Opinion FlashAugust 19, 2004Volume 10 — Number 160 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 MICHELLE SULLIVAN, by and through her Conservator, Brenda Hightower v. EDWARDS OIL COMPANY Court:TSC Attorneys: Patrick A. Flynn, Columbia, Tennessee, for the appellant, Michelle Sullivan. David T. Hooper, Brentwood, Tennessee, for the appellee, Edwards Oil Company. Judge: DROWOTA First Paragraph: We granted this appeal to define "nursing services" as used in Tennessee Code Annotated section 50-6-204(a)(1) and to determine whether the caretaking services that an injured employee's mother provides are nursing services for which the Workers' Compensation Law mandates the employer compensate her. The trial court found that the mother had failed to carry her burden of proof on the issue of whether she was entitled to compensation. The trial court concluded that the plain meaning of Tennessee Code Annotated section 50-6-204 contemplates only professional nursing services ordered by the attending physician, and that the mother is not a professional nurse providing professional nursing services. The employee appealed, arguing that the statute provides compensation for a broader range of caretaking services. The appeal was argued before the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6- 225(e)(3), but the appeal was transferred to the full Supreme Court prior to the Panel issuing its decision, and oral argument was heard by the full Court. We hold that in Tennessee Code Annotated section 50-6-204(a)(1), "nursing services" refers to the services of a professional nurse. Because the mother providing caretaking services here is not a professional nurse, the Workers' Compensation Law does not require the employer to compensate the mother for her services. Therefore, we affirm the circuit court's denial of compensation for her services. The question of whether the Workers' Compensation Law should provide compensation when a family member provides care for an injured worker is an issue that must be addressed by the Legislature. http://www.tba.org/tba_files/TSC/sullivanmichelle.wpd B. M. M. v. P. R. M. Court:TCA Attorneys: Paula Ogle Blair, Nashville, for the appellant B. M. M. Andrew M. Cate, Nashville, for the appellee P. R. M. Judge: KIRBY First Paragraph: This is a child custody dispute. The mother and father entered into a permanent parenting plan naming the mother the primary residential parent of their daughter. Under the plan, the father had supervised visitation because the mother was concerned about sexual abuse by the father. The father later sought to modify the parenting plan to allow for unsupervised visitation. The mother then filed a notice that she intended to move to Florida with the daughter, which the father opposed. The trial court granted the father's petition for unsupervised visitation and denied the mother's request to relocate to Florida with the child. The mother and daughter then left for a scheduled trip to Florida, with the understanding that they would return for the father's scheduled visitation. The mother remained in Florida with the daughter for six weeks, asserting that she, the mother, was too ill to travel. The father was granted an emergency change of custody. The father then retrieved the daughter through a private investigator, coordinating with Florida officials. Upon return to Tennessee, the trial court found the mother in criminal contempt for interfering with the father's visitation and for moving to Florida. The father was named the primary residential parent and the mother was granted supervised visitation. The mother was also required to pay the father for the cost of the private investigator. The mother appeals the denial of her request to move to Florida with the child, the award of unsupervised visitation to the father, the finding of contempt, the change of custody, the requirement that her visitation be supervised, and the requirement that she pay the private investigator's fee. We affirm. http://www.tba.org/tba_files/TCA/bmm.wpd IN RE: C.A.H. Court:TCA Attorneys: Terry D. Gregory, Tullahoma, Tennessee, for the appellant, mother and unknown father of C.A.H. Paul G. Summers, Attorney General and Reporter; and Juan G. Villasenor, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services. Judge: CLEMENT First Paragraph: Mother appeals termination of her parental rights. The juvenile court found that Mother was in substantial noncompliance with the permanency plan, that she failed to remedy the persistent conditions that prevented her child's return, and that termination was in the child's best interest. We affirm. The record contains numerous extraneous documents that do not pertain to the petition to terminate parental rights or the issues raised on appeal. The parties and the clerk have a responsibility to abridge the record. Tenn. R. App. P. 8A(c). Failure to abridge the record may result in a reduction of the juvenile court clerk's fee for the cost of preparing and transmitting the record. Tenn. R. App. P. 40(g). http://www.tba.org/tba_files/TCA/cah.wpd IN RE: T.H. AND J.H. Court:TCA Attorneys: Angello L. Huong, Murfreesboro, Tennessee, for the appellant, S. H., the mother. Paul G. Summers, Attorney General and Reporter; and Juan G. Villasenor, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services. Judge: CLEMENT First Paragraph: Mother appeals the termination of her parental rights to her two children. The circuit