Opinion FlashApril 30, 2002Volume 8 — Number 074 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 JANET CRAME v. GRINNELL CORPORATION Court:TSC - Workers Comp Panel Attorneys: Jeffrey P. Boyd, Jackson, Tennessee, for the appellant, Grinnell Corporation George L. Morrison, III, Jackson, Tennessee, for the appellee, Janet Crame Judge: MALOAN 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. In this appeal, the employer, Grinnell Corporation, contends the evidence preponderates against the trial court's award to the employee, Janet Crame, of twenty-two percent (22%) permanent partial disability to both arms. For the reasons stated in this opinion, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/crame.wpd TIMOTHY V. BOWLING v. TENNESSEE BOARD OF PAROLES, et al. Court:TCA Attorneys: Timothy V. Bowling, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Kimberly J. Dean, Deputy Attorney General, for the appellee, Tennessee Board of Probation and Parole. Judge: KOCH First Paragraph: This appeal involves a prisoner's efforts to be paroled. After a hearing officer employed by the Tennessee Board of Paroles declined to recommend him for parole, the prisoner filed a pro se petition for a common-law writ of certiorari in the Chancery Court for Davidson County asserting that the procedures used to consider him for parole violated his due process and equal protection rights and were tainted by delay and bias. Instead of filing the record of the challenged proceedings, the Board filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss. The trial court granted the Board's motion, and the prisoner has appealed. We have determined that the prisoner's petition should have been dismissed because it does not comply with Tenn. Code Ann. S 27-8-106 (2000) and because it does not present facts demonstrating that the prisoner had no other plain, speedy, or adequate remedy when he filed the petition. http://www.tba.org/tba_files/TCA/bowlingtv.wpd DUDLEY G. BOYD, et al. v. COMDATA NETWORK, INC., et al. Court:TCA Attorneys: William R. O'Bryan, Jr., Kenneth M. Bryant, and E. Todd Presnell, Nashville, Tennessee, for the appellant, Comdata Network, Inc. Scott Justin Crosby and Susan M. Clark, Memphis, Tennessee, and George H. Nolan and Julie C. Murphy, Nashville, Tennessee, for the appellees, Dudley G. Boyd and Jan E Boyd. Judge: KOCH First Paragraph: This appeal involves a discovery dispute implicating the common interest privilege and the work product doctrine. After filing suit in the Chancery Court for Williamson County to rescind their guaranties, the individual guarantors of a corporate debt served interrogatories and requests for production of documents on the creditor seeking copies of all written communications between the creditor and the corporation from which the creditor had purchased the corporate debt. The creditor objected to the production of documents involving its negotiation of a joint defense agreement with the original creditor and the drafts of an agreement to repurchase the corporate debt. The trial court directed the creditor to produce both categories of documents but permitted the creditor to pursue an interlocutory appeal. We granted the interlocutory appeal to address the application of the common interest privilege and the work product doctrine. We have determined that the common interest privilege shields the documents relating to the joint defense agreement from discovery and that the work product doctrine likewise protects the drafts of the repurchase agreement. Accordingly, we reverse the trial court's order compelling the production of these documents. http://www.tba.org/tba_files/TCA/boyddg.wpd NANCY E. COTTER v. TED A. BURKHALTER, et al. Court:TCA Attorneys: Carrol D. Kilgore, Nashville, Tennessee, for the appellant, Nancy E. Cotter. D. Alexander Fardon, Nashville, Tennessee, for appellees, Ted A. Burkhalter, and Burkhalter, Ryan & Co., P.C. John S. Hicks, Nashville, Tennessee, for appellee, Prudential Securities, Inc. Linda L. Resha, Nashville, Tennessee, Pro Se. Judge: CLEMENT First Paragraph: This appeal arises from an action by a Trustee against: (1) Ted A. Burkhalter (Burkhalter), an accountant/attorney, and the accounting firm, Burkhalter, Ryan & Co., P.C., for professional malpractice; (2) Burkhalter, a former co-trustee, for alleged breach of fiduciary duties; (3) Burkhalter and his partner, Linda Resha, in a general partnership, for alleged conspiracy to defraud and convert funds from the trust; and (4) Prudential Securities, Inc. for breach of fiduciary duty by allegedly permitting the diversion of funds by Burkhalter. The Chancery Court granted summary judgment in favor of Burkhalter and Burkhalter-Ryan finding that the malpractice claims were time-barred. The Chancery Court also granted summary judgment in favor of Prudential Securities finding that Prudential had not breached a fiduciary duty to the trust. Following a bench trial on the remaining issues, the Chancery Court found that the plaintiff/appellant was judicially estopped from pursuing the claims against Burkhalter for alleged breach of fiduciary duties as a trustee, and found in favor of Burkhalter and Resha on the claim of conspiracy to divert funds, finding there was insufficient evidence to establish that a conspiracy existed. We affirm. http://www.tba.org/tba_files/TCA/cottervburkhalter.wpd JEFFREY CROUCH, et al. v. BRIDGE