October 30, 2000
Volume 6 -- Number 177

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
03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 New Opinion(s) from the Tennessee Court of Appeals
10 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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

KATHY GEORGE v. CARRIER CORPORATION, et. al.

Court:TSC - Workers Comp Panel

Attorneys:  

B. Timothy Pirtle, McMinnville, TN for the appellant/employer Carrier
Corporation, et. al.

Frank Buck and Lena Ann Buck, Smithville, TN, for the appellee Kathy
George.                        

Judge: CLEMENT

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with the Tenn. Code
Ann. S50-6-225(e)(3) for hearing and reporting findings of fact and
conclusions of law.  The issue on appeal presented by the
employer/appellant is whether the Court erroneously awarded a 25%
penalty on temporary total disability benefits in the absence of a
finding of bad faith.  The employee also appeals and presents a
separate issue, whether the employer is entitled to an offset for
disability insurance benefits received by the employee for the period
of disability.  The panel has concluded that the judgment of the trial
court should be affirmed.

http://www.tba.org/tba_files/TSC_WCP/george.wpd


WILLIAM ALLEN JONES v. TRAVELERS CASUALTY& SURETY COMPANY Court:TSC - Workers Comp Panel Attorneys: Harry Weill, of Chattanooga, Tennessee, for the Appellant, William Allen Jones. Gary A. Cooper, of Chattanooga, Tennessee, for the Appellee, Travelers Casualty & Surety Company. 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. The appellant-employee appealed the trial court's ruling that his injury was of a temporary nature and that appellee was only liable for medical expenses to the date of the trial. Appellant argues the only expert medical evidence established his injury was of a permanent nature. Judgment of the trial court is reversed to fix permanent disability at 20% to the body as a whole and case is remanded to enforce other alternative findings. http://www.tba.org/tba_files/TSC_WCP/joneswa.wpd
PENNY MICHELLE LOVEDAY v. FOOD LION, INC. Court:TSC - Workers Comp Panel Attorneys: J. Ford Little, Knoxville, Tennessee, for the appellant, Food Lion, Inc. Roger L. Ridenour, Clinton, Tennessee, for the appellee, Penny Michelle Loveday. 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 Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant/appellant, Food Lion, Inc., appeals the trial court's award of temporary total disability benefits, permanent partial disability benefits, and five hundred dollars in costs associated with service of process and subsequent default judgment hearings. Specifically, Food Lion contends the plaintiff, Penny Michelle Loveday, failed to adequately serve her complaint and thus it should not be punished for the ensuing costs associated with the setting aside of the default judgment. Food Lion also contends (1) Ms. Loveday failed to carry her burden of proof with respect to showing she suffered an injury during the course and scope of her employment; (2) the medical testimony failed to establish causation; (3) assuming an injury, the trial judge exceeded the 2.5 multiplier; (4) temporary total disability should have been awarded for only twelve days; and (5) the trial judge improperly excluded the plaintiff medical records and deposition testimony. We affirm. http://www.tba.org/tba_files/TSC_WCP/loveday.wpd
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1030.wpd
DENNIS WADE BAILEY v. ZONDRA KAYE SMITH BAILEY Court:TCA Attorneys: Jesse H. Ford, III, Jackson, Tennessee, for the Appellant Zondra Kaye Smith Bailey. Jack S. Hinson, Lexington, Tennessee, for the Appellee Dennis Wade Bailey. Judge: LILLARD First Paragraph: This is a divorce case involving child custody. Mother and Father are divorced and have one minor child. The trial court granted custody of the minor child to Father. Mother appeals, arguing that the trial court erroneously based its decision on her lack of relationship with her father, the child's maternal grandfather. We affirm. http://www.tba.org/tba_files/TCA/baileydw.wpd