court found that Mother was in substantial noncompliance with the permanency plan, that she failed to remedy the persistent conditions that prevented her child's return, and that termination was in the child's best interest. We affirm. The record contains numerous extraneous documents that do not pertain to the petition to terminate parental rights or the issues raised on appeal. The parties and the clerk have a responsibility to abridge the record. Tenn. R. App. P. 8A(c). Failure to abridge the record may result in a reduction of the circuit court clerk's fee for the cost of preparing and transmitting the record. Tenn. R. App. P. 40(g). http://www.tba.org/tba_files/TCA/thjh.wpd FLOYD CAMPBELL v. KEVIN MYERS, Warden Court:TCCA Attorneys: Floyd Campbell, Clifton, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: This is a habeas corpus appeal. A jury convicted the petitioner of seven counts of rape of a child, one count of incest, and three counts of aggravated sexual battery. He received an effective sentence of twenty-two years incarceration. In April 2003, the petitioner submitted a pro se petition for habeas corpus relief, alleging the sentences for child rape committed in 1992 are illegal because the record is unclear as to whether these offenses were committed before or after July 1, 1992, the effective date of the child rape statute. The trial court dismissed the petition, and the petitioner appeals the dismissal. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/campbellfloyd.wpd JAMES C. MURRAY v. STATE OF TENNESSEE Court:TCCA Attorneys: C. LeAnn Smith, Nashville, Tennessee, for the appellant, James C. Murray. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Thomas B. Thurman, Deputy District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner, James C. Murray, appeals the denial of post-conviction relief relating to his convictions for premeditated first degree murder and conspiracy to commit first degree murder. On appeal, the petitioner contends: (1) he received ineffective assistance of counsel at trial; and (2) the post-conviction court erred in refusing to admit Leonard Rowe's testimony. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/murrayjames.wpd STATE OF TENNESSEE v. WILLIAM J. PARKER, JR. WITH DISSENTING OPINION Court:TCCA Attorneys: Bernard K. Smith (at trial), McMinnville, Tennessee; Thomas F. Bloom (on appeal), Nashville, Tennessee, for the appellant, William Parker, Jr. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William M. Locke, District Attorney General; Dale Potter, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, William J. Parker, Jr., was indicted for driving under the influence and driving on a revoked license. A jury acquitted him of the DUI charge, but found him guilty of driving on a revoked license, a Class B misdemeanor. The trial court imposed a sentence of six months, with sixty days to be served in confinement and the balance to be served on probation. In this appeal, the Defendant raises three issues: 1) whether the State's failure to provide him with a copy of his driving record constitutes a violation of his due process rights; 2) whether the trial court erred by admitting into evidence a sworn affidavit; and 3) whether the sentence imposed by the trial court is excessive. We conclude that the trial court erred by admitting the affidavit into evidence. Because we are unable to conclude that the error was harmless, the judgment of the trial court is reversed and the case remanded for a new trial. http://www.tba.org/tba_files/TCCA/parkerwj_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/parkerwj_dis.wpd STATE OF TENNESSEE v. MARTY LAVERN PYBURN Court:TCCA Attorneys: Philip A. Condra, Jasper, Tennessee, for the appellant, Marty Lavern Pyburn. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Sherry Gouger, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Marty Lavern Pyburn, was convicted by a jury in the Marion County Circuit Court of first degree murder and sentenced to life imprisonment. On appeal, the appellant challenges (1) the sufficiency of the evidence; (2) the admission of his prior conviction of aggravated robbery for impeachment purposes; (3) the admission of photographs of the crime scene; (4) the expert testimony of Dr. Charles Harlan; and (5) the trial court's charge to the jury. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/pyburnml.wpd STATE OF TENNESSEE v. JOHNNIE DARRELL RICE Court:TCCA Attorneys: Larry B. Hoover, Nashville, Tennessee, for the Appellant, Johnnie Darrell Rice. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Richard H. Dunavant, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Scott McMurtry, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Johnnie Darrell Rice, was convicted by a Davidson County jury of driving under the influence (DUI), first offense. Following a sentencing hearing, Rice was ordered to serve twenty days in periodic confinement. Rice appeals both his conviction and sentence arguing that: (1) the arresting officer had no reasonable suspicion to stop his vehicle; (2) the trial court erred in ruling that Sergeant Ben Cook was an "expert" witness; and (3) his twenty-day sentence was excessive. Finding no reversible error, the judgment of conviction and sentence are affirmed. http://www.tba.org/tba_files/TCCA/ricejohnnied.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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