Opinion Flash

August 29, 2003
Volume 9 — Number 158

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
09 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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


JANICE DARNELL v. ROYAL AND SUNALLIANCE, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Gayden Drew, Drew & Martindale, Jackson, Tennessee, for the appellant,
Janice Darnell

Larry G. Trail and Diana Benson Burns, Murfreesboro, Tennessee, for
the appellees, Royal and SunAlliance and Nissan Motor Manufacturing
Company

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
case of first impression, the employee contends the trial court erred
in setting aside a court approved settlement as being contrary to law
and grounded on mistake of fact.  As discussed below, the panel has
concluded there was no mistake as to an existing fact and that Tenn.
Code Ann. S 50-6-241(a)(2) does not authorize an employer or its
insurer to obtain reconsideration of a lump sum award of permanent
partial disability benefits.

http://www.tba.org/tba_files/TSC_WCP/darnelljanice.wpd

CORA JEAN EARLS v. CALSONIC YOROZU CORPORATION, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

B. Timothy Pirtle, McMinnville, Tennessee, for the appellant, Calsonic
Yorozu Corporation

Barry H. Medley, Farrar, Holliman & Medley, McMinnville, Tennessee,
for the appellee, Cora Jean Earls

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 insists (1) the evidence preponderates against
the trial court's findings as to notice, permanency, causation and
extent of permanency, (2) the trial court erred in the application of
Tenn. Code Ann. SS 50-6-207(3) and 50-6-241; (3) the trial court erred
by delegating its adjudicatory function to the Clerk and Master, and
(4) the trial court erred in assessing discretionary costs against the
defendant.  As discussed below, the panel has concluded the award of
permanent partial disability benefits should be reduced to one based
on two and one-half times the employee's medical impairment rating, or
30 percent to the body as a whole.

http://www.tba.org/tba_files/TSC_WCP/earlscorajean.wpd

JASMINE A. ALI v. ERIC N. FISHER, ET AL.

Court:TCA

Attorneys:                          

Charles T. Herndon, IV, and Bradley E. Griffith, Johnson City,
Tennessee, for the Appellant Thomas Scheve.

Jack M. Vaughn, Kingsport, Tennessee, for the Appellee Jasmine A. Ali.

Judge: SWINEY

First Paragraph:

After an automobile accident in which she suffered serious injuries,
Jasmine A. Ali ("Plaintiff") sued both the driver of the automobile,
Eric N. Fisher ("Fisher"), and the owner of the automobile, Thomas
Scheve ("Scheve").  The claim against Scheve was based on negligent
entrustment.  Prior to trial, Plaintiff and Scheve were in sharp
disagreement as to whether Scheve's alleged negligent entrustment
resulted in Scheve's being vicariously liable for Fisher's conduct, or
whether Scheve's negligence should be apportioned by the jury pursuant
to comparative fault principles.  The Trial Court concluded Scheve's
alleged negligent entrustment should be apportioned by the jury
pursuant to comparative fault principles.  After a trial, the jury
returned a verdict for Plaintiff and apportioned fault, 80% to Fisher
and 20% to Scheve based on his negligent entrustment of the vehicle to
Fisher.  The Trial Court entered a judgment in accordance with the
jury's verdict.  Plaintiff filed a Motion to Alter or Amend Judgment
asking the Trial Court to reverse its earlier pre-trial ruling and
hold Scheve vicariously liable for Fisher's negligence because Scheve
negligently entrusted the vehicle to Fisher.  The Trial Court granted
the motion and amended the judgment which, in effect, held Scheve and
Fisher jointly and severally liable for the entire amount of the
jury's award.  Scheve appeals.  We hold the Trial Court erred when it
amended the original judgment after concluding, post- trial, that
Scheve was vicariously liable for Fisher's conduct.  We vacate the
amended judgment and reinstate the original judgment of the Trial
Court entered in accordance with the jury's verdict apportioning
fault.

http://www.tba.org/tba_files/TCA/alij.wpd

VINCENT D. CARSON (CASON) v. RICHARD M. GILLELAND

Court:TCA

Attorneys:                          

Vincent D. Carson, Clifton, Tennessee, Pro Se.

