Opinion Flash

February 26, 2003
Volume 9 — Number 034

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
12 New Opinion(s) from the Tennessee Court of Appeals
08 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


DEBORAH GRIFFIN v. ACE USA

Court:TSC - Workers Comp Panel

Attorneys:

P. Allen Phillips, Jackson, Tennessee, for the appellant, Ace USA.

Jack Manhein, Jr., Jackson, Tennessee, for the appellee, Deborah
Griffin.                       

Judge: BYERS

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 plaintiff had sustained a 40 percent permanent partial
impairment to her body as a whole as a result of an injury to her left
arm, which aggravated a previous impairment to her right arm.  The
employer appeals the trial court's judgment.  The employer contends
that the plaintiff's injury was to a scheduled member, not to the body
as a whole, and that the evidence did not preponderate in favor of the
amount of the trial court's award.  We conclude that the plaintiff may
recover only for the injury to her left arm, a scheduled member, and
we modify the plaintiff's award to 50 percent permanent partial
disability to the left arm.

http://www.tba.org/tba_files/TSC_WCP/griffin.wpd
								
STEPHANIE MARIE STEPHENS v. BEKAERT STEEL WIRE CORPORATION Court:TSC - Workers Comp Panel Attorneys: Paul C. Peel, Memphis, Tennessee, for the appellants, Bekaert Steel Wire Corporation and Liberty Mutual Insurance Company. Jeffrey A. Garrety and Joseph R. Taggart, Jackson, Tennessee, for the appellee, Stephanie Marie Stephens. Judge: BYERS 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 plaintiff sustained an 80 percent permanent partial disability to the body as a whole as a result of an industrial injury while employed by the defendant. The defendant says the plaintiff cannot recover because the plaintiff had a previous injury which was aggravated by the accident, and further says the award is excessive. The medical evidence, however, shows the plaintiff suffered a new and distinct injury. Furthermore, we do not find the evidence preponderates against the finding of the trial judge regarding the amount of the award. http://www.tba.org/tba_files/TSC_WCP/stephens.wpd
CATHY ANITA HARRIS ANDERTON v. GERALD DWAYNE ANDERTON Court:TCA Attorneys: Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Gerald Dwayne Anderton. Daryl M. South, Murfreesboro, Tennessee, for the appellee, Cathy Anita Harris Anderton. Judge: KOCH First Paragraph: The trial court awarded rehabilitative alimony to wife who, in her complaint, did not seek alimony but who testified at discovery that she was indigent and needed financial assistance. Husband argues that absent a pleaded request for alimony, the trial court was powerless to award it. The trial court disagreed. We affirm. Husband's petition alleging that wife was in criminal contempt for failing to allow visitation with the child of the parties was dismissed, and husband appeals. An acquittal of criminal contempt cannot be appealed. http://www.tba.org/tba_files/TCA/andertoncah.wpd
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. A.N.G. and S.L.G. Court:TCA Attorneys: Douglas L. Payne, Greeneville, Tennessee, for the Appellant A.N.G. David L. Leonard, Greeneville, Tennessee, for the Appellant S.L.G. Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney General, Nashville, Tennessee, for the Appellee State of Tennessee, Department of Children's Services. Judge: SWINEY First Paragraph: The State of Tennessee, Department of Children's Services ("State" or "DCS") obtained temporary custody of the three minor children of A.N.G. ("Mother") and S.L.G. ("Father")(collectively referred to as "Parents") after Parents' two year old son was found in a roadway near their home. DCS later sought to terminate Parents' parental rights. After a trial, the Juvenile Court determined there were sufficient grounds to terminate Parents' parental rights and doing so was in the best interests of the children. Parents appeal, claiming DCS failed to prove by clear and convincing evidence that there were sufficient grounds to terminate their parental rights. Parents also claim DCS failed to prove by clear and convincing evidence that termination of their parental rights would be in the best interests of the children. We affirm the judgment of the Juvenile Court. http://www.tba.org/tba_files/TCA/ang.wpd
