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Today's Opinions: June 14, 2005
Volume 11 — Number 112
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.
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
06 New Opinion(s) from the Tennessee Court of Appeals
00 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 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

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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


ELTON LEE HUDSON v. THE AEROSTRUCTURES CORP., ET AL.

Court:TSC - Workers Comp Panel

Attorneys:

Stephen W. Elliott, Nashville, Tennessee, for appellant,
Aerostructures Corp.

William Joseph Butler and Frank D. Farrar, Lafeyette, Tennessee, for
appellee, Elton Hudson.

Judge: HARRIS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tennessee Code
Annotated section 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 asserts that the trial court erred in awarding to
the employee eighty-five (85%) percent permanent partial disability to
the right and left hands as a result of an injury sustained during the
course of his employment with Aerostructures Corp. We conclude that
the evidence presented does not preponderate against the findings of
the trial judge and, in accordance with Tennessee Code Annotated
S50-6-225(e)(2), affirm the judgment of the trial court.

http://www.tba.org/tba_files/TSC_WCP/2005/hudsone.pdf

AILEEN PYLES v. PACIFIC COAST FEATHER COMPANY, ET AL.

Court:TSC - Workers Comp Panel

Attorneys: 

Thomas M. Horne, Chattanooga, Tennessee, for Appellants, Pacific Coast
Feather Company and Royal & SunAlliance Insurance Company.

Roger L. Ridenour, Clinton, Tennessee, for appellee, Aileen Pyles.

Judge:  HARRIS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tennessee Code
Annotated S50-6-225(e)(3) for hearing and reporting to the Supreme
Court of findings of fact and conclusions of law. In this appeal, the
employer asserts that the trial court erred in awarding to the
employee a 55% permanent partial disability to the left arm and a 45%
permanent partial disability to the right arm as a result of her
employment with Pacific Coast Feather Company and in awarding
discretionary costs including the amount of $500.00 for an independent
medical evaluation. We conclude that the evidence presented supports
the findings of the trial judge and, in accordance with Tenn. Code
Ann. S50-6-225(e)(2), affirm the judgment of the trial court but
modify the judgment to exclude the award of the expense for an
independent medical examination as a discretionary cost.

http://www.tba.org/tba_files/TSC_WCP/2005/pylesa.pdf

BERNARD L. GRAFF, ET AL., v. WALNUT PLACE SUBDIVISION
HOMEOWNERS' ASSOCIATION, INC.


Court:TCA

Attorneys:  

Carl R. Ogle, Jr., Jefferson City, Tennessee, for appellants, Bernard
L. Graff and Pauline M. Graff.

Kelley Hinsley, Morristown, Tennessee, for appellee, Walnut Place
Subdividion Homeowners' Association, Inc.                      

Judge: INMAN

First Paragraph:

Two members of a homeowners' association, the governing body of a
planned unit development, filed this complaint alleging that the
association, a corporation, was in contempt of the court for its
refusal to allow the plaintiffs to inspect corporation records. The
trial judge declined to find the corporation in contempt. We affirm.

http://www.tba.org/tba_files/TCA/2005/graffopn.pdf

MARTY KENDALL v. VANDERBILT BILL WILKERSON CENTER

Court:TCA

Attorneys:  
                        
James L. Harris, Nashville, Tennessee, for the appellant, Marty
Kendall.

J. Davidson French, Nashville, Tennessee, for the appellee, Vanderbilt
Bill Wilkerson Center.

Judge: CLEMENT

First Paragraph:

Plaintiff appeals the dismissal of her lawsuit as being time barred.
Plaintiff timely filed an action for wrongful discharge of her
employment. Summons was issued but never served on Defendant.
Plaintiff then took a voluntary dismissal but did not serve, nor
attempt to serve, a copy of the notice of voluntary dismissal, the
order of dismissal or a copy of the initial complaint on Defendant as
required by Tenn. R. Civ. P. 41.01. Plaintiff filed this action to
revive her claim of wrongful discharge within one year of the
voluntary dismissal of her first action but more than one year after
termination of her employment. Defendant filed a Motion to Dismiss
contending that Plaintiff's claims were time barred, which the trial
court granted. Plaintiff appealed. We affirm.

http://www.tba.org/tba_files/TCA/2005/kendallm.pdf

IN RE: ESTATE OF JOE MACK RUSSELL, DECEASED

Court:TCA

Attorneys:                          

Benjamin K. Mallicote, Kingsport, Tennessee, for the Appellant, Dennis
Wayne Russell.

