Opinion Flash
April 30, 2003
Volume 9 — Number 078
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 |
| 01 |
New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel |
| 08 |
New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court |
| 06 |
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
JEWELL WINNINGHAM v. FINDLAY INDUSTRIES, et al.
Court:TSC - Workers Comp Panel
Attorneys:
Sonya Henderson, Thomas, Henderson & Pate, Murfreesboro, Tennessee,
for the appellant, Jewell Winningham
Kenneth M. Switzer, Ruth, Howard, Tate & Sowell, Nashville, Tennessee,
for the appellee, Findlay Industries
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 the trial court erred in denying her
application for reconsideration pursuant to Tenn. Code Ann. S
50-6-241(a)(2). As discussed below, the panel has concluded that,
under the circumstances, the claimant is entitled to an evidentiary
hearing to determine whether she is entitled to an increased award.
http://www.tba.org/tba_files/TSC_WCP/winninghamj.wpd
APPENDIX TO COURT'S ORDER AMENDING RULES OF PROFESSIONAL CONDUCT
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/rpc8_apx.wpd
ORDER REGARDING TBA PETITION ON RPC 4.1
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/rpc8_a_ord.wpd
ORDER AMENDING TENNESSEE SUPREME COURT RULE 8,
TENNESSEE RULES OF PROFESSIONAL CONDUCT
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/rpc8_ord.wpd
AMENDMENT TO SUPREME COURT RULE 13
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/rule13_ord.wpd
AMENDMENT TO SUPREME COURT RULE 17
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/rule17form_ord.wpd
UNIFORM JUDGMENT DOCUMENT CALLED FOR IN NEW RULE 17
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/rule17form_rul.wpd
AMENDMENT TO SUPREME COURT RULE 7, ARTICLE VI, Section 5.01(b)
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/rule75_01_ord.wpd
AMENDMENT TO SUPREME COURT RULE 7, ARTICLE XII, Section 12.09
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/rule7_ord.wpd
IN RE: ADOPTION OF: SAMUEL JUSTIN DOWNEY, a/k/a JUSTIN SAMUEL DOWNEY,
JESSICA LEE DOWNEY SHERBAN, a/k/a JESSICA LEE DOWNEY, AND TAYLOR MARIE
SHERBHAN, a/k/a TAYLOR MARIE DOWNEY, minors, by JULIA MARSHALL DOWNEY,
v. CATHERINE DOWNEY
Court:TCA
Attorneys:
David W. Wallace, Bryan H. Hoos, and C. Leland Davis, Chattanooga,
Tennessee, for Appellant.
Leah M. Gerbitz and Esther R. DeCambra, Chattanooga, Tennessee, for
Appellee.
Judge: FRANKS
First Paragraph:
The Trial Court approved adoption of three minor children by sister of
biological mother. Mother appealed, insisting Georgia Court decree
terminating her parental rights to the children was defective. We
affirm.
http://www.tba.org/tba_files/TCA/downeys.wpd
RANDY J. HENSLEY v. TENNESSEE DEPARTMENT OF CORRECTIONS
Court:TCA
Attorneys:
Randy J. Hensley, Mountain City, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Nichon Shannon, Assistant Attorney General, for the
appellee, Tennessee Department of Correction
Judge: COTTRELL
First Paragraph:
An inmate who was allowed to commence and proceed in forma pauperis in
this litigation, but who was unsuccessful and had costs taxed against
him, appeals the trial court's denial of his motion to quash execution
on his trust fund account to collect the costs. We affirm.
http://www.tba.org/tba_files/TCA/hensleyr.wpd
FERN KEATON v. HANCOCK COUNTY BOARD OF EDUCATION
Court:TCA
Attorneys:
Floyd W. Rhea, Sneedville, Tennessee, for the appellant, Hancock
County Board of Education.
Mark S. Stapleton, Rogersville, Tennessee, and W. Lewis Jenkins,
Dyersburg, Tennessee, for the appellee, Fern Keaton.
Judge: SUSANO
First Paragraph:
This is a personal injury action arising out of a workplace accident
not covered by the Worker's Compensation Law. Fern Keaton sued her
employer, the Hancock County Board of Education, alleging that it was
negligent in failing to maintain the electrical appliances in her
kitchen work area in a safe working condition and that this negligence
was the proximate cause of the injuries and damages she sustained when
she was electrocuted while using one of the appliances. The trial
court, sitting without a jury, found the defendant guilty of 66-2/3%
fault and assigned the balance of the fault to the plaintiff. The
plaintiff was awarded $50,000 in damages, which amount represents the
defendant's fault-based share of the total damages. The defendant
appeals, contending (1) that it is immune from suit pursuant to Tenn.