QUENTIN CAVNAR v. STATE OF TENNESSEE Court:TCA Attorneys: Quentin L. Cavnar, Madison, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Laura T. Kidwell, Assistant Attorney General, for the appellee, State of Tennessee. Judge: KOCH First Paragraph: This appeal involves the diagnosis and treatment of a person who was briefly hospitalized at Middle Tennessee Mental Health Institute. Following his release, the patient filed a claim with the Tennessee Claims Commission asserting that he had been misdiagnosed and that the staff had subjected him to mental abuse and torture. The Commission dismissed the patient's complaint after he failed to file a timely response to the State's Tenn. R. Civ. P. 12.02(6) motion to dismiss, and the patient has appealed. We have determined that the Commission properly dismissed the patient's claim, not only because of his tardy response but also because the response fails to state a claim upon which the Commission may grant relief. http://www.tba.org/tba_files/TCA/cavnarq.wpd
THOMAS JOSEPH DOUGHERTY v. JOYCE ELAINE PARRY DOUGHERTY Court:TCA Attorneys: Michael W. Edwards, Hendersonville, Tennessee, for the appellant, Thomas Joseph Dougherty. Louis W. Oliver, Hendersonville, Tennessee, for the appellee, Joyce Elaine Parry Dougherty. Judge: CANTRELL First Paragraph: A divorced father petitioned the court to transfer custody of his two children from his former wife to himself. The trial court dismissed the petition, finding that the father had not met the threshold requirement for change of custody by proving a material change of circumstances. We find that there has been such a change of circumstances, and we remand this case to the trial court with instructions to determine the best interest of the children. http://www.tba.org/tba_files/TCA/doughertytj.wpd
E. MICHAEL HARRINGTON v. GRANT SMITH Court:TCA Attorneys: Helen S. Rogers, Nashville, Tennessee, for the appellant, Grant Smith. Kent B. Thomas and J. Christopher Anderson, Nashville, Tennessee, for the appellee, E. Michael Harrington. Judge: CAIN First Paragraph: Defendant appeals a grant of summary judgment against him on a promissory note and an additional judgment against him for breach of contract. We affirm the action of the trial court. http://www.tba.org/tba_files/TCA/harringtonem.wpd
KENNETH HINTON v. THE ESTATE OF JOHN D. KNOWLES, JR. Court:TCA Attorneys: Walter E. Grantham, II, Chattanooga, Tennessee, for Appellant. Kevin B. Wilson, Chattanooga, Tennessee, for Appellee. Judge: FRANKS First Paragraph: Estate appealed Trial Court's Judgment that plaintiff was the son of decedent. We affirm. http://www.tba.org/tba_files/TCA/hintonk.wpd
TAUNYA MARTIN v. APPEALS TRIBUNAL, TENNESSEE DEPARTMENT OF EMPLOYMENT SECURITY Court:TCA Attorneys: Taunya Martin, LaMesa, California, Pro Se. Paul G. Summers, Attorney General and Reporter, and Douglas E. Dimond, Assistant Attorney General, for the Tennessee Department of Employment Security. Judge: KOCH First Paragraph: This appeal involves a worker's attempts to obtain unemployment compensation benefits. After the Department of Employment Security's Board of Review upheld the denial of her claim, the employee filed a pro se petition for writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the denial of her claim. The Department moved to dismiss the petition because the employee had failed to name all the parties required by Tenn. Code Ann. S 50-7- 304(i)(1) (Supp. 1998) (superseded 1999) and failed to state a claim upon which relief could be granted. The trial court granted the Department's motion and dismissed the petition. The employee has appealed. While we concur that the employee's petition failed to name all the required parties, we have determined that dismissing the petition was not the proper remedy. We have also determined that the employee's petition states, albeit inartfully, a ground upon which relief could be granted. Accordingly, we vacate the dismissal of the employee's petition. http://www.tba.org/tba_files/TCA/martint.wpd
REBECCA MCMURRY v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Court:TCA Attorneys: Richard W. Mattson, Nashville, Tennessee, for the appellant, Rebecca McMurry. John L. Kennedy, Rita Roberts-Turner, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County. Judge: COTTRELL First Paragraph: This appeal is brought by an employee of the Metropolitan Government of Nashville and Davidson County who slipped and fell while working and, as a result, injured her knee. The employee brought suit pursuant to the Tennessee Governmental Tort Liability Act to recover damages for her lost earning capacity, pain and suffering, and expenses. Prior to this suit, Metro paid the employee's medical expenses and compensated her for the work that she missed during her recovery. The trial judge awarded the employee $24,000, finding that Metro was at fault, but that the employee's injury was merely the exacerbation of a previous knee injury. The trial court also awarded the employee $2,858.30 in discretionary costs, but disallowed a $900 charge for the trial preparation fee of the employee's expert. The employee appeals the trial court's final order. We affirm the trial court in all respects. http://www.tba.org/tba_files/TCA/mcmurryr.wpd
