Opinion Flash

November 20, 2003
Volume 9 — Number 213

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
03 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
06 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


THOMAS MOORE v. SHONEY'S, INC.

Court:TSC - Workers Comp Panel

Attorneys:    

Mark A. Baugh, Bruce, Weathers, Corley & Lyle, Nashville, Tennessee,
for the appellant, Shoney's, Inc.

Joseph K. Dughman, Nashville, Tennessee, for the appellee, Thomas E.
Moore

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 questions the trial court's award of disability
benefits and the admissibility of a medical expert's opinion.  As
discussed below, the panel finds no reversible error and concludes the
evidence fails to preponderate against the findings of the trial
court.

http://www.tba.org/tba_files/TSC_WCP/moorethomas.wpd
								
LARRY NEELEY v. SOUTHERN TANK LEASING COMPANY, ET AL. Court:TSC - Workers Comp Panel Attorneys: Dale A. Tipps, Nashville, Tennessee, for the appellants, Southern Tank Leasing Co. and HCC Administrators, Inc. Joseph K. Dughman, Nashville, Tennessee, for the appellee, Larry Neeley. Judge: WEATHERFORD First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated 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 appeals the trial court's award of 75% vocational disability for a head injury resulting in vertigo, tinnitus, and hearing loss and 25% vocational disability for bilateral carpal tunnel syndrome caused by employee's work activities. The employer asserts, among other issues, that the evidence preponderates against a finding that: 1) the head injury symptoms were compensable, and 2) the employee's wrist and hand symptoms were work related. The employer also contends that it was deprived of a fair trial as a result of the trial court's apparent bias against it or its counsel. The judgment of the trial court is affirmed as modified. http://www.tba.org/tba_files/TSC_WCP/neeleylarry.wpd
JOSE SANTIAGO v. THE HARTFORD, ET AL. Court:TSC - Workers Comp Panel Attorneys: Blakely D. Matthews and Nicole R. Paulk, Cornelius & Collins, Nashville, Tennessee, for the appellants, The Hartford, Powermatic Corporation, Powermatic and Devlieg Bullard, Inc. Michael Gigandet, Ortale, Kelley, Herbert & Crawford, Nashville, Tennessee, for the appellees, Anesthesiologist Professional Assurance Co. and Advanced Machine Technology Barry H. Medley, Farrar, Holliman & Medley, McMinnville, Tennessee, for the appellee, Jose Santiago 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, Powermatic, and its insurer insist the trial court erred (1) in finding that the employee's injury did not progress during his tenure at his last place of employment and (2) in determining the extent of the employee's vocational disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. http://www.tba.org/tba_files/TSC_WCP/santiagojose.wpd
KENNETH RAY EMERT v. CITY OF KNOXVILLE Court:TCA Attorneys: Hillary B. Jones, Knoxville, for the Appellant, City of Knoxville. John M. Norris, Strawberry Plains, for the Appellee, Estate of Kenneth Ray Emert. Judge: INMAN First Paragraph: The original plaintiff, since deceased, tripped on an uneven brick sidewalk and injured his right knee. He was blind, or nearly so, and used a walking aid. The defendant's negligence is not an issue on appeal. The issue is one of causation in light of the medical proof that the plaintiff suffered knee problems before the accident. The trial judge found that the accident aggravated the plaintiff's pre- existing condition and awarded damages of $100,000.00 with fault apportioned 80 percent to the defendant. We affirm. http://www.tba.org/tba_files/TCA/emert.wpd
IN RE: ESTATE OF GLORIA ELEANOR FRANKLIN, EDWARD MANNING ADMINISTRATOR WITH THE WILL ANNEXED, v. W. JESS WALTMAN Court:TCA Attorneys: Mark A. Cowan, Morristown, Tennessee, for Appellant. Roy T. Campbell, Jr., Newport, Tennessee, for Appellee. Judge: FRANKS First Paragraph: The Trial Court following an evidentiary hearing, held decedent's holographic will to be conditional and inoperative. On appeal, we reverse. http://www.tba.org/tba_files/TCA/frankling.wpd
