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.
- 05-New Opinons From TSC
- 00-New Opinons From TSC-Rules
- 00-New Opinons From TSC-Workers Comp Panel
- 08-New Opinons From TCA
- 04-New Opinons From TCCA
There are three ways to get the full opinion from the Web: (TBALink members only)
TBALink Chief Editor
ETHEL FAYE GEORGE, v. CLYDE WAYNE ALEXANDER, and PHILLIP R. JONES, M.D., w/ CONCURRING OPINION Court:TSC For Plaintiff-Appellant: For Defendants-Appellees: R. Stephen Doughty Rose P. Cantrell Weed, Hubbard, Berry & Doughty George A. Dean Nashville, TN Parker, Lawrence, Cantrell & Dean Nashville, TN Judge: DROWOTA First Paragraph: In this medical malpractice case, the plaintiff, Ethel Faye George, appeals from the Court of Appeals affirmance of a judgment based on a jury verdict in favor of the defendants, Clyde Wayne Alexander, M.D. and Phillip R. Jones, M.D. This case presents the following issue for our determination: whether a defendant in a negligence case must, pursuant to Rule 8.03 of the TN Rules of Civil Procedure, plead comparative fault as an affirmative defense if the defendant wishes to introduce evidence that a person other than itself caused the plaintiffs injury. We conclude that the defendant is required to affirmatively plead comparative fault in such a situation; and because that was not done in this case, we reverse the judgment of the Court of Appeals. URL:http://www.tba.org/tba_files/TSC/GEORGEEF.OPN.WP6 URL:http://www.tba.org/tba_files/TSC/GEORGEEF.CON.WP6 MITCHELL BRIAN RAMSEY, v. JAMES G. BEAVERS, Court:TSC For Appellant: For Appellee: Mark T. Young Thomas A. Williams Hixson, TN LEITNER, WARNER, MOFFITT, WILLIAMS, DOOLEY & NAPOLITAN Chattanooga, TN Judge: WHITE First Paragraph: In this case we are faced with the issue of the continued viability of the zone of danger test as a limitation on liability when plaintiff is neither physically injured nor in an area where physical injury is possible. We conclude that in cases such as this, in which plaintiff sensorily observes the injury and resulting death of his mother, recovery should be allowed under circumstances in which the incident which produces the emotional injuries and the emotional injuries are reasonably foreseeable. URL:http://www.tba.org/tba_files/TSC/RAMSEYM.OPN.WP6 WALTER P. VOGEL, v. WELLS FARGO GUARD SERVICES, and DINA TOBIN, DIRECTOR OF THE DIVISION OF WORKERS COMPENSATION, TN DEPARTMENT OF LABOR, SECOND INJURY FUND, STATE OF TN, and CHARLES BURSON, ATTORNEY GENERAL FOR THE STATE OF TN, Court:TSC For the Defendant/Appellants For Plaintiff/Appellee Vogel: Wells Fargo Guard Services: David H. Dunaway Ernest D. Bennett, III DAVID H. DUNAWAY & Nashville, TN ASSOCIATES LaFollette, TN For Defendants/Appellants Dina Tobin and Charles Burson: Charles W. Burson Attorney General and Reporter Dianne Stamey Dycus Senior Counsel Civil Division Judge: WHITE First Paragraph: In this workers' compensation case, we are asked to review the trial courts determination that TN Code Annotated Section 50-6 207(4)(A)(i) is unconstitutional and that plaintiff is entitled to life-time workers compensation benefits. Having considered the positions of the parties, the plain language and the legislative intent of the statute, and relevant authority in other jurisdictions, we reverse. URL:http://www.tba.org/tba_files/TSC/VOGELWP.OPN.WP6 SHERRY WIMLEY, v. LINDA RUDOLPH, Commissioner of the TN Department of Human Services, Court:TSC For Appellant: For Appellee: Charles W. Burson David Kozlowski Attorney General and Reporter Legal Services of South Central TN, Inc. Michael E. Moore Tullahoma, TN Solicitor General Dianne Stamey Dycus Senior Counsel CIVIL DIVISION Judge: WHITE First Paragraph: The issue in this case is whether plaintiff can combine an original action under 42 U.S.C. 1983 with a petition for judicial review under the Uniform Administration Procedures Act when the sole relief requested under the Section 1983 claim is an award of attorney fees. We affirm the Court of Appeals decision allowing plaintiff an award of attorney fees. URL:http://www.tba.org/tba_files/TSC/WIMLEY.OPN.WP6 ELLA MAE BROWN, v. MARVIN DOUGLAS BROWN, Court:TCA CAROL DOWNTON Nashville, TN 37216 Attorney for Plaintiff/Counter-Defendant/Appellee MARVIN DOUGLAS BROWN, #78585 Nashville, TN 37209-1010 Pro Se/Defendant/Counter-Plaintiff/Appellant Judge: BEN H. CANTRELL First Paragraph: The wife of a prisoner in the custody of the TN Department of Correction filed for divorce, claiming that her husband was guilty of inappropriate marital conduct. The husband answered and counterclaimed, and moved the court to order the wife to file a Bill of Particulars, setting forth the facts she was relying upon as grounds for the pending divorce. The court did not respond to the husbands motion, nor did it respond to the husbands Motion for Writ of Habeas Corpus ad Testificandum, but granted the wife an absolute divorce without affording the husband the opportunity to present any evidence. URL:http://www.tba.org/tba_files/TCA/BROWNEM.OPN.WP6 STATE OF TN DEPARTMENT OF HUMAN SERVICES, and WILLIAM D.GARDNER and JOANN GARDNER, v. DANA D. DEFRIECE, Court:TCA For Appellant For Appellees Gardners DEBRA L. HOUSE RANDY G. ROGERS Southeast TN Legal Athens, TN Services Cleveland, TN Judge: Susano First Paragraph: The trial court terminated the parental rights of Dana D. Defriece (Mother) to her son, John Defriece (John) (DOB: January 9, 1988). Mother appeals, raising three issues that present the following questions: 1. Is the proper appeal route in this case directly to the Court of Appeals or rather to circuit court for a de novo hearing? 2. Do the allegations of the intervening petition satisfy the requirements of T.C.A. 37-1-147(a) (1991)? 3. Is the trial courts termination of Mothers parental rights supported by clear and convincing evidence? URL:http://www.tba.org/tba_files/TCA/GARDNERW.OPN.WP6 RONALD D. MACKIE and BRENDA L. MACKIE v. DAVID K. HINCHY and PEARLINE HINCHY Court:TCA FLETCHER L. ERVIN OF NEWPORT FOR APPELLANTS R. J. TUCKER OF NEWPORT FOR APPELLEES Judge: Goddard First Paragraph: David K. Hinchy and Pearline Hinchy, who are residents of Indiana, appeal judgments of the Chancery Court for Cocke County. The Chancellor, first, granted a default judgment against them in favor of Ronald D. Mackie and Brenda L. Mackie, who are residents of Florida. The Court also ordered the sale of certain real estate, the proceeds of which would be applied to the satisfaction of the indebtedness secured by the real estate and, preliminarily, a personal judgment in the amount of $18,200, plus interest at the rate of 8.65 percent per annum from October 1, 1989. Second, after sale of the property and giving credit for payments previously made, he awarded a deficiency judgment in the amount of $15,719.97, which included court costs and expenses of the sale. URL:http://www.tba.org/tba_files/TCA/MACKIER.OPN.WP6 RICHARD D. PHILLIPS v. INTERSTATE HOTELS CORPORATION #L07 and INTERSTATE HOTELS CORPORATION #L07, d/b/a CHATTANOOGA MARRIOTT and KICKS LOUNGE Court:TCA ANITA B. HARDEMAN OF CHATTANOOGA FOR APPELLANT KARL M. TERRELL and CHRISTOPHER TERRELL OF ATLANTA, GEORGIA, FOR APPELLEE Judge: Goddard First Paragraph: In this case, the Plaintiff, Richard D. Phillips, sues Interstate Hotels Corporation and Interstate Hotels Corporation #L07, d/b/a Chattanooga