Opinion Flash

March 11, 2003
Volume 9 — Number 043

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
05 New Opinion(s) from the Tennessee Court of Appeals
02 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


RUDY OCHOA v. PETERBILT MOTOR COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

Terry L. Hill and Stacey Billingsley Cason, Nashville, Tennessee, for
the appellant, Peterbilt Motors Company

William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, for
the appellee, Rudy Ochoa, Jr.

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 questions the trial court's findings as to
compensability and extent of vocational disability.  As discussed
below, the panel has concluded the evidence fails to preponderate
against the findings of the trial court.

http://www.tba.org/tba_files/TSC_WCP/ochoarudy.wpd
								
BOBBY WILLIAM SMITH v. FINDLAY INDUSTRIES, et al. Court:TSC - Workers Comp Panel Attorneys: Barry H. Medley and Frank D. Farrar, McMinnville, Tennessee, for the appellant, Bobby William Smith Patrick A. Ruth, Nashville, Tennessee, for the appellee, Findlay Industries/Gardner Division 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 employee insists the trial court erred in denying his motion for post-judgment interest. As discussed below, the panel has concluded the judgment denying interest should be reversed and the cause remanded for an award of interest from the date of entry of the original judgment. http://www.tba.org/tba_files/TSC_WCP/smithbobbyw.wpd
HOOVER, INC. v. METROPOLITAN BOARD OF ZONING APPEALS OF METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, et al. Court:TCA Attorneys: Thomas V. White and George A Dean, Nashville, Tennessee, for the appellant, Hoover, Inc. J. Brooks Fox, John L. Kennedy, Kelli Haas, Nashville, Tennessee, for the appellee, Metropolitan Board of Zoning Appeals of Metropolitan Government of Nashville and Davidson County. James R. Tomkins, Nashville, Tennessee, for the appellees, Edward Knight, Beverly Knight, James Phillip Carter, Maridee Carter, Marie Carter, William Carter, Mary Jane Carter, and Stop the Quarry. Shayna R. Abrams, Franklin, Tennessee, for the appellee, Williamson County, Tennessee. Roger A. Horner, Brentwood, Tennessee, for the appellee, City of Brentwood. Herbert R. Rich, Nashville, Tennessee, for the appellee, Paul Johnson. Judge: LILLARD First Paragraph: This is the fourth appeal from a zoning board's denial of a conditional use permit. In April 1992, the petitioner stone processing company filed an application with the respondent zoning board for a conditional use permit to operate a rock quarry. After years of litigation, the board issued findings of fact and denied the petitioner's application. The application was denied in part because the reclamation plan in the petitioner's proposal used water as fill material, contrary to the specification in the applicable ordinance that solids be used as fill material. The petitioner filed a petition for a writ of certiorari, arguing that the board's decision was arbitrary and capricious because reclamation plans using water as fill material had been approved in the past. The trial court denied the writ and upheld the board's decision. The stone processing company appealed. We affirm, finding that the board's decision was not arbitrary or capricious, and that material evidence supported the board's decision. http://www.tba.org/tba_files/TCA/hooverinc.wpd
J.W., a minor, by next friend his mother, JEANA WATTS, and JEANA WATTS, Individually v. MAURY COUNTY, TENNESSEE Court:TCA Attorneys: H. Tom Kittrell, Jr. and T.J. Cross-Jones, Nashville, Tennessee, for appellants, J.W., a minor, by next friend his mother, Jeana Watts, and Jeana Watts, individually. H. Rowan Leathers III, Nashville, Tennessee, for appellee, Maury County, Tennessee Judge: LILLARD First Paragraph: This is a Tennessee Governmental Tort Liability Act case. The defendant county employed a school resource officer at a county school. A fourteen-year-old student at the school attempted suicide while at home. The mother of the student asked the officer to counsel the son. In the course of doing so, the officer invited the student to spend the night at the officer's home. While the student was at the officer's home, the officer gave him alcohol and sexually assaulted him. The mother filed suit against the county on behalf of her son and herself, alleging that the county was liable under the Tennessee Governmental Tort Liability Act for negligently hiring, disciplining, and training the officer, and that the county was liable for the officer's intentional torts under T.C.A. S 8-8-302. The trial court granted the county's motion for summary judgment. On the appeal, the plaintiffs assert that the officer, when he sexually assaulted the student, was acting "in the scope of his employment" under the TGTLA, and that he was acting "by virtue of or under color of [his] office" under T.C.A. S 8-8-302. We affirm in part and reverse in part, finding that the officer was not acting "in the scope of his employment," but that a genuine issue of material fact exists as to whether the officer was acting "by virtue of or under color of [his] office." http://www.tba.org/tba_files/TCA/jw.wpd
