Opinion Flash

June 21, 2002
Volume 8 — Number 107

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.

This Issue (IN THIS ORDER):
 
00 New Opinion(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06 New Opinion(s) from the Tennessee Court of Appeals
06 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


GLENN EDWIN BILYEU v. SHERWIN WILLIAMS COMPANY

Court:TSC - Workers Comp Panel

Attorneys:    

William M. Billips, Nashville, Tennessee for the appellant, Sherwin
Williams Company.

C. Michael Lawton, Nashville, Tennessee, for the appellee, Glenn Edwin
Bilyeu.                      

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
defendant appeals the trial judge's decision that the plaintiff
suffered the injury of occupational asthma in the course and scope of
his employment which resulted in a 75 percent permanent partial
disability to the body as a whole.  We affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TSC_WCP/bilyeuglenne.wpd

CHARLES THOMAS HUFF v. SAVAGE ZINC, INC 
(now known as Pasminco Zinc, Inc.)

Court:TSC - Workers Comp Panel

Attorneys:  

Daniel Lynch Nolan, Jr., Clarksville, Tennessee, attorney for the
appellant, Savage Zinc, Inc. (now known as Pasminco Zinc, Inc.)

Mark Allen Rassas, Clarksville, Tennessee, attorney for the appellee,
Charles Thomas Huff.

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 sustained a compensable injury and
awarded him eighty percent (80%) permanent partial disability to the
body as a whole.  We reverse the judgment of the trial court and
remand this case for further proceedings.

http://www.tba.org/tba_files/TSC_WCP/huffcharlesthomas.wpd

IN RE:  AMENDMENT TO SUPREME COURT RULE 7, ARTICLE VI, Section 6.02(a)

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/rule7_6_6.02.wpd

CHEMICAL RESIDENTIAL MORTGAGE CORP .
v. 
DONNA COOK COLLINS HODGE, formerly known as DONNA COOK COLLINS, a/k/a
DONNA COLLINS, COMMERCIAL CREDIT, INC., and  SOUTHERN FINANCIAL OF
JACKSON, TENNESSEE

Court:TCA

Attorneys:

Coburn Dewees Berry, Bass, Berry & Sims, PLC, of Nashville, Tennessee,
for the appellant, Commercial Credit, Inc. (n/k/a CitiFinancial, Inc.)

W. Stanworth Harris, Moss, Benton & Wallis, PLLC, of Jackson,
Tennessee, for the appellee, Southern Financial of Jackson, Tennessee.

Judge: LILLARD

First Paragraph:

This case involves the negligent impairment of a security interest. 
Plaintiff Chemical Residential Mortgage Corporation held a note and
deed of trust on the subject real property.  Subsequently, defendant
Commercial Credit, Inc., negligently executed and filed a release deed
on the property.  Later, defendant Southern Financial made a second
loan to the debtor secured by the same property.  After Chemical
Residential realized that its deed had been released in error, it
brought the instant declaratory judgment action against Southern
Financial and Commercial Credit, seeking a declaration that its deed
was senior to that of Southern Financial.  Southern Financial filed a
cross- claim against Commercial Credit for the impairment of its
security interest.  The trial court found in favor of Chemical
Residential and Southern Financial against Commercial Credit, and held
that Chemical Residential's deed was senior to that of Southern
Financial.  On the cross-claim, the trial court awarded Southern
Financial damages against Commercial Credit in an amount equal to the
total amount due on the secured note.  Commercial Credit now appeals,
arguing, inter alia, that the trial court's measure of damages was
erroneous.  We reverse on the issue of damages and remand for a
redetermination of those damages.

http://www.tba.org/tba_files/TCA/chemicalresidential.wpd

C.M.R., et al. v. L.S.A.

Court:TCA

Attorneys:  

Lisa M. Mack, Chattanooga, for the appellants, C.M.R. and S.L.R.

Larry D. Wright, Cleveland, for the appellee, L.S.A.                        

