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):
||New Opinion(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
||New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
||New Opinion(s) from the Tennessee Court of Appeals
||New Opinion(s) from the Tennessee Court of Criminal Appeals
||New Opinion(s) from the Tennessee Attorney General (PDF format)
||New Judicial Ethics Opinion(s)
||New Formal Ethics Opinion(s) from the Board of Professional Responsibility
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Howard H. Vogel
ROBERT FOSTER v. MORROW TRUCKING, INC., et al.
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
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
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.
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.
CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY d/b/a ERLANGER MEDICAL
CENTER v. ADE ONI, M.D.
Jeffrey D. Boehm, Chattanooga, Tennessee, for Appellant.
Robert G. Norred, Jr., Chattanooga, Tennessee, for Appellee.
Action on lease and Trial Court awarded Judgment for rent and
expenses. On appeal, we affirm as modified.
BOB KIELBASA, et al. v. B & H RENTALS, LLC, et al.
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
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.
METHODIST HEALTHCARE-JACKSON HOSPITAL v. JACKSON- MADISON COUNTY
GENERAL HOSPITAL DISTRICT, et al.
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
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.
STEVE KYGER v. STATE OF TENNESSEE
Darrell L. Scarlett, Murfreesboro, Tennessee, for the Appellant, Steve
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.
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.
STATE OF TENNESSEE v. THURMAN G. LEDFORD
Paul G. Whetstone, Mosheim, Tennessee, for the Appellant, Thurman G.
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.
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
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