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TODAY'S OPINIONS: Wednesday, September 28, 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 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
08 - TN Court of Appeals
02 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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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

DARRELL DENNEY v. NORWALK FURNITURE CORPORATION.

Court: TWCA

Attorneys:

Ronald Thurman, Cookeville, Tennessee, for the Appellant, Darrell Denney.

Daniel H. Rader, III, Moore, Rader, Clift, and Fitzpatrick, P.C., Cookeville, Tennessee, for the Appellees, Norwalk Furniture Corporation.

Judge: CORLEW

This workers' compensation appeal has been referred to the Special Workers'Compensation Appeals Panel of the Supreme Court in accordance with the provisions of Tennessee Code Annotated section 50-6-225(e)(3) for hearing andreporting to the Supreme Court of findings of fact and conclusions of law. The Worker, Darrell Denney, has appealed the action of the trial court, which dismissedhis cause of action, finding that his injury was entirely degenerative in nature, and was not caused by his employment, nor was it aggravated or exacerbated by hisemployment sufficient to cause the claim to be compensable under the terms of the Worker's Compensation law. Upon our consideration of all of the evidence, wefind that the evidence preponderates in favor of a finding of an exacerbation of the Worker's underlying condition, to cause the injury to be compensable. Thus, wefind that the decision of the trial court should be reversed, that the Worker is entitled to an order holding him harmless from medical expenses incurred, that heis entitled to an award of temporary total disability from the date he left his employer until the date when he returned to work, and that the Worker should becompensated in a sum of 70% vocational disability apportioned to the right arm. We remand the case to the trial court for determination of remaining issues,including commutation of the award, to the extent it has not fully accrued, any offsets which may be applicable, collection of costs, and such further matterswhich arise in accordance with the terms of this opinion.

http://www.tba.org/tba_files/TSC_WCP/2005/denneyd92805.pdf


ELEANOR BELL ET AL. v. ROGER TODD
OPINION DENYING PETITION FOR REHEARING

Court: TCA

Attorneys:





Judge: KOCH

On September 14, 2005, we issued an opinion in this case vacating the trial courtāsjudgment awarding compensatory and punitive damages to the Bell family. On September 21, 2005, the Bell family filed a petition for rehearing and a motion to consider post-judgment factspremised upon the February 2, 2005 convictions of Roger Todd for first degree murder, especially aggravated robbery, and especially aggravated kidnapping. The petition does notexplain the reason for the delay in informing this court of these convictions.

OPINION DENYING PETITION FOR REHEARING
http://www.tba.org/tba_files/TCA/2005/belle92805.pdf


GREGORY DAVID BRYANT-BRUCE, JR. ET AL. v.STATE OF TENNESSEE

Court: TCA

Attorneys:

Brian T. Dunn, Los Angeles, California, for the appellants, Gregory David Bryant-Bruce, Sr. andCheryl Denise Bryant-Bruce.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; andMartha A. Campbell, Senior Counsel, for the appellee, State of Tennessee.

Judge: KOCH

This appeal involves a dispute between the State of Tennessee and the parents of a profoundly illinfant regarding the Stateās responsibility for the medical care the child received while in the Stateās custody. After regaining custody of their child, the parents filed a claim in the TennesseeClaims Commission against the Tennessee Department of Human Services and certain of its employees, alleging, among other things, that the Department and its employees had negligentlyfailed to investigate the causes of the childās medical condition and had negligently failed to ensure that the child received proper medical care while he was in foster care. After theCommission dismissed the claim in its entirety, the childās mother perfected this appeal on behalf of her son. She raises only one issue ö whether the Commission erred by holding that thedoctrine of quasi-judicial immunity barred her claim that the Department and its employees negligently failed to supervise the medical care her child received while he was in foster care.Even though we have determined that the Commission misapplied the doctrine of quasi-judicial immunity in this case, we have concluded, based on the undisputed facts, that the Departmentwas entitled to dismissal of the parentsā claim as a matter of law

http://www.tba.org/tba_files/TCA/2005/bryantb92805.pdf


WILLIAM E. CASTLE v. STATE OF TENNESSEE, DEPARTMENT OF CORRECTION, ET AL.

