Opinion FlashFebruary 19, 2002
Volume 8 Number 031
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.
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Howard H. Vogel
HARRISON DRIVER v. BRIDGESTONE/FIRESTONE, INC. Court:TSC - Workers Comp Panel Attorneys: Katherine D. Boyte, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellant, Bridgestone/Firestone, Inc. Wm. Kennerly Burger, Burger, Whately, Siskin, Scott & Goad, Murfreesboro, Tennessee, for the appellee, Harrison Driver. Judge: GAYDEN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer argues that the employee's pre- existing condition was not advanced, progressed, or anatomically changed during his employment at Bridgestone. In the face of conflicting medical testimony, the trial court found in favor of the employee, awarding $13,766 for a 7% permanent disability to his body as a whole. Relying on the employee's own medical testimony as well as an opinion of one of the testifying physicians, concluding that the employee's injury more probably than not was a result of his employment, the Panel affirms the trial court's finding that the employee suffered a compensable injury while at work. http://www.tba.org/tba_files/TSC_WCP/driverharrison.wpd
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0219.wpd
LANDWORKS, INC., et al. v. JOHN LESLIE VICK Court:TCA Attorneys: Fletcher L. Ervin, Newport, Tennessee, for the Appellant John Leslie Vick. William M. Leibrock, Newport, Tennessee, for the Appellees Landworks, Inc., and Dorothy R. Meadors, Trustee of the Dorothy R. Meadors Revocable Trust. Judge: SWINEY First Paragraph: Landworks, Inc., and Dorothy Meadors ("Plaintiffs") filed this lawsuit seeking, among other things, a declaration that they were the rightful owners of a certain tract of land in Cocke County. The adjoining land owner, John Vick ("Defendant"), claimed he was the owner of the disputed area and filed a counter-claim. Both Plaintiffs and Defendant had deeds which purported to convey to them the disputed area. The property taxes on the disputed area had been paid for more than the last twenty years by Plaintiffs or their predecessors in title. The Trial Court found in Plaintiffs' favor, relying in large part on the presumptions found in Tenn. Code. Ann. SS 28-2-109 and 28-2-110. We affirm. http://www.tba.org/tba_files/TCA/landworks.wpd
MICHAEL SUTTON, et al. v. LARRY BARNES, et al. Court:TCA Attorneys: Steven Douglas Drinnon, Dandridge, Tennessee, for the appellants, Michael Sutton and Sandra Sutton. Douglas L. Dutton and Lisa J. Hall, Knoxville, Tennessee, for the appellees, Cocke County and the Cocke County Highway Commission. Judge: SUSANO First Paragraph: The plaintiffs, Cocke County homeowners, brought this action seeking compensation for damage caused to their home by blasting activity on their neighbors' property. In response to interrogatories, the company that did the blasting identified the Cocke County Highway Commission as the provider of the explosives. Thereafter, the plaintiffs filed an amended complaint, naming Cocke County and the Cocke County Highway Commission (collectively "the County") as additional party defendants. Upon the County's motion, the trial court dismissed the plaintiffs' complaint as to the County, holding that their action is time-barred. On appeal, the plaintiffs argue that the discovery rule applies to their action against the County, and, therefore, their claim is not time-barred. The County argues that even if the plaintiffs' action is not barred by the applicable statute of limitations, the plaintiffs have failed to state a claim upon which relief can be granted. We hold that the discovery rule applies to actions against governmental entities and that there is a genuine issue for trial as to when the plaintiffs' cause of action "ar[ose]." We further hold that the complaint adequately states a cause of action, but only as to the plaintiffs' claim of common-law negligence. Accordingly, the judgment of the trial court is affirmed in part and reversed in part. http://www.tba.org/tba_files/TCA/suttonm.wpd
ANNIE L. TRUETT, as Administratrix of the Estate of GLENDA F. PLUNK, and MARVIN PLUNK v. WAYNE BOWMAN, CRNA, et al. Court:TCA Attorneys: Marty R. Phillips, Jackson, Tennessee, for the appellant, James T. Craig, Jr., M.D. Michael L. Weinman, Henderson, Tennessee, Thomas J. Long, Memphis, Tennessee, for the appellees, Annie L. Truett, as Administratrix of the Estate of Glenda F. Plunk, and Marvin Plunk. Judge: LILLARD First Paragraph: This is a medical malpractice case. The plaintiff's decedent allegedly was improperly intubated in preparation for hip replacement surgery. The plaintiff sued the orthopedic surgeon, the nurse anesthetist, and two anesthesiologists involved in the surgery. The trial court entered summary judgment in favor of the surgeon, based in part on the assertion of the surgeon and his attorney that the surgeon was responsible only for the orthopedic aspect of the decedent's care. Two years later, the other defendants, also represented by the same attorney who represented the surgeon, testified in depositions that, in contrast to the surgeon's assertions, the surgeon had broad responsibility for the decedent's care. In light of this testimony, the trial court granted the plaintiff's motion to set aside the order of summary judgment in favor of the surgeon. The surgeon's request for interlocutory appeal of this decision was granted. We now affirm, finding that the trial court did not abuse its discretion in setting aside its previous order of summary judgment. http://www.tba.org/tba_files/TCA/truettal.wpd
