Opinion FlashNovember 15, 2002Volume 8 — Number 202 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 ALMA HANEY v. MABRY HEALTH CARE, INC. Court:TSC - Workers Comp Panel Attorneys: Kirk L. Clements, Nashville, Tennessee, for the appellant, Mabry Health Care, Inc. William E. Halfacre, Cookeville, Tennessee, for the appellee, Alma Haney 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 questions the trial court's award of permanent partial disability benefits based on 80 percent to the left leg. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/haneyalma.wpd ROYAL & SUNALLIANCE v. BARBARA COOPER Court:TSC - Workers Comp Panel Attorneys: Diana C. Benson and Larry G. Trail, Murfreesboro, Tennessee, for the appellant, Royal and SunAlliance Keith Jordan, Nashville, Tennessee, for the appellee, Barbara Cooper 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's insurer questions the trial court's finding that the employee's injury is causally related to her employment; and the employee questions the sufficiency of the award. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/royalsun.wpd GLENN ELIZABETH TEFFT v. WEAKLEY COUNTY AMBULANCE SERVICE Court:TSC - Workers Comp Panel Attorneys: Sean Antone Hunt, Spicer, Flynn & Rudstrom, Memphis, Tennessee, for the appellant, Weakley County Ambulance Service Charles L. Hicks, Camden, Tennessee, for the appellee, Glenn Elizabeth Tefft 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 evidence preponderates against the trial judge's finding that the plaintiff sustained a back injury on September 13, 1999 from lifting a patient where the evidence shows the plaintiff never lifted a patient, (2) the evidence preponderates against the trial judge's finding that the plaintiff gave proper notice as required by Tenn. Code Ann. S 50-6-201 where, without a reasonable excuse for delay, plaintiff began treatment but did not inform defendant that plaintiff's alleged injury was work related until a month and fourteen days later, (3) the trial judge erred in admitting the plaintiff's entire deposition into evidence, over the objection of the defendant, when the plaintiff offered the same after excerpts of the deposition were properly offered by defendant pursuant to Tenn. R. Civ. P. 32.01, and (4) the trial judge erred in awarding the plaintiff medical expenses paid by the plaintiff's health insurance, a nonparty. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/tefftglenne.wpd CHESTER GRAY THOMPSON v. NASHVILLE ELECTRIC SERVICE Court:TSC - Workers Comp Panel Attorneys: Mark A. Baugh and Eugene Ward, Nashville, Tennessee, for the appellant, Nashville Electric Service E. Guy Holliman and William Joseph Butler, Lafayette, Tennessee, for the appellee, Chester Thompson 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 award of permanent partial disability benefits based on 37.5 percent to the body as a whole is excessive, (2) the trial court erred in finding that the employee suffered a back injury "in the scope and course of the employment," and (3) the trial court erred in commuting the award to a lump sum. The employee questions the admissibility of the treating physician's records because the records were neither admitted through a medical records custodian nor the deposition of the treating physician, and no C-32 form was submitted. As discussed below, the panel has concluded that any error in the admission of the medical records was harmless. We therefore affirm the judgment. http://www.tba.org/tba_files/TSC_WCP/thompsonc.wpd STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. RICHARD AGBIGOR, SR. Court:TCA Attorneys: Merrilyn Feirman, Nashville, Tennessee, for the appellant, Richard Agbigor. Douglas Earl Dimond, Nashville, Tennessee, for the appellee, Department of Children's Services. Judge: CAIN First Paragraph: Richard Agbigor, Sr. takes this appeal from the Juvenile Court of Davidson County, challenging that court's termination of his parental rights to two children, R.A. and L.M.A. Although these two children are only two of six children to whom the trial court terminated the parental rights of both Richard Agbigor, Sr. and Terry C. Agbigor, the mother does not appeal the termination of her parental rights, and the father appeals the termination of parental rights only to his two biological children. Since we find that Mr. Agbigor effectively waived his right to counsel below and that clear and convincing evidence established grounds for termination and that termination of parental rights of Mr. Agbigor is in the best interest of the children. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/agbigorr.wpd DEBORAH A. COATES v. THOMAS A. COATES Court:TCA Attorneys: Thomas A. Coates, Lexington, Kentucky, Pro Se. Delilah Ann Speed, Columbia, Tennessee, for the appellee, Deborah A. Coates. Judge: COTTRELL First Paragraph: This appeal arose after the trial court rejected the father's petition to reduce child support. Because the father showed a substantial variance between the amount of child support he was ordered to pay and the amount of child support called for under the guidelines, we reverse the trial court's order denying modification prospectively. Because the court originally awarded support from the father's property, we affirm the denial of modification of that portion of the child support award. http://www.tba.org/tba_files/TCA/coatesd.wpd LISA ANNETTE DAVIS v. CHARLES LEE JENSEN Court:TCA Attorneys: Deana C. Hood, Franklin, Tennessee, for the appellant, Charles Lee Jensen. Thomas F. Bloom, Nashville, Tennessee, for the appellee, Lisa Annette Davis. Judge: CAIN First Paragraph: Appellant, an incarcerated prisoner in the Department of Corrections of California, appeals the action of the Juvenile Court of Williamson County in terminating his parental rights to his biological child. He refused to participate in the termination hearing by means of telephonic communication as authorized by the trial court demanding, instead, that the trial court either continue the case until after his release from confinement, or have him transported from California to Williamson County for personal participation. The trial court held that he waived his right to participation in the termination proceedings and terminated his parental rights. We affirm the trial court. http://www.tba.org/tba_files/TCA/davisla.wpd HILLSBORO PLAZA v. H. T. POPE ENTERPRISES, INC., et al. Court:TCA Attorneys: Donald Capparella, Brentwood, Tennessee, for the appellants, H. T. Pope Enterprises Inc., Hilda S. Pope and Terry W. Pope. David S. Zinn, Brentwood, Tennessee, for the appellee, Hillsboro Plaza. Judge: FARMER First Paragraph: This cause of action involves damages resulting from the breach of a commercial lease agreement. The trial court awarded judgment to the landlord, including forfeiture damages, prejudgment interest and attorney's fees. We affirm in part and reverse in part. http://www.tba.org/tba_files/TCA/hillsborop.wpd KRISHINA DENIA LEACH, et al. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, et al. Court:TCA Attorneys: John L. Kennedy, Daniel W. Champney, Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville and Davidson County. Lee Ofman, Franklin, Tennessee, for the appellee, Krishina Denia Leach. Terrance E. McNabb, Nashville, Tennessee, for appellee Richard Dale Moore. Judge: CANTRELL First Paragraph: This is a Tennessee Governmental Tort Liability Act case. A tow truck owned and operated by an employee of the Metropolitan Government of Nashville and Davidson County was traveling northwardly on Second Avenue South when it struck and killed Jacob Leach, age three, and seriously injured his mother, Krishina Leach. Jacob and his mother were walking southwardly on the sidewalk when Jacob broke free of his mother's restraint and darted into the path of the truck. The trial judge concluded that the driver of the tow truck was negligent because he "should have seen what was there to be seen." The judgment is reversed upon a finding that a motorist is under no duty to assume that an escorted child, in the restraint of an adult, will suddenly break free and run into traffic. http://www.tba.org/tba_files/TCA/leachkrishina.wpd NATIONS RENT OF TENNESSEE, INC. v. MEL LANGE, et al. FORKLIFTS UNLIMITED, LLC, et al. v. DAVID Q. WRIGHT, et al. SOUTHERN WOOD TREATMENT CO., INC. v. DAVID Q. WRIGHT, et al. Corrected Opinion Court:TCA Attorneys: John T. Blankenship, Murfreesboro, Tennessee, for the appellants, David Q. Wright and RLI Insurance Company. Ewing Sellers, Murfreesboro, Tennessee, for the appellee, Nations Rent of Tennessee, Inc. Robert P. Gritton, Murfreesboro, Tennessee, for the appellees, Forklifts Unlimited LLC and Forklifts Unlimited, Inc. Judge: LYLE First Paragraph: Vendors of rental equipment filed suit to collect unpaid invoices from the landowner after the contractor abandoned the job. The trial court granted recovery based upon the Mechanics' and Materialmen's Lien Statute and quantum meruit. We reverse for insufficient proof on the correct measure of damages. http://www.tba.org/tba_files/TCA/nationsrentcorr.wpd DAN B. WILSON, JR. v. LAWRENCE H. RUBIN, et al. Corrected Opinion Court:TCA Attorneys: W. Gary Blackburn, Nashville, Tennessee, for the appellant, Dan B. Wilson, Jr. Gail Vaughn Ashworth, Nashville, Tennessee, for the appellees, Lawrence H. Rubin and Sony/ATV Music Publishing Company, LLC. Judge: KOCH First Paragraph: This appeal involves the termination of an employee by a music publishing company after one of its songwriters complained that the employee had stalked and harassed her. The employee filed suit in the Chancery Court for Davidson County alleging gender and age discrimination in violation of the Tennessee Human Rights Act. The publishing company moved for a summary judgment asserting that it had a valid non-discriminatory ground for terminating the employee. The employee responded that the proffered non-discriminatory ground was pretextual. The trial court granted the summary judgment and dismissed the employee's complaint. On this appeal, the employee asserts that genuine material factual disputes regarding the publishing company's non-discriminatory reasons for terminating him should have prevented the trial court from granting the summary judgment. We agree and, therefore, vacate the order dismissing the employee's complaint. http://www.tba.org/tba_files/TCA/wilsondbcorr.wpd STATE OF TENNESSEE v. DANIEL JAMES COSGROVE Court:TCCA Attorneys: Merrilyn Feirman, Nashville, Tennessee (on appeal); Donna Leigh Hargrove, District Public Defender; and Andrew Jackson Dearing, III, Assistant District Public Defender (at trial), for the appellant, Daniel James Cosgrove. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; William Michael McCowan, District Attorney General; and Michael David Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Daniel James Cosgrove, pled guilty in the Bedford County Circuit Court to nineteen felonies and thirty-one misdemeanors. The trial court sentenced him to an effective sentence of twenty-one years and eleven months, twenty-nine days in confinement to be served consecutively to another sentence for which his probation was revoked. The defendant appeals, claiming that the trial court failed to apply and weigh mitigating factors properly and improperly ordered consecutive sentencing. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/cosgroved.wpd STATE OF TENNESSEE v. JAMES COREY EDMISTON Court:TCCA Attorneys: Hershell Koger, Pulaski, Tennessee, for the appellant, James Corey Edmiston. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; W. Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: A jury convicted the Defendant, James Corey Edmiston, of attempted second degree murder, especially aggravated robbery, especially aggravated burglary, aggravated assault, vandalism and resisting arrest. The trial court merged the aggravated assault conviction into the attempted murder conviction. The court sentenced the Defendant as a Range I offender to ten years for the attempted murder; twenty-four years for the especially aggravated robbery; ten years for the especially aggravated burglary; and eleven months, twenty-nine days for each of the two misdemeanor convictions. The trial court ordered the felony sentences to run consecutively to each other, with the misdemeanor sentences to run concurrently with the attempted murder sentence, for an effective sentence of forty-four years. The Defendant now appeals, challenging the sufficiency of the evidence for the attempted second degree murder conviction, and the trial court's imposition of consecutive sentences. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/edmistonjc.wpd STATE OF TENNESSEE v. RICHARD LACARDO ELLIOTT Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal); and Roger Eric Nell, District Public Defender; and Fred W. Love, Assistant Public Defender, Clarksville, Tennessee (at trial and of counsel on appeal) for the appellant, Richard Lacardo Elliott. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Richard Lacardo Elliott, appeals his convictions in the Circuit Court of Montgomery County for aggravated robbery and aggravated kidnapping. Defendant argues that his conviction for aggravated kidnapping may not stand pursuant to the Tennessee Supreme Court's holding in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). He further contends that the evidence at trial was insufficient to support his convictions, and that the trial court should have granted a motion for mistrial based upon the State's improper comments during closing argument. We disagree, and affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/elliottrichard.wpd STATE OF TENNESSEE v. JAMES DEWEY JENSEN, JR. Court:TCCA Attorneys: Jeffrey S. Schaarschmidt, Chattanooga, Tennessee, for the appellant, James Dewey Jensen, Jr. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; William H. Cox, III, District Attorney General; and Thomas E. Kimball, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Hamilton County jury convicted the defendant, James Dewey Jensen, Jr., of a seventh offense of driving under the influence, theft of identity, and violation of the Motor Vehicle Habitual Offenders Act. The sole issue presented by the defendant in this appeal is whether the trial court erred in denying the motion to suppress evidence obtained as a result of the vehicle stop. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/jensenjames.wpd STATE OF TENNESSEE v. FELIX M. LEACH Court:TCCA Attorneys: John H. Henderson, District Public Defender, for the appellant, Felix M. Leach. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: On November 13, 2000, a Williamson County grand jury indicted the defendant, Felix M. Leach, for possession with intent to sell or deliver cocaine, possession of marijuana, and possession of drug paraphernalia. In a negotiated plea agreement dated June 19, 2001, the defendant pled guilty as a Range II, multiple offender to each of the three counts of the indictment. The plea agreement specified that the three sentences would run concurrently and that all remaining sentencing issues would be determined by the trial court following a sentencing hearing. After a sentencing hearing, the trial court sentenced the defendant to ten years for possession with intent to sell or deliver cocaine, eleven months and twenty-nine days for each of the other two counts, and ordered the sentences to be served consecutively to a previous sentence that he was on probation for at the time. The defendant raises two issues on appeal: (1) whether the ten-year sentence for possession with intent to sell or deliver cocaine was excessive; and (2) whether the three sentences should be concurrent or consecutive to the sentence for which he was on probation at the time. After reviewing the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/leachfelixm.wpd STATE OF TENNESSEE v. QUAWN L. LILLARD Court:TCCA Attorneys: Edward S. Ryan, Brentwood, Tennessee (at trial); and Dwight E. Scott, Nashville, Tennessee (at trial and on appeal), for the appellant, Quawn L. Lillard. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, 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 defendant, Quawn L. Lillard, appeals his Davidson County Criminal Court convictions for aggravated robbery and aggravated assault. On appeal, he insists that the convicting evidence is not legally sufficient to support his convictions, and he claims that the trial court should not have admitted the identification testimony of one of the victims. After review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/lillardq.wpd STATE OF TENNESSEE v. SAMUEL LEE PARTIN Court:TCCA Attorneys: Julie A. Rice, Knoxville, Tennessee (on appeal); Raymond Mack Garner, District Public Defender; and Shawn G. Graham, Assistant District Public Defender (at sentencing hearing), for the appellant, Samuel Lee Partin. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Michael L. Flynn, District Attorney General; and John Anderson Bobo, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant pled guilty to two counts of driving after being declared an habitual motor vehicle offender and one count each of "third or subsequent" offense DUI, child endangerment, and vehicular assault, and it was agreed the trial court would determine the sentences. The trial court imposed a total effective sentence of five years, eleven months, and twenty-eight days in incarceration. In this appeal, the defendant argues the trial court erred in sentencing him. We conclude the defendant was indicted for fourth offense DUI, a Class E felony; he pled guilty to the offense as charged in the indictment, yet the plea erroneously referred to the non-existent enhancement classification of "third or subsequent" offense DUI rather than fourth offense DUI; and the defendant was erroneously sentenced for a misdemeanor based upon this non-existent enhancement classification. Because the defendant's guilty plea and sentence for this offense were erroneous and his pleas to all other offenses were part of his agreement to plead guilty, we vacate all judgments of conviction and remand to the trial court for further proceedings. http://www.tba.org/tba_files/TCCA/partinsamuel.wpd STATE OF TENNESSEE v. THOMAS MICHAEL SHINAVAR Court:TCCA Attorneys: Roger E. Nell, District Public Defender; and Collier W. Goodlett, Assistant District Public Defender, for the appellant, Thomas Michael Shinavar. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Montgomery County jury convicted the defendant, Thomas Michael Shinavar, of driving under the influence (DUI), his fourth offense and a Class E felony. On appeal, the defendant presents the following issues: (1) whether the indictment charging DUI failed to satisfy constitutional and statutory requirements; and (2) whether the indictment failed to provide adequate notice to the defendant that he was charged with a felony rather than a misdemeanor. After reviewing the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/shinavar.wpd STATE OF TENNESSEE v. JERRY W. SOUDER Court:TCCA Attorneys: Wayne Culbertson, Kingsport, Tennessee, for the appellant, Jerry W. Souder. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Greeley Wells, District Attorney General; and James Goodwin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Jerry W. Souder, pled nolo contendere to one count of attempted aggravated sexual battery. As part of the plea agreement, the Defendant was sentenced as a Range II offender to six years, with the manner of service to be determined by the trial court. After a hearing, the trial court ordered the Defendant to serve his sentence in the Department of Correction. The Defendant now appeals as of right, alleging that the trial court erred by denying him an alternative sentence, specifically probation. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/souderjw.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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