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
- 08-New Opinons From TSC-Workers Comp Panel
- 00-New Opinons From TCA
- 08-New Opinons From TCCA
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MARVIN McCARLEY AND ELLYSE McCARLEY vs. WEST QUALITY FOOD SERVICE d/b/a KENTUCKY FRIED CHICKEN Court:TSC Attorneys: FOR APPELLEE: FOR APPELLANTS: Clinton V. Butler, Jr. T. Verner Smith Dale Conder, Jr. Jackson Rainey, Kizer, Butler, Reviere & Bell Jackson Judge: HOLDER First Paragraph: The plaintiffs, Marvin and Ellyse McCarley, appeal the summary dismissal of their complaint alleging that Mr. McCarley received food poisoning after ingesting food improperly prepared by the defendant, Kentucky Fried Chicken. The trial court granted the defendant's motion for summary judgment. The Court of Appeals affirmed and held that the plaintiffs' proof was insufficient to establish the element of causation. We granted appeal to address: (1) the Court of Appeals' analysis in summary judgment dispositions; and (2) the quantum and type of proof plaintiffs must proffer to survive summary dismissal in negligent food poisoning cases. Upon review, we reverse and remand for further proceedings consistent with this opinion. COURT OF APPEALS REVERSED CASE REMANDED. URL:http://www.tba.org/tba_files/TSC/MCCARLEY_OPN.WP6 WILLIAM ROBINSON, a/k/a BILLY C. ROBINSON vs. JAMES R. OMER, SR. Court:TSC Attorneys: FOR PLAINTIFF/APPELLEE: FOR DEFENDANT/APPELLANT: Robert L. Callis Winston S. Evans Callis & Hershey Evans, Jones, & Reynolds Mt. Juliet, Tennessee Nashville, Tennessee Judge: DROWOTA First Paragraph: The plaintiff, William Robinson, brought this action against the defendant, attorney James R. Omer, Sr., alleging negligent misrepresentation. Robinson asserts that he agreed to secretly videotape the sexual encounters of his friend, and Omer's client, Dewey Lineberry, in reliance upon Omer's erroneous advice that the videotaping was legally permissible. Robinson initiated this action seeking to recover compensatory and punitive damages after he settled the civil lawsuits which were filed against him by some of the women who were secretly taped. COURT OF APPEALS REVERSED IN PART JUDGMENT OF TRIAL COURT REINSTATED. URL:http://www.tba.org/tba_files/TSC/robinw_opn.WP6 KAY E. BLACKWOOD, JR. vs. THE BERKLINE CORPORATION and CONTINENTAL CASUALTY CORPORATION Court:TSC - Workers Comp Panel Attorneys: For Appellants: For Appellee: Mark C. Travis Frank D. Farrar Cookeville, Tennessee William Joseph Butler Lafayette, Tennessee Judge: Loser First Paragraph: The appellants contend (1) the award of permanent partial disability benefits is excessive, (2) it was error for the trial judge to become a witness in the case and (3) the trial judge abused his discretion by commuting permanent partial benefits to a lump sum. The panel has concluded the award of permanent partial disability benefits should be modified and, as modified, paid in a lump sum, and the evidential remarks of the trial judge were harmless in light of our modification. URL:http://www.tba.org/tba_files/TSC_WCP/BLKWOODK_OPN.WP6 JOSEPH CRAIG vs. MURRAY GUARD, INC. and FIREMAN'S FUND INSURANCE CO Court:TSC - Workers Comp Panel Attorneys: For Appellants: For Appellee: Mark H. Floyd Wm. Ritchie Pigue Susan G. Lindsey William G. McCaskill, Jr. Floyd & Tudor Taylor, Philbin, Pigue, Nashville, Tennessee Marchetti & Bennett Nashville, Tennessee Judge: Loser First Paragraph: In this appeal, the employer and its insurer contend the injury did not arise out of the employment and that the award of permanent partial benefits is excessive. The employee contends the award is inadequate. AFFIRMED. URL:http://www.tba.org/tba_files/TSC_WCP/craigj_opn.WP6 JOANN GLOVER vs. PHILIPS CONSUMER ELECTRONICS COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellees: G.P. Gaby