Marriott and Kicks Lounge, seeking damages by reason of the Defendants violating his civil rights under the provisions of T.C.A. 4-21-301(2). URL:http://www.tba.org/tba_files/TCA/PHILLIPS.OPN.WP6 JIMMY E. SMITH, v. CONNIE SUE ARGO SMITH, w/CONCURRING IN PART AND DISSENTING IN PART Court:TCA LARRY B. STANLEY Stanley & Bratcher McMinnville, TN ATTORNEY FOR PLAINTIFF/APPELLEE BERNARD SMITH BPR #2609 McMinnville, TN ATTORNEY FOR DEFENDANT/APPELLANT THOMAS F. BLOOM BPR No. 11950 Nashville, TN ATTORNEY FOR DEFENDANT/APPELLANT Judge: HENRY F. TODD First Paragraph: The counter-plaintiff, Connie Argo Smith, appeals from the Trial Courts judgment awarding her a divorce on grounds of cruel and inhuman treatment. The Trial Court also awarded her the marital residence and contents, a 1990 Astro Mini Van, and $100,000.00 cash. The Trial Court required the counter-defendant, Jimmy E. Smith, to pay all marital debts including the mortgage on the home. The court also awarded Mr. Smith a farm, commercial property, the Smart Station property, a houseboat, a bass boat, a Chevrolet truck, Mercedes automobile, riding mower, tractor, personal effects and unspecified stocks. URL:http://www.tba.org/tba_files/TCA/SMITHJE.OPN.WP6 URL:http://www.tba.org/tba_files/TCA/SMITHJE.CON.WP6 UNITED NATIONAL REAL ESTATE, INC., v. C. F. THOMPSON AND COLUMBIA AUTO PARTS, INC., Court:TCA Robert L. Holloway, Jr. FLEMING, HOLLOWAY & FLYNN, P.C. B.P.R. #6535 Columbia, TN ATTORNEY FOR PLAINTIFFS/APPELLANTS William Landis Turner KEATON, TURNER & SPITZER Columbia, TN ATTORNEY FOR DEFENDANT/APPELLEE Judge: HENRY F. TODD First Paragraph: This is a suit by a judgment creditor to set aside a fraudulent transfer of assets and to subject said assets to the satisfaction of the judgment. In September, 1985, Columbia Auto Parts, Inc., executed with United National Real Estate, Inc., an Exclusive Listing Agreement for the sale of the assets of Columbia Auto Parts, Inc. In October, 1985, Columbia Auto Parts, Inc. contracted to sell said assets to Al Carroll. In March, 1986, the sale was concluded, and the proceeds were deposited in the corporate bank account. URL:http://www.tba.org/tba_files/TCA/UNITEDNA.OPN.WP6 TERRY YATES, v. THE CHATTANOOGA POLICE DEPARTMENT, ERVIN DINSMORE, Public Safety Administrator for THE CITY COUNCIL FOR THE CITY CHATTANOOGA, TN and THE CITY OF CHATTANOOGA, Court:TCA LEONARD CAPUTO, Phillips & Caputo, Chattanooga, for Appellant. KENNETH O. FRITZ, and MICHAEL A. McMAHAN, Chattanooga, for Appellee. Judge: McMurray First Paragraph: This is an appeal from the judgment of the chancery court for Hamilton County, whereby the court affirmed the decision of the City Council of the City of Chattanooga finding the appellant, a police officer, guilty of violating Chattanooga Police Manual Orders and imposing disciplinary sanctions. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCA/YATESTER.OPN.WP6 STATE OF TN, v. ELLA ENSLEY and JAMES SCOTT MCCULLEY Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: ENSLEY: Charles M. Corn Charles W. Burson District Public Defender Attorney General & Reporter A. Wayne Carter and Jerry L. Smith Mack McCoin Deputy Attorney General (former) Asst. Public Defender Criminal Justice Division P.O. Box 1453 450 James Robertson Parkway Cleveland, TN 37364-1476 Nashville, TN 37243-0493 FOR THE APPELLANT Jerry N. Estes MCCULLEY: District Attorney General Conrad Finnell Rebble Johnson P.O. Box 1476 Asst. Dist. Attorney General Cleveland, TN 37364 William W. Reedy P.O. Box 628 Athens, TN 37371-0628 Judge: PAUL G. SUMMERS First Paragraph: At a joint trial, the appellants, Ella Ensley and James Scott McCulley, were each convicted of two counts of