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.
- 02-New Opinons From TSC
- 00-New Opinons From TSC-Rules
- 03-New Opinons From TSC-Workers Comp Panel
- 03-New Opinons From TCA
- 05-New Opinons From TCCA
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DANNY KAYE DOCKERY, v. THE BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE Court:TSC For Appellant: For Appellee: Danny K. Dockery Laura L. Chastain Pro Se Deputy Chief Memphis, TN Disciplinary Counsel Nashville, TN Judge: BIRCH First Paragraph: Danny Kaye Dockery, Esquire, appeals the judgment of the Chancery Court of Shelby County suspending him from the practice of law for specified violations of the Code of Professional Responsibility committed in connection with his representation of Deborah Dalton. After a painstaking examination of the record and a thorough consideration of the issues presented, we find that the record fully supports the trial court's judgment except as to the amount of money Dockery must pay Dalton as a prerequisite for reinstatement. URL:http://www.tba.org/tba_files/TSC/DOCKERYD.OPN.WP6 STATE OF TENNESSEE v. CARL LEE MCLEOD STATE OF TENNESSEE v. JAMES YOUNG Court:TSC Attorney for Appellant McLeod: Attorney for the State: JEFFREY A. DEVASHER CHARLES W. BURSON Senior Assistant Public Defender Attorney General & Reporter Nashville, Tennessee (On appeal) MICHAEL E. MOORE Solicitor General PAT MCNALLY Assistant Public Defender GORDON W. SMITH Nashville, Tennessee Associate Solicitor General (At trial) Nashville, Tennessee Attorney for Appellant Young NICHOLAS D. BAILEY Assistant District Attorney JAMES YOUNG General (Pro se on appeal) Nashville, Tennessee (In McLeod's case only) MARK J. FISHBURN Nashville, Tennessee T. MICHAEL BOTTOMS (At trial) District Attorney General Lawrenceburg, Tennessee ROBERT C. SANDERS Assistant District Attorney General Columbia, Tennessee (In Young's case only) Judge: BIRCH First Paragraph: This consolidated appeal centers our attention on the broad, growing problem in child abuse cases of the admissibility of statements made by children during the course of a medical examination. The precise difficulty arises in attempting to apply evidentiary rules drafted with adults in mind to cases involving children. Problems notwithstanding, we must achieve a balance that fosters the important governmental interest in protecting children while maintaining fundamental fairness. URL:http://www.tba.org/tba_files/TSC/MCLEODY.OP.WP6 VANESSA PHILLIPS, v. PENNSYLVANIA NATIONAL INSURANCE COMPANY, Court:TSC - Workers Comp Panel For Appellant: For Appellee: J. Brent Nolan P. Richard Talley Clinton, Tennessee Dandridge, 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 contends (1) that the evidence preponderates against the trial court's finding that the employee suffered an injury by accident in the course of her employment, (2) that the evidence preponderates against the trial court's finding that the employee's permanent impairment is causally related to her employment, (3) that the trial court erred in awarding medical expenses of an unauthorized provider, and (4) that the trial court abused its discretion with respect to the award of discretionary costs. The panel concludes that the judgment should be reversed, for the reasons set forth below. URL:http://www.tba.org/tba_files/TSC_WCP/PHILVPEN.OPN.WP6 SHELBY WILLIAMS INDUSTRIES, v. ALTON SANE, Court:TSC - Workers Comp Panel For the Appellant: For the Appellee: Joseph J. Doherty Fletcher L. Irvin Wimberly & Lawson 319 East Broadway Liberty Center Newport, TN 37821 P. O. Box 1066 Morristown, TN 37816-1066 Judge: THAYER 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. Plaintiff, Shelby Williams Industries, Inc., instituted suit against Defendant, Alton Sane, seeking a determination as to whether the defendant had sustained a work-related injury which was compensable. The Chancellor found the claim to be compensable and fixed defendant's permanent partial disability at fifty percent to the body as a whole. URL:http://www.tba.org/tba_files/TSC_WCP/SANE.OPN.WP6 GREENE COUNTY, TENNESSEE v. LISA WARD, JARROD WARD and JORDAN WARD, Court:TSC - Workers Comp Panel For the Appellants: For the Appellee: Jack H. Burkhard W.R. Coleman, Jr. 102 South Main Street Jeffrey M. Ward Greeneville, TN 37743 Milligan & Coleman P.O. Box 1060 John T. Milburn Rogers Greeneville, TN 37744 100 South Main Street Greeneville, TN 37743 Judge: THAYER 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. These cases were instituted by Greene County, Tennessee, plaintiff, against the dependents of William Guy Ward, deceased, and Robert John Desormeaux, deceased, defendants, to determine whether the deaths of the two individuals are compensable under the Workers' Compensation laws of our state. URL:http://www.tba.org/tba_files/TSC_WCP/WARDLISA.OPN.WP6 