Opinion FlashAugust 30, 2004
Volume 10 Number 167
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
CHARLES WEBB V. PRINTPACK, INC. Court:TSC - Workers Comp Panel Attorneys: Michael Tichenor, Memphis, Tennessee, for the appellant, Printpack, Inc. Scott G. Kirk, Jackson, Tennessee, for the appellee, Charles Webb. Judge: ACREE 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. S50-6-285 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that the employee has a fifteen (15%) percent medical impairment rating and has a vocational disability of thirty-five (35%) percent permanent partial disability to the body as a whole. In this appeal, the employer contends the trial court erred in relying upon the expert testimony of Dr. Joseph C. Boals, III, the plaintiff's independent medical examiner, and that the trial court's award was excessive. We agree and reverse the trial court's award. We find the Employee has a twenty-five (25%) percent permanent partial impairment rating to the body as a whole. http://www.tba.org/tba_files/TSC_WCP/webbcharles.wpd
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0830.wpd
RON COLQUETTE v. PETER ZALOUM Court:TCA Attorneys: Peter Zaloum, Knoxville, Tennessee, pro se Appellant. Keith McCord and John L. McCord, Knoxville, Tennessee, for the Appellee, Ron Colquette. Judge: SWINEY First Paragraph: Ron Colquette ("Plaintiff") sued Peter Zaloum ("Defendant") claiming, in part, that Defendant made fraudulent misrepresentations in connection with the sale of his business and the lease of his land to Plaintiff, and that Defendant violated the Tennessee Consumer Protection Act. After a bench trial, the Trial Court entered a Final Judgment holding, inter alia, that Plaintiff was entitled to damages in the amount of $70,054.35, plus pre-judgment interest; that Plaintiff was entitled to punitive damages in the amount of $15,000; and that the Tennessee Consumer Protection Act was not applicable to this case. Defendant appeals, and Plaintiff raises additional issues concerning the applicability of the Tennessee Consumer Protection Act to the facts of this case, and the amount of punitive damages awarded to him. We affirm. http://www.tba.org/tba_files/TCA/colquetteron.wpd
COMMUNITY BANK OF EAST TENNESSEE v. TENNESSEE DEPARTMENT OF SAFETY Court:TCA Attorneys: J. Myers Morton, and George W. Morton, Jr., Knoxville, Tennessee, for Appellant. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Sarah Chambers McBride, Assistant Attorney General, Nashville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: The Claim Commissioner held Commission was without jurisdiction to entertain claim on appeal. We vacate Judgment and remand. http://www.tba.org/tba_files/TCA/commubank.wpd
IN THE MATTER OF: D.A.E., ET AL. Court:TCA Attorneys: John B. Bunnell, Newport, Tennessee, for the appellant, T.E.T. Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney General, for the appellee, State of Tennessee Department of Children's Services. Judge: SUSANO First Paragraph: The trial court terminated the parental rights of T.E.T. ("Mother") with respect to her five minor children, D.A.E. (DOB: June 13, 1992), J.H.E. (DOB: June 5, 1994), D.H.E. (DOB: June 13, 1995), J.E. (DOB: June 30, 1996), and D.E. (DOB: January 15, 1998). Mother appeals, arguing that the evidence preponderates against the trial court's finding - which the court made by clear and convincing evidence - that Mother failed to substantially comply with the requirements of the permanency plan. We affirm. http://www.tba.org/tba_files/TCA/dae.wpd
LUKE N. GIBSON, ET AL. v. CHRYSLER CORPORATION, ET AL. Court:TCA Attorneys: Gail O. Mathes of Memphis; Michael C. Skouteris and George E. Skouteris of Memphis For Appellant, Luke N. Gibson, a minor by parents, Roger O. Gibson and Susan M. Gibson Lawrence A. Sutter of Cleveland, Ohio; Joy Burns of Franklin, Tennessee For Appellees Chrysler Corporation and Daimlerchrysler Corporation Judge: CRAWFORD First Paragraph: This is an appeal from a judgment entered on a jury verdict for Defendant/Appellee. Plaintiff/Appellant, a minor, was allegedly injured when an integrated car seat in a vehicle manufactured and sold by Defendant/Appellee malfunctioned. Plaintiff/Appellant asserts that: (1) the jurors conducted unauthorized experimentation with certain exhibits, which constituted extraneous prejudicial information under Tenn. R. Evid. 606(b); (2) that there is no material evidence on which the jury could have based its verdict; (3) that the trial judge failed to properly perform her duty as thirteenth juror; (4) that the trial court erred in allowing an expert to testify outside the scope of his expertise in violation of McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997); and (5) that the trial court erred, either under Tenn. R. Evid. 702 and 704 or on the theory of judicial estoppel, in excluding a portion of the testimony of a second expert. We affirm. http://www.tba.org/tba_files/TCA/gibsonluken.wpd