MARK A. PERCY v. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Mark A. Percy, Pikeville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Arthur Crownover, II, for the appellee, Tennessee Department of Correction. Judge: KOCH First Paragraph: This appeal involves a dispute between a multiple rapist and the Tennessee Department of Correction regarding the prisoner's sentence expiration date. The prisoner filed a petition for a declaratory order in the Chancery Court for Davidson County asserting that the Department had misclassified him and that he was eligible to be released because his sentence had expired. The Department responded with a motion for summary judgment supported by an affidavit of a sentencing technician asserting that the prisoner had been correctly classified and that his sentence had not expired. The trial court granted the summary judgment and dismissed the petition. We find that the trial court reached the correct result, and, therefore, we affirm the judgment dismissing the prisoner's petition. http://www.tba.org/tba_files/TCA/percyma.wpd
E. PAUL RECTOR v. ELIZABETH HALLIBURTON, et al. Court:TCA Attorneys: Dan R. Alexander, Nashville, Tennessee, for the appellant, E. Paul Rector. C. Dewey Branstetter, Jr., Nashville, Tennessee, for the appellee, Elizabeth Halliburton. Eugene W. Ward and Laura Israel Smith, Nashville, Tennessee, for the appellee, The Electric Power Board of Nashville and Davidson County, Tennessee. Judge: CANTRELL First Paragraph: The residence owned by Mrs. Halliburton had no access owing to highway construction. She acquired a driveway easement from the adjoining landowner, who later sold the property to Mr. Rector. An electric service line extended across the front of Mr. Rector's property which was relocated. Mr. Rector's efforts to purchase the Halliburton property were unavailing, and he began a policy of harassment presumably to acquire the property. He claimed, inter alia, that the easement terminated because it was improperly maintained, and that NES moved the service line without his permission and hence was guilty of trespass. Mrs. Halliburton filed a counterclaim for damages, charging Mr. Rector with trespass and outrageous conduct. Mr. Rector's suit was dismissed, and the counterclaim of Mrs. Halliburton was sustained. The dismissal of Mr. Rector's suit is affirmed; the award of attorney fees to Mrs. Halliburton is reversed; the case is remanded for a determination of the damages sustained by Mrs. Halliburton, including punitive damages. http://www.tba.org/tba_files/TCA/rectore.wpd
SMITH COUNTY, TENNESSEE v. DAVE ENOCH Court:TCA Attorneys: Jacky O. Bellar, Carthage, Tennessee, for the appellant, Smith County, Tennessee. James B. Dance, Carthage, Tennessee, for the appellee, Dave Enoch. Judge: KOCH First Paragraph: Smith County filed this action to enjoin the maintenance of an automobile junkyard within one thousand (1,000) feet of a county road pursuant to the authority of Private Acts. The defendant admitted his violation of the Private Acts, but pleaded (1) the asserted lack of standing of the County to file the action, and (2) the asserted unconstitutionality of the Acts. The Chancellor sustained both defenses. We reverse. http://www.tba.org/tba_files/TCA/smithcounty.wpd
ROSE F. WARNICK v. CARTER COUNTY, TENNESSEE Court:TCA Attorneys: Thomas E. Cowan, Jr., Elizabethton, Tennessee, for the appellant, Rose F. Warnick. Tausha M. Carmack and Patrick Ledford, Kingsport, Tennessee, for the appellee, Carter County, Tennessee. Judge: SUSANO First Paragraph: This is a negligence action filed by Rose F. Warnick against Carter County ("the County") seeking damages for personal injuries arising out of an automobile accident involving the plaintiff and Keith G. Range ("Deputy Range"), a Carter County deputy sheriff, who, according to the complaint, was "acting within the course and scope of his authority as an agent, servant and employee of" the County at the time of the accident. The County filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(6). The trial court dismissed the plaintiff's complaint, holding that it was not filed within one year of the accident as required by the Governmental Tort Liability Act ("the GTLA"). We affirm. http://www.tba.org/tba_files/TCA/warnickrf1.wpd
