Opinion FlashJune 11, 2002
Volume 8 Number 102
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
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Howard H. Vogel
MARY BARNETT v. S&R OF TENNESSEE, et al. Court:TSC - Workers Comp Panel Attorneys: William B. Walk, Jr. and Jeannie M. Kosciolek, Memphis, Tennessee, for the appellant, S&R of Tennessee Frank Deslauriers, Covington, Tennessee, for the appellee, Mary Barnett Judge: LOSER 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 insists the evidence preponderates against the trial court's findings (1) that the claimant suffered an injury arising out of and in the course of employment, and (2) the trial court's finding that the injury is permanent. As discussed below, the panel has concluded the award should be modified to one based on 15 percent to both arms, but otherwise affirmed. http://www.tba.org/tba_files/TSC_WCP/barnett.wpd
FAYE BUTTERFIELD v. CRAWFORD & COMPANY Court:TSC - Workers Comp Panel Attorneys: Mark W. Raines and R. Scott Vincent, Memphis, Tennessee, for the appellant, Crawford & Company George L. Morrison, Jr., Jackson, Tennessee, and Mary Dee Allen, Cookeville, Tennessee, for the appellee, Faye Butterfield Judge: LOSER 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-appellant insists the trial court erred in (1) considering an evaluating physician's opinion of the extent of the employee's medical impairment, as not being based on statutorily approved guidelines, and (2) the award of permanent partial disability benefits based on 42 percent to the body as a whole is excessive under the circumstances. As discussed below, the panel has concluded the award exceeds the maximum prescribed by statute and the judgment should be vacated and the cause remanded with instructions. http://www.tba.org/tba_files/TSC_WCP/butterfieldf.wpd
JEWEL POWERS v. JOHNSON CONTROLS, et al. Court:TSC - Workers Comp Panel Attorneys: Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellant, Second Injury Fund Ricky L. Boren, Jackson, Tennessee, for the appellee, Jewel Powers John D. Burleson and L. Beth Williams, Jackson, Tennessee, for the appellee, Johnson Controls Judge: LOSER 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 Second Injury Fund insists (1) the claim is barred by the one-year statute of limitations, (2) the employer is judicially estopped from asserting it had actual notice of the employee's pre-existing disability, when it denied such knowledge in its answer, and (3) the trial court erred in its apportionment of liability between the Fund and the employer. As discussed below, the panel has concluded the judgment should be affirmed http://www.tba.org/tba_files/TSC_WCP/powersj.wpd
DWAYNE E. ANDERSON v. STATE OF TENNESSEE Court:TCA Attorneys: Dwayne E. Anderson, appellant, pro se. Paul G. Summers, Attorney General, Michael E. Moore, Solicitor General, and Mark A. Hudson, Senior Counsel for the appellee, State of Tennessee. Judge: LILLARD First Paragraph: This is an appeal by a plaintiff prisoner seeking review of the Tennessee Claims Commission's dismissal of his case for lack of subject matter jurisdiction. The Claims Commission dismissed the plaintiff's petition, finding that it did not have jurisdiction to hear intentional tort claims. We affirm, finding that Tennessee Code Annotated S 9-8-307 does not confer jurisdiction on the Claims Commission to hear intentional tort claims or claims based on the negligent deprivation of constitutional rights. http://www.tba.org/tba_files/TCA/andersonde.wpd
CONTEMPORARY MEDIA, INC., d/b/a THE MEMPHIS FLYER, and ASHLEY FANTZ v. A. C. GILLESS, AS SHERIFF OF SHELBY COUNTY Court:TCA Attorneys: Donnie E. Wilson, Shelby County Attorney, Renee Allen-Walker, Senior Assistant County Attorney, and Brian L. Kuhn, Assistant County Attorney, Memphis, Tennessee, for the appellant, A.C. Gilless. Jerry E. Mitchell, John H. Dotson, and Craig C. Conley, Memphis, Tennessee, for the appellees, Contemporary Media, Inc. and Ashley Fantz. Judge: LILLARD First Paragraph: This is a petition brought under the Public Records Act. As part of an investigative story into the hiring practices of the county sheriff's department, a local newspaper publisher sought photographs from the personnel files of nineteen recently hired deputy sheriffs. The sheriff's department denied the request because the newly hired deputy sheriffs were in the pool of officers available for undercover work. The publisher then filed a petition seeking disclosure of the photographs under the Public Records Act. The trial court ordered that the sheriff's department make the photographs available to the publisher. The sheriff's department appealed. We reverse, finding that the requested photographs were exempted from the Act's disclosure requirements. http://www.tba.org/tba_files/TCA/contemporarymedia.wpd
