Opinion FlashJune 1, 2004Volume 10 — Number 105 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 PATRICIA M. BRYANT v. BAPTIST HEALTH SYSTEM HOME CARE OF EAST TENNESSEE Court:TSC - Workers Comp Panel Attorneys: Reuben N. Pelot IV, Knoxville, Tennessee, for the appellant, Baptist Health System Home Care of East Tennessee. J. Anthony Farmer, Knoxville, Tennessee, for the appellee, Patricia M. Bryant. Judge: THAYER 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. The trial court awarded the employee 22.5 percent permanent partial disability. The employer contends the award was excessive and the trial court was in error in dismissing its counterclaim seeking expenses and penalties under the Workers' Compensation Fraud Act as the employee testified falsely in a discovery deposition. Judgment does not dispose of the counterclaim and is merely interlocutory and not subject to interim appeal. Appeal dismissed. http://www.tba.org/tba_files/TSC_WCP/bryantpm.wpd MICHAEL L. COLLINS v. ADVENT ELECTRIC d/b/a ENCOMPASS ELECTRICAL TECHNOLOGIES OF EAST TENNESSEE, INC., ET AL. Court:TSC - Workers Comp Panel Attorneys: Linda J. Hamilton Mowles, Knoxville, Tennessee, for Appellant, Insurance Company Of The State Of Pennsylvania. James M. Davis, Morristown, Tennessee, for Appellee, Michael L. Collins. Judge: THAYER 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 AnnS 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the employee 70 percent permanent partial disability. The insurance carrier contends the trial court was in error in finding (1) proper notice of injury had been given, (2) the action was timely filed and not barred by the one year statute of limitations, and (3) the expert medical testimony was sufficient to establish causation of injury. Judgment is affirmed. http://www.tba.org/tba_files/TSC_WCP/collinsml.wpd TIFFANY LEWIS DENYER v. PENINSULA HOSPITAL Court:TSC - Workers Comp Panel Attorneys: R. Kim Burnette and John A. Willis, Knoxville, Tennessee, attorneys for appellant, Peninsula Hospital. Garry Ferraris, Knoxville, Tennessee, attorney for appellee, Tiffany Lewis Denyer. Judge: CATE 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. The employer contends the trial court's award of 50 percent permanent partial disability to the arm was excessive. We disagree and affirm. http://www.tba.org/tba_files/TSC_WCP/denyertl.wpd SHARON D. KELLER v. NATIONAL HEALTHCARE CORPORATION Court:TSC - Workers Comp Panel Attorneys: Paul Campbell III, Chattanooga, Tennessee, for Appellant, National Healthcare Corporation. John Mark Griffin, Chattanooga, Tennessee, for Appellee, Sharon D. Keller. Judge: THAYER 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. The trial court awarded the employee 42 percent permanent partial disability as a result of a rotator cuff tear injury. The employer contends the evidence preponderates against the award. Other issues relate to the award of temporary total benefits, proper notice and the statute of limitations. The judgment is affirmed. http://www.tba.org/tba_files/TSC_WCP/kellersd.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0601.wpd IN RE: AMENDMENTS TO SUPREME COURT RULE 13 WITH DISSENTING OPINION & APPENDIX Court:TSC - Rules Judge: DROWOTA First Paragraph: With the exception of one issue, this Court unanimously adopts amended Rule 13, set forth as Appendix A to this order. With regard to ex parte hearings, the decision of this Court is not unanimous. The majority decision appears in subsection III of this order. A separate dissent is attached and made a part of this order. With respect to all other issues, this order represents the unanimous decision of the Court. http://www.tba.org/tba_files/TSC_Rules/finalorderrule13_6-1-04.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC_Rules/finaldisrule13_6-1-04.wpd APPENNDIX http://www.tba.org/tba_files/TSC_Rules/finalappxrule13_6-1-04.wpd STATE OF TENNESSEE, ET AL. v. JAMIE LYNN BURNETTE, ET AL. Court:TCA Attorneys: John H. Richardson, Jr., Fayetteville, Tennessee, for the appellant, Jamie Lynn Burnette. Paul G. Summers, Attorney General and Reporter; Melissa Thomas and Juan G. Villasenor Maldonado, for the appellee, Tennessee Department of Children's Services. Judge: CAIN First Paragraph: This appeal involves the juvenile court's termination of parental rights to two children, A.L.B. (d.o.b. 10/25/96), and B.L.B. (d.o.b. 12/01/98). Appellant