Opinion FlashJuly 29, 2004
Volume 10 Number 145
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
ANGELA KAMILLE DRAPER as parent, survivor and next friend of BRYANNA FAITH DRAPER, deceased, v. LARRY WESTERFIELD, M.D., et al. Court:TCA Attorneys: Paul R. Wohlford and Kenneth D. Hale, Bristol, Tennessee, for Appellant. Richard M. Currie, Jr., and Andrew T. Wampler, Kingsport, Tennessee, for Appellee, Larry H. Westerfield, M.D. Judge: FRANKS First Paragraph: Plaintiff alleged defendant violated his professional and statutory duty (T.C.A. S 37-1-403) by failing to properly report child abuse of her deceased daughter. The Trial Court granted summary judgment to defendant on grounds defendant did not treat decedent and was immune from liability under the statute. We affirm in part and vacate in part. http://www.tba.org/tba_files/TCA/draperak.wpd
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. CBH, IN RE: SB, a Child Under 18 Years of Age Court:TCA Attorneys: Charles G. Wright, Jr., Chattanooga, Tennessee, for Appellant. Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, Nashville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: The Trial Court terminated the mother's parental rights after finding statutory grounds to terminate and clear and convincing evidence that it was in the child's best interest that the parent's rights be terminated. On appeal, we affirm. http://www.tba.org/tba_files/TCA/esb.wpd
ROBERT LEDFORD v. GEORGE RAUDENBUSH Court:TCA Attorneys: George Laudenbush, appellant, pro se. Judge: FRANKS First Paragraph: The defendant appeals from the Trial Court's awarding Judgment to plaintiff for $1,000.00. The record on appeal is insufficient to review alleged error. We affirm. http://www.tba.org/tba_files/TCA/ledfordrob.wpd
MARLIN FINANCIAL & LEASING CORPORATION v. NATIONWIDE MUTUAL INSURANCE COMPANY Court:TCA Attorneys: Parks T. Chastain, Nashville, Tennessee, for the appellant, Nationwide Mutual Insurance Company. John B. Curtis, Jr., Chattanooga, Tennessee, for the appellee, Marlin Financial & Leasing Company. Judge: SUSANO First Paragraph: This is a declaratory judgment action filed by Marlin Financial & Leasing Corporation ("Marlin") against its insurer, Nationwide Mutual Insurance Company ("Nationwide"), seeking a determination as to coverage under Marlin's insurance policy with Nationwide. Specifically, the suit seeks to obligate Nationwide to pay $8,333.33, the amount of Marlin's settlement of a claim asserted by AmSouth Bank ("AmSouth" or "the Bank"), and associated attorney's fees and expenses of $52,654.05. The trial court granted summary judgment to Marlin, finding that AmSouth's claim against Marlin for "loss of use" of certain property was covered under the business liability feature of the policy and that Marlin was entitled to reimbursement for the amount of its settlement of AmSouth's claim and Marlin's related litigation expenses. The trial court ultimately awarded Marlin prejudgment interest, but it refused to assess a bad faith penalty against Nationwide. Nationwide appeals and both sides raise issues. We affirm. http://www.tba.org/tba_files/TCA/marlinfina.wpd
MELANIE MILLSAPS v. RICHARD ROE, ET AL. Court:TCA Attorneys: Wm. Lee Gribble, II, Maryville, Tennessee, for the appellant, Melanie Millsaps. Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellee, State Farm Mutual Automobile Insurance Company. Judge: SUSANO First Paragraph: This litigation arises out of a 1993 motor vehicle accident. Melanie Millsaps ("the plaintiff") filed her first complaint on January 14, 1994. That suit was nonsuited without prejudice, and the present suit was filed on August 13, 1998, within the one-year period of the saving statute. The instant case languished for a number of years. By order entered April 9, 2003, the plaintiff's original attorney was allowed to withdraw. Her new-and present-counsel filed a notice of appearance on May 1, 2003. One of the defendants-State Farm Mutual Automobile Insurance Company ("State Farm"), who had been sued in its capacity as the uninsured motorist carrier for the plaintiff - filed a motion for summary judgment on August 4, 2003. The motion was heard on September 5, 2003, and granted by order entered September 18, 2003. The plaintiff appeals the trial court's grant of summary judgment to State Farm, contending that there are procedural deficiencies in the trial court's handling of State Farm's motion. We affirm. http://www.tba.org/tba_files/TCA/millsapsme.wpd
