Opinion FlashOctober 24, 2002Volume 8 — Number 188 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel STATE OF TENNESSEE v. CHRISTOPHER M. FLAKE Court:TSC OPINION DENYING PETITION FOR REHEARING http://www.tba.org/tba_files/TSC/flakecrehear.wpd JACKIE MARTIN v. LEAR CORPORATION Court:TSC Attorneys: Steven H. Trent and Jennifer P. Keller, Johnson City, Tennessee, for the appellant, Lear Corporation. James M. Davis, Morristown, Tennessee, for the appellee, Jackie Martin. Judge: DROWOTA First Paragraph: In this workers' compensation case, we are called upon to determine whether the trial court may admit a form C-32 medical report obtained by the plaintiff from the defendant's "consulting expert," a physician who made a physical examination of the plaintiff. The defendant claims that the physician it hired to make an independent medical examination of the plaintiff is protected from compelled testimony under Tennessee Rule of Civil Procedure 26.02(4)(B). However, the Tennessee's Workers' Compensation Law, specifically Tennessee Code Annotated sections 50-6- 204(f) and 50-6-235(c), clearly permits the admission of testimony, including a medical report form, of an examining physician paid for by the employer in a workers' compensation case. Therefore, we hold that, pursuant to Tennessee Code Annotated sections 50-6-204(f) and 50-6-235(c), the trial court did not err by admitting the physician's medical report. http://www.tba.org/tba_files/TSC/martinj.wpd HAROLD WAYNE NICHOLS v. STATE OF TENNESSEE (Originally filed 10/7/02, today with a correction on page 16.) Court:TSC Attorneys: Ardena J. Garth, District Public Defender, and Mary Ann Green, Assistant Public Defender, Chattanooga, Tennessee; Donald E. Dawson, Post-Conviction Defender, and Catherine Y. Brockenborough, Assistant Post-Conviction Defender, Nashville, Tennessee, for the appellant, Harold Wayne Nichols. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General; Gill Robert Geldreich, Assistant Attorney General; William H. Cox, III, District Attorney General; and C. Leland Davis, C. Caldwell Huckabay, and Glenn R. Pruden, Assistant District Attorneys General, for the appellee, State of Tennessee. David M. Eldridge and Jeanne L. Wiggins, Knoxville, Tennessee, for Amicus Curiae, The National Association of Criminal Defense Lawyers and The Tennessee Association of Criminal Defense Lawyers. Judge: ANDERSON First Paragraph: The petitioner, Harold Wayne Nichols, filed post-conviction petitions seeking relief from his conviction for felony murder, his sentence of death, and his numerous convictions for aggravated rape, first degree burglary, and larceny upon the basis of ineffective assistance of counsel, as well as other legal grounds. After conducting several evidentiary hearings, the trial court denied relief as to the felony murder conviction and sentence of death, but granted partial relief by ordering new sentencing hearings as to the remaining convictions. The Court of Criminal Appeals concluded that the trial court erred by allowing the petitioner to assert his right against self-incrimination during the post-conviction proceedings, yet upheld the trial court's judgment in all other respects. After reviewing the record and applicable authority, we conclude: (1) that the petitioner was not denied his right to the effective assistance of counsel based on the failure to investigate and challenge his confessions as false; (2) that the petitioner was not denied his right to the effective assistance of counsel based on the failure to challenge the legality of his arrest; (3) that the petitioner was not denied his right to the effective assistance of counsel at the sentencing phase of his capital trial based on the failure to present additional mitigating evidence; (4) that the petitioner was not denied his right to the effective assistance of counsel at the sentencing phase of his capital trial based on the failure to object to misconduct by the prosecution; (5) that the petitioner was not denied his right to the effective assistance of counsel at the sentencing phase of his capital trial based on the failure to request mitigating instructions; (6) that the petitioner was not denied his right to the effective assistance of counsel at the sentencing phase of his capital trial based on the failure to raise issues regarding the constitutionality of capital punishment; (7) that the petitioner was not denied his right to the effective assistance of counsel at the sentencing phase of his capital trial based on the failure to object to the discovery of notes prepared by a defense psychologist