STACY MOLTER TURNEY v. RONALD ROSS TURNEY Court:TCA Attorneys: Michael B. McWherter, Jackson, Tennessee, for the appellant, Stacy Molter Turney. C. Timothy Crocker and Michael A. Carter, Milan, Tennessee, for the appellee, Ronald Ross Turney. Judge: FARMER First Paragraph: This appeal from a divorce decree raises issues concerning the classification and distribution of the parties' property, and the determination of income for the purposes of setting child support. We modify the distribution of property and remand for determination of child support. http://www.tba.org/tba_files/TCA/turneys.wpd
STATE OF TENNESSEE v. MARK A. CALDWELL Court:TCCA Attorneys: John C. Cavett, Jr., Chattanooga, Tennessee, for the appellant, Mark A. Caldwell. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; William H. Cox, III, District Attorney General; and Rodney C. Strong, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of first degree premeditated murder, first degree felony murder, and especially aggravated robbery, with the murder convictions merged into a single conviction for first degree murder following the jury's verdict. The jury sentenced him to life imprisonment on the murder conviction, and the trial court sentenced him to twenty-two years on the especially aggravated robbery conviction, to be served concurrently to the life sentence. Following the denial of his motion for a new trial, the defendant filed a timely appeal to this court, raising four issues: (1) whether the evidence was sufficient to support his convictions; (2) whether the trial court erred in allowing testimony about a statement of denial he made to police; (3) whether the trial court erred in allowing a photograph of the victim's body to be introduced into evidence; and (4) whether the jury should have been instructed that the State had taken the position, in a dismissed conspiracy indictment, that the defendant's accomplice was the shooter. After a careful review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/caldwellmarka.wpd
STATE OF TENNESSEE v. KENNETH ENGLAND Court:TCCA Attorneys: Julie A. Rice, Knoxville, Tennessee (on appeal); and Charles Herman, Jacksboro, Tennessee (at trial), for the Appellant, Kenneth England. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; William Paul Phillips, District Attorney General; Michael Ripley, Assistant District Attorney General; and John Steakley, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled guilty to three counts of retaliation for past action, a Class E felony, and the trial court sentenced him to four years on community corrections. Three separate violation warrants were subsequently issued against the Defendant. Following a revocation hearing, the trial court revoked the Defendant's placement on community corrections and ordered that the Defendant serve his original sentence in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred in revoking his community corrections sentence and ordering him to serve his sentence in confinement. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/englandk.wpd
STATE OF TENNESSEE v. PAUL FLANNIGAN Court:TCCA Attorneys: A.C. Wharton, Jr., Public Defender; and Trent Hall (at trial) and W. Mark Ward (on appeal), Assistant Public Defenders, for the appellant, Paul Flannigan. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Karen Cook and Alonda Dwyer, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant, Paul Flannigan, was convicted by a Shelby County jury of one count of attempted first degree murder, two counts of especially aggravated robbery, three counts of aggravated rape, and one count of aggravated burglary. He received an effective sentence of 125 years. He appeals, raising two points: (1) there was insufficient proof to support his convictions, and (2) his sentences are excessive. We reverse one conviction for aggravated rape and remand that charge for a new trial; we modify some of the judgments for an effective sentence of 93 years; we affirm in all other respects. http://www.tba.org/tba_files/TCCA/flanniganp.wpd
