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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):
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| 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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