April 30, 1999
Volume 5 -- Number 057

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.

This Issue (IN THIS ORDER):
 
00 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Court of Appeals
05 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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

JAMES MICHAEL RICHARDSON
VS.
A. O. SMITH COMPANY

Court:TSC - Workers Comp Panel

Attorneys: For the Appellant:           For the Appellee:

Gregory D. Jordan                       T. J. Emison, Jr.
Jeffery G. Foster                       P. O. Box 13
Rainey, Kizer, Butler,                  Alamo, TN  38001
  Reviere & Bell, P.L.C.        
105 South Highland
P. O. Box 1147
Jackson, TN  38302-1147                         

Judge:TATUM

First Paragraph:

This workers' compensation appeal was referred to the Special Workers'
Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code
Ann. S50-6-225(e)(3) (Supp. 1998) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.
This case was tried on February 24, 1998.  The chancellor found that
there was no period of temporary total disability, but awarded the
plaintiff fifteen percent (15%) permanent partial disability to the
whole body as a result of a work-related accident in December 1988 or
January 1989.  Defendant, A. O. Smith Company, has appealed the
chancellor's decision as not supported by a preponderance of the
evidence.  After careful review, we find that the judgment of the
trial court must be reversed.

http://www.tba.org/tba_files/TSC_WCP/richards_opn.WP6



JUDICIAL ETHICS COMMITTEE OPINION NO. 99-1 Court:TSC - Rules Judge:KURTZ First Paragraph: Inquiry has been submitted to the Committee for issuance of an opinion as to whether a judge should recuse herself in all cases involving a certain law firm. An attorney "of counsel" with that firm represents the judge's husband's ex-wife in a domestic relations matter now pending in court. The domestic relations proceeding is described as "acrimonious". The lawyer also actively campaigned against the judge and was reported to be the author of several negative news articles about the judge. http://www.tba.org/tba_files/TSC_Rules/99-1_opn.WP6
ERWIN CARE PARTNERS, LTD. VS. CENTER ON AGING AND HEALTH, LLC, and THE TENNESSEE HEALTH FACILITIES COMMISSION Court:TCA Attorneys: DAN H. ELROD KATHRYN J. LADD 2500 Nashville City Center 511 Union Street Nashville, Tennessee 37219--1738 Attorneys for Erwin Care Partners, Ltd. WILLIAM C. BOVENDER JIMMIE C. MILLER P. O. Box 3740 Kingsport, Tennessee 37664 Attorneys for Center on Aging and Health, LLC JOHN KNOX WALKUP Attorney General and Reporter MICHELLE HOHNKE JOSS Assistant Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243 Attorney for The Tennessee Health Facilities Commissioner Judge:CANTRELL First Paragraph: This is a review of the decision of the Health Facilities Commission granting a certificate of need to the Center on Aging and Health, LLC for a 120-bed nursing home in Erwin. The Chancery Court of Davidson County found that the Commission's decision was supported by substantial and material evidence. We affirm. http://www.tba.org/tba_files/TCA/Erwincar_opn.WP6
BRUCE FREEMAN GROVER, JR. VS. SHARON DIANE GROVER Court:TCA Attorneys: For the Plaintiff/Appellee- For the Defendant/Appellant- Cross/Appellant: Cross/Appellee: Russ Heldman Robert H. Plummer, Jr. Ernie Williams Franklin, Tennessee Franklin, Tennessee Judge:LILLARD First Paragraph: This is a child custody case. The trial court awarded custody of the three minor children to the father, and ordered the mother to pay child support. The mother appeals. We affirm and remand. http://www.tba.org/tba_files/TCA/Grover_opn.WP6
EARLENE POLYAK VS. DORA LEE HULEN and WILMA LESNANSKY Court:TCA Attorneys: EARLENE POLYAK 3179 Middlefield Drive Trenton, Michigan 48183 Pro Se/Plaintiff/Appellant DALTON MOUNGER 806A South Garden Street Columbia, Tennessee 38402-1468 Attorney for Defendants/Appellees Judge:CANTRELL First Paragraph: This family dispute over the partition of a forty-two acre farm in Lawrence County is well into its third decade. The Chancery Court of Lawrence County granted judgment on the pleadings and ordered the property sold for partition. We reverse and remand for further proceedings. http://www.tba.org/tba_files/TCA/Polyake_opn.WP6
