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August 05, 1999
Volume 5 -- Number 109
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):
-
| 01 |
New Opinion(s) from the Tennessee Supreme Court |
| 05 |
New Opinion(s) from the Tennessee Supreme Court Workers' Compensation
Panel |
| 00 |
New Document(s) or Proposed Rule(s) from the Tennessee Supreme
Court |
| 08 |
New Opinion(s) from the Tennessee Court of Appeals |
| 06 |
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
RONALD TATE
VS.
TRAVELERS INSURANCE
COMPANY
Court:TSC
JUDGMENT ORDER
Judge:THAYER
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
It is, therefore, ordered that the Panel's findings of facts and
conclusions of law are adopted and affirmed and the decision of the
Panel is made the Judgment of the Court.
http://www.tba.org/tba_files/TSC/Taterona_wc.WP6
DEBORAH Z. BARNES
VS.
RITTENHOUSE, INC.
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
J. Eric Harrison James M. Davis
Wimberly, Lawson & Seale 214 North Jackson St.
550 W. Main Ave. Morristown, Tenn. 37814
Nations Bank Center, Suite 601
Knoxville, Tenn. 37902
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.
http://www.tba.org/tba_files/TSC_WCP/Barnesde_wc.WP6
C. DOUGLAS GIBSON
VS.
WILLIAM GIBSON
(MORRISTOWN DRIVERS SERVICE)
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
Phillip L. Boyd Robert A. Crawford
108 South Church St. 10th Floor First Amer. Center
P.O. Box 298 P.O. Box 2485
Rogersville, Tenn. 37857 Knoxville, Tenn. 37901
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.
http://www.tba.org/tba_files/TSC_WCP/Gibsoncd_wc.WP6
LINDA GRAY
VS.
TENNESSEE RESTAURANT ASSN.
SELF-INSURED and HONEYMOON
HIDEAWAY, INC.
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
Lewis A. Combs, Jr. Ronald C. Newcomb
707 Market Street Robin M. King
Knoxville, Tenn. 37902 P.O. Box 2231
Knoxville, Tenn. 37901-2231
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.
http://www.tba.org/tba_files/TSC_WCP/Graylind_wc.WP6
SCOTT S. McKEEHAN
VS.
WHITE CONSOLIDATED INDUSTRIES,
INC., d/b/a ATHENS PRODUCTS,
and
DINA TOBIN, DIRECTOR OF THE
DIVISION OF WORKERS'
COMPENSATION, TENNESSEE
DEPARTMENT OF LABOR,
SECOND INJURY FUND
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
Michael D. Newton Paul G. Summers
Third Floor Pioneer Building Attorney General and Reporter
801 Broad Street
Chattanooga, TN 37402 Dianne Stamey Dycus
Deputy Attorney General
General Civil Division
425 Fifth Avenue North
2nd Floor, Cordell Hull Building
Nashville, TN 37243
Judge:BYERS
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.
http://www.tba.org/tba_files/TSC_WCP/Mckeehan_wc.WP6
RONALD VANDERGRIFF
VS.
NATIONAL UNIFORM SERVICE
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
Dana C. Holloway Jennifer P. Craig
James P. Catalano Whelchel, May & Associates
Leitner, Williams, Dooley P.O. Box 11407
& Napolitan, PLLC Knoxville, TN 37939-1407
1130 First American Center
507 S. Gay Street
Knoxville, TN 37902
Judge:BYERS
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.
http://www.tba.org/tba_files/TSC_WCP/Vandergr_wc.WP6
DANNY W. GLENN
VS.
