Opinion Flash

April 21, 2003
Volume 9 — Number 071

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
03 New Opinion(s) from the Tennessee Court of Appeals
05 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


PATSY A. HOLCOMB v. MEMORIAL HEALTHCARE SYSTEMS, INC.

Court:TSC - Workers Comp Panel

Attorneys:

James T. Williams and Lynda Motes Hill, of Chattanooga, Tennessee, for
Appellant, Memorial Healthcare Systems, Inc.

Harry Weill, of Chattanooga, Tennessee, for Appellee, Patsy A Holcomb.
                      
Judge: THAYER

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 awarded the employee 60 percent permanent partial disability to
her right leg.  The employer contends the award of disability is
excessive.  The judgment is affirmed.

http://www.tba.org/tba_files/TSC_WCP/holcombp.wpd
								
BOBBIE JEAN SATTERFIELD v. LIONS VOLUNTEER BLIND INDUSTRIES Court:TSC - Workers Comp Panel Attorneys: David J. Silvus, of Knoxville, Tennessee, for Appellant, Lions Volunteer Blind Industries. Danny M. Hryhorchuk, of Morristown, Tennessee, for Appellee, Bobbie Jean Satterfield. Judge: THAYER 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 awarded the employee 75 percent disability to each arm. The employer has appealed insisting the award is excessive. The judgment is affirmed. http://www.tba.org/tba_files/TSC_WCP/satterfldb.wpd
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules NO CERT ORDERS FILED THIS WEEK http://www.tba.org/tba_files/TSC_Rules/certlist_0421.wpd
VERNESSA EKELEM v. IFEATU "IFY" EKELEM Court:TCA Attorneys: Ifeatu Ekelem, College Grove, Tennessee, Pro Se. James F. Butler, Jackson, Tennessee, for appellee, Vernessa Ekelem. Judge: LILLARD First Paragraph: This is a divorce case. Both parties are physicians. Both have children from previous marriages, and they have three children together. The parties' three children were minors at the time of the divorce hearing. The father earned substantial income in 1996, which fell precipitously when he started his own medical practice in 1998. His medical practice, however, owns luxury vehicles, and the father owns a large home with significant acreage. The trial court found the father's earning capacity to be at the level of the mother's income, set child support based on that earning capacity, and established the father's parenting time with the parties' children. The father was ordered to assume the parties' tax debt, and to cease making derogatory remarks about the mother. On appeal, the father argues that the trial court erred in setting child support, in setting parenting time, in assigning the tax liability to him, and in enjoining him from making derogatory comments about the mother. We affirm as modified, and remand, awarding the mother attorney's fees for this appeal. http://www.tba.org/tba_files/TCA/ekelemv.wpd
PATSY ELIZABETH MOSS v. JOHN JAMES McGARVEY Court:TCA Attorneys: Stuart B. Breakstone, Memphis, Tennessee, for the appellant, John James McGarvey. Ronald D. Teuch, Johnson City, Tennessee, for the appellee, Patsy Elizabeth Moss. Judge: LILLARD First Paragraph: This is an action to collect a child support arrearage. The mother and father of two minor children were divorced in 1973, and custody was awarded to the mother. In July 1981, the trial court entered a consent order requiring the father to pay the mother $35 per week in child support. In May 2000, nineteen years after the consent order was entered and ten years after the younger child turned eighteen, the mother filed a petition to collect the child support arrearage from the father. The father argued, among other things, that the mother's petition was barred by the doctrine of laches. The trial court granted the mother's petition and ordered the father to pay the child support arrearage, plus interest and attorney's fees. The father now appeals that order. We affirm, based on established caselaw holding that the doctrine of laches is not available as a defense in an action to recover child support arrearages. http://www.tba.org/tba_files/TCA/mosspe.wpd
STEPHANIE TATE v. STATE OF TENNESSEE Court:TCA Attorneys: Pamela R. O'Dwyer and Randall D. Larramore, Chattanooga, Tennessee, and Jeffrey A. Garrety, Jackson, Tennessee, for appellant, Stephanie Tate. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Michael B. Leftwich, Assistant Attorney General, for the appellee, State of Tennessee. Judge: LILLARD First Paragraph: This is a Claims Commission case. The claimant's decedent was struck and killed by a train owned and operated by a railroad company. The claimant filed suit against the State of Tennessee, asserting negligent deprivation of a statutory right. The claimant argued that the Tennessee Claims Commission had jurisdiction under T.C.A. S 9-8-307(a)(1)(N). The State filed a motion to dismiss the claim for failure to state a cause of action under T.C.A. S 9-8-307. The Claims Commission found that the complaint presented no proof that the road on which the accident occurred was a State highway or that the State maintained or controlled the road or the railroad crossing. The Claims Commission also found that none of the federal statutes, state statutes, rules, or regulations cited by the claimant provided for jurisdiction under T.C.A. S 9-8-307(a)(1)(N). The claimant appeals. We affirm. http://www.tba.org/tba_files/TCA/tates.wpd