ADAMS TV OF MEMPHIS, INC. , Licensee of WHBQ-TV, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 474 and JOHN DEBERRY and MORGAN MURRELL, Court:TCA Archie Sanders, III, SHUTTLEWORTH, SMITH, McNABB & WILLIAMS, Memphis, Tennessee Attorney for Plaintiff/Appellant. Dan M. Norwood, James R. Becker, Jr., NORWOOD & DEBOO, Memphis, Tennessee Attorneys for Defendants/Appellees. Judge: FARMER First Paragraph: Plaintiff-Appellant, Adams TV of Memphis, Inc., Licensee of WHBQ-TV ("Adams TV"), appeals the trial court's order denying Adams TV's application to vacate an arbitration award in favor of Defendants-Appellees, International Brotherhood of Electrical Workers, AFL-CIO, Local 474 ("Union"), John DeBerry ("DeBerry"), and Morgan Murrell ("Murrell"). URL:http://www.tba.org/tba_files/TCA/ADAMS-TV.OPN.WP6 CITY STATE BANK and THE BANK OF SHARON v. DEAN WITTER REYNOLDS, INC., a Delaware Corporation, and HANK FRANCK, Court:TCA DOUGLAS A. BLACK THOMAS J. WALSH, JR. WOLFF ARDIS, P.C. Memphis, Tennessee Attorneys for Appellants EDWARD M. KAPLAN NATHANIEL L. PROSSER ARMSTRONG ALLEN PREWITT GENTRY JOHNSTON & HOLMES Memphis, Tennessee Attorneys for Appellees Judge: ALAN E. HIGHERS First Paragraph: This is an interlocutory appeal from the trial court's grant of partial summary judgment in favor of defendants on the basis of the statute of limitations. The primary issue for our determination is whether there exists a genuine issue of material fact with respect to when the plaintiff banks discovered or reasonably should have discovered their cause of action against defendants. We hold that this issue was inappropriate for resolution by summary judgment and, therefore, we reverse the judgment of the court below. URL:http://www.tba.org/tba_files/TCA/CITYSTAT.OPN.WP6 ROBIN GAIL HERRERA, v. FERNANDO ANTONIO HERRERA, Court:TCA Stevan L. Black, BLACK, BOBANGO & MORGAN, Memphis, Tennessee Attorney for Defendant/Appellant. David E. Caywood, Marc E. Reisman, CAUSEY, CAYWOOD, TAYLOR & McMANUS, Memphis, Tennessee Attorney for Plaintiff/Appellee. Judge: FARMER First Paragraph: In this divorce action, Fernando Antonio Herrera (hereinafter "Husband" or "Dr. Herrera") appeals the trial court's determination regarding the award of custody of the parties' minor children as well as the amount of child support, rehabilitative alimony, marital debt and attorney's fees for which Dr. Herrera was held responsible. In addition, he also appeals the Chancellor's reliance upon the Guardian Ad Litem's report and recommendations, the Chancellor's refusal to disqualify himself from presiding over the contempt proceedings against Dr. Herrera and the trial court's finding that Dr. Herrera was guilty of criminal contempt. URL:http://www.tba.org/tba_files/TCA/HERRERAR.OPN.WP6 STATE OF TENNESSEE, v. HAROLD BLEVINS, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Raymond Mack Garner Charles W. Burson District Public Defender Attorney General & Reporter Natalee Staats Hurley Elizabeth T. Ryan Asst. Dist. Public Defender Assistant Attorney General 419 High Street Criminal Justice Division Maryville, TN 37804 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 Judge: PAUL G. SUMMERS First Paragraph: The appellant, Harold Blevins, pled guilty to two counts of forgery, two counts of uttering, theft under $ 500.00, ten counts of passing a worthless check, two counts of obtaining a controlled substance by misrepresentation, and attempt to obtain a controlled substance by fraud. He received an effective sentence of four years. He was ordered to serve his sentence at the Department of Correction's Special Needs Facility. He raises two issues on appeal: 1. Whether the trial court erred in sentencing him to a three year sentence out of a possible range of two to four years for the offense of obtaining a controlled substance by fraud. 2. Whether the trial court erred by refusing to place him on community corrections. URL:http://www.tba.org/tba_files/TCCA/BLEVINSH.OPN.WP6 STATE OF TENNESSEE, v. RICKY MICHAEL DIXON, Court:TCCA For the Appellant: For the Appellee: Jerry S. Sloan Charles W. Burson 730 Cherry Street, Suite C Attorney General and Reporter Chattanooga, TN 37402 Sarah M. Branch Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 William H. Cox III District Attorney General H. C. Bright Asst. District Attorney General Courts Building 600 Market Street Chattanooga, TN 37402 Judge: David G. Hayes First Paragraph: The appellant, Ricky Michael Dixon, was convicted by a Hamilton County jury of aggravated kidnapping, aggravated assault, and attempted sexual battery. The appellant received, respectively, concurrent sentences of twenty years confinement in the Department of Correction, fifteen years confinement in the Department of Correction, and eleven months and twenty-nine days confinement in the local