May 26, 2000
Volume 6 -- Number 079

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.

This Issue (IN THIS ORDER):
 
00 New Opinion(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
10 New Opinion(s) from the Tennessee Court of Appeals
12 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
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

						
						
BRENDA K. BASCKO	
VS.
ST. PAUL FIRE and MARINE	
INSURANCE COMPANY and A.J.
METLER HAULING & RIGGING	
COMPANY, INC.

Court:TSC - Workers Comp Panel

Attorneys:      


For the Appellants:					For the Appellee:

Deborah L. Fulton					Scott D. Hall
Beverly D. Nelms					105 East Bruce Street
PO Box 39							Sevierville, Tennessee  37862
Knoxville, Tennessee  37901		                    

Judge: PEOPLES

First Paragraph:

This workersÕ compensation appeal has been referred to the Special
WorkersÕ Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated ¤ 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/BasckovStPaul.wpd


JAMES E. FLEENOR VS. GRAND PIANO AND FURNITURE COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: J. Eddie Lauderback Robert Payne Cave Herndon, Coleman, Brading & McKee 104 North College Street 104 E. Main Street Greeneville, Tennessee 37743 P.O. Box 1160 Johnson City, Tennessee 37605-1160 Judge: PEOPLES First Paragraph: This workersÕ compensation appeal has been referred to the Special WorkersÕ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated ¤ 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Grand Piano and Furniture Company (hereafter ÒGrand PianoÓ) has appealed an award to James E. Fleenor of 80 per cent disability to the body as a whole. The sole issue is whether the trial court erred in finding that Mr. Fleenor sustained a compensable injury. http://www.tba.org/tba_files/TSC_WCP/fleenorvgrandpiano.wpd
IN RE: AMENDMENT TO RULE 9, S 24.3 RULES OF THE SUPREME COURT OF TENNESSEE Court:TSC - Rules First Paragraph: Rule 9, S 24.3, Rules of the Supreme Court, governing disciplinary enforcement, amended April 28, 2000, is hereby vacated and replaced with the following: In the event that a judgment of disbarment, suspension, public censure, private reprimand, temporary suspension, disability inactive status, reinstatement, or denial of reinstatement results from formal proceedings, the Board shall assess against the respondent attorney the costs of the proceedings, including court reporter's expenses for appearances and transcription of all hearings and depositions, the expenses of the hearing committee in the hearing of the cause, and the hourly charge of disciplinary counsel in investigating and prosecuting the matter. http://www.tba.org/tba_files/TSC_Rules/Rule9,_24_3order.wpd
BURMAH KAYE GREEN AMONETTE VS. EUGENE JUNIOR AMONETTE Court:TCA Attorneys: William L. Draper, Cookeville, Tennessee, for the appellant, Eugene Junior Amonette. Donna Simpson Massa, Cookeville, Tennessee, for the appellee, Burmah Kaye Green Amonette. Judge: CANTRELL First Paragraph: This appeal arises from the trial court's refusal to grant the appellant's request for the continuance of a divorce proceeding. The appellant contends that there was no reliable evidence at the trial to establish his income and, as a result, the trial court could not reach a fair judgment. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/amonettebkg.wpd
THE GALLERIA ASSOCIATES, L.P. VS. WILLIAM MOGK, III, et al. Court:TCA Attorneys: A. Scott Derrick, Nashville, Tennessee, for the appellant, The Galleria Associates, L.P. Thomas L. Whiteside, Nashville, Tennessee, for the appellees, William Mogk, III and Marilyn Mogk. Judge: CANTRELL First Paragraph: This is an action against a guarantor of a commercial lease. After a hearing, the trial court dismissed the landlord's complaint finding that the guaranty lacked consideration and that the landlord had failed to offer proof regarding handwritten portions of the lease addressing the commencement date of the lease. The landlord contends that the trial court erred in both respects. We agree, and reverse the judgment of the trial court and remand the cause for the assessment of damages and attorney fees. http://www.tba.org/tba_files/TCA/galleriaassoc.wpd
