Opinion Flash

February 5, 2003
Volume 9 — Number 021

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):
02 New Opinion(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Court of Appeals
02 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

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


STATE OF TENNESSEE v. MICHAEL ARMSTRONG

Court:TSC

Attorneys: 

A. C. Wharton, Jr., Shelby County Public Defender; W. Mark Ward,
Assistant Shelby County Public Defender; William W. Heaton and Deborah
Brandon, Memphis, Tennessee, for the appellant, Michael Armstrong.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Braden H. Boucek, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Steve Hall,
Assistant District Attorney General, for the appellee, State of
Tennessee.                         

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine whether a trial court's entry of
an order of correction filed after the entry of the final judgment
satisfied the requirements for the defendant to appeal a certified
question of law pursuant to Rule 37(b)(2) of the Tennessee Rules of
Criminal Procedure.  The Court of Criminal Appeals concluded that
neither the order nor the final judgment met the requirements for
appealing a certified question of law set forth in State v. Preston,
759 S.W.2d 647 (Tenn. 1988), and dismissed the appeal.  After
reviewing the record, we conclude that the trial court's order of
correction under Rule 36 of the Tennessee Rules of Criminal Procedure
was entered while the trial court had jurisdiction before the filing
of a notice of appeal and therefore complied with the prerequisites
for raising a certified question of law on appeal under the
circumstances of this case.  Accordingly, we reverse the judgment and
remand for the Court of Criminal Appeals to address the merits of the
appeal.

http://www.tba.org/tba_files/TSC/armstrongm.wpd

IN RE: ESTATE OF GEORGE C. VINCENT

Court:TSC

Attorneys:  

Roy L. Aaron and Kristi M. Davis, Knoxville, Tennessee, for the
appellant, John Oliver.

Reid Troutman, LaFollette, Tennessee, as Personal Representative of
the Estate of George C. Vincent.

Johnny V. Dunaway, LaFollette, Tennessee, for the appellee, William J.
Vincent.                        

Judge: DROWOTA

First Paragraph:

In this will construction case, we address the question of whether or
not the doctrine of exoneration applies to a mortgage on real property
passing by right of survivorship where the decedent's will directed
that his personal representative pay all his "just debts."  We find
that the general direction to pay "just debts" is not sufficient to
require that the estate pay the remaining balance on the mortgage of
non-probate property.  Furthermore, additional language in the will
regarding the payment of installment debts is not sufficient to
indicate that the testator intended to include mortgages of
non-probate property where the testator's will specified only one
beneficiary and did not mention either the property held by joint
tenancy or the joint tenant.

http://www.tba.org/tba_files/TSC/vincent.wpd

CARL BLAND v. AMERICAN FREIGHTWAYS CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:  

Ronald L. Harper and R. Scott Vincent, Memphis, Tennessee, for the
appellant, American Freightways Corporation

Lincoln A. R. Hodges, Germantown, Tennessee, for the appellee, Carl
Bland                        

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 finding that
the plaintiff suffered an injury by accident to his body as a whole
arising out of and in the course of his employment, (2) the trial
court erred in not applying the doctrine of judicial estoppel to the
facts of the case; and (3) the trial court erred in assigning
vocational disability to the appellee because there was no expert
proof.  As discussed below, the panel has concluded the appeal is
without merit.

http://www.tba.org/tba_files/TSC_WCP/bland.wpd

JERRY LYTLE v. FRU-CON, INC., et al.

Court:TSC - Workers Comp Panel

Attorneys: 

W. Stephen Gardner and Robert Joseph Leibovich, Memphis, Tennessee,
for the appellant, Fru-Con Pala Industrial, Joint Venture

David Hardee, Jackson, Tennessee, for the appellee, Jerry Lytle                         

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 accrediting
the testimony of the plaintiff, (2) the trial court erred in accepting
the expert opinion of an examining physician over that of a treating
physician, and (3) the award of permanent partial disability benefits
based on 20 percent to the body as a whole is excessive.  As discussed
below, the panel has concluded the trial court committed no reversible
error and the evidence fails to preponderate against the trial court's
findings..

http://www.tba.org/tba_files/TSC_WCP/lytle.wpd

MARY FRANCES WYNN v. HECKETHORN MANUFACTURING CO., INC., et al.

Court:TSC - Workers Comp Panel

Attorneys: 

Jay E. DeGroot, Jackson, Tennessee, for the appellant, Mary Frances
Wynn

James H. Tucker, Nashville, Tennessee, for the appellees, Heckethorn
Manufacturing Co., Inc. and Vigilant Insurance Company                         

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 employee insists the award of benefits based on 55 percent
to the body as a whole is inadequate and seeks an increased award.  As
discussed below, the panel has concluded the evidence does not
preponderate against the trial court's findings.

http://www.tba.org/tba_files/TSC_WCP/wynn.wpd

LEAH MICHELLE MILLER, et al. v. GARY RAY HILL, et al.

Court:TCA

Attorneys: 

James M. Crain, Knoxville, Tennessee, for the appellants, Leah
Michelle Miller, by next friend, Brenda Gail Miller, Robert G. Miller
and Brenda Gail Miller, individually.

Robert A. Crawford and Laura Bradley Myers, Knoxville, Tennessee, for
the appellees, Gary Ray Hill and Martha Hill.                         

Judge: SUSANO
 
First Paragraph:

Leah Michelle Miller, a minor, was injured while attempting to
dismount a trampoline in the yard of a two-story duplex.  Her parents,
Robert G. Miller and Brenda Gail Miller ("the plaintiffs"), rented the
lower unit of the duplex.  The Millers sued their landlords, Gary Ray
Hill and Martha Hill ("the Landlords").  They also named as defendants
the occupants of the upstairs unit, Steve Cooper and Tanya Caldwell. 
The suit against these latter two defendants was based upon their
ownership of the trampoline.  The Landlords moved for summary
judgment.  They essentially argued that they owed no duty of care to
the plaintiffs or their child with respect to the trampoline.  The
trial court granted the motion and entered a final judgment pursuant
to Tenn. R. Civ. P. 54.02.  We affirm.

http://www.tba.org/tba_files/TCA/millerlm.wpd

RICHARD LYNN NORTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Susanna L. Thomas, Newport, Tennessee, for the appellant, Richard Lynn
Norton.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General; and Eric Christiansen, Assistant District
Attorney General, for the appellee, State of Tennessee.                          

Judge: WADE

First Paragraph:

The petitioner, Richard Lynn Norton, appeals from the trial court's
denial of his petition for post- conviction relief.  The single issue
presented for review is whether the petitioner was denied the
effective assistance of counsel at trial.  The judgment is affirmed.

http://www.tba.org/tba_files/TCCA/nortonrl.wpd

STATE OF TENNESSEE v. SHIRLEY SPINA 

Court:TCCA

Attorneys: 

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Greeley Wells, District Attorney General;
and Kent Chitwood, Assistant District Attorney General, for the
appellant, State of Tennessee.

Wayne Culbertson, Kingsport, Tennessee, for the appellee, Shirley
Spina.                         

Judge: WELLES

First Paragraph:

The Defendant, Shirley Spina, was indicted in Sullivan County for
custodial interference.  On the morning of trial, the trial court
dismissed the charge for lack of venue.  The State now appeals.  We
reverse the ruling of the trial court and remand this cause for
further proceedings.

http://www.tba.org/tba_files/TCCA/spinas.wpd

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