October 25, 1999
Volume 5 -- Number 146

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):
 
02 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
11 New Opinion(s) from the Tennessee Court of Appeals
04 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


STATE OF TENNESSEE
VS.
CHARLES D. FOWLER

WITH DISSENTING OPINION 

Court:TSC

Attorneys:  

FOR APPELLANT:                  FOR APPELLEE:

PAUL G. SUMMERS                 ROBERT S. PETERS
Attorney General and Reporter   Winchester

MICHAEL E. MOORE
Solicitor General

DARYL J. BRAND
Associate Solicitor General
Nashville                        

Judge: HOLDER

First Paragraph:

We granted this appeal to determine whether payment by a fifty-three-
year-old male for "straight sex" with what he perceived to be a
fifteen-year-old boy could constitute a substantial step toward the
commission of statutory rape.  Upon review, we hold that the evidence
in this case supported the jury's finding that the defendant's conduct
constituted a substantial step toward the commission of statutory
rape.  The decision of the Court of Criminal Appeals is reversed, and
the defendant's conviction for attempted statutory rape is reinstated.

http://www.tba.org/tba_files/TSC/FOWLERCD.wpd

DISSENTING OPINION:
http://www.tba.org/tba_files/TSC/FowlerD_dis.wpd



GERALDINE GARRETT VS. TOWN OF LIVINGSTON, TN and AETNA CASUALTY and SURETY COMPANY JUDGMENT ORDER Court:TSC Judge: PER CURIAM 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 ... http://www.tba.org/tba_files/TSC/Garrett_wc.wpd
WADDELL GRAY VS. UNITED PARCEL SERVICE, INC. OHIO d/b/a UNITED PARCEL SERVICE and LIBERTY MUTUAL FIRE INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellants: For the Appellee: Richard D. Click Roscoe A. Feild Eugene Stone Forrester, Jr. 239 Adams Avenue Farris, Mathews, Branan & Hellen Memphis, TN 38103 One Commerce Square, Suite 2000 Memphis, TN 38103 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. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. S 50-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). http://www.tba.org/tba_files/TSC_WCP/Graywadd.wpd
JAMES R. BALDWIN VS. THE KNOX COUNTY BOARD OF EDUCATION Court:TCA Attorneys: THOMAS R. HENLEY of LUFKIN, HENLEY & CONNER, Knoxville, for Appellant RICHARD T. BEELER, Knox County Law Director, and MARY ANN STACKHOUSE, Deputy Law Director, for Appellee Judge: GODDARD First Paragraph: This appeal involves an action for back wages by James R. Baldwin, the Plaintiff/Appellant and a former employee of the Knox County School Board, the Defendant/Appellee. Mr. Baldwin argues that he is owed approximately $32,187 in wages. Upon the filing of his complaint, Mr. Baldwin moved for summary judgment, and the Board likewise moved for summary judgment on the ground of res judicata when it filed its answer to Mr. Baldwin's complaint. http://www.tba.org/tba_files/TCA/baldwinjam.wpd
SALLY SUTTON BRITT VS. BOBBY GLENN BRITT Court:TCA Attorneys: ROBERT D. ARNOLD of ARNOLD, HAYNES & SANDERS, Johnson City, for Appellant JUDITH FAIN, Johnson City, for Appellee Judge: GODDARD First Paragraph: This appeal involves an action to determine whether the Trial Court erred in its division of the marital estate. Sally Sutton Britt, the Plaintiff/Appellant, presents as her sole issue, which we restate, whether the Trial Court erred in its valuation of her Civil Service Retirement Account in its division of the marital estate in her divorce from Bobby Glenn Britt, the Defendant/Appellee. http://www.tba.org/tba_files/TCA/brittsal.wpd
REGINA L. CABLE VS. CHARLES EDWARD CLEMMONS, JR. Court:TCA Attorneys: JONATHAN A. MOFFATT OF KNOXVILLE FOR APPELLANT THEODORE R. KERN OF KNOXVILLE FOR APPELLEE Judge: GODDARD First Paragraph: Appellant Charles E. Clemmons, Jr., appeals an order entered in a hearing contending he had violated a previous no contact order of protection entered by the Trial Court in favor of Appellee Regina L. Cable. http://www.tba.org/tba_files/TCA/cablereg.wpd
