Opinion FlashApril 7, 2003Volume 9 — Number 061 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 LUCILLE COTHAM, et al. v. PERRY COUNTY, etc. Court:TSC - Workers Comp Panel Attorneys: Gene Hallworth, Columbia, Tennessee, for the appellant, Pamela J. Honey Robert E. Kolarich and L. R. DeMarco, Nashville, Tennessee, for the appellant, Lucille Cotham Bradford D. Box and Geoffrey A. Lindley, Jackson, Tennessee, for the appellees, Perry County and Perry County Sheriff's Department 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 appellants insist the trial court erred in summarily dismissing the claim. As discussed below, the panel has concluded there is no genuine issue as to a material fact and that the employer is entitled to judgment of dismissal as a matter of law. http://www.tba.org/tba_files/TSC_WCP/cothamlucille.wpd BUFORD PRINCE v. CITY OF TULLAHOMA, et al. Court:TSC - Workers Comp Panel Attorneys: Rick L. Moore, Tullahoma, Tennessee, for the appellant, Buford Prince Dale A. Tipps, Nashville, Tennessee, for the appellees, City of Tullahoma and AIU 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 (1) the trial court erred in limiting his award of disability benefits to the maximum of 400 weeks times his weekly compensation rate and (2) the trial court erred in applying his award of temporary total disability benefits against the maximum. As discussed below, the panel finds no reversible error. http://www.tba.org/tba_files/TSC_WCP/princebuford.wpd WHIRLPOOL CORPORATION v. JAMES NEVILLE Court:TSC - Workers Comp Panel Attorneys: David T. Hooper, of Brentwood, Tennessee, for the Appellant, Whirlpool Corporation. Jerry D. Mayo, of Nashville, Tennessee, for the Appellee, James Neville. 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 plaintiff (employer) appeals the trial court's decision that the disc herniation in the defendant's (employee's) neck, resulting in cervical radiculopathy, was a gradually occurring injury that arose out of and in the course of his employment with the plaintiff. The plaintiff also appeals on the grounds that it contends that proper notice was not given and that the claim should have been barred by the statute of limitations. We affirm the decision of the trial court. http://www.tba.org/tba_files/TSC_WCP/whirlpoolvneville.wpd WILLIAM A. DALTON, et al. v. GERALD W. DALE, et al. Court:TCA Attorneys: W. Carl Spining, Nashville, Tennessee, for the appellant, Gerald W. Dale. William H. Farmer, Nashville, Tennessee, for the appellees, William a. and M. Charleston Dalton. Judge: CAIN First Paragraph: Defendant appeals adverse summary judgment as to diminution in value of a 1995 Jaguar XJ6 automobile based upon alleged undisputed expert testimony. Judgment is reversed, and the case is remanded. http://www.tba.org/tba_files/TCA/daltonwilliam.wpd ALVIN FREEMAN v. TENNESSEE DEPARTMENT OF PROBATION AND PAROLE Court:TCA Attorneys: Alvin Freeman, Whiteville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, and Shay B. Winebarger, Assistant Attorney General, for the appellee, Tennessee Board of Probation and Parole. Judge: KOCH First Paragraph: This appeal involves a dispute between a prisoner and the Tennessee Board of Probation and Parole. After the Board declined to parole him, the prisoner filed a pro se petition for common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the Board's action. The trial court, acting pursuant to Tenn. Code Ann. S 41-21-807 (Supp. 2002), ordered the prisoner to make a partial payment of the filing fee within thirty days and dismissed the petition for failure to prosecute when the prisoner failed to do so. The prisoner has appealed. We have determined that the trial court properly dismissed the prisoner's petition. http://www.tba.org/tba_files/TCA/freemana.wpd JOSE and GIOCONDA MATUS, et al. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE d/b/a METROPOLITAN NASHVILLE GENERAL HOSPITAL Court:TCA Attorneys: Lora Barkenbus, C. Dawn Deaner, Nashville, For Appellant, Metropolitan Government G. Thomas Nebel, Nashville, For Appellees, Jose and Gioconda Matus, et al Judge: CRAWFORD First Paragraph: This is a medical malpractice case against a municipal hospital pursuant to the Governmental Tort Liability Act. Originally, the defendants included a private physician and two nurse employees of the hospital. Plaintiffs alleged, among other things, that the two nurse employees were partially at fault, and their negligence attributed to the hospital was a cause of the damages alleged. Prior to the trial date, a settlement was reached by the plaintiffs with the private physician and the two nurse employees. Over defendants' objection, plaintiffs were allowed by motion on the eve of trial to amend their complaint to allege that previously un-named nurse employees of the hospital were negligent, which contributed to the damages alleged for which the hospital was responsible. Defendants also filed a motion for summary judgment asserting that, because the two nurse employees were no longer liable and thus their liability could not be attributed to the hospital, the hospital was entitled to summary judgment because there was no allegation of negligence on the part of other employees of