LAWRENCE T. HOWARD, et al. VS. VITA NORWOOD, et al. Court:TCA Attorneys: D. Russell Thomas and Herbert M. Schaltegger, Murfreesboro, Tennessee, for the appellants, Lawrence T. Howard and Sharon E. Howard. John Thomas Feene and Catheryne L. Grant, Nashville, Tennessee, for the appellees, Vita Norwood and Samuel Norwood. Judge: FARMER First Paragraph: In this negligence action, Plaintiffs Lawrence T. Howard and his wife, Sharon E. Howard, have appealed the trial court's final judgment denying their motion for new trial and/or for judgment in accordance with their previous motions for directed verdicts. The Howards filed this lawsuit after Lawrence Howard was involved in a multi-vehicle collision on Interstate 24 in Rutherford County. The Howards originally sued Cari P. Thornton and her husband, Michael E. Thornton, as well as Vita Norwood and her father, Samuel Norwood. The Howards settled their claims against the Thorntons prior to trial. At the trial's conclusion, the jury returned a verdict finding that none of the parties were at fault in the vehicle accident. The jury also found that the Howards had suffered no damages as a result of the accident and that Samuel Norwood was not liable for any fault attributable to Vita Norwood pursuant to the Family Purpose Doctrine. The trial court entered a judgment in accordance with the jury's verdict and denied the Howards' post-trial motion. We affirm the trial court's judgment in its entirety. http://www.tba.org/tba_files/TCA/howardlt.wpd
DOROTHY J. JOHNSTON VS. FRED E. COWDEN, JR. Court:TCA Attorneys: Lionel R. Barrett, Jr., Nashville, Tennessee, for the appellant, Dorothy J. Johnston. John P. Branham & Kathryn E. Barnett, Nashville, Tennessee, for Fred E. Cowden, Jr. Deceased, by Fred E. Cowden, Sr., as Executor of the Estate of Fred E. Cowden, Jr. Judge: COTTRELL First Paragraph: This legal malpractice action was filed against the estate of a deceased attorney who allegedly failed to file a civil action and a claim for compensation under the Criminal Injuries Compensation Act on the plaintiff's behalf. Implicitly applying the Dead Person's Statute, Tenn. Code Ann. S 24-1-203, the trial court granted the estate's motion for summary judgment on a finding that the deceased attorney was never retained. We affirm. http://www.tba.org/tba_files/TCA/JohnstonD.wpd
BRUCE L. KINNARD VS. LARRY W. TAYLOR, et al. Court:TCA Attorneys: Dicken E. Kidwell, Murfreesboro, For Appellant William G. McCaskill, Jr., Nashville, For Appellees Judge: CRAWFORD First Paragraph: This is a personal injury case, and the jury returned a verdict for plaintiff. Plaintiff appeals asserting that the trial court erred in failing to grant a new trial because of the alleged inadequacy of the verdict. http://www.tba.org/tba_files/TCA/kinnardb.wpd
CARSON MADISON, ET AL. VS. PICKETT COUNTY BANK and TRUST CO., ET AL. Court:TCA Attorneys: Phillips M. Smalling, Byrdstown, Tennessee, for the appellants, Carson Madison and Carolyn Madison. Daniel H. Rader, III, Cookeville, Tennessee, for the appellees, Pickett County Bank and Trust Co. and Union Planters Bank of The Cumberlands. Judge: CAIN First Paragraph: This is an appeal by Plaintiffs from summary judgment dismissing their complaint against a commercial bank in a premises liability case predicated on allegations of violation of a duty to maintain the premises in a safe condition. We affirm the trial court. http://www.tba.org/tba_files/TCA/MadisonCarson.wpd
LESLIE ANN RICHARD (GOFF) VS. DAVID WAYNE RICHARD Court:TCA Attorneys: John M. L. Brown, Nashville, Tennessee, for the appellant, Leslie Ann Richard (Goff). Jennifer Davis Roberts, Dickson, Tennessee, for the appellee, David Wayne Richard. Judge: First Paragraph: This appeal involves a contentious dispute over the custody of a five-year-old child. Six months after the Chancery Court for Cheatham County awarded custody of the child to her mother, the child's father filed a petition to change custody because the mother's boyfriend was living with the mother and child. Following a bench trial, the trial court changed custody from the mother to the father. The mother has appealed from this decision. We have determined that the order granting the father custody of the child should be reversed because the evidence preponderates against the finding that there was a material post-divorce change in the child's circumstances that warranted a change in the custody arrangement. http://www.tba.org/tba_files/TCA/Richardla.wpd
