Opinion FlashOctober 28, 2003Volume 9 — Number 197 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 WHIRLPOOL CORPORATION v. SHERRY PRATT Court:TSC - Workers Comp Panel Attorneys: David T. Hooper, Hooper & Zinn, Brentwood, Tennessee, for the appellant, Whirlpool Corporation M. Andrew Hoover and Mary A. Gabbett, Pulaski, Tennessee, for the appellee, Sherry Pratt 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 award of 75 percent disability for a serious disfigurement. 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/whirlpoolvpratt.wpd DANIEL BILLS, JR., ET AL. v. CONSECO INSURANCE CO. WITH CONCURRING OPINION Court:TCA Attorneys: Michael W. Edwards, Hendersonville, TN, for Appellants Martin B. Bailey, Knoxville, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from the alleged wrongful denial of insurance coverage due to an intoxication exclusion in an insurance policy. The trial court granted the insurance company's motion for summary judgment, dismissing the case with prejudice. The parties raise a single issue on appeal. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/billsjrdaniel_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/billsjrdaniel_con.wpd SHEMEKA BUFORD, ET AL. v. STATE OF TENNESSEE, ET AL. Court:TCA Attorneys: Shemeka Buford, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Martha Campbell, Senior Counsel; Laura T. Kidwell, Assistant Attorney General and Douglas Earl Dimond, Assistant District Attorney General, for the appellees, State of Tennessee and Denita Marsh. Judge: INMAN First Paragraph: This is an action for damages against the Department of Children's Services of the State and one of its employees who allegedly strip-searched one of the plaintiff's young children, and attempted to strip-search another, while ostensibly seeking evidence of abuse allegedly inflicted by the mother. Process was never served on the employee. The claim was transferred to the Claims Commission. The plaintiff appeals, complaining of the dismissal of the employee, and of the transfer to the Commission. The judgment is affirmed. http://www.tba.org/tba_files/TCA/buford.wpd RUTHIE CURBOW v. JAMES DOUGLAS STUCKI Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for the appellant, Ruthie Curbow. James Robin McKinney, Jr., Nashville, Tennessee, for the appellee, James Douglas Stucki. Judge: CAIN First Paragraph: In this case, Ruthie Ann Curbow appeals from a custody and support proceeding in Williamson County Juvenile Court. On the day of the hearing, parties and counsel appeared in camera for a pre- trial conference. Upon announcement of an apparent settlement in open court, Mother expressed disagreement with the terms of the settlement and a desire to preserve her right to appeal. The trial court determined that no settlement existed and trial on the merits proceeded with proof from all parties. The court entered an order awarding joint custody with Father as primary custodian under the statutory fitness comparison. Mother appeals. We affirm the judgment. http://www.tba.org/tba_files/TCA/curbowruthie.wpd TERRY HICKS v. DONAL CAMPBELL, ET AL. Court:TCA Attorneys: Terry Hicks, Whiteville, Tennessee, Pro Se. Tom Anderson, Jackson, Tennessee, for the appellees, Larry Craven and Sheri Saluga. Judge: KOCH First Paragraph: This appeal involves a prisoner disciplinary proceeding at the Hardeman County Correctional Facility. A prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of a prison disciplinary board's finding that he was guilty of "conspiracy to violate state law." Two of the seven respondents named in the petition filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss. The trial court granted the motion, and the prisoner perfected this appeal. We have determined that the appeal should be dismissed because the order being appealed from is not final and does not comply with Tenn. R. Civ. P. 58. http://www.tba.org/tba_files/TCA/hickst.wpd SHERRY HUNTER, As Administratrix of the Estate of LAWRENCE HUNTER, Deceased v. JAY MICHAEL URA, ET AL. Court:TCA Attorneys: E. Reynolds Davies, Jr., Ed R. Davies, Nashville; Daniel D. Warlick, Nashville - For Appellants, Jay Michael Ura, M.D. and Nashville Anesthesia Services Gary K. Smith, C. Philip M. Campbell, Memphis, For Appellee, Sherry Hunter Judge: CRAWFORD First Paragraph: Administratrix of estate of deceased husband filed wrongful death action against defendants anesthesiologist and anesthesia services group. Jury returned a verdict for plaintiff, finding