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December 21, 1998
Volume 4 -- Number 182
What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts.
| 06 | New Opinion(s) from the Tennessee Supreme Court |
| 00 | New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel |
| 00 | New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court |
| 01 | New Opinion(s) from the Tennessee Court of Appeals |
| 05 | 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 |
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Lucian T. Pera
Editor-in-Chief, TBALink
DAVID ALCAZAR
VS.
CHRISTOPHER HAYES
and
GOVERNMENT EMPLOYEES INSURANCE COMPAN
Court:TSC
Attorneys:
FOR APPELLANT: FOR APPELLEE:
Jimmy W. Bilbo Donald W. Strickland
Logan, Thompson, Miller, Bilbo, Steven W. Grant
Thompson & Fisher, P.C. Grant, Konvalinka & Harrison, P.C.
Cleveland, TN Chattanooga, TN
FOR AMICUS CURIAE
Tennessee Defense Lawyers Assoc. Tennessee Trial Lawyers Assoc.
Brian H. Trammell Thomas Stratton Scott, Jr.
Knoxville, TN Knoxville, TN
National Association of Independent
Insurers
G. Brian Jackson
Amanda Haynes Young
Nashville, TN
Judge:DROWOTA
First Paragraph:
This suit arose from a motor vehicle accident in which plaintiff David
Alcazar was injured. Alcazar appeals from the Court of Appeal's
affirmance of the trial court's award of summary judgment to defendant
Government Employees Insurance Company ("GEICO"). The sole issue for
our determination is whether an insurance policy is automatically
forfeited when the insured does not comply with the policy's notice
provision, regardless of whether the insurer has been prejudiced by
the delay. For the reasons stated hereinafter, we reverse the
judgments of the lower courts and remand the case to the trial court.
http://www.tba.org/tba_files/TSC/Alcazard_opn.WP6
STATE OF TENNESSEE
VS.
BOBBY VINCENT BLACKMON
WITH ORDER
Court:TSC
Attorneys:
For Appellant: For Appellee:
MARK W. HENDERSON JOHN KNOX WALKUP
Nashville, TN Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
DOUGLAS D. HIMES
Assistant Attorney General
Nashville, TN
LAWRENCE RAY WHITLEY
District Attorney General
DEE DAVID GAY
KATHI PHILLIPS
Assistant District Attorney General
Gallatin, TN
Judge:BIRCH
First Paragraph:
We granted permission to appeal pursuant to Tenn. R. App. P. 11 to the
appellant, Bobby Vincent Blackmon, in order to determine whether, and
if so, under what circumstances, the right to be tried by a judge who
is constitutionally qualified can be waived. We address also the
appellant's contention that the judgment of forfeiture entered against
his vehicle seized incident to his arrest on April 20, 1993,
constitutes "punishment," such as would violate the constitutional
prohibitions against double jeopardy.
http://www.tba.org/tba_files/TSC/Blackmob_opn.WP6
ORDER:
http://www.tba.org/tba_files/TSC/Blackmob_ord.WP6
FREDA G. MOON, EXECUTOR OF THE ESTATE OF RUTH GARRETT
VS.
ST. THOMAS HOSPITAL
WITH ORDER
Court:TSC
Attorneys:
FOR APPELLANT: FOR APPELLEE:
Harlan Dodson III Mary Martin Schaffner
Anne C. Martin Nashville
Julie K. Sandine
Nashville
FOR AMICUS CURIAE:
Richard L. Duncan
Knoxville
Judge:HOLDER
First Paragraph:
We granted this appeal to address whether a hospital's general duty to
exercise reasonable and ordinary care to maintain an open airway in an
intubated patient is negated merely because the transection of an
endotracheal tube is an uncommon occurrence. We hold: (1) that
under the circumstances, a factual question exists concerning whether
the standard of care required placement of an oral airway or bite
block when the patient exhibited agitation and began biting on the
endotracheal tube; (2) that the foreseeability of the intubated and
restrained patient's actions are relevant when assessing the
appropriate standard of care and deviation from that standard of care;
and (3) that the affidavits of the plaintiff's experts created
genuine issues of material fact concerning the standard of care and
breach of that standard. The appellate court's decision affirming the
trial court's dismissal is reversed. The case is remanded to the
trial court for proceedings consistent with this opinion.
http://www.tba.org/tba_files/TSC/Moonfg_opn.WP6
ORDER
http://www.tba.org/tba_files/TSC/Moonfg_ord.WP6
JORGE ARIEL SANJINES
VS.
