Opinion FlashMarch 29, 2004
Volume 10 Number 060
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):
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Howard H. Vogel
HELEN M. ASHFORD v. THE AEROSTRUCTURES CORPORATION, ET AL. Court:TSC - Workers Comp Panel Attorneys: Stephen W. Elliott, Nashville, Tennessee, for appellants, The Aerostructures Corporation and Travelers Property Casualty. William Edward Farmer, Lebanon, Tennessee, for appellee, Helen M. Ashford. 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 Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that employee had sustained a permanent partial disability of 90% to the body as a whole as a result of the gradual injury she sustained during her employment and that the events on December 7, 1999, aggravated a preexisting lung condition. The trial court awarded workers' compensation benefits in the lump sum amount of $188,632.80, along with certain discretionary costs. The trial court also allowed employer a setoff for medical benefits in the amount of $3,036.37 but disallowed setoff for disability benefits. We find no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/ashfordh.wpd
TONY BILBREY v. KENNETH O. LESTER CO., INC. Court:TSC - Workers Comp Panel Attorneys: John R. Lewis, Nashville, Tennessee, for Appellant, Kenneth O. Lester Co., Inc. Anthony E. Hagan, Lebanon, Tennessee, for Appellee, Tony Bilbrey. Judge: TURNBULL 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. 50-6-225(e)(3) to hear and report to the Supreme Court Findings of Fact and Conclusions of Law. The trial court found that the employer had made voluntary medical payments within one year of the filing of suit; that the statute of limitations had not expired; and that the plaintiff suffered a work related back injury. The trial court fixed plaintiff's disability at 22-1/2 percent to the body as a whole. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/bilbreyt.wpd
ROBERT W. KELLEY v. LUMBERMENS MUTUAL CASUALTY COMPANY AND WILSON SPORTING GOODS CO. Court:TSC - Workers Comp Panel Attorneys: Rick L. Moore, Moore & Hedges, Tullahoma, Tennessee, for the Appellant, Robert W. Kelley. Edward A. Hadley, North, Pursell, Ramos and Jameson, PLC, Nashville, Tennessee, for the Appellees, Lumbermens Mutual Casualty Company and Wilson Sporting Goods, Co. Judge: PEOPLES First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The trial court found the claim to be barred by the statute of limitations. We affirm. http://www.tba.org/tba_files/TSC_WCP/kellyr.wpd
EVELYN MARIE ABERCROMBIE v. STEPHEN EUGENE ABERCROMBIE Court:TCA Attorneys: Selma Cash Paty, Chattanooga, Tennessee, for the appellant, Stephen Eugene Abercrombie. Marvin Berke, Chattanooga, Tennessee, for the appellee, Evelyn Marie Abercrombie. Judge: SUSANO First Paragraph: Stephen Eugene Abercrombie ("Father"), the custodian of the parties' two minor children, filed a complaint against his former wife, Evelyn Marie Abercrombie ("Mother"), seeking to modify the trial court's January 19, 2000, order awarding him custody. That order had directed that, if Father decided to enroll the children in private school, Mother would pay one-half of the children's tuition and other private school expenses. The same order, however, recited that Mother was not required to pay any general child support to Father. In his post-divorce complaint, Father asked the trial court to set a sum certain to be paid by Mother to Father as general child support under the Child Support Guidelines ("the Guidelines"). The trial court declined to modify its previous order and dismissed Father's complaint "on the ground that the guidelines currently do not show any . . . child support due." Father appeals, arguing that Mother should be required to pay a set amount of general child support in addition to her obligation to pay one-half of the children's private school tuition and related expenses. We reverse and remand with instructions. http://www.tba.org/tba_files/TCA/abercro.wpd
DONALD CAMPBELL, ET AL. v. BEDFORD COUNTY REGIONAL PLANNING COMMISSION Court:TCA Attorneys: Andrew C. Rambo, Shelbyville, Tennessee, for the appellant Donald W. Campbell Jr., and wife Melissa K. Campbell. Ginger Bobo Shofner and John T. Bobo, for the appellee Bedford County Regional Planning Commission. Judge: WEATHERFORD First Paragraph: In this declaratory judgment action, plaintiffs appeal the decision of the trial court finding that they were not operating an auto repair business on the property in question prior to the adoption of a zoning resolution of Bedford County; and were therefore not entitled relief pursuant to the "grandfather clause" exceptions in Tennessee Code Annotated S 13-7-208(b)-c). The plaintiffs did not seek judicial review of the Board of Zoning Appeals decision by filing a Petition for Writ of Certiorari pursuant to Tenn. Code Ann. S 27-9-102 within 60 days after the Board's action. We find that this was also the applicable period of limitation for filing the declaratory judgment action which was not filed until almost 10 months after the Board's decision. We find that this case is therefore time barred and the trial court did not have subject matter jurisdiction. We affirm the decision of the trial court for the reasons stated herein http://www.tba.org/tba_files/TCA/campbelldon.wpd
DEBORAH L. JORDAN v. WALTER B. JORDAN Court:TCA Attorneys: Ronald J. Berke, Chattanooga, Tennessee, for the appellant, Deborah L. Jordan. David Haines Rotroff, Chattanooga, Tennessee, for the appellee, Walter B. Jordan. Judge: SUSANO First Paragraph: This appeal presents a question of first impression. Deborah L. Jordan ("Wife") filed a proposed "qualified" domestic relations order ("QDRO") with the trial court clerk more than 10 years after her divorce from Walter B. Jordan ("Husband"). The trial court entered the proposed QDRO. Husband filed a motion for relief from judgment, arguing that the entry of the proposed QDRO was barred because Wife failed to act "within ten (10) years of the entry of [the] judgment contained in the Final Decree of Divorce," citing Tenn. Code Ann. S 28-3-110 (2000). The trial court granted Husband's motion and set aside the previously-entered QDRO. Wife appeals, arguing that the ten- year statute of limitations does not apply to the filing of a proposed QDRO because, according to her, such a filing is not an action to enforce a judgment. We agree with Wife's position. Accordingly, we reverse the judgment of the trial court. http://www.tba.org/tba_files/TCA/jordandl.wpd