on self-incrimination grounds; (8) that the Court of Criminal Appeals did not err in refusing to remand the case for additional DNA testing; (9) that the Court of Criminal Appeals erred by addressing the issue of whether the petitioner had a right against self-incrimination in this post-conviction proceeding but the error had no effect on the outcome; and (10) that the trial court's findings were not clearly erroneous and cumulative error did not require the reversal of the petitioner's convictions. Accordingly, we affirm the Court of Criminal Appeals' judgment. http://www.tba.org/tba_files/TSC/nicholshwcorr.wpd PERO'S STEAK AND SPAGHETTI HOUSE and LOUIS INN v. ELIZABETH JEAN HINKLE LEE and FIRST AMERICAN NATIONAL BANK and FIRST TENNESSEE BANK NATIONAL ASSOCIATION Court:TSC Attorneys: James S. Tipton, Jr., and W. Morris Kizer, Knoxville, Tennessee, for plaintiffs-appellants, Pero's Steak and Spaghetti House and Louis Inn. Stephen G. Anderson, Knoxville, Tennessee, for defendant-appellee, First Tennessee Bank National Association. Judge: DROWOTA First Paragraph: The issue in this appeal is whether the trial court and the Court of Appeals erred in refusing to apply the discovery rule to the three-year statute of limitations for conversion of negotiable instruments and in granting the defendant's motion for partial summary judgment as to checks allegedly converted more than three years before the plaintiffs filed suit on August 29 and 30, 1996. After fully and carefully considering the record and the relevant authorities, we conclude that the discovery rule does not apply to toll the statute of limitations when the claim alleged is conversion of a negotiable instrument. This conclusion applies both to the former statute of limitations, Tennessee Code Annotated section 28-3-105, and the current statute of limitations, Tennessee Code Annotated section 47-3-118(g). Therefore, in the absence of fraudulent concealment, a cause of action for conversion of a negotiable instrument accrues, and the statute of limitations begins to run, when the instrument is negotiated. With respect to the plaintiffs' claim that the defendant is guilty of fraudulent concealment, we are of the opinion that the record contains no genuine issue of material fact precluding summary judgment. Accordingly, the judgment of the Court of Appeals affirming the trial court's grant of partial summary judgment to the defendant is affirmed on the separate grounds stated herein. http://www.tba.org/tba_files/TSC/peros.wpd LARRY DEAN SEAL v. CHARLES BLALOCK & SONS, INC., et al. (Corrects opinion originally filed 10/11/02, correction is on page 3.) Court:TSC Attorneys: David M. Sanders, Knoxville, Tennessee, for the appellant, Travelers Insurance Company. James M. Davis, Morristown, Tennessee, for the appellee, Larry Dean Seal. Judge: BIRCH First Paragraph: In this workers' compensation case, we are asked to determine whether the trial court erred in awarding benefits for a 93% vocational disability to the body as a whole. The employer contends that compensation should be limited to an award for loss of a scheduled member. After reviewing the record and applicable authority, we conclude that the evidence preponderates against the trial court's award of benefits for disability to the body as a whole; accordingly, we modify the judgment of the trial court to provide for an award of 100% disability to the leg. Additionally, we find no error in the trial court's admission of the physical therapist's testimony. http://www.tba.org/tba_files/TSC/seallarrycorr.wpd MARCIE D. ALLEN, et al. v. RASHID AL-QADIR, et al. Court:TCA Attorneys: Denielle VonEnde Young, Douglas S. Hale, Franklin, For Appellant, Frank Redevelopment, LLC Rebecca E. Byrd, Franklin, For Appellees, Marcie D. Allen and Curtis Allen Judge: CRAWFORD First Paragraph: This is an appeal from an Order entered on a jury verdict. Plaintiffs sued to set aside a transfer of property to Defendant-purchaser because Plaintiffs had an pre-existing contract on the same property. Plaintiffs also sued the Defendant-seller for specific performance of that pre-existing contract. The Chancery Court entered judgment on the jury verdict, finding, inter alia, that Defendant-purchaser was not a bona fide purchaser for value without notice. The court denied Defendant-purchaser's motions for new trial and to alter or amend. Defendant-purchaser appeals. We affirm. http://www.tba.org/tba_files/TCA/allenmd.wpd VICTORIA LYNN BARNES v. DAVID JOSEPH BARNES Court:TCA Attorneys: Dorothy J. Pounders, Memphis, Tennessee, for the appellant, Victoria Lynn Barnes. Linda