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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