IN THE MATTER OF THE ESTATE OF FANNIE CORRINE BARNHILL Court:TCA Attorneys: Lee S Saunders, Somerville, For Appellant, Beatrice Rice J. Houston Gordon, Covington, For Appellee, Helen Weston Armour Lawson William S. Rhea, Somerville, For Appellee, Annie Jane Bailey Judge: CRAWFORD First Paragraph: Will contestant voluntarily dismissed chancery court proceeding to contest will. Subsequently, contestant filed another notice to contest the will. The trial court, on motion, dismissed the proceeding as barred, because it had previously been dismissed, and such an action is within an exception to Tenn.R.Civ.P. 41.01 (1). Contestant has appealed. http://www.tba.org/tba_files/TCA/barnhillfan.wpd
CAROLYN B. BEASLEY COTTON COMPANY v. KEM RALPH, Individually and d/b/a RALPH BROTHERS Court:TCA Attorneys: David M. Livingston, Brownsville, Tennessee, for the appellant, Kem Ralph. Russell W. Savory, Memphis, Tennessee, for the appellee, Carolyn B. Beasley Cotton Company. Judge: FARMER First Paragraph: This appeal arises from a breach of contract between Farmer and Broker. After signing a contract to deliver cotton to Broker, Farmer failed to do so. Broker was then forced to purchase the cotton elsewhere for a substantial loss and brought suit to recover the losses. At the start of the trial, Farmer requested that the trial court dismiss the case and order the parties to proceed to arbitration. Finding that Farmer had waived his rights under the contract to arbitration, the trial court refused. Proceeding with the case, court found that Farmer had breached the contract and awarded damages to Broker. We affirm. http://www.tba.org/tba_files/TCA/beasleycottonco.wpd
LOUIS ERNEST CUNNINGHAM v. CHERYL LYNNE CHEATHAM CUNNINGHAM Court:TCA Attorneys: Kay Farese Turner and William E. Miller, Memphis, Tennessee; J. C. Cox, Jackson, Tennessee for the appellant, Louis Ernest Cunningham. Mary Jo Middlebrooks, Jackson, Tennessee, for the appellee, Cheryl Lynne Cheatham Cunningham. Paul G. Summers, Attorney General and Reporter; Stuart Wilson-Patton, Assistant Attorney General, for the State of Tennessee. Judge: FARMER First Paragraph: This appeal involves a divorce after seven years of marriage. The trial court granted the wife a divorce, divided the property, awarded the wife rehabilitative alimony and alimony in solido, awarded child support for the parties' minor child, established an educational trust fund, and ordered the husband to maintain life insurance for so long as he is obligated to pay child support. On appeal, husband takes issue with all of the above and also raises the constitutionality of the child support guidelines. In addition, wife takes issue with the failure of the trial court to award her litigation expenses. We have determined that the trial court's judgment should be affirmed in part, reversed in part and remanded. http://www.tba.org/tba_files/TCA/cunninghamle.wpd
BURGESS STEPHEN RUSSELL v. LINDA SHARION RUSSELL Court:TCA Attorneys: Andrew Lawrence Berke, Chattanooga, Tennessee, for the appellant, Linda Sharion Russell. Christine Mahn Sell, Chattanooga, Tennessee, for the appellee, Burgess Stephen Russell. Judge: GODDARD First Paragraph: This appeal from the Hamilton County Chancery Court concerns whether the Trial Court erred in awarding primary residential responsibility of the minor child to the Appellee, Burgess Stephen Russell. The Appellant, Linda Sharion Russell, appeals the decision of the Chancery Court. We affirm the decision of the Trial Court and remand for further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against the Appellant, Linda Sharion Russell and her surety. http://www.tba.org/tba_files/TCA/russellbur.wpd
SANDRA E. RICE SILVERSTEIN v. WILLIAM RUSSELL RICE, JR. Court:TCA Attorneys: Harold Johnson, Jackson, Tennessee for the Appellant, William Russell Rice, Jr. Larry S. Banks, Brownsville, Tennessee, for the Appellee, Sandra E. Rice Silverstein. Judge: LILLARD First Paragraph: This is a suit to enforce a past child support obligation. The mother filed suit against the father, seeking past due child support payments, health insurance premiums and medical costs for the parties' three minor children. The trial court held for the mother, and granted her a judgment for the child support arrearages, health insurance and medical costs, attorney's fees and pre-judgment interest on the child support arrearages. The father appeals, arguing, inter alia, that the trial court erred by failing to prorate his child support obligation as each child attained majority. We affirm, holding that the trial court was not required to prorate the child support obligation as each child attained majority, because the child support award was a lump sum for all of the children and the amount was below the guideline amount for the remaining minor children. http://www.tba.org/tba_files/TCA/silversteinsr.wpd