Court: TCA

Attorneys:

William E. Castle, pro se Appellant.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, and Pamela S. Lorch, Senior Counsel, Nashville, Tennessee, for the Appellee State of Tennessee, Department of Correction.

Steve Erdely, IV, Knoxville, Tennessee, for the Appellee Batley Baptist Church.

Charles F. Sterchi, III, and Joseph W. Ballard, Knoxville, Tennessee, for the Appellee Rick Cox Construction Company.

Judge: SWINEY

This is a personal injury lawsuit filed by William E. Castle (ćPlaintiffä), an inmate at the Brushy Mountain Correctional Complex. As a trustee, Plaintiff was allowed to work as a carpenter for the defendant State of Tennessee, Department of Correction (the ćStateä). Rick Cox Construction Company was a contractor building an addition to the Batley Baptist Church, and Plaintiff and other inmates assisted with this construction. Plaintiff was injured when he fell from a scaffold while working at the Batley Baptist Church. Plaintiff bought this negligence claim against the State, Rick Cox Construction Company, and Batley Baptist Church. The Trial Court granted the Stateās motion to dismiss based on sovereign immunity. The Trial Court later granted motions for summary judgment filed by the remaining two defendants. Plaintiff appeals, and we affirm.

http://www.tba.org/tba_files/TCA/2005/castlew92805.pdf


KERRY HIBDON v. GEORGE J. GRABOWSKI, ET AL.

Court: TCA

Attorneys:

August C. Winter of Brentwood, Tennessee for Appellant, Kerry Hibdon

Henry D. Fincher of Cookeville, Tennessee for Appellees, George J. Grabowski, Ind. & d/b/a HPT Sport USa, Fagan pace, Ind. 7 d/b/a Pace Tech, Ben Pennington, Ronnie Reels and Larry Talley

Judge: CRAWFORD

Plaintiff/Appellant owner of jet ski customizing business brought defamation action against defendants alleging libel, civil conspiracy and false light invasion of privacy stemming from statements defendants made about plaintiff, which were published on an Internet news group. The trial court held that venue was proper in Warren County, Tennessee, and that the court had jurisdiction over out-of-state resident defendants. Finding that plaintiff was a public figure for purposes of libel action, that plaintiff could not prove actual malice, and that plaintiff failed to show actual damage, the trial court granted summary judgment in favor of the defendants. Plaintiff appeals. We affirm in part, reverse in part, and remand.

http://www.tba.org/tba_files/TCA/2005/hibdonk92805.pdf


CITY-COUNTY FEDERAL CREDIT UNION v. SUZANNE E. LINBOE

Court: TCA

Attorneys:

Suzanne E. Linboe, pro se Appellant.

Chadwick B. Tindell, Knoxville, Tennessee, for the Appellee City-County Federal Credit Union.

Judge: SWINEY

City-County Federal Credit Union (ćPlaintiffä) filed suit in the General Sessions Court seeking over $12,000 it claimed was owed on a VISA credit card it had issued to Suzanne E. Linboe (ćDefendantä). After Plaintiff was awarded a judgment by the General Sessions Court, Defendant appealed to the Circuit Court. Defendant filed a motion to dismiss and Plaintiff filed a motion for summary judgment. The Circuit Court denied Defendantās motion to dismiss and granted Plaintiffās motion for summary judgment, awarding Plaintiff a judgment for $15,323.10. Defendant appeals, and we affirm.

http://www.tba.org/tba_files/TCA/2005/linboes92805.pdf


TRACEY L. WILLIAMS OMOHUNDRO v. STEPHEN C. ARNSDORFF

Court: TCA

Attorneys:

Marvin Berke and Megan C. England, Chattanooga, Tennessee, for the Appellant, Stephen C. Arnsdorff

Jennifer H. Lawrence, Chattanooga, Tennessee, for the Appellee, Tracey Williams Omohundro

