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TBALink Opinion-Flash
December 9, 1998 -- Volume 4 -- Number 176
What follows is the case style or name, first paragraph, author's name, and the names of the attorneys for the parties of each opinion released today from Tennessee's three appellate courts.
- This Issue (IN THIS ORDER):
- 02-New Opinion(s) from the Tennessee Supreme Court
- 02-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
- 01-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
- 05-New Opinion(s) from the Tennessee Court of Appeals
- 08-New Opinion(s) from the Tennessee Court of Criminal Appeals
- 00-New Judicial Ethics Opinion(s)
- 00-New Formal Ethics Opinion(s) from the Board of Professional Responsibility
- 02-New Opinion(s) from the Tennessee Supreme Court
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Lucian T. Pera
Editor-in-Chief, TBALink
ANNE CROSSETT VS. BABCOCK INDUSTRIES, FAULTLESS CASTER DIVISION and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA JUDGMENT ORDER Court:TSC Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and ... URL:http://www.tba.org/tba_files/TSC/crossett_jo.WP6
MILLER HIGH
VS.
GF OFFICE FURNITURE, LTD.
Court:TSC
Judge: PER CURIAM
First Paragraph:
This case is before the Court upon the entire record, including the
order of referral to the Special Workers' Compensation Appeals Panel,
and the Panel's Memorandum Opinion setting forth its findings of fact
and conclusions of law, which are incorporated herein by reference.
Whereupon, it appears to the Court that the Memorandum Opinion of the
Panel should be accepted and approved; and ...
URL:http://www.tba.org/tba_files/TSC/highm_jo.WP6
JAMIA B. GARDNER
VS.
MODINE MANUFACTURING COMPANY, INC. and SENTRY INSURANCE CO.
and
DINA TOBIN, DIRECTOR OF THE SECOND INJURY FUND
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellants: For the Appellees:
Michael J. Mollenhour Roger E. Ridenour
P.O. Box 9299 P.O. Box 530
Knoxville, Tenn. 37940 Clinton, Tenn. 37717-0530
Kathleen W. Stratton
425 Fifth Avenue North
2nd Floor, Cordell Hull Bldg.
Nashville, Tenn. 37243
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.
The employer, Modine Manufacturing Company, Inc., has appealed from
the action of the trial court in awarding the employee, Jamia B.
Gardner, 80% permanent partial disability to each arm. The trial
court dismissed the case against the Second Injury Fund.
URL:http://www.tba.org/tba_files/TSC_WCP/gardnerj_opn.WP6
WILLIAM E. WALDEN
VS.
NEW LIFE MINISTRIES d/b/a NEW LIFE MATERNITY HOME
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
Ginger F. Wilson Roger E. Jenne
P.O. Box 1083 P.O. Box 161
Cleveland, Tenn. 37364-1083 Cleveland, Tenn. 37364
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.
The employer, New Life Bible Church, Inc., has perfected this appeal
from a ruling of the trial court in awarding the employee, William E.
Walden, a judgment in the sum of $34,187.64 representing a recovery
for unpaid medical expenses in the sum of $33,193.69 and for
reimbursement of travel expenses in the sum of $993.95.
URL:http://www.tba.org/tba_files/TSC_WCP/walderwi_opn.WP6
SUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL
Court:TSC - Rules
URL:http://www.tba.org/tba_files/TSC_Rules/statelst_127.WP6
FREDERIC B. INGRAM
VS.
WILLIAM F. EARTHMAN
CORRECTED OPINION (p. 37) -- Original filed 10/21/98
Court:TCA
Attorneys:
For the Plaintiff/Appellee: For the Defendant/Appellant:
James V. Doramus Maclin P. Davis, Jr.
Gregory Mitchell H. Buckley Cole
Doramus & Trauger Jonathan Cole
Nashville, Tennessee Baker Donelson Bearman & Caldwell
Nashville, Tennessee
Judge:KOCH
First Paragraph:
This appeal involves a dispute between two former friends and business
associates over a sizeable personal debt. After one of the friends
failed to repay a $1,700,000 loan, the friend who had loaned the money
filed suit in the Chancery Court for Davidson County seeking to
recover the loan and interest. The borrower asserted that the lender
had delayed too long in filing suit and counterclaimed for allegedly
unpaid compensation and retirement benefits. A jury awarded the
lender $5,667,122.84 on the debt, and the trial court, with the
parties' consent, awarded the lender an additional $400,000 for his
legal expenses. On this appeal, the borrower raises numerous issues
relating to the denial of his motions for directed verdict, the
adequacy of the jury instructions, the instructions limiting the use
of the evidence of the lender's prior criminal conviction, and the
excessiveness of the verdict. We have determined that the judgment
should be affirmed.
