August 30, 1999
Volume 5 -- Number 118

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
03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 New Opinion(s) from the Tennessee Court of Appeals
11 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



ROBERT JONES
VS.
LIBERTY MUTUAL INSURANCE        
COMPANY

Court:TSC - Workers Comp Panel

Attorneys:                          

For the Appellant:              For the Appellee:

David H. Dunaway                Joe M. Looney
100 South Fifth St.             156 Rector Avenue
P.O. Box 231                    P.O. Box 1250
Lafollette, Tenn.  37766        Crossville, Tenn.  38557

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/Jonesrob_wc.WP6



M.S. CARRIERS, INC. VS. WILLIAM ORINGE Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Jack V. Delany Scott D. Carey 668 Poplar Avenue Baker, Donelson, Bearman & Caldwell Memphis, TN 38105 1700 Nashville City Center 511 Union Street Nashville, TN 37219 Judge:LAFFERTY First Paragraph: This workers' compensation appeal was referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. S 50-6-225(e)(3) (Supp. 1998) for a hearing and reporting to the Supreme Court of findings of fact and conclusions of law. http://www.tba.org/tba_files/TSC_WCP/Mscarrie_opn.WP6
BRENDA RAINEY VS. CLEO, INC. Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Mitchell G. Tollison Dale H. Tuttle Hawks & Tollison McDonald Kuhn P. O. Box 630 80 Monroe Avenue, Suite 550 Humboldt, TN 38343 Memphis, TN 38103 Judge:LAFFERTY 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/Raineyb_opn.WP6
GARY CURTIS VS. JANE WELTHA CURTIS Court:TCA Attorneys: R. Eddie Davidson of Nashville For Appellant Jack Norman, Jr. of Nashville For Appellee Judge:CRAWFORD First Paragraph: This is an alimony modification case. Plaintiff/Appellant, Gary Curtis (Husband), appeals the order of the trial court denying his petition to reduce the amount of alimony paid to Defendant/Appellee, Jane Weltha Curtis (Wife). http://www.tba.org/tba_files/TCA/Curtisga_opn.WP6
JANE DOE and her husband JOHN DOE, on their behalf, and on behalf of all other persons similarly situated VS. HCA HEALTH SERVICES OF TENNESSEE, INC., d/b/a HCA DONELSON HOSPITAL Court:TCA Attorneys: G. GORDON BONNYMAN, JR. 203 Second Avenue, North Nashville, Tennessee 37201 RALPH I. KNOWLES 1355 Peachtree Street Atlanta, Georgia 30309 JOHN A. DAY KATHRYN BARNETT 150 Fourth Avenue, North Nashville, Tennessee 37219 Attorneys for Plaintiffs/Appellees H. LEE BARFIELD, II JAMES O. BASS, JR. ROBERT E. COOPER, JR. E. CLIFTON KNOWLES 2700 First American Center Nashville, Tennessee 37238-2700 Attorneys for Defendant/Appellant Judge:CANTRELL First Paragraph: This deceptively simple contract question may be like the cloud "about the size of a man's hand" that produced a great storm. At issue is whether a patient's promise to pay a hospital's "charges" incorporates by reference the hospital's secret, proprietary list maintained for billing purposes. The Circuit Court of Davidson County held that the promise did incorporate the list by reference, but held, nevertheless, that the charges had to be reasonable. We concur in the result reached by the trial court but on a different basis. Therefore we affirm. http://www.tba.org/tba_files/TCA/Doej_opn.WP6
JOHN and ELIZABETH GIPSON VS. STEVE TAYLOR; ROBERT E. ENGLISH and his wife, CATHY Y. ENGLISH; TMS MORTGAGE, INC. d/b/a THE MONEY STORE Court:TCA Attorneys: For the Appellants For the Appellee TMS Mortgage, Inc. JERRY GONZALEZ DOUGLAS A. BRACE GRIFFITH & GONZALEZ, P.C. JOHN C. ROCHFORD Lebanon, Tennessee ORTALE,KELLEY,HERBERT & CRAWFORD Nashville, Tennessee Judge:SWINEY First Paragraph: Appellants John and Elizabeth Gipson (" Plaintiffs") asked, among other requested relief, for the Trial Court to determine the priority between Appellee's TMS Mortgage, Inc.'s ("TMS") mortgage lien interest and the mortgage lien interest of the Plaintiffs in certain property owned by the individual defendant Steve Taylor. Plaintiffs also raised a fraud claim against the original Defendant, Taylor. The Trial Court, after treating TMS' Motion to Dismiss as a motion for Summary Judgment pursuant to Rule 56 as the Trial Court considered matters outside the pleadings, granted summary judgment in favor of TMS and dismissed with prejudice Plaintiffs' suit against TMS. Plaintiffs then took a voluntary dismissal without prejudice of their suit against the individual defendants. After a complicated procedural odyssey due to the bankruptcy filing of Defendant Taylor, this