STATE OF TENNESSEE v. RENNE EFREN ARELLANO Court:TCCA Attorneys: William C. Barnes, Jr., Columbia, Tennessee, for the Appellant, Renne Efren Arellano. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; T. Michael Bottoms, District Attorney General; and Joseph L. Penrod, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Renne Efren Arellano, was indicted by a Maury County grand jury for one count of aggravated arson, a class A felony, eight counts of attempted first degree murder, class A felonies, and one count of felony possession of a weapon, a class E felony. A negotiated plea agreement allowed the Appellant to plead to one count of arson, eight counts of aggravated assault, and one count of felony possession of a weapon in exchange for an effective twelve-year sentence. The manner of service of the twelve-year sentence was to be determined by the trial court. Following a sentencing hearing, the trial court ordered that the twelve-year sentence be served in the Department of Correction. On appeal, Arellano contends that the trial court erred in not sentencing him to any form of alternative incarceration. However, plain error dictates that the convictions be vacated and the case remanded for further proceedings because aggravated assault is not a lesser included offense of attempted first degree murder. http://www.tba.org/tba_files/TCCA/arellanorennee.wpd
STATE OF TENNESSEE v. BOBBY EARL FERRELL, JR. Court:TCCA Attorneys: Donna Leigh Hargrove, District Public Defender, and Andrew Jackson Dearing, III, Assistant Public Defender, for the appellant, Bobby Earl Ferrell, Jr. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael David Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Bobby Earl Ferrell, Jr., appeals as of right the sentences imposed by the Bedford County Circuit Court following the defendant's guilty pleas to aggravated burglary, a Class C felony, and theft of property valued between $1,000 and $10,000, a Class D felony. He contends that the trial court should not have ordered him to serve his effective four-year sentence consecutively to a prior Rutherford County sentence. We affirm the sentences imposed by the trial court. http://www.tba.org/tba_files/TCCA/ferrellbobbyearl.wpd
DARRELL LAMAR FRITTS v. STATE OF TENNESSEE Court:TCCA Attorneys: Darrell Lamar Fritts, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Victor S. (Torry) Johnson, III; and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The petitioner, Darrell Lamar Fritts, filed in the Davidson County Criminal Court a petition for habeas corpus relief, alleging that the plea bargain process employed by the State of Tennessee is unconstitutional per se, thus rendering two of his convictions, which resulted from guilty pleas, void. The trial court denied the petition and the petitioner timely appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/frittsdl.wpd
STATE OF TENNESSEE v. WILMORE HATFIELD Court:TCCA Attorneys: Onnie L. Winebarger, Byrdstown, Tennessee, for the Appellant, Wilmore Hatfield. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; William Paul Phillips, District Attorney General; and Paul G. Galloway, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Wilmore Hatfield, was indicted for attempted first degree murder, aggravated assault, felony possession of a weapon, and driving under the influence (DUI). Following a jury trial, Hatfield was found guilty of felony reckless endangerment, as a lesser-included offense of aggravated assault, and DUI. He was sentenced to concurrent sentences of two years for the felony reckless endangerment conviction and eleven months, twenty-nine days for the DUI conviction. On appeal, Hatfield raises the following issues for our review: (1) whether felony reckless endangerment is a lesser-included offense of aggravated assault as charged in the indictment; (2) whether the trial court's DUI instruction was proper; (3) whether the evidence was sufficient to support the verdicts; and (4) whether his sentences were excessive. We hold that felony reckless endangerment is not a lesser-included offense of aggravated assault committed by intentionally or knowingly causing bodily injury to another by use or display of a deadly weapon. Therefore, the felony reckless endangerment conviction must be reversed and remanded for a new trial on the lesser charge of misdemeanor assault. Regarding Hatfield's DUI conviction, we conclude that the trial court properly charged the jury and the evidence was sufficient to support the verdict. However, we find that the trial court erred by ordering Hatfield to serve his entire eleven-month and twenty-nine-day sentence in the county jail. Accordingly, his DUI conviction is affirmed; however, his sentence is modified to reflect a sentence of eleven months and twenty-nine days, with all time suspended except forty- eight hours to be served in the county jail. http://www.tba.org/tba_files/TCCA/hatfieldwilmore.wpd