first degree murder. Appellant McCulley was also convicted of two counts of attempted second degree murder. Ensley received two consecutive life sentences. McCulley was sentenced to life without parole in the first degree murder convictions and to consecutive thirty year sentences in the attempted second degree murder convictions. From these convictions and sentences both appeal. URL:http://www.tba.org/tba_files/TCCA/ENSLEYMC.OPN.WP6 DONALD ESLICK and ROBERT RAPPUHN, v. STATE OF TN, Court:TCCA For the Appellants: For the Appellee: Donald Eslick and Charles W. Burson Robert Rappuhn, Pro Se Attorney General of TN R.M.S.I., Unit 6 and 7475 Cockrill Bend Ind. Blvd. Merrilyn Feirman Nashville, TN 37209-1010 Assistant Attorney General of TN Jerry N. Estes District Attorney General Judge: Joseph M. Tipton First Paragraph: The petitioners, Donald Eslick and Robert Rappuhn, appeal as of right from the McMinn County Criminal Courts denial of their petition to expunge public records regarding aggravated rape and murder charges that were resolved in their favor. The trial court concluded that the record of those charges were so intertwined with the aggravated kidnapping convictions received by the petitioners that expunction should not occur. The petitioners contend that the records pertaining to the dismissed or acquitted charge are to be expunged pursuant to T.C.A. 40-32-101 even though they are convicted upon another charge arising from the same indictment. Also, they contend that the trial judge should have recused himself from this case because he was the assistant district attorney who prosecuted them for the relevant criminal charges. The state acknowledges that a remand for further consideration may be appropriate, but it makes no response to the recusal claim. URL:http://www.tba.org/tba_files/TCCA/ESLICK.OPN.WP6 STATE OF TN, v. RICKY THOMPSON, w/CONCURRING AND DISSENTING OPINION Court:TCCA FOR THE DEFENDANT: FOR THE APPELLEE: JOHN G. OLIVA CHARLES W. BURSON (Appellate Counsel) Attorney General & Reporter CAPITAL CASE RESOURCE CENTER 1225 17th Avenue South CECIL H. ROSS Nashville, TN 37212 Assistant Attorney General 450 James Robertson Pkwy. JAMES H. STUTTS Assistant Public Defender JERRY N. ESTES P.O. Box 629 District Attorney General Sweetwater, TN 37874 STEVE HAWKINS JERRI S. BRYANT Assistant District Attorney General CARTER, HARROD & CUNNINGHAM 203 Madison Ave. 1 Madison Ave. P.O. Box 647 P.O. Box 885 Athens, TN 37303-0647 Athens, TN 37371- 0885 ISAIAH S. GANT CAPITAL CASE RESOURCE CENTER 1225 17th Avenue South Nashville, TN 37212 Judge: DAVID H. WELLES First Paragraph: In this capital case, the Defendant, Ricky Thompson, was convicted of first degree murder, aggravated assault, and arson. After the sentencing hearing, the jury found two aggravating circumstances: (1) that the defendant knowingly created a great risk of death to two or more persons, other than the victim murdered, during the act of murder; and (2) that the murder was extremely heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death. Tenn. Code Ann. 39-13-204(i)(3) and (5) (1991). The jury found that the State had proven beyond a reasonable doubt that the aggravating circumstances outweighed any mitigating circumstances and sentenced the Defendant to death by electrocution. URL:http://www.tba.org/tba_files/TCCA/THOMPSNR.OPN.WP6 URL:http://www.tba.org/tba_files/TCCA/THOMPSNR.DIS.WP6
Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/
Would you like to receive the TBALink Opinion-Flash each day
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank
Non TBA members are WELCOME to subscribe...it's free!!
Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank