Opinion Flash
January 23, 2003
Volume 9 — Number 013
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 |
| 00 |
New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court |
| 10 |
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 |
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.
Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.
Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.
Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
AVIS ESTES, etc. v. EDGAR MEEK
Court:TSC - Workers Comp Panel
Attorneys:
Blakely D. Matthews and Jay N. Chamness, Cornelius & Collins,
Nashville, Tennessee, for the appellant, Edgar Meek
Jerred A. Creasy, Vandivort & Creasy, Charlotte, Tennessee, for the
appellee, Avis Estes, surviving spouse of Walter B. Estes
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 finding that the
death of Walter B. Estes was the caused by a work related accidental
injury. As discussed below, the panel has concluded the judgment
should be affirmed.
http://www.tba.org/tba_files/TSC_WCP/estesavis.wpd
MICHAEL STORY v. THE HOLLAND GROUP OF TENNESSEE d/b/a THE HOLLAND
GROUP, et al.
Court:TSC - Workers Comp Panel
Attorneys:
Kenneth M. Switzer, Ruth, Howard, Tate & Sowell, Nashville, Tennessee,
for the appellants, The Holland Group of Tennessee d/b/a The Holland
Group and CGU Insurance Group
Charles L. Hicks, Camden, Tennessee, for the appellee, Michael Story
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 and its insurer question the trial court's
finding relative to the extent of the employee's permanent disability,
as being excessive. As discussed below, the panel has concluded the
judgment should be affirmed.
http://www.tba.org/tba_files/TSC_WCP/storymic.wpd
DR. ROBERT EMANS v. THE BOARD OF REGENTS OF THE STATE OF TENNESSEE, et
al.
(Opinion originally filed 11/01/02 has been withdrawn and replaced
with this opinion.)
Court:TCA
Attorneys:
Paul G. Summers, Attorney General and Reporter; Denielle Vonende
Young, Assistant Attorney General, for the appellant, State of
Tennessee.
Patrick T. McNally, Nashville, Tennessee, for the appellee, Dr. Robert
Emans.
Judge: CANTRELL
First Paragraph:
The Claimant was appointed Dean of the College of Education of
Tennessee State University in 1990, evidenced by a Notice of
Appointment and Agreement of Employment. Four years later, he was
terminated as Dean, and appointed to the tenured position of
Professor, at a lesser salary. In this action he sought damages for
breach of contract, inter alia. The Commission ruled that the
Claimant, although lawfully terminated as Dean, was nevertheless
entitled to receive the salary of a deanship.
http://www.tba.org/tba_files/TCA/emansrcorr.wpd
VIOLET GUARINO A/K/A/ VIOLET CORROZZO v. JOSEPH CORROZZO
Court:TCA
Attorneys:
James R. Smith, Murfreesboro, Tennessee, for the appellant, Joseph
Corrozzo.
James D. Roberts, Nashville, Tennessee, for the appellee, Violet
Guarino.
Judge: CANTRELL
First Paragraph:
The appellant was ordered in a divorce decree to pay his wife a
portion of his pension. He attempted to discharge these payments in a
bankruptcy proceeding. The Chancery Court of Rutherford County held
that the payments were non-dischargeable because they constituted
"support, maintenance or alimony" payments which are not dischargeable
under the bankruptcy code. On appeal, appellant argues that wife
violated the automatic stay injunction by filing in a state court and
that she failed to properly object to the discharge. Appellant also
argues that the trial court did not have subject matter jurisdiction.
We hold that the payments were in the nature of support and,
therefore, not a dischargeable debt. This result means that the
issues raised by the appellant are moot. We affirm the trial court's
decision.
http://www.tba.org/tba_files/TCA/guarinov.wpd
JET PRINTING, LLC v. DEEP SOUTH WHOLESALE PAPER COMPANY, INC.
Court:TCA
Attorneys:
Wayne L. Robbins, Jr. and Mary Taylor Gallagher, Nashville, Tennessee,
for appellant, Jet Printing, LLC.
James C. Edwards, Madison, Tennessee, for appellee, Deep South
Wholesale Paper Company, Inc.