URL:http://www.tba.org/tba_files/TCA/ingramfb_opn.WP6
SHIN YI (SUNNY) LIEN and wife, ANN LIEN
VS.
RUTH COUCH, individually, and BIG RIDGE EMU RANCH, INC.
Court:TCA
Attorneys:
For Plaintiffs/Appellants: For Defendants/Appellees:
Wm. Kennerly Burger Jeff Reed
Murfreesboro, Tennessee Murfree, Cope, Hudson & Scarlett
Murfreesboro, Tennessee
Judge:KOCH
First Paragraph:
This appeal involves an interstate contract dispute over ten pairs of
emu chicks. Two Tennessee residents declined to honor their contract
to purchase the chicks after the Arkansas breeders attempted to
substitute chicks different from those advertised for sale. The
breeders filed a breach of contract suit in Arkansas against the
purchasers seeking to recover the unpaid purchase price, and the
purchasers filed suit in the Circuit Court for Wilson County seeking
to recover their down payment as well as treble damages and attorney's
fees under the Tennessee Consumer Protection Act. After the breeders
obtained a judgment in Arkansas against the purchasers, they moved to
dismiss the purchasers' Tennessee lawsuit on the ground that the
Arkansas judgment was res judicata to the purchasers' Tennessee
claims. The trial court agreed and dismissed the purchasers' claims.
On this appeal, the purchasers assert that the Arkansas judgment
should not have precluded them from pursuing their Tennessee Consumer
Protection Act claims in Tennessee. We agree because the Arkansas
court did not have the power to award the full measure of relief the
purchasers are seeking in the Tennessee proceedings.
URL:http://www.tba.org/tba_files/TCA/liensy_opn.WP6
ROBERT E. MAYERS
VS.
MILLER MEDICAL GROUP, MILLER MEDICAL GROUP,
An Affiliate of Baptist Healthcare Group; RUSSELL D. WARD, M.D.
and MICHEL KUZUR, M.D.,
Court:TCA
Attorneys:
ROBERT E. MAYERS, Pro Se
1525 Naples Avenue
Nashville, Tennessee 37207
ROBERT E. PARKER
RICHARD F. RUSSELL
200 Fourth Avenue North, 5th Floor
Nashville, Tennessee 37219
ATTORNEYS FOR DEFENDANTS/APPELLEES
Judge:CAIN
First Paragraph:
Plaintiff, Robert E. Mayers, acting pro se in this medical malpractice
action, appeals the decision of the Circuit Court of Davidson County
denying his application for relief under Tennessee Rules of Civil
Procedure 60.02 from a final summary judgment rendered in favor of the
defendants.
URL:http://www.tba.org/tba_files/TCA/mayersr_opn.WP6
JAMES ROWLAND MOORE
VS.
KAREN OWEN MOORE
Court:TCA
Attorneys:
LINDA F. BURNSED
AMY BRYSON SMITH
424 Church Street, Suite 1750
Nashville, Tennessee 37219
Attorneys for Plaintiff/Appellant
SANDRA JONES
213 Third Avenue, North
Nashville, Tennessee 37201
Attorney for Defendant/Appellee
Judge:CANTRELL
First Paragraph:
After a 1996 divorce by the Circuit Court of Davidson County the
husband filed an independent damages action in the chancery court,
alleging that the wife fraudulently induced him to enter into the
divorce settlement. The wife filed a Rule 60.02 motion in the divorce
court seeking a declaration that she was not guilty of fraud. The
divorce court ruled that the chancery court was bound by the circuit
court's judgment and that the husband must pay $2500 in attorney's
fees to the wife for services in the Rule 60.02 motion. We reverse.
URL:http://www.tba.org/tba_files/TCA/moorejr_opn.WP6
PERMANENT GENERAL ASSURANCE CORPORATION
VS.
GILBERT WATERS
PEGGY RICHARDSON, RODGERICK WATERS, BEVERLY BATEY
Court:TCA
Attorneys:
JOHN B. ALLYN
301 Plus Park Boulevard, Ste. 10
Nashville, Tennessee 37217
Attorney for Plaintiff/Appellant
JOSEPH L. LACKEY, JR.
1230 First American Center
Nashville, Tennessee 37238-1230
Attorney for Defendants/Appellees
Judge:CANTRELL
First Paragraph:
This case involves an exclusion in an automobile liability policy for
a person operating the automobile without a reasonable belief that
that person is entitled to do so. The Circuit Court of Davidson
County dismissed the insurance company's action for a declaratory
judgment. We reverse, and declare that the exclusion precluded
coverage by the company.