RONALD C. ROWE VS. WANDA J. ROWE Court:TCA Attorneys: Ronald C. Rowe, Nashville, Tennessee, Pro Se Wanda J. Rowe, Tullahoma, Tennessee, Pro Se Judge: CANTRELL First Paragraph: A prison inmate filed a complaint for irreconcilable differences, together with a Marital Dissolution Agreement that he and his wife had signed. He took no further legal steps, and after five months, without notice to him, the trial court dismissed the complaint for failure to prosecute. http://www.tba.org/tba_files/TCA/rowerc.wpd
PAUL E. RUTHERFORD VS. DONAL CAMPBELL, et al. Court:TCA Attorneys: Paul E. Rutherford, Wartburg, Tennessee, pro se. Paul G. Summers, Michael E. Moore and Michael L. Haynie, Nashville, Tennessee, for the appellees, Donal Campbell, et al. Judge: CAIN First Paragraph: Prisoner/Petitioner seeks declaratory judgment that he is entitled to sentence reduction credits on four concurrent 20 year sentences for rape of a child. The chancellor dismissed his complaint and he timely appealed. Inasmuch as Tennessee Code Annotated section 39-13-523 specifically prohibits application of sentence reduction credits to reduce sentences of "child rapists" as defined therein, the dismissal is affirmed. http://www.tba.org/tba_files/TCA/RutherfordPaulE.wpd
EDDIE WILLIAMS, JR. VS. RICKY BELL, et al. Court:TCA Attorneys: Ricky Bell, Henning, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Pamela S. Lorch, Assistant Attorney General, for the appellee, State of Tennessee Judge: CANTRELL First Paragraph: A prisoner filed suit against eight employees of the Department of Correction, claiming numerous violations of his civil rights. The trial court dismissed the suit for failure to comply with Tenn. Code. Ann. S 41-21-801, et seq., which requires inmates who file their suits in forma pauperis to submit to the trial court a complete list of every previous claim or lawsuit filed by the inmate. We affirm the dismissal, but hold it to be without prejudice http://www.tba.org/tba_files/TCA/williamse.wpd
STATE OF TENNESSEE v. KAREN BANDY Court:TCCA Attorneys: Michael R. Jones, District Public Defender; and Ann M. Smith, Assistant District Public Defender, Springfield, Tennessee, for the appellant, Karen Bandy. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant, Karen Bandy, appeals the denial of alternative sentencing following her best interest guilty plea to attempted second degree murder, a Class B felony. As part of the plea agreement, the defendant received an eight-year sentence. The manner of service was left to the determination of the trial court. Following a sentencing hearing, the trial court held the defendant's sentence should be served in confinement. Upon a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bandyK.wpd
STATE OF TENNESSEE v. MORLEY D. COWAN Court:TCCA Attorneys: Joseph E. Ford, Winchester, Tennessee, for the appellant, Morley D. Cowan. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant, Morley D. Cowan, appeals the trial court's denial of his request for community corrections following his nolo contendere plea to aggravated sexual battery. Finding that one convicted of aggravated sexual battery is statutorily ineligible for community corrections, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/cowanmd.wpd
STATE OF TENNESSEE VS. ROBERT LEE DAY Court:TCCA Attorneys: Julie A. Rice, Contract Appellate Defender (on appeal), Knoxville, Tennessee, and Stacey Nordquist, Assistant District Public Defender (at trial), Maryville, Tennessee, for the appellant, Robert Lee Day. Paul G. Summers, Attorney General & Reporter, Patricia C. Kussman, Assistant Attorney General, and John Bobo, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Robert Lee Day, having a lengthy history of driving offenses, is not entitled to immediate probation on a one-year sentence for violation of the Motor Vehicle Habitual Offender's Act. http://www.tba.org/tba_files/TCCA/Dayrl.wpd
STATE OF TENNESSEE v. JAMES R. HORN, SR. Court:TCCA Attorneys: Donna Leigh Hargrove, District Public Defender, Curtis H. Gann, Assistant Public Defender, Shelbyville, Tennessee (on appeal), and Andrew Jackson Dearing, III, Assistant Pubic Defender, Fayetteville, Tennessee, (at trial), for appellant James R. Horn, Sr. Paul G. Summers, Attorney General, Lucian D. Geise, Assistant Attorney General, William Michael McCown, District Attorney General, Weakley E. Barnard, Assistant District Attorney General, for appellee State of Tennessee. Judge: WOODALL First Paragraph: James Randel Horn was convicted of fraudulently obtaining a controlled substance and failure to appear. Defendant appeals his sentence, and alleges that the sentence is excessive and that he should have been sentenced to community corrections. We affirm the judgment of the trial court in all respects except for the sentence for fraud, where we find plain error. Accordingly, we reverse DefendantÕs sentence for fraud and remand for re-sentencing. http://www.tba.org/tba_files/TCCA/hornjr.wpd
STATE OF TENNESSEE v. JUMBO KURI Court:TCCA Attorneys: Karl Dean, District Public Defender, Jeffrey A. DeVasher, Assistant Public Defender, Collins Hooper, Assistant Public Defender, and Richard Tennent, Assistant Public Defender, Nashville, Tennessee, for the appellant, Jumbo Kuri. Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General, Victor S. Johnson, III, District Attorney General, Dan Hamm, Assistant District Attorney General, and Katie Miller, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant Jumbo Kuri was convicted by a jury in the Davidson County Criminal Court of one count of reckless homicide and one count of aggravated assault. After a sentencing hearing, the trial court sentenced Defendant as a Range I standard offender to consecutive terms of four years for reckless homicide and two years for aggravated assault. Defendant raises the following issues in this appeal: (1) whether the trial court erred when it failed to instruct the jury on the lesser-included offense of criminally negligent homicide; (2) whether the trial court imposed an excessive sentence for the reckless homicide conviction; and (3) whether the trial court erred when it imposed consecutive sentencing. The judgment of the trial court is affirmed in part and reversed in part. http://www.tba.org/tba_files/TCCA/kurij.wpd
STATE OF TENNESSEE v. ODUS EUGENE LONG Court:TCCA Attorneys: Lionel Barrett, Nashville, Tennessee, on appeal; Edwin Sadler, Tennessee, at trial, for the appellant, Odus Eugene Long. Paul G. Summers, Attorney General, Todd R. Kelley, Assistant Attorney General, Tom P. Thompson, District Attorney General, John Wootten, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant was convicted of first degree murder by a Jackson County Jury, and sentenced to life imprisonment. Defendant now appeals as of right, and raises three issues, arguing (1) the evidence is insufficient to sustain his conviction because the State did not prove premeditation; (2) the trial court committed reversible error when it allowed a hearsay statement by the deceased into evidence; and (3) the trial court committed reversible error when it did not allow an audiotape to be played for the jury during deliberations, despite the fact that the tape had been previously played and introduced into evidence as an exhibit. While the evidence is insufficient to sustain a first degree murder conviction, it does support a conviction for second degree murder. However, because we also hold that the trial court erred in issues (2) and (3), we reverse DefendantÕs conviction and remand for a new trial. http://www.tba.org/tba_files/TCCA/longoe.wpd
STATE OF TENNESSEE v. CARL MCKISSACK Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee, for the appellant, Carl McKissack. Paul G. Summers, Attorney General and Reporter, Tara B. Hinkle, Assistant Attorney General, Jerry Woodall, District Attorney General, and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Carl McKissack, was tried and convicted of assault by a Madison County jury. In this appeal as of right, the Defendant argues that the trial court erred by permitting a prior inconsistent statement to be used as substantive evidence and that the evidence was insufficient to support the conviction. We hold that the trial court erred by permitting a prior inconsistent statement to be used as substantive evidence and that the evidence was otherwise insufficient to support the Defendant's conviction. Accordingly, we reverse the conviction. http://www.tba.org/tba_files/TCCA/MCKISS~1.wpd