defendants at fault and awarding damages for medical and funeral expenses, and the pecuniary value of the life of the deceased including loss of consortium of wife and children. Defendants appeal, raising several procedural and evidentiary issues for consideration. We vacate and remand. http://www.tba.org/tba_files/TCA/huntersherry.wpd PERRY MARCH v. LAWRENCE LEVINE, ET AL. CORRECTED OPINION Court:TCA Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Perry March. C.J. Gideon, Jr. and Margaret J. Moore, Nashville, Tennessee, for the appellees, Lawrence Levine and Carolyn Levine, as Next Friends of Janet Levine March, as Next Friends of Samson March and Tzipora March; Children Janet Levine March, and in their Individual Capacities. Judge: CAIN First Paragraph: This matter is a dispute between Absentee Janet March's parents, Lawrence and Carolyn Levine, and her husband, Perry March. The case began as an in rem battle over the Absentee's property after Perry March opened an absentee estate following Janet's disappearance. However, the Levines, thirty-one months after the absentee estate was opened, asked to amend the proceedings and add a claim for wrongful death against Perry March. The court allowed the amendment. Perry March incurred citations for civil contempt of court, and the Levines were eventually granted a default judgment as a result of his contempt. A judgment for $113,500,000.00 in damages was entered against him. Perry March appealed. We find that the trial court abused its discretion in allowing the wrongful death action, and we reverse the trial court. The default judgment for wrongful death and the award for damages against Perry March are reversed. http://www.tba.org/tba_files/TCA/marchperry.wpd DIANNA DAWN MCGAHEY v. DAVIS LEE MCGAHGEY CORRECTED OPINION Court:TCA Attorneys: Rosella M. Shackelford, Paris, For Appellant, Dianna Dawn McGahey Steven L. West, McKenzie, For Appellee, Davis Lee McGahey Judge: CRAWFORD First Paragraph: This appeal involves a motion for sanctions pursuant to Rule 11, Tenn. R. App. P. Husband and Wife were scheduled for a contested divorce hearing. On the morning of the hearing, Husband and Wife negotiated a settlement and Judgment was subsequently entered dissolving the parties' marriage and incorporating their Marital Dissolution Agreement and Permanent Parenting Plan. Thereafter, Wife obtained new counsel and filed a Motion to Alter or Amend the Judgment. As the basis for her Motion, Wife alleged that she had not received proper representation from her former attorney. Husband filed a Motion for Rule 11 Sanctions. Following a hearing, the trial court denied Wife's Motion to Alter or Amend and granted Husband's Motion for Rule 11 Sanctions. Wife appeals. We affirm in part, reverse in part. http://www.tba.org/tba_files/TCA/mcgaheyd.wpd ED NETHERLAND, ET AL. v. BILL HUNTER, ET AL. CORRECTED OPINION Court:TCA Attorneys: James L. Weatherly, Jr. and Joseph T. Howell, Nashville, Tennessee, for the appellants, Bill and Lawson Hunter. Philip N. Elbert and Gerald D. Neenan, Nashville, Tennessee, for the appellees, Ed and Desiree Netherland. Judge: CAIN First Paragraph: In this matter we are asked to determine which statute controls the issue of venue for a claim filed under the Tennessee Consumer Protection Act, the venue provision of that act, Tennessee Code Annotated section 47-18-109, or Tennessee's general venue provision, section 20-4-101 of the Code. The trial court determined that section 47-18-109 controls venue in this action and denied Defendants' Motion to Dismiss for Improper Venue. We affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/netherlanded.wpd STATE OF TENNESSEE v. STEPHEN DENTON Court:TCCA Attorneys: D. Mitchell Bryant, Cleveland, Tennessee, and Victoria B. Eiger, New York, New York (on appeal); and Robert W. Ritchie and David M. Eldridge, Knoxville, Tennessee (at trial), for the appellant, Stephen L. Denton, M.D. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; Jerry N. Estes, District Attorney General; and William W. Reedy and Amy F. Reedy, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: In August 1998, the McMinn County Grand Jury indicted the Defendant, Stephen L. Denton, M.D., for one count of rape, two counts of sexual battery, and two counts of unlawful distribution of a Schedule IV controlled substance. In November 1998, the McMinn County Grand Jury indicted the Defendant for three counts of rape, one count of attempted rape, and eight counts of sexual battery. In March 1999, the McMinn County Grand Jury indicted the Defendant for one count of rape and four counts of sexual battery. In sum, the Defendant was charged in three different indictments for twenty-two criminal offenses involving eleven different female patients. Despite repeated objections by the Defendant, the three indictments were consolidated for trial. Four of the counts were nollied before trial, two more counts were dismissed at the conclusion of the State's proof, and the final sixteen counts were considered by the jury. The jury convicted the Defendant for six counts of sexual battery, one count of sexual battery by an authority figure, and three counts of assault and acquitted the Defendant on the remaining six counts. Following a sentencing hearing, the trial court imposed an effective sentence of five years of incarceration. On appeal, the Defendant contends: (1) that the trial court erred by denying his Motion for Severance; (2) that the trial court erred by denying his Motion to Suppress his statement given to law enforcement officers after his arrest; (3) that the trial court erred by allowing the State to improperly cross-examine the Defendant and his former wife; (4) that the Defendant did not exercise "supervisory power" over his patient, and, therefore, was improperly convicted for sexual battery by an authority figure; (5) that the State presented improper closing arguments that were "so inflammatory and prejudicial as to require reversal;" (6) that the Defendant's conviction for assault against an undercover law enforcement officer should be dismissed because the undercover officer consented to the actions of the Defendant; (7) that the State failed to elect the incident upon which it was relying to support one of the Defendant's sexual battery convictions; and (8) that the trial court improperly sentenced the Defendant. Finding reversible error in case number 98-538, we reverse and remand the Defendant's conviction for assault in that case. We affirm all of the other judgments of the trial court. http://www.tba.org/tba_files/TCCA/dentonsl.wpd STATE OF TENNESSEE v. EDWARD R. FORESTER Court:TCCA Attorneys: William Donaldon, Athens, Tennessee and Julie A. Rice, Knoxville, Tennessee, for the appellant, Edward R. Forester. Paul G. Summers, Attorney General and Reporter; John Bledsoe, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Chalmers Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Edward R. Forester, was convicted by a jury of aggravated burglary, a Class C felony. See Tenn. Code Ann. S 39-14-403(b). He was sentenced as a Range III offender to eleven years to be served in the Department of Correction. In this direct appeal, he challenges the sufficiency of the evidence and the length of his sentence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/foresterer.wpd JOHN M. JOHNSON v. DAVID MILLS, Warden Court:TCCA Attorneys: Joe H. Walker and Walter B. Johnson, II, Harriman, Tennessee, for the defendant, John M. Johnson. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; J. Scott McCluen, District Attorney General; and Frank Harvey, Assistant District Attorney General, for the appellee, David Mills, Warden. Judge: WELLES First Paragraph: The Defendant, John M. Johnson, appeals from the denial of his petition for writ of habeas corpus. Finding that denial of the petition was appropriate, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/johnsonjm.wpd JERRY WORLEY v. STATE OF TENNESSEE Court:TCCA Attorneys: Leslie Hale, Blountville, Tennessee, for the appellant, Jerry Worley. Paul G. Summers, District Attorney General; Renee W. Turner, Assistant District Attorney General; Greeley Wells, District Attorney General; and J. Lewis Combs, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Jerry Worley, pled guilty to nine counts of selling .5 grams or more of cocaine and one count of possession with intent to sell over .5 grams of cocaine. For these offenses, the Defendant received an effective sentence of twenty years. The Defendant did not perfect an appeal of his sentence, but petitioned for post-conviction relief on the grounds that his guilty plea was not valid; was the result of ineffective assistance of counsel; and that his sentence offends constitutional due process. After an evidentiary hearing, the trial court denied relief, and this appeal followed. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/worleyj.wpd PLEASE FORWARD THIS E-MAIL! 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