appeal by Plaintiffs of the Trial Court's Amended Order granting summary judgment to TMS was submitted on briefs. Plaintiffs raise several issues in their brief. Plaintiffs first claim error by the Trial Court's granting of summary judgment to TMS when the Plaintiffs had not been served thirty or more days before the hearing on TMS' motion. Plaintiffs raise as an additional issue their claim that the Trial Court erred in dismissing Plaintiffs' case with prejudice as to TMS "when there existed an 11 U.S.C. S 362 bankruptcy stay on the determination of lien priorities." For the reasons herein stated, we reverse the Trial Court's grant of summary judgment and dismissal of the Plaintiffs' complaint against TMS and remand the case to the Trial Court. http://www.tba.org/tba_files/TCA/Gipson_opn.WP6
PAUL C. KESTERSON VS. MICHAEL C. GREENE, COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY Court:TCA Attorneys: For the Appellant: For the Appellee: PAUL C. KESTERSON PAUL G. SUMMERS Pro Se Attorney General and Reporter PAULA D. GODSEY Counsel for the State Nashville, Tennessee 37243-0494 Judge:SWINEY First Paragraph: This appeal involves the forfeiture of silver and gold bars, guns and collectable coins which were seized from the Petitioner's residence by the 27th Judicial Drug Task Force pursuant to a drug-related arrest. The Commissioner found Petitioner in default for failing to appear at the forfeiture hearing and forfeited his property to the Drug Task Force. The Trial Court affirmed, and the Petitioner appeals pro se, asking this Court to consider the case on the merits. The decision of the Commissioner, affirmed by the Trial Court, was a default judgment and not on the merits. We find that the Trial Court did not err in affirming the Commissioner's default judgment. Accordingly, the judgment of the Trial Court is affirmed. http://www.tba.org/tba_files/TCA/Kesterso_opn.WP6
NATIONSBANK OF TENNESSEE VS. FORMPAK, INC. and RON CAMPBEL Court:TCA Attorneys: Ron Cunningham, Knoxville, for Appellant. C. Mark Warren, Chattanooga, for Appellees. Judge:INMAN First Paragraph: This is an action filed on November 15, 1993 on a sworn account. The complaint alleges that on August 7, 1990 the "defendant signed a note payable to the plaintiff," which remains unpaid and for which judgment is demanded. http://www.tba.org/tba_files/TCA/nations2_ca3.WP6
NATIONSBANK OF TENNESSEE VS. FORMPAK, INC. and RON CAMPBELL Court:TCA O R D E R Judge:INMAN First Paragraph: The Opinion in this case filed on June 25, 1999 is hereby withdrawn. IT IS SO ORDERED. http://www.tba.org/tba_files/TCA/nationsb_ord.WP6
JIMMY W. WILSON VS. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: For the Appellant: For the Appellee: JIMMY W. WILSON PAUL G. SUMMERS Pro Se Attorney General and Reporter ARTHUR CROWNOVER, II Assistant Attorney General Nashville, Tennessee 37243-0488 Judge:SWINEY First Paragraph: This Appeal involves a dispute between the appellant, an inmate of the Tennessee Prison System, and the Tennessee Department of Correction concerning a determination of the Appellant's sentence reduction credit rights. Appellant in his initial petition sought judicial review by means of a petition for declaratory judgment and/or common law writ of certiorari. Appellant contends that the Tennessee Department of Correction has committed various common law, statutory, and administrative violations relating to computation of his sentence reduction credits. The Davidson County Chancery Court denied the Appellant's petition for declaratory judgment and his alternative request for relief pursuant to common law writ of certiorari. Appellant has appealed to this Court. For the reasons herein stated, we affirm the Trial Court's dismissal of the Appellant's complaint. http://www.tba.org/tba_files/TCA/Wilson_opn.WP6
STATE OF TENNESSEE VS. MELVIN JEROME ANDERSON Court:TCCA Attorneys: Judge:WADE First Paragraph: The defendant, Melvin Jerome Anderson, was convicted of a sale of cocaine greater than 0.5 gram, a Class B felony. Tenn. Code Ann. S 39-17-417. The trial court imposed a Range I sentence of ten years and a $50,000.00 fine. In this appeal of right, the single issue presented for review is whether the evidence was sufficient to support the conviction. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Andrsnmj_opn.WP6
DANIEL BENSON TAYLOR VS. JACK MORGAN, WARDEN Court:TCCA O R D E R 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 appellant opposes the motion. Upon reviewing the record and the pleadings in this case, we find that it is an appropriate matter for affirmance under Rule 20. http://www.tba.org/tba_files/TCCA/BENSOND_ORD.WP6