Judge: LILLARD
First Paragraph:
This is a breach of contract case. A bag manufacturer ordered printed
polyethylene film from a printing company, to be made into bags to
sell to chicken packaging companies. The film was treated on both
sides. Consequently, the bag manufacturer was unable to properly seal
the bags. Later shipments of film that were not treated on both sides
sealed properly. The bag manufacturer refused to pay for the initial
shipment of film that would not seal, so the seller printing company
sued for breach of contract. The trial court found for the bag
manufacturer, holding that the seller breached both an implied term of
the contract and an implied warranty of fitness for a particular
purpose. On appeal, the seller printing company argues that the trial
court erred in finding that the film did not conform to the contract
and that the seller breached the implied warranty of fitness for a
particular purpose, and that the trial court erred in excluding the
testimony of the seller's proffered expert. We affirm, finding that
the trial court did not err in finding that the seller breached an
implied warranty for a particular purpose, nor in excluding the
testimony of the seller's expert witness.
http://www.tba.org/tba_files/TCA/jetprinting.wpd
LARRY KERR, vs. ANDERSON COUNTY, TENNESSEE
Court:TCA
Attorneys:
David S. Clark, Oak Ridge, Tennessee, for Appellant.
Dail R. Cantrell, Clinton, Tennessee, for Appellee.
Judge: FRANKS
First Paragraph:
The Trial Judge held plaintiff's employment Contract was valid and
enforceable. On appeal, we reverse on the grounds the provisions in
the Contract are against public policy.
http://www.tba.org/tba_files/TCA/kerrl.wpd
MARISA R. LOVIN v. CHARLES E. NAVE, D.D.S., P.C.
Court:TCA
Attorneys:
Darren F. Mitchell, Knoxville, Tennessee, for the Appellant, Marisa R.
Lovin.
F. Michael Fitzpatrick, Knoxville, Tennessee, for the Appellee,
Charles E. Nave, D.D.S., P.C.
Judge: SWINEY
First Paragraph:
Marisa R. Lovin ("Plaintiff") was involved in a one car accident on
her way home from Dr. Charles E. Nave's ("Defendant") dental office.
Although Plaintiff has no memory of the accident itself, she claims
she suffered an adverse reaction to an anesthetic agent administered
by Defendant, which caused the car accident. Plaintiff sued Defendant
for dental malpractice claiming Defendant failed to warn her about
potential side effects of the anesthesia and did not properly manage
her treatment after administering the anesthetic agent. The Trial
Court granted Defendant summary judgment. Plaintiff appeals. We
affirm.
http://www.tba.org/tba_files/TCA/lovinmr.wpd
IN RE: SHON AUSTIN MARR CHRISTY RENEE OSBORN v. JUSTIN CHANDLER MARR
Court:TCA
Attorneys:
Kenneth W. Rucker, Nolensville, Tennessee, for the appellant, Christy
Renee Osborn.
Stacey M. Brackeen, Franklin, Tennessee, for the appellee, Justin
Chandler Marr.
Judge: LILLARD
First Paragraph:
This case involves the termination of parental rights. The parents of
the child lived together but were never married to one another. The
father abused the mother on occasion, usually during times in which
the father was drinking alcohol. The couple had a son in September
1998. From September 1998 until February 1999, the father and mother
lived together. In February 1999, the father pled guilty to and was
imprisoned for especially aggravated robbery, a crime committed prior
to the birth of the parties' son. In July 2001, the mother filed this
petition to terminate the father's parental rights. The trial court
declined to do so, finding insufficient evidence that the child would
be substantially harmed if the father's parental rights were not
terminated. Mother now appeals. We reverse and remand, concluding
that a separate showing of substantial harm is not required when
grounds for termination exist under Tennessee Code Annotated S
36-1-113(g)(6).
http://www.tba.org/tba_files/TCA/marrsa.wpd
BRENDA MARTIN, EXECUTOR OF THE ESTATE OF DEWEY O. MOORE v. JEAN MOORE
Court:TCA
Attorneys:
Randle W. Hill, Jr., Nashville, Tennessee, for the appellant, Jean
Moore.
August C. Winter, Brentwood, Tennessee, for the appellee, Brenda
Martin.
Judge: CANTRELL
First Paragraph:
A man who had been diagnosed with dementia executed a power of
attorney in favor of his wife. The wife used the power to withdraw
all the money from her husband's separately owned bank account, and
sent most of it to her brother for investment overseas. She also
completed the sale of real property her husband had owned in Kentucky,
and placed the proceeds in a marital account. After his death, the
man's daughter from a previous marriage brought suit for breach of
fiduciary duty, asking for the return of the assets to his estate.
