Opinion FlashAugust 23, 2004Volume 10 — Number 162 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 STATE OF TENNESSEE v. GDONGALAY P. BERRY. WITH DISSENTING OPINION AND APPENDIX Court:TSC Attorneys: Thomas F. Bloom and James A. Simmons, Nashville, Tennessee, for appellant, Gdongalay P. Berry. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; David Hamm and Katrin Miller, Assistant District Attorneys General, for appellee, State of Tennessee. Judge: BARKER First Paragraph: A jury convicted the defendant, Gdongalay P. Berry, of two counts of premeditated murder, two counts of felony murder, two counts of especially aggravated kidnapping, and two counts of especially aggravated robbery, for the murders, kidnappings and robberies of DeAngelo Lee and Gregory Ewing. Following a capital sentencing hearing, the jury found three aggravating circumstances in each murder: (1) that the defendant was previously convicted of one or more felonies other than the present charge, the statutory elements of which involve the use of violence to the person; (2) that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and (3) that the murder was knowingly committed, solicited, directed, or aided by the defendant while the defendant had a substantial role in committing or attempting to commit robbery or kidnapping. Tenn. Code Ann. S 39-13-204(i)(2), (6), (7) (1996). The jury also found that these aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. Accordingly, the jury imposed sentences of death for each of the murder convictions. As to the remaining felony convictions, the trial court sentenced the defendant as a violent offender, and imposed an effective fifty-year sentence, to run consecutively to the death penalty. The defendant appealed, challenging both his convictions and the sentences of death. After fully considering the issues raised by the defendant, the Court of Criminal Appeals affirmed the convictions and the sentences. http://www.tba.org/tba_files/TSC/berrygdonp_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/berrygdonp_dis.wpd APPENDIX http://www.tba.org/tba_files/TSC/berrygdonp_apx.wpd DAVID E. HUNTER v. GOODYEAR TIRE AND RUBBER COMPANY Court:TSC - Workers Comp Panel Attorneys: Randy M. Chism and Kirk L. Moore, Elam, Glasgow & Chism, Union City, Tennessee, for the appellant, Goodyear Tire and Rubber Co. Jeffrey A. Garrety and Joseph R. Taggart, for the appellee, David E. Hunter Judge: LOSER 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. In this appeal, the employer insists the award of permanent benefits based on 90 percent permanent partial disability benefits to the right leg is excessive as being against the preponderance of the evidence. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. http://www.tba.org/tba_files/TSC_WCP/hunterde.wpd EVA MAE JEFFERIES v. MCKEE FOODS CORPORATION
Court:TSC - Workers Comp Panel
Attorneys:
Bruce C. Bailey, Chattanooga, Tennessee, for the appellant, McKee
Foods Corporation.
Gary W. Starnes, Chattanooga, Tennessee, for the appellee, Eva Mae
Jefferies.
Judge: BIRCH
First Paragraph:
In this workers' compensation case, the employer, McKee Foods
Corporation, has appealed the trial court's award of 50% permanent
partial disability to the body as a whole to the employee, Eva Mae
Jefferies. The trial court's award of benefits was based on a medical
impairment rating calculated under the Fifth Edition of the American
Medical Association Guides to the Evaluation of Permanent Impairment
("AMA Guidelines"), which was in effect at the time of trial. The
employer's appeal was transferred to the full Supreme Court prior to a
decision by the Special Workers' Compensation Appeals Panel. The
employer contends in this Court that the trial court should have
applied a medical impairment rating calculated under the Fourth
Edition of the AMA Guidelines because the Fourth Edition was the
edition in effect when the employee reached maximum medical
improvement. Thus, the sole question for this Court is whether the
trial court erred in awarding benefits using a medical impairment
rating calculated under the Fifth Edition of the AMA Guidelines.
After carefully examining the record and the relevant authorities, we
find that in determining the extent of the employee's vocational
disability, the trial court should have used a medical impairment
rating calculated under the Fourth Edition of the AMA Guidelines.
Accordingly, the judgment of the trial court is reversed. The case is
remanded for further proceedings consistent with this opinion.