ORTWEIN AND ASSOCIATES, P.C.,
WILLIAM H. ORTWEIN, and J. CRIS HELTON
Court:TSC
Attorneys:
For Appellee: For Appellants:
J. ARIEL SANJINES, M.D. SAMUEL R. ANDERSON
Pro se SHANE USARY
Chattanooga, TN
Judge:BIRCH
First Paragraph:
Jorge Ariel Sanjines, M.D., the plaintiff, is currently in the custody
of the Department of Correction. On February 12, 1996, the plaintiff
filed a pro se complaint alleging legal malpractice against Ortwein &
Associates, William Ortwein, J. Cris Helton, and John Morgan, the
attorneys who had previously represented him in a criminal proceeding.
The essential allegation of this civil action was that the attorneys
had been ill-prepared and had failed to represent the plaintiff
adequately. These "shortcomings," he alleged, forced him to enter
guilty pleas to first-degree murder, attempted first-degree murder,
and conspiracy to commit first-degree murder. The trial court granted
summary judgment to the attorneys because the plaintiff failed to file
any response to their motions for summary judgment. On the same day
that the plaintiff filed the malpractice case, he also filed a pro se
petition under the Post-Conviction Procedure Act. In it, the
plaintiff alleged that he did not receive the effective assistance of
counsel in the above-described criminal proceeding.
http://www.tba.org/tba_files/TSC/Sanjinej_opn.WP6
ORDER
http://www.tba.org/tba_files/TSC/Sanjinej_ord.WP6
SHARON WALKER
VS.
SATURN CORPORATION
WITH JUDGMENT
Court:TSC
Attorneys:
For the Plaintiff/Appellant: For the Defendant/Appellee:
J. Anthony Arena Thomas H. Peebles, IV
Schulman, LeRoy & Bennett, P.C. Dana C. McLendon
Nashville, Tennessee Waller, Lansden, Dortch & Davis
Columbia, Tennessee
Judge:BARKER
First Paragraph:
We granted the plaintiff's motion for full court review of the Special
Workers' Compensation Appeals Panel's findings of fact and conclusions
of law to determine whether the Panel erred in deciding: (1) that the
evidence preponderates against the trial court's finding that
plaintiff suffered a permanent partial disability to the right arm;
and (2) that the evidence preponderates against an eighty-five percent
permanent partial disability to the plaintiff's left arm. For the
reasons contained herein, we conclude that the Panel erred in finding
no permanent disability to the right arm and in reducing the
disability to her left arm to sixty percent. Accordingly, the
decision of the Panel is reversed and the trial court's judgment is
affirmed.
http://www.tba.org/tba_files/TSC/Walker_opn.WP6
JUDGMENT
http://www.tba.org/tba_files/TSC/Walker_jdg.WP6
JENNIFER O. WILSON
VS.
LARRY ARNOLD WILSON
WITH DISSENT
Court:TSC
Attorneys:
FOR APPELLANT: FOR APPELLEE:
Earl J. Porter, Jr., John Herbison
Nashville, Tennessee Nashville, Tennessee
John J. Hollins, Sr.
David L. Raybin
Hollins, Wagster & Yarbrough, P.C.
Nashville, Tennessee
FOR AMICUS CURIAE:
Richardson and Baker Family Law Section of the
Clark Lee Shaw Memphis Bar Association
Nashville, Tennessee Joy Tanner Bomar
Memphis, Tennessee
State of Tennessee
John Knox Walkup Family Law Section of the
Attorney General & Reporter Tennessee Bar Association
Larry Rice
Michael E. Moore Memphis, Tennessee
Solicitor General
Kathy Morante
Deputy Attorney General
Nashville, Tennessee
Judge:DROWOTA
First Paragraph:
We granted this appeal to determine whether a private attorney
representing the beneficiary of a court order in a civil case may
prosecute a criminal contempt action alleging a violation of the
order. After due consideration, we conclude that no constitutional
principle nor ethical standard automatically disqualifies the private
attorney for the beneficiary of the order from prosecuting a contempt
action for a violation of the order. Accordingly, we reverse the
judgment of the Court of Appeals which adopted an automatic rule of
disqualification and remand this cause to the trial court for further
proceedings consistent with this decision.
http://www.tba.org/tba_files/TSC/Wilsonjo_opn.WP6
DISSENT
http://www.tba.org/tba_files/TSC/Wilsonj_dis.WP6
EVA L. MILES
VS.
MARJORIE M. NELSON
Court:TCA
Attorneys:
WILLIAM A. ZIERER OF MORRISTOWN FOR APPELLANT
JAMES D. HUTCHINS OF DANDRIDGE FOR APPELLEE
Judge:GODDARD
First Paragraph:
In this case Plaintiff Eva L. Miles sues Defendant Marjorie M. Nelson
to have decreed to her a triangular strip of land which is not
encompassed in the deed to her and her husband. It is, however,
included in the deed to Mrs. Nelson and her husband. The Plaintiff
asserts that because she has adversely possessed the disputed area for
a period of almost 39 years, she is entitled to prevail.
http://www.tba.org/tba_files/TCA/Milesev_opn.WP6
CHAUNCEY R. GORDON
VS.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For the Appellant:
Joseph W. Henry, Jr.