The trial court ordered the return of the money taken from the bank
account, but ruled that the wife was entitled to keep the proceeds
from the sale of the real property. The court also ordered the wife
to pay some of the daughter's attorney fees. We affirm the judgment
of the trial court.
http://www.tba.org/tba_files/TCA/martinb.wpd
JEFFREY A. SIMMONS v. GATH BAPTIST CHURCH, et al.
Court:TCA
Attorneys:
Jeffrey A. Simmons, McMinnville, Tennessee, Pro Se.
William E. Godbold, III, Chattanooga, Tennessee, for the appellee,
Gath Baptist Church.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Ellen H. Pollack, Assistant Attorney General,
for the appellees, Department of Children's Services, District
Attorney General of Warren County, and Tennessee Bureau of
Investigation.
Larry B. Stanley, Sr., McMinnville, Tennessee, for the appellees, Doug
Deaton, Warren County Jail, and Warren County General Sessions Judge
Larry Ross.
Judge: CANTRELL
First Paragraph:
A man arrested for child sexual abuse brought an action against the
church he once worked for, as well as against the Department of
Children's Services and other governmental agencies, claiming that his
arrest was procured by illegal or unconstitutional means. The trial
court dismissed the action for failure to state a claim for which
relief can be granted, and the passing of the Statute of Limitations.
The court further held that the defendant governmental entities were
immune from civil liability. We affirm.
http://www.tba.org/tba_files/TCA/simmonsja.wpd
SUMNER COUNTY BOARD OF EDUCATION v. MANSKER FARMS, LLC
Court:TCA
Attorneys:
John R. Phillips, Jr., Gallatin, TN, for Appellant
Joe H. Thompson, Gallatin, TN, for Appellee
Judge: HIGHERS
First Paragraph:
This is a dispute over an option contract. Mansker Farms, a land
developer, offered the Sumner County School Board an option on land in
its development to build a school. A dispute arose over whether a
condition precedent existed in the contract and whether the
nonfulfillment of this condition prevented the School Board from
exercising the option. The trial court found that no valid contract
existed because there was no meeting of the minds between Mansker
Farms, who gave the option, and the Sumner County Board of Education,
who attempted to exercise the option. For the following reasons, we
affirm the ruling of the trial court.
http://www.tba.org/tba_files/TCA/sumnercobd.wpd
WESTERN EXPRESS, INC. v. BENCHMARK ELECTRONICS, et al.
Court:TCA
Attorneys:
Roland M. Lowell, Nashville, Tennessee, for the appellant, Western
Express, Inc.
Brigid M. Carpenter, Nashville, Tennessee, for the appellee, Benchmark
Electronics Huntsville, Inc. d/b/a Benchmark Electronics Pulaski.
Judge: CANTRELL
First Paragraph:
Western Express, Inc. sued Benchmark Electronics Huntsville, Inc. for
detention charges after Western's trailers were unreasonably detained
at Benchmark's plant in Pulaski. The Chancery Court of Davidson
County granted summary judgment to Benchmark, and Western asserts on
appeal that the court erred in finding that the undisputed facts show
that Western cannot prevail on its claims. We reverse the judgment of
the trial court.
http://www.tba.org/tba_files/TCA/westernexpress.wpd
ALLEN DALE CUTSHAW v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
J. Russell Pryor, Greeneville, Tennessee, for the appellant, Allen
Dale Cutshaw.
Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; and Cecil Mills, Assistant District
Attorney General, for the appellee, the State of Tennessee.
Judge: WADE
First Paragraph:
The petitioner, Allen Dale Cutshaw, appeals the trial court's denial
of his petition for post-conviction relief. In this appeal, the
petitioner asserts that he was denied the effective assistance of
counsel. The judgment of the trial court is affirmed.
http://www.tba.org/tba_files/TCCA/cutshaw.wpd
STATE OF TENNESSEE v. MAURICE LAMONT DAVIDSON
Court:TCCA
Attorneys:
Richard McGee, Nashville, Tennessee, for the appellant, Maurice Lamont
Davidson.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Pamela Anderson, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Maurice Lamont Davidson, was convicted by a jury of one
count of second degree murder, one count of voluntary manslaughter,
and one count of attempted voluntary manslaughter. The trial court
subsequently sentenced the Defendant to twenty-two years for the
second degree murder, three years for the voluntary manslaughter, and
two years for the attempted voluntary manslaughter, with the first two
sentences to be served concurrently and the third sentence to be
served consecutively, all to be served in the Department of
Correction. In this direct appeal, the Defendant contends that the
trial court erred in excluding certain expert testimony; that the
evidence is not sufficient to support his convictions; and that the
sentences are excessive. We affirm the Defendant's convictions,
reduce his sentence for the second degree murder to twenty years, and
order that his sentence for attempted voluntary manslaughter be served
concurrently.
http://www.tba.org/tba_files/TCCA/davidsonml.wpd
STATE OF TENNESSEE v. LESTER E. ELLIOTT
Court:TCCA
Attorneys:
David McGovern, Jasper, Tennessee, for the appellant, Lester E.