TENNESSEE DEPARTMENT OF
CORRECTION
Court:TCA
Attorneys:
Paul G. Summers
Michael E. Moore
Stephanie R. Reevers
Nashville, Tennessee
Attorneys for Respondent/Appellee
Danny W. Glenn, Pro Se
Mountain City, Tennessee
Judge:LILLARD
First Paragraph:
This matter appears appropriate for consideration pursuant to Rule 10(b
of the Rules of the Court of Appeals of Tennessee. This is a petition by
a prisoner for judicial review, declaratory judgment, and for a common
law writ of certiorari regarding his sentencing. The prisoner contends,
inter alia, that he should be resentenced under the Criminal Sentencing
Reform Act of 1989. The trial court granted the motion to dismiss filed
by the defendant Tennessee Department of Correction. We affirm.
http://www.tba.org/tba_files/TCA/Glenndw_opn.WP6
STATE OF TENNESSEE,
DEPARTMENT OF CHILDREN'S
SERVICES
VS.
JAMES BOSTICK OSBORNE
IN THE MATTER OF:
SHERRY MONET HENDREN
Court:TCA
Attorneys:
Thomas H. Miller
P. O. Box 681662
Franklin, TN 37068-1662
Attorney for Respondent-Appellant
Paul G. Summers
ATTORNEY GENERAL AND REPORTER
Douglas Earl Dimond
ASSISTANT ATTORNEY GENERAL
General Civil Division
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0499
Attorneys for Petitioner-Appellee
Judge:GODDARD
First Paragraph:
This case involves a petition for termination of parental rights. The
Respondent/Appellant, James Bostick Osborne, appeals from an order of
the Juvenile Court of Davidson County terminating his parental rights as
the biological father of Sherry Monet Hendren. We affirm the judgment
of the Trial Court.
http://www.tba.org/tba_files/TCA/Hendrens_opn.WP6
MOBILE LIVING, INC.
VS.
J. MICHAEL TOMLIN and
AUBREY EARL GREGORY
Court:TCA
Attorneys:
DAVID MURRAY SMYTHE
114 Second Avenue North
Second Floor
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFF/APPELLEE
STEVE NORTH
MARK NORTH
1215 Gallatin Pike, South
Madison, Tennessee 37115
ATTORNEYS FOR DEFENDANTS/APPELLANTS
Judge:CAIN
First Paragraph:
This case is before the court on interlocutory appeal from the Chancery
Court of Davidson County under Tennessee Rules of Appellate Procedure
Rule 9.
The trial court order granting the interlocutory appeal presents a
single issue: "1. Whether the defendant Gregory's affirmative defenses
of waiver, laches and estoppel, abandonment, and breach of duty of good
faith and fair dealing are matters of law to be decided by the court and
not material facts in dispute, which would be decided by the jury in the
case."
http://www.tba.org/tba_files/TCA/Mobilelv_opn.WP6
BETTY NESMITH and
CECIL NESMITH
VS.
JOHN ALSUP, II and
TERESA ALSUP
Court:TCA
Attorneys:
DARRELL L. SCARLETT
16 Public Square North
P. O. Box 884
Murfreesboro, Tennessee 37133-0884
Attorney for Plaintiffs/Appellees
FREDERICK L. CONRAD, JR.
607 Market Street, Ninth Floor
P. O. Box 2466
Knoxville, Tennessee 37902
Attorney for Defendants/Appellants
Judge:CANTRELL
First Paragraph:
The plaintiff petitioned the court for a declaration that she was
entitled to a one-half interest in a farm that had been part of her
father's estate. Her brother responded by claiming to be the sole owner
under the provisions of their father's will, or in the alternative,
under a theory of adverse possession. The trial court found that the
effect of the will was to divide the property equally between the
siblings, and that the brother failed to prove ownership by adverse
possession. We affirm the trial court.
http://www.tba.org/tba_files/TCA/Nesmithb_opn.WP6
BARRY SHAWN RALSTON
VS.