THE REALTY SHOP, INC. VS. RR WESTMINSTER HOLDING, INC. and JOHN S. CLARK CO., INC.; SENASH, INC.; and CLARENDON NATIONAL INS. CO. Court:TCA Attorneys: For The Realty Shop, Inc.: For RR Westminster Holding, Inc.: Gregory L. Cashion John Branham Carol R. Dunn Donald Capparella Manier, Herod, Hollabaugh & Smith Branham & Day Nashville, Tennessee Nashville, Tennessee Bryan Cave Thomas C. Walsh St. Louis, Missouri Judge:KOCH First Paragraph: This appeal involves a problem-plagued commercial development in Nashville called Thompson Station. To shield the project from the developer's financial problems, the principals agreed that a corporation owned by the holding company that owned the contractor would own the project during construction and that the developer would have an option to purchase that corporation upon completion of the work. After the project was completed with substantial cost overruns, the developer attempted to exercise its option without taking the overruns into consideration. http://www.tba.org/tba_files/TCA/Realty_opn.WP6
HEATHER LYNN SCOTT VS. GREGORY ALAN SCOTT Court:TCA Attorneys: Darrell L. Scarlett, Murfreesboro, Tennessee Attorney for Defendant/Appellant. Heather Lynn Scott, Pro Se Judge:FARMER First Paragraph: In this child custody dispute, the trial court denied Defendant Gregory Alan Scott's petition to prohibit relocation or, in the alternative, to change custody. Additionally, the trial court granted a counter-petition to increase child support filed by Plaintiff Heather Lynn Scott. Mr. Scott appeals the court's ruling with respect to both his petition and Ms. Scott's counter-petition. Ms. Scott also appeals, contending that the trial court erred in failing to order Mr. Scott to pay her attorney fees. For the reasons stated below, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/Scotthl_opn.WP6
STATE OF TENNESSEE VS. GARY WAYNE HALL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: RICHARD A. TATE (at trial) JOHN KNOX WALKUP Asst. District Public Defender Attorney General & Reporter P.O. Box 839 Blountville, TN 37617 ELLEN H. POLLACK Assistant Attorney General JULIE A. MARTIN (on appeal) 425 Fifth Ave. N., 2d Floor Attorney at Law Nashville, TN 37243-0493 P.O. Box 426 Knoxville, TN 37901 H. GREELEY WELLS, JR. District Attorney General BARRY STAUBUS TERESA MURRAY SMITH Asst. District Attorneys General P.O. Box 526 Blountville, TN 37617-0526 Judge:WITT First Paragraph: The defendant, Gary Wayne Hall, appeals from the conviction of aggravated child abuse he received at the conclusion of a jury trial in the Sullivan County Criminal Court. The defendant is presently serving a 24-year incarcerative sentence in the Department of Correction. In this appeal, the defendant claims that the evidence at trial insufficiently supports the jury's finding of his guilt beyond a reasonable doubt and that the sentence imposed is excessive. Following a review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Hallgw_opn.WP6
STATE OF TENNESSEE VS. EARL DEWAYNE HOLLOWAY Court:TCCA Attorneys: For Appellant: For Appellee: Tom Landis John Knox Walkup Doctors Building Attorney General and Reporter Suite 327 744 McCallie Avenue Ellen H. Pollack Chattanooga, TN 37403 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Barry A. Steelman Assistant District Attorney General Courts Building Suite 300 Chattanooga, TN 37402 Judge:WADE First Paragraph: The defendant, Earl Dewayne Holloway, was convicted of second degree murder. The trial court imposed a twenty-two-year sentence with a release eligibility at eighty-five percent of the term. See Tenn. Code Ann. S 40-35-501. In this appeal of right, the defendant poses the following question: "will a conviction for second degree murder stand where the defendant was the victim of an aggravated robbery by the deceased?" We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Hollwyed_opn.WP6