DANIEL WAYNE GILL, SR., Individually, and for the use and benefit of DANIEL WAYNE GILL, JR., deceased v. CITY OF CHURCH HILL and RODNEY E. MILLER, JR., and RODDY E. MILLER, JR., (one and the same person) Court:TCA Attorneys: Timothy R. Wilkerson, Kingsport, Tennessee, for Appellant. K. Erickson Herrin, Johnson City, Tennessee, for Appellees, City of Church Hill and Rodney E. Miller, Jr. Paul G. Summers, Attorney General and Reporter, and P. Robin Dixon, Jr., Assistant, Attorney General, Nashville, Tennessee. Judge: FRANKS First Paragraph: Defendant engaged in so-called high speed chase of plaintiff's intestate, which resulted in death of decedent. The Trial Court dismissed on Motion on the basis of Tenn. Code Ann. S 55-8-108(e). On appeal, we affirm. http://www.tba.org/tba_files/TCA/gilldaw.wpd
HELEN GLEASON v. DANIEL P. GLEASON, III Court:TCA Attorneys: Thomas F. Mink, II and Keith W. Blair, Nashville, Tennessee, for the appellant, Daniel P. Gleason, III G. Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellee, Helen Gleason. Judge: FARMER First Paragraph: The trial court awarded Petitioner alimony arrearages of $7,250 plus interest. Respondent appeals, asserting the statute of limitations and the defense of laches. We modify the judgment of the trial court and remand. http://www.tba.org/tba_files/TCA/gleasonhelen.wpd
IN RE: ESTATE OF KATHLEEN LEE MEADE, Deceased, L. GRADY LEE, v. HELEN JO GILLIAM Court:TCA Attorneys: Mark D. Harris, Kingsport, Tennessee, for Appellant. Kerry A. Musick, Blountville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: A typewritten document and a handwritten document prepared later in time were offered for probate. The Trial Court rejected the handwritten document and admitted the typewritten document to probate as the Last Will and Testament of Deceased. On appeal, we reverse. http://www.tba.org/tba_files/TCA/meadekl.wpd
KENNETH SNELL, ET AL. v. CITY OF MURFREESBORO Court:TCA Attorneys: John Rodgers and James P. Barger of Murfreesboro for Appellants, Kenneth Snell and Twila Snell Susan Emery McGannon and Richard W. Rucker of Murfreesboro for Appellee, City of Murfreesboro Judge: CRAWFORD First Paragraph: Plaintiffs appeal from trial court's dismissal of complaint for failure to state a cause of action. Plaintiffs allege that trial court erred in finding that Plaintiffs had no standing to challenge annexation ordinance passed by City of Murfreesboro. Finding that the trial court was correct in determining that Plaintiffs were not entitled to challenge the annexation ordinance under Tennessee declaratory judgment statute, we affirm. http://www.tba.org/tba_files/TCA/snellk.wpd
GRETCHEN SWIFT v. JOHN CAMPBELL, ET AL. Court:TCA Attorneys: Michael J. Passino, Nashville, Tennessee, for the appellant, Gretchen Swift. Paul G. Summers, Attorney General and Reporter, and Richard H. Dunavant, Assistant Attorney General, for the appellees, John Campbell and William Gibbons. Judge: KOCH First Paragraph: This appeal involves the right to inspect and copy the contents of an assistant district attorney general's files in a case involving a prisoner on death row. An assistant district attorney general for the Thirtieth Judicial District denied the request of an attorney employed by the Office of the Federal Public Defender to inspect and copy the records he created while preparing for a concluded state proceeding being challenged in federal court. Thereafter, the requesting attorney filed suit in the Chancery Court for Davidson County pursuant to Tenn. Code Ann. S 10-7-505 (1999) asserting her right under Tenn. Code Ann. S 10-7-503 (Supp. 2003) to inspect and copy the assistant district attorney's records. Following a hearing, the trial court dismissed the petition based on Tenn. R. Crim. P. 16, the work product doctrine, the law enforcement investigative privilege, and the deliberative process privilege. The requesting attorney has appealed. We have determined that Tenn. R. Crim. P. 16 protects the requested records from disclosure because a federal proceeding challenging the state proceeding for which the records were prepared is currently pending. http://www.tba.org/tba_files/TCA/swiftgret.wpd
STATE OF TENNESSEE v. GUADALUPE ARROYO, ALIAS Court:TCCA Attorneys: Glen B. Rutherford, Knoxville, Tennessee, for the appellant, Guadalupe Arroyo, Alias. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Philip H. Morton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant entered guilty pleas to two counts of vehicular homicide by intoxication and was sentenced to consecutive twelve-year terms of imprisonment. The defendant appealed the imposition of maximum sentences and the order to serve the terms consecutively. After this, our second review, we again remand for a new sentencing hearing in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and the trial court's failure to find specific findings justifying the necessity for consecutive sentencing. http://www.tba.org/tba_files/TCCA/arroyogalias.wpd