CORRECTED VERSION: NEW FIRST PAGE IN THE MATTER OF THE ESTATE OF NELLIE K. ELLIS CHARLES W. MOORE, et al. v. CLYDE GREEN, et al. Court:TCA Attorneys: Homer R. Ayers, Goodlettsville, Tennessee, for the appellants Charles W. Moore and Linda Moore Maggart as executrix for the estate of William Herschel Moore, a/k/a Herschel Moore, deceased. Grant W. Smith, Goodlettsville, Tennessee, for the appellants Ray Swing, Juanita Swing Sircy, Jeanne Swing Pennington, and James Edward Swing. William H. Lassiter, Jr. and Jordan S. Keller, of Lassiter, Tidwell & Hildebrand, PLLC, Nashville, Tennessee, for the appellee, Clyde Green. William L. Harbison, J. Scott Hickman and Stephen D. Hurd of Sherrard & Roe, PLC, Nashville, Tennessee, for the appellee, First American National Bank. Judge: LILLARD First Paragraph: This case involves the interpretation of a remainder interest granted in a will. The decedent's husband bequeathed to the decedent a life estate in stock in a family-owned business, with the remainder to go 50% to his "living heirs" and 50% to "some deserving person in the music department at Belmont College." After her husband's death, the decedent purchased the remainder interest in the stock from all of the remaindermen. By virtue of this purchase, the decedent presumed that she owned the stock outright. At her death, her will included a bequest of the stock. Her heirs brought this declaratory judgment action, seeking a declaration that the decedent did not own the stock at her death. They argued that the decedent's purchase of the remainder interest in the stock was invalid because the remaindermen did not own a vested interest in the stock at the time of the husband's death. The trial court found that the case was barred by the statute of limitations and that the decedent had, in fact, acquired 100% ownership in the stock. The heirs now appeal. We affirm, finding that the remaindermen in the husband's will acquired a vested, transmissible remainder interest in the stock at the husband's death. http://www.tba.org/tba_files/TCA/estateofellis.wpd
GEORGE HAMILTON, V v. THE STARDUST THEATRE, INC., et al. Court:TCA Attorneys: Grant Smith, Goodlettsville, Tennessee, for the appellants, The Stardust Theatre, Inc., Gary Bridges, and Edward H. Arnold. Melissa M. Allen, Nashville, Tennessee, for the appellee, George Hamilton, V. Judge: CANTRELL First Paragraph: A singer/songwriter brought a copyright infringement suit against a country music theater, its manager and its owner. The defendants admitted to the unlicenced use of the plaintiff's trademark, but argued that the plaintiff did not suffer any damages from their infringement. The trial court did not agree, and awarded the plaintiff over $90,000. We reverse in part, because we believe that the evidence preponderates against the court's award of damages. http://www.tba.org/tba_files/TCA/hamiltong.wpd
EFFIE LOUISE HAYES v. ROGER STRUTTON, et al. Court:TCA Attorneys: Effie Louise Hayes, Chattanooga, Tennessee, pro se Arthur P. Brock and Daniel M. Stefaniuk, Chattanooga, Tennessee, for the Appellee, Mark G. Rothberger Gary E. Lester and Robert S. Grot, Chattanooga, Tennessee, for the Appellees, Roger Strutton, Betty Strutton and Gary Lester Judge: HAYES First Paragraph: Plaintiff/Appellant, Effie Louise Hayes, appeals the Hamilton County Circuit Court's judgment on the pleadings dismissing her complaint wherein she asserted that the Defendants/Appellees, Roger Strutton, Betty Strutton, Gary Lester and Mark Rothberger, defrauded her of real property. We affirm the judgment of the Circuit Court. http://www.tba.org/tba_files/TCA/hayeseffie.wpd
HEALTH COST CONTROLS, INC. v. RONALD GIFFORD Court:TCA Attorneys: H. Max Speight, Dresden, Tennessee, for the appellant, Ronald Gifford. Thomas H. Lawrence and John M. Russell, of Memphis, Tennessee, for the appellee, Health Cost Controls, Inc. Judge: LILLARD First Paragraph: This is an insurance case on remand from the Tennessee Supreme Court. The Court has directed us "to reconsider the case on its merits in accordance with . . . York v. Sevier County Ambulance Auth., 8 S.W.3d 616 (Tenn. 1999)," which was decided after the appellate briefs were filed in the initial appeal. In York, the Supreme Court established that the "made whole" doctrine, applicable in cases involving an insurer's subrogation rights, is also applicable in cases involving an insurer's right to reimbursement for amounts paid to the insured from another source. After careful consideration, we find that York does not affect our original disposition of this case, and, therefore, on remand, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/healthcostcontrols1.wpd
LARRY LITTLES v. DONAL CAMPBELL, et al. Court:TCA Attorneys: Larry Littles, Pro Se Paul G. Summers, Attorney General and Reporter, Arthur Crownover, II, Senior Counsel, For Appellees. Donal Campbell, James Dukes and Lisa Reynolds Judge: CRAWFORD First Paragraph: Petitioner, an inmate of the Tennessee Department of Correction, filed a petition for writ of certiorari, seeking judicial review of a disciplinary hearing at which the disciplinary board found him guilty of Conspiracy to Violate State Law and sentenced him to punitive segregation. The trial court granted respondents' motion to dismiss for, inter alia, failure to state a claim. We affirm. http://www.tba.org/tba_files/TCA/littleslarry.wpd
NATALYA MAZOR v. KENNETH ISAACMAN, D.D.S. Court:TCA Attorneys: Patricia L. Penn, Memphis, Tennessee, for the appellant, Natalya Mazor. R. Sadler Bailey, Memphis, Tennessee, for the appellee, Kenneth Isaacman, D.D.S. Judge: LILLARD First Paragraph: This is a dental malpractice case. The patient visited the defendant dentist in August 1997 for routine root canal surgery. After the surgery, the patient began experiencing "constant" pain in the tooth in which the root canal was performed. She was told by the defendant dentist that this was pain ordinarily felt after root canal surgery. In February 1999, the patient visited another dentist who discovered that a piece of a drill bit had been left inside patient's tooth during the previous root canal. In December 1999, the patient filed a lawsuit against the defendant dentist for dental malpractice. The defendant dentist filed a motion to dismiss, arguing that the patient did not bring the claim within the one year statute of limitations. This motion was granted and the patient now appeals. We reverse, finding that the patient had one year from the time she discovered or should have discovered the foreign object in which to file her lawsuit. http://www.tba.org/tba_files/TCA/mazorn.wpd
DAVID STOVALL v. CHRISTOPHER L. DUNN Court:TCA Attorneys: David Stovall, Only, Tennessee, Pro Se. Christopher L. Dunn, Columbia, Tennessee, Pro Se. Judge: KOCH First Paragraph: This appeal involves a state prisoner's civil rights action against a private lawyer appointed to represent him in a post-conviction proceeding. The prisoner filed suit against his former lawyer in the Circuit Court for Maury County alleging that the lawyer, motivated by racial bias, had intentionally deprived him of an opportunity to seek appellate review of an adverse decision of the Tennessee Court of Criminal Appeals and had refused to provide him with his case file. The lawyer moved for summary judgment on the ground that the prisoner's complaint was barred by the statute of limitations. The trial court granted the summary judgment, and the prisoner has appealed. We have determined that the trial court erred by granting the summary judgment because there is a genuine factual issue regarding whether the prisoner's complaint is time-barred. http://www.tba.org/tba_files/TCA/stovall v.wpd
VICTOR R. WINGO v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Victor Wingo, Pro Se. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General and Mark A. Hudson, Senior Counsel, for the appellee, Tennessee, Department of Correction. Judge: FARMER First Paragraph: Petitioner, an inmate in custody of the Tennessee Department of Correction, filed a petition for writ of certiorari seeking judicial review of a disciplinary hearing wherein the inmate was found guilty of assault and strong arm activity and received a deduction of one-year in good time and was upgraded to maximum security. The trial court granted respondent's motion to dismiss for failure to state a claim. We affirm. http://www.tba.org/tba_files/TCA/wingovictor.wpd