Judge: LEE

The issues in this case are whether the trial court erred in granting a non-custodial parent unsupervised visitation and in limiting the number of witnesses at trial. Father, the custodial parent of the minor child, contends that the trial courtās grant of unsupervised visitation to mother is not in the childās best interest and ignores evidence that mother abused the child. Father also argues that the trial court erred in refusing to hear witness testimony as to motherās abuse of the child and as to mother's mendacity. We find that the evidence supports a finding that unsupervised visitation is in the child's best interest and, therefore, the trial courtās award of unsupervised visitation to mother was not an abuse of discretion. We further find that the witness testimony excluded by the trial court was cumulative, and therefore the trial court did not abuse its discretion in excluding the witnesses. Accordingly, we affirm the judgment of the trial court and remand.

http://www.tba.org/tba_files/TCA/2005/omohundrot92805.pdf


TEXACO REFINING & MARKETING, INC. v. STATE OF TENNESSEE DEPARTMENT OF ENVIRONMENT AND CONSERVATION, DIVISIONOF UNDERGROUND STORAGE TANKS

Court: TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; andElizabeth P. McCarter, Senior Counsel, for the appellant, State of Tennessee Department of Environment and Conservation, Division of Underground Storage Tanks.

Howard E. Jarvis and Tony R. Dalton, Knoxville, Tennessee, for the appellee, Texaco Refining& Marketing, Inc.

Judge: CLEMENT

Texaco Refining & Marketing, Inc. applied for reimbursement of remediation expenses pursuantto the Tennessee Petroleum Underground Storage Tank Act. When Texacoās application was denied by the Tennessee Department of Environment and Conservation, Division ofUnderground Storage Tanks, Texaco filed this Declaratory Judgment action seeking a ruling that it was eligible for reimbursement from the storage tank fund. The Chancery Court grantedTexacoās motion for summary judgment from which the Department appeals. We reverse finding Texaco was not in substantial compliance with the Act because it failed to timely reportreleases of petroleum, and it had no vested right to reimbursement.

http://www.tba.org/tba_files/TCA/2005/texaco92805.pdf


I N RE ZAYLEN R.

Court: TCA

Attorneys:

Frank M. Fly and Aaron S. Guin, Murfreesboro, Tennessee, for the appellant, Seth H.

Amanda G. Crowell, Lebanon, Tennessee, for the appellee, Erin R.

Judge: KOCH

This appeal involves a dispute over the custody of a non-marital child. The childās fatherrequested the Wilson County Juvenile Court to designate him as the childās primary residential parent because of the motherās history of substance abuse. Following a bench trial, the juvenilecourt designated the mother as the childās primary residential parent and established a visitation schedule for the father. The court also ordered the father to pay child support and to maintaininsurance for the child. The father asserts on this appeal (1) that the juvenile courtās findings of fact were insufficient, (2) that the evidence does not support designating the mother as the childāsprimary residential parent, and (3) that the court based its decision on the outmoded tender years doctrine. We affirm the juvenile courtās order.

http://www.tba.org/tba_files/TCA/2005/zaylenr92805.pdf


STATE OF TENNESSEE v. DENNIS HODGES

Court: TCCA

Attorneys:

Robert Wilson Jones and Phyllis Aluko (on appeal) and William Robilio and Garland Erguden(at trial), Memphis, Tennessee, for the appellant, Dennis Hodges.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant AttorneyGeneral; William L. Gibbons, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Shelby County Criminal Court jury convicted the appellant, Dennis Hodges, of two counts ofvoluntary manslaughter. The trial court merged the first count into the second count and sentenced the appellant to fifteen years as a Range III, persistent offender. In this appeal, theappellant claims (1) that the evidence is insufficient to support the convictions, (2) that the State made improper closing argument, and (3) that his sentence is excessive. Upon review of therecord and the partiesā briefs, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/hodgesd92805.pdf


STATE OF TENNESSEE v. HERMAN PARHAM

Court: TCCA

Attorneys:

Robert L. Parris, Memphis, Tennessee, for the appellant, Herman Parham.

Paul G. Summers, Attorney General & Reporter; David E. Coenen, Assistant Attorney General;and Jennifer Nichols, James Lammey, and Tom Henderson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WADE

The defendant, Herman Parham, was convicted of two counts of second degree murder. The trialcourt merged the convictions and imposed a sentence of twenty-five years. In this appeal, the defendant asserts that the evidence is insufficient to support the conviction, that the trial courterred by instructing the jury on flight, and that the sentence is excessive. The judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/parhamh92805.pdf


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