LAURIE M. THORNTON v. COUNTRYWIDE HOME LOANS, INC., et al. SOUTHTRUST BANK, N.A. v. LAURIE M. THORNTON Court:TCA Attorneys: Louis R. Lucas; Memphis, For Appellant, Laurie M. Thornton Michael F. Rafferty; Jonathan E. Scharff, Memphis, For Appellee, SouthTrust Bank Clifford D. Pierce, Jr., Memphis, For Appellee, Countrywide Home Loans Judge: CRAWFORD First Paragraph: This is a consolidated appeal of two cases, each involving a trust deed on residential real property owned by Husband and Wife as tenants by the entirety. Husband was individually indebted to the holders of the trust deeds, and wife joined in the trust deeds to convey her "marital" interest in the property. Wife contends that her execution of the trust deeds merely conveyed her survivorship interest and did not convey her current possessory interest. Also, as to one of the loans, Wife contends that it was a consumer loan, and the lender/holder of the trust deed violated the Truth and Lending Act, 15 USC S 1601 et seq. The chancery court granted summary judgment to the holders of the trust deeds, and Wife has appealed. http://www.tba.org/tba_files/TCA/thorntonlau.wpd
SHIRLEY WILLIAMS v. DONALD G. THRAILKILL Court:TCA Attorneys: Harriet Thompson; Bolivar, For Appellant, Donald G. Thrailkill T. D. Forrester; Covington, For Appellee, Shirley Williams Judge: CRAWFORD First Paragraph: This case involves visitation rights for an aunt of the minor child. In 1992, the aunt and her husband were granted visitation rights by the Shelby County Juvenile Court. In 1997, after the child's father had moved with the child to Tipton County, the aunt and her husband filed a petition in the Tipton County Juvenile Court to hold father in contempt for failing to abide by the visitation order, to change custody, and alternatively to enforce visitation. After an evidentiary hearing, the Tipton County Juvenile Court held that the prior Shelby County Juvenile Court order granting visitation to aunt was in full force and effect and incorporated the Shelby County order and its order by reference. Father has appealed. http://www.tba.org/tba_files/TCA/williamsshi.wpd
STATE OF TENNESSEE v. JAMES ERIC ALDER Court:TCCA Attorneys: B. Jeffery Harmon, Jasper, Tennessee, for the appellant, James Eric Alder. Paul G. Summers, Attorney General and Reporter, Elizabeth B. Marney, Assistant Attorney General, James W. Pope, III, Assistant District Attorney General, and Stephen Strain, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, James Eric Alder, was convicted by a jury in the Criminal Court for Sequatchie County of one count of aggravated robbery, a class B felony. The trial court sentenced the appellant, as a Range I offender, to ten years incarceration in the Tennessee Department of Correction and assessed a fine of $25,000. The appellant raises the following issue(s) for review: whether the trial court erred in refusing to charge the jury as to aggravated assault, assault, and theft as lesser-included offenses of aggravated robbery. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/alderje.wpd
THOMAS H. CAFFEY v. KEVIN MYERS, WARDEN Court:TCCA Attorneys: Thomas H. Caffey, Clifton, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; and Elizabeth T. Ryan, Assistant Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: Petitioner challenges the trial court's summary dismissal of his petition for writ of habeas corpus. Petitioner was convicted in Davidson County in 1985 of two counts of armed robbery and felonious use of a motor vehicle. He was sentenced to two terms of life imprisonment and an additional four years, to be served consecutively to one another and consecutively to a prior Oklahoma sentence. Petitioner does not challenge the legality of the convictions underlying his current sentences, but rather asserts that equitable estoppel and a due process violation mandate that he not be required to serve his Tennessee sentences. Upon our review of the record, we affirm the dismissal of the petition for writ of habeas corpus. http://www.tba.org/tba_files/TCCA/caffeyth.wpd
