Opinion FlashAugust 4, 2003Volume 9 — Number 139 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 ERNEST L. ATKINSON v. SIGNAGE, INC., ET AL. Court:TSC - Workers Comp Panel Attorneys: Charles S. Herrell, Davies, Humphreys & Evans, Nashville, Tennessee, for the appellants, Signage, Inc. and Liberty Mutual Insurance Company Larry R. McElhaney, Arena & McElhaney, Nashville, Tennessee, for the appellee, Ernest L. Atkinson 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 and its insurer insist the trial court erred in awarding permanent total disability benefits where the injured employee has returned to work for the same employer at a wage equal to or greater than his pre-injury wage and is working forty hours per week. The employer and its insurer also insist the trial court erred in commuting a portion of the award to a lump sum. As discussed below, the panel has concluded the trial court committed no reversible error. http://www.tba.org/tba_files/TSC_WCP/atkinsone.wpd TIMOTHY W. FERGUSON v. J. H. BROOKS ROOFING & SHEET METAL, INC., ET AL. Court:TSC - Workers Comp Panel Attorneys: Fred C. Statum and Michael Haynie, Manier & Herod, Nashville, Tennessee, for the appellants, J. H. Brooks Roofing & Sheet Metal, Inc. and American Interstate Insurance Company Joseph L. Mercer, III, Nashville, Tennessee, for the appellee, Timothy W. Ferguson 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 and its insurer insist the trial court erred in its findings with respect to the employee's average weekly wage and the extent of his permanent partial 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/fergusontim.wpd MARGIE KELLY v. WHITE CONSOLIDATED INDUSTRIES, INC. Court:TSC - Workers Comp Panel Attorneys: Lucius P. Hawes, Jr., Hopkinsville, Kentucky, for the appellant, Margie Kelley William R. Goodman, III, Goodman & Walker, Springfield, Tennessee, for the appellee, White Consolidated Industries, Inc., d/b/a Electrolux Home Products 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 dismissing her claim for insufficient evidence of a causal connection between her employment and her medical condition. As discussed below, the panel has concluded the evidence fails to preponderate against the finding of the trial court. http://www.tba.org/tba_files/TSC_WCP/kellymargie.wpd PATRICIA A. MAXWELL v. STATE FARM FIRE & CASUALTY INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: Wm. Kennerly Burger, Burger, Siskin, Scott, Goad & McFarlin, Murfreesboro, Tennessee, for the appellant, Patricia A. Maxwell Roger W. Hudson, Murfree, Cope, Hudson & Scarlett, Murfreesboro, Tennessee, for the appellee, State Farm Fire & Casualty 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 appellant insists the trial court erred in summarily dismissing her claim upon the finding that she was not a covered employee. As discussed below, the panel has concluded the case should be remanded for a full trial on the merits. http://www.tba.org/tba_files/TSC_WCP/maxwellp.wpd ROMACH, INC. v. ANTHONY RAY COLE Court:TSC - Workers Comp Panel Attorneys: Clifton B. Sobel, Jr., Nashville, Tennessee, for the appellant, Anthony Ray Cole Clancy J. Covert and Frederick R. Baker, Wimberly, Lawson, Seale, Wright & Daves, Cookeville, Tennessee, for the appellee, Romach, Inc. 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 admitting evidence of prior criminal convictions and in dismissing his claim. As discussed below, the panel has concluded the trial court committed no reversible error. http://www.tba.org/tba_files/TSC_WCP/romach.wpd EARL DAVID CRAWFORD V. STATE OF TENNESSEE Court:TCCA Attorneys: Earl David Crawford, Nashville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Joseph V. Hoffer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Appellant, Earl David Crawford, appeals the trial court's denial of his petition for post-conviction DNA testing. See Tenn. Code Ann. S 40-30-403. In his appeal, Appellant concedes that the physical evidence taken by the State in 1986 during the investigation of his case has been destroyed. Appellant argues, however, that the trial court erred in not permitting the results of the tests performed on the physical evidence in 1986 to be compared to current DNA samples from Appellant, the victim, and the victim's husband. Appellant also argues that the trial court erred in permitting the Public Defender's Office to withdraw from representing Appellant in this matter without appointment of new counsel to represent him in this appeal. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/crawfordearl.wpd STATE OF TENNESSEE v. ANTHONY NATHANIEL GUERARD Court:TCCA Attorneys: Russel A. Church, Assistant Public Defender, Clarksville, Tennessee, for the appellant, Anthony Nathaniel Guerard. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; John W. Carney, Jr., District Attorney General; James B. Crenshaw and Daniel Brollier, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: In 1999, the Defendant was placed on judicial diversion for four years after pleading guilty to aggravated assault. In 2001, while the Defendant was on probation for aggravated assault, the Montgomery County Grand Jury indicted the Defendant for attempted first degree murder, attempted robbery, and aggravated kidnapping. In 2002, pursuant to a plea agreement, the Defendant pled guilty to reckless endangerment and nolo contendere to attempted robbery. Following a sentencing hearing, the trial court sentenced the Defendant to eleven months and twenty-nine days incarceration for reckless endangerment and to three years in the Tennessee Department of Correction for attempted robbery. The trial court also revoked the Defendant's judicial diversion probation for the 1999 aggravated assault charge, entered a judgment of conviction, and imposed a sentence of four years in the Tennessee Department of Correction. It ordered that the sentences for reckless endangerment and attempted robbery be served concurrently to each other but consecutive to the sentence for aggravated assault, resulting in an effective sentence of seven years. In this appeal as of right, the Defendant argues that his sentences are excessive and that the trial court erred by denying alternative sentencing. We conclude that the Defendant's sentences are proper and thus affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/guerardan.wpd GERALD W. MCCULLOUGH v. STATE OF TENNESSEE Court:TCCA Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Gerald W. McCullough. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; Mike McCown, District Attorney General; and Michael Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Gerald W. McCullough, was convicted of aggravated sexual battery. This Court affirmed the Defendant's conviction on direct appeal. See State v. Gerald W. McCullough, No. M1999-01525-CCA-R3-CD, 2000 WL 1246432, at *1 (Tenn. Crim. App., Nashville, Aug. 18, 2000). The Defendant was represented at trial by the Public Defender's Office. On direct appeal, the Defendant was represented by Nashville attorney John E. Herbison. After the Defendant's conviction was affirmed on direct appeal, the Defendant filed for post-conviction relief. In this effort, the Defendant was again represented by John E. Herbison. The trial court, on its own motion, conducted an evidentiary hearing with respect to the conflict of interest inherent in Mr. Herbison's representation of the Defendant on post-conviction following his representation of the Defendant on direct appeal. Following the hearing, the trial court ordered Mr. Herbison removed from his representation of the Defendant on post-conviction, and further ordered Mr. Herbison to return the entire retainer fee he had been paid in conjunction with the post-conviction proceeding. The trial court's ruling is now before this Court pursuant to an interlocutory appeal. See Tenn. R. App. P. 9. We affirm the trial court's order removing Mr. Herbison from further representation of the Defendant in this case. We remand the trial court's ruling regarding the refund of Mr. Herbison's fee for further proceedings. http://www.tba.org/tba_files/TCCA/mcculloughgw.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 |
|
© Copyright 2003 Tennessee Bar Association
|