URL:http://www.tba.org/tba_files/TCA/permgen_opn.WP6
STATE OF TENNESSEE
VS.
IVAN JIMENEZ
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN E. HERBISON JOHN KNOX WALKUP
2016 Eighth Avenue South Attorney General and Reporter
Nashville, TN 37204
DARYL J. BRAND
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
MIKE BOTTOMS
District Attorney General
LEE BAILEY
Assistant District Attorney
P. O. Box 1619
Columbia, TN 38464
Judge:SMITH
First Paragraph:
On June 14, 1994, Appellant, Ivan Jimenez, pled guilty in Maury County
to the sale of cocaine, a Class C felony. Initially the trial court
sentenced Appellant to three years, six months to be served in
incarceration and the remainder to be served on probation. The trial
court also fined Appellant $2,000. The sentence was to run concurrent
to sentences from a different Maury County case, to two Giles County
cases, and to two Lawrence County cases. On October 12, 1994, the
trial court entered an amended judgment, ordering Appellant to three
years in Community Corrections, with the first six months of that
sentence to be served in the county jail. The other provisions of the
judgment remained the same. On August 13, 1996, the trial court
revoked Appellant's probation and ordered that he serve 60 days in the
county jail before being released on community corrections. On January
6, 1997, the trial court issued a warrant against Appellant for
violation of the conditions of Community Corrections. After a hearing
on April 24, 1997, the trial court revoked Appellant's community
corrections sentence and ordered that "he go into the custody of the
sheriff to serve the sentence previously imposed."
URL:http://www.tba.org/tba_files/TCCA/jimeniv_opn.WP6
STATE OF TENNESSEE
VS.
MICHAEL T. KEEN
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID A. DOYLE JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
18th Judicial District
117 East Main Street CLINTON J. MORGAN
Gallatin, TN 37066 Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
LAWRENCE RAY WHITLEY
District Attorney General
SALLIE WADE BROWN
Assistant District Attorney General
18th Judicial District
113 West Main Street
Gallatin, TN 37066
Judge:WOODALL
First Paragraph:
Michael T. Keen, the Defendant, appeals as of right following his
sentencing hearing in the Sumner County Criminal Court. Defendant was
indicted for vehicular homicide and DUI, second offense. In an
agreement with the State, Defendant pled guilty to vehicular homicide,
a Class B felony, and agreed to an eight (8) year sentence, with the
trial court to determine the manner of service of the sentence.
Following his sentencing hearing, the trial court ordered Defendant to
serve eight (8) years in the Tennessee Department of Correction. In
his appeal, Defendant argues that the trial court erred in refusing to
grant an alternative sentence. We affirm the judgment of the trial
court.
URL:http://www.tba.org/tba_files/TCCA/keenmt_opn.WP6
JOHN McDONALD
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT:
JOHN McDONALD, Pro Se
#125039
P.O. Box 5000
Mountain City, TN 37683-5000
FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter
TODD R. KELLEY
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON III
District Attorney General
KATY NOVAK MILLER
Assistant District Attorney General
222 - 2nd Avenue North
Washington Square, Suite 500
Nashville, TN 37201-1649
Judge:RILEY
First Paragraph:
Petitioner appeals the dismissal of his motion to re-open petition for
post- conviction relief. He claims that the 1987 indictment for
aggravated rape and aggravated sexual battery under which he was
convicted failed to vest jurisdiction in the trial court as per State
v. Hill, 954 S.W.2d 725 (Tenn. 1997). After a thorough review of the
record provided, we find this claim to be without merit and AFFIRM the
decision of the trial court.
URL:http://www.tba.org/tba_files/TCCA/mcdonald_opn.WP6
STATE OF TENNESSEE
VS.
SHERYL L. PENDERGRASS
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID A. DOYLE JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
117 E. Main St.
Gallatin, TN 37066 DARYL J. BRAND
Clifton, TN 38425 Senior Counsel for the State
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
LAWRENCE RAY WHITLEY
District Attorney General
DEE GAY
Asst. District Attorney General
113 W. Main St.
Gallatin, TN 37066
Judge:WITT
First Paragraph:
The defendant, Sheryl L. Pendergrass, appeals a certified question of
law pursuant to Rule 37(b)(2)(I), Tennessee Rules of Criminal
Procedure. In the Sumner County Criminal Court, the defendant pleaded
guilty to three drug offenses, subject to reservation of the certified
question. In her certified question, the defendant contends that law
enforcement officers infringed on her rights to be free of
unreasonable searches and seizures pursuant to the Fourth Amendment of
the United States Constitution and article 1, section 7 of the
Tennessee Constitution. We affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/pendergr_opn.WP6
WILLIE ROBERT SEAY
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT:
WILLIE ROBERT SEAY, Pro Se
#141848
Unit 6-A-102
Riverbend Maximum Security Prison
7475 Cockrill Bend Industrial Road
Nashville, TN 37209-1010
FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter
CLINTON J. MORGAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
TOM P. THOMPSON, JR.
