Opinion FlashAugust 29, 2003Volume 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel 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 PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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