Opinion FlashMarch 12, 2004Volume 10 — Number 049 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 SHAMERY BLAIR and TITUS BLAIR v. WEST TOWN MALL Court:TSC Attorneys: Howard E. Jarvis and Stephanie K. Hunt, Knoxville, Tennessee, for the appellants, West Town Mall. James A. H. Bell and Richard L. Burnette, Knoxville, Tennessee, for the appellees, Shamery Blair and Titus Blair. Judge: DROWOTA First Paragraph: We granted permission to appeal in this case to determine whether the Court of Appeals erred in reversing the trial court's judgment granting summary judgment for Defendant. In resolving this issue, we must also determine whether Tennessee recognizes the "method of operation" theory in premises liability cases and whether Plaintiff's reliance upon that theory is appropriate, as a matter of law, in this case. We hold that plaintiffs in premises liability cases in Tennessee may attempt to establish constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence. This theory is available to Plaintiff in this case to pursue at trial. Because Defendant in this case failed to affirmatively negate an essential element of Plaintiff's claim or conclusively establish an affirmative defense, Plaintiff's burden to produce evidence establishing the existence of a genuine issue for trial was not triggered. Thus, the judgment of the Court of Appeals reversing the trial court's grant of summary judgment is affirmed. Accordingly, the judgment of the Court of Appeals is affirmed in part and modified in part, and this case is remanded to the trial court. http://www.tba.org/tba_files/TSC/blairshamery.wpd CINDERELLA FERRELL OSBORNE v. MOUNTAIN LIFE INSURANCE COMPANY Court:TSC Attorneys: Lewis S. Howard, Jr. and Heather R. Guinn, Knoxville, Tennessee, for the Appellant, Mountain Life Insurance Company. Douglas T. Jenkins, Rogersville, Tennessee, for the Appellee, Cinderella Ferrell Osborne. Judge: ANDERSON First Paragraph: We granted review to determine whether the defendant credit life insurance company was estopped from relying on policy language which excluded coverage if an insured received medical treatment for and died from a disease within six months of the date of coverage. The trial court granted summary judgment to the credit life insurance company based on the policy exclusion. The Court of Appeals reversed, holding that the defendant was estopped from relying on the policy exclusion and ordering payment of the policy benefits to the plaintiff, widow of the insured. After reviewing the record and applicable authority, we conclude that the trial court correctly granted summary judgment for the defendant and that the Court of Appeals erred in holding that the defendant was estopped from relying on the policy exclusion. We therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court. http://www.tba.org/tba_files/TSC/osbornecf.wpd WADE NANCE v. STATE INDUSTRIES, ET AL. Court:TSC - Workers Comp Panel Attorneys: Donald D. Zuccarello, Nashville, Tennessee and Marcia D. McShane, Nashville, Tennessee, for appellant, Wade Nance Cynthia Debula Baines, Nashville, Tennessee, John Thomas Feeney, Nashville, Tennessee, and Shannon Elisabeth Poindexter, Nashville, Tennessee, for appellees, ITT Hartford Insurance Co. and State Industries, Inc. Judge: WALLACE 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. Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This matter was initially tried by the trial court on November 29, 1999, and the trial court found in favor of employer/defendant State Industries due to employee's failure to use a mandated safety procedure. On appeal, the Workers' Compensation Panel articulated a new four-prong standard to be applied when employers assert the affirmative defense of willful failure or refusal to use a safety appliance. This case Wade Nance v. State Industries, Inc. and ITT Hartford Insurance Co., 33 S.W.3d 222 (Tenn. 2000). The four prong test enumerated is as follows: (1) at the time of the injury the employer had in effect a policy requiring the employee's use of a particular safety devise; (2) the employer carried out strict, continuous and bona fide enforcement of the policy; (3) the employee had actual knowledge of the policy, including a knowledge of the danger involved in its violation, through training provided by the employer; and (4) the employee willfully and intentionally failed or refused to follow the established policy requiring use of the safety appliance. The panel concluded that the employer had carried its burden of proof on elements (1), (3) and (4), and remanded the case for a new trial on element (2), all as set out above. On July 15, 2002, the case was tried again before the same judge and the court determined State