STATE OF TENNESSEE v. JAMES EDWARD COWAN Court:TCCA Attorneys: Karl Dean, Public Defender; Jeffrey A. DeVasher (on appeal) and J. Michael Engle (at trial), Assistant Public Defenders, Nashville, Tennessee, for the appellant, James Edward Cowan. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brett T. Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant was convicted by a Davidson County jury of attempted first degree murder, attempted especially aggravated robbery, and especially aggravated burglary. At sentencing his conviction for especially aggravated burglary was reduced to aggravated burglary. He was sentenced as a Range II offender to thirty-six years for the Class A felony of attempted first degree murder, sixteen years for the Class B felony of attempted especially aggravated robbery, and eight years for the Class C felony of aggravated burglary. The attempted first degree murder and attempted especially aggravated robbery sentences were run consecutively to each other, and the aggravated burglary sentence ran concurrently, for an effective fifty-two year sentence. In this appeal, defendant makes the following allegations: (1) the trial court erred in refusing to suppress the bullet which was removed from defendant during surgery; (2) the evidence was insufficient to support his conviction for attempted first degree murder; (3) his separate convictions for attempted first degree murder and aggravated burglary violate due process since they were incidental to attempted especially aggravated robbery; and (4) the trial court erred in determining the length and consecutive service of his sentences. Upon our review of the record we conclude the trial court properly admitted the bullet removed from the defendant; the evidence was sufficient to sustain defendant's conviction for attempted first degree murder; there was no due process violation; and defendant was properly sentenced. Thus, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/cowanje.wpd
STATE OF TENNESSEE v. PATRICK MAXWELL WITH DISSENTING OPINION Court:TCCA Attorneys: David N. Darnell (at trial and on appeal) and John D. Parker, Jr. (at trial), Kingsport, Tennessee, for the appellant, Patrick Maxwell. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Mary Katherine Harvey, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant pled guilty to four counts of the sale of cocaine and one count of the sale of a counterfeit controlled substance, without a recommendation from the State as to the sentence. Before he was sentenced, the defendant filed a pro se motion to withdraw his guilty pleas. Denying the defendant's motion, the trial court subsequently imposed an effective sentence of thirteen years and fines of $8,000. The defendant then appealed, alleging that he should have been allowed to withdraw his guilty pleas and that the sentences imposed were excessive. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/maxwellp_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/maxwellp_con.wpd
SHANTA FONTON MCKAY V. STATE OF TENNESSEE Court:TCCA Attorneys: David G. Ridings, Nashville, Tennessee, for the appellant, Shanta Fonton McKay. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: After his transfer from juvenile court, appellant pled guilty to second degree murder and, pursuant to a negotiated plea agreement, received a sentence of 19 years. Appellant sought post-conviction relief, which was denied by the trial court. In this appeal as a matter of right, appellant seeks relief alleging a double jeopardy violation, an involuntary guilty plea, and ineffective assistance of counsel. After a thorough review of the record, we affirm the denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/mckaysf.wpd
STATE OF TENNESSEE v. JEFFERY LEON MEDLEY Court:TCCA Attorneys: Clifford K. McGown, Waverly, Tennessee,(on appeal) and Marguerite H. Stewart, McMinnville,(at trial) Tennessee, for the appellant, Jeffery Leon Medley. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, Jeff Burks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Jeffrey Leon Medley, appeals his sentence of eleven months and twenty-nine days incarceration imposed by the Warren County Circuit Court pursuant to the appellant's conviction of improper influence of a juror. Following a review of the record and the parties' briefs, we dismiss this appeal. http://www.tba.org/tba_files/TCCA/medleyjl.wpd