http://www.tba.org/tba_files/TSC_WCP/jefferiesevam.wpd
MARY FINCHUM, Individually and as Next of Kin to WILLIAM FINCHUM, Deceased v. ACE, USA, individually and as successor to CIGNA INSURANCE COMPANY, et al. WITH DISSENTING OPINION Court:TCA Attorneys: Paul T. Gillenwater, Knoxville, Tennessee, for Appellant. Gerald V. Weigle, Jr., Cincinnati, Ohio for Appellee, Liberty Mutual Insurance Co. J. Thomas Jones, Knoxville, Tennessee, and James E. Rocap, III, Washington, DC, for Appellee, Travelers Casualty and Surety Co. Judge: FRANKS First Paragraph: The Trial Court dismissed the Complaint on a Motion filed pursuant to Tenn. R. Civ. P. 12.02(6). We vacate and remand because the Motion to Dismiss did not comply with the Rules of Civil Procedure. http://www.tba.org/tba_files/TCA/finchumm_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCA/finchumm_dis.wpd LARRY D. HOWARD v. LIFE CARE CENTERS OF AMERICA, INC. Court:TCA Attorneys: Anita B. Hardeman and Kent T. Jones, Chattanooga, for Appellant Larry D. Howard. John C. Harrison, Chattanooga, for Appellee Life Care Centers of America, Inc. Judge: LEE First Paragraph: This is a retaliatory discharge action brought pursuant to Tennessee's "whistleblower" statute, Tenn. Code Ann. S 50-1-304. The Plaintiff alleged that he was an employee and was wrongfully discharged because he complained to governmental officials about alleged Medicare violations by the Defendant. The Defendant denied these allegations and moved for summary judgment. The trial court granted the Defendant's motion for summary judgment and the Plaintiff appealed. We affirm the judgment of the trial court and find that although a genuine issue of material fact exists as to whether the Plaintiff was an independent contractor and not an employee, the Defendant did not discharge the Plaintiff but rather chose not to renew his contract upon its expiration. Accordingly, the Plaintiff is not entitled to the protection of the Tennessee whistleblower statute, and, therefore, we affirm the trial court. http://www.tba.org/tba_files/TCA/howardlarry.wpd RAYMOND LEDOUX AND WIFE, VIRGINIA LEDOUX v. WENDALL PIERCE Court:TCA Attorneys: Billy C. Jack, Columbia, Tennessee, for the appellant, Wendall Pierce. Mark A. Free, Columbia, Tennessee, for the appellees, Raymond LeDoux and wife, Virgina LeDoux. Judge: KIRBY First Paragraph: This case involves a default judgment. The plaintiffs filed a civil warrant in general sessions court against the defendant for intentional infliction of physical injuries. The defendant did not appear, and the plaintiffs obtained a judgment by default. The defendant appealed to the circuit court for a trial de novo. The circuit court set the case for trial. On the trial date, however, neither the defendant nor his counsel appeared, and the default judgment was reinstated. The defendant filed a Rule 60.02 motion to have the default judgment set aside, based on excusable neglect. The defendant's lawyer attached his own affidavit, which explained that the lawyer was in the midst of closing his law office after thirty-eight years of practice and, in the confusion, failed to put the hearing date on his calendar. The motion to set aside was denied. The defendant now appeals. We vacate and remand to the trial court to consider whether the defendant has a colorable defense to the plaintiffs' claims and to reweigh the pertinent factors in light of that finding. http://www.tba.org/tba_files/TCA/ledouxr.wpd NORANDAL USA, INC. v. RUTH E. JOHNSON, COMMISSIONER OF REVENUE FOR THE STATE OF TENNESSEE Court:TCA Attorneys: Gerald B. Kirksey and Timothy H. Nichols, Brentwood, Tennessee, for the appellant, Norandal USA, Inc. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Michael W. Catalano, Associate Solicitor General, Nashville, Tennessee, for the appellee, Ruth E. Johnson, Commissioner for the State of Tennessee. Judge: KIRBY First Paragraph: This is a sales tax case. The plaintiff owns an aluminum sheet and foil manufacturing plant. Located in the plant are two multi-ton roll grinders. In 1987, the defendant commissioner of revenue took the position that the roll grinders and roll grinder supplies were exempt from sales tax, because the roll grinders constituted "industrial machinery," which were exempt. In 1995, however, the department of revenue conducted an audit of the plaintiff and changed its position, concluding that the roll grinders were "equipment used for maintenance," which is an exception to the industrial machinery exemption. Accordingly, the plaintiff was assessed for sales tax on roll grinder supplies purchased between 1995 and 1998. The plaintiff paid the assessment under protest and filed the instant lawsuit, seeking to recover the sales tax paid on roll grinder supplies for the audit period. The trial court upheld the decision of the department of revenue, concluding that the roll grinders were "equipment used for maintenance." From that order, the plaintiff now appeals. We affirm, finding that the roll grinders fit within the "equipment used for maintenance" exception and that, consequently, roll grinder supplies are subject to sales tax. http://www.tba.org/tba_files/TCA/norandalusa.wpd MICHAEL P. RUTHERFORD, IN HIS OFFICIAL CAPACITY AS WASHINGTON COUNTY
ZONING ADMINISTRATOR v. ROBERT LEWIS MURRAY, JR.
Court:TCA
Attorneys:
John Rambo, Jonesborough, Tennessee, for the Appellant, Michael P.
Rutherford, in his official capacity as Washington County Zoning
Administrator.
John S. Taylor, Johnson City, Tennessee, for the Appellee, Robert
Lewis Murray, Jr.
Judge: SWINEY
First Paragraph:
Michael P. Rutherford, in his official capacity as Washington County
Zoning Administrator, ("Plaintiff") sued Robert Lewis Murray, Jr.