MILL CREEK ASSOCIATES, INC. v. THE JACKSON FOUNDATION, INC. Court:TCA Attorneys: Stephen C. Knight, Nashville, Tennessee, for the appellant, Mill Creek Associates, Inc. Henry F. Todd, Jr., Dickson, Tennessee, for the appellee, The Jackson Foundation, Inc. Judge: LILLARD First Paragraph: This is an unjust enrichment case. The plaintiff design firm was contacted by the defendant foundation to develop designs and a budget for the construction of a science theater. The chief designer of the firm worked on the project and presented a proposal to the foundation. The foundation neither accepted nor rejected the design firm's proposal. Instead, the foundation hired the design firm's chief designer. Part of the designer's duties with the foundation was to work on the science theater project "in house." The foundation refused to pay the design firm a fee for its work on the project. The design firm then sued the foundation on a theory of unjust enrichment for the work performed on the project while the chief designer was still at the firm. The trial court found that since the project was never completed, the preliminary designs did not confer a value on the foundation and, consequently, the foundation had not been unjustly enriched. The design firm now appeals. We reverse, finding that the work performed by the design firm constituted a benefit to the foundation, and that it would be unjust for the foundation to retain that benefit without paying the design firm for the value of the benefit. http://www.tba.org/tba_files/TCA/millcreeka.wpd
DAVID ANTHONY NORMAN v. MELISSA DAWN NORMAN Court:TCA Attorneys: Rose Palermo, Nashville, TN, for Appellant Maclin P. Davis, Jr., Rachelle Laisnez, Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This extraordinary appeal arises from the trial court's denial of Husband's petition to reduce child support and alimony. The trial court found there was no significant variance of fifteen percent (15%) to modify child support. The trial court also determined that there was no justification for a decrease in alimony payments. The trial court reserved the issues relating to unclean hands and attorney fees. The parties raise multiple issues on appeal. For the following reasons, we vacate in part, reverse in part and remand. http://www.tba.org/tba_files/TCA/normanda.wpd
R. JACKSON ROSE v. RICK WELCH Court:TCA Attorneys: Johnny V. Dunaway, LaFollette, Tennessee, for the Appellant Rick Welch. Mark D. Edmonds, Johnson City, Tennessee, for the Appellee R. Jackson Rose. Judge: SWINEY First Paragraph: Attorney R. Jackson Rose ("Plaintiff") was hired by Rick Welch ("Defendant') to defend him on drug related criminal charges. The parties agreed to a flat fee of $25,000 for this legal representation. A retainer of $5,000 was paid up-front. Defendant signed a promissory note for the remaining $20,000. Defendant claims he lost confidence in Plaintiff's ability to adequately represent him after Defendant paid a total of $6,850 in attorney fees. Defendant discharged Plaintiff and obtained new counsel. Plaintiff sued for breach of contract. Defendant filed a counterclaim for legal malpractice and also claimed as a defense, inter alia, that Plaintiff's representation fell below the professional standard of care. The case was tried to a jury. After all of the proof was presented, the Trial Court directed a verdict for Plaintiff because Defendant had offered no expert proof to support his counterclaim or his defense to the breach of contract claim. We hold expert proof was not necessary in order for Defendant to prove he lost confidence in Plaintiff and discharged him with cause for that reason. We, therefore, reverse the entry of the directed verdict as to that issue only and remand the case for trial on the sole issue of termination for cause because of Defendant's "loss of confidence." We affirm all other aspects of the Trial Court's judgment. http://www.tba.org/tba_files/TCA/roser.wpd
STATE OF TENNESSEE v. SHANI CARR Court:TCCA Attorneys: Eric J. Burch, Manchester, Tennessee, for the appellant, Shani Carr. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Charles Michael Layne, District Attorney General; and Kenneth J. Shelton, Jr., Deputy District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Shani Carr, appeals as of right from her three-year jail sentence imposed by the Coffee County Circuit Court following her guilty plea to manufacturing methamphetamine, a Class C felony. She contends that the trial court should not have sentenced her to incarceration based upon the need for deterrence because the record is devoid of proof for such need. We agree, reverse the trial court's sentence of incarceration, and sentence the defendant to split confinement. http://www.tba.org/tba_files/TCCA/carrshani.wpd
STATE OF TENNESSEE v. JAMEY LUTHER CHEEK Court:TCCA Attorneys: R. Scott Carpenter, Assistant Public Defender, Knoxville, Tennessee, for the appellant, Jamey Luther Cheek. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Patricia Cristil, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled guilty to aggravated assault, leaving the manner of service of his sentence to the discretion of the trial court. Following a sentencing hearing, the trial court denied alternative sentencing. The Defendant now appeals the trial court's decision, arguing (1) that the trial court erred by excluding two documents as exhibits at the sentencing hearing, or, in the alternative, that he should have been granted a continuance on the day of the hearing; and (2) that the trial court erred by denying his application for probation. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/cheekjl.wpd

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