DAYNE SCOTT O'BANNON v. STEPHANIE SUE GRABLE O'BANNON Court:TCA Attorneys: Gregory Scott Kanavos and Henry Franklin Chancey, Cleveland, Tennessee, for the Appellant, Stephanie Sue Grable O'Bannon Kimberlee A. Waterhouse, Lenoir City, Tennessee, for the Appellee, Dayne Scott O'Bannon Judge: INMAN First Paragraph: This appeal from the Bradley County Circuit Court questions whether the Trial Court erred in denying the Wife's proposed relocation to South Dakota and in changing custody of the parties' children from Wife to Husband. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/obann.wpd
MYRA PATE v. STATE OF TENNESSEE Court:TCA Attorneys: M.J. Hoover, III, Knoxville, Tennessee, for the Appellant Myra Pate. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Heather C. Ross, Senior Counsel, Nashville, Tennessee, for the Appellee State of Tennessee. Judge: SWINEY First Paragraph: Myra Pate ("Plaintiff") filed a claim with the Tennessee Division of Claims Administration after she slipped and fell on her way to class at Pellissippi State Technical Community College ("PSTCC"). When her claim was denied, Plaintiff filed a complaint in the Tennessee Claims Commission ("Commission") against the State of Tennessee ("the State"). The State filed a motion for summary judgment claiming Plaintiff had filed for Chapter 13 bankruptcy and failed to disclose the existence of her claim against the State. The State argued Plaintiff was judicially estopped from pursuing this lawsuit and also that she lacked standing. When Plaintiff failed to file a timely response to the motion for summary judgment, the Commission granted the motion solely because no response had been filed. Plaintiff appeals. We vacate the grant of summary judgment and remand for further proceedings. http://www.tba.org/tba_files/TCA/patem.wpd
STATE OF TENNESSEE v. TERRANCE G. MOTLEY Court:TCCA TIPTON CONCURRING http://www.tba.org/tba_files/TCCA/motleyt_con.wpd
MICHAEL ANDERSON PEEK v. STATE OF TENNESSEE Court:TCCA Attorneys: Bill Speek, Chattanooga, Tennessee, for the appellant, Michael Anderson Peek. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; William H. Cox, III, District Attorney General; and Rodney C. Strong, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Hamilton County jury convicted the Petitioner, Michael Anderson Peek, of four counts of aggravated rape, one count of attempted aggravated rape, three counts of rape, one count of aggravated robbery, two counts of robbery, and three counts of aggravated burglary. The trial court imposed an effective sentence of ninety-nine years in prison. On direct appeal, this Court affirmed the convictions, and the Tennessee Supreme Court denied the Petitioner's application for permission to appeal. The Petitioner then sought post-conviction relief, alleging that he was denied effective assistance of counsel. Following a hearing on the post-conviction petition, the trial court dismissed the petition, and this appeal ensued. We affirm the trial court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/peekma1.wpd
Reissuance of service of process Date: November 17, 2003 Opinion Number: 03-145 http://www.tba.org/tba_files/AG/2003/OP145.pdf
Cities' authority to add benefits to the State prevailing wage rates in connection with contracts entered into by that city Date: November 17, 2003 Opinion Number: 03-146 http://www.tba.org/tba_files/AG/2003/OP146.pdf
Industrial Development Corporations - Authority to Establish Incentive Loan Program Date: November 17, 2003 Opinion Number: 03-147 http://www.tba.org/tba_files/AG/2003/OP147.pdf
Authority of State Licensed Security Officers Date: November 17, 2003 Opinion Number: 03-148 http://www.tba.org/tba_files/AG/2003/OP148.pdf
Authority of State Certified Security Officer Date: November 17, 2003 Opinion Number: 03-149 http://www.tba.org/tba_files/AG/2003/OP149.pdf
Salary Raise for Hamilton County Judicial Commissioners Date: November 17, 2003 Opinion Number: 03-150 http://www.tba.org/tba_files/AG/2003/OP150.pdf

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