Judge: SUSANO

First Paragraph:

In this paternity action, the trial court dismissed the petition on
the ground that it was filed outside the period of the applicable
statute of limitations.   The petitioners appeal, arguing that the
trial court erred in finding that the statute of limitations for
paternity actions, T.C.A. S 36-2-306(a) (2001), begins to run on the
date of a child's 18th birthday.  We affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TCA/cmr.wpd

LANCE J. MORRIS v. COLLIS FOODS, INC. d/b/a WAFFLE HOUSE

Court:TCA

Attorneys: 

Irwin I. Cantor, Memphis, for Appellant

James F. Horner, Memphis, for Appellee                         

Judge: HIGHERS

First Paragraph:

This appeal involves a suit against a restaurant for a tort committed
by a waitress.  The appellant visited the restaurant on a crowded
night.  After the appellant's first waitress quit, another waitress
took appellant's order.  Following a long wait for his food, the
appellant approached his waitress and words were exchanged.  The
waitress threw an object at the appellant, which caused injures.  The
appellant filed suit against both the restaurant and waitress.  The
relevant portion of the appellant's suit against the restaurant relied
on the doctrine of respondeat superior.  The court granted a motion
for summary judgment filed by the restaurant, holding that the
waitress was not acting within the scope of her employment.  For the
following reasons, we affirm.

http://www.tba.org/tba_files/TCA/morrislancej.wpd

THE POLK COUNTY BOARD OF EDUCATION v. THE POLK COUNTY EDUCATION
ASSOCIATION

Court:TCA

Attorneys:

Richard L. Colbert, Nashville, Tennessee, for the Appellant the Polk
County Education Association.


D. Scott Bennett, Chattanooga, Tennessee, for the Appellee the Polk
County Board of Education.                         

Judge: SWINEY

First Paragraph:

A declaratory judgment action was filed by the Polk County Board of
Education ("The Board") seeking a declaration that it did not have to
arbitrate two grievances filed by the Polk County Education
Association ("Association") after the Board unilaterally implemented
two new policies.  The policies at issue involve increasing the
workday of the teachers by 30 minutes by requiring teachers to perform
"bus duty", and implementation of a dress code.  The Trial Court held
that lengthening the workday was a matter suitable for arbitration,
but concluded the dress code was not.  We affirm the Trial Court's
conclusion as it pertains to lengthening the workday, but vacate and
remand for further proceedings its decision on the arbitrability of
the dress code.

http://www.tba.org/tba_files/TCA/polkcobdofed.wpd

VULCAN MATERIALS COMPANY v. KITSMILLER AND COMPANY, et al.

Court:TCA

Attorneys:

K. Stephen Powers and Stephen G. Kabalka, Chattanooga, Tennessee, for
the appellants, Seaboard Farms of Chattanooga, Inc., and ConAgra
Poultry Company.

Gary E. Lester and Robert S. Grot, Chattanooga, Tennessee, for the
appellee, Vulcan Materials Company.                        

Judge: SUSANO

First Paragraph:

Vulcan Materials Company ("Vulcan") brought this action seeking to
enforce a materialman's lien against a piece of property at 1300
Market Street, Chattanooga ("the subject property"). Vulcan's
complaint originally named as defendants, Seaboard Farms of
Chattanooga ("Seaboard") - the owner of the subject property when
Vulcan first delivered materials to a construction site on the
property - and another entity that the plaintiff simply identified as
"Conagra."  It is alleged in the complaint that "Conagra" owned the
subject property at the time the lawsuit was filed.  The trial court
allowed Vulcan to amend its complaint to identify "Conagra" by its
correct name, i.e., ConAgra Poultry Company ("ConAgra Poultry"), and
held that the amended complaint related back to the date of filing of
the original complaint.  Presented with cross motions for summary
judgment, the trial court initially ruled that Vulcan violated the
statutory scheme pertaining to real property liens because it failed
to mail a notice of lien to ConAgra Poultry.  Upon Vulcan's motion to
alter or amend the judgment, the trial court reversed itself, ruling
that Vulcan had perfected its lien as to ConAgra Poultry by filing a
notice of lien in the Register of Deeds' office within 90 days of the
date of the last delivery of materials. The trial court then granted
Vulcan summary judgment. Seaboard and ConAgra Poultry appeal. We
affirm.

