Opinion FlashJune 9, 2004Volume 10 — Number 111 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 VULCAN MATERIALS COMPANY v. CHRISTOPHER DALE WATSON CORRECTED OPINION Court:TSC - Workers Comp Panel Attorneys: D. Brett Burrow, Gordon C. Aulgur, Brewer, Krause & Brooks, Nashville, Tennessee, for the Appellant Vulcan Materials Company. Jay R. Slobey, Blackburn & McCune, Nashville, Tennessee, for Christopher Dale Watson. Judge: PEOPLES 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 S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer claims that the trial court erred (1) in finding work-related disability from aggravation of a back problem, (2) in denying reimbursement of overpayment of temporary total disability benefits by the Second Injury Fund, and (3) in ordering the employer to pay the employee's attorney's fees. We affirm in part and reverse in part. CORRECTED OPINION http://www.tba.org/tba_files/TSC_WCP/vulcanvmaterials.wpd C. VINSON ALEXANDER, JR., M.D. v. JACKSON RADIOLOGY ASSOCIATES, P.A., ET AL. Court:TCA Attorneys: C. Barry Ward and Marc L. Schatten, Memphis, Tennessee, for the appellant, C. Vinson Alexander, Jr., M.D. Larry A. Butler, Lewis L. Cobb, Lisa A. Houston, Jackson, Tennessee, for the appellees, Jackson Radiology Associates, P.A., Dr. Jim Ellis, Dr. Tim Crossett, Dr. Kevin Sentell. Judge: FARMER First Paragraph: The trial court imposed sanctions on Plaintiff, who undisputedly spoiled evidence and lied in a sworn deposition, and dismissed Plaintiff's cause of action. On appeal, Dr. Alexander argues that dismissal was improper. We affirm. http://www.tba.org/tba_files/TCA/alexan.wpd LILLIAN E. GRIFFIS, ET AL. v. DAVIDSON COUNTY METROPOLITAN GOVERNMENT, d/b/a DAVIDSON COUNTY BOARD OF EDUCATION Court:TCA Attorneys: John W. Barringer, Jr. of Nashville for Appellants, Lillian E. Griffis, Nellie Wheeler and Audrey Griffis Karl F. Dean, Director of Law, The Department of Law of the Metropolitan Government of Nashville and Davidson County; J. Brooks Fox and John L. Kennedy of Nashville for Appellee, Davidson County Metropolitan Government d/b/a Davidson County Board of Education Judge: CRAWFORD First Paragraph: This is an appeal from the grant of Appellee's Motion for Summary Judgment, involving the interpretation of a 1908 Deed, which created a fee simple determinable with a possibility of reverter. Finding that the reversionary language was triggered upon the property ceasing to be used as a classroom facility, we reverse and grant summary judgment to the non-moving Appellants. http://www.tba.org/tba_files/TCA/griffislillian.wpd LANCE LANIER v. HUBERT BANE, ET AL. Court:TCA Attorneys: Alan Poindexter, Lebanon, Tennessee, for the Appellant, Lance Lanier. Jacky O. Bellar, Carthage, Tennessee, for the Appellees, Hubert Bane and Joyce Bane, Co- Administrators of the Estate of Michael Bane, Deceased. Judge: CAIN First Paragraph: Plaintiff guest passenger appeals the trial court's denial of recovery in his action against his host driver for injuries suffered in a one car accident. The jury found him to be 50% responsible for his own injuries and upon such verdict the trial court entered judgment for the defendant. We affirm the action of the trial court. http://www.tba.org/tba_files/TCA/lanierlance.wpd DIANN PARNELL v. VICTOR L. IVY, PETER J. DAUSTER, HARDEE, MARTIN, JAYNES & IVY, P.A., C. WESLEY FOWLER AND GLANKLER BROWN, PLLC Court:TCA Attorneys: Jeffrey P. Boyd, Jackson, for the appellant Diann Parnell. Peter J. Dauster, Jackson, pro se and for the appellees Victor L. Ivy and Hardee, Martin, Jaynes & Ivy, P.A. Glen G. Reid, Jr. and Jeffrey Fleishmann, Memphis, for the appellees C. Wesley Fowler and Glankler Brown, PLLC. Judge: KIRBY First Paragraph: This is a legal malpractice case. The client filed suit in federal court against a municipality for the death of her husband under the Governmental Tort Liability Act and U.S.C. S 1983. The federal court dismissed the GTLA claim but retained the S1983 claims. The client dismissed her attorneys, hired new counsel and filed the GTLA claim in state court. The state court dismissed the GTLA claim because, while the GTLA claim was pending in federal court, the applicable statute of limitations expired. The client sued her original attorneys for malpractice. Shortly thereafter, the client settled the remaining S 1983 claims against the municipality. The defendant attorneys filed a motion for summary judgment in the malpractice case, arguing that the settlement with the municipality on the S1983 claims mandated dismissal of the legal malpractice claim. The trial court granted the summary judgment motion. The client appealed. We reverse, holding that the damages sought in the legal malpractice lawsuit are separate and distinct from the damages sought in the underlying lawsuit, and therefore settlement of