argues that the trial court's findings regarding abandonment of the children, persistent conditions, and the children's best interests are unsupported by clear and convincing evidence. We affirm the trial court. http://www.tba.org/tba_files/TCA/burnettejamie.wpd KEVIN DEMERS, ET AL. v. WALTER WHITTENBURG, ET AL. WITH CONCURRING OPINION Court:TCA Attorneys: Troy L. Brooks, Mt. Juliet, Tennessee, for the appellants, Kevin Demers and Demers, Inc. Robert J. Mendes, Nashville, Tennessee, for the appellees, Walter Whittenburg, Randall Qualls, and Whittenburg, Inc. Michael Ernest Evans, Nashville, Tennessee, for the appellee, Karen Annette Wallace Demers. Judge: CAIN First Paragraph: This case involves two Rule 12.02(6) motions to dismiss converted to motions for summary judgment through the filing of additional affidavits with Plaintiff's response to these motions. Although the trial court dismissed all claims against Defendants for failure to state a claim under Rule 12.02(6), we must review the evidence using a Rule 56 motion for summary judgment standard. Plaintiff alleged numerous business torts, conspiracy, intentional infliction of emotional distress, and defamation in this action against Defendants. However, Plaintiff failed to provide any evidence from which a jury could return a verdict in favor of Plaintiff on any count alleged. The trial court also granted Rule 11 sanctions against Plaintiff. The judgment of the trial court is affirmed, but on summary judgment grounds. http://www.tba.org/tba_files/TCA/demerskevin_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/demerskevin_con.wpd DANA FRIEDENSTAB, ET AL. v. MARTHA SHORT WITH DISSENTING OPINION Court:TCA Attorneys: Pamela M. Spicer, Nashville, Tennessee, for the appellants, Dana Friedenstab and Michael Friedenstab. Alan M. Sowell, M. Kristin Selph, Nashville, Tennessee, for the appellee, Martha Short. Judge: CAIN First Paragraph: The plaintiffs bring this appeal from the trial court's summary judgment in favor of the defendant. We affirm. http://www.tba.org/tba_files/TCA/friedenstabdana_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/friedenstabdana_dis.wpd JOHN McVOY v. MARY ANN PARKS Court:TCA Attorneys: Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Mary Ann Parks. Randall J. Spivey, Nashville, Tennessee, for the appellee, John McVoy. Judge: KOCH First Paragraph: This appeal involves an order of protection. After several public confrontations with his former girlfriend, the petitioner sought an order of protection from the Chancery Court for Sumner County. The trial court granted the order of protection, and the former girlfriend appealed to this court. Because the evidence does not preponderate against the trial court's decision, we affirm. http://www.tba.org/tba_files/TCA/mcvoyj.wpd CHERYL O'BRIEN v. RHEEM MANUFACTURING CO. Court:TCA Attorneys: Phillip Leon Davidson, Nashville, Tennessee, for the appellant, Cheryl O'Brien. Michael North and Ronald Gene Harris, New Orleans, Louisiana, for the appellee, Rheem Manufacturing Co. Judge: CAIN First Paragraph: In this appeal an unsuccessful plaintiff seeks review of a jury verdict approved by the trial court, in favor of the defendant manufacturer. We affirm. http://www.tba.org/tba_files/TCA/obriencheryl.wpd STATE OF TENNESSEE v. SALVATORE BRUNETTI Court:TCCA Attorneys: William B. (Jake) Lockert, III, District Public Defender, for the appellant, Salvatore Brunetti. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and Suzanne Lockert, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Salvatore Brunetti, was convicted of voluntary manslaughter. The trial court imposed a sentence of five years in the Department of Correction. In this appeal, the defendant asserts that the trial court erred by denying an alternative sentence. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/brunettisalvatore.wpd STATE OF TENNESSEE v. JAMIE MICHELLE CRAWFORD Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee, (on appeal); and Stephen M. Wallace, District Public Defender; and Joseph F. Harrison, Assistant Public Defender, Blountville, Tennessee, (at trial), for the appellant, Jamie Michelle Crawford. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Following a revocation hearing, the trial court revoked the probation of Defendant, Jamie Michelle Crawford, and ordered her to serve the remainder of her sentence in confinement. Defendant does not appeal the revocation of her probation but argues that the trial court erred in not imposing a sentence of split confinement. After a thorough review of the record in this matter, we affirm the judgment of the trial court revoking probation and ordering Defendant to serve her sentence in confinement. http://www.tba.org/tba_files/TCCA/crawfordjamiemichelle.wpd JERRY W. DICKERSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Jerry W. Dickerson, Mountain City, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Braden Boucek, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Jerry W. Dickerson, appeals from the trial court's dismissal of his pro se petition for writ of habeas corpus. Petitioner alleges that his conviction and sentence are void because the trial record was improperly authenticated and contained inaccuracies. Following a review of the record in this matter, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/dickersonjerryw.wpd ROBERT L. DREW v. STATE OF TENNESSEE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, Robert L. Drew. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; and Doug Thurman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Robert L. Drew, appeals the denial of his petition for post-conviction relief. The issue is whether he was denied the effective assistance of counsel. The judgment of the post- conviction court is affirmed. http://www.tba.org/tba_files/TCCA/drewrobertl.wpd DAVID JOHNSON HARTSELL v. STATE OF TENNESSEE Court:TCCA Attorneys: David Johnson Hartsell, Petros, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; and Joe Crumley, District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, David Johnson Hartsell, appeals the order of the Circuit Court for Washington County dismissing his post-conviction relief petition. 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 petition fails to present a cognizable claim for relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/hartselldavidj.wpd STATE OF TENNESSEE v. DAVID HESTER Court:TCCA Attorneys: James D. Hutchins, Dandridge, Tennessee, for the appellant, David Hester. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and Steven Hawkins, Charles E. Atchley, Jr., and Joseph Baker, Assistant District Attorneys General, for the appellee, the State of Tennessee. Judge: WADE First Paragraph: The defendant, David Hester, pled guilty to statutory rape. The trial court imposed a one-year sentence to be served on supervised probation and directed community service. In this appeal, he asserts that the trial court erred by denying judicial diversion. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/hesterdavid.wpd STATE OF TENNESSEE v. DONALD KEEL Court:TCCA Attorneys: Michael A. Carter, Crocker & Carter, Milan, Tennessee, for the Appellant, Donald Keel. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; Garry G. Brown, District Attorney General; and Jerald Campbell, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Donald Keel, was convicted in the Gibson County Circuit Court of aggravated perjury, felon in possession of a handgun, and assault. Keel's sentence for aggravated perjury was imposed consecutively to his concurrent sentences for unlawful weapon possession and assault. On appeal, he raises two issues for our review: (1) whether the evidence is sufficient to support his conviction for aggravated perjury and (2) whether consecutive sentencing is proper. After review of the record, we affirm the conviction and subsequent sentencing decision. http://www.tba.org/tba_files/TCCA/keeldonald.wpd STATE OF TENNESSEE v. BILLY GENE RICH Court:TCCA Attorneys: Lloyd R. Tatum, Tatum & Tatum, Henderson, Tennessee, for the Appellant, Billy Gene Rich. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; James G. Woodall, District Attorney General; and Angela R. Scott, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Billy Gene Rich, was convicted of driving under the influence (DUI), second offense, and was sentenced to serve eleven months and twenty-nine days in jail. On appeal, Rich argues that: (1) the evidence is insufficient to support his conviction and (2) his sentence is excessive. After review, the conviction and sentence are affirmed. http://www.tba.org/tba_files/TCCA/richbillyg.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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