J. Robert Boatright, Kingsport, Tennessee, for the Appellees, William
Jack Russell and Billie Jo Russell.

Judge: LEE

First Paragraph:

In this appeal, the Plaintiff argues that the trial court abused its
discretion in dismissing his suit to contest a will and contends that
the trial court should have held the case in abeyance instead. Upon
motions of the Plaintiff, the trial court had continued trial of the
will contest on two prior occasions to times requested by the
Plaintiff. Given this finding and further findings that the Plaintiff
never requested that the case be held in abeyance and that the
Plaintiff neither filed a motion that the case be continued from the
date of trial nor notified the trial court beforehand that he would
not be present at trial, we affirm the judgment of the trial court and
remand.

http://www.tba.org/tba_files/TCA/2005/russelljoe.pdf

WILL SHATFORD v. SMALLBUSINESS.COM, REX HAMMOCK, and HAMMOCK
PUBLISHING, INC.

Court:TCA

Attorneys:                          

Irwin Venick, Nashville, for plaintiff/appellant Will Shatford

Leslie Goff Sanders, Nashville, for defendant/appellees
smallbusiness.com, Rex Hammock, and Hammock Publishing, Inc.

Judge: KIRBY,

First Paragraph:

This case is about fraud and negligent misrepresentation. In the fall
of 2000, the plaintiff employee accepted an offer for employment with
the defendant's internet company. Approximately three months after the
employee began work, the company became insolvent and closed. The
employee sued the defendant owner of the internet company, asserting
that the company owner made false statements to him regarding the
financial strength of the company. The employee sought damages for
breach of contract and for fraud and negligent misrepresentation. The
employee received a judgment against the company for contract damages
related to the employment contract. The company owner then sought
summary judgment on the remaining claims of fraud and negligent
misrepresentation. The trial court granted the company owner's motion
for summary judgment, finding that the employee could not, as a matter
of law, establish that he had relied on the company owner's statements
that were the basis for the claims of fraud and negligent
misrepresentation. The employee appeals. We reverse, finding that the
employee's reasonable or justifiable reliance on the statements was a
genuine issue of fact and thus summary judgment was not proper.

http://www.tba.org/tba_files/TCA/2005/shatfordw.pdf

DENNIS R. SHEPHERD v. IGNACIO FREGOZO AND NATIONWIDE
MUTUAL INSURANCE CO.

Court:TCA

Attorneys:

Jonathan Lavoy Griffith, Jeffrey Shane Roberts, Nashville, Tennessee,
for the appellant, Dennis Shepherd.

Parks Tedford Chastain, Michael K. Smith, Nashville, Tennessee, for
the appellee, Nationwide Mutual Insurance Co.

Judge: CAIN

First Paragraph:

Appellant, a Metropolitan Nashville police officer was seriously
injured in an on-duty automobile accident when Defendant's vehicle
crashed into the rear of his patrol car. Defendant was uninsured.
Metropolitan Nashville was self-insured and did not provide uninsured
motorist coverage for its patrol officers. Plaintiff named Nationwide
as a defendant in an effort to recover under the uninsured motorist
provision of the policy issued to him insuring his personal vehicle.
Nationwide defended under a policy exclusion involving non-insured
vehicles made available for his regular use. The trial court granted
summary judgment to Nationwide, and we affirm the action of the trial
court.

http://www.tba.org/tba_files/TCA/2005/shepherdd.pdf

JENNIFER REBECCA SPURGEON v. KEVIN BROOKS SPURGEON

Court:TCA

Attorneys:                          

Clifford K. McGown, Jr., Waverly, Tennessee, for the appellant,
Jennifer Rebecca Spurgeon.

Jennifer Davis Roberts, Dickson, Tennessee, for the appellee, Kevin
Brooks Spurgeon.

Judge: CLEMENT

First Paragraph:

Wife appeals a trial court judgment finding that she is not entitled
to rehabilitative alimony, back child support, a portion of the
husband's "paid time off" accumulated during the marriage and attorney
fees. We reverse the trial judge's ruling that the wife is not
entitled to rehabilitative alimony and remand the alimony issue to the
trial judge to conduct a hearing to ascertain her need for
rehabilitation and the husband's ability to pay. We affirm on all
other issues.

http://www.tba.org/tba_files/TCA/2005/spurgeonj.pdf

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