Opinion Flash

May 6, 2003
Volume 9 — Number 082

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):
02 New Opinion(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 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


RUTHERFORD COUNTY v. MARTHA JORDAN WILSON, et al.

Court:TSC

Attorneys:

Andree Sophia Blumstein and William L. Harbison, Nashville, Tennessee,
for the defendant- appellant, Cathey Baskin.

Larry K. Tolbert and Aaron S. Guin, Murfreesboro, Tennessee, for the
defendants-appellees, Diane Wilson McCord, Jane Maurice Wilson, and
Martha Jordan Wilson.                         

Judge: HOLDER

First Paragraph:

This appeal arises out of a condemnation proceeding brought by
Rutherford County against the appellees.  The appellant, claiming an
interest through her deceased husband in the property to be condemned,
filed a motion to intervene in the proceeding.  The trial court denied
the appellant's motion to intervene and dismissed her cross-claim for
declaratory judgment, finding that she held no interest in the
property under the provisions of the granting instrument.  The Court
of Appeals affirmed the judgment of the trial court, holding that the
granting instrument conveyed a contingent remainder to each member of
the class.  As such, the conveyance to the appellant's husband lapsed
when he predeceased the life tenant, leaving appellant without an
interest in the property.  We granted review, and we now hold that
each class member held a vested, transmissible interest in the
property prior to the death of the life tenant and that the appellant
holds no interest in the property.  We remand this cause to the trial
court for proceedings consistent with this opinion.

http://www.tba.org/tba_files/TSC/ruthercnty.wpd
								
SHIRLEY A. SHELBURNE, et al. v. FRONTIER HEALTH, et al. Court:TSC Attorneys: Robert Lewis King, Johnson City, Tennessee, for the Plaintiff-Appellant, Shirley A. Shelburne, Individually and as Next Friend of Travis Lee Shelburne. Thomas C. McKee, Johnson City, Tennessee, for the Defendants-Appellees, Frontier Health and Woodridge Hospital. Judge: HOLDER First Paragraph: Plaintiff, both individually and as next friend of her minor son, brought suit against Carter County, Frontier Health, and Woodridge Hospital for the wrongful death of her husband. The trial court granted summary judgment to Frontier and Woodridge. The Court of Appeals affirmed, holding that Frontier and Woodridge could not be held vicariously liable for the acts or omissions of their employee because he was entitled to immunity as a state employee. We granted review to determine whether summary judgment was properly granted in light of our decision in Johnson v. LeBonheur Children's Medical Center, 74 S.W.3d 338 (Tenn. 2002). We hold that Johnson governs the present case and that Frontier and Woodridge are not immune from liability for the acts or omissions of their immune employee. Accordingly, summary judgment was not appropriate. http://www.tba.org/tba_files/TSC/shelburnes.wpd
CLOIS JUNIOR CLARK v. PETERBILT MOTOR COMPANY Amended Opinion Court:TSC - Workers Comp Panel Attorneys: Terry L. Hill and Stacey Billingsley Cason, Nashville, Tennessee, for the appellant, Peterbilt Motor Company. William Joseph Butler, Lafayette, Tennessee, for the appellee, Cloise Junior Clark. Judge: BYERS First Paragraph: The plaintiff filed this compensation complaint in which he alleged he sustained injury to both arms as a result of continuing repetitive use thereof while working as a welder for the plaintiff. The trial judge found in favor of the plaintiff and awarded him temporary total disability benefits and found he had sustained a 30 percent permanent partial impairment to both arms. The defendant contends the trial judge erred in finding the plaintiff's medical problems arose out of and in the course of his employment and that the award of 30 percent impairment to each arm was excessive. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/clarkcloisamend.wpd
WALTER H. DENTON v. LIBERTY MUTUAL INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: Ewing Strang, Chattanooga, Tennessee, for the appellant, Liberty Mutual Insurance Company. J. Taylor Walker, Chattanooga, Tennessee, for the appellee, Walter H. Denton. Judge: BYERS 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. The defendant appeals from a judgment in favor of the plaintiff which found the plaintiff's present medical condition and injury to his foot and ankle was a continuation of his original injury which occurred while working for Liberty Mutual's insured, McKeehan Chair Company, and not a new injury within the meaning of the workers' compensation laws of the State of Tennessee. The defendant contends the injury in this case was a new injury or the aggravation of an old injury which occurred as a result of an on the job accident the plaintiff suffered in 1999 while working for Bishop Baking Company, the plaintiff's present employer. The trial judge found the plaintiff's problem was a continuation of the injury received while working for the defendant and ordered the defendant to pay for treatment of the plaintiff's foot. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/dentonw.wpd
LA-Z-BOY, INC., v. PATRICIA VAN WINKLE Court:TSC - Workers Comp Panel Attorneys: David C. Nagle, Chattanooga, Tennessee, for the appellant, La-Z-Boy, Inc. Michael A. Wagner, Chattanooga, Tennessee, for the appellee, Patricia Van Winkle. Judge: BYERS 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 case, the employer, La-Z-Boy, Inc., filed suit to resolve a workers' compensation dispute between La-Z- Boy, Inc., and Patricia Van Winkle, its employee. The trial court found the defendant sustained a one percent medical impairment to her left arm as a result of carpal tunnel syndrome and awarded her fifty percent disability to her left arm. The court found the defendant suffered no disability to the right arm as a result of carpal tunnel syndrome. The employer appealed the judgment and avers the trial court award is excessive based upon the medical evidence in this case. The employee asserts the trial court should have found her to be one hundred percent disabled based upon the evidence in the case. Further, the employee argues that the trial judge erroneously allowed an occupational therapist to give opinions on medical matters which were beyond his field of expertise. We reverse the judgment in this case and remand the case to the trial court for further proceedings. http://www.tba.org/tba_files/TSC_WCP/lazboy.wpd
CITY OF RED BANK, TENNESSEE, et al. v. KIMILLA R. COFER Court:TSC - Workers Comp Panel Attorneys: W. Gerald Tidwell, Jr., Chattanooga, Tennessee, for the appellant Kimilla R. Cofer. David R. Hensley, Chattanooga, Tennessee, for the appellees, City of Red Bank, Tennessee and Tennessee Municipal League Risk Management Pool. Judge: BYERS 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. The City of Red Bank brought this suit against Kimilla Cofer, a police officer, to determine if it was liable under the provisions of the Workers' Compensation Act for injuries sustained by her in an automobile accident. The trial court found the injuries suffered by Cofer did not arise out of or in the course of her employment with the City. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/redbankc.wpd
CYNTHIA ELLEN WALKER V. ADVANCE TRANSFORMER COMPANY, THE TRAVELERS INDEMNITY COMPANY, and SUE ANN HEAD, Administrator of Workers' Compensation, Department of Labor for the State of Tennessee Court:TSC - Workers Comp Panel Attorneys: Paul G. Summers, E. Blaine Sprouse, Nashville, Tennessee, for the Appellant, The Second Injury Fund. Arthur G. Seymour, Robert L. Kahn, Frantz, McConnell & Seymour, LLP, Knoxville, Tennessee, for the Appellee, Advance Transformer Company and The Travelers Indemnity Company. Judge: PEOPLES First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The Second Injury Fund claims the trial court erred (1) in failing to make specific finding of the extent of the employee's disability attributable to a scheduled member as a percentage of her total disability, and (2) by ordering the Second Injury Fund to pay permanent and total disability benefits to age 65 after the employer paid 60 weeks of benefits for the injury to a scheduled member. We modify in part, reverse in part and remand. http://www.tba.org/tba_files/TSC_WCP/walkerc.wpd
KELLY R. LEOPOLD v. WILLIAM F. LEOPOLD Court:TCA Attorneys: Andrea Huddleston, Lawrenceburg, Tennessee, for the appellant, William F. Leopold. Robert D. Massey, Pulaski, Tennessee, for the appellee, Kelly R. Leopold. Judge: CANTRELL First Paragraph: This appeal involves the dissolution of a four-year marriage. Following a bench trial, the Chancery Court for Giles County granted the wife a divorce and custody of the children. On this appeal, the husband takes issue with the trial court's decision to grant the wife the divorce and custody of the children, as well as the amount of the child support award, the division of the marital property and allocation of debts, and the award for the wife's attorney's fees. The wife also asserts that the husband's appeal is frivolous. We have determined that the parties should be declared divorced in accordance with Tenn. Code Ann. S 36-4-129(b) (2001) and that the remainder of the judgment should be affirmed. We have also determined that this appeal is not frivolous. http://www.tba.org/tba_files/TCA/leopoldkr.wpd
MICHAEL S. SANDERS v. DIANE H. SANDERS Court:TCA Attorneys: Vicky V. Klein, Madison, Tennessee, for the appellant, Diane H. Sanders. Larry Hayes, Jr., Nashville, Tennessee, for the appellee, Michael S. Sanders. Judge: CANTRELL First Paragraph: The Chancery Court of Sumner County declared the parties divorced, divided the marital property, and awarded the wife rehabilitative alimony. On appeal the wife argues that since her conservator executed her counterclaim for divorce, the court had no jurisdiction to award her a divorce. She also contests the amount and duration of the alimony awarded to her. We affirm the divorce, but we reverse the award for rehabilitative alimony and modify the award to alimony in futuro. We remand for a hearing as to the amount. http://www.tba.org/tba_files/TCA/sandersms.wpd
KAY BAKER WRIGHT, et al. v. 304 BROADWAY, L.L.C. Court:TCA Attorneys: Darrell G. Townsend and Neil M. McIntire, Nashville, Tennessee, for the appellants, Kay Baker Wright and Robert Charles Wright. Philip M. Kirkpatrick and Mary B. Langford, Nashville, Tennessee, for the appellee, 304 Broadway, L.L.C. Judge: CANTRELL First Paragraph: The Circuit Court of Davidson County granted summary judgment to the owner of a building in a slip and fall case. We concur with the trial court in its conclusion that the defendant did not owe the plaintiff a duty to make its premises safer and that the plaintiff's own negligence was more than 50 percent of the cause of the accident. We affirm. http://www.tba.org/tba_files/TCA/wrightkb.wpd
STATE OF TENNESSEE v. PAUL BILES Court:TCCA Attorneys: L. Scott Grissom, Assistant District Public Defender, for the appellant, Paul Biles. Paul G. Summers, Attorney General & Reporter; Christine M. Lapps, Assistant Attorney General; and Dale Potter, District Attorney General, for the appellee, the State of Tennessee. Judge: WADE First Paragraph: The defendant, Paul Biles, was convicted of aggravated robbery, see Tenn. Code Ann. S 39-13- 402(a)(1), and unlawful carrying of a weapon, see Tenn. Code Ann. S 39-17-1307(a)(1). The trial court imposed concurrent sentences of eleven years and thirty days, respectively. In this appeal of right, the defendant asserts (1) that the trial court erred by admitting certain evidence and (2) that the sentence for aggravated robbery is excessive. The judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/bilesp.wpd
STATE OF TENNESSEE v. PHILLIP HOWARD WHITE, JR. Court:TCCA Attorneys: Thomas T. Overton, Nashville, Tennessee, for the appellant, Phillip Howard White, Jr. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Jim Todd, Assistant District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Phillip Howard White, Jr., was indicted on one count of felony murder and one count of attempted especially aggravated robbery. Following a jury trial, Defendant was found guilty of second degree murder and not guilty of attempted especially aggravated robbery. After a sentencing hearing, the trial court sentenced Defendant to serve twenty-five years. In his appeal, Defendant alleges that (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred in not instructing the jury to refrain from sleeping; (3) the trial court erred in not granting Defendant's request for a continuance because of Defendant's physical appearance at trial; and (4) the trial court erred in sentencing Defendant to twenty-five years. After a careful review of the record in this matter, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/whitep.wpd

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