Code Ann. S 29-20-204 (2000); (2) that it was not negligent; and (3)
that any negligence it may have committed is outweighed by that of the
plaintiff's. By a separate issue, the plaintiff argues that the trial
court erred in assigning any fault to her. We modify the trial
court's judgment for the plaintiff. As modified, it is affirmed.
http://www.tba.org/tba_files/TCA/keatonf.wpd
TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. L.F.
Court:TCA
Attorneys:
Monica J. Franklin, Knoxville, Tennessee, for the appellant, L.F.
Paul G. Summers, Attorney General and Reporter, and Elizabeth C.
Driver, Assistant Attorney General, for the appellee, Tennessee
Department of Children's Services.
Judge: SUSANO
First Paragraph:
The trial court terminated the parental rights of L.F. ("Mother") with
respect to her minor child, D.F. (DOB: January 28, 1994) ("the
child"). Mother appeals, essentially arguing that the evidence
preponderates against the trial court's dual findings, by clear and
convincing evidence, (1) that statutory grounds for termination exist
and (2) that termination is in the best interest of the child. We
affirm.
http://www.tba.org/tba_files/TCA/lf.wpd
JACK H. PARKS v. CHUCK RICH
Court:TCA
Attorneys:
Jack H. Parks, Johnson City, Tennessee, Pro Se.
Suzanne S. Cook, Kingsport, Tennessee, for the appellee, Chuck Rich.
Judge: SUSANO
First Paragraph:
Jack H. Parks sued Chuck Rich, the owner of an apartment complex.
Parks initially complained of a back injury resulting from his jumping
off a first floor balcony railing, and irritation to his body caused
by a bug spray applied in his apartment unit, both of which incidents
occurred at the complex. The trial court granted the defendant's
motion for summary judgment. The plaintiff appeals, contending that
summary judgment is not appropriate with respect to the bug spray
matter and that the trial court erred with respect to certain
discovery matters. We affirm.
http://www.tba.org/tba_files/TCA/parksjh.wpd
WILLIAM JOSEPH WILLIAMS v. MARLA JANE BARNES-MASON
Court:TCA
Attorneys:
Douglas R. Beier, Morristown, Tennessee, for Appellant.
J. Eric Harrison, Morristown, Tennessee, for Appellee.
Judge:
First Paragraph:
Primary residential custody was awarded to mother. Father appealed.
We affirm.
http://www.tba.org/tba_files/TCA/williamsw.wpd
RANDALL EUGENE BEST v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Steve McEwen, Mountain City, Tennessee (on appeal), and William
Donaldson, Assistant District Public Defender (at trial), for the
appellant, Randall Eugene Best.
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Richard Newman, Assistant District
Attorney General, for the appellee, State of Tennessee.
Judge: WADE
First Paragraph:
The petitioner, Randall Eugene Best, appeals the trial court's denial
of his petition for post conviction relief. In this appeal, he
asserts that he was denied the effective assistance of counsel at
trial and on appeal. The judgment is affirmed.
http://www.tba.org/tba_files/TCCA/bestr.wpd
STATE OF TENNESSEE v. EDWARD CLAY and TIMOTHY B. CLAY
Court:TCCA
Attorneys:
Michael J. Flanagan and Dale M. Quillen, Nashville, Tennessee, for the
appellants, Edward Clay and Timothy B. Clay.
Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and J. Paul Newman, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The co-defendants pled guilty to conspiracy to sell "ecstasy," a
Schedule I controlled substance. After a sentencing hearing, each
received a sentence of eight years to be served in split confinement,
with all but eight months on probation. The co-defendants contend
that the trial court erred in not granting them full probation. We
affirm the judgments of the trial court.
http://www.tba.org/tba_files/TCCA/dlay.wpd
STATE OF TENNESSEE v. GEORGE MEARS
Court:TCCA
Attorneys:
David W. Piper, Woodbury, Tennessee (on appeal), and Larry B. Stanley,
Jr., McMinnville, Tennessee (at trial) for the appellant, George
Mears.
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and David L. Puckett, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WOODALL
First Paragraph:
Following a jury trial, Defendant, George Mears, was found guilty of
theft of property of not less than $1,000 nor more than $10,000, a
Class D felony. In his motion for a new trial, Defendant raised one
issue, alleging that he received ineffective assistance of counsel at
trial. Defendant contended that his counsel failed to adequately
investigate and develop all available defense strategies and failed to
adequately prepare for trial. Following an evidentiary hearing, the
trial court denied Defendant's motion for a new trial. The trial
court concluded that Defendant's counsel should have interviewed two
witnesses prior to the day of trial but that Defendant failed to show
that he was prejudiced by counsel's delayed interviews. As to all
other claims of ineffective assistance of counsel, the trial court
found that Defendant failed to show that his counsel's performance was
deficient. After a thorough review of the record, we affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/mearsg.wpd
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