Gary Vandever, Lebanon, Tennessee, for the appellee, Richard. M.
Gilleland.

Judge: CAIN

First Paragraph:

This personal injury action by an undercover law enforcement officer
resulted in judgment against Appellant and two co-defendants. 
Appellant is an inmate with the Department of Corrections and after
filing a pro se answer to the complaint took no further action in
defense and more than two years after his answer was filed the case
was heard in his absence and resulted in a judgment for $5,000,000.00.
 Plaintiff appeals and we affirm the action of the trial court.

http://www.tba.org/tba_files/TCA/carsonvincent.wpd

DEPARTMENT OF CHILDREN'S SERVICES v. C. L. & M. T.

Court:TCA

Attorneys:                          

J. Stephen Mills, C. Michael Cardwell, Nashville, Tennessee, for the
appellant, M. T.

Bruce Balcom, Nashville, TN, for the appellant, C. L.

Paul G. Summers, Attorney General and Reporter; Elizabeth C. Driver,
Assistant Attorney General, for the appellee, State of Tennessee,
Department of Children's Services, et al.

Judge: COTTRELL

First Paragraph:

At issue in this appeal is the petition filed by the Department of
Children's Services to terminate the parental rights of Mother and
Father to nine of their children.  After a trial, the trial court
granted the petition to terminate the parental rights of Mother and
Father based on abandonment, failure to comply with the Permanency
Plans, and persistence of the conditions which led to the removal. 
Each parent independently appeals the decision of the trial court,
arguing that there was not clear and convincing evidence to support
the trial court's ruling.  Because we find that grounds for
termination were not proved as to either parent, we reverse the
judgment terminating Father's and Mother's parental rights.

http://www.tba.org/tba_files/TCA/clmt.wpd

In Re: LILLIE ODESSIE GREEN, Decedent

Court:TCA

Attorneys:                          

Paul N. Rudolph, Nashville, Tennessee, for the appellants, Troy Green
and Thomas Roy Green

Robert B. Young,  Nashville, Tennessee, for the
appellees/Co-Executors, Harold Calvin Buttrey and Juanita Green

Karl D. Warden, Nashville, Tennessee, for the appellees/Defendants,
Freddie G. Buttrey, Roy K. Green and Joann England

Judge: TAYLOR

First Paragraph:

The court is asked to construe the following language contained in a
form will:
"I give all my estate to my children, if any, who survive me in equal
shares, per stirpes."
The testatrix was survived by four of her five children.  The trial
court held that the two children of the testatrix's child who
predeceased her did not take any of her estate.  We hold likewise.

http://www.tba.org/tba_files/TCA/green.wpd

BARBARA LEE BUNCE KERCE v. STEPHEN PAUL KERCE

Court:TCA

Attorneys:                          

Paul A. Flowers, Nashville, Tennessee, for the appellant, Stephen Paul
Kerce.

R. Whitney Stevens, Jr., Fayetteville, Tennessee, for the appellee,
Barbara Lee Bunce Kerce.

Judge: CAIN

First Paragraph:

The appellant Stephen Paul Kerce challenges the divorce decree entered
in Moore County Circuit Court, alleging that the court erred in its
valuation and distribution of the marital estate.  We affirm.

http://www.tba.org/tba_files/TCA/kercebarbara.wpd

SHAWN E. MCWHORTER v. RANDALL BARRE

Court:TCA

Attorneys:                          

Michael E. Richardson, Chattanooga, Tennessee, for the Appellant,
Randall Barre.

James R. McKoon, Chattanooga, Tennessee, for the Appellee, Shawn E.
McWhorter.

Judge: SWINEY

First Paragraph:

Professional pilot Shawn E. McWhorter ("Plaintiff") sued Randall Barre
("Defendant") for defamation based upon a letter Defendant wrote to
the Federal Aviation Administration ("FAA") containing allegations
that Plaintiff was medically unfit to be a pilot.  The jury returned a
verdict for Plaintiff and awarded $25,000 in compensatory damages and
$42,500 in punitive damages.  The Trial Court entered its judgment, as
later amended, in favor of Plaintiff against Defendant for
$105,820.01, consisting of compensatory damages of $25,000, punitive
damages of $42,500, and attorney fees and expenses in the amount of
$38,320.01.  The Trial Court's award of attorney fees and expenses was
based upon Defendant's refusal to admit liability in response to
requests for admission.  Defendant appeals.  We affirm, in part, and
reverse, in part.

http://www.tba.org/tba_files/TCA/mcwhorterse.wpd

STEPHEN MORGAN v. PAULA MORGAN

Court:TCA

Attorneys:                          

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Paula L.
Morgan.