CHATTANOOGA ASSOCIATES, LIMITED PARTNERSHIP VS. CHEROKEE WAREHOUSES, INC Court:TCA Attorneys: For the Appellant: For the Appellee: Frank P. Pinchak Bruce C. Bailey WITT, GAYTHER & WHITAKER, P.C. CHAMBLISS, BAHNER & STOPHEL, P.C. 1100 SunTrust Bank Building 1000 Tallan Building 736 Market Street Two Union Square Chattanooga, TN 37402-4856 Chattanooga, TN 37402 Judge: SWINEY First Paragraph: This is an appeal from an Order of the Chancery Court of Hamilton County awarding Plaintiff $46,249.47 for the cost of construction (repaving) on the parking lot of a storage warehouse which Chattanooga Associates Limited Partnership ("Plaintiff") leased to Cherokee Warehouses, Inc. ("Defendant"), plus late fee and attorney's fees, under the terms of the Lease, for a total judgment of $71,288.77. http://www.tba.org/tba_files/TCA/chattan.wpd
JOHNNY J. CRASS, JR. VS. STATE OF TENNESSEE Court:TCA Attorneys: For the Appellants: For the Appellee: Johnny Joe Crass, Jr. Paul G. Summers 7204 Larkspur Lane Lot 47 Attorney General and Reporter Powell, TN 37849 Arthur Crownover II Assistant Attorney General Civil Rights and Claims Division Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0488 Judge: SWINEY First Paragraph: This is an appeal from an Order of the Tennessee Claims Commission which dismissed the Petitioner/Appellant's claim for false imprisonment. The dismissal by the Claims Commission was based upon its determination that Appellant had not stated a cause of action subject to the jurisdiction of the Commission, and that Appellant had failed to file his claim within the applicable one year statute of limitations. http://www.tba.org/tba_files/TCA/crass-3.wpd
JOHN DAVIS, and wife CLAUDIA DAVIS, d/b/a/ C & J ENTERPRISES VS. MICHAEL E. McINERNEY and KOTZ AND SANGSTER, P.C., Court:TCA Attorneys: For the Appellants: For the Appellee Arthur M. Fowler Kotz & Sangster, P.C.: McKinnon, Fowler, Fox Rick J. Bearfield & Taylor Suite 1, Wesley Plaza 130 East Market Street 2513 Wesley Street Johnson City, TN 37604-5711 P. O. Box 4210 CRS Johnson City, TN 37602 For the Appellee Michael E. McInerney: Michael McInerney, Pro Se Judge: SWINEY First Paragraph: This is an appeal from an Order of the Chancery Court for Johnson County granting Defendants' Motion for Summary Judgment. Appellant raises the issue of whether the Trial Court erred in granting summary judgment. Appellees contend the existence of a contract of guaranty is a question of law for the Court, which the Court properly decided based on undisputed facts, and that the Trial Court properly granted summary judgment. For the reasons herein stated, we reverse the judgment of the Trial Court and remand the case to the Trial Court for further proceedings consistent with this Opinion. http://www.tba.org/tba_files/TCA/davis.wpd
CAROLYN B. ERWIN VS. METHODIST MEDICAL CENTER OF OAK RIDGE Court:TCA Attorneys: For the Appellant: For the Appellee: J. Anthony Farmer Robert W. Knolton Knoxville Knoxville Judge: SWINEY First Paragraph: This is an appeal from the Trial Court's dismissal of a negligence action brought against Methodist Medical Center of Oak Ridge, Defendant/Appellee, arising from a workplace injury to Plaintiff/Appellant, an employee of a contract service provider. In addition to filing suit against her direct employer under the Tennessee Workers' Compensation Act, Plaintiff sued Defendant in tort, alleging negligence related to her workplace injury. Defendant moved for dismissal under Tenn. R. Civ. P. Rule 12.02(6), asserting immunity from tort suit under the exclusive remedy provision of the Tennessee Workers' Compensation Act. The Trial Court dismissed the cause of action, finding that Defendant was a principal contractor under Tenn. Code Ann. S 50-6-113. For the reasons herein stated, we affirm the Trial Court's dismissal of Plaintiff's tort action. http://www.tba.org/tba_files/TCA/ErwinC.wpd
