Opinion Flash

October 28, 2003
Volume 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):
00 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 New Opinion(s) from the Tennessee Court of Appeals
04 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


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

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