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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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-
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will allow you to download the original document.
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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