the hospital. The trial court granted plaintiffs' motion to amend the complaint and denied the hospital's motion for summary judgment. At the conclusion of a nonjury trial, the hospital was assigned a percentage of fault for the damages incurred, and judgment was entered accordingly. Hospital appeals. We affirm. http://www.tba.org/tba_files/TCA/matusjose.wpd JEAN RICK v. MIDDLE TENNESSEE MEDICAL CENTER, INC., et al. Court:TCA Attorneys: William R. O'Bryan and Ryan A. Kurtz, Nashville, Tennessee, for the appellant, Middle Tennessee Medical Center, Inc. Ewing Sellers, Murfreesboro, Tennessee, for the appellee, Jean Rick. Judge: KOCH First Paragraph: This appeal involves the right of one child of a testator to impose a lien on real property devised to a sibling and subsequently conveyed by that sibling to a third party. In 1996, the probate court having jurisdiction over the estate determined that the property, which had already been conveyed to a third party, could be subjected to a lien if the devisee defaulted on a personal obligation to his sister mandated by their father's will. The devisee thereafter defaulted on his obligation and died. In 1998, his sister filed an action in the Chancery Court for Rutherford County seeking to recover her brother's $52,500 debt to her by imposing a lien on real and personal property her brother had conveyed to third parties. The trial court, relying on Hutchinson v. Gilbert, 86 Tenn. 464, 7 S.W. 126 (1888), held that the testator's daughter had a lien by operation of law against the real property devised to her brother and directed that the property be sold at auction to satisfy this lien if its current owner did not pay the testator's son's personal $55,917.57 debt to his sister. The current owner of the real property has appealed. We have determined that the trial court's reliance on Hutchinson v. Gilbert is misplaced. We have also determined that neither the will nor the probate court's 1996 order provides a basis for imposing a lien on property already conveyed to a third party. http://www.tba.org/tba_files/TCA/rickj.wpd RICK SHEDD, et al. v. GAYLORD ENTERTAINMENT COMPANY Court:TCA Attorneys: Jay S. Bowen and Amy C. Martin, Nashville, Tennessee, for the appellants, Rick Shedd, Mike Owens, Kevin Erickson, Denise Nichols and Bryan Switzer. Laurence M. Papel, Cyrus L. Booker, Lawrence S. Eastwood, Nashville, Tennessee, for the appellee, Gaylord Entertainment Company. Judge: CANTRELL First Paragraph: The developer of a new country music record label made verbal offers of multi-year employment contracts to five music industry executives. The executives accepted the offers, but before work was scheduled to begin, the human resources manager of the label's parent company sent letters to all five, rescinding the offers. The five executives brought suit against the parent company for breach of contract. The trial court granted the defendant's Motion for Summary Judgment, on the ground that the contracts violated the Statute of Frauds. The court also held that the plaintiffs were not entitled to prevail on their theories of partial performance or promissory estoppel. We affirm the trial court. http://www.tba.org/tba_files/TCA/sheddr.wpd TRUSTEES OF THE LAKEWOOD PARK TRUSTEESHIP v. RAMSEY A. JOHNSON, SR. Court:TCA Attorneys: Joseph E. Ford, Winchester, Tennessee, for the appellant, Ramsey A. Johnson, Sr. Mark A. Nobles, Murfreesboro, Tennessee, for the appellee, Trustees of the Lakewood Park Trusteeship. Judge: COTTRELL First Paragraph: The trustees of a residential/recreational development sued the owner of a number of lots in the development for failure to pay assessments for several years. The owner appeals arguing there was insufficient proof he received the notices for the years in question. We affirm the trial court's judgment in favor of the trustees. http://www.tba.org/tba_files/TCA/trusteeslakewood.wpd STATE OF TENNESSEE v. PERCY WADE COCKRILL Court:TCCA Attorneys: Paul Julius Walwyn, Madison, Tennessee, for the appellee, Percy Wade Cockrill. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Philip H. Wehby, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Percy Wade Cockrill, pled guilty to six counts of robbery. After a hearing, the trial court sentenced the Defendant as a Range I offender to four years each on three of the robberies, and to five years each on the remaining three robberies. The trial court further ordered the five-year sentences to run consecutively to each other, for an effective sentence of fifteen years to be served in the Department of Correction. The Defendant now challenges the length of each term as well as the imposition of consecutive sentences. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/cockrillpw.wpd STATE OF TENNESSEE v. SAMUEL L. GIDDENS Court:TCCA Attorneys: Ernest W. Williams and Anna E. Freeman, Franklin, Tennessee, for the appellant, Samuel L. Giddens. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Ron Davis, District Attorney General; and Lee E. Dryer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: Following a jury trial, the Defendant, Samuel L. Giddens, was convicted of facilitation of possession of heroin with the intent to sell or deliver and possession of cocaine with the intent to sell or deliver. In this appeal as of right, the Defendant raises the following four issues: (1) whether the trial court erred by allowing law enforcement officers to testify regarding factual indications that a person possesses drugs with the intent to sell, rather than for personal use; (2) whether the trial court erred by admitting testimony regarding prior drug transactions conducted by the Defendant; (3) whether the evidence is sufficient to sustain his two convictions; and (4) whether he was entitled to a mistrial due to a statement made by the prosecutor during closing argument. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/giddenssl.wpd STATE OF TENNESSEE v. BERNITA HOGAN Court:TCCA Attorneys: William B. Lockert, III, District Public Defender, and Chris L. Young, Assistant District Public Defender, for the appellant, Bernita Hogan. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Suzanne M. Lockert, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Bernita Hogan, appeals the trial court's revocation of her probation for nonpayment of restitution, raising the sole issue of whether the trial court abused its discretion in revoking her probation when the record fails to show that her nonpayment was willful. The State responds by arguing that the record supports the trial court's finding that the defendant's nonpayment of restitution was in fact willful, rather than the result of any inability to pay. Based on our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hoganbernita.wpd STATE OF TENNESSEE v. LEROY NEVILS Court:TCCA Attorneys: Joseph D. Baugh, Franklin, Tennessee, for the appellant, Leroy Nevils. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Sharon T. Guffee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant was convicted of driving while under the influence of an intoxicant, a Class A misdemeanor. He appeals that conviction, raising the following issues: (1) Sufficiency of the evidence and the proper standard of review when a recording of the trial is available for the reviewing court; (2) Improper return of the presentment; (3) Duplicitous presentment; (4) Improper limitation on voir dire questions concerning potential length of incarceration; (5) Improper limitation on voir dire questions whether jurors would trust a machine; (6) Improper elicitation of an alcohol testing flashlight; (7) Improper jury charge as to the certainty needed to find beyond a reasonable doubt; and (8) Improper jury charge allowing inference of guilt for refusing a blood alcohol test. After careful review of the record, we affirm the judgment from the trial court. http://www.tba.org/tba_files/TCCA/nevilsl.wpd STATE OF TENNESSEE v. ALICIA THARPE Court:TCCA Attorneys: John H. Henderson, District Public Defender; and Gene Honea Assistant District Public Defender, for the Appellant, Alicia Tharpe. Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Lee E. Dryer, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Alicia Tharpe appeals her sentence of split confinement imposed upon her guilty plea to theft over $1000. She seeks a fully probated sentence and challenges the imposition of day-for-day county jail confinement. We affirm the trial court's denial of full probation but reverse the day-for-day period of confinement and remand for modification of the judgment to reflect that the defendant is eligible for good conduct or work credits pursuant to Tennessee Code Annotated section 41-2-111(b). http://www.tba.org/tba_files/TCCA/tharpealicia.wpd STATE OF TENNESSEE v. WENDELL RAY WILLIAMS WITH DISSENTING OPINION Court:TCCA Attorneys: Sam E. Wallace, Jr., Nashville, Tennessee, for the appellant, Wendell Ray Williams. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Davidson County Criminal Court jury convicted the defendant, Wendell Ray Williams, of possessing one-half gram or more of cocaine with intent to sell, a Class B felony, and the trial court sentenced him as a Range III, persistent offender to twenty-five years in the Department of Correction (DOC). The defendant appeals, claiming that the trial court erred by (1) denying his motion to suppress evidence; (2) allowing a police officer to testify as an expert in drug investigation; (3) admitting evidence of the facts underlying his 1995 conviction for selling cocaine under Tenn. R. Evid. 404(b); (4) allowing the state to impeach him with his prior convictions for selling cocaine, car theft, and passing forged papers under Tenn. R. Evid. 609; and (5) refusing to instruct the jury on the lesser included offense of facilitation. We conclude that the trial court erred by admitting evidence of the defendant's involvement in the 1995 cocaine sale and allowing the state to impeach the defendant with his resulting conviction. In addition, we conclude that the trial court erred by refusing to instruct the jury on facilitation. We reverse the judgment of the trial court and remand the case for a new trial. http://www.tba.org/tba_files/TCCA/williamswendellray_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/williamswendellray_dis.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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