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TBALink Opinion-Flash
September 05, 1996 -- Volume #2 -- Number #79
Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.
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BLANCHE BILBREY AND CECIL ASBERRY, v. VESTEL SMITHERS, Court:TSC For Plaintiffs-Appellees: For Defendant-Appellant: Phillips M. Smalling Onnie L. Winebarger Byrdstown Byrdstown Judge: REID, J. First Paragraph: This case presents for review the right of a child born out of wedlock to inherit from his natural father who died prior to the amendment of Tenn. Code Ann. 31-2-105(a)(2)(B) (Supp. 1995) in 1978. The record supports the finding of paternity, but the claimant failed to establish the right to inherit as required by the statute; however, the appellant is estopped to deny the claimant's asserted interest in the decedent father's real property. URL:http://www.tba.org/tba_files/TSC/BILBREYB.OPN.WP6
CAPE FEAR PAGING COMPANY, d/b/a CUE PAGING OF TENNESSEE
AND KENTUCKY,
v.
JOE B. HUDDLESTON, COMMISSIONER OF REVENUE, STATE OF TENNESSEE,,
Court:TSC
For Plaintiff-Appellant: For Defendant-Appellee:
C. Michael Norton Charles W. Burson
Janet P. Sparkman Attorney General & Reporter
Wyatt, Tarrant & Combs Nashville
Nashville
Michael E. Moore
Solicitor General
Nashville
Charles L. Lewis
Deputy Attorney General
Nashville
Judge: REID, J.
First Paragraph:
This case presents for review the decision of the Court of Appeals,
affirming the judgment of the trial court, which denied the appellant
taxpayer's claim for the refund of sales taxes. This Court finds that
the taxpayer is entitled to the refund claimed. The Court of Appeals
is reversed.
URL:http://www.tba.org/tba_files/TSC/CAPEFEAR.OPN.WP6
GENEVA COFFEY,
v.
FAYETTE TUBULAR PRODUCTS, LIVINGSTON DIVISION, DANAHER CORPORATION
Court:TSC
For Plaintiff-Appellant: For Defendant-Appellee:
Ernest C. Onks, Sr. W. Kerby Bowling
Cookeville, Tennessee W. Kerby Bowling II
Joseph M. Crout
Ronald Thurman M.V. Tichenor
Craig P. Fickling Memphis, Tennessee
Ronald Thurman & Associates
Cookeville, Tennessee
Judge: DROWOTA, J.
First Paragraph:
In this retaliatory discharge action, the plaintiff, Geneva Coffey,
appeals from two aspects of the Court of Appeals judgment: (1) its
suggested remittance of the punitive damage award from $500,000 to
$150,000; and (2) its disallowance of the $20,000 in front pay
awarded by the trial court. After a careful consideration of the law
and the record in this case, we conclude that the Court of Appeals
erred in both respects. Therefore, we reverse that courts judgment,
and reinstate, in its entirety, the judgment rendered by the trial
court.
URL:http://www.tba.org/tba_files/TSC/COFFEYG.OPN.WP6
DANNY RAY HARRELL, v. THE MINNESOTA MUTUAL LIFE INSURANCE COMPANY,
Court:TSC
For Appellant: For Appellee:
Rufus W. Beamer, Jr. Arthur G. Seymour, Jr.
Knoxville, Tennessee Robert L. Kahn
FRANTZ, McCONNELL & SEYMOUR
Knoxville, Tennessee
Judge: ANDERSON, J
First Paragraph:
We granted this appeal to determine whether we should retain "the
Distretti Rule" adopted by this Court sixty-seven years ago. The rule
provides that before a death will be considered accidental under the
terms of an insurance contract, the means, as well as the result, must
be involuntary, unexpected, and unusual.
URL:http://www.tba.org/tba_files/TSC/HARRELLD.OPN.WP6
OLD HICKORY ENGINEERING & MACHINE COMPANY, INC.,
v.
PHILLIP HENRY AND JEFF SHEPARD,
Court:TSC
For Plaintiff-Appellee: For Defendants-Appellants:
John M. Cannon Joseph Y. Longmire, Jr. n
Cannon, Cannon & Cooper, Jones, Longmire & Sindle
P.C. Goodlettsville
Goodlettsville
Judge: REID, J.
