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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