CLE Webcast: Contracts to be Enforced as Written -- or Not!

Knoxville attorney Francis L. Lloyd Jr. of Kramer Rayson LLP takes a new look at this Tennessee Code provision and at contractual language drafted in recognition of it, and perhaps amendment of the former, in the hope of rendering written "no oral modification" clauses truly enforceable as written. Register or find out more about Thursday's noon (CDT) program.
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Court: TWCA


Richard Lane Moore, Cookeville, Tennessee for the appellant, TRW Commercial Steering Division.

Debbie C. Holliman and E. Guy Holliman, Carthage, Tennessee, for the appellee, Dew Roy Neal.


This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court awarded 50 percent permanent partial disability for loss of hearing in both ears to the employee, Dew Roy Neal. The employer, TRW Commercial Steering Division (TRW), appealed, contending that the claim was barred by the statute of limitations; that the trial court erred in excluding excerpts from Mr. Neal's discovery deposition from evidence; that the trial court erred in apportioning the award to a scheduled member, rather than the body as a whole; that the amount of the award was excessive; and that the trial court did not have jurisdiction over the subject matter of the case. We hold that the award should have been apportioned to the body as a whole. As a result, Tennessee Code Annotated section 50-6-241(a)(1) limits the award to two and one-half times the impairment rating. The award is therefore modified to 5 percent permanent partial disability to the body as a whole. We also find that the trial court erred in excluding the deposition excerpts, but that the error was harmless. The judgment is affirmed in all other respects.

CORRECTION on pages 7,8,14,15,16,19

Court: TCA


James G. Thomas, William T. Ramsey, Nashville, Tennessee; Andrew Lampros, Atlanta, Georgia, for the appellant, Andrew H. Blackburn.

Christopher W. Cardwell, Mary Taylor Gallagher, Nashville, Tennessee, for the appellee, CSX Transportation, Inc.


We granted an application for extraordinary appeal to determine whether the trial court erred when it granted a new trial in this case. The trial court granted the railroad a new trial based on insufficiency of the evidence, thereby setting aside an almost three million dollar verdict for plaintiff in this case under the Federal Employers' Liability Act ("FELA"). Since we find that the federal standard requiring the verdict to be against the "clear weight" of the evidence governs and that the trial court erroneously applied the Tennessee standard, we vacate the judgment granting a new trial and remand the case for consideration of the motion for new trial in accordance with this opinion.


Court: TCA


Mitchell A. Byrd, Chattanooga, Tennessee, for the Appellant, David C. Pippin, Jr.

Linda B. Hall, Soddy Daisy, Tennessee, for the Appellee, Tanya Gay Pippin (Yearsley).


Tanya Gay Pippin ("Mother") and David C. Pippin ("Father") were divorced in 2004 following a twelve year marriage. Mother was designated the primary residential parent for the parties' two children. In June of 2005, Father filed a petition seeking to change custody. The petition was resolved by agreement following mediation and a revised permanent parenting plan and accompanying order were entered in January of 2006. Mother remained the children's primary residential parent. In December of 2006, Father filed a second petition for change of custody. The Trial Court determined that Father had failed to establish that a material change in circumstances had occurred after entry of the January 2006 order. The primary reason for the Trial Court's ruling was that all but one of Father's alleged changes in circumstance either were known or reasonably anticipated when the January 2006 order was entered, and the one new change did not constitute a material change for purposes of changing custody. Father appeals raising various issues. We affirm.


Court: TCA


Jennifer L. Evans, Springfield, TN, for Appellant.

No appearance by Appellee.


This appeal involves a petition for custody of two minor children. The juvenile court named the father primary residential parentwe affirm.

CORRECTION: Judge Kurtz's middle initial changed from J. to C.

Court: TCA


William D. Leader, Jr., and John B. Carlson, Nashville, Tennessee, for the appellant, James G. Thomas, Jr., brother and next of kin of Karen G. Thomas, deceased.

C. J. Gideon, Jr., and Margaret Moore, Nashville, Tennessee, for the appellee, Crockett Hospital, LLC.


The issue on appeal in this medical malpractice action is whether the hospital is vicariously liable for the acts or omissions of an emergency room physician. The trial court summarily dismissed all claims against the hospital finding that it was not vicariously liable for the conduct of the emergency room physician because he was neither its actual or apparent agent. We find the trial court correctly granted summary judgment to the hospital on the issue of actual agency because there are no material facts in dispute and the hospital is entitled to summary judgment on the issue of actual agency as a matter of law. We, however, find that material facts are in dispute concerning whether the hospital held itself out to the public as providing medical services; whether the plaintiff looked to the hospital rather than to the individual physician to perform those services; whether the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee; and, if so, whether the hospital provided meaningful notice to the plaintiff at the time of admission that the emergency room physician was not its agent. Accordingly, we have determined the hospital was not entitled to summary judgment on the issue of apparent agency. Therefore, we remand to the trial court the issue of apparent agency for further proceedings consistent with this opinion.


Court: TCA


Thomas H. Miller, Nashville, Tennessee, for the appellant, Brittany Renee Chambers.

C. Michael Cardwell, Nashville, Tennessee, for the appellees, Patti and James Weidman.

Gayle Dimmick, Nashville, Tennessee, Guardian Ad Litem.


Mother appeals the trial court's decision terminating her parental rights, arguing that the trial court erred in finding that she abandoned the children and in finding that the conditions that led to the children's removal from her custody persisted and were not likely to be remedied at an early date. Because we have concluded that the petitioners failed to provide sufficient notice regarding the abandonment grounds and did not present clear and convincing evidence of the other ground for termination, we reverse the decision of the trial court.


Court: TCCA


Robin Ruben Flores, Chattanooga, Tennessee, for the Appellant, Jason Lebron Rogers.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Leslie E. Price, Assistant Attorney General; William H. Cox, III, District Attorney General; M. Neal Pinkston and Rachel L. Winfrey, Assistant District Attorneys General, for the Appellee, State of Tennessee.


A Hamilton County jury found the Defendant, Jason Lebron Rogers, guilty of facilitation to commit first degree felony murder and especially aggravated robbery. The trial court sentenced him to twenty-three years for the facilitation conviction and twenty-four years for the especially aggravated robbery conviction and ordered the sentences to run concurrently. On appeal, the Defendant contends: (1) the trial court did not properly rule on his motion for a directed verdict; (2) the evidence is insufficient to sustain his conviction of facilitation to commit first degree felony murder; (3) the trial court should have declared a mistrial based upon a biased juror; (4) the trial court committed several evidentiary errors; (5) the State's closing argument constituted prosecutorial misconduct; and (6) the trial court erred in sentencing the Defendant when it applied two enhancement factors. We affirm the Defendant's convictions. With regard to sentencing, we conclude that, pursuant to Blakely v. Washington, 542 U.S. 296 (2004), the trial court erred when it applied two enhancement factors. We, therefore, reduce the Defendant's sentences from twenty-four and twenty-three years respectively to twenty-one years, and we remand to the trial court for entry of amended judgments reflecting the modified sentences.

Clerks Fees in Department of Human Services Child Support Enforcement Actions

TN Attorney General Opinions

Date: 2008-06-04

Opinion Number: 08-115


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