First Paragraph:
This case presents for review the decision of the Court of Appeals
reversing the trial court's dismissal of the complaint. The Court of
Appeals held that the complaint, which was signed only by the
non-lawyer president of the corporate plaintiff, was "not void" and
that the subsequent appearance of a lawyer on behalf of the plaintiff
"corrected the defect" in the pleading. That court ordered that the
suit be allowed to proceed to trial even though the complaint was
filed on the last day permitted by the savings statute, Tenn. Code
Ann. 28-1-105 (Supp. 1995). The decision by the Court of Appeals is
reversed.
URL:http://www.tba.org/tba_files/TSC/HENRYP.OPN.WP6
FRANK L. WHITE, v. HUBERT A. McBRIDE, EXECUTOR
Court:TSC
For Plaintiff-Appellant: For Defendant-Appellee:
Frank J. Glankler, Jr. James T. Bland, Jr.
Robert L. Hutton Memphis, Tennessee
Glankler Brown
Memphis, Tennessee
Judge: DROWOTA, J.
First Paragraph:
This case presents the question of whether the plaintiff, attorney
Frank White, may recover attorneys fees from the estate of Kasper
McGrory. This broad question may, in turn, be divided into two
specific subissues: (1) whether the contingency fee contract between
White and McGrory is clearly excessive under Disciplinary Rule 2-106
of the Code of Professional Responsibility, Tenn. Sup. Ct. R. 8, and
is, thus, unenforceable; and (2) if the contingency fee contract is
unenforceable, whether White may, nevertheless, recover attorneys
fees on a quantum meruit basis.
URL:http://www.tba.org/tba_files/TSC/MCBRIDEH.OPN.WP6
ELI MIKE, AN INDIVIDUAL; JAMES A. SCHRAMPFER, AN INDIVIDUAL; AND JANE
N. FORBES, AS TRUSTEE IN BANKRUPTCY FOR THE ESTATE OF DAVID L. OSBORN,
v.
PO GROUP, INC., A TENNESSEE CORPORATION; JAMES W. (BILL) ANDERSON III,
AN INDIVIDUAL; AND THE ESTATE OF HAROLD L. JENKINS,
Court:TSC
For Plaintiffs-Appellants: For Defendants-Appellees:
Gary M. Brown William L. Harbison
Matthew J. Sweeney, III L. Webb Campbell, II
John C. Tishler Andrew J. Pulliam
Tuke, Yopp & Sweeney Sherrard & Roe, P.L.C.
Nashville Nashville
Denty Cheatham
Cheatham & Palermo
Nashville
Judge: REID, J.
First Paragraph:
This case presents for review the decision of the Court of Appeals,
affirming an award of summary judgment in favor of the defendants.
The Court of Appeals held that the plaintiffs' suit charging the
breach by a majority shareholder of a fiduciary duty owed to minority
shareholders is barred by the one year statute of limitations. This
Court concludes that the applicable period of limitations is three
years and remands the case to the trial court to determine whether
plaintiffs' action was time-barred.
URL:http://www.tba.org/tba_files/TSC/MIKEELI.OPN.WP6
JOE BOATMAN,
v.
WW OF MEMPHIS, INC. d/b/a ADVANCE MUFFLER & AUTO SERVICE and AMERISURE
INSURANCE COMPANY,
w/JUDGMENT ORDER
Court:TSC - Workers Comp Panel
For the Appellants: For the Appellee:
Carol Mills Hayden Cecil G. Keltner
80 Monroe Ave., Ste. 550 219 Adams Ave.
Memphis, TN 38173-0160 Memphis, TN 38103
Judge: BYERS
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. 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. The trial
court awarded plaintiff 50% permanent partial disability to each arm.
Defendant challenges 1) the finding of permanent vocational disability
to the right arm and 2) the finding of 50% permanent partial
disability to each arm.
URL:http://www.tba.org/tba_files/TSC_WCP/BOATMAN.OPN.WP6
URL:http://www.tba.org/tba_files/TSC_WCP/BOATMAN.JDG.WP6
JIMMY McCARVER, v. TECUMSEH PRODUCTS COMPANY,
w/JUDGMENT ORDER
Court:TSC - Workers Comp Panel
For Appellant: For Appellee:
David F. Hessing Robert T. Keeton
Hessing, Ventimiglia & Swayne Keeton Law Offices
Paris, Tennessee Huntingdon, Tennessee
Judge: Loser
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. section 50-6-225(e)(3) for hearing and reporting
of findings of fact and conclusions of law. In this appeal, the
employer, Tecumseh, contends that the evidence preponderates against
the trial court's finding that the employee's disability arose out of
the employment. The panel agrees.