Joe R. Johnson, II, Springfield, Tennessee, for the appellee, Stephen
F. Morgan.

Judge: COTTRELL

First Paragraph:

Husband and Wife were declared divorced on the basis of stipulated
grounds.  Wife appeals the classification and division of the
property.  We affirm the decision of the trial court.

http://www.tba.org/tba_files/TCA/morgans.wpd

IN RE: THE ESTATE OF MERLE HALLIBURTON NEAL MYERS v. FARMERS &
MERCHANTS BANK CORP., INC. BROOKSIE MYERS, DOUGLAS MYERS, JAMES MYERS

Court:TCA

Attorneys:                          

J. Runyon, Clarksville, Tennessee, for the appellant In Re: The Estate
of Merle Halliburton Neal Myers.

Carrie W. Gasaway, Clarksville, Tennessee, for the appellees, Farmers
and Merchants Bank, Inc. and Brooxie Myers, Douglas Myers and James
Myers.

Judge: COTTRELL

First Paragraph:

After the death of their elderly mother, her sons discovered that the
decedent's stepson and his wife had used a power of attorney to
transfer the funds from the decedent's $20,000 CD to themselves. The
decedent's son filed a petition to have the money restored to her
estate.  The trial court held that the CD was a valid inter vivos gift
from the decedent.  We reverse, because there is no evidence in the
record that such a gift was ever made.

http://www.tba.org/tba_files/TCA/myersestate.wpd

STAUBACH RETAIL SERVICES - SOUTHEAST, L.L.C. v. H. G. HILL REALTY
COMPANY

Court:TCA

Attorneys:                          

Barbara Hawley Smith, Nashville, Tennessee, for the appellant, H. G.
Hill Realty Company.

Brigid M. Carpenter, Nashville, Tennessee, for the appellee, Staubach
Retail Services - Southeast, L.L.C

Judge: CANTRELL

First Paragraph:

In this action over a brokerage commission the Chancery Court of
Davidson County granted summary judgment to the broker.  On appeal,
the owner asserts that the plaintiff failed to show by undisputed
evidence (1) that the owner agreed to pay the commission upon
"occupancy" of the building, or (2) that the tenant ever "occupied"
the building.  We affirm.

http://www.tba.org/tba_files/TCA/staubach.wpd

CHARLES W. COLE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

H. Randolph Fallin, Mountain City, Tennessee, for the appellant,
Charles W. Cole.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Kenneth C. Baldwin, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The petitioner, Charles W. Cole, pled guilty on February 4, 2000, to
five sexual offenses and, in January 2001, filed a petition for
post-conviction relief, asserting that his trial counsel was
ineffective.  Following a hearing, the post-conviction court dismissed
the petition, and the petitioner timely appealed.  We affirm the
dismissal of the petition.

http://www.tba.org/tba_files/TCCA/colecw.wpd

STATE OF TENNESSEE v. RHONDA ROCK

Court:TCCA

Attorneys:                          

Raymond C. Conkin, Jr., Kingsport, Tennessee; Stephen M. Wallace,
District Public Defender; and  Richard A. Tate, Assistant Public
Defender, for the appellant, Rhonda Rock.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General;  H. Greeley Wells, Jr., District Attorney
General; and Robert H. Montgomery, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant appeals her sentence of four years for voluntary
manslaughter.   The defendant contends that the trial court erred in
denying her any form of alternative sentencing.  We conclude that the
trial court did not err in sentencing and affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCCA/rockr.wpd

The Authority of the Commissioner of Education and of a Local
Education Agency To Grant Waivers Under the Tennessee Public Charter
Schools Act

Date: August 27, 2003

Opinion Number: 03-107                         

http://www.tba.org/tba_files/AG/2003/op107.pdf

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