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


Court: TWCA


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 Corporation.

Judge: INMAN

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.



Court: TCA


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.



Court: TCA


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.



Court: TCA


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.

Court: TCA


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 full paragraph).


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.



Court: TCA


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.



Court: TCCA


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.

Judge: WITT

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
Election 2006
TBA Member Services

Legal News
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
Election 2006
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
If you completed a federal student loan consolidation application prior to July 1, there is still time to lock in an interest rate as low as 5.75% APR. Borrowers have until Aug. 22 to return applications and qualify for the lower rate. But even if you did not complete your application prior to July 1, consolidation is still a great option. The TBA has partnered with SunTrust Bank to bring you some of the most competitive borrower benefits. Call 888-403-5027 and mention the Tennessee Bar Association or
visit the TBA Web site for more information

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