URL:http://www.tba.org/tba_files/TSC_WCP/MCCARVER.OPN.WP6
URL:http://www.tba.org/tba_files/TSC_WCP/MCCARVER.JDG.WP6
REBA JOYCE MOODY, STATUORY REPRESENTATIVE OF JAMES JUNIOR MOODY
v.
PHELPS SECURITY, INC. and FIDELITY and CASUALTY CO. OF NEW YORK
w/JUDGMENT ORDER
Court:TSC - Workers Comp Panel
FOR APPELLANT: FOR APPELLEE:
Ronald W. Kim James F. Eggleston
Steve Taylor Suite 3016, 100 N. Main
Kim, Wilcox & McArthur Memphis, Tennessee
6363 Poplar Avenue, Suite 60l
Memphis, Tennessee
Judge: Tatum
First Paragraph:
Suit was filed in the Circuit Court at Memphis by Reba Joyce Moody as
representative of the estate of her deceased husband, James Junior
Moody, against Phelps Security, Inc., the employer, and Fidelity and
Casualty Co. of New York, the employer's workers' compensation
insurance carrier. The plaintiff sued for workers' compensation
benefits as a result of an accidental injury that allegedly caused the
death of James Junior Moody, including a portion of the medical
expenses incurred.
URL:http://www.tba.org/tba_files/TSC_WCP/MOODY.OPN.WP6
URL:http://www.tba.org/tba_files/TSC_WCP/MOODY.JDG.WP6
BLANCHE RENE SMITH, v. BRUCE HARDWOOD FLOORS,
w/JUDGMENT ORDER
Court:TSC - Workers Comp Panel
For the Appellant: For the Appellee:
William F. Kendall, III Mary Dee Perkins
Robert B. Vandiver, Jr. George L. Morrison, III
WALDROP & HALL, P.A. 201 E. Baltimore
106 South Liberty Street Jackson, TN 38301
Jackson, TN 38301
Judge: BYERS
First Paragraph:
Plaintiff was working at Bruce Hardwood Floors when she injured her
right shoulder in October of 1991 while lifting pieces of wood from a
conveyor belt. In May of 1992, she complained to her treating
physician of pain in her hands and wrists. She alleged work-related
permanent disability as a result of these conditions. The trial court
awarded plaintiff 33 percent permanent partial disability to each arm.
URL:http://www.tba.org/tba_files/TSC_WCP/SMITHBR.OPN.WP6
URL:http://www.tba.org/tba_files/TSC_WCP/SMITHBR.JDG.WP6
SANDRA WHITEHEAD,v. EXPRESS SERVICES, INC.,
w/JUDGMENT ORDER
Court:TSC - Workers Comp Panel
For Appellant: For Appellee:
Sam L. Crain, Jr. Ricky L. Boren
Laurie Meehan Hill Boren P.C.
Burch, Porter & Johnson Jackson, Tennessee
Memphis, Tennessee
Judge: Loser
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. section 50-6-225(e)(3) for hearing and reporting
of findings of fact and conclusions of law. In this appeal, the
employer, Express Services, contends the trial court's award of
permanent partial disability benefits on the basis of eighty percent
permanent partial disability to the left arm is excessive. The panel
has concluded that the award should be modified to provide permanent
partial disability benefits on the basis of fifty percent to the left
arm.
URL:http://www.tba.org/tba_files/TSC_WCP/WHITEHED.OPN.WP6
URL:http://www.tba.org/tba_files/TSC_WCP/WHITEHEA.JDG.WP6
JACQUES B. BENNETT, v. STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
A. CHRISTIAN LANIER, III CHARLES W. BURSON
Suite 150, 615 Lindsay St. Attorney General & Reporter
Chattanooga, TN 37403
TIMOTHY F. BEHAN
Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
WILLIAM H. COX, III
District Attorney General
DAVID DENNY
Asst. District Attorney General
Courts Bldg., 600 Market St.
Chattanooga, TN 37402
Judge: JOHN H. PEAY
First Paragraph:
The petitioner was indicted for first-degree murder and conspiracy to
commit first-degree murder. The State filed a notice of intent to
seek the death penalty. The petitioner pled guilty to first-degree
murder and received a sentence of life imprisonment. He took no
appeal as of right but filed a petition for post-conviction relief.
