Opinion Flash

March 10, 2003
Volume 9 — Number 042

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Court of Appeals
03 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


LANNY BERNARD v. ACTIVE USA, INC.

Court:TSC - Workers Comp Panel

Attorneys:

Luther E. Cantrell, Jr., Nashville, Tennessee, for the appellant,
Active USA, Inc.

Andrew J. Blackwell, III, Madison, Tennessee, for the appellee, Lannie
Bernard                       

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 findings as to the
extent of vocational disability.  As discussed below, the panel has
concluded the evidence fails to preponderate against the findings of
the trial court.

http://www.tba.org/tba_files/TSC_WCP/bernardlanny.wpd
								
RUTH LOUISE WINCHESTER v. JOHN DOE INSURANCE COMPANY, et al. Court:TSC - Workers Comp Panel Attorneys: B. Timothy Pirtle and Mary Little, McMinnville, Tennessee, for the appellants, John Doe Insurance Company and Findlay Industries/Gardner Manufacturing Division Barry H. Medley, McMinnville, Tennessee, for the appellee, Ruth Louise Winchester 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 findings as to permanency and extent of disability and insists "the trial court erred in its application of the concurrent injury rule." As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/winchesterruth.wpd
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0310.wpd
ROBYN KENYON v. ALBERT HANDAL Court:TCA Attorneys: E. Covington Johnston, Jr. and J. Timothy Street, Franklin, Tennessee, for the appellant, Robyn Kenyon. Phillip North, Michael F. Jameson, and M. Todd Sandahl, Nashville, Tennessee, for the appellee, Albert Handal. Judge: KOCH First Paragraph: This appeal involves a medical malpractice action. After her baby was delivered stillborn, a patient filed suit in the Circuit Court for Sumner County against her obstetrician and the hospital, alleging that their negligent supervision of her labor after she arrived at the hospital caused the death of her baby. Both the obstetrician and the hospital filed properly supported motions for summary judgment. The trial court granted the motions after determining that the affidavit by the patient's medical expert had not been timely filed and did not comply with Tenn. Code Ann. S 29-26- 115(a)(1), (b) (Supp. 2002). The patient filed a Tenn. R. Civ. P. 59.04 motion limited to the dismissal of her claim against the obstetrician. She supported the motion with the revised affidavit by her medical expert and her lawyer's affidavit explaining his efforts to comply with Tenn. R. Civ. P. 56. The trial court denied the patient's motion. On this appeal, the patient asserts that the trial court should have excused her tardy response to the obstetrician's summary judgment motion and that her medical expert's revised affidavit satisfies Tenn. Code Ann. S 29-26-115(a)(1), (b). We have determined that the trial court should have excused the patient from Tenn. R. Civ. P. 56.04's deadline for serving and filing opposing affidavits. However, we have also determined that affidavits of the patient's medical expert do not satisfy Tenn. Code Ann. S 29-26-115(a)(1). Accordingly, we affirm the summary judgment dismissing the patient's complaint against her obstetrician. http://www.tba.org/tba_files/TCA/kenyonr.wpd
STATE OF TENNESSEE v. SCOTT BENN Court:TCCA Attorneys: Donna Robinson Miller (on appeal) and Christian J. Coder (at trial), Assistant District Public Defenders, for the appellant, Scott Benn. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; and Christopher David Poole and Barry A. Steelman, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Scott Benn, who was originally charged with felony murder and aggravated child abuse, was convicted of one count of aggravated child abuse. The trial court imposed a sentence of twenty-five years. In this appeal, the defendant asserts (1) that the trial court erred by failing to instruct the jury on the lesser included offenses of felony murder and aggravated child abuse; (2) that the trial court erred by admitting certain evidence; and (3) that the sentence is excessive. Although the trial court erred by failing to instruct on the lesser included offenses, the error can be classified as harmless beyond a reasonable doubt. The judgment is, therefore, affirmed. http://www.tba.org/tba_files/TCCA/bennscott.wpd
DELIVETRICK DEWON BLOCKER v. STATE OF TENNESSEE Court:TCCA Attorneys: Gary Massey, Jr., Chattanooga, Tennessee, for the appellant, Delivetrick Dewon Blocker. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; and Rodney C. Strong, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WADE First Paragraph: The petitioner, Delivetrick Dewon Blocker, appeals the denial of his petition for post-conviction relief. In this appeal, he contends that he was denied the effective assistance of counsel at trial. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/blockerdd.wpd
STATE OF TENNESSEE v. DONALD E. BRYANT Court:TCCA Attorneys: Raymond Mack Garner, District Public Defender; Shawn G. Graham Assistant Public Defender, for the Appellant, Donald E. Bryant. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Braden H. Boucek, Assistant Attorney General; Michael L. Flynn, District Attorney General; and John Bobo, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Donald E. Bryant, entered guilty pleas to the offenses of evading arrest, class D felony theft, misdemeanor theft, aggravated burglary, aggravated assault, and two violations of the Motor Vehicle Habitual Offender Act (MVHO). Under the terms of the plea agreement, Bryant received an effective twenty-year sentence as a range II multiple offender for these crimes. The plea agreement provided that the manner of service of the sentences would be submitted to the trial court. Following the sentencing hearing, the trial court ordered the sentences be served in the Department of Correction. On appeal, Bryant argues that the trial court erred in failing to grant him a sentence of community corrections. Finding this argument without merit, the judgment of the Blount County Circuit Court is affirmed. http://www.tba.org/tba_files/TCCA/bryantdonalde1.wpd

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