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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