TERMINAL TRANSPORT, INC. Court:TCA Attorneys: Charles J. Williams & John B. Carlson, Nashville, TN, for Appellants Michael Richards, Memphis, TN, and John S. Hicks, Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal involves a trial court's refusal to grant class action status to plaintiffs' claims for breach of contract and promissory fraud. Plaintiffs filed suit against defendant alleging that identical contracts between proposed class members and defendant were breached and that defendant's conduct amounted to promissory fraud. The trial court held that plaintiffs failed to show that issues of law and fact common to the class predominated over individual questions and refused to certify the class. Plaintiffs were granted this interlocutory appeal to review the trial court's decision on class certification. For the following reasons, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/crouchjeffrey.wpd MICHAEL JOHN DURANT v. LORRIE DIANE DURANT Court:TCA Attorneys: Gregory D. Smith, Clarksville, Tennessee, for the appellant, Lorrie Diane Durant. Larry B. Watson, Clarksville, Tennessee, for the appellee, Michael John Durant. Judge: FARMER First Paragraph: This appeal concerns the dissolution of a twelve-year marriage. The trial court granted the husband a divorce on the grounds of inappropriate marital conduct. The court distributed the parties' property and awarded custody of the couple's two minor children to the husband. The court also enforced a contract the parties entered into prior to the divorce wherein the husband agreed to purchase the wife's share of the marital residence. The wife appeals. We affirm the trial court. http://www.tba.org/tba_files/TCA/durantmichaeljohn.wpd MICHAEL DELANEY GALLIGAN v. LINDA MEDDERS GALLIGAN Court:TCA Attorneys: Thomas F. Bloom, Nashville, TN, for Appellant Winston S. Evans, Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a divorce proceeding initiated by the husband. The trial court, holding that both parties contributed to the demise of the marriage, granted the divorce to the wife based on the husband's adultery. The trial court refused to grant the wife rehabilitative alimony and classified all but one of the parties' assets as separate property. Finally, the trial court refused to tax discretionary costs against the wife and, instead, granted her $36,000.00 in attorney's fees. The parties have raised numerous issues for our review. For the foregoing reasons, we affirm in part, reverse in part, and remand this case for further proceedings. http://www.tba.org/tba_files/TCA/galliganmichaeld.wpd IN THE MATTER OF ASBERT JOSEPH Court:TCA Attorneys: Asbert Joseph, Clifton, Tennessee, Pro Se. Judge: KOCH First Paragraph: This appeal involves a state prisoner's efforts to change his name in accordance with the tenets of the Nation of Islam. The prisoner filed his petition in the Chancery Court for Wayne County. The trial court summarily dismissed the petition even though it was uncontested, and the prisoner has appealed to this court. We affirm the dismissal of the petition solely because the prisoner neither alleged nor proved that he was a resident of Wayne County when he filed the petition. http://www.tba.org/tba_files/TCA/josepha.wpd JAMES D. LECKRONE v. JAMES D. WALKER, et al. Court:TCA Attorneys: John R. Jacobson, Nashville, Tennessee, for the appellant, James D. Walker. W. Lee Corbett and David F. Lewis, Nashville, Tennessee, for the appellee, Prism Partners, L.P. Judge: KOCH First Paragraph: This appeal arises from a dispute over the proceeds from the sale of a Florida condominium unit once owned by a Tennessee partnership but titled in the name of two of its partners. When the successor to the partnership's interest in the unit undertook to sell it, one of the owners of record agreed to sign the deed only if the proceeds were placed in escrow while the parties attempted to resolve his claim to one-half of the funds. When the parties failed to agree on a distribution of the proceeds, the escrow holder filed an interpleader action in the Chancery Court for Davidson County. Following a bench trial, the trial court awarded the escrowed proceeds to the partnership's successor after determining that the owner of record was estopped to invoke the statute of frauds to defeat the successor's claim. We have determined that the trial court reached the correct result because the owner of record no longer possessed a beneficial interest in the unit. Accordingly, we affirm the judgment. http://www.tba.org/tba_files/TCA/leckronejd.wpd ELLA JEAN McCAIN, CONSERVATOR OF THE PERSON AND PROPERTY OF HERMAN McCAIN v. CHARLES DAVID PUGH Court:TCA Attorneys: James V. Ball, Memphis, Tennessee, for the appellant, Ella Jean McCain. Paul L. Burson, Memphis, Tennessee, for the appellee, Charles David Pugh. Judge: LILLARD First Paragraph: This is a personal injury case arising from a vehicle/pedestrian accident. A pedestrian wandered from the nursing home at which he resided and began walking alongside a roadway. The defendant driver saw the pedestrian as he was driving on the roadway. As the driver approached, the pedestrian suddenly stepped into the roadway and was struck by the defendant's truck. The pedestrian suffered significant injuries. The pedestrian's daughter, as his conservator, filed suit against the defendant driver. At the conclusion of the plaintiff's proof, the defendant