After a hearing, the lower court denied the petition.
URL:http://www.tba.org/tba_files/TCCA/BENNETTJ.OPN.WP6
STATE OF TENNESSEE, v. REGINALD BONNER,
Court:TCCA
For the Appellant: For the Appellee:
Howard L. Wagerman Charles W. Burson
100 North Main, Suite 2003 Attorney General of Tennessee
Memphis, TN 38103 and
(AT TRIAL) Ellen H. Pollack
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Howard L. Wagerman Nashville, TN 37243-0493
Howard B. Manis
100 North Main, Suite 2003 John W. Pierotti, Jr.
(ON APPEAL) District Attorney General
and
Paul F. Goodman
Judge: Joseph M. Tipton
First Paragraph:
The defendant, Reginald Bonner, appeals as of right from the Shelby
County Criminal Courts refusal to sentence him under the Tennessee
Community Corrections Act of 1985. See T.C.A. 40-36-101--106.
Pursuant to agreement, the defendant pled guilty to second degree
murder, a Class A felony, and was sentenced as a Range I standard
offender to twenty years in the Department of Correction. He
petitioned for a community corrections sentence, claiming that he had
special needs for treatment in the community for a drug problem, but
the trial court held that he was ineligible. The defendant contends
that he is eligible for such a sentence. We disagree.
URL:http://www.tba.org/tba_files/TCCA/BONNERRG.OPN.WP6
STATE OF TENNESSEE, v. DAVID COX,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
Mack Garner Charles W. Burson
District Public Defender Attorney General & Reporter
419 High Street
Maryville, TN 37804 Robin L. Harris
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Michael L. Flynn
District Attorney General
Philip H. Morton
Asst. Dist. Attorney General
363 Court Street
Maryville, TN 37804-5906
Judge: PAUL G. SUMMERS
First Paragraph:
The appellant, David Cox, appeals the trial courts revocation of his
probation. We affirm.
URL:http://www.tba.org/tba_files/TCCA/COXD.OPN.WP6
SCOTT L. DEEM, v. STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
Gregory D. Smith Charles W. Burson
One Public Sq., Ste. 321 Attorney General of Tennessee
Clarksville, TN. 37040 and
Kimbra Spann
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
John Wesley Carney, Jr.
District Attorney General
and
Arthur Bieber
Assistant District Attorney General
204 Franklin St. Suite 200
Clarksville, TN 37041
Judge: PER CURIAM
First Paragraph:
The petitioner, Scott L. Deem, appeals from the trial courts denial
of his second petition for post-conviction relief. The single issue
presented for review is whether the trial court properly dismissed the
petition without an evidentiary hearing. We affirm.
URL:http://www.tba.org/tba_files/TCCA/DEEMSCOT.OPN.WP6
GREGORY LEVERETT, v. STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
Gregory Leverett, Pro Se Charles W. Burson
N.W.C.C. Attorney General & Reporter
Route 1, Box 660
Tiptonville, TN 38079 Eugene J. Honea
Assistant Attorney General
Gary D. Gerbitz
District Attorney General (Former)
Yolanda Mitchell
Asst. Dist. Attorney General
Judge: PAUL G. SUMMERS
First Paragraph:
The appellant, Gregory Leverett, pled guilty to rape. He was
sentenced to twelve years incarceration. He petitioned for
post-conviction relief. The petition was dismissed as untimely. He
now appeals that dismissal. We respectfully reverse and remand for an
evidentiary hearing.
