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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