FREDERICK BEAUREGARD v. STATE OF TENNESSEE Court:TCCA Attorneys: Harriet S. Thompson, Bolivar, Tennessee, for the Appellant, Frederick Beauregard. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and James Walter Freeland, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Frederick Beauregard, appeals from the Hardeman County Circuit Court's denial of his petition for post-conviction relief. In May of 1997, Beauregard was convicted of the rape and incest of his thirteen-year-old daughter. He received an effective sentence of nine years for the convictions. Beauregard's convictions and sentences were later affirmed on direct appeal. See State v. Beauregard, 32 S.W.3d 681 (Tenn. 2000). On February 13, 2001, Beauregard timely filed his pro se petition for post-conviction relief which was amended following appointment of counsel. Following a hearing on the merits, the trial court denied Beauregard's petition. From this denial, Beauregard now appeals asserting that he received ineffective assistance of trial counsel in the following respects: (1) trial counsel was inadequately prepared for trial; (2) trial counsel failed to properly investigate, interview or call material witnesses at trial; (3) trial counsel failed to discuss trial strategy or the theory of the case with Beauregard; (4) trial counsel failed to review the jury list with Beauregard; (5) trial counsel failed to develop testimony with regard to the chain of custody of the rape kit and its reliability; and (6) trial counsel failed to provide expert proof to rebut the State's DNA expert. After review, we find no error and affirm the judgment of the post- conviction court. http://www.tba.org/tba_files/TCCA/beauregardf.wpd
STATE OF TENNESSEE v. HOLLY FANT Court:TCCA Attorneys: Tom W. Crider, District Public Defender, Trenton, Tennessee, for the Appellant, Holly Fant. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; Garry G. Brown, District Attorney General; and Bill Bowen, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Holly Fant, appeals from the sentencing decision of the Gibson County Circuit Court. Fant pled guilty, under an "open" plea agreement, to aggravated assault and, following a hearing, was sentenced to a term of four years in the Tennessee Department of Correction. Fant now appeals, asserting that the trial court failed to comply with the relevant sentencing principles and, therefore, erred in not granting her a non-incarcerative sentence. Because we find that the trial court failed to place on the record discernable enhancing or mitigating factors as is statutorily required, and failed to include findings with regard to the denial of an alternative sentence, the judgment is reversed and this case is remanded for a new sentencing hearing. http://www.tba.org/tba_files/TCCA/fantholly.wpd
ROBERT ANTHONY PAYNE v. STATE OF TENNESSEE Court:TCCA Attorneys: Mike Anderson, Nashville, Tennessee, for the appellant, Robert Anthony Payne. Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Kymberly L. A. Haas, Assistant District Attorney General, for the appellee, Robert Anthony Payne. Judge: WILLIAMS First Paragraph: The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief. He claims that counsel was ineffective for failing to timely discover the existence of another individual who was questioned regarding the aggravated assault and for failing to interview or cross-examine the victim of the assault. After review, we affirm the judgment from the post- conviction court. http://www.tba.org/tba_files/TCCA/paynera.wpd
STATE OF TENNESSEE v. JOSEPH WHITE Court:TCCA Attorneys: Garland Erguden, Assistant Public Defender; A C Wharton, Jr., Shelby County Public Defender, Memphis, Tennessee, for the Appellant, Joseph White. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Reginald Henderson, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Joseph White, was convicted by a Shelby County jury of rape and was sentenced to eight years in the Tennessee Department of Correction. On appeal, he argues that the evidence presented at trial was insufficient to support his conviction. After review, we find no error and affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/whitej1.wpd
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