Robert Payne Cave, Sr. Milligan & Coleman 104 N. College St. P.O. Box 1060 Greeneville, TN 37743 Greeneville, TN 37744-1060 Judge: BYERS First Paragraph: The plaintiff, who was 38 years of age at the time of this trial and who has a meager education, testified she fell over a fan on September 15 or 16, 1993 while working for the defendant and injured her back. The trial judge awarded 31% permanent partial disability to the body as a whole. We affirm in part and reverse in part. URL:http://www.tba.org/tba_files/TSC_WCP/glover_wc.WP6 ABIGAIL S. HACKETT vs. THE FIDELITY & CASUALTY COMPANY OF NEW YORK and G.F. OFFICE FURNITURE Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellees: Elaine Youngblood E. Guy Holliman OTALE, KELLY, HERBERT & CRAWFORD Lafayette, Tennessee Nashville, Tennessee Judge: Brandt First Paragraph: This case presents the issue of whether permanent partial disability ("PPD") awards of 50% and 25% are excessive in light of anatomical disability ratings of 12% and 5%. We conclude that the awards were not excessive and affirm the trial court's decision. URL:http://www.tba.org/tba_files/TSC_WCP/hacketta_opn.WP6 BRENDA GAIL HOWELL vs. MURRAY, INC. Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: Ben Boston Hershell D. Koger Christopher V. Sockwell Pulaski, Tennessee Lawrenceburg, Tennessee Judge: Loser First Paragraph: The appellant employer insists (1) the award of permanent partial disability benefits based on sixty percent to the body as a whole is excessive, (2) the trial court applied an incorrect compensation rate, and (3) the trial court erred in commuting the award to a lump sum. The lump sum issue was withdrawn during oral argument. URL:http://www.tba.org/tba_files/TSC_WCP/howellbg_opn.WP6 CHARLES H. SMITH vs. KINETIC CONCEPTS, INC. Court:TSC - Workers Comp Panel Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: AUGUST C. WINTER D. BRETT BURROW Two Brentwood Commons BREWER, KRAUSE, BROOKS & MILLS Suite 150 Suite 2600, The Tower 750 Old Hickory Boulevard 611 Commerce Street Brentwood, TN 37027 Nashville, TN 37203 Judge: RUSSELL First Paragraph: We have carefully reviewed and weighed all of the evidence presented to the chancellor. The employee appellant contends that he is owed temporary total and temporary partial benefits denied by the trial judge, and that the award of 24% permanent partial disability to the body as a whole is too low. REVERSED IN PART, AFFIRMED IN PART and REMANDED. URL:http://www.tba.org/tba_files/TSC_WCP/smithch_opn.WP6 ROBERT STONE vs. SATURN CORPORATION Court:TSC - Workers Comp Panel Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: J. ANTHONY ARENA THOMAS H. PEEBLES, IV SCHULMAN, LEROY & BENNETT, P.C. DANA C. McLENDON, III P.O. Box 190676 WALLER, LANSDEN, DORTCH Nashville, TN 37219-0676 & DAVIS P. O. Box 1035 Columbia, TN 38402-1035 Judge: RUSSELL First Paragraph: Robert Stone, the appellant, was an assembly line worker for the Saturn Corporation when, on December 17, 1991, he injured his right shoulder, elbow and wrist. AFFIRMED. URL:http://www.tba.org/tba_files/TSC_WCP/stoner_opn.WP6 SHIRLEY WILLIAMS vs. SWEETWATER HOSPITAL ASSOCIATION Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: John W. Cleveland Lynn C. Peterson Cleveland & Cleveland Wimberly Lawson Norton & Luhn, PLLC 120 W. Morris Street P. O. Box 2467 Sweetwater, Tennessee 37874 Knoxville, Tennessee 37901-2467 Judge: BYERS First Paragraph: Plaintiff alleged a work-related aggravation of a pre-existing non-work related back condition. She alleged that medical expenses and temporary total disability benefits had been paid by the employer but sought permanent partial disability, future medical expenses and discretionary costs. AFFIRMED. URL:http://www.tba.org/tba_files/TSC_WCP/WILLIAMS3_OPN.WP6 STEVEN D. BASS vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Steven