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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- 00-New Opinons From TSC-Rules
- 04-New Opinons From TSC-Workers Comp Panel
- 15-New Opinons From TCA
- 08-New Opinons From TCCA
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DAVID HUTTON VS. RUTH E. JOHNSON Court:TSC Attorneys: FOR APPELLANT FOR APPELLEE John Knox Walkup Christopher M. Was Attorney General & Reporter Trabue, Sturdivant & DeWitt Nashville, Tennessee Michael E. Moore Solicitor General Michael W. Catalano Associate Solicitor General Nashville, Tennessee Judge:Drowota First Paragraph: We granted the application for permission to appeal filed by the defendant, Department of Revenue, regarding the issue whether the Court of Appeals erred in upholding the trial courtŐs determination that the plaintiff, in computing the use tax on a jet aircraft acquired by him in December of 1993, was entitled to a credit under Tenn. Code Ann. ¤ 67-6-510. We denied the application for permission to appeal filed by the plaintiff, David Hutton. URL:http://www.tba.org/tba_files/TSC/huttond_opn.WP6 STATE OF TENNESSEE VS. DEMETRIUS DEWAYNE UTLEY Court:TSC Attorneys: For Appellant: For Appellee: John Knox Walkup David Baker Attorney General & Reporter Assistant Public Defender Nashville, Tennessee Michael E. Moore Solicitor General Gordon W. Smith Associate Solicitor General Darian B. Taylor Assistant Attorney General Nashville, Tennessee Victor S. Johnson, III District Attorney General William R. Reed Assistant District Attorney Franklin, Tennessee Judge:ANDERSON First Paragraph: The question to be decided in this appeal is whether the defendant was denied his right to a speedy trial as required under the Sixth Amendment to the United States Constitution and Article I, ¤ 9 of the Tennessee Constitution. To answer that question, we must determine the type of state action which will engage the defendantŐs right to a speedy trial. URL:http://www.tba.org/tba_files/TSC/utleydd_opn.WP6 CHRISTOPHER STEVEN BAKER vs. MIDDLE TENNESSEE ACOUSTICS, INC. and CNA INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellees: Steven C. Norris J. Michael Morgan Nashville, Tennessee Ortale, Kelley, Herbert & Crawford, LLP Nashville, Tennessee Judge:Brandt First Paragraph: The plaintiff/appellant, Christopher Steven Baker, appeals from the trial court's decision holding that he failed to prove that he sustained an injury while working for the defendant/appellee, Middle Tennessee Acoustic, Inc. The outcome of the case hinges primarily on a determination of the plaintiff's credibility. URL:http://www.tba.org/tba_files/TSC_WCP/bakercs_opn.WP6 ELSIE HOPKINS vs. SAN ANTONIO SHOE, INC. Court:TSC - Workers Comp Panel Attorneys: For the Appellant: Fred C. Statum, III BOBO, HUNT & BOBO Shelbyville, Tennessee For the Appellee: Frank C. Lynch LYNCH, LYNCH & LYNCH Winchester, Tennessee Judge:MALOAN First Paragraph: On May 2, 1994, the plaintiff, Elsie Hopkins, fell at work and injured her right shoulder. At trial and on appeal the defendant, San Antonio Shoe, Inc., accepted the claim as compensable. The trial court awarded thirty-five percent (35%) permanent partial disability to the body as a whole and assessed a bad faith penalty of twenty percent (20%) of the temporary total disability benefits due in accordance with Tennessee Code Annotated S50-6-225(k). The defendant employer contends on appeal the evidence preponderates against a vocational disability award of thirty-five percent (35%) permanent partial disability to the body as a whole and any finding of bad faith. The plaintiff requests an award of post judgment interest. For the reasons stated in this opinion, the judgment of the trial court is affirmed. URL:http://www.tba.org/tba_files/TSC_WCP/hopkinse_opn.WP6 WILLIE M. NUTT vs. ANGELICA UNIFORM GROUP Court:TSC - Workers Comp Panel Attorneys: For the Appellant: Wm. Landis Turner KEATON, TURNER & SPITZER Hohenwald, Tennessee For the Appellee: Paul C. Ney, Jr. DORAMUS & TRAUGER Nashville, Tennessee Judge:MALOAN First Paragraph: The plaintiff, Willie M. Nutt, appeals the judgment of the trial court in dismissing her complaint as being barred by the statute of limitations. For the reasons stated in this opinion, we affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TSC_WCP/nuttwm_opn.WP6 KAY PERRYMAN vs. COSMOLAB, INC. Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: Luther E. Cantrell Walter W. Bussart Davies, Cantrell & Humphreys Bussart & Medley Nashville, Tennessee Lewisburg, 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 the evidence preponderates against the trial court's award of permanent partial disability benefits and temporary total disability benefits. The employee concedes the award of temporary total disability benefits is excessive, but contends the trial court used an incorrect compensation rate. As discussed below, the panel has concluded the award of permanent partial disability benefits should be affirmed and the award of temporary total disability benefits modified. The case is remanded for additional proof as to the correct compensation rate. URL:http://www.tba.org/tba_files/TSC_WCP/perryman_opn.WP6 STACEY M. ACKER, by next friend RAY ACKER, vs. WARREN COUNTY BOARD OF EDUCATION and WARREN COUNTY, TENNESSEE Court:TCA Judge:TODD First Paragraph: This is an action for damages against Warren County and the Warren County Board of Education for injuries sustained by a student who fell down a stairway. The proof showed that someone used a chair to prop open a fire door at the top of the stairs. As the plaintiff passed through the door and started down the stairs, another student inadvertently kicked the chair and it struck the plaintiff, causing her to fall. URL:http://www.tba.org/tba_files/TCA/ackersm_ord.WP6 AMERICAN COLOR, a division of SULLIVAN GRAPHICS, INC. vs. INNOVO, INC. Court:TCA Attorneys: Patrick Johnson Cavalier Building, Suite 508 95 White Bridge Road Nashville, TN 37205 ATTORNEY FOR PLAINTIFF/APPELLEE Lisa M. Sherrill 509 West Court Square Springfield, TN 37172 ATTORNEY FOR DEFENDANT/APPELLANT Judge: TODD First Paragraph: The defendant, Innovo, Inc., has appealed from a non jury judgment, in the amount of $58,856.26, in favor of the plaintiff, American Color, a division of Sullivan Graphics, Inc., for merchandise sold and services rendered to the defendant. URL:http://www.tba.org/tba_files/TCA/amercol_opn.WP6 URL:http://www.tba.org/tba_files/TCA/americac_con.WP6 PAULA RENEE STEPHENS COONER vs. GARY KENT COONER Court:TCA Judge:TODD First Paragraph: The appellant has filed a respectful petition to rehear on two grounds: URL:http://www.tba.org/tba_files/TCA/coonerpr_ord.WP6 State of Tennessee, Department of Human Services, vs. Sylvia Fetterolf Ford and Stanley Fetterol Court:TCA Attorneys: SAMUEL L. HARRIS P.O. Box 873 Cookeville, Tennessee 38503 ATTORNEY FOR RESPONDENT/APPELLANT RANDY S. CHAFFIN 100 S. Jefferson Avenue Cookeville, Tennessee 38501 ATTORNEY FOR RESPONDENT/APPELLANT JOHN KNOX WALKUP Attorney General & Reporter DOUGLAS EARL DIMOND Assistant Attorney General General Civil Division 2nd Floor Cordell Hull Bldg. 425 5th Avenue North Nashville, Tennessee 37243-0499 ATTORNEY FOR PETITIONER/APPELLEE Judge: BUSSART First Paragraph: This is an appeal by respondents/appellants, Stanley Fetterolf and Sylvia Fetterolf Ford, from a decision of the Putnam County Juvenile Court terminating their parental rights. Ms. Ford argues petitioner/appellee, State of Tennessee Department of Human Services ("Department"), filed its petition for termination of parental rights in the wrong court and contends the proper venue was the Overton County Juvenile Court which had handled the initial custody proceedings. URL:http://www.tba.org/tba_files/TCA/fords_opn.WP6 RICK HOLLOWAY vs. JOHN R. COLLIER, JR. Court:TCA Attorneys: John S. Colley, III #12029 COLLEY & COLLEY P.O. Box 1476 Columbia, Tennessee 38402-1476 ATTORNEY FOR PLAINTIFF/APPELLEE Robert L. Trentham, #2257 Mark Tyler Seitz, #11868 TRABUE STURDIVANT & DEWITT 2500 Nashville City Center 511 Union Street Nashville, Tennessee 37219 ATTORNEYS FOR DEFENDANT/APPELLANT Judge:TODD First Paragraph: The defendant, John R. Collier, Jr., has appealed from a jury verdict and judgment awarding the plaintiff, Rick Holloway, $17,000.00 compensatory damages for a tort described in the complaint as follows. URL:http://www.tba.org/tba_files/TCA/hollowyr_opn.WP6 URL:http://www.tba.org/tba_files/TCA/hollowar_con.WP6 JOSEPH JONES vs. LINDA RUDOLPH, COMMISSIONER, TENNESSEE DEPARTMENT OF