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TODAY'S OPINIONS: Thursday, August 18, 2005
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 - Formal Ethics Opinions - BPR
00 - Judicial Ethics Opinions
00 - TN Attorney General Opinions
04 - TN Court of Appeals
00 - TN Court of Criminal Appeals
03 - TN Supreme Court
00 - TN Supreme Court - Rules
01 - TN Worker's Comp Appeals

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
JAMES CRAIN, ET AL. v. BAPTIST MEMORIAL HOSPITAL

Court: TCA

Attorneys:

Curtis D. Johnson, Jr., Memphis, TN, for Appellants

George T. Wheeler, Jr., Memphis, TN, for Appellee

Judge: HIGHERS

In this premises liability suit, we are called upon to evaluate the trial court‚s grant of summaryjudgment to the defendant/landowner. The trial court concluded that, as a matter of law, the injured plaintiff, an employee of an independent contractor performing electrical work on thepremises, could not establish that the defendant/landowner owed him a duty. Since the plaintiff could not establish an essential element of his negligence cause of action, the trial court grantedthe defendant/landowner‚s motion for summary judgment. We affirm.

http://www.tba.org/tba_files/TCA/2005/crainj81805.pdf


CITY OF NEW JOHNSONVILLE v. KEVIN E. HANDLEY, ET AL. and GENE PLANT, ET AL. v. KEVIN E. HANDLEY, ET AL.

Court: TCA

Attorneys:

R. Eric Thornton, Dickson, TN, for Appellants

T. Holland McKinnie, City Attorney, Franklin, TN; Michael R. Hill, Milan, TN, for Appellee, City of New Johnsonville, TN

Benjamin C. Regen, Dickson, TN, for Appellees, Kevin E. Handley & Gloria J. Handley

Stephen D. Wakefield, Memphis, TN, for Appellee, E. I. Dupont De Nemours and Company

John Lee Williams, Robert I. Thomason, Jr., Waverly, TN, for Appellee, Volunteer Title Company, Inc., Trustee

Lewis L. Cobb, Jerry P. Spore, J. Brandon McWherter, Jackson, TN, for Appellee, Union Planters Bank

Judge: HIGHERS

This appeal involves protracted litigation over a parcel of land conveyed by the City of New Johnsonville, Tennessee, to a member of the New Johnsonville City Council. The mayor, on behalf of the city, subsequently filed suit against the councilman seeking to nullify the transaction. During the pendency of that litigation, several taxpayers filed their own suit against the councilman alleging the same causes of action set forth in the city‚s complaint. The city and the councilman ultimately settled their lawsuit. The taxpayers‚ lawsuit continued, ultimately naming the city as a defendant. The trial court partially granted the defendants‚ motions for summary judgment by ruling that the taxpayers did not have standing to contest the land transaction between the city and the councilman. The court ruled that the taxpayers did have standing to continue with their other causes of action concerning allegations that the councilman engaged in illegal business transactions with the city. The taxpayers subsequently took a voluntary nonsuit on their remaining claims and filed an appeal to this Court to contest the trial court‚s grant of summary judgment on their claim regarding the land transaction. We vacate the trial court‚s decision regarding the land transaction, and we remand for further proceedings not inconsistent with this opinion.

http://www.tba.org/tba_files/TCA/2005/newohnsonville81805.pdf

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/2005/newjohnsonville_con81805.pdf


EMERSON E. RUSSELL, ET AL. v. TED W. BROWN, JR., M.D., ET AL.

Court: TCA

Attorneys:

William T. Alt, Chattanooga, Tennessee, for the appellants, Emerson E. Russell and wife, Angie Russell.

James D. Robinson and Steven M. Roderick, Chattanooga, Tennessee, for the appellees, Ted W. Brown, Jr., M.D., and Chattanooga Ear, Nose & Throat Associates, P.C.

Jennifer H. Lawrence, Chattanooga, Tennessee, for the appellees, S. Morgan Smith, M.D., and Anesthesiology Consultants Exchange, Inc.