IN RE: THE ESTATE OF FRED FILYAW George Pritchett and Barbara Pritchett VS. HARVEY LUNSFORD Court:TCA Attorneys: For the Appellants: For the Appellee: John W. Cleveland Vance L. Baker, Jr. CLEVELAND & CLEVELAND 114 Washington Ave. 120 W. Morris Street P. O. Box 1085 Sweetwater, TN 37874 Athens, TN 37371-1085 Judge: SWINEY First Paragraph: This is an appeal from an Order of the Probate Court of McMinn County which denied the claim of George and Barbara Pritchett ("Appellants") against the estate of Fred Filyaw for meals they provided to the decedent over a period of eight years. The sole issue presented for appeal is whether the Probate Court erred in denying Appellants' claim for reimbursement for meals furnished to Mr. Filyaw by the Appellants over the eight year period. We affirm the judgment of the Probate Court. http://www.tba.org/tba_files/TCA/filyaw_dra.wpd
SONJA FOX, Attorney-In-Fact For Johnny Fox VS. RON OSTERHOUT and SANDRA OSTERHOUT Court:TCA Attorneys: RON OSTERHOUT and TANA OSTERHOUT, APPELLANTS, Pro Se ROBIN S. KUYKENDALL OF KNOXVILLE FOR APPELLEE Judge: GODDARD First Paragraph: Ron Osterhout and Tana Osterhout appeal a judgment of the Johnson City Law Court that ordered the return of a 1988 Mazda pickup truck to Johnny Fox, which Mr. Osterhout insists had been sold to him by Mr. Fox. The judgment also taxed costs of the case against Mr. and Mrs. Osterhout. http://www.tba.org/tba_files/TCA/foxson_opn.wpd
TERESA D. GILLENWATERS VS. JAMES E.W. GILLENWATERS, III Court:TCA Attorneys: JOHN D. LOCKRIDGE and SCARLETT A. BEATY, LOCKRIDGE, VALONE & BEATY, PLLC, Knoxville, for Appellant. MARTHA MEARES and ANNE M. STAIR, Maryville, for Appellee. Judge: FRANKS First Paragraph: In this divorce action, the Trial Judge awarded custody of the parties' child to the father, which custody award is the sole issue on appeal by the mother. http://www.tba.org/tba_files/TCA/gillenwtrst.wpd
CHERYL GREEN, individually and on behalf of SEAN ENIX VS. HAMBLEN COUNTY BOARD OF EDUCATION and LESLIE BROOKS Court:TCA Attorneys: For the Appellant: For the Appellee: Michael C. Murphy Janet L. Hogan Morristown Knoxville Judge: SWINEY First Paragraph: This is an appeal from the Trial Court's grant of Defendants'/Appellees' motion to dismiss a negligence suit arising from an injury to a student in a public school gym class, where suit was originally filed in Hamblen County General Sessions Court and "transferred" by the General Sessions Judge to Hamblen County Circuit Court under the exclusive jurisdiction provision of the Tennessee Governmental Tort Liability Act, Tenn. Code Ann.S 29-20-101 et seq. Upon motion of Defendants, the Circuit Court found the claims of Plaintiff Cheryl Green barred by operation of the one year statute of limitations, and the Defendants immune to tort negligence claims of minor Plaintiff Sean Enix under Tenn Code Ann. S 29-20-205 as discretionary functions. For the reasons stated herein, the Order of the Trial Court is affirmed dismissing Plaintiff Green's claims, reversed as to Plaintiff Sean Enix's claims, and remanded to the Trial Court for further proceedings consistent with this Opinion on the claims of Sean Enix. http://www.tba.org/tba_files/TCA/Greenc.wpd
STATE OF TENNESSEE VS. WILLIAM R. BEGLEY, III Court:TCCA Attorneys: For the Appellant: For the Appellee: Leslie Hale Paul G. Summers Assistant Public Defender Attorney General of Tennessee Post Office Box 889 and Blountville, TN 37617 Marvin S. Blair, Jr. (AT TRIAL) Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243 Larry S. Weddington 200 Seventh Street Bristol, TN 37620 (ON APPEAL) Judge: TIPTON First Paragraph: The defendant, William R. Begley, III, was convicted in the Sullivan County Criminal Court upon his no contest pleas to one count of possession of marijuana, a Class A misdemeanor; eight counts of theft of property less than five hundred dollars, a Class A misdemeanor; and fifteen counts of vandalism of property valued over five hundred dollars, a Class E felony. He received an effective sentence of six years in the Department of Correction as a Range I, standard offender. In this appeal as of right, the defendant contends that he should have received a community corrections sentence. We affirm the sentence imposed by the trial court. http://www.tba.org/tba_files/TCCA/Begley.wpd