STATE OF TENNESSEE v. SANDRA LYNN BAUMGARTNER Court:TCCA Attorneys: Seymour S. Rosenberg, Memphis, Tennessee, for the appellant, Sandra Lynn Baumgartner. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; James A. Wax, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Sandra Lynn Baumgartner, appeals the mandatory outpatient treatment (MOT) plan imposed by the Shelby County Criminal Court following her acquittal of first degree murder due to her insanity at the time of the crime. She contends that the trial court erroneously required mandatory outpatient treatment because the evidence does not show that her mental condition is likely to deteriorate rapidly, making it substantially likely that she would cause serious harm. She also argues that the MOT plan imposed by the trial court is contrary to the medical proof, punitive, oppressive, and impossible to perform. We conclude that the evidence preponderates against the MOT plan's requirements that the defendant live in a supervised residential facility and have someone supervise the administration of her medicine. We affirm the MOT plan as modified to exclude these requirements and remand the case for the trial court to reinstate the original condition that the defendant reside with her parents in their home. http://www.tba.org/tba_files/TCCA/baumg.wpd
STATE OF TENNESSEE v. ABEBREELLIS ZANDUS BOND Court:TCCA Attorneys: Marcus M. Reaves, Denmark, Tennessee, for the appellant, Abebreellis Zandus Bond. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Abebreellis Zandus Bond, was convicted by a jury of two sales of cocaine. The trial court subsequently sentenced the Defendant to a nine-year term and an eighteen-year term for these convictions, to be served concurrently in the Department of Correction. The trial court also imposed the two $100,000 fines assessed by the jury. The Defendant now appeals as of right, challenging the sufficiency of the evidence; the admission of certain testimony; the trial court's failure to issue a missing witness instruction; the chain of custody; and the sentences and fines. We modify the Defendant's fines to $25,000 each. In all other respects, we affirm the trial court's judgments. http://www.tba.org/tba_files/TCCA/bondaz1.wpd
RODNEY DIMITRI CAPLES v. STATE OF TENNESSEE Court:TCCA ORDER http://www.tba.org/tba_files/TCCA/caplesrd_ord.wpd
ROBERT E. PUGH v. STATE OF TENNESSEE Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, for the appellant, Robert Pugh. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; William L. Gibbons, District Attorney General; and Dan Woody, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: A Shelby County grand jury indicted the petitioner on multiple offenses. At the conclusion of a trial on the indictment first prosecuted, a jury convicted the petitioner of aggravated robbery. See State v. Robert E. Pugh, No. W1999-01260-CCA-R3-CD, 2000 WL 298697, at *1 (Tenn. Crim. App. at Jackson, Mar. 17, 2000). For this offense he received a twelve-year sentence as a standard offender. Id. He subsequently pled guilty to ten additional charges. The trial court then sentenced him as a multiple offender for nine of these counts and as a violent offender for one count. His agreed upon sentences for these offenses in combination with the aforementioned twelve-year sentence resulted in an effective twenty-six-year sentence for all eleven convictions. However, the petitioner later filed a pro se post-conviction petition attacking his pleas by alleging that his counsel at that time provided him ineffective assistance. The trial court appointed counsel, who filed an amended petition also alleging ineffective assistance at trial. Following a hearing, the trial court found none of the petitioner's allegations meritorious and denied him relief. Through this appeal the petitioner continues to assert that he received ineffective assistance of counsel regarding his guilty pleas and the trial at issue. However, after reviewing the record provided and appropriate authorities, we affirm the trial court's denial of the post-conviction relief. http://www.tba.org/tba_files/TCCA/pughro.wpd
STATE OF TENNESSEE v. ROBERT J. WILLIAMS Court:TCCA Attorneys: Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Robert J. Williams. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Robert J. Williams, pled guilty in the Henry County Circuit Court to one count of selling one-half gram or more of cocaine, a Class B felony, and two counts of selling less than one- half gram of cocaine, a Class C felony. As a Range I, standard offender, he received one eight-year sentence and two three-year sentences to be served concurrently as one year in confinement and the remainder in a community corrections program. The defendant appeals, claiming that his sentences are excessive. We affirm the defendant's sentences, but we remand the case for entry of corrected judgments. http://www.tba.org/tba_files/TCCA/willisro.wpd

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