http://www.tba.org/tba_files/TCA/vulcan.wpd

STEVEN ROBERT WILLIAMS v. MARGARET SIMPSON WILLIAMS

Court:TCA

Attorneys:

Robert M. Brannon, Jr. and Timothy J. Francavilla, Memphis, Tennessee,
for the appellant, Steven Robert Williams.

LeeAnn Pafford Dobson, Germantown, Tennessee, for the appellee,
Margaret Simpson Williams.                         

Judge: FARMER

First Paragraph:

This appeal arises from a divorce action.  We are asked to review the
trial court's award of child custody, rehabilitative alimony and
attorney's fees to the wife.  We affirm.  We additionally award wife
reasonable attorney's fees incurred in this appeal.

http://www.tba.org/tba_files/TCA/williamsstevenrobert.wpd

STATE OF TENNESSEE v. MATRIN BECTON & ANTONIO SYKES

Court:TCCA

Attorneys:  

Michael Scholl, Memphis, Tennessee, for the appellants, Matrin Becton
and Antonio Sykes.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General;  William L. Gibbons, District Attorney
General; and Lorraine Craig and Terry Harris, Assistant District
Attorneys General, for the appellee, State of Tennessee.                        

Judge: WELLES

First Paragraph:

The Defendants, Matrin Becton and Antonio Sykes, were convicted by a
jury of first degree premeditated murder, especially aggravated
robbery, and two counts of especially aggravated kidnapping.  Both
defendants were sentenced by the same jury to life without the
possibility of parole for the first degree murder.  After a sentencing
hearing, the trial court sentenced both defendants to twenty-five (25)
years for each of the remaining counts and ordered all the sentences
to run consecutively, for effective sentences of life without parole
plus seventy-five (75) years.  On appeal, Defendant Sykes contends
that the evidence is insufficient to support the jury's verdict and
that the trial court erred in allowing testimony concerning a
statement made by the victim prior to his death.  Defendant Becton
argues that the trial court improperly denied his motion to sever,
erred in allowing certain photographs into evidence, erred in charging
the jury both in the guilt and sentencing phases, and erred in
imposing consecutive sentences.  We affirm the judgments of the trial
court.

http://www.tba.org/tba_files/TCCA/bectonm_opn.wpd

STATE OF TENNESSEE v. MATRIN BECTON & ANTONIO SYKES

Court:TCCA

HAYES CONCURRING

http://www.tba.org/tba_files/TCCA/bectonm_con.wpd

STATE OF TENNESSEE v. HOSEA GRANT

Court:TCCA

Attorneys:

Debra Fannin Graham, Oak Ridge, Tennessee, for the appellant, Hosea
Grant.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant
Attorney General; and Jan Hicks, Assistant District Attorney General,
for the appellee, State of Tennessee.                           

Judge: WADE

First Paragraph:

The defendant, Hosea Grant, was convicted of driving under the
influence.  See Tenn. Code Ann. S 55-10-401(a)(1).  The trial court
imposed a sentence of 11 months and 29 days and directed that the
defendant could apply for probation after 60 days in jail.  In this
appeal of right, the defendant argues that the evidence was
insufficient.  The judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/granth.wpd

STATE OF TENNESSEE v. LAQUENTON MONGER

Court:TCCA

Attorneys:   

Edwin C. Lenow, Memphis, Tennessee, for the appellant, LaQuenton
Monger.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Jennifer Nichols, Assistant District Attorney General,
for the appellee, State of Tennessee.                       