Elliott.
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and William Copeland, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Lester E. Elliott, was convicted by a jury of driving
in violation of the Motor Vehicle Habitual Offenders Act. He was
sentenced to two years in the Department of Correction for this
offense. The Defendant now appeals as of right, arguing that the
evidence is not sufficient to sustain his conviction. We affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/elliottle.wpd
STATE OF TENNESSEE v. MARK A. GRIFFIN
Court:TCCA
Attorneys:
Mart S. Cizek, Clinton, Tennessee, for the appellant, Mark A. Griffin.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; James N. Ramsey, District Attorney
General; and Jan Hicks, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: MCGEE OGLE
First Paragraph:
The appellant, Mark A. Griffin, was convicted by a jury in the
Anderson County Criminal Court of first degree murder committed in the
perpetration of an aggravated robbery and was sentenced to life
imprisonment without the possibility of parole. On appeal, the
appellant raises several evidentiary questions, contests the jury
charge, and challenges the sufficiency of the evidence supporting his
conviction. Upon review of the record and the parties' briefs, we
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/griffinma2.wpd
STATE OF TENNESSEE v. ROBERT WAYNE HERRON
Court:TCCA
Attorneys:
David Neal Brady, District Public Defender; H. Marshall Judd, Asst.
Public Defender, for the Appellant, Robert Wayne Herron.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Renee W. Turner, Assistant Attorney General;
William Edward Gibson, District Attorney General; and John Moore,
Assistant District Attorney General, for the Appellee, State of
Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Robert Wayne Herron, was convicted by a Putnam County
jury of felony possession of cocaine with intent to deliver, simple
possession of cocaine, and possession of drug paraphernalia. In this
appeal, Herron contends that (1) the trial court erred in admitting
evidence of his prior drug activity in violation of Tennessee Rule of
Evidence 404(b) and (2) the evidence is legally insufficient to
support these convictions. After review, we find these contentions
are without merit. Although not raised as error, we find Herron's
multiple convictions for simple possession and felony possession,
stemming from a single cocaine possession, violate principles of
double jeopardy. The misdemeanor cocaine conviction is, therefore,
merged with the felony cocaine conviction. We remand for entry of
judgments of conviction consistent with this holding. Herron's
convictions for felony possession with intent to deliver and
misdemeanor possession of drug paraphernalia are affirmed.
http://www.tba.org/tba_files/TCCA/herron.wpd
STATE OF TENNESSEE v. ART MAYSE
Court:TCCA
Attorneys:
James D. Purple, Chattanooga, Tennessee, for the appellant, Art Mayse.
Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; William Paul Phillips, District
Attorney General; and John G. Galloway, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Art Mayse, was convicted by a jury of eleven counts of
rape of a child, each a class A felony, and seven counts of aggravated
sexual battery, each a class B felony. After a sentencing hearing, he
was sentenced as a Range I offender to an effective sentence of fifty
years to be served in the Department of Correction. In this appeal as
of right, the Defendant challenges: (1) the adequacy of the bill of
particulars, (2) the constitutionality of the delay between the
commission of the offenses and the disclosure to authorities, (3) the
trial court's denial of his request for a change of venue and motion
to excuse a juror for cause, and (4) the sufficiency of the evidence.
Because the evidence is insufficient to support two of the aggravated
sexual battery convictions, those convictions are reversed and
dismissed. The remaining convictions are reversed and the case is
remanded for a retrial on those charges because the trial court failed
to require the State to elect the offenses on which it relied to
support the convictions.
http://www.tba.org/tba_files/TCCA/maysea.wpd
PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.
GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.
JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.
To join the TBA go to: http://www.tba.org/join_bar.mgi
SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.
Visit the TBALink web site at: http://www.tba.org/op-flash.mgi
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
