Opinion Flash

March 10, 2004
Volume 10 — Number 047

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
02 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


LINDA F. CLARK, et al. v. NASHVILLE MACHINE ELEVATOR COMPANY
INCORPORATED

Court:TSC - Workers Comp Panel

Attorneys:                          

Branch H. Henard, III, and Mark A. Baugh, Nashville, Tennessee, for
the appellant, Nashville Machine Elevator Company, Incorporated.

Donald S. Caulkins, Franklin, Tennessee, for the appellees, Linda F.
Clark and Brandon W. Clark.

Judge: DROWOTA

First Paragraph:

In this workers' compensation case,  the employer, Nashville Machine
Elevator Co., Inc., has appealed the trial court's award of death
benefits to the widow and son of the employee, Eddie W. Clark, Jr.,
who suffered a fatal heart attack while driving  the employer's
vehicle home from work.  The employer contends generally that the
evidence preponderates against the trial court's finding that the
employee suffered an injury causally related to his employment
activities, and specifically argues that the heart attack was not
compensable because the employee was not physically exerting himself
when he suffered the heart attack.  The appeal was argued before the
Special Workers' Compensation Appeals Panel pursuant to Tennessee Code
Annotated section 50-6-225(e)(3), but the appeal was transferred to
the full Supreme Court prior to the Panel issuing its decision.  The
question before this Court is whether the evidence preponderates
against the trial court's finding that the employee's heart attack
arose out of his employment.  After carefully examining the record and
the relevant authorities, we find no error and affirm the judgment of
the trial court.  We further hold that physical exertion or strain is
not required at the instant an employee's heart attack occurs,
provided there is evidence linking the physical activities of the
employment with the heart attack

http://www.tba.org/tba_files/TSC_WCP/clarklinda.wpd

IN RE C.M.M. & S.D.M.

Court:TCA

Attorneys:                          

Drew W. Taylor, Erin, Tennessee, for the appellant, M.M.

Paul G. Summers, Attorney General and Reporter, and Juan G.
Villasenor, Assistant Attorney General, for the appellee, Tennessee
Department of Children's Services.

Judge: KOCH

First Paragraph:

This appeal involves the termination of a mother's parental rights
with regard to two of her six children. Less than four months after
the Tennessee Department of Children's Services was granted temporary
custody of the children, their foster parents filed a petition in the
Juvenile Court for Houston County seeking permanent custody and the
termination of the parental rights of the biological parents.  The
children's mother contested the petition, but the father did not. 
Following a hearing, the juvenile court terminated the parental rights
of both parents.  The mother has appealed.  We have determined that
the order terminating the mother's parental rights must be vacated
because the record does not contain clear and convincing evidence that
the Department made reasonable efforts to reunite the mother with her
children.

http://www.tba.org/tba_files/TCA/cmm.wpd

JAMES KENT PYLANT v. KAREN CARDIN SPIVEY

Court:TCA

Attorneys:                          

W. Charles Doerflinger, Lawrenceburg, Tennessee, for the appellant,
James Kent Pylant.

Joe W. Henry, Jr., Pulaski, Tennessee, for the appellee, Karen Cardin
Pylant (Spivey).

Judge: COTTRELL

First Paragraph:

This appeal involves a dispute over the extent of a father's
obligation, under a provision in a property settlement agreement, to
pay for his daughter's college education.  The daughter chose to
attend an expensive private college.  The trial court found that
father should pay tuition equivalent to the cost of an out-of-state
public university.  Both parties appealed.  We affirm the trial
court's decision that the father is obligated to pay reasonable costs,
but vacate the judgment because there is insufficient proof of such
costs.

http://www.tba.org/tba_files/TCA/pylantj.wpd

JOHN PAUL BILBY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

John S. Colley, III, Colley & Colley, Columbia, Tennessee, for the
Appellant, John Paul Bilby.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Elizabeth B. Marney, Assistant Attorney General;
and J. William Pope, Jr., District Attorney General, for the Appellee,
State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, John Paul Bilby, appeals the summary dismissal of his
application for writ of habeas corpus.  On appeal, Bilby argues that:
(1) his 1989 guilty pleas were not voluntarily entered and (2) the
trial court's order of summary dismissal is "void for its failure to
contain a certificate, or other proof of service."  Finding these
issues without merit, the judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/bilbyjohnpaul.wpd

EDDIE DEAN HALL  v.  STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Robert L. Jolley, Jr., Knoxville, Tennessee (on appeal), and Keith A.
Haas, Newport, Tennessee (at trial), for the appellant, Eddie Dean
Hall.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Al Schmutzer, Jr., District Attorney
General; James Bruce Dunn, Assistant District Attorney, for the
appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Eddie Dean Hall, pled guilty to two counts of first degree
murder and received concurrent sentences of life without parole.  No
direct appeal was taken.  Petitioner timely filed a petition for
post-conviction relief, alleging that counsel was ineffective and that
his guilty plea was not knowingly and voluntarily entered.  Petitioner
appeals from the trial court's denial of post-conviction relief. 
After a careful review of the record, we affirm the judgment of the
trial court

http://www.tba.org/tba_files/TCCA/halleddiedean.wpd

STATE OF TENNESSEE v. JAMES ANTHONY HILL

Court:TCCA

Attorneys:                          

Merrilyn Feirman, Nashville, Tennessee (on appeal); Donna Leigh
Hargrove, District Public Defender; and Andrew Jackson Dearing, III,
Assistant Public Defender, (at trial and on appeal), for the
appellant, James Anthony Hill.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The defendant, James Anthony Hill, was convicted of possession of a
weapon in a penal institution, a Class C felony, and sentenced as a
Range III, persistent offender to thirteen years in the Department of
Correction.  On appeal, he argues:  (1) the trial court erred in not
instructing the jury as to the lesser-included offense of possession
of a prohibited weapon; (2) the evidence was insufficient to support
his conviction; and (3) his sentence is excessive.  Following our
review, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/hilljamesa.wpd

STATE OF TENNESSEE v. JOEY THOMAS HOLLAND

Court:TCCA

Attorneys:                          

Roger Eric Nell, District Public Defender; Charles S. Bloodworth,
Assistant District Public Defender, Springfield, Tennessee, for the
Appellant, Thomas Holland.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Helena Walton Yarbrough, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and Dent
Morriss, Assistant District Attorney General, for the Appellee, State
of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Joey Thomas Holland, appeals the judgment of the
Robertson County Circuit Court denying his petition for writ of error
coram nobis.  Holland was convicted by a jury of two counts of
aggravated sexual battery of his minor son.  Holland alleges that his
convictions should be set aside because the victim recanted his trial
testimony.  After a thorough review of the record, we affirm the
decision of the trial court denying the petition.

http://www.tba.org/tba_files/TCCA/hollandjoeythomas.wpd

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