GINA IONE HOLLOWAY
RALSTON
Court:TCA
Attorneys:
ROBERT L. JACKSON
W. SCOTT ROSENBERG
214 2nd AVENUE, NORTH/SUITE 103
NASHVILLE, TENNESSEE 37201
ATTORNEYS FOR PLAINTIFF/APPELLANT
ROSEMARY E. PHILLIPS
429 CHURCH STREET
P.O. BOX 590
GOODLETTSVILLE, TENNESSEE 37070-0590
ATTORNEY FOR DEFENDANT/APPELLEE
Judge:COTTRELL
First Paragraph:
This appeal arose after the trial court rejected Appellant Barry Shawn
Ralston's ("the father") petition to reduce child support on the basis
of his reduced actual income. In his sole issue on appeal, the father
argues that the trial court misapplied Tenn. Code Ann. S 36-5-101 (a)
(1), which he claims mandated the modification of child support on a
showing of a significant variance between the amount of child support
required by application of the Child Support Guidelines to his current
actual income and the previously-ordered support obligation. Appellee
Gina Ione Holloway Ralston ("the mother") responds that the father
remains intentionally underemployed and that the trial court properly
considered the father's potential income in denying the requested
reduction. For the reasons set out herein, we vacate and remand for
further proceedings.
http://www.tba.org/tba_files/TCA/Ralston4_opn.WP6
SHANNON REA ROBERTS
VS.
CREIG McLAUGHLIN
JANICE ROBERTS
Intervening Petitioner-Appellant.
Court:TCA
Attorneys:
For Appellant For Appellee
JOE F. GILLESPIE, JR. JAMES ROBIN McKINNEY, JR.
Joelton, Tennessee Nashville, Tennessee
Judge:SUSANO
First Paragraph:
This case originated as a paternity action. Shannon Rea Roberts ("Ms.
Roberts") sought to establish that Creig McLaughlin ("McLaughlin") was
the father of her child, Dylan Daniels Roberts ("Dylan") (DOB: February
14, 1997). The part of the case now before us concerns the petition to
intervene filed in that proceeding by Janice Roberts ("Grandmother"),
who is the mother of Shannon Rea Roberts and the grandmother of Dylan.
In her petition, Grandmother seeks court-ordered "reasonable visitation
rights" with Dylan. McLaughlin moved to dismiss Grandmother's petition,
relying on Rule 12.02(6), Tenn.R.Civ.P., and asserting that the petition
"fail[s] to state a claim upon which relief can be granted." Id. The
trial court granted McLaughlin's motion, finding that T.C.A. S 36-6-306
(Supp. 1998) does not authorize an award of grandparents' visitation
under the undisputed material facts of this case. Grandmother appeals,
arguing that the trial court erred in dismissing her petition. We
affirm.
http://www.tba.org/tba_files/TCA/Robrtssr_opn.WP6
STELLA L. STARKS
VS.
SAMUEL J. BROWNING,
JOSEPH F. BROWNING, and
MARY BROWNING
BART DURHAM INJURY AND
ACCIDENT LAW OFFICES
Court:TCA
Attorneys:
For Stella L. Starks: For Bart Durham Injury &
Steve R. Darnell Accident Law Offices:
Bateman, Bateman & Darnell Robert L. Whitaker
Clarksville, Tennessee Nashville, Tennessee
Judge:KOCH
First Paragraph:
This appeal involves a law firm's efforts to enforce a statutory
attorney's lien on the proceeds of a post-verdict personal injury
settlement. After the law firm withdrew from representing the plaintiff
because of a dispute arising from the settlement, the Circuit Court for
Robertson County, the court where the underlying personal injury action
had been tried, granted the law firm's motion for a lien on the
settlement proceeds for its fee and costs advanced on the plaintiff's
behalf. Thereafter, the trial court granted the law firm's motion to
execute on the lien and directed the plaintiff to pay her former law
firm $51,091.99. On this appeal, the plaintiff asserts that the trial
court erred by directing her to pay her former law firm because the lien
was not properly perfected and because the procedure followed by the
trial court did not permit her to assert her available claims and
defenses against her former law firm. While we have determined that the
law firm properly perfected its lien, we find that the trial court did
not have the authority to adjudicate the fee dispute between the law
firm and its former client. Accordingly, we reverse the portion of the
trial court's order granting the motion for execution of the attorney's
lien.
http://www.tba.org/tba_files/TCA/Starkssl_opn.WP6
CHARLES CLAY YOUNG
VS.
