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Howard H. Vogel
JAMES R. WHITED v. NISSAN MOTOR CORPORATION
Richard A. House and Larry Williams, Nashville, Tennessee, for Appellant, James A. Whited.
Kitty Boyte and Kenneth M. Switzer, Nashville, Tennessee, for the Appellee, Nissan Motor
This workers' compensation appeal has been referred to the Special Workers' Compensation
Appeals Panel of the Tennessee Supreme Court 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 1999 the Employee injured his cervical spine and was awarded benefits,
including lifetime medical benefits. During the succeeding years he experienced various
problems with his neck. In May 2003, the Employee struck a bay pole while operating a tow
motor and claims an injury to his neck as a result of this incident. The treating neurosurgeon, Dr.
Zellem, testified that the Employee suffered no new injury. An independent medical examiner,
Dr. George Gaw, testified that the tow motor incident was a new injury. The trial judge accepted
the opinion of Dr. Zellem and dismissed the Employee's complaint. We affirm the judgment of
the trial judge.
STATE OF TENNESSEE, ex rel., KAREN LEIGH CHUNN v. DONNIE LEE COGGINS
Glenwood P. Roane, Sr., Memphis, Tennessee for the appellant, Donnie Lee Coggins.
Paul G. Summers, Attorney General and Reporter and Juan G. Villasenor, Assistant Attorney General, for the appellee, State of Tennessee, ex. rel., Karen Leigh Chunn.
This appeal is from an order of the trial court denying Appellant's motion for a continuance. We affirm.
TINA KIRCHNER KAUFFMAN v. CHRISTIAN ANDREW MONTZ
David H. Hornik of Nashville, Tennessee for Appellant, Tina Kirchner Kauffman.
Stephanie Hatchett of Nashville, Tennessee for Appellee, Christian Andrew Montz.
This is a post-divorce, child custody case. The order appealed was filed in the trial court January 10,
2005. Mother/Appellant filed her notice of appeal on February 9, 2005, which was timely. On
February 10, 2005, thirty one days following the entry of the final judgment in the case,
Father/Appellee filed a Tenn.R.Civ.P. 60.02 motion, and on May 11, 2005, filed an amended Rule
60.02 motion. Primarily, the motion and the amended motion rely upon post-judgment facts, but in
effect seek an amendment of the trial court's January 10, 2005 order. By order filed July 29, 2005
and amended order filed August 19, 2005, the trial court ruled upon Father's Rule 60.02 motion.
Because the case was in this Court on appeal, the trial court had no jurisdiction to entertain the Rule
60.02 motion without a remand from this Court. Therefore, the trial court's order and amended order
on the Rule 60.02 motion are vacated. The issues presented on appeal by Mother/Appellant are
matters ruled on by the trial court on the Rule 60.02 motion. Therefore, there are no issues that are
from the appealed order, and the order appealed is affirmed as modified.
MICHAEL MOSBY v. ROLAND COLSON, ET AL.
Michael Mosby, Henning, TN, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael
B. Schwegler and Kellena Baker, Assistant Attorney General, Nashville, TN, for Appellees.
The plaintiff, an inmate in the custody of the Tennessee Department of Correction, filed a pro se
lawsuit against numerous prison officials and personnel of the department pursuant to 42 U.S.C. Section
1983 in the Circuit Court of Lauderdale County, Tennessee. Therein, the plaintiff complained that
prison officials terminated his prison job in retaliation for his filing numerous grievances against
them. The plaintiff alleged violations of the United States Constitution, Tennessee statutes, and
various policies of the Tennessee Department of Correction. In response, the attorney general, acting
on behalf of the defendants, filed a motion to dismiss for failure to state a claim for which relief
could be granted. In turn, the plaintiff filed what amount to numerous amended complaints to allege
new allegations or to add additional defendants. The trial court subsequently granted the defendants'
motion to dismiss and denied the plaintiff leave to amend his complaint. The trial court also held
that the plaintiff could proceed in forma pauperis on appeal. On appeal, the plaintiff asks this Court
to review whether the trial court erred in (1) granting the defendants' motion to dismiss, (2) denying
the plaintiff leave to amend his complaint, (3) denying the plaintiff's request for injunctive relief.