workhouse. On appeal, the appellant presents the following issues: (1) whether the evidence is insufficient to support his convictions, and (2) whether his convictions violate the holding of our supreme court in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). After reviewing the record, we conclude that the evidence is sufficient. However, in light of the facts of this case and pursuant to Anthony, we agree that the appellant's multiple convictions and punishments violate the principle of fundamental fairness, depriving the appellant of his due process rights. For the reasons set forth below, we conclude that fundamental fairness requires the dismissal of the convictions for the lesser offenses and that the conviction for the greater offense of aggravated kidnapping should stand. URL:http://www.tba.org/tba_files/TCCA/DIXONRM.OPN.WP6 STATE OF TENNESSEE, v. JACKSON FANN, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Eugene B. Dixon Charles W. Burson Attorney at Law Attorney General & Reporter 215 Ellis Street 500 Charlotte Avenue Maryville, TN 37804-4915 Nashville, TN 37243-0497 (Appeal Only) Darian B. Taylor Kevin W. Shepherd Assistant Attorney General Attorney at Law 450 James Robertson Parkway 404 Ellis Avenue Nashville TN 37243-0493 Maryville, TN 37801 (Trial Only) Michael L. Flynn District Attorney General 363 Court Street Maryville, TN 37804-5906 Edward P. Bailey, Jr. Assistant District Attorney General 363 Court Street Maryville, TN 37804-5906 Judge: Joe B. Jones First Paragraph: The appellant, Jackson Fann, was convicted of three counts of statutory rape, a Class E felony, two counts of contributing to the unruliness of a minor, a Class A misdemeanor, and contributing to the delinquency of a minor, a Class A misdemeanor, by a jury of his peers. The trial court found the appellant was a standard offender and imposed a Range I sentence consisting of a $3,000 fine and confinement for two (2) years in the Department of Correction for each count of statutory rape. These three sentences are to be served consecutively. The trial court sentenced the appellant to confinement for eleven months and twenty-nine days in the Blount County Jail for each count of contributing to the unruliness of a minor and contributing to the delinquency of a minor. These three sentences are to be served concurrently to all other sentences. The effective sentence imposed by the trial court is confinement for six (6) years in the Department of Correction and fines totaling $9,000. In this Court, the appellant contends the evidence contained in the record is insufficient to support his convictions because (a) the two victims were accomplices and (b) their testimony was not corroborated. The judgment of the trial court is affirmed. This case is remanded for the entry of an amended judgment in Count I of indictment number 8227. URL:http://www.tba.org/tba_files/TCCA/FANNUJ.OPN.WP6 STATE OF TENNESSEE, v. BARBARA FULLER, Court:TCCA FOR THE APPELLANT: FOR THE APPELLEE: Charles G. Wright, Jr. Charles W. Burson 253 East 11th Street Attorney General & Reporter Chattanooga, TN 37402 Sharon S. Selby Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 Gary D. Gerbitz District Attorney General H.C. Bright Asst. Dist. Attorney General Courts Building Chattanooga, TN. 37402 Yolanda Mitchell Intern, D.A. Gen. Office Courts Building Chattanooga, TN 37402 Judge: Robert E. Burch First Paragraph: Appellant was charged with two counts of assault and one count of disorderly conduct. At a trial by jury, she was convicted of the first count of assault and acquitted of the second count of assault and of the disorderly conduct charge. She appeals of right to this Court, citing a single issue for review, to wit: the denial of her pre-trial motion to suppress. URL:http://www.tba.org/tba_files/TCCA/FULLERB.OPN.WP6 STATE OF TENNESSEE, v. JEFF WHITAKER, Court:TCCA For Appellant: Joe H. Walker District Public Defender Ninth Judicial District (on appeal) Walter B. Johnson Assistant Public Defender P.O. Box 224 Harriman, TN 37748 (on appeal and at trial) For Appellee: Charles W. Burson Attorney General & Reporter Darian B. Taylor Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Charles E. Hawk District Attorney General P.O. Box 703 Kingston, TN 37763 Frank Harvey Assistant District Attorney General P.O. Box 703 Kingston, TN 37763 Judge: Gary R. Wade First Paragraph: The defendant, Jeff Whitaker, waived his right to a jury trial and pled guilty to eight counts of rape of a child. The trial court imposed a Range l sentence of fifteen years for each count and ordered concurrent sentences except for counts one, eleven, and sixteen which are to be served consecutively. The effective sentence is 45 years. URL:http://www.tba.org/tba_files/TCCA/WHITAKER.OPN.WP6
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