner of the Tennessee Department of Commerce and Insurance John M. Gillum, Nashville, Tennessee, for the Appellee United States Fidelity and Guaranty Company William E. Godbold, III, Chattanooga, Tennessee, for the Appellee Employers Reinsurance Corporation William L. Norton, III, of Nashville, Tennessee, for the Appellee, United States Fire Insurance Company Judge: GODDARD First Paragraph: This is a suit by the State of Tennessee, ex rel. Anne B. Pope, in her official capacity as Commissioner of the Tennessee Department of Commerce and Insurance, against the following Defendants: United States Fire Insurance Company; United States Fidelity and Guaranty Company; Employers Reinsurance Corporation; Utica Mutual Insurance Company; Insurance Company of North America; and Safeco Insurance Company of America. The suit seeks to require the Defendant Corporations to deposit with a Receiver approved by the Chancery Court the principal amount of the last rider to a bond that they had executed to ensure payment of worker's compensation benefits that might be owed by North American Royalties, Inc., and its subsidiaries, Wheland Holding Company, Inc., Wheland Manufacturing Company, Inc., and Wheland Foundry, LLC. The suit was initiated because North American Realties, Inc., which sought bankruptcy protection, was self-insured pursuant to T.C.A. 50-6-405. A number of employees who contended they were entitled to benefits under the Worker's Compensation Statute intervened, insisting that the Companies which had executed the bonds were liable for the aggregate amount thereof, rather than the amount shown on the last rider issued as to the bonds in question. The Trial Court found in favor of the Insurance Companies. We affirm. http://www.tba.org/tba_files/TCA/popeanne.wpd
SANDRA NEAL SPARKMAN and JOE BEN SPARKMAN v. BLUECROSS BLUESHIELD OF TENNESSEE Court:TCA Attorneys: W. I. Howell Acuff, Cookeville, Tennessee, and John L. Lowery, Nashville, Tennessee, for Appellants. Joe E. Manuel, Chattanooga, Tennessee, for Appellee. Judge: FRANKS First Paragraph: Plaintiffs' action was dismissed by the Trial Court on the grounds plaintiffs failed to exhaust administrative appeals. On appeal, we Vacate and Remand. http://www.tba.org/tba_files/TCA/sparkmans.wpd
STATE OF TENNESSEE v. EARL DRAINE Court:TCCA Attorneys: Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, Earl Draine. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Earl Draine, pled guilty to three counts of sale of cocaine, Class B felonies, and five counts of sale of cocaine, Class C felonies. See Tenn. Code Ann. S 39-17-417. For the Class B felonies, the trial court ordered concurrent sentences of eight years, eight years and nine months, and ten years and six months. As to the Class C felonies, it ordered concurrent sentences of three years and six months, four years, four years and six months, four years and nine months, and five years and six months. The Class C sentences are to be served consecutively to the Class B sentences, an effective sentence of sixteen years. In this appeal of right, the defendant asserts that the trial court erred by denying a community corrections sentence. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/draine.wpd
STATE OF TENNESSEE v. RONALD PAUL Court:TCCA Attorneys: William F. Kroeger, Springfield, Tennessee, for the Appellant, Ronald Paul. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Ronald Paul, appeals the Robertson County Criminal Court's disposition of his petition for post-conviction relief. The petition alleged ineffective assistance of trial and appellate counsel. The lower court ruled that, because appellate counsel's single issue raised on direct appeal was deemed waived by the appellate court, the petitioner would be entitled to a delayed appeal. The court also dismissed without prejudice the remaining allegations of ineffective assistance of counsel, indicating that the petitioner could file a new petition for post-conviction relief after the conclusion of the delayed direct appeal. Because we lack jurisdiction in this appeal, we dismiss the appeal. http://www.tba.org/tba_files/TCCA/paulronald1.wpd
STATE OF TENNESSEE v. JERRY WAYNE POINTER Court:TCCA Attorneys: Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on appeal); and Jonathan F. Wing, Assistant Public Defender (at trial), for the appellant, Jerry Wayne Pointer. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Katrin N. Miller and Bret T. Gunn, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Jerry Wayne Pointer, was convicted of first degree premeditated murder and sentenced as a violent offender to life imprisonment without parole. On appeal, he contends that the trial court erred in denying his motions to suppress evidence seized from his person and his home, in ruling that his prior convictions were admissible for impeachment purposes, in allowing testimony of a prior violent incident between him and the victim, and, additionally, that the evidence at trial was insufficient to support his conviction for first degree premeditated murder. Following our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/pointerjerryw.wpd
STATE OF TENNESSEE v. DONNIE THOMPSON Court:TCCA Attorneys: John S. Colley, III, Columbia, Tennessee, for the appellant, Donnie Thompson. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Mike Bottoms, District Attorney General; and Robert C. Sanders and Lawrence R. Nickell, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Maury County jury convicted the defendant, Donnie Thompson, of voluntary manslaughter and attempted voluntary manslaughter. The trial court sentenced him as a Range I standard offender to the maximum sentences of six years for voluntary manslaughter and four years for attempted voluntary manslaughter, with the sentences to run consecutively. On appeal, the defendant contends his sentences are excessive. We reduce the sentence for voluntary manslaughter to five years, affirm the four-year sentence for attempted voluntary manslaughter, and order the sentences to run concurrently. http://www.tba.org/tba_files/TCCA/thompsondonnie.wpd

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