Opinion FlashMarch 11, 2002Volume 8 — Number 044 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 CORRECTED OPINION: STATE OF TENNESSEE v. WALTER LEE ALLEN Court:TSC Attorneys: Edward C. Miller and Helen Susanne Bales, Dandridge, Tennessee, for the appellant, Walter Lee Allen. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and James L. Gass, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HOLDER First Paragraph: The defendant, Walter Lee Allen, was indicted for aggravated robbery. He was convicted of the lesser-included offense of robbery and received a ten-year sentence. The Court of Criminal Appeals affirmed the conviction and sentence. We granted permission to appeal to review two issues: (1) whether a variance existed between the indictment alleging robbery "by violence" and the proof showing robbery by pointing a gun at the victim; and (2) whether the trial court erred by failing to instruct the jury on facilitation of robbery as a lesser-included offense. We conclude that no variance existed because pointing a deadly weapon at the victim constitutes robbery "by violence." We further conclude that the failure to instruct on facilitation of robbery was reversible error under the circumstances of this case. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the case for a new trial. http://www.tba.org/tba_files/TSC/allenwal.wpd ERNEST J. FRYE v. BLUE RIDGE NEUROSCIENCE CENTER, P.C., et al. Court:TSC Attorneys: Olen G. Haynes, Johnson City, Tennessee, and Robert P. Starnes, Norton, Virginia, for the appellant, Ernest J. Frye. Jimmie C. Miller and Nancy C. Eastridge, Kingsport, Tennessee, for the appellee Blue Ridge Neuroscience Center, P.C., and William T. Gamble and Russell W. Adkins, Kingsport, Tennessee, for the appellee, Gregory N. Corradino, M.D. Judge: DROWOTA First Paragraph: We granted this appeal to determine whether process issued upon a second complaint satisfies Rule 3 of the Tennessee Rules of Civil Procedure when the plaintiff failed to serve process on the original complaint. After careful consideration of the Tennessee Rules of Civil Procedure and applicable case law, we hold that a plaintiff may rely upon the initial filing date to satisfy a statute of limitations if that plaintiff, having failed to issue or serve process within thirty days of filing the complaint, continues the action by issuing new process on the original complaint as required by Rule 3. In addition, a plaintiff may request a voluntary dismissal within the one-year time period under Rule 3, without having served process, and still rely on the original date of commencement to satisfy a statute of limitations if the plaintiff serves a copy of the Notice of Voluntary Dismissal and the complaint on the defendant as required by Rule 41.01. Because the plaintiff in this case failed to comply with either Rule 3 or Rule 41.01, the plaintiff may not rely on the filing date of the original complaint for purposes of satisfying the applicable one-year statute of limitations. Accordingly, the judgment of the Court of Appeals granting the defendants summary judgment is affirmed. http://www.tba.org/tba_files/TSC/fryee.wpd STATE OF TENNESSEE v. SEAN ERIC IMFELD Court:TSC Attorneys: Mark E. Stephens, District Public Defender, and Paula R. Voss and Robert C. Edwards, Assistant Public Defenders, Knoxville, Tennessee, for the appellant, Sean Eric Imfeld. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Patricia Cristil, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: The defendant entered guilty pleas to five counts of aggravated assault and was sentenced to three years for each conviction. The trial court ordered three of the sentences for aggravated assault to be served consecutively, for an effective sentence of nine years. The Court of Criminal Appeals affirmed. We granted permission to appeal to address three issues: (1) whether the trial court properly enhanced the defendant's sentences for aggravated assault on the basis that the offenses involved more than one victim, Tenn. Code Ann. S 40-35-114(3) (1997 & Supp. 2001); (2) whether the trial court properly enhanced the defendant's sentences on the basis that the crimes were committed under circumstances where the potential for bodily injury to a victim was great, id. S 40-35-114(16); and (3) whether the trial court properly imposed consecutive sentences on the basis that the defendant was a dangerous offender, id. S 40-35-115(b)(4). After reviewing the record and applicable authority, we conclude