STATE OF TENNESSEE VS. DEBIASI SIRNARD KING and DEWAYNE KING Court:TCCA Attorneys: For Appellant: For Appellee: Tom Landis John Knox Walkup Doctors Building Attorney General and Reporter Suite 327 744 McCallie Avenue Ellen H. Pollack Chattanooga, TN 37403 Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Barry A. Steelman Assistant District Attorney General Courts Building Suite 300 Chattanooga, TN 37402 Judge:WITT First Paragraph: The defendants, Debiasi Sirnard King and Dewayne King, appeal from their convictions of the second degree murder of Fernandos Hawkins. The Kings, who are brothers, were indicted and tried jointly for the crime of first degree murder along with their younger brother, Devon King. A Hamilton County jury found Debiasi and Dewayne guilty of the lesser included offense of second degree murder and found Devon guilty of the lesser included offense of voluntary manslaughter. Debiasi is presently serving a 25-year sentence in the Department of Correction, and Dewayne is serving his sentence of fifteen years. http://www.tba.org/tba_files/TCCA/Kingd&d_opn.WP6
MISTY LAVERNE ROBERTS
VS. DONAL CAMPBELL, Commissioner, and FAYE CLAUDE, Sentence Manager Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MISTY LAVERNE ROBERTS JOHN KNOX WALKUP Pro Se Attorney General & Reporter Special Needs Facility - 7A 7575 Cockrill Bend Ind. Rd. ELLEN H. POLLACK Nashville, TN 37209-1057 Assistant Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 C. BERKELEY BELL, JR. District Attorney General DOUG GODBEE Assistant District Attorney General 100 E. Main St., Ste. 201 Rogersville, TN 37857 Judge:WITT First Paragraph: The petitioner, Misty Laverne Roberts, appeals from the trial court's dismissal for lack of subject matter jurisdiction of her "Motion for Contempt Proceedings." The defendant is presently serving an effective 33-year sentence in the Department of Correction for her October 3, 1994 convictions of four counts of aggravated rape and one count of aggravated kidnapping. In her motion and on appeal, she claims that the named respondents have ignored the trial court's judgment as regards sentencing by incorrectly calculating her sentence and failing to correct the error once notified of it. She prays that the respondents be found in contempt pursuant to Code section 16-1-103 and Rule of Criminal Procedure 42(b) and that a writ of attachment issue against the respondents under Code section 29-6-101. Upon review of the record, the briefs of the parties, and the applicable law, we affirm the trial court's dismissal of the motion. http://www.tba.org/tba_files/TCCA/Robertsm_opn.WP6
PETE SMITH VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: PETE SMITH (pro se) JOHN KNOX WALKUP P.O. Box 3000 Attorney General & Reporter Whitedeer, PA 17887 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 C. BERKELEY BELL, JR. District Attorney General 109 S. Main St., Suite 501 Greeneville, TN 37243-0493 JOHN F. DUGGER, JR. Assistant District Attorney 510 Allison Street Morristown, TN 37814 Judge:WITT First Paragraph: The appellant, Pete Smith, appeals from the Hamblen County Criminal Court's order dismissing his Motion for Withdrawal of Guilty Plea. On July 28, 1994, the appellant pleaded guilty to two counts of sale and delivery of crack cocaine less than a half gram, one count of aggravated assault, and one count of escape. The judge sentenced him to an effective sentence of seven years in the Department of Correction. On April 13, 1998, the appellant filed a Motion for Withdrawal of Guilty Plea alleging (1) that he was ineffectively assisted by counsel due to the failure of counsel to advise the appellant of his Fourth Amendment rights and (2) that his guilty pleas were not entered knowingly and intelligently. The court below dismissed the motion as untimely. The appellant contends that the trial court erred in dismissing his motion as time-barred because the time requirement for filing should be waived under his unique circumstances. Following a review of the record and the briefs of the parties, we affirm the trial court's dismissal. http://www.tba.org/tba_files/TCCA/Smithp_opn.WP6

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