L. Holmes, Memphis, Tennessee, for the appellee, David Joseph Barnes. Judge: FARMER First Paragraph: This appeal arises from a change of custody, from the Mother to the Father, granted by the trial court. We affirm, with the modification that Father be enjoined from smoking when either child is present. http://www.tba.org/tba_files/TCA/barnesv.wpd MICHAEL WAYNE HOLEMAN v. DONNA RENE HOLEMAN Court:TCA Attorneys: Henry D. Fincher, Cookeville, Tennessee, for the appellant, Michael Wayne Holeman. Allison M. Barker, Crossville, Tennessee, for the appellee, Donna Rene Holeman. Judge: COTTRELL First Paragraph: After the trial court granted the parties a divorce, awarded them joint custody of their minor child, and granted primary physical custody of Child to Mother for the school year, Father filed a motion to reconsider the custody arrangement. The trial court denied the motion and Father appeals. We affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/holemanm.wpd SHERRY MAE HOPKINS v. JAMES FRANKLIN HOPKINS Court:TCA Attorneys: Scarlett Allen Beaty, Knoxville, Tennessee, for the Appellant, James Franklin Hopkins Rebecca Denise Slone, Dandridge, Tennessee, for the Appellee, Sherry Mae Hopkins Judge: GODDARD First Paragraph: In this appeal from the Circuit Court for Sevier County the Appellant, James Franklin Hopkins questions whether the Trial Court erred in awarding alimony to the Appellee, Sherry Mae Hopkins, and in ordering that all of Ms. Hopkins' debts be paid out of proceeds from the sale of the marital residence. Mr. Hopkins also asserts that Ms. Hopkins unlawfully disposed of marital assets. We affirm in part and modify in part. http://www.tba.org/tba_files/TCA/hopkinss.wpd JWT, L.P. v. PRINTERS PRESS, INCORPORATED, et al. Court:TCA Attorneys: Michael K. Radford, Brentwood, For Appellant, Printers Press, Incorporated, and Britain's, Inc. David S. Zinn, Brentwood, For Appellees, JWT, L.P., Hillsboro Plaza Enterprises, Hillsboro Plaza Associates, W. R. Weakley and Robert L. Trentham Joel M. Leeman, Nashville, For Appellees, Beckerland, Frank H. Becker, Donna L. Nagelson and Becker Trust Judge: CRAWFORD First Paragraph: Corporation sought compensatory and punitive damages for losses sustained as a result of neighboring business property owner's erection of a fence across a valid easement immediately adjacent to appellant's business. The chancery court denied corporation's claim for compensatory and punitive damages, but granted injunctive relief. Corporation appeals. We affirm. http://www.tba.org/tba_files/TCA/jwt.wpd SHELBY COUNTY DEPUTY SHERIFF'S ASSOCIATION, et al. v. SHERIFF A. C. GILLESS, JR. Court:TCA Attorneys: Alan Bryant Chambers, Memphis, Tennessee, for the appellants, Shelby County Deputy Sheriff's Association and Sargent C.D. Booker, President. Louis P. Britt and Fred E. Jones, Jr., Memphis, Tennessee, for the appellee, Sheriff A.C. Gilless, Jr. Judge: FARMER First Paragraph: The plaintiff in this case alleges that the creation of the position of civilian process server as approved by the Shelby County Civil Service Merit Board and by the criminal court under a fee petition violates the Shelby County Charter and the statutory duties of the Sheriff. The trial court dismissed the cause as being rendered moot by the approval of the fee petition. We reverse and remand. http://www.tba.org/tba_files/TCA/shelbysherf.wpd LON WALKER v. WILLIAM A. CAMERON Court:TCA Attorneys: Lon Walker, Pikeville, Tennessee, Pro Se. Frank Q. Vettori, Knoxville, Tennessee, for appellee, William A. Cameron. Judge: KOCH First Paragraph: This is a legal malpractice action which was dismissed on motion for summary judgment. Fourteen months before suit was filed the plaintiff sent a holographic letter to the Disciplinary Counsel complaining, in considerable detail, of the defendant's purported shortcomings. The trial judge held that the action was barred by the one-year statute of limitations. Judgment affirmed. http://www.tba.org/tba_files/TCA/walkerl.wpd STATE OF TENNESSEE v. JASON FISHER Court:TCCA Attorneys: Mack Garner, District Public Defender, Maryville, Tennessee, for the appellant, Jason Fisher. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Edward P. Bailey, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant pleaded guilty to six counts of forgery and was sentenced as a Range I, standard offender to an effective term of two years, which was suspended and ordered to be served on probation. Various probation violation warrants were filed, alleging that the defendant had failed to comply with the conditions of probation and, in general, was uncooperative with those in charge of supervising his sentence. Following a hearing on the fourth such warrant, the trial court revoked the defendant's probation and ordered him to serve the sentence originally imposed. The defendant appealed. Upon review of the record, we detect no abuse of the trial court's discretion and affirm the judgment. http://www.tba.org/tba_files/TCCA/fisherjason.wpd STATE OF TENNESSEE v. KEVIN ISLAND Court:TCCA Attorneys: Donna Armstard and Garland Ergaden, Assistant Public Defenders, Memphis, Tennessee, for the appellant, Kevin Island. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Camille McMullen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Kevin Island, was convicted by a jury of especially aggravated kidnapping, a class A felony, and aggravated robbery, a class B felony. After a sentencing hearing, the trial court sentenced the Defendant as a Range II offender to concurrent sentences of twenty-five years and twelve years, respectively, to be served in the Department of Correction. In this appeal, the Defendant contends that the evidence is not sufficient to sustain his convictions. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/islandk.wpd STATE OF TENNESSEE v. CORRIE J. JOHNSON Court:TCCA Attorneys: Richard W. Deberry, Assistant Public Defender, Camden, Tennessee, for the appellant, Corrie J. Johnson. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Robert Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Corrie J. Johnson, was convicted by a jury of selling cocaine, a Class C felony. The trial court sentenced the Defendant as a Range II multiple offender to eight years, to be served consecutively to two other sentences, for which the Defendant was on probation. The trial court also revoked the Defendant's probation on the two prior convictions. In this appeal as of right, the Defendant presents three issues: whether the evidence was sufficient to sustain his conviction, whether the trial court erred in its application of enhancing and mitigating factors when deciding the Defendant's sentence, and whether the trial court erred by revoking the Defendant's probation. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/johnsoncj1.wpd STATE OF TENNESSEE v. BOBBY L. MARSHALL Court:TCCA Attorneys: Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Bobby L. Marshall. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Katrina U. Earley, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Shelby County Criminal Court jury convicted the defendant, Bobby L. Marshall, of sexual battery, a Class E felony. The defendant was sentenced as a Range I, standard offender to sixteen months in the workhouse and fined two thousand dollars. The defendant appeals his conviction, claiming that the trial court erred by refusing to instruct the jury on consent. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/marshallb.wpd STATE OF TENNESSEE v. DONALD R. MOBBLEY Court:TCCA Attorneys: AC Wharton, Jr., District Public Defender; Tony N. Brayton, Assistant Public Defender (on appeal); and Mary Katherine Kent, Assistant Public Defender (at trial), for the appellant, Donald R. Mobbley. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephen P. Jones, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Shelby County Criminal Court jury convicted the defendant, Donald R. Mobbley, of burglary, a Class D felony, and the trial court sentenced him as a Range I, standard offender to two years in the workhouse. The defendant appeals, claiming that the evidence is insufficient to support his conviction and that the trial court erred by failing to instruct the jury on theft of property as a lesser included offense. We hold that the evidence is sufficient and that theft is not a lesser included offense of burglary. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mobbleyd.wpd KELVIN LEE YOUNG, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Carthel L. Smith, Jr., Lexington, Tennessee, for the appellant, Kelvin Lee Young, Jr. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Alfred Earls, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Petitioner was convicted by jury of one count of first degree murder and sentenced to life imprisonment with the possibility of parole. Petitioner filed for post-conviction relief, alleging ineffective assistance of counsel. Petitioner now appeals from the denial of relief from the post- conviction court. We affirm the denial of relief. http://www.tba.org/tba_files/TCCA/youngk.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 |
|
© Copyright 2002 Tennessee Bar Association
|