STATE OF TENNESSEE VS. ROBIN DeHART Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JULIE A. MARTIN PAUL G. SUMMERS P. O. Box 426 Attorney General & Reporter Knoxville, TN 37901-0426 (On Appeal) CLINTON J. MORGAN Assistant Attorney General MACK GARNER 425 Fifth Avenue North District Public Defender Nashville, TN 37243-0493 419 High Street Maryville, TN 37804 MICHAEL L. FLYNN (At Trial) District Attorney General EDWARD P. BAILEY, JR. Assistant District Attorney General Blount County Courthouse 363 Court Street Maryville, TN 37804-5906 Judge:GLENN First Paragraph: The defendant, Robin DeHart, appeals the order of the Blount County Circuit Court revoking her probation and ordering that she serve 124 days in jail. The basis for this appeal is the defendant's contention that the trial court should not have revoked her probation and ordered her to serve 124 days because she had completed rehabilitation programs while in federal custody, between the time of the filing of the violation of probation affidavit and the state court revocation hearing. Based upon our review of the record and applicable law, we affirm the order of the trial court. http://www.tba.org/tba_files/TCCA/Dehartr_opn.WP6
MICHAEL L. DICKERSON VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MICHAEL L. DICKERSON, pro se PAUL G. SUMMERS Northeast Correctional Complex Attorney General & Reporter P. O. Box 5000 Mountain City, TN 37683 ERIK W. DAAB (On Appeal) Assistant Attorney General 425 Fifth Avenue North EDWARD C. MILLER Nashville, TN 37243-0493 District Public Defender 1232 Circle Drive, Suite 350 AL C. SCHMUTZER, JR. P. O. Box 416 District Attorney General Dandridge, TN 37725-0416 125 Court Avenue, Room 301-E (At Trial) Sevierville, TN 37862 SUSANNA L. THOMAS JAMES B. DUNN Asst District Public Defender Asst District Attorney General 102 Mims Avenue 339-A East Main Street Newport, TN 37821-3614 Newport, TN 37821 Judge:GLENN First Paragraph: The petitioner, Michael L. Dickerson, appeals from the dismissal of his petition for post-conviction relief, which alleged that he was forced by his attorney into pleading guilty to the offense of aggravated assault, of which he was not guilty. As a result, he claims that his counsel was ineffective and that the guilty plea should be set aside. Based upon our review of the record, we affirm the order of the trial court dismissing the petition. http://www.tba.org/tba_files/TCCA/Dickersm_opn.WP6
EDWARD THOMAS KENDRICKS, III, alias EDWARD THOMAS KENDRICK, III VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: EDWARD T. KENDRICKS, III PAUL G. SUMMERS P.O. Box 2000 Attorney General & Reporter Wartburg, TN 37887 (Pro Se) GEORGIA BLYTHE FELNER Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 WILLIAM H. COX, III District Attorney General Judge:PEAY First Paragraph: A jury convicted the petitioner of the first-degree murder of his wife, which this Court affirmed. State v. Edward Thomas Kendricks, III, No. 03C01-9510-CR-00336, Hamilton County (Tenn. Crim. App. filed September 25, 1996, at Knoxville). In April 1998, the petitioner timely filed a petition for post-conviction relief. By written order, the post-conviction court dismissed the petition without a hearing, finding the issues raised were either waived or previously determined. One week later, the petitioner filed an amended petition for post-conviction relief. The post-conviction court dismissed the amended petition for post-conviction relief as being untimely filed. On appeal, the petitioner argues various reasons why the post-conviction court erred in dismissing his petition without first allowing him to amend it with the aid of counsel. Finding some merit to the petitioner's arguments, we reverse the post-conviction court's order in part and remand for further proceedings. http://www.tba.org/tba_files/TCCA/Kendrick_opn.WP6