STATE OF TENNESSEE v. RALPH DEWAYNE MOORE WITH DISSENTING OPINION Court:TCCA Attorneys: Joe Walker, District Public Defender, and Walter B. Johnson, II, Harriman, Tennessee (on appeal); Rowland Cowden, Assistant Public Defender (at trial), for the appellant, Ralph Dewayne Moore. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; J. Scott McCluen, District Attorney General; and Roger Delp, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of reckless endangerment with a deadly weapon, a shotgun. The defendant asserts that insufficient evidence supported the verdict against him. We affirm, holding that the defendant's loading the weapon and recklessly pointing it at the victim while angry, in such a manner that death or serious bodily injury was imminent, were actions sufficient to constitute the offense of reckless endangerment whether said weapon was fired or not. http://www.tba.org/tba_files/TCCA/moorerd_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/moorerd_dis.wpd
TRAVIS PLUMMER v. STATE OF TENNESSEE Court:TCCA Attorneys: David Byrne, Nashville, Tennessee, for the appellant, Travis Plummer. Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, Jr., for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Travis Plummer, was convicted by a jury in the Criminal Court of Davidson County of one count of rape of a child, and subsequently also pled guilty to one count of rape. The trial court sentenced the petitioner to twenty years incarceration in the Tennessee Department of Correction for rape of a child and to twelve years incarceration for rape. The trial court further ordered that the petitioner's sentences be served consecutively. In this post conviction proceeding, the petitioner raises the following issue(s) for review: whether the petitioner was denied his constitutional rights at trial and at the plea proceeding when his counsel(s) failed to investigate and evaluate his competency to stand trial and to plead guilty. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/plummert.wpd
STATE OF TENNESSEE v. JOHN ROY POLLY Court:TCCA Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, John Roy Polly. Paul G. Summers, Attorney General & Reporter; Todd R. Kelley, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. (Eddie) Barnard, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: In this direct appeal, the defendant argues that he was incorrectly sentenced as a "persistent offender." We agree that the twenty-four hour merger rule bars use of one of his previous convictions and therefore reverse and remand for resentencing as a "multiple offender" within Range II. http://www.tba.org/tba_files/TCCA/pollyjr.wpd
STATE OF TENNESSEE v. HAROLD WAYNE SHAW Court:TCCA Attorneys: Jeffery A. DeVasher, Assistant Public Defender, on appeal, and Wendy S. Tucker, Assistant Public Defender, at trial, Nashville, Tennessee for the appellant, Harold Wayne Shaw. Paul G. Summers, Attorney General and Reporter, Todd R. Kelley, Assistant Attorney General, Nashville, Tennessee and Victor S. Johnson, District Attorney General and Kimberly Haas, Assistant District Attorney, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Harold Wayne Shaw, was convicted by a Davidson County jury of second-degree murder and aggravated kidnapping in 1996. The trial court sentenced the defendant as a Range II offender to serve eighteen (18) years for the aggravated kidnapping and thirty-five (35) years for the second-degree murder, both sentences to be served consecutively. Following the defendant's direct appeal, this Court affirmed the defendant's conviction but remanded the case to the trial court for resentencing because the trial court mistakenly sentenced the defendant as a Range II, persistent offender, misapplied two statutory enhancement factors, and failed to make findings of fact and conclusions of law sufficient to support the imposition of consecutive sentences. The trial court then resentenced the defendant as a Range I, standard offender to serve ten (10) years for the aggravated kidnapping and twenty-two (22) years for the second-degree murder. The court again ordered the sentences to be served consecutively. On appeal, this Court finds (1) that the length of the defendant's sentence is appropriate, and (2) that although the record does not support the trial court's finding that the defendant is a professional criminal, the trial court was correct in finding that the defendant has an extensive criminal history; thus consecutive sentences are also appropriate. The judgment of the trial court is therefore affirmed. http://www.tba.org/tba_files/TCCA/shawharold.wpd
Identification for Pawn Transactions on Separate Form Date: October 26, 2000 Opinion Number: 00-167 http://www.tba.org/tba_files/AG/OP167.pdf

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