Opinion FlashMay 9, 2002Volume 8 — Number 81 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 WILMA M. ADKINS v. , MODINE MANUFACTURING COMPANY, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Robert W. Knolton, of Oak Ridge, Tennessee, for Appellants, Modine Manufacturing Company, Inc. and Sentry Insurance Company. Roger L. Ridenour, of Clinton, Tennessee, for Appellee, Wilma M. Adkins. 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 awarded the employee 75 percent permanent partial disability to each arm. The employer has appealed and insists the award is excessive and should have been fixed to the body as a whole. The judgment is affirmed. http://www.tba.org/tba_files/TSC_WCP/adkins.wpd MICHELE BEELER v. SOUTHEAST SERVICE CORPORATION d/b/a SSC SERVICE SOLUTIONS, et al. Court:TSC - Workers Comp Panel Attorneys: James C. Cone, Knoxville, Tennessee, for the appellant, Michele Beeler. Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellees, Southeast Service Corporation d/b/a SSC Service Solutions and CNA Insurance Company. 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 trial court found the plaintiff had failed to show by a preponderance of the evidence that she had suffered carpal tunnel syndrome as a result of her work for the defendant. The plaintiff, in two issues, basically claims the trial judge erred by finding the plaintiff had failed to carry the burden of showing she was entitled to recover for a work related injury. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/beeler.wpd MELISSA SUZANNE DEW v. PRO-TEMP Court:TSC - Workers Comp Panel Attorneys: Roger E. Ridenour, of Clinton, Tennessee, for Appellant, Melissa Suzanne Dew. B. Chadwell Rickman, of Knoxville, Tennessee, for Appellee, Pro-Temp. 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 awarded the employee 20 percent permanent partial disability to her right hand. The employee appeals insisting the court had used the multiplier statute in computing the award and that the statute does not apply to scheduled member injuries. The judgment is modified to award the employee 40 percent to the right hand. http://www.tba.org/tba_files/TSC_WCP/dew.wpd NICOLAIE DANIEL LUCESCU, v. TWIN CITY MOTORS, INC. Court:TSC - Workers Comp Panel Attorneys: Robert L. Cheek, Jr., and Jesse Guin, for the appellant, Nicolaie Daniel Lucescu Frank Q. Vettori, for the appellee, Twin City Motors, Inc. Judge: THOMAS First Paragraph: The issue presented by this appeal is whether there is evidence to support the finding of the trial court that the hernia experienced by the employee occurred before the date of the report of the accident and is, therefore, not compensable under the Hernia Statute, T.C.A. S50-6-212. After a review of the record and the briefs and after consideration of the arguments of counsel, we find that the trial court simply chose to believe the plaintiff's treating physician rather than the plaintiff as to when the hernia occurred. We, therefore, affirm. http://www.tba.org/tba_files/TSC_WCP/lucescu.wpd JOHNNY A. STEPHENSON v. CONTAINER PRODUCTS CORPORATION Court:TSC - Workers Comp Panel Attorneys: Jill A. Hanson, Nashville, Tennessee, for the appellant, Container Products Corporation. Bruce D. Fox and April D. Carroll, Clinton, Tennessee, for the appellee, Johnny A. Stephenson. 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 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 found that the plaintiff had suffered a work-related injury and awarded permanent partial disability of thirty percent to the body as a whole. We affirm the judgment of the trial court but reduce the amount of the award to twenty percent (20%) vocational disability. http://www.tba.org/tba_files/TSC_WCP/stephenson.wpd BIRDIE I. TREECE v. LEAR CORPORATION Court:TSC - Workers Comp Panel Attorneys: Robert S. Hahn, of Morristown, Tennessee, for Appellant, Lear Corporation. James M. Davis, of Morristown, Tennessee, for Appellee, Birdie I. Treece. 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 found the employee was totally and permanently disabled. The court also found the employer was entitled to a set off for payment of long-term disability benefits and made other rulings as to the employee's rights under the employer's disability retirement plan. Judgment of the trial court is affirmed as to the award of total disability and set off rulings, and vacated as to issues relating to the employee's vested rights to future disability retirement benefits. http://www.tba.org/tba_files/TSC_WCP/treece.wpd KENNETH TRIVETT, v. NORMAN LITCHFIELD, Court:TSC - Workers Comp Panel Attorneys: Tony Seaton, Johnson City, for the appellant, Kenneth Trivett Donald Spurrell, Johnson City, for the appellee, Norman Litchfield Judge: THOMAS First Paragraph: Although the appellant argues that he was unfairly forced to trial and that the decision of the trial court was improper, no timely notice of appeal was filed. Although this issue was neither briefed nor argued, failure to file a timely appeal is jurisdictional. Consequently, the appeal will be dismissed. http://www.tba.org/tba_files/TSC_WCP/trivettk.wpd JEFFERY A. WRIGHT v. JOHNSTON COCA-COLA & DR. PEPPER BOTTLING CO., et al. Court:TSC - Workers Comp Panel Attorneys: R. Jerome Shepherd, Cleveland, Tennessee, for the appellant, Jeffery A. Wright. Paul D. Hogan, Jr., Knoxville, Tennessee, for the appellees, Johnston Coca-Cola & Dr. Pepper Bottling Co. and Travelers Property & Casualty Co. 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 trial court found the plaintiff suffered a 5 percent permanent medical impairment as a result of an injury sustained while working for the defendant. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/wright.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0506.wpd STATE OF TENNESSEE v. JARED ANTHONY BREAUX Court:TCCA Attorneys: Ross E. Alderman, District Public Defender, and Hollis I. Moore, Jr., Assistant District Public Defender, for the appellant, Jared Anthony Breaux. Paul G. Summers, Attorney General & Reporter; Christine M. Lapps, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and James D. Sledge, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, who had three convictions for DUI, was incarcerated after the suspended portion of his most recent DUI sentence had been revoked because of a fourth arrest for DUI and his failure to report the new arrest to his probation officer. The following month, the defendant was released on a four-day furlough to attend his grandmother's funeral in Louisiana, and, apparently because of the late hour when the release occurred, the conditions of his release were not explained. Two hours later, the defendant was seen by a jail deputy at a nearby Hooter's Restaurant, as he drank a beer with his brothers, whom he had met there for the journey to Louisiana. Following a hearing, he was held in contempt of court for consuming an alcoholic beverage while on furlough and sentenced to ten days confinement to be served consecutively to the sentence for which he then was incarcerated. He timely appealed that ruling, arguing that since the conditions of the furlough had not been explained to him, the evidence was insufficient for the finding that he was in contempt of court. Upon our review, we affirm the trial court. http://www.tba.org/tba_files/TCCA/breauxjareda.wpd STATE OF TENNESSEE v. PERCY PEREZ FARRIS Court:TCCA Attorneys: Karen T. Fleet, Bolivar, Tennessee, for the appellant, Percy Perez Farris. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Elizabeth Rice, District Attorney General; and Jerry W. Norwood, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Percy Perez Farris, was convicted by a jury of attempt to commit first degree premeditated murder and especially aggravated robbery. The trial court sentenced the Defendant to twenty-five years for each offense, to be served concurrently in the Department of Correction. In this direct appeal the Defendant raises the following issues: (1) whether the trial court erred in denying the Defendant's motion to change venue; (2) whether the trial court erred in refusing to suppress identification testimony; (3) whether the trial court erred in refusing to suppress evidence concerning the victim's blood; (4) whether the evidence is sufficient to support the convictions; and (5) whether cumulative error requires a new trial. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/farrispp.wpd STATE OF TENNESSEE v. BRIAN VAL KELLEY Court:TCCA Attorneys: David L. Raybin, Nashville, Tennessee (on appeal) and Gary Vandever, Lebanon, Tennessee (at trial) for the appellant, Brian Val Kelley. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; David Durham, Assistant District Attorney General; and Robert N. Hibbett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Brian Val Kelley, was convicted by a Wilson County jury of one count of premeditated and intentional first degree murder, Tenn. Code Ann. S 39-13-202(1), and one count of murder committed in the perpetration of or attempt to perpetrate aggravated child abuse, Tenn. Code Ann. S 39-13-202(2). The trial court merged the felony-murder conviction with the premeditated and intentional first degree murder conviction and sentenced Defendant to life with the possibility of parole. In this appeal, Defendant raises the following issues: (1) whether Defendant met his burden of proving the defense of insanity by clear and convincing evidence which, without conflicting proof, rendered the evidence against him insufficient to support his convictions; (2) whether the trial court erred by failing to instruct the jury concerning how to properly define "wrongfulness" when considering the defense of insanity; (3) whether the trial court's failure to charge the jury on the lesser-included offense of voluntary manslaughter was reversible error; and (4) whether the trial court erred by improperly limiting the testimony of Defendant's expert witnesses and by giving erroneous instructions to the jury regarding such limitation. 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/kelleybrianval.wpd STATE OF TENNESSEE v. TIMOTHY J. KING Court:TCCA Attorneys: Philip A. Condra, District Public Defender, for the appellant, Timothy J. King. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; James Michael Taylor, District Attorney General; and Steven H. Strain and Sherry Durham Gouger, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was indicted for second degree murder, convicted by a jury of the lesser-included offense of voluntary manslaughter, and subsequently sentenced to a term of six years. In this appeal, the defendant contends: (1) the evidence was insufficient to support his conviction; (2) the state improperly cross-examined him concerning his use of illegal drugs; (3) the district attorney committed prosecutorial misconduct in closing argument; (4) the trial court improperly instructed the jury concerning the weight to be given the defendant's testimony; and (5) the defendant's sentence was excessive. After a thorough review of the record, we affirm the judgment of the trial court in all respects. http://www.tba.org/tba_files/TCCA/kingtj.wpd STATE OF TENNESSEE v. CORY JAMES MARTIN Court:TCCA Attorneys: Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellant, the State of Tennessee. James K. Scott, Oak Ridge, Tennessee, for the appellee, Cory James Martin. Judge: WADE First Paragraph: The defendant, Cory James Martin, was indicted for two counts of rape of a child and three counts of especially aggravated sexual exploitation of a minor. After granting a motion to suppress two incriminating statements made by the defendant prior to his arrest, the trial court permitted the state an application for permission to appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. In this interlocutory appeal, the state asserts that the trial court erred by granting the motion to suppress. Because the defendant was not in custody at the time of the statements and Miranda warnings were not required, the judgment of the trial court is reversed and the cause is remanded for trial. http://www.tba.org/tba_files/TCCA/martincoryj.wpd STATE OF TENNESSEE v. SHANTA LAVETT MCKINNEY Court:TCCA Attorneys: Gary F. Antrican, Somerville, Tennessee, for the appellant, Shanta Lavett McKinney. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; and Elizabeth Rice, District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Shanta Lavett McKinney, pled guilty to one count of automobile burglary; one count of theft over $1000; one count of misdemeanor assault; and one count of theft under $500. He was sentenced as a Range I standard offender to one year, six months for the auto burglary; three years for the theft over $1000; eleven months, twenty-nine days for the assault; and eleven months, twenty- nine days for the theft under $500, all sentences running concurrently. Under separate indictment, the Defendant pled guilty to four counts of aggravated burglary; one count of theft between $500 and $1000; and three counts of theft under $500. He was sentenced as a Range I standard offender to five years for each of the burglaries; one year six months for the theft over $500; and eleven months, twenty-nine days for each of the thefts under $500. These sentences were ordered to run concurrently with each other, but consecutively to the previously mentioned sentences, for an effective sentence of eight years in the Department of Correction. In this direct appeal the Defendant challenges both the length of his felony sentences and the trial court's denial of an alternative sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mckinneysl.wpd STATE OF TENNESSEE v. THOMAS SLATES Court:TCCA Attorneys: David M. Livingston, Brownsville, Tennessee (on appeal), and Harold Gunn, Humboldt, Tennessee (at trial), for the appellant, Thomas Slates. Paul G. Summers, Attorney General & Reporter; Gill Robert Geldreich, Assistant Attorney General; and William Bowen and Larry Hardister, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Thomas Slates, was indicted for three counts of selling cocaine in an amount greater than .5 grams, a Class B felony. See Tenn. Code Ann. S 39-17-417(a)(3), (b). The jury returned a guilty verdict on the first count, a not guilty verdict on the second count, and could not reach a verdict on the third. The trial court imposed a Range I sentence of eight years on count one. In this appeal of right, the defendant contends that (1) the evidence was insufficient; and (2) the trial court erred by failing to consider alternative sentencing. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/slatest.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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