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January 24, 2000
Volume 6 -- Number 010
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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| 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 |
| 05 |
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.
HOWARD BROWN
WITH DISSENTING OPINION
Court:TSC
Attorneys:
For Appellant: For Appellee:
SUSAN E. SHIPLEY JOHN KNOX WALKUP
Knoxville, TN Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
TODD R. KELLEY
Assistant Attorney General
Nashville, TN
RANDALL E. NICHOLS
District Attorney General
CHARME P. JOHNSON KNIGHT
Asst. District Attorney General
GREG HARRISON
Asst. District Attorney General
Knoxville, TN
Judge: BIRCH
First Paragraph:
The issue here presented is whether the trial court correctly applied
the rape shield rule in excluding testimony about a rape complainant's
prior sexual behavior with a person other than the defendant. The
trial court excluded the proffered evidence upon a finding that the
defendant did not describe the evidence in detail sufficient to
satisfy the requirement of Tenn. R. Evid. 412(d)(1)(iii). In
contrast, the Court of Criminal Appeals found no issue in the
application of Rule 412(d)(1)(iii); however, it held that the
proffered evidence was properly excluded because it constituted
inadmissible hearsay.
http://www.tba.org/tba_files/TSC/BROWNHow_opn.wpd
DISSENTING OPINION:
http://www.tba.org/tba_files/TSC/brownhow_dis.wpd
GARY WAYNE DAVIS
VS.
SUMNER COUNTY BOARD OF EDUCATION, GALLATIN, TN
Court:TSC
Attorneys:
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/jodavis.wpd
GLORIA ROOKER
VS.
ZURICH INSURANCE COMPANY
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellee: For the Appellant:
Steve Taylor Archie Sanders, III
6263 Poplar Avenue McWhirter & Wyatt
Suite 601 73 Union Avenue
Memphis, Tennessee 38119 Memphis, TN 38103
Judge: HOLDER
First Paragraph:
This worker's 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) for hearing and reporting of
findings of fact and conclusions of law. In this appeal, the
defendant's insurer appeals the award of 25% disability to the body
as a whole, as well as the court ordered payment of medical charges
by a physician not authorized by the employer. After thorough review
of the record, this panel finds the award of permanent partial
disability should be affirmed, but that portion of the judgment
ordering payment of medical expenses for charges by an unauthorized
physician should be reversed.
The plaintiff employee is a forty-six year old female. She attended
but did not complete high school. She had obtained her GED. She had
been working for Morning Star Foods, the defendant's insured, for nine
years. The injury that gave rise to this award occurred on November
16, 1997, when the plaintiff, in the course of her employment, was
attempting to "stomp down" cardboard boxes in a trash compacter at her
employment. While engaged in this activity the cardboard gave way
causing the plaintiff's left foot to drop approximately two to three
feet. The plaintiff reported her injury to her supervisor and
embarked on a course of medical treatment through authorized
physicians, as well as a physician that the plaintiff saw of her own
initiative. The plaintiff's complaints of pain in the right hip area
were consistent throughout the course of her treatment.
http://www.tba.org/tba_files/TSC_WCP/rooker.wpd
HAROLD DAVIS
VS.
TENNESSEE DEPARTMENT OF EMPLOYMENT SECURITY,
TENNESSEE CIVIL SERVICE COMMISSION, and
MARGARET CULPEPPER, in her official capacity as Commissioner of the
Tennessee Department of Employment Security
Court:TCA
Judge: LEWIS
First Paragraph:
Harold Davis has filed a timely and courteous Tenn. R. App. P. 39
petition requesting this court to reconsider its opinion filed in this
case on December 10, 1999. The petition raises two issues. First,
Mr. Davis questions the impartiality of a member of this court.
Second, Mr. Davis asserts that the court should have reinstated his
civil rights claim that had been dismissed by the trial court. We
have determined that Mr. Davis has not presented grounds entitling him
to further relief.
http://www.tba.org/tba_files/TCA/DavisH_reh.wpd
M.R. DILLARD CONSTRUCTION
VS.