Industries, employer, had satisfied its burden of proof on this issue, i.e. the employer carried out a strict, continuous and bona fide enforcement policy. As discussed below, the panel has concluded the evidence does not preponderate against the trial court's finding and we affirm. http://www.tba.org/tba_files/TSC_WCP/nancewade.wpd LILLIAN ANNETTE MUMFORD v. JOE LESLIE MUMFORD Court:TCA Attorneys: Douglas J. Toppenberg, Knoxville, Tennessee, for the Appellant, Lillian Annette Mumford. Joe Leslie Mumford, Knoxville, Tennessee, pro se Appellee. Judge: SWINEY First Paragraph: After five years of marriage, Lillian Annette Mumford ("Wife") filed for a divorce from Joe Leslie Mumford ("Husband"). Husband also filed for a divorce. The Trial Court appointed a Special Master to handle discovery disputes and bifurcated the trial separating the issues of divorce and property division. During the first portion of the bifurcated trial, the Trial Court heard fault proof and found that both parties were entitled to a divorce and declared the parties divorced pursuant to Tenn. Code Ann. S 36-4-129. In the second portion of the bifurcated trial, the Trial Court divided the marital property. Wife appeals raising issues concerning the Trial Court's discovery dispute resolution process and the Trial Court's division of marital property. We affirm. http://www.tba.org/tba_files/TCA/mumfor.wpd ALLEN R. CARLTON, PRO SE v. STATE OF TENNESSEE Court:TCCA Attorneys: Allen R. Carlton, pro se. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner, Allen R. Carlton, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/carltonallen.wpd STATE OF TENNESSEE v. MICHAEL LENARD HALL CORRECTED OPINION Court:TCCA Attorneys: Tommy K. Hindman, Knoxville, Tennessee (at trial); Mark Stephens, Public Defender, Knoxville, Tennessee (at trial); and Wade V. Davies, Knoxville, Tennessee (on appeal), for the Appellant, Michael Lenard Hall. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Jo Helm, Assistant District Attorney General, for the Appellee, State of Tennessee Judge: WITT First Paragraph: Michael Lenard Hall appeals from his Knox County Criminal Court conviction of first degree murder of his ex-wife, Pamela Hall. He claims that insufficient evidence supports his conviction, that the jury instructions were flawed, and that the prosecution denied him a fair trial through improper questioning of witnesses and improper argument. Because we agree with the defendant that the state failed to present sufficient proof of premeditation, we modify the first degree murder conviction and impose a second degree murder conviction in its place. However, we are unpersuaded of error warranting a new trial. We remand for sentencing on the second degree murder conviction. CORRECTED OPINION http://www.tba.org/tba_files/TCCA/hallmichaellenard.wpd ROGER T. JOHNSON, PRO SE v. STATE OF TENNESSEE Court:TCCA Attorneys: Roger Johnson, pro se. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner, Roger T. Johnson, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/johnsonroger.wpd STATE OF TENNESSEE v. DAVID W. SONNEMAKER Court:TCCA Attorneys: J. Chris Helton, Chattanooga, Tennessee (on appeal), and Rich Heinsman, Chattanooga, Tennessee (at probation revocation hearing), for the appellant, David W. Sonnemaker. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; William H. Cox, District Attorney General; and Mary Sullivan Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, David W. Sonnemaker, appeals from the Hamilton County Criminal Court's revocation of his probation that he received for his guilty plea to sexual battery. The Defendant contends that: (1) he did not receive effective assistance of counsel at his probation revocation hearing; and (2) he was not provided adequate notice of the probation violation or given an opportunity to be heard. We affirm the lower court's judgment. http://www.tba.org/tba_files/TCCA/sonnemakerdw.wpd LACORRICK C. WILLIAMS, PRO SE v. JAMES M. DAVIS Court:TCCA Attorneys: LaCorrick C. Williams, pro se. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner, LaCorrick C. Williams, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/williamslacorrick.wpd HAROLD WOODROOF, PRO SE v. STATE OF TENNESSEE Court:TCCA Attorneys: Harold Woodroof, pro se. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner, Harold Woodroof, appeals the trial court's denial of his petition for post-conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner failed to file his post- conviction petition within the one year statute of limitations. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/woodroofharold.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 |
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