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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