8th Annual Labor & Employment Law Forum
April 7 - Nashville

The traditional CLE format will be pushed beyond the norm with a pair
of intriguing and informative panels. These panels will offer labor
and employment practitioners an invaluable opportunity to gain insight
that will directly and immediately improved their practice
Additionally, the forum will include an update on the new developments
at the National Labor Relations Board and recent case law involving
EEO issues.

Today's Opinions: March 17, 2005
Volume 11 — Number 051
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.
01 New Opinion(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

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


JUDITH CHRISTENBERRY v. STANLEY F. TIPTON, ET AL.

Court:TSC

Attorneys:                          

David L. Buuck, Knoxville, Tennessee, for the appellant, Judith
Christenberry.

J. Gregory O'Connor, Knoxville, Tennessee, for the appellee, State
Automobile Mutual Insurance Company.

William Arthur Simms, Knoxville, Tennessee, for the appellee, Stanley
F. Tipton.

Judge: BARKER

First Paragraph:

This case involves a claim for personal injuries sustained in an
automobile accident.  The accident  occurred when the vehicle in which
the plaintiff was a guest passenger was forced off the road by an
unidentified motorist.  The plaintiff asserted a claim for uninsured
motorist benefits under the provisions of an insurance policy issued
to her former husband and his company.  The issue on appeal is whether
the trial court erred in granting summary judgment for the defendant
insurance company after concluding the undisputed facts revealed that,
under the circumstances of this case, the plaintiff was not insured
under the policy.  The Court of Appeals affirmed the grant of summary
judgment.  Upon appeal to this Court, we conclude that the undisputed
facts in the record do not support the trial court's grant of summary
judgment for the insurance company.  After thoroughly reviewing the
record, we conclude that there is a genuine issue of material fact as
to whether the plaintiff was insured under the automobile insurance
policy at the time of the accident and therefore entitled to uninsured
motorist coverage.  Accordingly, we reverse the judgment of the Court
of Appeals and remand the case to the trial court for further
proceedings consistent with this opinion.

http://www.tba.org/tba_files/TSC/christenberryj.wpd

LARRY BRENT DARNELL v. CONNECTICUT INDEMNITY COMPANY

Court:TSC - Workers Comp Panel

Attorneys:                          

Aundreas Wattley-Smith, Nashville, Tennessee, for the
defendant/appellant, Connecticut Indemnity Company.

Paul A. Bates and Charles M. Bates, Lawrenceburg, Tennessee, for the
plaintiff/appellee, Larry Brent Darnell.

Judge: STOTTS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with the Tennessee Code Annotated section 50-6-225(e)(3) for hearing
and reporting to the Supreme Court of the findings of fact and
conclusions of law.  The issue in this case is whether the trial
court's award of permanent total disability is supported by a
preponderance of the evidence.  We find no error and affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TSC_WCP/darnelllarryb.wpd

JOYCE R. KROLL, and CIGNA HEALTHCARE, Intervenor v.CARADON CUSTOM
CONTROLS, INC., HEATCRAFT, INC., GENERAL ACCIDENT INSURANCE COMPANY OF
AMERICA, AND PACIFIC EMPLOYERS INSURANCE COMPANY.

Court:TSC - Workers Comp Panel

Attorneys:                          

Ann Buntin Steiner, Law Offices of Steiner and Steiner, Nashville, TN,
for the appellant, Joyce Kroll.

A. Scott Derrick, Gullet, Sanford, Robinson, and Martin, PLLC,
Nashville, TN, for the intervenor/appellant, CIGNA Healthcare

John R. Lewis,  Nashville, TN,  for the appellees, Heatcraft, Inc. and
Pacific Employers Insurance Co.

Diana Benson Burns, Mitchell & Mitchell, Murfreesboro, TN, for the
appellee, Caradon Custom Controls, Inc.

Judge: STAFFORD

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 of
findings of fact and conclusions of law.  The employee contends the
trial court erred (1) when it held that the employee's phlebitis did
not arise out of and in the scope of her employment, (2) in finding
that the employee's torn rotator cuff was not timely reported, and (3)
in finding that the employee's torn rotator cuff did not arise out of
and in the scope of her employment.  We affirm the trial court's
finding that the employee's phlebitis did not arise out of her
employment.  However, we reverse the trial court's findings that the
employee's rotator cuff was not timely reported and did not arise out
of and in the course of her employment.

http://www.tba.org/tba_files/TSC_WCP/krolljoycer.wpd

AUSTA LA VISTA, LLC and TAKE IT EASY, LLC, and BOARDWALK PROPERTY
OWNERS ASSOCIATION, v. MARINER'S POINTE INTERVAL OWNERS ASSOCIATION,
INC., and HENRY PHILLIPS, individually

Court:TCA

Attorneys:                          

Gary R. Patrick, Chattanooga, Tennessee, for appellant.