Judge: SUSANO

Emerson E. Russell („the plaintiffš) and his wife, Angie Russell, brought this suit for medical malpractice against Dr. Ted W. Brown, Jr., seeking damages associated with injuries allegedly suffered by the plaintiff as a result of a surgical procedure performed by Dr. Brown. The plaintiff also named as a defendant Dr. S. Morgan Smith, the anesthesiologist who attended the plaintiff‚s surgery. In the complaint, the plaintiff averred, among other allegations, that he was not adequately informed of alternative treatments for his snoring problem, and that he was not fully advised of the attendant risks of the procedure performed by Dr. Brown. A jury returned a verdict for the defendants. Following the trial, the defendants filed separate motions for discretionary costs, which motions were granted in part and denied in part. The plaintiff and his wife appeal, arguing that the plaintiff was not furnished sufficient information to enable him to give „informedš consent to the surgery performed by Dr. Brown. They also contend that the trial court‚s charge to the jury on the issue of informed consent did not adequately instruct the jury on the subject. Finally, they raise several issues pertaining to evidentiary matters. As a separate issue, the defendants contend that the trial court‚s awards of discretionary costs were inadequate. We affirm the judgment of the trial court with respect to the jury‚s verdict. We modify the trial court‚s two awards of discretionary costs. As modified, those awards are affirmed.

http://www.tba.org/tba_files/TCA/2005/russelle81805.pdf


PAUL TRUITT v. STEPHANIE PALMER, ET AL.

Court: TCA

Attorneys:

Jonathan C. Stewart, Nashville, TN, for Appellant

David E. High, Peter D. Heil, Nashville, TN, for Appellees Stephanie Palmer, and Palmer-WMVC, Inc., previously known as West Meade Veterinary Clinic, P.C.

Judge: HIGHERS

This appeal arises out of an action filed by the plaintiff seeking damages for breach of an oral contract, intentional misrepresentation, defamation, and conversion. The plaintiff voluntarily dismissed his claims against Dr. Michele Lutz. The trial court granted Dr. Michael Lutz‚s and West Meade Veterinary Clinic, LLC‚s motion for partial summary judgment, and the plaintiff voluntarily dismissed his remaining claims against Dr. Michael Lutz and West Meade Veterinary Clinic, LLC. The trial court granted Stephanie Palmer‚s, Palmer-West Meade Veterinary Clinic, Inc.‚s, and West Meade Veterinary Clinic, PC‚s motion for partial summary judgment, leaving only the plaintiff‚s claim for unpaid bonuses or commissions. The trial court awarded the plaintiff $6,307.85, representing unpaid commissions and bonuses. The plaintiff now appeals to this Court, and, for the following reasons, we reverse and remand for further proceedings.

http://www.tba.org/tba_files/TCA/2005/truittp81805.pdf


STATE OF TENNESSEE v. EMMA HAWK, a/k/a BETTY WILLIS

Court: TSC

Attorneys:

Clifton Corker, Johnson City, Tennessee, for the appellant, Emma Hawk a/k/a Betty Willis

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General;Michelle Chapman McIntire, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Steve Finney, Assistant District Attorney General, for the appellee, State ofTennessee.

Judge: DROWOTA

Relying upon a common law rule, the trial court continued the defendant‚s trial on the charge ofaccessory after the fact to first degree murder until after the trial and conviction of the principal offender. The defendant sought interlocutory review of the trial court‚s order, asserting that herSixth Amendment right to a speedy trial has been violated by application of the common law rule. The Court of Criminal Appeals refused to grant the defendant‚s application for aninterlocutory appeal, finding no reason to deviate from the general practice of evaluating speedy trial claims on direct appeal. We granted the defendant permission to appeal to consider thefollowing issues of law: (1) whether the Tennessee Criminal Sentencing Reform Act of 1989, 1989 Tenn. Pub. Acts ch. 591 („Reform Actš), abrogated the common law rule that a principalmust be tried and convicted before an accessory after the fact may be tried; (2) if not, should this Court judicially abrogate the common law rule; and (3) whether a defendant is entitled tointerlocutory review of the trial court‚s order denying her motion to dismiss the indictment because of an alleged violation of her Sixth Amendment right to a speedy trial. We hold that thecommon law rule has not been abrogated by the Reform Act, and we decline to judicially abrogate it. We also hold that the defendant is not entitled to seek interlocutory review of thetrial court‚s order rejecting her alleged Sixth Amendment speedy trial violation. Applying these holdings, we affirm the judgment of the Court of Criminal Appeals insofar as it denied thedefendant interlocutory review of her speedy trial claim, and we affirm the judgment of the trial court which continued the defendant‚s trial on the charge of accessory after the fact until after thetrial of the principal offender. We remand this case to the trial court for further proceedings consistent with this opinion.

http://www.tba.org/tba_files/TSC/2005/hawke81805.pdf


THOMAS SALLEE v. TYLER BARRETT

Court: TSC

Attorneys:

David William Haines, Jr., Clarksville, Tennessee, for the appellant, Tyler Barrett.

