Opinion Flash

March 12, 2004
Volume 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):
02 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
01 New Opinion(s) from the Tennessee Court of Appeals
06 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


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

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