Opinion Flash

March 2, 2004
Volume 10 — Number 041

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
04 New Opinion(s) from the Tennessee Court of Appeals
01 New Opinion(s) from the Tennessee Court of Criminal Appeals
05 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


DEBORAH JOHNSON v. MARSHALL MANUFACTURING CORP., ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Gordon C. Aulgur, Brewer, Krause & Brooks, Nashville, Tennessee, for
the appellant, Federated Insurance Company

Lee Anne Murray, Feeney & Murray, Nashville, Tennessee, for the
appellee, Marshall Manufacturing Corporation

Emil L. Storey, Jr. and Deborah A. Toon, Donald D. Zuccarello,
Nashville, Tennessee, for the appellee, Deborah Johnson

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 appellant, Federated Insurance Company, insists the trial
court erred in determining, as a matter of law, that it was liable for
the payment of workers' compensation benefits and in summarily
dismissing the case as to Liberty Mutual Insurance Company.  As
discussed below, the panel has found no reversible error and concluded
that Federated is liable under the successive injury rule.

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

JUNE BETTY WILLIAMS v. SATURN CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:                          

Thomas H. Peebles, IV, Columbia, Tennessee, for the appellant Saturn
Corporation.

Michael D. Dillon, Nashville, Tennessee, for the appellee June Betty
Williams.

Judge: WEATHERFORD

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel 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 employer appeals the
judgment of the trial court awarding the employee 20% permanent
partial disability to the body as a whole for  work-related injuries
to both shoulders, and denying a set-off for disability payments paid
under an employer-funded plan.  The employer contends that the trial
court erred:  1) in basing the employee's award on an anatomical
impairment rating not based entirely on the AMA Guides; and 2) in not
granting a set-off for disability payments paid by the employer
pursuant to Tenn. Code Ann. S 50-6-114(b).  We hold that the evidence
does not preponderate against the trial court's findings as to
anatomical and vocational disability.  Accordingly, the judgment of
the trial court is affirmed as to this issue.  We find that this case
should be remanded for further proceedings on the issue of whether a
set-off is warranted in this case.

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

MARIA L. CALDWELL v. BRIDGESTONE/FIRESTONE, INC., and HAZEL R. ALBERT,
Commissioner, Tennessee Department of Labor and Workforce Development

Court:TCA

Attorneys:                          

William Kennerly Burger, Nashville, Tennessee, for the appellant,
Maria L. Caldwell.

Stephen W. Grace and Terrence O. Reed, Nashville, Tennessee, for the
appellee, Bridgestone/Firestone, Inc.

Paul G. Summers, Attorney General and Reporter; Douglass Earl Diamond,
Assistant Attorney General, Nashville, Tennessee, for the appellee
Albert.

Judge: HAGLER

First Paragraph:

Employee filed for unemployment compensation benefits because, even
though she was unable to perform the physical tasks of her job because
of a non-work related injury, she may have been denied a job,
consistent with her medical restrictions, guaranteed by her union
contract.  The trial court's decision affirming the Board of Review's
conclusion that the rights under the union contract are irrelevant to
her rights to unemployment compensation is affirmed because the job
guaranteed by her union contract constitutes only part, rather than
all, of her "former duties" as required by T.C.A. S50-7-303(a)(1).

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

IN THE MATTER OF CURTIS JASON ELY

Court:TCA

Attorneys:                          

Curtis Jason Ely, Nashville, Tennessee, Pro Se.

Judge: KOCH

First Paragraph:

This appeal involves a state prisoner who desires to change his name
for religious reasons.  Even though the prisoner's petition was
uncontested, the Davidson County Probate Court declined to permit the
prisoner to change his name solely because he had been convicted of a
felony.  While we have determined that the probate court erred by
denying the prisoner's petition solely because he had been convicted
of a felony, we have determined that the petition was properly
dismissed.

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

OVERNITE TRANSPORTATION COMPANY v. TEAMSTERS LOCAL UNION NO. 480,
AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO; AND BILLY D.
CULLEN; EDDIE MIMS; KENNIE GEORGE; ISOM ("BUTCH") FOLSOM, INDIVIDUALLY
AND IN THEIR CAPACITY AS OFFICERS AND MANAGING AGENTS OF TEAMSTERS
LOCAL UNION 480; AND SEVERAL JOHN DOES

Court:TCA

Attorneys:                          

Kenneth A. Weber, Nashville, Tennessee; and Christopher A. Johlie and
Melissa Crawford Mazzeo, Chicago, Illinois, for the appellant,
Overnite Transportation Company.

