Opinion FlashJune 17, 2002Volume 8 — Number 103 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 FREEMAN DECORATING COMPANY v. JOSEPH W. BOWERS Court:TSC - Workers Comp Panel Attorneys: Randall C. Ferguson, Nashville, Tennessee, for the appellant, Joseph W. Bowers. Daniel C. Todd, Nashville, Tennessee, for the appellee, Freeman Decorating 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 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 judge found the plaintiff had suffered no compensable injury. The trial judge made contingent findings that if the injury was compensable the plaintiff would be entitled to ten percent (10%) vocational impairment to the body as a whole and that the defendants average weekly wage was $105.06. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/freemandecoratingco.wpd JAMES HANNAH v. YELLOW FREIGHT SYSTEM, INC. Court:TSC - Workers Comp Panel Attorneys: Ann Buntin Steiner, Nashville, Tennessee, for the appellant, Tommy Hannah, administrator of the Estate of James Hannah Stephen K. Heard and Jeffrey M. Beemer, Nashville, Tennessee, for the appellee, Yellow Freight System, Inc. Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, Jim Farmer, Director, Tennessee Department of Labor and Workforce Development's Workers' Compensation Division, Second Injury Fund. 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 appellant insists the trial court erred in (1) allowing an attorney's fee on 20 percent of the actual recovery, instead of on what the claimant would have recovered if he had lived to age 65, (2) refusing to award bad faith penalties, (3) determining the injured employee's average weekly wage, (4) disallowing unauthorized medical and drug expenses, and (4) disallowing benefits beyond the death of the injured worker. As discussed below, the judgment of the trial court is affirmed in part and the cause remanded for further consideration only of the attorney fee issue. http://www.tba.org/tba_files/TSC_WCP/hannahjames.wpd DANIEL KEITH LINDEMAN v. CHARLES SAIN, et al. Court:TSC - Workers Comp Panel Attorneys: Jim K. Duncan and Patrick J. McHale, Murfreesboro, Tennessee, attorneys for the appellant's, Charles Sain, individually and d/b/a Sain Drywall. D. Brett Burrow and Gordon C. Aulgur, Nashville, Tennessee, attorneys for the appellee, Summar Construction, LLC. Judge: BYERS First Paragraph: The trial court found that plaintiff was injured as a result of a work-related accident, was an employee of defendant Charles Sain d/b/a Sain Drywall [hereafter Sain] at the time of the accident and that Sain was a subcontractor of the defendant Summar Construction, LLC. The court further found that Sain had employed five or more people at one time and was subject to the requirement of the Worker's Compensation Act and that Sain would be responsible to Summar Construction for any payment made by them to the plaintiff for his injuries. We reverse the judgment which makes Sain liable and affirm the judgment as to Summar Construction, LLC. http://www.tba.org/tba_files/TSC_WCP/lindemandanielkeith.wpd EUGENE OSBORNE v. STATE INDUSTRIES, INC. Court:TSC - Workers Comp Panel Attorneys: D. Andrew Saulters, Nashville, Tennessee, for the appellant, Eugene Osborne. John Thomas Feeney and Cynthia DeBula Baines, Nashville, Tennessee, for the appellee, State Industries, Inc. Judge: WEATHERFORD 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 plaintiff, who claimed that he injured his back at work while painting traffic lines with a line striker, appeals the judgment of the trial court dismissing the case after finding that the plaintiff failed to prove he suffered an accident or injury arising out of and in the court and scope of his employment. We hold that the evidence does not preponderate against the trial court's findings. Accordingly, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC_WCP/osborneeugene.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0617.wpd JUDY C. BURROUGHS, INDIVIDUALLY, AND AS SURVIVING SPOUSE AND PERSONAL REPRESENTATIVE OF THE ESTATE OF HAROLD L. BURROUGHS, DECEASED v. ROBERT W. MAGEE, M.D. Court:TCA Attorneys: J. Houston Gordon and Jason G. Whitworth, Covington, Tennessee, for the Appellant, Judy C. Burroughs. Hubert B. Jones and Gary H. Nichols, Dyersburg, Tennessee, for the Appellee, Robert W. Magee, M.D. Judge: LILLARD First Paragraph: This is a personal injury and wrongful death case. The plaintiff and her husband were involved in an automobile accident. The plaintiff sued the driver of the other vehicle for her husband's wrongful death as well as for injuries she sustained in the accident. The plaintiff named the driver's physician as an additional tortfeasor, alleging that the physician negligently prescribed drugs to a known drug addict, negligently prescribed two contraindicated drugs, and negligently failed to warn his patient of the risks of driving while under the influence of the drugs. The trial court granted the physician's motion for summary judgment on the grounds that the physician had no duty to unidentifiable third parties such as the plaintiff. We affirm in part and reverse in part, finding that the physician owed a duty to the plaintiff and the decedent to warn his patient of the risks of driving while under the influence of the prescribed drugs. http://www.tba.org/tba_files/TCA/burroughsj.wpd MARTIN DOOR & WINDOW COMPANY, INC. v. THOMAS DONEGAN d/b/a THE CONSTRUCTION TEAM, et al. Court:TCA Attorneys: Todd E. Panther, Nashville, Tennessee, for appellant, Martin Door & Window Company, Inc. Gary M. Eisenberg, Clarksville, Tennessee, for appellee, Wallace Cornett, Jr. Judge: INMAN First Paragraph: Notwithstanding that plaintiff, a materialman, was aware that a general contractor was constructing a residence for the owner, upon non-payment of invoices submitted to the contractor, the plaintiff filed a lien against the owner's property, claiming a right by separate contract. The Chancellor disagreed, holding that only a contractor may file a lien and, further, that the plaintiff did not contract with the owner as alleged. We affirm. http://www.tba.org/tba_files/TCA/martindoor.wpd MARTIN DOOR & WINDOW COMPANY, INC. v. THOMAS DONEGAN d/b/a THE CONSTRUCTION TEAM, et al. Court:TCA COTTRELL CONCURRING http://www.tba.org/tba_files/TCA/martindoor_con1.wpd MARTIN DOOR & WINDOW COMPANY, INC. v. THOMAS DONEGAN d/b/a THE CONSTRUCTION TEAM, et al. Court:TCA KOCH CONCURRING http://www.tba.org/tba_files/TCA/martindoor_con2.wpd KAILA B. WILLIAMS SANDERS, Individually and as Next of Kin to CATHI D. WILLIAMS, Deceased, v. TRACIE A. TRAVER, M.D., ALL WOMEN'S CARE, P.C., SHELBY B. SHIVERS, M.D., MARYVILLE ANESTHESIOLOGISTS, P.C., d/b/a MARYVILLE ANESTHESIA GROUP, and BLOUNT MEMORIAL HOSPITAL INCORPORATED Court:TCA Attorneys: Sidney Gilreath, Dianne E. Lashmit, and Timothy A. Housholder, Knoxville, Tennessee, for Appellant, Kaila B. Williams Sanders. Carl P. McDonald, Maryville, Tennessee, for Appellee, Blount Memorial Hospital, Incorporated. Judge: FRANKS First Paragraph: The Trial Judge dismissed the action filed pursuant to the Governmental Tort Liability Act on the ground the statute of limitations had run, and Tenn. R. Civ. P. 6.01 did not apply to governmental entities. On appeal, we reverse. http://www.tba.org/tba_files/TCA/sandersk.wpd TENNSCO CORPORATION v. ELIAS H. ATTEA, JR. Court:TCA Attorneys: James A. Freeman, III, Richard H. Sforzini, Jr., and Talmage M. Watts, Nashville, Tennessee, for the appellant, Elias H. Attea, Jr. Coburn Dewees Berry and Kim B. Watson, Nashville, Tennessee, for the appellee, Tennsco Corporation. Judge: CANTRELL First Paragraph: This is a complaint to remove a cloud on the title to two parcels of property. The Chancery Court of Williamson County granted summary judgment to the plaintiff, holding that as a matter of law a restrictive covenant in a prior deed in the plaintiff's chain of title did not run with the land and did not create an equitable servitude. We affirm. http://www.tba.org/tba_files/TCA/tennscocorp.wpd CHARLES B. WATSON v. MARGARET O. WATSON ASHLEY, et al. Court:TCA Attorneys: William E. Simms, Fayetteville, Tennessee, for the appellants, Margaret O. Watson Ashley, Jerry D. Ashley, Jarrett D. Ashley, Jana Ashley Smith, Timmy Smith, Ruby Elliott Watson, and Margaret O. Watson Ashley, Executrix of the Estate of Clyde E. Watson, deceased. Mark Stewart, Winchester, Tennessee, for the appellee, Charles B. Watson. Judge: CANTRELL First Paragraph: In this action to set aside a deed, the Circuit Court of Franklin County held that the deed had been procured by persons in a confidential relationship with the grantor and that the presumption of undue influence had not been rebutted by clear and convincing evidence. We affirm the trial court's action in setting aside the deed. http://www.tba.org/tba_files/TCA/watsoncb.wpd STATE OF TENNESSEE v. DAVID W. BASS Court:TCCA Attorneys: John M. McFarland, Kingston, Tennessee, for the appellant, David W. Bass. Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, Assistant Attorney General; and Frank Harvey, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WADE First Paragraph: The defendant, David W. Bass, was indicted for driving under the influence, violation of the implied consent law, failure to appear, and operating a motor vehicle with an improper taillight. Pursuant to a plea agreement, the defendant entered a plea of guilt to driving under the influence, first offense. After the entry of his plea but before sentencing, the defendant sought to withdraw his plea, arguing that it was not knowingly and voluntarily made. The trial court denied the motion and imposed a sentence of eleven months and twenty-nine days, with all but three days suspended. In this appeal of right, the defendant contends that the trial court erred by denying the motion to withdraw the guilty plea. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/bassdavidw.wpd CUMECUS R. CATES v. STATE OF TENNESSEE Court:TCCA Attorneys: Cumecus R. Cates, Wartburg, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall E. Nichols, District Attorney General; and S. Jo Helm, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: Pursuant to a plea agreement, the Petitioner pled guilty to four felony drug offenses and received an effective sentence of sixteen years. After a hearing, the trial court ordered the sentence to be served in the Tennessee Department of Correction. The Petitioner filed a petition for post-conviction relief, which the trial court dismissed without a hearing for failure to state a colorable claim. Concluding that the Petitioner stated a colorable claim, we reverse and remand for a hearing. http://www.tba.org/tba_files/TCCA/catescr.wpd STATE OF TENNESSEE v. GREGORY DUNNORM Court:TCCA Attorneys: J. Thomas Marshall, Jr., District Public Defender, for the appellant, Gregory Dunnorm. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Gregory Dunnorm, was convicted of Class D felony evading arrest, the simple assault of LaDeana Ellis, vandalism, and second offense driving on a suspended license. See Tenn. Code Ann. SS 39-16-603, 39-13-301, 39-14-408, 55-50-504. He had been charged with the aggravated assault of LaDeana Ellis and was acquitted on charges of simple assault of Sonda Ellis and aggravated assault of Officer Karen Wehenkel. While granting supervised probation, the trial court sentenced the defendant to concurrent terms of two years for evading arrest and 11 months, 29 days for each of the misdemeanor convictions. In this appeal of right, the defendant asserts (1) that the evidence was insufficient to support the convictions for evading arrest, assault, and vandalism; (2) that the trial court erred by permitting the state to cross-examine the defendant regarding his affidavit of income; (3) that the trial court erred by failing to instruct the jury regarding the lesser included offenses of Class D felony evading arrest; and (4) that the trial court erred by declining to instruct the jury on the defense of effective consent. Because the evidence was insufficient to support the defendant's conviction for Class D felony evading arrest and because the trial court erred by failing to instruct on the lesser included offense of Class E felony evading arrest, the conviction is reversed and the cause remanded. Otherwise, the judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/dunnormgregory_opn.wpd STATE OF TENNESSEE v. GREGORY DUNNORM Court:TCCA TIPTON CONCURRING http://www.tba.org/tba_files/TCCA/dunnormgregory_con.wpd STATE OF TENNESSEE v. CHRISTOPHER FLAKE Court:TCCA Attorneys: Leslie I. Ballin and Steve E. Farese, Memphis, Tennessee, for the appellant, Christopher Flake. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WADE First Paragraph: The defendant, Christopher Flake, was convicted of two counts of first degree murder. After the defendant waived his right to have a jury determine punishment, the trial court imposed consecutive sentences of life imprisonment without the possibility of parole. In this appeal of right, the defendant asserts (1) that he established the affirmative defense of insanity by clear and convincing evidence; (2) that the trial court erred by denying his motion to suppress; (3) that the trial court erred by refusing his request to present the opening and rebuttal closing arguments; (4) that the trial court erred by dismissing a potential juror for cause; (5) that the trial court erred by admitting photographs of the victims; and (6) that the trial court erred by denying his request for a mistrial. Because the defendant proved by clear and convincing evidence that he was insane at the time of the shootings, the judgments of conviction are reversed. The defendant is declared not guilty by reason of insanity and the cause is remanded for proceedings pursuant to Tennessee Code Annotated S 33-7-303. http://www.tba.org/tba_files/TCCA/flakec.wpd STATE OF TENNESSEE v. JOHN WESLEY JOHNSON Court:TCCA Attorneys: John Wesley Johnson, Trenton, Tennessee, Pro Se (on appeal), and Scott G. Kirk, Jackson, Tennessee (at trial), for the appellant, John Wesley Johnson. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons and Terrell G. Graves, District Attorneys General Pro Tem, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, John Wesley Johnson, was indicted by the Gibson County Grand Jury for one count of desecration of a venerated object, to wit: a place of burial, a class A misdemeanor. He was convicted by a jury, sentenced to eleven months and twenty-nine days in the county jail, placed on probation, and ordered to pay restitution in the amount of $2,574. The appellant, proceeding pro se, filed an untimely notice of appeal. This court, upon motion of the appellant, waived timely filing of the appeal; accordingly, the appeal is properly before this court. On appeal, the appellant raises the following issues: (1) "w[h]ether the trial court reviewed the record"; (2) "w[h]ether the (State) conspira[cy] used their position to withhold facts in order to receive a conviction"; (3) "w[h]ether the public officers used the court to reach their gold"; and (4) "w[h]ether the trial court erred in its review of the records and facts of law as to this case." Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/johnsonj1.wpd WENDY McFADDEN v. STATE OF TENNESSEE Court:TCCA Attorneys: S. Jasper Taylor, IV, Bells, Tennessee, for the Appellant, Wendy McFadden. Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich, Assistant Attorney General; Garry Brown, District Attorney General; and Theodore H. Neumann, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pled guilty to second degree murder, and the trial court imposed an agreed sentence of fifteen years in the Department of Correction. The Defendant subsequently filed for post- conviction relief, alleging that she did not enter a voluntary and knowing guilty plea and alleging that she received ineffective assistance of counsel in conjunction with her plea. After an evidentiary hearing, the trial court denied relief. This appeal followed. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mcfaddenw.wpd STATE OF TENNESSEE v. TIMOTHY D. McGLORY Court:TCCA Attorneys: David P. Byrne, Nashville, Tennessee, for the Appellant, Timothy D. McGlory. Paul G. Summers, Attorney General & Reporter; Christine M. Lapps, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner appeals the Davidson County Criminal Court's denial of post-conviction relief. Because the record supports the rejection of the petitioner's claims that his guilty pleas to two counts of aggravated robbery were unknowing and the result of ineffective assistance of trial counsel, we affirm the denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/mcglorytimothyd.wpd STATE OF TENNESSEE v. ANTHONY MURFF, aka ANTHONY MUFF Court:TCCA Attorneys: Gary F. Antrican, District Public Defender, and Julie K. Pillow, Assistant Public Defender, for the appellant, Anthony Murff. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Elizabeth T. Rice, District Attorney General; Tracey Anne Brewer, Assistant District Attorney General; and James Walter Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted by a Lauderdale County Circuit Court jury of especially aggravated robbery, a Class A felony, and sentenced by the trial court as a Range III, persistent offender to sixty years, to be served at 100%, in the Tennessee Department of Correction. He raises three issues on appeal: (1) whether the evidence was sufficient to support his conviction; (2) whether the trial court erred in using his prior Illinois convictions to classify him as a persistent offender; and (3) whether the trial court erred in its application of enhancement factors. We conclude that the evidence was more than sufficient to support the defendant's conviction, and that his prior convictions in Illinois qualified him as a persistent offender. We further conclude that, although the trial court erred in applying three enhancement factors, the remaining enhancement factors justify the sixty-year sentence imposed in this case. Accordingly, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/murffa.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/paynera1.wpd STATE OF TENNESSEE v. FREDRICK DEVILL RICE Court:TCCA Attorneys: Mike A. Little, Chattanooga, Tennessee, for the appellant, Fredrick Devill Rice. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; William H. Cox, III, District Attorney General; Christopher David Poole, Assistant District Attorney General; and Barry A. Steelman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Fredrick Devill Rice, was convicted by a Hamilton County Criminal Court jury of first degree premeditated murder and first degree felony murder. The trial court merged the two convictions and sentenced the defendant to life imprisonment. The defendant appeals, claiming that (1) the evidence is insufficient to support his merged convictions; (2) the trial court erred by admitting a videotaped search of the defendant's residence into evidence; and (3) the state argued outside of the record twice during closing argument. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/ricefd.wpd STATE OF TENNESSEE v. OLIVIA WASHBURN Court:TCCA Attorneys: Mike Mosier, Jackson, Tennessee, for the appellant, Olivia Washburn. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James G. Woodall, District Attorney General; and Bill R. Martin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: A Henderson County Circuit Court jury found the defendant, Olivia Washburn, guilty of the sale and delivery of .5 grams or more of cocaine, Class B felonies, and assessed two separate $25,000 fines. The trial court sentenced the defendant as a Range I, standard offender, imposed an eight-year sentence to be served in the Tennessee Department of Correction, and merged the fines so that the defendant was ordered to pay a total of $25,000. On appeal, the defendant argues that the trial court erred in concluding both that her statement to law enforcement officers was voluntary and that the evidence against her was sufficient, as well as in allowing into evidence a videotape not produced to the defense. These assignments are without merit. However, we conclude that the trial court erred in admitting the defendant's statement without considering whether the probative value of the numerous references to other drug offenses outweighed their prejudicial effect. The judgments of the trial court are reversed, and the matter is remanded for a new trial. http://www.tba.org/tba_files/TCCA/washburno.wpd Reward for Voting Date: June 10, 2002 Opinion Number: 02-073 http://www.tba.org/tba_files/AG/2002/OP73.pdf Interchange between General Sessions Judge and Chancellor by Private Act Date: June 12, 2002 Opinion Number: 02-074 http://www.tba.org/tba_files/AG/2002/OP74.pdf Authority of criminal court clerks and availability of records Date: June 12, 2002 Opinion Number: 02-075 http://www.tba.org/tba_files/AG/2002/OP75.pdf 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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