The plaintiff also asks this Court to determine whether he should be allowed to proceed in forma
pauperis despite the fact that the federal courts previously dismissed three or more of his lawsuits
for being frivolous or failing to state a claim. We affirm the trial court's decisions to grant the
defendants' motion to dismiss and to deny the plaintiff's request for injunctive relief. While the
plaintiff was entitled to file an amended complaint without leave of court, we find no error in the trial
court's refusal to allow the plaintiff to submit his amended complaints. Finally, we hold that his
lawsuit should have been dismissed at the trial level pursuant to section 41-21-801 et seq. of the
Tennessee Code, which governs lawsuits filed by inmates. Accordingly, we find that the present
appeal is so utterly lacking in merit that we remand this case to the trial court for the assessment of
all costs, expenses, and fees associated with this lawsuit against the plaintiff in accordance with
Section 41-21-801 et seq. of the Tennessee Code.
DIANE V. VANNUCCI, Individually, and as Executrix of the Estate of Julie Vannucci Barney, Deceased, ET AL. v. MEMPHIS OBSTETRICS AND GYNECOLOGICAL ASSOCIATION, P.C., ET AL. AND DIANE V. VANNUCCI, Individually, and as Executrix of the Estate of Julie Vannucci Barney, Deceased and DIANE V. VANNUCCI for the use and benefit of the heirs at law of Julie Vannucci Barney, Dec'd., and DIANE V. VANNUCCI, for the use and benefit of ROBERT ALLEN BARNEY, III, A Minor v. W. B. MOSS, INDIVIDUALLY, and W. B. MOSS, M.D., P.C.
Teresa J. Sigmon, Claire M. Cissell, William D. Domico, W. Bradley Gilmer, Memphis, TN, for Appellants.
Explanation of Correction:
The opinion has been changed to correct the spelling of "Canon" on page 8 (second line of the fourth paragraph), page 10 (next to the last line of the second
paragraph) and page 12 (first, third and sixth lines of third
Following the untimely diagnosis of her cervical cancer, the plaintiff filed a medical malpractice
suit against several doctors and the laboratory that interpreted her test results. In addition to her
individual suit, the plaintiff sued on behalf of her minor son for loss of consortium. Shortly after
filing the lawsuit, the plaintiff died. The executrix of her estate was substituted as a plaintiff in
the case. Some of the named defendants sought to enter into a settlement with the minor, who
was the only beneficiary of any proceeds to be derived from the suit. Pursuant to Section 34-1-121 of the Tennessee Code, the settling parties petitioned the trial court to approve the settlement. At the hearing, the trial court excluded the non-settling defendants from participating
in the hearing. The trial court subsequently entered an order approving the settlement, but the
court sealed the contents of the settlement. Thereafter, the non-settling defendants moved the
trial court judge to recuse herself, arguing that she could no longer impartially preside over the
remainder of the case by virtue of having heard disputed facts during the ex parte settlement
hearing. When the trial court denied their motion, the non-settling defendants applied for and
received the trial court's permission to seek an interlocutory appeal to this Court. We decided to
grant the non-settling defendants' application for an interlocutory appeal to address the narrow
issue of whether the trial court erred when it denied the motion to recuse. After reviewing the
record, we affirm the trial court's decision to deny the Appellants' motion for recusal.
RAY ZUZINEC v. FRANK BARRETT, ET AL.
Jennifer L. Chadwell, Knoxville, Tennessee, for the Appellant, Frank Barrett, individually and d/b/a Barrett Company.