the underlying lawsuit does not shield the former attorneys from liability. http://www.tba.org/tba_files/TCA/parnelld.wpd ANNA (RUTHERFORD) PEYCHEK v. DONALD LEWIS RUTHERFORD Court:TCA Attorneys: Jefferson D. Gilder of Southaven, Mississippi for Appellant, Donald Lewis Rutherford William Neal Small of Memphis for Appellee, Anna (Rutherford) Peychek Judge:CRAWFORD First Paragraph: Appellant filed petition seeking credit against child support arrearage for necessaries provided to minor children. The trial court granted Appellant $10,236.50 in credit toward his support arrearage. Appellant appeals asserting that the trial court erred in giving a percentage of necessaries provided. Finding that the Appellant did not meet his burden of proof in his claim for necessaries and that the evidence in record preponderates against the trial court's findings, we reverse in part, affirm in part and remand. http://www.tba.org/tba_files/TCA/peychek.wpd VENESSA BASTON v. STATE OF TENNESSEE Court:TCCA Attorneys: Jeffery H. Wicks, Kingston, Tennessee, for the appellant, Venessa Baston. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; J. Scott McCluen, District Attorney General; and Frank A. Harvey, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner appeals the denial of her post-conviction relief petition relating to her guilty plea to felony murder for which she received a life sentence. On appeal, the petitioner contends: (1) she received ineffective assistance of counsel; and (2) her guilty plea was unknowingly and involuntarily entered. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/bastonvenessa.wpd DEMETRIUS CURRIE v. STATE OF TENNESSEE Court:TCCA Attorneys: J. Barney Witherington, IV, Covington, Tennessee, for the appellant, Demetrius Currie. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and James Walter Freeland, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Demetrius Currie, pled guilty in the Tipton County Circuit Court to two counts of especially aggravated robbery and one count of especially aggravated burglary. The petitioner received a total effective sentence of sixteen years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed for post-conviction relief, alleging that because counsel failed to correctly inform him of his release eligibility percentage, counsel was ineffective and the petitioner's guilty pleas were not knowingly and voluntarily made. After a hearing, the post- conviction court denied the petition, and the petitioner appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/curried.wpd STATE OF TENNESSEE v. CORWIN FITCHPATRICK Court:TCCA Attorneys: Garland Erguden, Assistant Public Defender, Memphis, Tennessee for the appellant, Corwin Fitchpatrick. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Glen Baity, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Corwin Fitchpatrick, was convicted by a Shelby County jury of the offense of aggravated robbery. He was sentenced to fifteen years imprisonment as a Range II multiple offender. In this appeal the defendant maintains the evidence is insufficient to support the verdict. After a review of the record, we find no merit to the defendant's contention; therefore the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/fitchpat.wpd STATE OF TENNESSEE v. CHRISTOPHER KEVAN HEIN
Court:TCCA
Attorneys:
Susan E. Shipley, Knoxville, Tennessee, for the appellant, Christopher
Kevan Hein.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Randall Eugene Nichols, District Attorney
General; and Leslie R. Nassios and Leland L. Price, Assistant District
Attorneys General, for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The defendant, Christopher Kevan Hein, was charged with the first
degree murder of his girlfriend and convicted by a Knox County
Criminal Court jury of the lesser-included offense of criminally
negligent homicide, a Class E felony. He was sentenced by the trial
court as a Range I, standard offender to two years in the Department
of Correction, which had already been served by the conclusion of the
trial. In this timely filed appeal as of right, he raises the
following five issues: (1) whether the trial court erred in
precluding the defense from introducing taped statements that an
unavailable witness, Thomas Hendrix, made to an undercover informant
and to a Tennessee Bureau of Investigation ("TBI") agent in which he
described his participation in the burning of the victim's body and
stated that the murder was committed by George Cate; (2) whether the
trial court erred in precluding the defense from introducing Cate's
statements to law enforcement officers; (3) whether the trial court
erred in allowing an officer who was not qualified as an expert
witness to express his opinion regarding the tendency of suspects
during interrogation to minimize their involvement in crimes; (4)