STATE OF TENNESSEE v. TIMOTHY E. BALLARD Court:TCCA Attorneys: Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Timothy E. Ballard. Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Timothy E. Ballard, was convicted of DUI, a Class A misdemeanor, and driving on a revoked license, a Class B misdemeanor, and was sentenced to an effective sentence of eleven months, twenty-nine days, suspended except for sixty days, with the balance to be served on supervised probation. On appeal, he argues that his sentence is excessive and that the trial court erred in denying full probation or alternative sentencing. Following our review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/ballardtime.wpd
STATE OF TENNESSEE v. BRUCE FRANKS, JR. WITH CONCURRING OPINION Court:TCCA Attorneys: Chadwick G. Hunt, Savannah, Tennessee, for the Appellant, Bruce Franks, Jr. Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney General; G. Robert Radford, District Attorney General; and John Overton, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Bruce Franks, Jr., pleaded guilty to arson, a Class C felony, see Tenn. Code Ann. S 39-14-301(a)(1) (2003), and agreed to a three-year, Range I sentence. The trial court conducted a sentencing hearing to determine the manner of service of the sentence and ordered split confinement. The defendant appeals the confinement component of his sentence. We affirm. http://www.tba.org/tba_files/TCCA/franksbjr_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/franksbjr_con.wpd
CARLOS HAYNES v. STATE OF TENNESSEE Court:TCCA Attorneys: Lowe Finney, Jackson, Tennessee, for the appellant, Carlos Haynes. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; James G. Woodall, District Attorney General; and Alfred L. Earls, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Carlos Haynes, pled guilty in the Madison County Circuit Court to one count of possession of over one-half ounce of marijuana with intent to sell and one count of possession of drug paraphernalia. He received a total effective sentence of two years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post- conviction relief, alleging that his counsel was ineffective and the trial court erred in failing to pursue the issue of the identity of the confidential informant whose tip led to the search of the petitioner's home. After an evidentiary hearing, the post-conviction court dismissed the petition, and the petitioner now 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/haynescar.wpd
STATE OF TENNESSEE v. ROBERT "BOBBY" POWELL Court:TCCA Attorneys: L. L. Harrell, Jr., Trenton, Tennessee, for the appellant, Robert "Bobby" Powell. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Garry G. Brown, District Attorney General; and Elaine G. Todd, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Robert "Bobby" Powell, pled guilty to statutory rape and sexual battery, Class E felonies, in exchange for an effective two-year sentence as a Range I, standard offender, with the manner of service to be determined by the trial court. Finding that a sentence less serious than confinement would depreciate the seriousness of the offenses, the trial court denied the defendant's request for probation or other alternative sentencing and ordered that he serve his sentence in the Department of Correction. The court subsequently denied the defendant's motion to reconsider, and the defendant appealed to this court. Based on our review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/powellrob.wpd
STATE OF TENNESSEE v. JANICE MICHELE WALKER Court:TCCA Attorneys: Mark E. Stephens, District Public Defender; and Robert C. Edwards, Assistant District Public Defender; and John Halstead, Assistant District Public Defender, for the appellant, Janice Michele Walker. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; Randall E. Nichols, District Attorney General; William C. Bright, Special Prosecutor, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Janice Michele Walker, was charged in a four-count presentment with theft over $10,000, forgery over $10,000, computer fraud, and money laundering. Defendant pled guilty as a Range I standard offender to theft and forgery, both Class C felonies, and the other charges were dismissed. Pursuant to the negotiated plea agreement, Defendant was sentenced to four years for each offense, to be served consecutively, and she was ordered to pay restitution. The trial court determined the manner of service of Defendant's sentence. Following a sentencing hearing, the trial court ordered Defendant to serve her effective eight-year sentence in confinement. Defendant appeals the trial court's denial of full probation. After a review of the record, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/walkerjanicemichele.wpd
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