Phillip Leon Davidson, Nashville, Tennessee, for the appellee, Thomas Sallee.

James Russell Farrar and Mary Byrd Ferrara, Nashville, Tennessee, for the Amicus Curiae,Tennessee Municipal League Risk Management Pool.

Judge: BARKER

This appeal arises from a claim for negligent infliction of emotional distress. The defendant, apolice officer, accidently discharged his gun while standing behind the plaintiff, startling the plaintiff. The trial court granted the defendant‚s motion to dismiss for failure to state a claim,concluding that the defendant was immune from suit pursuant to the Governmental Tort Liability Act, Tennessee Code Annotated section 29-20-310(b) (2000). The Court of Appeals reversed,finding that section 29-20-205(2), which retained immunity for governmental entities for the „infliction of mental anguishš1 caused by its employee applied to both negligent, as well asintentional infliction of mental anguish. We reverse the Court of Appeals and reinstate the trial court‚s order granting the motion to dismiss in favor of the defendant.

http://www.tba.org/tba_files/TSC/2005/salleet81805.pdf


GARY L. WEST, ET AL. v. EAST TENNESSEE PIONEER OIL CO. d/b/aEXXON CONVENIENCE STORE

Court: TSC

Attorneys:

Gregory F. Coleman and Michael A. Myers, Knoxville, Tennessee, for the appellants, Gary L.West and Michell B. Richardson.

Clint J. Woodfin and Gary T. Dupler, Knoxville, Tennessee, for the appellee, East TennesseePioneer Oil Co. d/b/a/ Exxon Convenience Store.

Judge: BARKER

We granted review in this case to determine whether convenience store employees owe a duty ofreasonable care to persons on the roadways when the employees sell gasoline to an obviously intoxicated driver and/or assist the driver in pumping the gasoline into his vehicle. We answer inthe affirmative. The plaintiffs in this case were injured when their vehicle was struck by another vehicle driven by an intoxicated driver. The intoxicated driver had purchased gasoline at thedefendant convenience store shortly before the accident. The plaintiffs filed suit alleging the defendant was liable for their injuries based on theories of negligence, negligence per se, andnegligent entrustment in furnishing the driver with gasoline. The trial court granted summary judgment in favor of the defendants on all claims. The Court of Appeals affirmed the dismissalof the negligence per se and negligent entrustment claims, but reversed the grant of summary judgment on the negligence claim. The intermediate court held that the defendant‚s employeeswere under a duty to act with due care when undertaking the affirmative acts of selling the gasoline to the visibly intoxicated driver and then helping the driver pump the gasoline into hisvehicle. After a careful review of the record and relevant authority, we affirm the judgment of the Court of Appeals in part, reverse in part, and remand for further proceedings.

http://www.tba.org/tba_files/TSC/2005/westg81805.pdf


RAYMOND BANKS v. UNITED PARCEL SERVICE, INC.

Court: TWCA

Attorneys:

David T. Hooper, Brentwood, Tennessee, for the Appellant, United Parcel Service, Inc.

Timothy S. Priest, Winchester, Tennessee, for the Appellee, Raymond Banks.

Judge: ANDERSON

We granted review in this workers‚ compensation case to determine whether the trial court erredin awarding benefits to the injured employee for the period prior to the date the employee notified the employer of his gradually-occurring injury. The Special Workers‚ CompensationAppeals Panel held that the trial court correctly determined that the employee had timely notified the employer of his injury, but reversed the trial court‚s determination that the injury wascompensable prior to the date of notification. After reviewing the record and applicable authority, we affirm in part and reverse in part the decision of the Special Workers‚Compensation Appeals Panel. We hold that the notice was timely, that the employee is entitled to temporary total disability benefits for the period he was off work following his surgery, andthat the trial court correctly determined that the employee sustained a 70% vocational disability, affirming the trial court on the separate grounds set forth herein.

http://www.tba.org/tba_files/TSC_WCP/2005/banksr81805.pdf


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