J. P. REALTY, II, INC., and MERCHANTS BONDING COMPANY
Court:TCA
Attorneys:
GARY S. RUBENSTEIN
J. CARSON STONE, III
501 Union Street, Suite 701
Nashville, Tennessee 37219-0676
Attorneys for Plaintiff/Appellant
KARLA C. HEWITT
211 Donelson Pike, Suite 4
Nashville, Tennessee 37214
Attorney for Defendants/Appellees
Judge: CANTRELL
First Paragraph:
This appeal involves a dispute over whether the appellant's action to
enforce a mechanics' and materialmen's lien against the appellee
should be stayed or dismissed pending arbitration. The Chancery Court
for Davidson County found that the arbitration clause in the contract
between the appellant and appellee was the exclusive remedy for the
resolution of all disputes and dismissed the appellant's complaint
without prejudice. We reverse the dismissal and instead stay the
appellant's action pending arbitration between the two parties.
http://www.tba.org/tba_files/TCA/dillardmr.wpd
MARGIE HERALD, ALLEN EVANS, and DAVID PARRIS
VS.
RUTH E. JOHNSON, in her capacity as Commissioner of
Revenue for the State of Tennessee
Court:TCA
Attorneys:
PHILLIPS M. SMALLING
P. O. Box 340
Byrdstown, Tennessee 38549
Attorney for Plaintiffs/Appellants
PAUL G. SUMMERS
Attorney General & Reporter
ELIZABETH A. CARNAHAN
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243
Attorney for Defendant/Appellee
Judge: CANTRELL
First Paragraph:
This is a dispute with the Tennessee Department of Revenue over
whether the privilege tax set out at Tenn. Code Ann. S 67-4-410 is
applicable where the appellants illegally sold sealed bottles of
liquor for off premises consumption. The Chancery Court of Pickett
County denied any refund of the taxes paid by the appellants to
satisfy the department's assessment. We affirm.
http://www.tba.org/tba_files/TCA/heraldm.wpd
RUTH S. STRZELECKI (MCGRIFF)
VS.
ROY D. MCGRIFF
Court:TCA
Attorneys:
PAUL G. SUMMERS
Attorney General & Reporter
MARVIN E. CLEMENTS, JR.
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243
Attorney for Appellee State of Tennessee
RANDLE W. HILL, JR.
Suite 310
222 Second Avenue North
Nashville, Tennessee 37201
Attorney for Appellant
Judge: CANTRELL
First Paragraph:
This is an appeal from an order of the Fourth Circuit Court of
Davidson County finding the appellant, Roy D. McGriff, in contempt of
court for failure to meet his child support and alimony obligations
and awarding a judgment of arrearages to the appellant's ex-wife, Ruth
Strzelecki. We affirm the judgment below.
http://www.tba.org/tba_files/TCA/strzeleckirs.wpd
CAROL D. SWANSON, as heir of JAMES FRANKLIN HATCHER,
deceased, and for the benefit of WILLIE MAE HATCHER, widow
VS.
LARRY C. PETERSON, and ALL AMERICAN BOTTLING CO., INC.,
d/b/a ROYAL CROWN BOTTLING CO., a/k/a R.C. CANADA DRY BOTTLING CO.
Court:TCA
Attorneys:
For Plaintiff/Appellant: For Defendants/Appellees:
Lloyd T. Kelso Wendy Lynne Longmire
Lloyd T. Kelso & Associates Joseph M. Huffaker
Nashville, Tennessee Ortale, Kelley, Herbert & Crawford
Judge: KOCH
First Paragraph:
This appeal stems from two wrongful death suits involving the death of
the same person. Both suits were filed in the Circuit Court for
Davidson County, the first by the decedent's daughter and the second
by the decedent's widow. The trial court granted the common
defendants' motion to dismiss the daughter's suit on the ground that
the widow has a superior right to maintain a wrongful death action.
On this appeal, the daughter asserts that she has a statutory right to
continue her wrongful death action despite the filing of the widow's
suit. We disagree and, therefore, affirm the trial court.
http://www.tba.org/tba_files/TCA/Swansoncd.wpd
STATE OF TENNESSEE
VS.
