Opinion FlashJune 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.
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Howard H. Vogel
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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