M. Taylor Harris, Nashville, Tennessee, for appellee, Mariner's Pointe
Interval Owners Association, Inc.

Judge: FRANKS

First Paragraph:

In this dispute, plaintiffs sought declaratory judgment as to use of
their lake by defendant, payment of fees and injunctive relief. 
Defendant counter-claimed for a declaratory judgment as to its use of
the lake, disputed any obligation to pay fees to the plaintiff, and
sought monetary damages and attorney's fees.  The Trial Court held
that plaintiffs' owned the lake and the master deed provided for
maintenance fee and membership fees, that defendant's members were
required to pay.  But if the defendants' members did not use the lake
they would not be required to pay the fees.  On appeal, we hold the
Court correctly found that the lake was an amenity and that a lake use
fee was required to be paid to plaintiffs pursuant to the master deed
and exhibits.  But the Court erred in holding that defendant owners
could choose not to use the lake and not pay the fees.  We otherwise
affirm the Court's rulings on the issues raised on appeal.

http://www.tba.org/tba_files/TCA/austalavista.wpd

BEATRICE HARMON MONTGOMERY v. TERRY LANE MONTGOMERY, ET AL.

Court:TCA

Attorneys:                          

Thomas C. Jessee, Johnson City, Tennessee, for the Appellant Terry
Lane Montgomery.

David S. Haynes, Bristol, Tennessee, for the Appellee Beatrice Harmon
Montgomery.

Mark D. Edmonds, Jonesborough, Tennessee, for the Appellee Brian
Montgomery.

Judge: SWINEY

First Paragraph:

While Beatrice Harmon Montgomery ("Plaintiff") and Terry Lane
Montgomery ("Defendant") never married, they lived together for many
years beginning in 1969.  Plaintiff and Defendant had one child, Brian
Montgomery.  During their relationship, Plaintiff and Defendant
accumulated substantial assets and operated several businesses. 
Plaintiff filed this lawsuit seeking dissolution of her implied
business partnership with Defendant.  Brian Montgomery intervened
claiming he also was a partner in two of the business ventures.  The
Trial Court concluded that Plaintiff and Defendant were equal partners
in all of their business pursuits, and that Brian also was a partner
in two of them.  It is this ruling that forms the basis for most of
the numerous issues raised on appeal.  We reverse in part, vacate in
part, affirm in part as modified, and remand for further proceedings
consistent with this Opinion.

http://www.tba.org/tba_files/TCA/montgomerybeh.wpd

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. RDV

Court:TCA

Attorneys:                          

David A. Stuart, Clinton, Tennessee, for appellant.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl
Dimond, Senior Counsel, Nashville, Tennessee, for appellee.

Judge: FRANKS

First Paragraph:

In this action to terminate father's parental rights, the Trial Court
refused to appoint counsel for father, despite his claim of indigence.
 On appeal, we vacate the Judgment and remand for further hearing on
the issue of indigency.

http://www.tba.org/tba_files/TCA/rdv.wpd

STATE OF TENNESSEE v. RONALD ALLEN

Court:TCCA

Attorneys:                          

Richard A. Spivey, Kingsport, Tennessee (on appeal), and Ivan Lilly,
Assistant Public Defender (at trial), for the appellant, Ronald Allen.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner,
Assistant Attorney General; Joe Crumley, District Attorney General;
and Janet Hardin, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Ronald Allen, was convicted of rape of a child.  The
trial court imposed a sentence of twenty-five years.  In this appeal,
he asserts (1) that the evidence is insufficient; (2) that the trial
court erred by permitting the state to ask leading questions of the
minor victim; (3) that the sentence is excessive under the terms of
the 1989 Sentencing Act; and (4) that the sentence must be modified
under the terms of Blakely v. Washington, 524 U.S. ___, 124 S. Ct.
2351 (2004).  The sentence is modified to twenty-three years. 
Otherwise, the judgment is affirmed.

http://www.tba.org/tba_files/TCCA/allenronald.wpd

STATE OF TENNESSEE v. ANTHONY LEE HILL 

Court:TCCA

Attorneys:                          

John E. Appman, Jamestown, Tennessee, Attorney for the Appellant,
Anthony Lee Hill.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Wm. Paul Phillips, District Attorney
General; John W. Galloway, Jr., Deputy District Attorney General; and
Sarah H. West Davis, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Anthony Lee Hill, was convicted by a Scott County jury
of nine counts of sexual battery and received an effective two-year
split confinement sentence with service of six months in the county
jail.  On appeal, Hill raises two issues for our review: (1) whether
the evidence is sufficient to support the nine convictions and (2)
whether the statutory language of the phrase "can reasonably be
construed as being for the purpose of sexual arousal or gratification"
improperly lessens the State's burden of proof and is, thus,
unconstitutional.   After review, the judgments of conviction are
affirmed.

http://www.tba.org/tba_files/TCCA/hillanthonylee.wpd

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi

TBALink HomeContact UsPageFinderWhat's NewHelp

© Copyright 2005 Tennessee Bar Association