STATE OF TENNESSEE v. MICHAEL E. MILLS Court:TCCA Attorneys: Nicholas D. Hare, Nashville, Tennessee, attorney for the appellant, Michael E. Mills. Paul G. Summers, Attorney General and Reporter and Russell S. Baldwin, Assistant Attorney General, attorney for the appellee, State of Tennessee. Judge: SMITH First Paragraph: A Davidson County jury convicted the appellant, Michael Eugene Mills, of two (2) counts of especially aggravated kidnapping and two (2) counts of aggravated robbery. The trial court sentenced the appellant to 37 years for each count of especially aggravated kidnapping and 18 years for each count of aggravated robbery. The court ordered that the kidnapping counts would run consecutively to one another and the robbery counts would run consecutively to one another; however, the court further ordered that the kidnapping counts would run concurrently with the robbery counts, providing for an effective sentence of 74 years.
http://www.tba.org/tba_files/TCCA/millsmichael.wpd
STATE OF TENNESSEE v. NORMAN JEFFREY PIPKIN Court:TCCA Attorneys: Mike Mosier, Jackson, Tennessee, for the appellant, Norman Jeffrey Pipkin. John Knox Walkup, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General Nashville, Tennessee, Elizabeth T. Rice, District Attorney General, Jerry Norwood, Assistant District Attorney General, Bolivar, Tennessee, for the appellee, State of Tennessee Judge: WADE First Paragraph: The defendant, Norman Jeffrey Pipkin, was charged with aggravated assault and hunting without permission. The district attorney general denied his application for pretrial diversion and the trial court affirmed on a petition for certiorari. The defendant filed an interlocutory appeal which came before this court during its March, 1998, session. This court affirmed the judgment of the trial court, and the defendant filed a Rule 11 application. The supreme court granted the appeal, then remanded the case back to this court for reconsideration in light of State v. Curry, 988 S.W.2d 153 (Tenn. 1999). http://www.tba.org/tba_files/TCCA/Pipkin.wpd
STATE OF TENNESSEE v. CLYDE TURNER Court:TCCA Attorneys: Tony N. Brayton, Assistant Public Defender (on appeal), A. C. Wharton, Jr., District Public Defender (of counsel), Mozella Ross, Assistant Public Defender (at trial), Memphis, Tennessee, for the appellant, Clyde Turner. Paul G. Summers, Attorney General & Reporter, Mark E. Davidson, Assistant Attorney General, Glen Baity, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Clyde Turner, was tried for and convicted of carjacking. In this appeal, he challenges the sufficiency of the evidence and argues that he was denied the right of self-representation. http://www.tba.org/tba_files/TCCA/Turner.wpd
STATE OF TENNESSEE v. THOMAS JAMES WILLIAMS Court:TCCA Attorneys: George Morton Googe and Stephen Spracher, Jackson, Tennessee, and Clifford K. McGown, Jr., Waverly, Tennessee, for the appellant, Thomas James Williams. Paul G. Summers, Attorney General and Reporter, and Kim R. Helper, Assistant Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant had been placed on probation by the Madison County Circuit Court following his guilty plea to aggravated burglary and resulting five year sentence. A probation violation warrant was issued charging that the defendant had failed to report to his probation officer and had failed to report a subsequent arrest and conviction. Following a hearing, the probation was revoked and the defendant timely appealed. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/WILLIAT~.wpd
STATE OF TENNESSEE v. PATRICK WINGATE Court:TCCA Attorneys: Hershell D. Koger, Pulaski, Tennessee, attorney for appellant, Patrick Wingate. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, David H. Findley, Assistant Attorney General, William Michael McCown, District Attorney General, and Roger G. Crigler and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant, Patrick Wingate, appeals his Bedford County convictions for first degree murder and aggravated arson, which resulted in sentences of life plus twenty-five years. On appeal, he argues (1) the evidence is not sufficient to support either conviction and (2) the trial court erred by failing to grant a mistrial based upon the introduction of prior bad acts of the appellant through the testimony of a StateÕs witness. The jury returned verdicts for both premeditated and felony murder. Although we conclude that the evidence is not sufficient to support the juryÕs verdict that the murder was committed with premeditation, the evidence is sufficient to sustain their verdict for felony murder. Accordingly, finding no error of law requiring reversal, we affirm the judgments of conviction entered by the trial court. http://www.tba.org/tba_files/TCCA/WingatePat.wpd

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