STATE OF TENNESSEE v. TERRY WAYNE LUNA Court:TCCA Attorneys: Aubrey Harper, McMinnville, Tennessee, for the appellant, Terry Wayne Luna. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Dale Potter, District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Terry Wayne Luna, was convicted by a jury of aggravated sexual battery. He was sentenced to twenty years in the Department of Correction. In this direct appeal, he argues that the trial court erred in overruling his motion for a mistrial because the Defendant was unduly prejudiced by a non-responsive answer to a question asked by defense counsel on cross-examination. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lunatw.wpd
STATE OF TENNESSEE v. KEVIN MARTIN Court:TCCA Attorneys: Richard McGee and James O. Martin, III, Nashville, Tennessee, for the appellant, Kevin Martin. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Ron Davis, District Attorney General; and Mary Katherine White, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Kevin Martin, pled guilty to one count of obtaining prescription drugs by fraud, one count of possession of drug paraphernalia, two counts of forgery, one count of telephone harassment, one count of reckless endangerment, and one count of assault. The negotiated plea agreement resulted in an effective sentence of five years and six months. Pursuant to the agreement, service of two of the years was suspended, and the manner of service for the remaining three and one-half years was to be determined by the trial court. Following a sentencing hearing, the trial court ordered the Defendant to serve the sentences totaling three and one-half years in confinement. It is from this order that the Defendant now appeals as of right. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/martink.wpd
STATE OF TENNESSEE v. BILLY JOE PORTERFIELD Court:TCCA Attorneys: Michael R. Jones, District Public Defender; Collier W. Goodlett, Assistant Public Defender, Clarksville, Tennessee, for the Appellant, Billy Joe Porterfield. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helena Walton Yarbrough, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Billy Joe Porterfield, was convicted by a Montgomery County jury of aggravated burglary, especially aggravated kidnaping, especially aggravated robbery, attempted first degree murder, and two counts of aggravated rape, all arising from a single criminal episode. As a result of these convictions, Porterfield received an effective sentence of one-hundred-fifteen years imprisonment. On appeal, Porterfield argues: (1) the evidence is insufficient to support his convictions, and (2) the trial court erred in its application of enhancement factors in determining the appropriate sentences. Finding no merit to these issues, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/porterfieldbillyj.wpd
STATE OF TENNESSEE v. BRADLEY RYAN WEBB Court:TCCA Attorneys: William M. Leibrock, Newport, Tennessee, for the Appellee, Bradley Ryan Webb. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy D. Aslinger, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and Ronald C. Newcomb, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The State appeals the ruling of the Cocke County Circuit Court modifying the sentence of the Appellee, Bradley Ryan Webb, pursuant to Rule 35, Tennessee Rules of Criminal Procedure. Under the terms of a plea agreement, Webb received an effective six-year Department of Correction (DOC) sentence, which stemmed from six theft convictions in Cocke and Jefferson counties. The plea agreement provided that the six-year DOC sentence would be served concurrently with a federal sentence Webb was serving. Following a timely filed Rule 35 motion, the trial court modified Webb's DOC sentences to "time served" and ordered removal of the state detainer warrant lodged against Webb. The trial court found that modification was necessary to effectuate the intent of the plea agreement. The State argues that the trial court's ruling was improper because Webb's sentences were imposed as a result of an "agreed plea," and any post-sentencing developments complained of by Webb were not unforeseen. After review, we conclude that Webb's sentence was improperly modified. Accordingly, the judgment of the trial court is reversed, and this case is remanded for reinstatement of the judgments of conviction as originally entered. http://www.tba.org/tba_files/TCCA/webbbradleyr.wpd

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