DAVID MICHAEL GAMBLE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
ARDENA J. GARTH PAUL G. SUMMERS
District Public Defender Attorney General and Reporter
DONNA ROBINSON MILLER MICHAEL J. FAHEY, II
Assistant Public Defender Assistant Attorney General
701 Cherry Street, Suite 300 425 Fifth Avenue North
Chattanooga, TN 37402 Nashville, TN 37243
BILL COX
District Attorney General
JOSEPH A. REHYANSKY
Assistant District Attorney General
600 Market Street
Chattanooga, TN 37402
Judge: WELLES
First Paragraph:
In this appeal as of right, the Defendant, David Michael Gamble,
appeals his conviction of theft of property valued at over $60,000.00.
After a jury trial, he was convicted of both theft of property valued
at over $60,000.00 and possession of drug paraphernalia.
http://www.tba.org/tba_files/TCCA/gambledm.wpd
STATE OF TENNESSEE
VS.
ANGELA RENEE GATES
Court:TCCA
Attorneys:
FOR THE APPELLANT:
RAYMOND MACK GARNER
District Public Defender
NATALEE HURLEY
(At Trial)
Assistant Dist. Public Defender
419 High Street
Maryville, TN 37804
GERALD L. GULLEY, JR.
(On Appeal)
P. O. Box 1708
Knoxville, TN 37901-1708
FOR THE APPELLEE:
JOHN KNOX WALKUP
Attorney General and Reporter
ERIK W. DAAB
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
MICHAEL L. FLYNN
District Attorney General
KIRK ANDREWS
EDWARD P. BAILEY, JR.
Assistant Dist. Attorneys General
363 Court Street
Maryville, TN 37804-5906
Judge: RILEY
First Paragraph:
Defendant, Angela Renee Gates, appeals as of right her convictions by
a Blount County jury for the offenses of facilitation of aggravated
child abuse and aggravated assault. Honorable D. Kelly Thomas, Jr.
sentenced her to concurrent terms of twelve years and six years,
respectively.
http://www.tba.org/tba_files/TCCA/GATESAR.wpd
STATE OF TENNESSEE
VS.
GARRY LEE MATHES
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
DEBORAH HUSKINS PAUL G. SUMMERS
Assistant Public Defender Attorney General and Reporter
JULIE A. RICE MICHAEL J. FAHEY, II
P.O. Box 426 Assistant Attorney General
Knoxville, TN 37901-0426 425 Fifth Avenue North
Nashville, TN 37243
JOE G. CRUMLEY
District Attorney General
STEVE FINNEY
Assistant District Attorney General
P.O. Box 38
Jonesborough, TN 37659
Judge: WELLES
First Paragraph:
The Defendant, Garry Lee Mathes, was indicted for felony reckless
endangerment and felony evading arrest and was subsequently found
guilty by a Washington County jury of misdemeanor reckless
endangerment and felony evading arrest. He was sentenced to eleven
months and twenty-nine days for the misdemeanor reckless endangerment
conviction and four years for the felony evading arrest conviction.
He was also ordered to serve eight years of probation for the felony
evading arrest conviction after serving ninety days in jail. The
first year of probation was to be served on intensive probation. In
addition, as conditions of his probation, the Defendant was ordered to
continue to receive mental health treatment, to continue taking his
mental health medication as prescribed, to refrain from driving a
vehicle unless one of his parents is in the car with him, and to
refrain from drinking any alcohol. In this appeal as of right, the
Defendant argues that the evidence is insufficient to support the
convictions and that the sentence is excessive.
http://www.tba.org/tba_files/TCCA/mathesgl.wpd
STATE OF TENNESSEE
VS.
JAMES ALAN MORGAN
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Michael A. Walcher Paul G. Summers
Office of the Public Defender Attorney General and Reporter
Third Judicial District
1609 College Park Drive Ellen H. Pollack
Morristown, TN 37813 Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243-0493
Eric D. Christiansen
Assistant District Attorney General
109 South Main Street, Suite 501
Greeneville, TN 37743
Judge: WADE
First Paragraph:
The petitioner, James Alan Morgan, appeals the trial court's denial of
post-conviction relief. The issues presented for our review are
whether the petitioner's voluntary manslaughter conviction was proper
and whether he was denied the effective assistance of counsel,
particularly during the sentencing hearing.
We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/morganja.wpd
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