Opinion FlashNovember 12, 2002Volume 8 — Number 199 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 GEORGE THOMAS ARGO v. BRENTWOOD SERVICES ADMINISTRATORS, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Stacey Billingsley Cason, Nashville, Tennessee, for the appellant, Local Government Workers' Compensation Fund Barry H. Medley, McMinnville, Tennessee, for the appellee, George Thomas Argo 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 (1) the trial court erred in failing to dismiss the claim based on the "last injurious injury doctrine," (2) the award of permanent partial disability benefits based on 37.5 percent to the body as a whole is excessive, and (3) the trial court erred in commuting the award to a lump sum. The employee insists he is entitled to receive benefits from one insurer or the other. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/argogeorget.wpd CATHY JUDKINS v. FINDLAY INDUSTRIES/GARDNER MANUFACTURING DIVISION Court:TSC - Workers Comp Panel Attorneys: Bruce Timothy Pirtle and Mary M. Little, McMinnville, Tennessee, for the appellant, Findlay Industries/Gardner Manufacturing Division. Barry H. Medley, McMinnville, Tennessee for the appellee, Cathy Judkins. Judge: INMAN 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. This complaint was non-specific as to the occurrence of a job-related accident and any compensable injuries. The essential thrust of the appeal by the employer is directed to the issue of whether the purported failure of the employee to reveal pre-existing medical conditions to an independent medical examiner nullifies his testimony. http://www.tba.org/tba_files/TSC_WCP/judkinscathy.wpd CATHY MCCARSON v. AQUA GLASS CORPORATION Court:TSC - Workers Comp Panel Attorneys: Charles L. Hicks, Camden, Tennessee, for the appellant, Cathy McCarson. John Lee Williams, Waverly, Tennessee, for the appellee, Aqua Glass Corporation. Judge: INMAN 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 plaintiff attributed a host of complaints to the rigors of her employment as gradually occurring or occupationally based. The medical proof was varied and indecisive leading the trial judge to conclude that she failed to carry the burden of proof. We affirm. http://www.tba.org/tba_files/TSC_WCP/mccarsoncathy.wpd LENDA T. MCCLAIN v. HOLIDAY RETIREMENT CORPORATION Court:TSC - Workers Comp Panel Attorneys: William L. Underhill and Michael L. Underhill, Madison, Tennessee, for the appellant, Lenda T. McClain. Richard C. Mangelsdorf, Jr., and Mark W. Honeycutt, II, Nashville, Tennessee, for the appellee, Holiday Retirement Corporation. Judge: INMAN 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 plaintiff appeals the judgment dismissing her suit for benefits she attributes to an injury sustained during the course and scope of her employment. Following the presentation of her evidence, the court granted the defendant's Rule 41.02 Motion for Involuntary Dismissal upon a finding that she failed to carry her burden of proving an accidental injury arising out of employment sufficient to establish a prima facie case of entitlement to benefits. The dispositive issue on appeal is whether the involuntary dismissal was appropriately granted. http://www.tba.org/tba_files/TSC_WCP/mcclainlendat.wpd JIMMY RHODES V. CITY OF MONTEAGLE Court:TSC - Workers Comp Panel Attorneys: Paul D. Cross, Monteagle, TN for the appellant, Jimmy Rhodes David F. Hensley, Chattanooga, TN for the appellee, City of Monteagle Judge: GRAY 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 the suit barred by the statute of limitations and granted summary judgment in favor of the City of Monteagle. We affirm. http://www.tba.org/tba_files/TSC_WCP/rhodesjimmy.wpd ROYAL & SUNALLIANCE v. JOHN H. SEAY Court:TSC - Workers Comp Panel Attorneys: Diana C. Benson and Larry G. Trail, Murfreesboro, Tennessee, for the appellant, Royal & Sunalliance. William J. Butler, Lafayette, Tennessee, for the appellee, John H. Seay. Judge: INMAN 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 employee sustained an 80 percent vocational disability to his left leg. The employer concedes that Mr. Seay has a malfunctioning leg, but that the award is excessive. We affirm the judgment. http://www.tba.org/tba_files/TSC_WCP/royalvjohnseay.wpd HOWARD R. SULLINS, JR. v. WINN'S PRECISION, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Terry Lee Hill, Nashville, Tennessee, for the appellants, Wynn's Precision, Inc. and ITT Hartford Specialty Risk Service. William Edward Farmer, Lebanon, Tennessee, for the appellee, Howard R. Sullins, Jr. Judge: INMAN 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. This is a carpal tunnel syndrome complaint involving the plaintiff's right arm. He had previously suffered a ruptured biceps tendon involving his right arm, and returned to work after successful surgery. At the time of trial he was still employed and had not been treated for carpal tunnel syndrome for eighteen months. The trial judge found that the plaintiff had a vocational disability of 50 percent to his right arm. We affirm. http://www.tba.org/tba_files/TSC_WCP/sullinshowardrjr.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1112.wpd ROWANA BOBO AND KEVIN BOBO v. LEANTHER G. WILLETT Court:TCA Attorneys: R. Layne Holley, Memphis, TN, for Appellant David Hill, Corey Leathers, Memphis, TN, for Appellees Judge: HIGHERS First Paragraph: This case involves bodily injuries arising from a motor vehicle accident that occurred on October 19, 1998 in Memphis, Tennessee. The trial court returned a verdict for the Plaintiffs. Plaintiffs then filed a motion for new trial or alternatively for an additur. The trial court granted Plaintiff's motion for new trial and this appeal ensued. http://www.tba.org/tba_files/TCA/bobo.wpd STATE OF TENNESSEE v. ERIC BERNARD CHISM Court:TCCA Attorneys: C. Mark Donahoe, Jackson, Tennessee (on appeal); and Scott G. Kirk, Jackson, Tennessee (at trial), for the Appellant, Eric Bernard Chism. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: A Madison County jury convicted the defendant, Eric Bernard Chism, of first-degree murder, especially aggravated kidnapping, aggravated rape, and aggravated sexual battery in connection with the abduction and homicide of Beatrice Sue Westbrooks. The defendant received an effective sentence of life plus 25 years. On appeal, the defendant argues: (1) his right to a speedy trial was violated; (2) the trial court erroneously severed his case from that of his co-defendant; (3) the evidence is insufficient to support his convictions; (4) the trial court erroneously admitted unfairly prejudicial and inflammatory photographs; (5) the trial court improperly ruled that his prior narcotics conviction could be used for impeachment should he elect to testify; (6) a new trial should have been granted based on newly discovered evidence, but, at any rate, the hearing on the motion for new trial should have been continued until the results of additional forensic testing were available; and (7) the trial court erred in imposing consecutive sentencing. After a thorough review of the record, we affirm the judgments and sentencing of the trial court. http://www.tba.org/tba_files/TCCA/chisme.wpd STATE OF TENNESSEE v. EDWARD COLEMAN AND SEAN WILLIAMS Court:TCCA Attorneys: C. Anne Tipton, Memphis, Tennessee, for the appellant, Edward Coleman. Mark Mesler (on appeal) and Howard Manis (at trial), Memphis, Tennessee, for the appellant, Sean Williams. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephen P. Jones and Amy P. Weirich, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Shelby County jury convicted the defendants, Edward Coleman and Sean Williams, of premeditated murder, felony murder, especially aggravated kidnapping, and aggravated kidnapping. The trial court merged the two murder convictions and sentenced the defendants to life. The trial court merged the kidnapping convictions and sentenced Coleman and Williams to twenty-two years and eighteen years, respectively, to be served consecutively to the life sentence. In this appeal of right, both defendants raise the following issues: (1) whether the evidence was sufficient to support the convictions; (2) whether the trial court erred in denying the defendants' motion to sever; (3) whether the state failed to provide the defendants with timely discovery; and (4) whether the trial court erred in permitting testimony that Williams shot a witness in this case on a prior occasion. In addition, Coleman raises the following issues: (1) whether the trial court erred in permitting testimony regarding the loss of Coleman's leg, allegedly caused by the victim; and (2) whether the state knowingly presented perjured and conflicting testimony. Williams also raises the following issues: (1) whether the trial court erred in admitting photographs of the victim's body; and (2) whether the state during closing argument violated the Bruton rule by referring to Coleman's incriminating statement regarding Williams. After reviewing the record, we affirm the convictions for premeditated first degree murder but reverse and dismiss the other charges based upon insufficiency of the evidence. http://www.tba.org/tba_files/TCCA/colemanw.wpd STATE OF TENNESSEE v. ANTONIUS HARRIS Court:TCCA Attorneys: Sam J. Watridge, Humboldt, Tennessee, for the appellant, Antonius Harris. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Garry G. Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Gibson County jury convicted the defendant of two counts of especially aggravated kidnapping, one count of attempted second degree murder, two counts of aggravated assault, and one count of felony reckless endangerment. The trial court ordered him to serve an effective sentence of thirty- one years. On appeal, the defendant argues: (1) the trial court should have dismissed the superseding indictment; (2) there was insufficient evidence to support all of his convictions except for one aggravated assault conviction; (3) the trial court should have instructed the jury on self-defense; (4) the trial court should have instructed the jury on facilitation on all charged offenses and attempted voluntary manslaughter as a lesser-included offense of attempted first degree murder; and (5) his sentences were excessive. We set aside one sentence for aggravated assault because it was merged into the conviction for attempted second degree murder, but otherwise affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/harrisa_opn.wpd STATE OF TENNESSEE v. ANTONIUS HARRIS Court:TCCA TIPTON CONCURRING http://www.tba.org/tba_files/TCCA/harrisa_con.wpd JERRY JAMES HAYES v. STATE OF TENNESSEE Court:TCCA Attorneys: Billy R. Roe, Jr., Assistant District Public Defender, Camden, Tennessee, for the Appellant, Jerry James Hayes. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Angele M. Gregory, Assistant Attorney General; Robert Gus Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Jerry James Hayes, appeals as of right from the judgment of the Carroll County Circuit Court denying his petition for post-conviction relief. On appeal, the Appellant argues that he received ineffective assistance of counsel. After review of the record, dismissal of the petition is affirmed. http://www.tba.org/tba_files/TCCA/hayesjs1.wpd STATE OF TENNESSEE v. CARLOS HAYNES Court:TCCA Attorneys: George Morton Googe, District Public Defender and David Chrichton, Assistant Public Defender, Jackson, Tennessee, for the appellant, Carlos Haynes. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Jerry Woodall, District Attorney General; and Angela Scott, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Carlos Haynes, pled guilty to possession of marijuana with the intent to sell, a Class E felony, and possession of drug paraphernalia, a Class A misdemeanor. As part of his plea agreement, he expressly reserved with the consent of the trial court and the State the right to appeal a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The certified question of law concerns the validity of a search warrant. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/haynesc.wpd STATE OF TENNESSEE v. JOHNNY OWENS and SARAH OWENS Court:TCCA Attorneys: Ramsdale O'DeNeal, Jr. (for Johnny Owens), Jackson, Tennessee; and Marcus M. Reaves (for Sarah Owens), Jackson, Tennessee, for the Appellants. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; Garry G. Brown, District Attorney General; and Clayburn L. Peeples, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendants, Johnny Owens and Sarah Owens, who are husband and wife, were convicted of aggravated child abuse by a Haywood County Circuit Court jury. Johnny Owens was convicted on one count only, and Sarah Owens was convicted on five counts. Because Johnny Owens' motion for a new trial raised only issues of the sufficiency of the evidence, we review only that issue in his appeal. Sarah Owens raises evidentiary issues and claims that the trial court erred in failing to instruct the jury on the "missing witness" rule, in conditioning the defendants' release from custody during trial upon Ms. Owens' withdrawal of her motion to sequester the jury, and in imposing an excessive sentence. We affirm all convictions and sentences; however, we order Sarah Owens' sentences to be served concurrently. http://www.tba.org/tba_files/TCCA/owensj.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 |
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