that the lower courts erred in applying the "multiple victims" and "potential bodily injury to a victim" enhancement factors, see id. SS 40-35-114(3) and -114(16), but that a reduction in the length of the sentences is not warranted because several other valid enhancement factors were supported by the record. We also conclude that the trial court's imposition of consecutive sentences on the basis that the defendant was a dangerous offender was supported by the record. See id. S 40-35-115(b)(4). We therefore affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/imfeldsean.wpd MELINDA F. PEELER v. KIMBERLY-CLARK CORPORATION, et al. Court:TSC - Workers Comp Panel Attorneys: James H. Hickman, III, of Knoxville, Tennessee, for Appellant, Melinda F. Peeler. Robert R. Davies, of Knoxville, Tennessee, for Appellees, Kimberly-Clark Corporation and Sentry Insurance 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 trial court dismissed the complaint finding proper notice of injury had not been given and that a reasonable excuse did not exist for the failure to give notice. The employee appealed insisting she was not aware that she had a work-related injury. Judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC_WCP/peeler.wpd TIMOTHY WOODY, v. NORTH BROTHERS, INC. Court:TSC - Workers Comp Panel Attorneys: James T. Shea, IV, Knoxville, for the appellant, North Brothers, Inc. Jeffrey A. Miller, Cleveland, for the appellee, Timothy Woody Judge: THOMAS First Paragraph: The first issue presented by this appeal is whether there is evidence to support a finding of permanent impairment of pulmonary function as a result of the migration to the lung of an embolus from a clot created as a result of an injury to the plaintiff's lower extremity. If there is such evidence, the next issue is whether there can be a disability rating to the body as a whole where there is an injury to a scheduled member. After a close review of the record and consideration of the arguments of counsel, we believe that the evidence supports only a finding of a possible future injury to the lung from another embolus from the clot, rather than a present permanent injury. Accordingly, we reverse and remand for further findings. Because of the conclusion on the first issue, we do not reach the second. http://www.tba.org/tba_files/TSC_WCP/woody.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0311.wpd WILLIAM ALLEN v. DONAL CAMPBELL, et al. Court:TCA Attorneys: William Allen, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Pamela S. Lorch, Assistant Attorney General, Nashville, Tennessee, for the appellees, Donal Campbell, et al. Judge: COTTRELL First Paragraph: Petitioner, a state inmate, filed the underlying pro se declaratory judgment action pursuant to the Uniform Administrative Procedures Act to seek review of the Tennessee Department of Correction's refusal to answer a petition for a declaratory order. Petitioner requested a declaratory order to determine his entitlement to both good conduct sentence credits and good and honor time credits. The trial court granted the Department's motion to dismiss for failure to state a claim holding that petitioner was not entitled to duplicate sentence credits. For the following reasons, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/allenw.wpd SUSAN J. HICKS v. CRESCENT RESOURCES, INC. Court:TCA Attorneys: Thomas V. White, Jude A. White, Nashville, Tennessee, for Appellant, Crescent Resources, Inc. Matthew J. Sweeney, Nancy A. Vincent, and April Y. Berman, Nashville, Tennessee, for Appellee, Susan J. Hicks. Judge: FRANKS First Paragraph: Plaintiff was granted summary judgment for commissions due and owing from defendant. On appeal, we vacate and remand. http://www.tba.org/tba_files/TCA/hickss.wpd BARBARA A. WILLOUGHBY, et al. v. MONTGOMERY ELEVATOR CO. Court:TCA Attorneys: David H. Dunaway, LaFollette, Tennessee, for the Appellant Barbara A. Willoughby. R. Kim Burnette, Knoxville, Tennessee, for the Appellee Montgomery Elevator Company. Judge: SWINEY First Paragraph: Barbara Willoughby ("Plaintiff") was injured exiting an elevator at her place of employment. Plaintiff sued Montgomery Elevator Company ("Defendant") who had a contract with the Department of Energy ("DOE") to service and repair the elevator. The dispositive issue on appeal is whether Defendant is an owner and operator of the elevator and, therefore, should be held to the higher standard of care of a common carrier. The Trial Court determined that the higher standard of care was not applicable and instructed the jury only with regard to ordinary negligence. After a jury verdict was rendered in favor of Defendant, Plaintiff appealed claiming the jury should have been instructed on the higher standard of care. We affirm. http://www.tba.org/tba_files/TCA/willoughbyb.wpd STATE OF TENNESSEE v. DAVID K. BROWNE Court:TCCA Attorneys: Leslie Hale, Blountville, Tennessee; Richard Tate, Blountville, Tennessee; attorneys at trial for the appellant, David K. Browne. Pro Se on appeal. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Peter M. Coughlan, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; Barry Staubus, Assistant District Attorney General; for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, David Kirk Browne, was indicted on one count of public indecency. The Defendant sought pretrial diversion, which was denied by the State. Following several continuances, the trial court conducted a hearing on the Defendant's petition for writ of certiorari. At the Defendant's request, the trial judge recused herself from the case. The case was transferred to Judge Jerry Beck. Judge Beck found that the Assistant District Attorney did not abuse his discretion in denying pretrial diversion. The Defendant now appeals, alleging numerous defects in the proceedings which culminated in his conviction. After a review of the evidence, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/brownedk.wpd STATE OF TENNESSEE v. CHESTER LEE JENKINS Court:TCCA Attorneys: Raymond Mack Garner, District Public Defender; George H. Waters, Assistant District Public Defender; and Stacey D. Nordquist, Assistant District Public Defender, for the appellant/appellee, Chester Lee Jenkins. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; Michael L. Flynn, District Attorney General; Kirk E. Andrews, Assistant District Attorney General; and Edward P. Bailey, Jr., Assistant District Attorney General, for the appellee/appellant, State of Tennessee. Judge: GLENN First Paragraph: This is a Rule 9, Tennessee Rules of Appellate Procedure, interlocutory appeal of the trial court's order sustaining in part and denying in part the defendant's motion to suppress his statement to police. The defendant, who is totally deaf, is charged with first degree murder and aggravated arson. On the morning after the residential fire that claimed the victim's life, a deputy sheriff entered the defendant's home, tapped him on the shoulder to awaken him, and asked, via gestures and a written note, that the defendant accompany him to the sheriff's department for questioning. Investigators at the department interviewed the defendant and took his statement through an interpreter of American Sign Language. The defendant argued that the statement should be suppressed on two grounds: (1) that it was the fruit of an unlawful seizure, in violation of his Fourth Amendment right to be free from unreasonable search and seizure; and (2) that it was taken without adequate Miranda warnings, in violation of his Fifth Amendment right to counsel. Finding that the defendant voluntarily accompanied the deputy to the sheriff's department, but that he was in custody at the department and that the State failed to prove that he had been given an adequate Miranda warning, the trial court denied the motion to suppress on Fourth Amendment grounds, but granted it on Fifth Amendment grounds. The State appeals that portion of the trial court's order sustaining the motion on Fifth Amendment grounds, and the defendant appeals that portion of the order denying the motion on Fourth Amendment grounds. After a thorough review of the record and applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jenkinschesterl.wpd Tennessee Code Annotated S 8-27-303; Use of state funds received by local education agency that provides "equal or superior" insurance plan Date: March 4, 2002 Opinion Number: 02-025 http://www.tba.org/tba_files/AG/OP25.pdf Excess Insurance under the Insurance Guaranty Association Laws Date: March 7, 2002 Opinion Number: 02-026 http://www.tba.org/tba_files/AG/OP26.pdf Constitutionality of Tenn. Code Ann. S 36-1-142 Date: March 7, 2002 Opinion Number: 02-027 http://www.tba.org/tba_files/AG/OP27.pdf PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN TBALink! SUBSCRIBE TO OPINION FLASH! For the HTML Text Version: UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: Home • Contact Us • PageFinder • What's New • Help |
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