Opinion FlashNovember 20, 2002
Volume 8 Number 205
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.This Issue (IN THIS ORDER):
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Howard H. Vogel
LARRY THRASHER v. CARRIER CORPORATION, et al. Court:TSC - Workers Comp Panel Attorneys: B. Timothy Pirtle, McMinnville, Tennessee, for the appellants, Carrier Corporation and Insurance Company of the State of Pennsylvania. Donald J. Ray, Tullahoma, Tennessee, for the appellee, Larry Thrasher. Judge: INMAN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann.S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff suffers from plantar fasciitis in both feet. Causation was vigorously contested. The trial judge found that the plaintiff's condition was job-related. A podiatrist opined that the plaintiff retained a 29 percent impairment to both feet. The trial judge "assessed a permanent, partial disability of 100 percent to the two feet of the plaintiff," notwithstanding that the plaintiff had returned to his pre- injury job, "substantially improved," and in his words, "doing good," with no complaints other than first-step pain upon arising. The finding of 100 percent is excessive and is reduced to 40 percent. http://www.tba.org/tba_files/TSC_WCP/thrasherlarry.wpd
CYNTHIA L. URSERY v. LIBERTY MUTUAL INSURANCE GROUP, et al. Court:TSC - Workers Comp Panel Attorneys: David T. Hooper, Brentwood, Tennessee, for the appellants, Liberty Mutual Insurance Group and United Parcel Service, Inc. H. Tom Kittrell, Jr., Nashville, Tennessee, for the appellee, Cynthia Ursery. Judge: WEATHERFORD First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case, the employer appeals the trial court's award of 80% permanent partial disability to the employee where 1) the medical proof established a 5% anatomical impairment to both elbows; and 2) a vocational expert gave the employee a 90% vocational disability rating based on loss of access to 90.4% of the jobs available to her prior to her injury due to her permanent medical restrictions. We find that the evidence does not preponderate against the trial court's findings, and therefore the award is not excessive. We affirm the judgment of the trial court in all respects. http://www.tba.org/tba_files/TSC_WCP/urserycynthial.wpd
CITY OF COOKEVILLE, TENNESSEE, et al. v. WILLIAM M. HUMPHREY, M.D., et al. Court:TCA Attorneys: William H. West, Nashville, Tennessee and John Acuff, Cookeville, Tennessee, for the appellants, William M. Humphrey, M.D., John P. Limbacher, M.D., Daniel F. Coonce, M.D., George O. Mead, M.D., and Putnam Radiology, P.C. Andree Sophia Blumstein, Nashville, Tennessee, for the appellees, City of Cookeville, Tennessee, by and through Cookeville Regional Medical Center, and Cookeville Regional Medical Center Authority. William B. Hubbard, Nashville, Tennessee, for amicus curiae, Tennessee Hospital Association. Andrew Yarnell Beatty, Nashville, Tennessee, for amicus curiae, Tennessee Medical Association. David L. Steed, Nashville, Tennessee, for amicus curiae, Medical Staff of Cookeville Regional Medical Center. Judge: CAIN First Paragraph: This is a declaratory judgment action wherein a private act hospital authority, established pursuant to Tennessee Code Annotated sections 7-57-601 to 604, seeks a declaration that it has the authority to enter into an exclusive contract for professional radiology services, thus limiting the use of imaging equipment and hospital support staff situated in the hospital to such exclusive providers of radiology services. Defendants are four competent radiologists, presently on the medical staff of the hospital, who have also established Premier Diagnostic Imaging Center, LLC to provide outpatient radiology services independent of the hospital. The exclusive contract sought by the hospital would effectively "close" use of the hospital imaging facilities and support staff to all radiologists except the providers named in the exclusive contract. The trial court declared that the hospital was authorized to enter into such an exclusive provider contract, and we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/cityofcookeville.wpd
PATRICIA PAULETTE FULGHUM GRICE v. LARRY RANDOLPH GRICE Court:TCA Attorneys: G. Sumner R. Bouldin, Jr., Murfreesboro, TN, for Appellant Clifford K. McGown, Jr., Waverly, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a divorce proceeding initiated by the wife. The trial court, holding that both parties contributed to the demise of the marriage, granted the parties a divorce. The trial court then granted the wife rehabilitative alimony for a period of eighteen months, as well as alimony in solido, but denied the wife's request for alimony in futuro. The primary issue on appeal is whether the trial court erred in granting the wife rehabilitative alimony as opposed to alimony in futuro. For the following reasons, we affirm, as modified. http://www.tba.org/tba_files/TCA/gricepp.wpd