119 South First Street
Pulaski, TN 38478-0458
For the Appellee:
John Knox Walkup
Attorney General and Reporter
and
Karen M. Yacuzzo
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
T. Michael Bottoms
District Attorney General
and
Richard H. Dunavant
Assistant District Attorney General
Giles County Courthouse
P.O. Box 304
Pulaski, TN 38478-0304
Judge:TIPTON
First Paragraph:
The petitioner appeals the denial of his petition for post-conviction
relief. On January 2, 1991, the petitioner pled guilty to one count
of first degree murder and one count of second degree murder. He
received an agreed sentence of life plus twenty-five years,
respectively. The petitioner now attacks the validity of that guilty
plea, arguing that the plea was not voluntarily, knowingly, and
understandingly made. Upon a complete review of the record, we
conclude that the evidence does not preponderate against the trial
court's findings. Thus, we affirm the dismissal of the petition.
http://www.tba.org/tba_files/TCCA/Gordoncr_opn.WP6
ELISEO HERNANDEZ
VS.
STATE OF TENNESSEE
ORDER
Court:TCCA
Judge:SMITH
First Paragraph:
This matter is before the Court upon the state's motion requesting
that the judgment in the above-styled cause be affirmed pursuant to
Rule 20, Tennessee Court of Criminal Appeals Rules. The petitioner
opposes the motion.
http://www.tba.org/tba_files/TCCA/Hernande_ord.WP6
STATE OF TENNESSEE
VS.
STEVEN OVERSTREET
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
D. MITCHELL BRYANT JOHN KNOX WALKUP
P. O. Box 161 Attorney General and Reporter
Cleveland, TN 37364-0161
SANDY C. PATRICK
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
JERRY N. ESTES
District Attorney General
JOSEPH A. REHYANSKY
Assistant District Attorney
P. O. Box 1351
Cleveland, TN 37311
Judge:SMITH
First Paragraph:
On February 4, 1997, a Bradley County jury convicted Appellant Steven
Overstreet of driving under the influence, second offense. After a
sentencing hearing on February 6, 1997, Appellant was sentenced to
eleven months and twenty-nine days in jail, with the sentence to be
suspended and Appellant put on probation after 45 days in jail.
Appellant challenges his conviction, raising the following issue: is
there an inherent conflict between Tennessee Code Annotated sections
55-10-401 and 55-10-408.
http://www.tba.org/tba_files/TCCA/Overstte_opn.WP6
RONALD DAVID DUKES
VS.
CHARLIE JONES, WARDEN, and STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
RONALD DAVID DUKES, pro se JOHN KNOX WALKUP
MCRCF, Box 2000, Unit 14 Attorney General & Reporter
Wartburg, TN 47887
KENNETH W. RUCKER
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
CHARLES E. HAWK
District Attorney General
FRANK A. HARVEY
Assistant District Attorney General
P.O. Box 703
Kingston, TN 37763
Judge:WOODALL
First Paragraph:
The Petitioner, Ronald David Dukes, appeals the trial court's
dismissal of his pro se petition for writ of habeas corpus challenging
a 1986 escape conviction. We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/Rddukes_opn.WP6
STATE OF TENNESSEE
VS.
GREGORY STEELE
Court:TCCA
Attorneys:
FOR THE APPELLEE: FOR THE APPELLANT:
ROBERT S. PETERS JOHN KNOX WALKUP
SWAFFORD, PETERS & PRIEST Attorney General & Reporter
100 First Avenue, S.W.
Winchester, TN 37398 KAREN M. YACUZZO
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
JAMES MICHAEL TAYLOR
District Attorney General
WILLIAM B. COPELAND
Assistant District Attorney General
324 Dinah Shore Boulevard
Winchester, TN 37398
Judge:WOODALL
First Paragraph:
The State of Tennessee (State) appeals from a judgment of the trial
court suppressing evidence found pursuant to a search of Gregory
Steele, the Defendant, by a law enforcement officer. The State
appeals pursuant to Rule 3(c) of the Tennessee Rules of Appellate
Procedure on the basis that the trial court's order granting the
motion to suppress had the substantive effect of dismissing the
indictments against the Defendant. The two indictments charged the
Defendant with DUI in violation of Tennessee Code Annotated section
55-10-401, and possessing methamphetamine, a Schedule II controlled
substance, with the intent to sell or deliver in violation of
Tennessee Code Annotated section 39-17-417. In this court, the state
contends the trial court erroneously suppressed the evidence found by
the officer. After a thorough review of the record, the briefs
submitted by the parties, and the law governing the issue presented
for review, it is the opinion of this court that the judgment of the
trial court should be affirmed.
http://www.tba.org/tba_files/TCCA/Steeleg_opn.WP6
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