James G. Stranch, III, and Mark A. Mayhew, Nashville, Tennessee, for
the appellee, Teamsters Local Union No. 480.

George E. Barrett, Nashville, Tennessee, for the individual appellees,
Billy D. Cullen, Eddie Mims, Kennie George, Isom ("Butch") Folsom.

Judge: KIRBY

First Paragraph:

This case arose out of a labor dispute.  In October 1999, the
defendant union began a labor strike at the plaintiff trucking
company's Nashville facility.  The company filed a petition in the
lower court seeking to enjoin the union from engaging in violence and
intimidation in connection with the strike.  The company later amended
its complaint to include a claim against the union for intentional
interference with business relations.  Between October 1999 and
January 2000, the trial court entered five injunctions against the
union, each more restrictive than the one before, enjoining the union
from engaging in the alleged unlawful violence and intimidation.  In
August 2000, the trial court issued a show cause order, citing 128
alleged violations of the injunctions, requiring the union to show
cause why it should not be held in civil contempt.  In March 2002, the
trial court determined that the company's petition for civil contempt
was moot because, by that time, the contemptuous conduct had ceased. 
In August 2002, the trial court dismissed the company's claim for
intentional interference with business relations for failure to state
a claim.  The plaintiff trucking company now appeals.  We reverse the
dismissal of the civil contempt petition, finding that the company may
seek damages caused by conduct in violation of the injunctions, and
affirm the dismissal of the intentional interference claim.

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

JAMES W. STEPHENSON v. THE THIRD COMPANY, ET AL.
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Winston S. Evans, Nashville, Tennessee, for the appellant, The Third
Company and Richard C. L. Caldwell, individually.

John B. Holt, Springfield, Tennessee, for the appellee, James W.
Stephenson.

Judge: COTTRELL

First Paragraph:

The plaintiff filed suit for repayment of $25,000 which he purportedly
loaned to the defendant.  The defendant contended that the money was
not a loan, but was placed with him for a specific investment.  Since
the investment ultimately failed, the defendant claimed that he did
not owe anything to the plaintiff.  The trial court noted that the
documents evidencing the transactions at issue were "replete with
ambiguities," but found that they were nonetheless sufficient to
establish an enforceable loan contract.  The court accordingly
rendered a plaintiff's judgment for $25,000 plus interest.  We
reverse.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/stephensonjw_dis.wpd

JAMES K. ROBBINS v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:                          

Walter B. Johnson, II, for the appellant, James K. Robbins. 

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; Roger Delp, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The Petitioner, James K. Robbins, appeals the trial court's dismissal
of his petition for writ of habeas corpus. The State has filed a
motion requesting that this Court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals.
The petitioner has not established that  the challenged judgment is
void or that his sentence has expired.  Accordingly, the State's
motion is granted and the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/robbins20.wpd

Constitutionality of S.B. 2074/H.B. 2146, Authorizing Coffee County to
Levy a Privilege Tax on "Large Events"

Date: February 12, 2004

Opinion Number: 04-027                         

http://www.tba.org/tba_files/AG/op27.pdf

Pending legislation to amend Tenn. Code Ann. S 36-6-306, the
Grandparent Visitation Act

Date: February 17, 2004

Opinion Number: 04-028                         

http://www.tba.org/tba_files/AG/op28.pdf

Highway Storm Drainage Maintenance

Date: February 25, 2004

Opinion Number: 04-029                        

http://www.tba.org/tba_files/AG/op29.pdf

Payment of Pledge to Legislator during Legislative Session

Date: February 25, 2004

Opinion Number: 04-030                        

http://www.tba.org/tba_files/AG/op30.pdf

Municipalities -- Cash Payments to Officials in Lieu of Paying Life or
Health Insurance Premium

Date: February 25, 2004

Opinion Number: 04-031                        

http://www.tba.org/tba_files/AG/op31.pdf

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