STATE OF TENNESSEE VS. CRAIG STEPHEN BOURNE Court:TCCA Attorneys: For Appellant: For Appellee: Joseph S. Harrison Paul G. Summers Office of the Public Defender Attorney General and Reporter P.O. Box 839 Blountville, TN 37617 Todd R. Kelley Assistant Attorney General Gale K. Flanary 425 Fifth Avenue North Assistant Public Defender Second Floor, Cordell Hull Building 266 Blountville Bypass Nashville, TN 37243-0493 Blountville, TN 37617 and Teresa Murray-Smith Gerald L. Gulley, Jr. and Contract Appellate Defender Greg Newman P.O. Box 1708 Assistant District Attorneys General Knoxville, TN 37901-1708 P.O. Box 526 (on appeal) Blountville, TN 37617 Judge: WADE First Paragraph: The defendant, Craig Stephen Bourne, was convicted of attempted second degree murder, aggravated burglary, and especially aggravated kidnaping. The trial court imposed an eight-year sentence for attempted second degree murder, a six-year sentence for aggravated burglary, and a twenty-five year sentence for especially aggravated kidnaping. Because the sentences for attempted second degree murder and especially aggravated kidnaping were ordered to be served consecutively, the effective sentence is thirty-three years. The trial court imposed fines totaling $48,250.00 for the three offenses. http://www.tba.org/tba_files/TCCA/Bournecs.wpd
STATE OF TENNESSEE VS. MATTHEW S. FITZGERALD Court:TCCA Attorneys: For Appellant: For Appellee: Michael G. Hatmaker Paul G. Summers Attorney Attorney General and Reporter P.O. Drawer 417 571 Main Street Michael J. Fahey, II Jacksboro, TN 37757 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243 Paul Phillips District Attorney General P.O. Box 10 Huntsville, TN 37756 Michael O. Ripley Assistant District Attorney General P.O. Box 323 Jacksboro, TN 37757 Judge: WADE First Paragraph: The defendant, Matthew S. Fitzgerald, was convicted of two counts of child endangerment, Class A misdemeanors. Tenn. Code Ann. S 55-10-414(1). The trial court merged the judgment on Count Two into Count One and imposed an eleven-month, twenty-nine day sentence at seventy-five percent. The defendant was ordered to serve thirty days in jail, had his driver's license revoked, and was fined $1,000.00. http://www.tba.org/tba_files/TCCA/Fitzgrdm.wpd
STATE OF TENNESSEE VS. CHARLES ERIC GOODWIN Court:TCCA Attorneys: For Appellant: For Appellee: Allen R. Beard, Attorney Paul G. Summers 615 Lindsay Street, Suite 110 Attorney General and Reporter Chattanooga, TN 37403-0110 R. Stephen Jobe Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Second Floor, Cordell Hull Building Nashville, TN 37243-0493 C. Leland Davis and Caldwell Huckabay Assistant District Attorneys General City and County Courts Building Chattanooga, TN 37402 Judge: WADE First Paragraph: The defendant, Charles Eric Goodwin, was convicted in a bench trial of the second degree murder of Gregory Billups, Jr., and the attempted second degree murder of Eddie Birdsong. The trial court imposed concurrent, Range I sentences of twenty-five years and twelve years, respectively. In this appeal of right, the defendant challenges the sufficiency of the evidence as to each conviction and contends that certain of the testimony should not have been excluded from consideration. http://www.tba.org/tba_files/TCCA/Goodwinc.wpd

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