HUMAN SERVICES, Court:TCA Attorneys: John Knox Walkup Attorney General & Reporter Sue A. Sheldon #152295 Assistant Attorney General 1510 Parkway Towers 404 James Robertson Parkway ATTORNEYS FOR DEFENDANT/APPELLANT Norman B. Feaster, II Legal Services of South Central TN, Inc. P.O. Box 1293 Tullahoma, TN 37388 ATTORNEY FOR PLAINTIFF/APPELLEE Judge: TODD First Paragraph: The Trial Court and this Court have granted interlocutory appeal from an order overruling the motion of the Commissioner of Human Services to dismiss the petition of Joseph Jones for judicial review of an administrative decision of the Commissioner. URL:http://www.tba.org/tba_files/TCA/jonesj_opn.WP6 LAIDLAW ENVIRONMENTAL SERVICES OF SOUTH CAROLINA, INC. vs. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee: Thomas V. White Stephen O. Nunn John P. Williams Metropolitan Attorney Tune, Entrekin & White Nashville, Tennessee Judge:KOCH First Paragraph: This appeal involves a dispute arising out of the performance of a contract to dispose of fly ash generated by the Nashville Thermal Transfer plant. After agreeing to increase the amount of ash it removed from the plant each day, the disposal company filed a breach of contract action against the Metropolitan Government in the Chancery Court for Davidson County. It alleged that it was entitled to be compensated based on a minimum charge per container rather than on the weight of the ash actually removed. The trial court granted the Metropolitan Government's motion for summary judgment after determining that the parties' original contract did not specify a minimum payment for each container removed and that the parties had not amended their contract to permit these charges. The disposal company asserts on this appeal that the trial court should not have granted the summary judgment because of material factual disputes concerning the meaning of certain contract terms. We have determined that the trial court correctly interpreted the contract as a matter of law and, therefore, affirm. URL:http://www.tba.org/tba_files/TCA/laidlawe_opn.WP6 PAUL KEVIN NELSON vs. THE APPLICATION GROUP, INC. Court:TCA Attorneys: Philip D. Irwin, #12128 NEAL & HARWELL, PLC 2000 First Union Tower 150 Fourth Avenue North Nashville, TN 37219-2498 ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLEE W. Reece Willis, III, #15085 WILLIS & KNIGHT 215 Second Avenue, North Nashville, TN 37201 ATTORNEY FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLANT Judge: TODD First Paragraph: This appeal involves the action of the Circuit Court in respect to appeals from two judgments of the General Sessions Court which were handled under a single caption and docket number in the Circuit Court and have been certified to this Court as a single appeal. URL:http://www.tba.org/tba_files/TCA/nelsonpk_opn.WP6 URL:http://www.tba.org/tba_files/TCA/nelsonpk_con.WP6 URL:http://www.tba.org/tba_files/TCA/nelsonp_con.WP6 Michael Keith Newcomb, and wife Caroline Newcomb, Darden E. Davis and wife, Ann J. Davis vs. William Gonser, and wife Lois Gonser, and Christopher Gonser, and wife Lisa Gonser, and Shirley Zeitlin & Company. Court:TCA Attorneys: GREGORY L. CASHION CAROL R. DUNN Manier, Herod, Hollabaugh & Smith 150 Fourth Avenue, North, Suite 2200 Nashville, Tennessee 37219 ATTORNEY FOR THE PLAINTIFFS/APPELLANTS JOHN J. HOLLINS, JR. Hollins, Wagster & Yarbrough, P.C. 424 Church Street, 2210 SunTrust Center Nashville, Tennessee 37219 ATTORNEY FOR THE DEFENDANTS/APPELLEES Judge:BUSSART First Paragraph: This is an appeal by plaintiffs/appellants, Michael and Caroline Newcomb and Darden and Ann Davis, from the decision of the Davidson County Chancery Court granting the motion for summary judgment filed by defendants/appellees William and Lois Gonser. The facts out of which this matter arose are as follows. URL:http://www.tba.org/tba_files/TCA/newcombm_opn.WP6 PATRICIA ANN WOLFE, BETTIE L. ROBERTS, PATRICIA PELTON ODIE L. MANN, BOYD STUBBLEFIELD, and RICHARD G. RAY vs. THE UNIVERSITY OF TENNESSEE and THE UNIVERSITY OF TENNESSEE SPACE INSTITUTE Court:TCA Attorneys: MARY A. PARKER STEPHEN C. CROFFORD PARKER AND CROFFORD 209 Tenth Avenue So., Suite 511 Cummins Station Nashville, TN 37203 ATTORNEYS FOR PLAINTIFFS/APPELLANTS ALICE M. WOODY ALAN M. PARKER Assistant