Opinion Flash

July 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):
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06 New Opinion(s) from the Tennessee Court of Appeals
03 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


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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