F. Scott Milligan, Knoxville, Tennessee, for the Appellee, Ray Zuzinec.
Ray Zuzinec (Plaintiff) purchased a house that had recently had the roof replaced, and that roof
still was under warranty. The roof was purchased from and installed by the Barrett Company at
a total cost of $7,865.00. After shingles began to fall off the roof periodically, Barrett Company
patched the roof at no cost to Plaintiff. Barrett Company refused to replace the roof even after
one of Barrett Company's employees allegedly told Plaintiff that the entire roof was installed
improperly and needed to be replaced. Plaintiff eventually had the roof recovered at a total cost
of $4,000.00. Plaintiff sued Frank Barrett individually and d/b/a the Barrett Company. The Trial
Court awarded Plaintiff a judgment for $3,100.00. Defendant appeals. We affirm the judgment
of the Trial Court as modified.
STATE OF TENNESSEE v. CINDY MASSENGILL
Tom Eikenberry, Knoxville, Tennessee, for the Appellant, Cindy Massengill.
Paul G. Summers, Attorney General & Reporter; Cameron L. Hyder, Assistant Attorney General;
William Paul Phillips, District Attorney General; and Amanda Cox, Assistant District Attorney
General, for the Appellee, State of Tennessee.
The defendant, Cindy Massengill, appeals from the Union County Criminal Court's denial of
alternative sentencing. The record supports the court's order, and we affirm.
| Legal News
TBA Member Services
|Judicial Selection Commission announces special meeting
|The Tennessee Judicial Selection Commission will meet next Tuesday, Aug. 22 at 1:30 p.m. in the 6th floor conference room of the Administrative Office of the Courts. The AOC is located at 511 Union Street in Nashville. An agenda for the meeting was not available at press time.
|Knox commission to choose interim law director
|The local election season may have ended, but the campaigning has not. Two men are vying to replace Knox County Law Director Mike Moyers, who takes office as chancellor on Sept. 1. Attorney Bill Lockett of Kennerly, Montgomery and Finley and deputy law director John Owings have expressed interest in the position, reports Knoxville's WATE Newschannel 6.
|March briefly takes stand
|Perry March briefly took the stand today while the jury was out of the room to explain why he won't testify and why his son Sammy will not be testifying despite having been subpoenaed by the defense. The parties agreed instead that the jury would see a television interview Sammy gave to a reporter in Mexico when he was nine years old. Earlier this afternoon, the prosecution rested its case and the defense began calling its own witnesses.
|Read about developments in the Tennessean
|Legal aid group enjoys lavish meals, trips
|The federal program that provides legal help to poor Americans turns away half of its applicants for lack of resources, but executives of the Legal Services Corporation enjoy expensive meals, chauffeur-driven cars and foreign trips, according to an investigation by the Associated Press.
|Read the AP's findings in the Maryville Daily Times
|Judge orders voice samples in Coke case
|An Atlanta judge has ordered three people charged in the theft of trade secrets from The Coca-Cola Co. to turn over voice samples to allow the government to try to match them with recorded telephone conversations. The three were indicted in July on federal conspiracy charges of stealing new product samples and confidential documents from Coke and trying to sell them to PepsiCo Inc.
|The AP has this report in the Kingsport Times News
|Four sue over vote outcome
|Four Democratic candidates who narrowly lost races for court clerk positions in Shelby County have filed suit disputing the election results. They are asking that the Aug. 3 election results be declared void because of irregularities and that new elections be held in November. The four are: probate court clerk candidate Sondra Becton, Shelby County clerk candidate Otis Jackson, criminal court clerk candidate Vernon Johnson and juvenile court clerk candidate Shep Wilbun.
|Read more in the Commercial Appeal
|Unsuccessful candidate files suit
|An unsuccessful write-in candidate in Knoxville's Aug. 3 local election is suing to remove the winner and enforce term limits approved by Knox County voters. In a lawsuit filed in Chancery Court, Nick Della Volpe asked the court to remove Commissioner Diane Jordan from office. No action is likely until the Supreme Court rules on challenges to the Knox County charter, which includes the term limits provision.
|The News Sentinel has the story
|TBA Member Services
|Last chance for low loan consolidation rate
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