URL:http://www.tba.org/tba_files/TCCA/LEVERETG.OPN.WP6
STATE OF TENNESSEE, v. JERRY L. MATHEWS,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES F. FLEET CHARLES W. BURSON
The Cohn Law Firm Attorney General and Reporter
Koger Center - Sutie 300
65 Germantown Court MICHELLE L. LEHMANN
Memphis, TN 38018 Assistant Attorney General
ELIZABETH RICE
District Attorney General
JERRY NORWOOD
Assistant District Attorney
Judge: JERRY L. SMITH
First Paragraph:
Appellant Jerry L. Mathews was convicted of a single count of
aggravated assault arising out of a domestic dispute wherein Mathews
shot and wounded his son. Appellant was also indicted for shooting at
his two daughters; however, he was acquitted of these charges. For
the single aggravated assault conviction, Appellant was sentenced as a
Range I standard offender to three (3) years in the Department of
Correction. The sentence was suspended except for 90 days which
Appellant was ordered to ser
URL:http://www.tba.org/tba_files/TCCA/MATHEWSJ.OPN.WP6
STATE OF TENNESSEE, v. SAMUEL SCOTT MINTON,
Court:TCCA
For the Appellant: For the Appellee:
J. Arnold Fitzgerald Charles W. Burson
P. O. Box 227 Attorney General & Reporter
1470 Market Street
Dayton, TN 37321 Hunt S. Brown
Michael J. Fahey, II
Assistant Attorneys General
450 James Robertson Parkway
Nashville, TN 37243-0493
Jerry N. Estes
District Attorney General
Joe Rehyansky
Rebble Johnson
Assistant District Attorneys General
10th Judicial District
P. O. Box 1351
Cleveland, TN 37311
Judge: JOHN K. BYERS
First Paragraph:
The defendant was convicted of the following offenses and sentenced to
serve the punishments therefore as follows: Conspiracy to commit
aggravated burglary with a sentence of two years running consecutive
to counts 2 - 11; Aggravated rape (5 counts) with a sentence of twenty
years running consecutive to counts 1 and 7-11; Especially aggravated
kidnaping with a sentence of twenty years running consecutive to
counts 1-6 and 8-11; Especially aggravated robbery with a sentence of
twenty years running consecutive to all counts except 10; Judgment of
dismissal as to aggravated assault; Especially aggravated burglary
with a sentence of ten years to run consecutive to all other counts
except count 8; and Theft of over $1,000. with a sentence of four
years to run consecutive to all other counts.
URL:http://www.tba.org/tba_files/TCCA/MINTONSS.OPN.WP6
STATE OF TENNESSEE, v. KENNETH D. ODIE,
Court:TCCA
For the Appellant: For the Appellee:
Mark A. Saripkin Charles W. Burson
Attorney at Law Attorney General and Reporter
296 Washington Avenue
Memphis, TN 38103 Ellen H. Pollack
Assistant Attorney General
Joseph S. Ozment Criminal Justice Division
Attorney at Law 450 James Robertson Parkway
217 Exchange Avenue Nashville, TN 37243 0493
Memphis, TN 38103
John W. Pierotti
District Attorney General
Jennifer Nichols
Asst. District Attorney General
201 Poplar Avenue, Third Floor
Memphis, TN 38103
Judge: David G. Hayes
First Paragraph:
The appellant, Kenneth D. Odie, appeals from the trial courts denial
of an alternative sentence. The appellant pled guilty in the Criminal
Court of Shelby County to possession of cocaine in excess of one-half
gram with the intent to sell, a class B felony. Tenn. Code Ann.
39-17-417(c)(1) (1992). The plea agreement provided for a sentence of
eight years. According to the plea agreement, the trial court was to
determine the manner of service of the sentence. The trial court
ordered that the appellant serve his entire sentence in the Department
of Correction. On appeal, the appellant contends that the trial court
should have granted the appellant probation or community corrections.
URL:http://www.tba.org/tba_files/TCCA/ODIEKEN.OPN.WP6
ZACHARY C. ROBINSON,v. STATE OF TENNESSEE,
Court:TCCA
FOR THE APPELLANT: FOR THE APPELLEE:
William Lee Brown Charles W. Burson
Attorney at Law Attorney General & Reporter
706 Walnut Street
Suite 902 Eugene J. Honea
Knoxville, TN 37902 Assistant Attorney General
Randall E. Nichols
District Attorney General
Marsha Selecman
Asst. Dist. Attorney General
Judge: PAUL G. SUMMERS
First Paragraph:
The appellant, Zachary C. Robinson, seeks post-conviction relief from
convictions occurring between 1977 and 1981. Although he has fully
served the sentences associated with those convictions, he asserts
that he was not apprised of the possible future ramifications of those
convictions. The trial judge dismissed the petition as untimely.
Upon review, we find no error of law mandating reversal. The trial
court's dismissal is affirmed in accordance with Tenn. R. Ct. Crim.
App., Rule 20.
URL:http://www.tba.org/tba_files/TCCA/ROBINSNZ.OPN.WP6
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© Copyright 1998 Tennessee Bar Association - This Issue IN THIS ORDER: