Opinion Flash

May 22, 2003
Volume 9 — Number 093

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
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 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


Court:TSC - Workers Comp Panel


Richard W. Mattson, Nashville, Tennessee, for appellants, Morrow
Trucking, Inc. and Logistics Personnel Corporation.

Ricky L. Boren, Jackson, Tennessee, for appellee, Robert Foster.

Paul G. Summers, Attorney General and Reporter; E. Blaine Sprouse,
Assistant Attorney General, for appellee, Second Injury Fund, State of

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 trial
judge found the plaintiff sustained a compensable injury to his back
as a result of a fall.  Further, the trial judge found the plaintiff
had sustained a previous disabling condition by reason of diabetes and
spondylolisthesis, which were non-work related conditions, and found
that the current disability coupled with the pre-existing disabilities
rendered the plaintiff totally and permanently disabled.  The trial
judge applied Tenn. Code Ann. S 50-6-208(a) and ordered the award to
be compensation for a period of 842 weeks and 8 days.  The defendant
was ordered to pay 421 weeks and 4 days of the award and the Second
Injury Fund was ordered to pay 421 weeks and 4 days of the award
thereafter.  The trial judge, however, failed to make specific
findings of fact regarding the extent of disability the employee would
have experienced without any preexisting disabilities.  We therefore
remand the case so that such a determination can be made.

WAYNE BAILIFF, et al. v. STATE OF TENNESSEE, et al. CORRECTED OPINION: Adds William B. Hawkins III as an attorney for appellants, Wayne and Edna Bailiff Court:TCA Attorneys: Russell Willis and William B. Hawkins, III, Nashville, Tennessee, for the appellants, Wayne and Edna Bailiff. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mary M. Bers, Senior Counsel, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: In these consolidated appeals a wife appeals the order of the Tennessee Claims Commission dismissing her claim for loss of consortium because it was not brought as a part of her husband's claim, and the husband and wife appeal the Davidson County Circuit Court's denial of their motion to amend to add the wife's claim to the husband's action against the State of Tennessee and other defendants. We reverse the action of the Claims Commission and remand the wife's claim to the Circuit Court for trial. http://www.tba.org/tba_files/TCA/bailiffw.wpd
CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY d/b/a ERLANGER MEDICAL CENTER v. ADE ONI, M.D. Court:TCA Attorneys: Jeffrey D. Boehm, Chattanooga, Tennessee, for Appellant. Robert G. Norred, Jr., Chattanooga, Tennessee, for Appellee. Judge: FRANKS First Paragraph: Action on lease and Trial Court awarded Judgment for rent and expenses. On appeal, we affirm as modified. http://www.tba.org/tba_files/TCA/erlanger.wpd
BOB KIELBASA, et al. v. B & H RENTALS, LLC, et al. Court:TCA Attorneys: Jerry Gonzalez, Nashville, Tennessee, for the appellants, Bob Kielbasa and Veeda Kielbasa. Gregory S. Gill and Jere N. McCulloch, Lebanon, Tennessee, for the appellees, B & H Rental, LLC and Horizon Concrete, Inc. Michael R. Jennings, Lebanon, Tennessee, for the appellee, Wilson County. Judge: CAIN First Paragraph: Plaintiffs appeal from the action of the trial court dismissing their Complaint for Declaratory Judgment on the basis that it is barred by the statute of limitations. A previous Petition for Writ of Certiorari under Tennessee Code Annotated section 27-9-101 had been dismissed by the Chancery Court of Wilson County because it was filed after the limitation period provided by Tennessee Code Annotated section 27-9-102 had expired. That dismissal was upheld on appeal and this suit for declaratory judgment followed. The trial court correctly dismissed the complaint because of the expiration of the statute of limitations. http://www.tba.org/tba_files/TCA/kielbasabob.wpd
METHODIST HEALTHCARE-JACKSON HOSPITAL v. JACKSON- MADISON COUNTY GENERAL HOSPITAL DISTRICT, et al. Court:TCA Attorneys: Dan H. Elrod, G. Brian Jackson, David L. Johnson, Nashville, For Appellant, Jackson-Madison County General Hospital District J. Richard Lodge, Jr., Robert E. Cooper, Jr., W. Brantley Phillips, Jr., Nashville, For Appellee, Methodist Healthcare-Jackson Hospital Judge: CRAWFORD First Paragraph: Respondent hospital filed petition for writ of certiorari and writ of supersedeas in trial court and also filed a request for contested case proceeding before administrative law judge, challenging administrative agency's issuance of certificate of need to petitioner hospital. Respondent challenged validity of certificate of need, citing the following procedural errors: (1) T.C.A. S 68-11-108(e) did not prohibit agency from reconsidering its initial vote in favor of certificate of need application, and that decision to ultimately issue certificate was arbitrary, capricious, and unlawful; and (2) participating agency member had a disqualifying conflict of interest that required member to recuse himself prior to vote on petitioner's certificate of need application. Trial court dismissed respondent's petition on grounds that respondent failed to exhaust available administrative remedies. Respondent appealed. While appeal was pending, administrative law judge, in the contested case hearing, granted summary judgment in favor of respondent, finding that T.C.A. S 68-11-108(e) prohibits reconsideration of an agency's decision, but not a vote, and also because a member had disqualifying conflict of interest that required him to recuse himself from the vote and proceedings in accordance with agency's guidelines. Respondent voluntarily dismissed appeal of trial court's denial of certiorari petition, and court of appeals upheld dismissal. Petitioner appealed administrative law judge's Order. Trial court reversed, finding that the administrative law judge was without jurisdiction to consider the same issues pending on appeal before the appellate court, and that a genuine issue of fact existed as to whether the respondent waived its right to object to the member's conflict of interest. Respondent appeals. We vacate the order of the trial court and remand. http://www.tba.org/tba_files/TCA/methodisthealthcare.wpd
STEVE KYGER v. STATE OF TENNESSEE Court:TCCA Attorneys: Darrell L. Scarlett, Murfreesboro, Tennessee, for the Appellant, Steve Kyger. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H. Findley, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Steve Kyger, appeals the dismissal of his petition for post-conviction relief by the Rutherford County Circuit Court. On December 21, 1987, Kyger was convicted of first degree murder, armed robbery, and joyriding, and received a sentence of life imprisonment plus thirty-five years in the Department of Correction. On appeal, Kyger challenges these convictions raising the single issue of ineffective assistance of counsel. Finding no error, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/kygersteve.wpd
STATE OF TENNESSEE v. THURMAN G. LEDFORD Court:TCCA Attorneys: Paul G. Whetstone, Mosheim, Tennessee, for the Appellant, Thurman G. Ledford. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Jonathan Holcomb, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Thurman G. Ledford appeals a certified question of law whether the strong odor of ammonia emanating from his residence supported probable cause for the issuance of a search warrant, which resulted in his arrest for drug-related activities. Because we conclude that the issue is not dispositive of the defendant's case, we dismiss his appeal. http://www.tba.org/tba_files/TCCA/ledfordthurmang.wpd

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