Opinion FlashFebruary 5, 2003Volume 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):
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. 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 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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