KOKOMO GRAIN CO., INC. v. RANDY COLLINS, ET AL. Court:TCA Attorneys: Jerre Michael Hood, Winchester, Tennessee, for the appellants Randy Collins and Jerre M. Hood. Stephen M. Worsham, Tullahoma, Tennessee, for the appellee, Kokomo Grain Co., Inc. Judge: CLEMENT First Paragraph: This is a dispute between the former tenant of a grain storage facility and the new owners of the premises who acquired the property at a foreclosure sale. The issues in dispute are whether the tenant was a bailor or a holdover tenant following foreclosure and the fair market storage or rental value of the premises. The trial judge ruled that the former tenant was a holdover tenant and that the previous rental rate was the fair market rental value for the holdover period. We affirm. http://www.tba.org/tba_files/TCA/kokomograin.wpd
BELINDA KULLMAN RHOADS v. CHRISTOPHER KULLMAN, SR. WITH DISSENTING OPINION Court:TCA Attorneys: Kirk Vandivort, Charlotte, Tennessee, for the appellant Belinda Kullman Rhoads. Jennifer Davis Roberts, Dickson, Tennessee, for the appellee Christopher Kullman, Sr. Judge: WEATHERFORD First Paragraph: In this custody case, the mother appeals the denial of her Tenn. R. Civ. P. 60.02 Motion for Relief from Judgment and Motion for New Trial. The mother's trial counsel withdrew on the day of the final hearing and the mother failed to appear at the final hearing. After hearing testimony from the father, the trial court found a significant and material change of circumstances had occurred and that it was in the best interest of the parties' minor children for custody to be changed to the father. The mother contends that her failure to appear at the custody hearing was due to excusable neglect or inadvertence because her attorney had informed her "that the matter should be continued to allow her to obtain new counsel for further litigation in this matter." For the reasons set out in this opinion, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/rhoadsbelindak_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/rhoadsbelindak_dis.wpd
STATE OF TENNESSEE v. DANIEL ANDREW DECKER *CORRECTED OPINION* WITH CONCURRING OPINION Court:TCCA Attorneys: Ardena J. Garth, District Public Defender, and Karla G. Gothard, Assistant District Public Defender, for the appellant, Daniel Andrew Decker. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and Barry Steelman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Daniel Andrew Decker, appeals the trial court's order removing Assistant District Public Defender Karla Gothard as his counsel. Because the trial court did not abuse its discretionary authority, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/deckerdanielandrew_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/deckerdanielandrew_dis.wpd
KENNETH HERRING v. STATE OF TENNESSEE Court:TCCA Attorneys: Stanley K. Pierchoski, Lawrenceburg, Tennessee, for the Appellant, Kenneth Herring. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; T. Michael Bottoms, District Attorney General; and J. Douglas Dicus, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Kenneth Herring, appeals as of right from the judgment of the Wayne County Circuit Court denying his petition for post-conviction relief. Herring was convicted in 1999 of two counts of aggravated sexual battery. On appeal, Herring first argues that his right to due process was violated when the trial court failed to exclude a confession obtained as a result of a "coercive and deceitful" environment during interrogation and that trial counsel was ineffective for failing to seek suppression on this ground. He next contends that trial counsel was ineffective for failing to file a motion to sever the seven indicted offenses, which resulted in his two convictions. After review of the record, dismissal of the petition is affirmed. http://www.tba.org/tba_files/TCCA/herringkenneth.wpd
STATE OF TENNESSEE v. FREDERICK T. POINTER Court:TCCA Attorneys: John H. Henderson, District Public Defender; and Eugene J. Honea, Assistant Public Defender, for the appellant, Frederick T. Pointer. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Sharon E. Guffee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant pled guilty in the Williamson County Circuit Court to sexual battery by an authority figure and incest, Class C felonies. After a sentencing hearing, the trial court sentenced him as a Range I, standard offender to concurrent sentences of four years for each conviction to be served as eleven months, twenty-nine days at seventy-five percent in the county jail and the remainder on supervised probation. The defendant appeals, claiming that the trial court erred by denying his request for full probation. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/pointerfrederickt.wpd
ANTHONY REID v. STATE OF TENNESSEE Court:TCCA Attorneys: Larry D. Wright, Cleveland, Tennessee, for the Petitioner, Anthony Reid. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Stephen D. Crump, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: A Bradley County jury convicted the Petitioner, Anthony Reid, of first degree felony murder, especially aggravated robbery, aggravated robbery, attempted aggravated robbery and evading arrest. The trial court imposed an effective sentence of life plus twenty-five years. On direct appeal, this Court affirmed the convictions, and the Tennessee Supreme Court denied the Petitioner's application for permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging that he was denied effective assistance of counsel on direct appeal because his counsel failed to raise the issue of the sufficiency of the convicting evidence. Following a hearing, the post-conviction court dismissed the petition. In this appeal, the Petitioner contends that it was "per se" ineffective assistance of counsel for trial counsel to fail to raise the issue of the sufficiency of the convicting evidence on direct appeal. Finding no error, we affirm the trial court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/reida.wpd
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