whether the trial court erred in precluding the defense from calling
an expert witness to rebut the officer's opinion; and (5) whether the
trial court erred in allowing the State to present evidence of the
defendant's application for food stamps, in contravention of state and
federal law. Having reviewed the record and found no reversible
error, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/heinchristopherk.wpd
AARON MCFARLAND v. STATE OF TENNESSEE Court:TCCA Attorneys: Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Aaron McFarland. Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Aaron McFarland, appeals the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief from his conviction for first degree murder. The petitioner contends that he was denied effective assistance of counsel. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/mcfarlanda.wpd ROBERT LEE MORRIS v. HOWARD CARLTON, WARDEN and the STATE OF TENNESSEE Court:TCCA Attorneys: Robert Lee Morris, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, John H. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Robert Lee Morris, appeals the trial court's denial of his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Tenn. Ct. Crim. App. R. The petition presents no cognizable claim for habeas corpus relief. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/morrisrobertlee.wpd MACK A. O'BANER v. STATE OF TENNESSEE Court:TCCA Attorneys: Claiborne H. Ferguson, Memphis, Tennessee for the appellant, Mack A. O'Baner Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner, Mack A. O'Baner, was convicted by a Shelby County jury of the offense of first degree murder. He was sentenced to life imprisonment. On direct appeal this Court affirmed the convictions. See State v. Mack A. O'Baner, No. W2001-00815-CCA-R3-CD, Shelby County, (filed March 15, 2002, at Jackson). On February 6, 2003, the petitioner filed a post-conviction petition alleging that his due process rights were violated by a jury instruction on second degree murder which failed to specify that second degree murder committed through a "knowing killing of another" was strictly a "result-of-conduct offense." See State v. Page, 81 S.W.3d 781, 790 (Tenn. Crim. App. 2002). The petition also alleged that his trial and appellate counsel were ineffective in failing to challenge the jury instructions given as being violative of the holding in Page. The trial court summarily dismissed the petition finding inter alia that, because he was convicted of first degree murder the petitioner could not establish prejudice as a result of his claims. After a review of the record and the applicable authorities we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/obanermack.wpd MARIO PERRY v. STATE OF TENNESSEE Court:TCCA Attorneys: Lance R. Chism, Memphis, Tennessee, for the appellant, Mario Perry. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Senior Counsel; William L. Gibbons, District Attorney General; and Betsy Lynn Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Mario Perry, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his guilty plea to second degree murder and resulting sentence of twenty- two years. He contends that he received the ineffective assistance of counsel because his trial attorney failed to explain lesser included offenses and possible defenses with him. We affirm the trial court. http://www.tba.org/tba_files/TCCA/perrymario.wpd STATE OF TENNESSEE v. JASON D. WALKER Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee, (on appeal); Mack Garner, District Public Defender, (at trial), for the appellant, Jason D. Walker. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Tammy Harrington, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: On December 17, 2001, Defendant, Jason D. Walker, entered a guilty plea in the Blount County Circuit Court to statutory rape. Defendant was sentenced as a Range I offender to two years to be suspended on supervised probation. Defendant was ordered, as a condition of his probation, to attend a sex offender treatment program, establish paternity of the child resulting from the offense, and pay child support. A probation violation warrant was issued. Following a revocation hearing, Defendant was sentenced to serve thirty days of his sentence in confinement and the remainder on probation. Additional probation violation warrants were subsequently issued. Following another revocation hearing, the trial court revoked Defendant's probation and ordered that Defendant serve the balance of his original sentence in confinement. Defendant appeals the trial court's revocation of probation. After reviewing the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/walkerjasond.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! 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