General Counsel LEWIS, KING, KRIEF, THE UNIVERSITY OF TENNESSEE WALDROP & CATRON 719 Andy Holt Tower One Centre Square Knoxville, TN 37908-0170 Knoxville, TN 37901 BEN P. LYNCH LYNCH, LYNCH & LYNCH P.O. Box 310 Winchester, TN 37398 ATTORNEYS FOR DEFENDANTS/APPELLEES Judge: TODD First Paragraph: Six plaintiffs joined in this age discrimination suit under the Tennessee Human Rights Act, T.C.A. SS 4-21-101 et seq.. The Trial Court rendered summary judgment dismissing the suits of all plaintiffs, who have appealed, submitting a single issue for review and the correctness of the summary judgment. URL:http://www.tba.org/tba_files/TCA/wolfep_opn.WP6 URL:http://www.tba.org/tba_files/TCA/wolfepa_con.WP6 STATE OF TENNESSEE vs. NASSEL BROWN Court:TCCA Attorneys: For the Appellant: For the Appellee: A. C. Wharton, Jr. Charles W. Burson District Public Defender Attorney General of Tennessee and Diane Thackery Georgia Blythe Felner Assistant Public Defender Asst Attorney General of TN 201 Poplar Avenue 450 James Robertson Parkway Memphis, TN 38103 Nashville, TN 37243-0493 (AT TRIAL) John W. Pierotti, Jr. Walker Gwinn District Attorney General Assistant Public Defender and 201 Poplar Avenue Patience R. Branham Memphis, TN 38103 Asst District Attorney General (ON APPEAL) 201 Poplar Avenue Memphis, TN 38103 Judge: Tipton First Paragraph: The defendant, Nassel Brown, appeals as of right from his conviction for rape of a child, a Class A felony, in the Shelby County Criminal Court. As a Range I, standard offender, the defendant received a sentence of fifteen years in the Department of Correction. In this appeal as of right, he contends that the evidence is insufficient to support his conviction because the state failed to prove that he penetrated the victim. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/brownn_opn.WP6 STATE OF TENNESSEE vs. JAMES R. BUSSELL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN H. HENDERSON JOHN KNOX WALKUP District Public Defender Attorney General and Reporter C. DIANE CROSIER DARYL J. BRAND Asst District Public Defender Assistant Attorney General 407-C Main Street 450 James Robertson Parkway P. O. Box 68 Nashville, TN 37243-0493 Franklin, TN 37065-0068 JOSEPH D. BAUGH, JR. District Attorney General JEFFREY P. BURKS Asst District Attorney General Courthouse, Ste. G-6 P. O. Box 937 Franklin, TN 37065-0937 Judge: RILEY First Paragraph: This is an appeal resulting from defendant's plea of guilty to driving under the influence of an intoxicant, fourth offense, and driving on a revoked license. For the DUI offense, defendant received a sentence of eleven (11) months and twenty-nine (29) days with a requirement that he serve two hundred twenty (220) days in jail followed by supervised probation for the balance of the eleven (11) months and twenty-nine (29) days. For driving on a revoked license, he received a suspended six (6) month sentence to run consecutively to the DUI sentence. The sole issue on appeal is whether the trial court erred in ordering consecutive sentencing. We affirm the judgment of the trial court pursuant to Rule 20, Tennessee Court of Criminal Appeals. URL:http://www.tba.org/tba_files/TCCA/busseljr_opn.WP6 CHARLES RAY CLEM vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: D. STUART CAULKINS JOHN KNOX WALKUP 212 East Main Street Attorney General and Reporter Franklin, TN 37064-2507 ELLEN H. POLLACK Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 JOSEPH D. BAUGH, JR. District Attorney General DEREK K. SMITH Asst District Attorney General Courthouse, Ste. G-6 P. O. Box 937 Franklin, TN 37065-0937 Judge:RILEY First Paragraph: Petitioner, Charles Ray Clem, appeals the dismissal of his petition for post-conviction relief by the Circuit Court of Williamson County. Petitioner presents the following issues for our review: (1) whether medical testimony was improperly admitted at his original trial under the fresh complaint doctrine; and (2) whether the indictment was fatally deficient for failure to properly allege the mens rea elements of aggravated rape and rape. We affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/clemcr_opn.WP6 STATE OF TENNESSEE vs. CLIFTON EPPS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CHARLES W. BURSON RANDALL W. PIERCE Attorney General