JUANITA SWETT v. JOE BINKLEY, JR. Court:TCA Attorneys: Charles Galbreath, Nashville, Tennessee, for the appellant, Juanita Swett. Joe Binkley, Jr., Nashville, Tennessee, Pro Se. Judge: CANTRELL First Paragraph: A divorce client sued her attorney on an alleged promise to reimburse all prepaid fees and expenses at the conclusion of the divorce proceeding. The trial judge held that the claim was barred by the one-year statute of limitations in Tenn. Code Ann. S 28-3-104(a)(2), and granted the attorney summary judgment. On appeal the client asserts (1) that the six-year contract statute of limitations applies, and (2) in any event, the action was commenced within a year of the accrual of the cause of action. We affirm the trial court. http://www.tba.org/tba_files/TCA/swettj.wpd
GARY EUGENE ALDRIDGE v. STATE OF TENNESSEE Court:TCCA Attorneys: Edward S. Ryan, Nashville, Tennessee, for the appellant, Gary Eugene Aldridge. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; and Ronald L. Davis, District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Gary Eugene Aldridge, was convicted by a jury in the Circuit Court of Hickman County of one count of aggravated kidnapping, two counts of aggravated rape, one count of rape, and two counts of simple assault. The trial court sentenced the petitioner to an effective sentence of sixty years incarceration in the Tennessee Department of Correction, followed by an effective consecutive sentence of seventeen months and twenty-nine days in the local workhouse. After an unsuccessful appeal of his convictions, the petitioner timely filed a petition for post-conviction relief, alleging, among other grounds, ineffective assistance of counsel. The petitioner now brings this appeal challenging the post-conviction court's denial of his petition. After reviewing the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/aldridgege.wpd
JERRY NEAL CARPENTER V. STATE OF TENNESSEE Court:TCCA Attorneys: Mark E. Stephens, District Public Defender, John Halstead, Assistant Public Defender; Knoxville, Tennessee, for the appellant, Jerry Neal Carpenter. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney general; Randall E. Nichols, District Attorney General, and Marsha L. K. Selecman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TATUM First Paragraph: The Petitioner Jerry Neal Carpenter appeals from the order of Knox County Circuit Court denying his petition for post-conviction relief. The post-conviction court dismissed Carpenter's petition, finding that the only claim alleged, i.e., the ineffectiveness of counsel, was without merit. In this appeal as of right, Petitioner challenges the lower court's ruling. We affirm the judgment of the post-conviction court. All members of the panel are sitting by designation. http://www.tba.org/tba_files/TCCA/carpenterj.wpd
JESSE CARTER v. STATE OF TENNESSEE Court:TCCA Attorneys: Hershell D. Koger, Pulaski, Tennessee, for the appellant, Jesse Carter. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; W. Michael McCown, District Attorney General; and Michael David Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner appeals the denial of his post-conviction relief petition. He argues: (1) his trial counsel was ineffective in advising him regarding the sentence agreement in which he waived his right to appeal; and (2) he did not knowingly and voluntarily waive his right to appeal. We conclude that although the post-conviction court erroneously stated that the uncorroborated testimony of the post-conviction petitioner "should be summarily struck," the post-conviction court, nevertheless, made proper and adequate findings which support the denial of relief. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/carterjesse.wpd
STATE OF TENNESSEE v. ANTHONY R. PARHAM Court:TCCA Attorneys: Cynthia M. Fort (on appeal) and Monte D. Watkins (at trial), Nashville, Tennessee, for the appellant, Anthony R. Parham. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Katrin Novak Miller and Christopher R. Buford, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Davidson County jury convicted the defendant, Anthony R. Parham, of sexual battery. In this appeal as of right, the defendant raises the issue of whether the evidence was sufficient to support the conviction for sexual battery. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/parham.wpd
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