BILLY WAYNE LESLIE VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: BILLY W. LESLIE, Pro Se N.W.C.X., Site 2 Route 1, Box 660 Tiptonville, TN 38079 FOR THE APPELLEE: MICHAEL E. MOORE Solicitor General ELIZABETH B. MARNEY Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General JOHN C. ZIMMERMANN Assistant District Attorney General Washington Square 222 - 2nd Avenue North, Suite 500 Nashville, TN 37201-1649 Judge:RILEY First Paragraph: Petitioner appeals the dismissal of his combined petitions for writ of error coram nobis and post-conviction relief. The sole issue for our review is whether the trial court erred in failing to appoint counsel for the evidentiary hearing. The trial court had appointed three different attorneys to represent petitioner. In each case, the attorney requested and was granted permission to withdraw as a result of petitioner's lack of cooperation and unreasonable demands. Upon allowing the third attorney to withdraw, the trial court declined to appoint another attorney and set the matter for a subsequent hearing on the merits. Petitioner failed to present any evidence in support of the petitions on that date, and the trial court dismissed them. We conclude the trial court did not err and AFFIRM the dismissal of the petitions. http://www.tba.org/tba_files/TCCA/LESLIEBW_OPN.WP6
Dissenting Opinion: http://www.tba.org/tba_files/TCCA/LESLIEBW_DIS.WP6
STATE OF TENNESSEE VS. JAMES O. MARTIN Court:TCCA Attorneys: For Appellant: For Appellee: David L. Bacon, Attorney Paul G. Summers 602 South Gay Street Attorney General and Reporter Suite 600 Knoxville, TN 37902 Todd R. Kelley Assistant Attorney General 425 Fifth Avenue North Second Floor, Cordell Hull Building Nashville, TN 37243-0493 Randall E. Nichols District Attorney General Scott Green Asst District Attorney General City-County Building Knoxville, TN 37902 Judge:WADE First Paragraph: The defendant, James O. Martin, was tried and convicted of aggravated arson. Tenn. Code Ann. S 39-14-302. The trial judge imposed a twenty-two year sentence. In this appeal of right, the defendant claims that the evidence was insufficient, that it was physically impossible for the defendant to commit this crime, and that his right to a fair and impartial jury was violated by the inclusion of a biased juror. We find no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Martinjo_opn.WP6
GERALD H. SCHAFFER VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Mark E. Stephens Paul G. Summers District Public Defender Attorney General and Reporter Jim Owen Todd R. Kelley Asst District Public Defender Assistant Attorney General 1209 Euclid Avenue 425 Fifth Avenue North Knoxville, TN 37921 Second Floor, Cordell Hull Building (at trial and on appeal) Nashville, TN 37243-0493 and Paula R. Voss Marsha Selecman Assistant Public Defender Asst District Attorney General 1209 Euclid Avenue 400 Main Avenue Knoxville, TN 37921 City County Building (on appeal) Knoxville, TN 37902 Judge:WADE First Paragraph: The defendant, Gerald H. Schaffer, entered pleas of guilt to aggravated burglary and theft of property less than $1,000.00. On April 20, 1992, the trial court imposed Range I, three- and one-year sentences, respectively. The defendant was placed on probation. On July 31, 1992, the state filed a warrant claiming a violation of the terms of probation. Two and one-half months later, the trial court entered an order placing the case in the "inactive file." On March 23, 1993, the trial court appointed defense counsel and some five years and one month later, the warrant seeking revocation was amended to include two additional grounds. In June of 1998, the trial court revoked probation and ordered a three-year sentence to be served in the department of correction. http://www.tba.org/tba_files/TCCA/Schafrgh_opn.WP6
STATE OF TENNESSEE VS. TRACY LEBRON VICK Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHNNY L. WOODRUFF PAUL G. SUMMERS Fields & Bible, P.C. Attorney General & Reporter 701 Market St, Ste 1300 Chattanooga, TN 37402 MARVIN S. BLAIR, JR. Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 WILLIAM H. COX, III District Attorney General MARK HOOTON Assistant District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402 Judge:GLENN First Paragraph: The defendant, Tracy Lebron Vick, pleaded guilty to second degree murder on December 4, 1997. Following a sentencing hearing on February 6, 1998, the trial court sentenced the defendant to forty years in prison as a multiple offender. The trial court overruled the defendant's motion to correct or reduce his sentence on March 9, 1998. The defendant timely appealed, listing two assignments of error: I. Did the honorable Trial Court err in imposing the maximum sentence for the offense upon the Appellant/defendant? II. Did the honorable Trial Court err in ordering that the sentence run consecutively with the Appellant/defendant's prior sentence? Finding no error in the decision below, we affirm. http://www.tba.org/tba_files/TCCA/Vicktl_opn.WP6
Concurring Opinion: http://www.tba.org/tba_files/TCCA/Vick_con.WP6

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