D. Bass, Pro Se Charles W. Burson 214227 NECC Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683-5000 Peter M. Coughlan Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 David E. Crockett District Attorney General Route 19, Box 99 Johnson City, TN 37601 Judge: SUMMERS First Paragraph: The appellant, Steven D. Bass, pled guilty to three counts of aggravated robbery and one count of aggravated rape. He received an effective sentence of fifteen years incarceration. Thereafter, he filed a petition for habeas corpus relief alleging that the indictment against him was fatally insufficient. The trial court denied the appellant's petition. He appeals the trial court's decision by asserting that State v. Hill, No. 01C01 9508-CC-00267 (Tenn. Crim. App. at Nashville, June 20, 1996), supports the proposition that the judgment entered against him is void because the indictment failed to allege the requisite mens rea for aggravated rape. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/bassstev_opn.WP6 STEVEN D. BASS vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: LARRY EDWARD CLAWSON, pro se JOHN KNOX WALKUP Federal Correctional Institution Attorney General & Reporter P.O. Box 4000 Whitley A Manchester, KY 40962-4000 MICHAEL J. FAHEY, II Asst. Attorney General 450 James Robertson Pkwy. Nashville, TN 37243-0493 DAVID CROCKETT District Attorney General Rt. 19, Box 99 Johnson City, TN 37601 Judge: PEAY First Paragraph: The petitioner pled guilty on June 5, 1985, to armed robbery. He took no direct appeal from this conviction. This petition for post-conviction relief was filed on May 9, 1996. The court below dismissed the petition finding that it was barred by the three year statute of limitations. We affirm. URL:http://www.tba.org/tba_files/TCCA/clawsole_opn.WP6 STATE OF TENNESSEE vs. STEVEN F. FARR Court:TCCA Attorneys: FOR THE APPELLANT FOR THE APPELLEE Julie A. Martin John Knox Walkup P.O. Box 426 Attorney General & Reporter Knoxville, TN 37901-0426 Marvin E. Clements, Jr. Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243 0493 Randall E. Nichols District Attorney General Charme Johnson Asst District Attorney General City-County Bldg. Knoxville, TN 37901-0426 Judge: BYERS First Paragraph: The defendant was convicted of two counts of the rape of a child and two counts of aggravated sexual battery. He was sentenced to serve 23 years on each rape conviction and 11 years on each of the aggravated sexual battery convictions as a Range 1 offender. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/farr_cca.WP6 STATE OF TENNESSEE vs. LATHANIEL HANEY Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Susanna L. Thomas John Knox Walkup Assistant Public Defender Attorney General & Reporter 102 Mims Avenue 500 Charlotte Avenue Newport, TN 37821-3614 Nashville, TN 37243-0497 OF COUNSEL: Marvin E. Clements, Jr. Assistant Attorney General Edwin C. Miller 450 James Robertson Parkway District Public Defender Nashville, TN 37243-0493 P.O. Box 416 Dandridge, TN 37725 Alfred C. Schmutzer, Jr. District Attorney General 125 Court Avenue, Suite 301E Sevierville, TN 37862 Charles E. Atchley, Jr. Asst District Attorney General 125 Court Avenue, Suite 301E Sevierville, TN 37862 Judge: Jones First Paragraph: The appellant, Lathaniel Haney (defendant), was convicted of five (5) counts of selling cocaine, a Class B felony, two counts of selling cocaine, a Class C felony, and simple possession of marijuana, a Class A misdemeanor, by a jury of his peers. The trial court found the defendant was a multiple offender and imposed the following Range II sentences: cases 6124, 6125, 6128, 6129, and 6130, sale of cocaine, confinement for eighteen (18) years in the Department of Correction in each case; and cases 6126 and 6127, sale of cocaine less than one-half gram, confinement for eight (8) years in the Department of Correction in each case. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/haneyl_opn.WP6 WILLIAM LEWIS HOWELL vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: LESLIE M. JEFFRESS JOHN KNOX WALKUP 1776 Riverview Tower Attorney General and Reporter 900 S. Gay Street Knoxville, TN 37902 MARVIN E. CLEMENTS, JR. Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 RANDALL E. NICHOLS District Attorney General CHARME JOHNSON Asst District Attorney General City-County Building Knoxville, TN 37902 Judge: WELLES First Paragraph: The Defendant appeals as of right from the trial court's dismissal of his petition for post-conviction relief without conducting an evidentiary hearing and without considering the merits of the petition. We reverse the judgment of the trial court and remand this case for further proceedings. REVERSED AND REMANDED. URL:http://www.tba.org/tba_files/TCCA/howellwl_opn.WP6 STATE OF TENNESSEE vs. PATRICIA LAWSON Court:TCCA Attorneys: FOR THE APPELLANT FOR THE APPELLEE Herbert Holcomb John Knox Walkup 101 Church Street Attorney General & Reporter Rogersville, TN 37857 Marvin E. Clements, Jr. Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 C. Berkeley Bell, Jr. District Attorney General William Floyd Rhea Asst District Attorney General North Court Street Sneedville, TN 37869 Judge: BYERS First Paragraph: On September 26, 1994, the petitioner filed a petition for post-conviction relief in which she asserts the following issues: A. Whether Ms. Lawson's plea of guilty was voluntary despite her mental condition at the time said plea was entered? B. Whether Ms. Lawson was denied effective assistance of counsel, in that despite her diminished mental capacity at the times surrounding her case preparation and entry of her guilty plea, defense counsel did not move the Court for a mental evaluation. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/lawson_cca.WP6 EUGENE MONTGOMERY vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: A. James Andrews Attorney at Law 606 W. Main St. Knoxville, Tn. 37902 FOR THE APPELLEE: Charles W. Burson Attorney General and Michael J. Fahey Assistant Attorney General 450 James Robertson Parkway Nashville, Tn. 37243 Kenneth Baldwin Assistant District Attorney 900 E. Elk Ave. Elizabethton, Tn. 37643 Judge: LEE First Paragraph: This is an appeal as of right from a judgment of the trial court summarily dismissing the appellant's petition for post-conviction relief. The appellant originally filed a writ of habeas corpus. The trial court apparently treated the writ as a petition for post conviction relief and dismissed the petition without appointing counsel or conducting an evidentiary hearing. The judgment of the trial court is reversed. This matter is remanded to the trial court for an appointment of counsel and an evidentiary hearing. URL:http://www.tba.org/tba_files/TCCA/montgome_opn.WP6 DAVID E. RUTHERFORD vs. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Mark E. Stephens John Knox Walkup District Public Defender Attorney General & Reporter Sixth Judicial District Sandy R. Copous Paula R. Voss Assistant Attorney General John Halstead 450 James Robertson Parkway Assistant Public Defender Nashville, TN 37243-0493 1209 Euclid Avenue Knoxville, TN 37921 Randall E. Nichols District Attorney General Marsha Selecman Asst District Attorney General City-County Bldg. Knoxville, TN 37902 Judge: BYERS First Paragraph: The appellant was convicted and sentenced to twenty years as a range I standard offender in September 1984. On September 17, 1993 the appellant filed a motion reduction of sentence under Rule 35 of the Tennessee Rules of Criminal Procedure. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/rutherfo_cca.WP6
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