LOUISE JOHNSON, TOY YOUNG,
and HUBERT BARR
Court:TCA
Attorneys:
For the Appellant: For the Appellees:
CHARLES CLAY YOUNG LYNN O. SPARKMAN
Pro Se Sparta, Tennessee
Judge:SWINEY
First Paragraph:
Plaintiff filed a pro se complaint ["Torts Suit"] for damages suffered
as a result of Defendants' removal of a dwelling he constructed on
Young-Graham family cemetery property, and for back wages as a
maintenance worker at the cemetery and punitive damages. The Trial
Court, after consideration of the pleadings and Affidavits filed by the
parties, entered an Order granting the Defendants summary judgment,
which judgment the Plaintiff appeals. The appeal was submitted on
briefs and addressed only the Defendants' removal of the dwelling the
Plaintiff constructed on cemetery property. For the reasons herein
stated, we affirm the Trial Court's dismissal of the Plaintiff's
complaint.
http://www.tba.org/tba_files/TCA/Young_opn.WP6
STATE OF TENNESSEE
VS.
ROBERT MATTHEW LANE
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
Dan Cook Paul G. Summers
102 N. Maine, Suite C Attorney General of Tennessee
Ashland City, TN 37015 and
(AT TRIAL) Elizabeth T. Ryan
Assistant Attorney General of Tennessee
Hershell D. Koger 425 Fifth Avenue North
131 North 1st Street Nashville, TN 37243-0493
Post Office Box 15524
Pulaski, TN 38478 Dan Mitchum Alsobrooks
(AT TRIAL AND ON APPEAL) District Attorney
Post Office Box 580
Charlotte, TN 37036-0580
Wally Kirby
Assistant District Attorney
105 Sycamore Street
Ashland City, TN 37015
Judge:TIPTON
First Paragraph:
The defendant, Robert Matthew Lane, appeals as of right following his
conviction upon a guilty plea in the Cheatham County Circuit Court for
felony murder. He was sentenced by the trial court to life imprisonment
without parole in the custody of the Department of Correction. The
defendant contends that the trial court erred by finding two aggravating
circumstances and by failing to consider his proposed mitigating
circumstances. We affirm the judgment of conviction.
http://www.tba.org/tba_files/TCCA/Lane_opn.WP6
STATE OF TENNESSEE
VS.
RAYMOND MITCHELL, III
Court:TCCA
Attorneys:
For the Appellant: For the Appellee:
C. Edward Fowlkes & John Knox Walkup
Thomas L. Whiteside Attorney General & Reporter
172 Second Ave North, Ste. 214
Nashville, TN. 37201 Daryl J. Brand
Assistant Attorney General
425 Fifth Avenue North
Cordell Hull Building, 2nd Floor
Nashville, TN. 37243
Victor S. Johnson, III
District Attorney General
Thomas Thurman &
Diane S. Lance
Assistant District Attorney Generals
Washington Square Building, Ste. 500
222 Second Avenue North
Nashville, TN. 37201
Judge:BARKER
First Paragraph:
The appellant, Raymond Mitchell, appeals as of right from the
convictions he received in the Criminal Court of Davidson County. The
appellant was indicted on three counts of rape accomplished by fraud and
one count of attempted rape by fraud. Before trial, one of the rape
charges was severed by the prosecution and set to be adjudicated
separately. The remaining two counts of rape by fraud and the count of
attempted rape by fraud were tried together.
http://www.tba.org/tba_files/TCCA/Mtchelrm_opn.WP6
STATE OF TENNESSEE
VS.