KENNETH R. GRIFFIN v. STATE OF TENNESSEE Court:TCCA Attorneys: Kenneth R. Griffin, Pikeville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Victor J. Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Kenneth R. Griffin, appeals from the trial court's summary dismissal of his petition for post-conviction relief. Pursuant to Tennessee Code Annotated section 40-30-206, the trial court entered an order dismissing the petition without an evidentiary hearing. In its order, the trial court made a finding of fact that the petition contained no verification of any facts under oath. Since the petition was devoid of verified facts upon which the trial court could grant relief, it concluded that a dismissal was required. On appeal, the State agrees with Petitioner that the trial court's judgment should be reversed. After a thorough review of the record, we reverse the judgment of the trial court and remand this case for further proceedings. http://www.tba.org/tba_files/TCCA/griffenkr.wpd
STATE OF TENNESSEE v. JEANNIE HUDSON Court:TCCA Attorneys: Edward Cantrell Miller, District Public Defender, and Susanne Bales, Assistant District Public Defender, for the appellant, Jeannie Hudson. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Charles Edward Atchley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: After pleading guilty to aggravated assault and receiving a sentence of split confinement of three years with nine months to be served day-for-day, defendant appeals her sentence. She requests full probation or allowance of good conduct credits while serving the incarceration portion of her sentence. We affirm the denial of full probation and reverse that portion of the sentence that provides day-for-day service. We hold that a defendant sentenced to the county jail for less than one year is entitled to earn good conduct credits pursuant to Tennessee Code Annotated section 41-2-111(b). http://www.tba.org/tba_files/TCCA/hudsonj.wpd
STATE OF TENNESSEE v. SEAN E. MILLER Court:TCCA Attorneys: Paul E. Lewis, Millington, Tennessee, for the appellant, Sean E. Miller. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paula Wulff and Reginald R. Henderson, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was found guilty by a Shelby County jury of DUI, second offense, and reckless driving. He was sentenced to 11 months and 29 days, all suspended except 60 days for DUI, second offense, and fined $50 for reckless driving. On appeal, he argues: (1) the results of his breath alcohol test were not properly admitted; (2) the evidence was insufficient to support his conviction for reckless driving; (3) the trial court improperly aided the prosecution in the presentation of its case; and (4) the trial court erred in ordering the defendant to consent to breath alcohol tests as a condition of his probation. We reverse the judgments of the trial court, dismiss the charge of reckless driving, and remand the DUI charge to the lower court for a new trial. http://www.tba.org/tba_files/TCCA/millerse.wpd
STATE OF TENNESSEE v. THADDEUS MORRIS Court:TCCA Attorneys: Juni S. Ganguli, Memphis, Tennessee, for the appellant, Thaddeus Morris. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; William L. Gibbons, District Attorney General; and James Lammey, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Thaddeus Morris, was convicted of three counts of assault, three counts of reckless aggravated assault, one count of aggravated robbery, and one count of carjacking following a jury trial. The trial court merged the three assault convictions with the three reckless aggravated assault convictions and the aggravated robbery conviction with the carjacking conviction. The defendant was sentenced to seven years, six months for each of the reckless aggravated assault convictions, with two of the sentences to be served concurrently and the third to be served consecutively. For the carjacking conviction, the trial court sentenced the defendant to twelve years to be served consecutively to the third reckless aggravated assault sentence, for an effective sentence of twenty- seven years in the Department of Correction. On appeal, the defendant argues: (1) the evidence was insufficient to support his convictions for carjacking and aggravated robbery; (2) the trial court erred by not including "moral certainty" in its jury instruction on reasonable doubt; (3) cumulative error occurred during the trial; and (4) the trial court erred in imposing consecutive sentencing. After a careful review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/morrist.wpd
CAMILLA RAY v. STATE OF TENNESSEE Court:TCCA Attorneys: Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Camilla Ray. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner appeals from the Knox County Criminal Court's denying her post-conviction relief from her especially aggravated robbery and especially aggravated kidnaping convictions and resulting concurrent fifteen-year sentences that she received in 2000 based upon her pleas of guilty. She contends that her guilty pleas resulted from the ineffective assistance of counsel in that counsel misadvised her about the percentage of her sentence that she would have to serve in confinement. We affirm the trial court's denial of relief. http://www.tba.org/tba_files/TCCA/rayc.wpd
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