District Attorney General
DAVID DURHAM
Assistant District Attorney General
111 Cherry Street
Lebanon, TN 37087-3609
Judge:RILEY
First Paragraph:
The petitioner, Willie Robert Seay, appeals the trial court's summary
dismissal of his petition for post-conviction relief. The petitioner
claims the trial court erred in dismissing his petition for
post-conviction relief and presents the following issues for review:
(1) whether the evidence presented at trial was sufficient to support
his convictions;
(2) whether trial counsel was deficient in stipulating that the
substance sold by the petitioner was cocaine;
(3) whether trial counsel was ineffective in stipulating as to the
amount of cocaine sold; and
(4) whether trial counsel was ineffective in stipulating "that the
drugs alleged to have been sold by the defendant existed."
URL:http://www.tba.org/tba_files/TCCA/seaywr_opn.WP6
STATE OF TENNESSEE
VS.
PAUL J. SEYMOUR
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JULIE A. MARTIN JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
P.O. Box 426
Knoxville, TN 37901-0426 GEORGIA BLYTHE FELNER
(On Appeal) Assistant Attorney General
2nd Floor, Cordell Hull Building
STEPHEN M. WALLACE 425 Fifth Avenue North
District Public Defender Nashville, TN 37243
LESLIE S. HALE H. GREELEY WELLS, JR.
Assistant Public Defender District Attorney General
P.O. Box 839
Blountville, TN 37617-0829 EDWARD EUGENE WILSON
(At Trial) Assistant District Attorney General
140 Blountville Bypass
P.O. Box 526
Blountville, TN 37617-0526
Judge:WOODALL
First Paragraph:
The Defendant, Paul Junior Seymour, appeals as of right from the
revocation of his probation by the Sullivan County Criminal Court. He
contends that the trial court erred in revoking his probation. We
affirm the judgment of the trial court.
URL:http://www.tba.org/tba_files/TCCA/seymorpj_opn.WP6
STATE OF TENNESSEE
VS.
CAROLYN STRICKLAND
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
COMER L. DONNELL JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
HOWARD L. CHAMBERS TIMOTHY F. BEHAN
Assistant Public Defender Assistant Attorney General
213 North Cumberland Street 2nd Floor, Cordell Hull Building
P.O. Box 888 425 Fifth Avenue North
Lebanon, TN 37087 Nashville, TN 37243
TOM P. THOMPSON, JR.
District Attorney General
JOHN D. WOOTTEN, JR.
Assistant District Attorney General
P.O. Box 178
Hartsville, TN 37074
Judge:WOODALL
First Paragraph:
The Petitioner, Carolyn Strickland, appeals the order of the Jackson
County Criminal Court dismissing her petition for post-conviction
relief. In her sole issue on appeal, Petitioner argues she was
incompetent to stand trial due to the medication she was taking during
the trial and was, therefore, denied her right to due process and a
fair trial.
URL:http://www.tba.org/tba_files/TCCA/strckldc_opn.WP6
JOE L. UTLEY
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
William A. Lane John Knox Walkup
3236 Dilton Mankin Road Attorney General & Reporter
Murfreesboro, TN 37127 425 Fifth Avenue, North
Nashville, TN 37243-0493
Timothy Behan
Assistant Attorney General
425 Fifth Avenue, North
Nashville, TN 37243-0493
Victor S. (Torry) Johnson, III
District Attorney General
222 Second Avenue, North
Suite 500
Nashville, TN 37201-1649
Thomas B. Thurman
Deputy District Attorney General
222 Second Avenue, North
Suite 500
Nashville, TN 37201-1649
Judge:LAFFERTY
First Paragraph:
The appellant, Joe L. Utley, appeals as of right from a judgment of
the Davidson County Criminal Court denying his petition for
post-conviction relief. The petitioner alleges that trial and
appellate counsel rendered ineffective assistance in several areas.
After a through review of the record, we REMAND to the trial court
with instructions to enter a findings of fact and conclusions of law.
URL:http://www.tba.org/tba_files/TCCA/utleyjl_opn.WP6
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© Copyright 1996-1997 Tennessee Bar Association - This Issue (IN THIS ORDER):