and Reporter Wampler, Pierce & Siegel, P.C. 294 Washington Avenue ELLEN H. POLLACK Memphis, TN 38103 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General JAMES M. LAMMEY Assistant District Attorney 201 Poplar Avenue, Third Floor Memphis, TN 38103 Judge: SMITH First Paragraph: Appellant Clifton Epps was convicted upon his plea of guilty of the offense of driving while a habitual motor vehicle offender. See Tenn. Code Ann. S 55-10-616. He received a sentence of one year in the Shelby County Workhouse, however the Appellant was allowed by the trial court to serve his sentence in a community corrections program. See Tenn. Code Ann. S 40-36-101, et seq. The State of Tennessee filed this appeal which challenges the eligibility of Appellant for a community corrections placement. URL:http://www.tba.org/tba_files/TCCA/eppsc_opn.WP6 DAVID HASSELL vs. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Elbert E. Edwards, III John Knox Walkup Attorney at Law Attorney General & Reporter 46 North Third Street, Suite 824 Memphis, TN 38103 Elizabeth B. Marney Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 William L. Gibbons District Attorney General C. Alanda Horne Judson W. Phillips P. T. Hoover Asst District Attorneys General 201 Poplar Avenue, 3rd Floor Memphis, TN 38103 Judge:SUMMERS First Paragraph: The appellant, David Hassell, was convicted by a jury of first degree murder. He was sentenced to life imprisonment. On direct appeal we affirmed his conviction. He then filed a petition for post-conviction relief alleging that he received ineffective assistance of counsel. After a hearing, the trial court denied the petition, finding that the appellant had failed to prove any of the allegations in his petition. He appeals the dismissal of his petition. Upon review, we affirm. URL:http://www.tba.org/tba_files/TCCA/hasselld_opn.WP6 STATE OF TENNESSEE vs. ROBBIE JAMES Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: EDWARD J. GROSS JOHN KNOX WALKUP Parkway Towers, Ste. 1601 Attorney General and Reporter Nashville>=w @>=a* ELLEN H()()APLLACK Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General WILLIAM R. REED Assistant District Attorney General Washington Sq., Ste. 500 222-2nd Avenue, N. Nashville, TN 37201-1649 Judge: RILEY First Paragraph: Having been found guilty of rape of a child by a Davidson County jury, defendant has filed this direct appeal. She was sentenced as a Standard Offender for this Class A felony to the minimum sentence of 15 years in the Department of Correction. URL:http://www.tba.org/tba_files/TCCA/jamesr_opn.WP6 GARY S. MAYES vs. STATE OF TENNESSEE Court:TCCA Judge:WOODALL First Paragraph: This matter is before the Court upon the state's motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner is appealing the trial court's denial of his petition for writ of habeas corpus. In April of 1993, the petitioner was indicted on one count of aggravated sexual battery, and subsequently pled guilty to the same. In the present appeal, the petitioner contends the judgment entered against him is void because the indictment failed to allege the mens rea of the offense charged. URL:http://www.tba.org/tba_files/TCCA/mayesg_ord.WP6 STATE OF TENNESSEE vs. MICHAEL MOORE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: A C Wharton John Knox Walkup Shelby County Public Defender Attorney General & Reporter Edward G. Thompson Deborah A. Tullis Assistant Public Defender Assistant Attorney General Criminal Justice Division Sherry Brooks Cordell Hull Building, 2nd Floor Assistant Public Defender 425 Fifth Avenue North 201 Poplar Avenue, Second Floor Nashville, TN 37243 Memphis, TN 38103 William L. Gibbons District Attorney General P.T. Hoover Asst District Attorney General 201 Poplar Avenue, 3rd Floor Memphis, TN 38103 Judge:SUMMERS First Paragraph: The appellant, Michael Moore, was convicted by a jury of selling cocaine. He received a ten-year sentence as a Range III, persistent offender. He appeals his conviction and sentence alleging that the trial court erred in failing to correctly charge the jury and failing to articulate the factors used in computing his sentence. Upon review, we affirm. URL:http://www.tba.org/tba_files/TCCA/mooremic_opn.WP6
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