("Defendant") claiming Defendant was operating an automobile repair
business and a junkyard in violation of Washington County zoning
regulations. Defendant claimed the use of his property was a
nonconforming use allowed prior to a change in the zoning regulations,
and, therefore, was entitled to protection under Tenn. Code Ann. S
13-7-208, the grandfather statute. After a bench trial, the Trial
Court found and held that Defendant's business was grandfathered in as
a prior nonconforming use because Defendant was working substantially
on the construction of his business garage prior to the change in
zoning. Plaintiff appeals. We affirm, but remand for further
proceedings on the issue of whether Defendant is operating a junkyard
in addition to his automobile repair business.
http://www.tba.org/tba_files/TCA/rutherfordmp.wpd
SARA BETH STOVALL v. THE CITY OF MEMPHIS Court:TCA Attorneys: Jack V. Delany of Memphis for Appellant, Sara Beth Stovall Robert L. J. Spence, Jr., City Attorney; Steven D. Townsdin, Assistant Attorney General, for Appellee, The City of Memphis Judge: CRAWFORD First Paragraph: This case arises from the trial court's grant of Appellee's Motion for Summary Judgment based on interpretation of T.C.A. S 36-3-103(a). Finding that T.C.A. S 36-3-103(a) requires couples to obtain a marriage license for a valid marriage in Tennessee and that Marriage by Estoppel does not apply, we affirm. http://www.tba.org/tba_files/TCA/stovallsara.wpd RONALD C. TEACHOUT v. CONSECO SECURITIES, INC., a/k/a CONSECO FINANCIAL SERVICES, INC., CONSECO FINANCE SERVICING CORP., CONSECO BANK, INC., and LISA M. BYNUM Court:TCA Attorneys: Thomas R. Dyer and Douglas A. Black, Memphis, Tennessee, for the appellants, Conseco Securities, Inc., Conseco Bank, Inc., and Lisa M. Bynum. Charles Patrick Flynn and Michael K. Radford, Brentwood, Tennessee, for the appellee, Ronald C. Teachout. Judge: KIRBY First Paragraph: This is an arbitration case. The plaintiff borrower executed a note in favor of the defendant bank. The note included an arbitration clause, requiring all disputes between the "Borrower(s)" and "Note Holder" to be arbitrated. The term "Note Holder" is defined in the note as the "Lender or anyone who takes [the] Note by transfer and who is entitled to receive payments under [the] Note." The bank transferred the note and the borrower began making payments to a third party. The borrower then filed this lawsuit against the bank and others, alleging fraud in the inducement, negligent misrepresentation, promissory fraud, and violation of the Consumer Protection Act. The defendants filed a motion to stay the proceedings and to compel arbitration. The trial court denied the motion. We affirm, holding that under the note, the bank is no longer a "Note Holder" and therefore does not have standing to invoke the arbitration clause. http://www.tba.org/tba_files/TCA/teachoutrc.wpd EDDIE DEPRIEST v. STATE OF TENNESSEE Court:TCCA Attorneys: Eddie DePriest, Appellant, Pro Se. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; William L. Gibbons, District Attorney General; and Tom Hoover, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petitioner, Eddie DePriest, seeks appellate review of the Shelby County Criminal Court's summary denial of habeas corpus relief. We discern no habeas corpus cause of action in the petition and affirm. http://www.tba.org/tba_files/TCCA/depriesteddief.wpd STATE OF TENNESSEE v. ROGER C. McANALLY Court:TCCA Attorneys: Gary J. Swayne, Paris, Tennessee, for the appellant, Roger C. McAnally. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Roger C. McAnally, appeals as of right from his convictions by a jury in the Henry County Circuit Court for especially aggravated kidnapping, a Class A felony; two counts of aggravated robbery, a Class B felony; kidnapping, a Class C felony; three counts of aggravated burglary, a Class C felony; theft of property over $500, a Class E felony; and sexual battery, a Class E felony. The trial court sentenced the defendant to twenty years for the especially aggravated kidnapping conviction, eight years for each aggravated robbery conviction, three years for the kidnapping conviction, and three years for each aggravated burglary conviction, to be served concurrently but consecutively to a one-year sentence for the sexual battery conviction, for an effective twenty-one-year sentence. In this appeal, he contends that his convictions for especially aggravated kidnapping and kidnapping violate his due process rights because his confinement of the victims was incidental to the robberies. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/mcanallyrogerc.wpd LON ADELBERT PIERCE v. STATE OF TENNESSEE Court:TCCA Attorneys: Guy T. Wilkinson, District Public Defender, and Vicki S. Snyder, Assistant District Public Defender, for the appellant, Lon Adelbert Pierce. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L. Garrett and Beth C. Boswell, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the dismissal of his petition for post-conviction relief from his conviction for first degree murder, arguing that the post-conviction court erred in finding he received effective assistance of counsel at trial and on appeal. Following our review, we affirm the dismissal of the petition. http://www.tba.org/tba_files/TCCA/piercelona.wpd STATE OF TENNESSEE v. PRESTON YOUNG Court:TCCA Attorneys: Gerald Stanley Green, Memphis, Tennessee, for the Appellant, Preston Young. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Carmille McMullin, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Preston Young, appeals the Shelby County Criminal Court's denial of probation and imposition of a two-year sentence for his jury conviction of criminally negligent homicide. Because the record is insufficient for our statutorily mandated de novo review of the sentence, we affirm. http://www.tba.org/tba_files/TCCA/youngpreston.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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