Judge: MCGEE OGLE

First Paragraph:

The appellant, LaQuenton Monger, was convicted by a jury in the Shelby
County Criminal Court of one count of first degree felony murder by
aggravated child abuse and one count of aggravated child abuse, for
which convictions the trial court imposed concurrent sentences of life
imprisonment and twenty years imprisonment in the Tennessee Department
of Correction.  The appellant filed an appeal, and this court reversed
the trial court's judgments on August 27, 2001.  Specifically, we
reversed the judgment in the aggravated child abuse case on the basis
that constitutional prohibitions against double jeopardy preclude dual
convictions of first degree felony murder by aggravated child abuse
and aggravated child abuse.  We reversed the judgment in the first
degree felony murder case due to the trial court's failure to instruct
the jury on lesser-included offenses.  In light of these dispositions,
the State filed an application for permission to appeal to our supreme
court pursuant to Tenn. R. App. P. 11.  The supreme court granted the
State's application for the sole purpose of remanding the cases to
this court for reconsideration in light of its November 29, 2001
opinion in State v. Godsey, 60 S.W.3d 759 (Tenn. 2001).  Upon
reconsideration, we reinstate the judgment of the trial court in the
aggravated child abuse case and leave undisturbed our original
disposition of the felony murder case.

http://www.tba.org/tba_files/TCCA/mongerla.wpd

STATE OF TENNESSEE v. KENITH A. NATHANIEL A/K/A KENNETH ARNOLD
PHILLIPS A/K/A KENNY DENT

Court:TCCA

Attorneys:  

Ryan Brown, Covington, Tennessee, for the appellant, Kenith A.
Nathaniel a/k/a Kenneth Arnold Phillips a/k/a Kenny Dent.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Elizabeth Rice, District Attorney General;
and Gary Antrician, Assistant District Attorney General, for the
appellee, State of Tennessee.                        

Judge: WELLES

First Paragraph:

The Defendant was convicted by a Tipton County jury of theft of
property valued over $1000, a Class D felony.  After a sentencing
hearing, he was sentenced as a Range II multiple offender to five
years in the Department of Correction.  On appeal, the Defendant
contends that (1) the evidence is insufficient to support the jury's
verdict, (2) the trial court erred in admitting evidence of a prior
bad act, (3) the Defendant was identified from an impermissibly
suggestive lineup, and (4) the Defendant was never informed of the
existence of a possibly exculpatory videotape.  We affirm the judgment
of the trial court.

http://www.tba.org/tba_files/TCCA/nathanielka.wpd

STATE OF TENNESSEE v. ALLEN JEAN STEPHENS

Court:TCCA

Attorneys:

Colin Johnson, Dresden, Tennessee (at trial), and David L. Hamblen,
Union City, Tennessee (on appeal), for the Appellant, Allen Jean
Stephens.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; Thomas A. Thomas, District Attorney General; and
Allen Strawbridge, Assistant District Attorney General, for the
Appellee, State of Tennessee.                   

Judge: WITT

First Paragraph:

Allen Jean Stephens appeals from his Weakley County Circuit Court
conviction of Class D felony theft of property.  Stephens claims in
this appeal that the lower court erred in admitting the telephone
records of the business that the defendant defrauded in the course of
committing his crime.  Because we hold that these records were
erroneously but harmlessly admitted, we affirm.

http://www.tba.org/tba_files/TCCA/stephensallenjean.wpd

STATE OF TENNESSEE v. MICHAEL WILLIAMS

Court:TCCA

Attorneys:

A C Wharton, Jr., Shelby County Public Defender; Tony N. Brayton,
Assistant Public Defender (on appeal); and Mary K. Kent, Assistant
Public Defender (at trial), for the appellant, Michael Williams.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Patience Branham, Assistant District Attorney General,
for the appellee, State of Tennessee.                       

Judge: GLENN

First Paragraph:

The defendant, Michael Williams, was convicted of rape, a Class B
felony, and sentenced to thirty years in the Tennessee Department of
Correction as a violent offender.  In his appeal, he argues that the
evidence at trial was insufficient to support his conviction for rape.
 However, we disagree and affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/williamsmichael.wpd

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