driver moved for a directed verdict on the grounds that there was insufficient evidence that the defendant driver was negligent. The trial court granted a directed verdict for the defendant driver and the plaintiff now appeals. We affirm, finding that the plaintiff failed to adduce evidence from which a reasonable jury might conclude that the defendant driver was negligent. http://www.tba.org/tba_files/TCA/mccainej.wpd LIDELL GREEN RUSSELL, et al. v. CITY OF MEMPHIS, TENNESSEE Court:TCA Attorneys: William W. Heaton, Memphis, Tennessee, for the appellants, Lidell Green Russell and George Green as Co-Administrators of the Estate of Bobby E. Russell, Jr. Sherry R. Brooks and Carrie L. Clark, Memphis, Tennessee, for the appellee, City of Memphis, Tennessee. Judge: FARMER First Paragraph: This is an appeal from a wrongful death action brought against the City of Memphis pursuant to the Governmental Tort Liability Act. The trial court granted summary judgment to the City of Memphis, finding that at the time of the accident giving rise to this action its employee was not acting within the scope of his employment. We affirm. http://www.tba.org/tba_files/TCA/russelllidellgreen.wpd JAMES O'NEAL VINEYARD, et ux. v. WALKER BETTY, et ux. Court:TCA Attorneys: J. Ross Pepper, Nashville, Tennessee, for the appellants, Walker Betty, et ux. Ronald Kilgore, Charlotte, Tennessee, for the Appellees, James O'Neal Vineyard, et ux. Judge: COTTRELL First Paragraph: Following a bench trial, the trial court found sufficient evidence to show the existence of a prescriptive easement across the property of the defendants in favor of the plaintiffs. Defendants appeal, arguing that clear and convincing evidence did not exist to support the trial court's finding and that at trial plaintiff did not submit proof of irreparable harm necessary to secure injunctive relief. Appellant failed to submit a transcript of the trial court proceedings or a statement of the evidence to the appellate court leaving this court only the technical record for consideration on appeal. In the absence of a transcript or statement of the evidence, this court must presume the evidence supported the trial court's findings. Therefore, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/vineyardj.wpd STATE OF TENNESSEE v. LARRY BROOKS Court:TCCA Attorneys: S. Jasper Taylor, IV., Bells, Tennessee, for the appellant, Larry Brooks. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Clayburn L. Peeples, District Attorney General; and Gary Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Larry Brooks, was convicted by a jury of aggravated robbery, aggravated assault, aggravated burglary, vandalism, and theft up to $500. The Defendant was subsequently sentenced as a Range III, persistent offender to twenty years for the robbery, ten years for the assault, ten years for the burglary, and eleven months, twenty-nine days for each of the misdemeanors, all sentences to run concurrently. In this direct appeal the Defendant raises four issues: (1) whether the trial court erred in denying his motion to suppress; (2) whether the evidence is sufficient to support his convictions; (3) whether the trial court erred in sentencing the Defendant more than forty-five days after the jury verdict; and (4) whether the trial court erred in classifying the Defendant as a persistent offender in imposing sentence. Finding that principles of double jeopardy prohibit the Defendant's convictions for aggravated assault and theft, we reverse and dismiss those convictions. In all other respects, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/brooksl.wpd STATE OF TENNESSEE v. TERRANCE BURKE Court:TCCA Attorneys: James M. Gulley, Memphis, Tennessee, for the Appellant, Terrance Burke. Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney General; William L. Gibbons, District Attorney General; Amy P. Weirich, Assistant District Attorney General; Jennifer Smith Nichols, Assistant District Attorney General; and Daniel S. Byer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was convicted of intentionally evading arrest in an automobile, a Class E felony. The trial court sentenced the Defendant as a career offender to six years incarceration. The Defendant now appeals, arguing that the trial court erred by classifying him as a career offender. Concluding that the evidence was insufficient to support the trial court's determination that the Defendant is a career offender, we reverse the judgment of the trial court and remand for re-sentencing. http://www.tba.org/tba_files/TCCA/burket.wpd BRADFORD D. DARNBUSH v. STATE OF TENNESSEE Court:TCCA Attorneys: Bradford D. Darnbush, Jonesville, Virginia, Pro Se. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; and Charles Michael Layne, District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals the trial court's summary dismissal of his post-conviction relief petition. The issue presented for appeal is whether the petitioner's post-conviction petition is barred by the statute of limitations. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/darnbushbd.wpd STATE OF TENNESSEE v. JAXIE RAYMOND JONES Court:TCCA Attorneys: Jaxie Raymond Jones, Mountain City, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and Joe C. Crumley, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: In these consolidated appeals, the Appellant, Jaxie Raymond Jones, has appealed from orders of the criminal courts of Washington County and Johnson County. His "Motion For Order Directing Joe C. Crumley, 1st Judicial District Attorney General To Produce To Jaxie Raymond Jones, A Copy Of The Entire Case File Of Case No. 14189" was denied. Subsequently, a motion to "alter or amend judgment" was also denied, with the trial court imposing sanctions pursuant to Tennessee Code Annotated sections 41-21-801 through -818. Upon review of the entire record, we affirm the judgments of each trial court insofar as each order denies the motion. However, we reverse the order of the Johnson County Criminal Court insofar as it imposes sanctions pursuant to Tennessee Code Annotated sections 41-21-801 through -818. http://www.tba.org/tba_files/TCCA/jonesjaxieraymond.wpd STATE OF TENNESSEE v. ANDRE NEELY Court:TCCA Attorneys: John E. Dunlap, Memphis, Tennessee, for appellant, Andre Neely. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General, for appellee, State of Tenenssee. Judge: SMITH First Paragraph: After the defendant's arrest for first degree murder and attempted first degree murder, a Shelby County General Sessions Court conducted a preliminary hearing to determine if there was probable cause to support his arrest. At the conclusion of the preliminary hearing, the court dismissed the defendant's case. However, a Shelby County grand jury later indicted the defendant for first degree murder and two counts of attempted first degree murder. Pursuant to a jury trial, the defendant was found guilty of one count of second degree murder and two counts of attempted second degree murder. Accordingly, the trial court sentenced the defendant to serve twenty years in confinement. The defendant now brings this appeal, challenging his conviction on the basis that (1) he was denied an opportunity to review the preliminary hearing tape, which was destroyed, and that (2) the trial court refused to admit certain testimony to cure this deficiency. After reviewing these claims, we find that neither of them merit relief. Accordingly, we affirm the defendant's convictions. http://www.tba.org/tba_files/TCCA/neelyandre.wpd RUSSELL LANE OVERBY v. STATE OF TENNESSEE Court:TCCA Attorneys: Ed Neal McDaniel, Savannah, Tennessee, for the Appellant, Russell Lane Overby. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Russell Lane Overby, appeals from the Hardin County Circuit Court's dismissal of his petition for post-conviction relief. On December 8, 1997, Overby was found guilty of rape by a Hardin County jury, and was sentenced to a term of twelve years in the Department of Correction. In this collateral attack of his rape conviction, Overby alleges that he received ineffective assistance of counsel, both at trial and on direct appeal. After review, we find no error and affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/overbyrussellL.wpd STATE OF TENNESSEE v. TIFFANY MICHELLE TAYLOR Court:TCCA Attorneys: Joseph F. Edwards (at trial and on appeal) and Michael H. Knowlton (at trial), Cookeville, Tennessee, for the appellant, Tiffany Michelle Taylor. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; William E. Gibson, District Attorney General; Benjamin W. Fann, Assistant District Attorney General; and Lillie Ann Sells, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Tiffany Michelle Taylor, was convicted by a Putnam County Criminal Court jury of premeditated first degree murder and sentenced to life in the Tennessee Department of Correction. The defendant appeals, claiming that (1) the juvenile transfer statute, Tenn. Code Ann. S 37-1-134, is unconstitutional because it violates equal protection and the separation of powers doctrine; (2) her conviction violates the protection against double jeopardy; (3) the trial court erred by refusing to give a sleep defense instruction; and (4) the trial court improperly admitted inflammatory photographs into evidence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/taylortm.wpd STATE OF TENNESSEE v. RANDALL TAYLOR Court:TCCA Attorneys: Philip A. Condra, District Public Defender, and David O. McGovern, Assistant Public Defender, for the appellant, Randall Taylor. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; James Michael Taylor, District Attorney General; and William Bobo Copeland, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Defendant contends there was insufficient evidence to support the conviction for driving on a revoked license. We disagree and affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/taylorr.wpd STATE OF TENNESSEE v. KARDIUS WILKS Court:TCCA Attorneys: William C. Gosnell, Memphis, Tennessee, for the Appellant, Kardius Wilks. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Braden H. Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and James Lammey, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Kardius Wilks, was convicted by a Shelby County jury of first degree murder and sentenced to life imprisonment. On appeal, Wilks contends that the evidence presented at trial was insufficient to support his first degree murder conviction because the State failed to prove that the murder was premeditated and intentionally committed. After review, we find no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wilkskardius.wpd 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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