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TBALink Opinion-Flash
September 15, 1997 -- Volume #3 -- Number #086
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.
- This Issue (IN THIS ORDER):
- 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
- 02-New Opinons From TSC
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TBALink Chief Editor
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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© Copyright 1998 Tennessee Bar Association - This Issue (IN THIS ORDER):