TODD HILLMAN RICE v. MICHELLE E. RICE Court:TCA Attorneys: M. Jeffrey Whitt, Knoxville, Tennessee, for Appellant. Tiffany L. Deaderick, Knoxville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: The Trial Court convicted respondent on "six counts" of contempt. On appeal, we hold evidence supports only one count of contempt. http://www.tba.org/tba_files/TCA/ricet.wpd
STATE OF TENNESSEE v. YDALE BANKS Court:TCCA Attorneys: Michael E. Scholl, Memphis, Tennessee, for the Appellant, Ydale Banks. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul Goodman and Tom Hoover, Assistant District Attorneys General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: A Shelby County Criminal Court jury convicted the defendant, Ydale Banks, of first-degree felony murder, first-degree premeditated murder, conspiracies to commit both modes of first-degree murder, especially aggravated burglary, especially aggravated robbery, three counts of especially aggravated kidnapping, and three counts of aggravated assault. The defendant now claims on appeal that: (1)the trial court erred in denying the defendant's motion to suppress his pretrial statement; (2)the trial court erred in refusing to grant the defendant's motion for a judgment of acquittal; (3)the evidence presented at trial is insufficient to support the convictions for first- degree murder; the trial court erred in admitting prejudicial photographs into evidence in the sentencing phase of trial; the trial court erred in admitting victim-impact evidence during the sentence phase; the provisions of Tennessee Code Annotated section 39-13-204(c) relative to the use of victim-impact evidence are unconstitutional; the trial court erred in instructing the jury; and the trial court erred in instructing the jury as to the definition of "knowingly." We reverse the judgment of conviction of conspiracy to commit felony murder but otherwise affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/banksyda.wpd
DEWAYNE CATHEY v. STATE OF TENNESSEE Court:TCCA Attorneys: Dewayne Cathey, Appellant, Pro Se. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Dewayne Cathey, petitioned the Hardeman County Circuit Court for a writ of habeas corpus to challenge his sentence in his 1993 Shelby County, guilty-pleaded conviction of first- degree murder. The lower court summarily dismissed the petition, and on appeal, the petitioner claims that the trial court erred in dismissing his petition without a hearing. Upon our review of the record, we reverse and vacate the trial court's order. Furthermore, we order the lower court to grant habeas corpus relief. http://www.tba.org/tba_files/TCCA/catheydew.wpd
STATE OF TENNESSEE v. STEVEN M. STINSON Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee (on appeal), and Charles Herman, Assistant Public Defender (on appeal and at trial), for the appellant, Steven M. Stinson. Paul G. Summers, Attorney General & Reporter; Michelle R. Chapman, Assistant Attorney General; and Scarlett Ellis, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Steven M. Stinson, was convicted of three counts of rape of a child, a Class A felony. See Tenn. Code Ann. S 39-13-522(b). The trial court ordered a twenty-four-year sentence for each of the three convictions. Because two were ordered to be served consecutively, the effective sentence was forty-eight years. In this appeal of right, the defendant contends that the evidence was insufficient, that the trial court erred by ruling that his prior habitual motor vehicle offender conviction could be used for impeachment purposes, and that the sentence was excessive. Because of the misapplication of several enhancement factors, each of the three sentences is modified to a term of twenty-one years. Otherwise, the judgments are affirmed. http://www.tba.org/tba_files/TCCA/stinsonsteven.wpd
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