STEVEN WILLARD SELF
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
MARK E. STEPHENS PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
1209 Euclid Avenue
Knoxville, TN 37921 CLINTON J. MORGAN
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
RANDALL EUGENE NICHOLS
District Attorney General
TRACI SCUDDER
Special Assistant Attorney General
MARSHA SELECMAN
Assistant District Attorney General
P.O. Box 1468
Knoxville, TN 37901
Judge:WILLIAMS
First Paragraph:
Following a bench trial, the defendant, Stephen Willard Self, was
convicted of misdemeanor reckless endangerment and intentionally killing
an animal valued at less that $500. The defendant appeals, arguing that
the evidence at trial was insufficient to support conviction of either
offense. We AFFIRM the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/Selfstvw_opn.WP6
STATE OF TENNESSEE
VS.
JOSEPHINE SKIDMORE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN KNOX WALKUP CHARLES R. RAY
Attorney General and Reporter JEFFERY S. FRENSLEY
211 Third Avenue North
DARYL J. BRAND P. O. Box 198288
Associate Solicitor General Nashville, TN 37219-8288
425 Fifth Avenue North
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
KATRIN MILLER
Assistant District Attorney
222 Second Avenue North
Nashville, TN 37201-1649
Judge:SMITH
First Paragraph:
The appellee, Josephine Skidmore, was indicted by the Sumner County
grand jury with one (1) count of forgery and one (1) count of making,
presenting or using a false document with the intent that it be taken as
a genuine governmental record. She applied for pretrial diversion,
which was denied by the district attorney. Skidmore subsequently filed
a petition for writ of certiorari with the trial court to review the
district attorney's denial of pretrial diversion. The trial court found
that the assistant district attorney abused her discretion and placed
the appellee on pretrial diversion for a period of one (1) year, which
would run retroactively from the date of the indictment. The state
appeals, claiming that the trial court erred in (1) reversing the
district attorney's decision to deny pretrial diversion, and (2)
ordering a retroactive diversionary period. After a thorough review of
the record before this Court, we conclude that the trial court erred in
finding that the district attorney abused her discretion and,
accordingly, reverse the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/Skidmjos_opn.WP6
STATE OF TENNESSEE
VS.
CHRIS RUBLE TEFFETELLER
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Julie A. Martin, Attorney John Knox Walkup
P.O. Box 426 Attorney General and Reporter
Knoxville, TN 37901-0426
(on appeal) Clinton J. Morgan
425 Fifth Avenue North
Mack Garner Cordell Hull Building, Second Floor
District Public Defender Nashville, TN 37243-0493
419 High Street
Maryville, TN 37804 Charles Carpenter
Assistant District Attorney General
Blount County Courthouse
363 Court Street
Maryville, TN 37804
Judge:WADE
First Paragraph:
The defendant, Chris Ruble Teffeteller, entered pleas of guilt to
aggravated burglary and theft in excess of $1,000.00. The trial court
imposed a Range I, four-year sentence for aggravated burglary and a
Range I, three-year sentence for the theft. After serving six months
in jail, the defendant was allowed to spend the remainder of each of the
sentences in the community corrections program.
http://www.tba.org/tba_files/TCCA/Teftlrcr_opn.WP6
STATE OF TENNESSEE
VS.
RICHARD MILBURN WHITE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
SHAWN G. GRAHAM PAUL G. SUMMERS
Asst District Public Defender Attorney General and Reporter
419 High Street
Maryville, TN 37804 ERIK W. DAAB
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
MIKE FLYNN
District Attorney General
WILLIAM REED
Assistant District Attorney General
363 Court Street
Maryville, TN 37804
Judge:WELLES
First Paragraph:
The Defendant, Richard Milburn White, was convicted, upon his pleas of
guilty, of three counts of forgery, three counts of uttering a forged
writing, one count of assault, and one count of aggravated assault. In
exchange for his guilty pleas, he agreed to an effective sentence of
five years as a Range I standard offender, with the manner of service of
the sentences left to the discretion of the trial judge. After
conducting a sentencing hearing, the judge ordered that the sentences be
served in the Department of Correction. The Defendant appeals from the
trial judge's order. We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/Whiterm_opn.WP6
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