Opinion FlashSeptember 27, 2004Volume 10 — Number 186 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 SYNTHIA M. HOPKINS v. VICTOR L. HOPKINS WITH DISSENTING OPINION Court:TSC Attorneys: Sharon T. Massey and Gregory D. Smith, Clarksville, Tennessee, for the appellant-defendant, Victor L. Hopkins. Mark A. Rassas and Julia P. North, Clarksville, Tennessee, for the appellee-plaintiff, Synthia M. Hopkins. Judge: HOLDER First Paragraph: The issue in this case is whether child support may be awarded when neither party has been designated the primary residential parent. The Court of Appeals modified the trial court's judgment to award equal parenting time between the parties. Neither party contests this modification. We hold that the Court of Appeals erred, however, in awarding child support to one party when neither party was designated the primary residential parent. We remand to the trial court for the designation of a primary residential parent, for the consideration of the amount of child support to be paid, and for entry of a parenting plan. http://www.tba.org/tba_files/TSC/hopkinssm_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/hopkinssm_dis.wpd JEFFREY K. BOYCE V. DAB PLUMBING, INC. and OAK RIVER INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: Clancy F. Covert and Michael W. Jones, Wimberly Lawson Seale Wright & Daves, Nashville, TN, for the appellants, DAB Plumbing, Inc. and Oak River Insurance Co. Joseph L. Mercer, Nashville, TN, for the appellee, Jeffrey K. Boyce. Judge: TURNBULL First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer contends that the trial court erroneously: (1) awarded payment of unauthorized medical expenses, (2) refused to apply the statutory cap allowed by Tenn. Code Ann. S 50-6-241(a)(1) to the permanent partial disability award, and (3) granted excessive permanent partial disability benefits in light of the employee's vocational factors. The issues turn on witness credibility and findings of fact. The Panel defers to the trial court and finds that the trial court opinion should be affirmed in all respects. http://www.tba.org/tba_files/TSC_WCP/boycejeffk.wpd RHONDA CARY v. THE LOCAL GOVERNMENT WORKER'S COMPENSATION FUND, ET AL. Court:TSC - Workers Comp Panel Attorneys: Michael L. Mansfield, Jackson, Tennessee for appellants, The Local Government Workers' Compensation Fund and The Obion County Board of Education. Bruce Moss, Union City, Tennessee for appellee, Rhonda Cary. Judge: WALLACE First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The issues presented to the trial court were: (1) whether the employee gave proper notice of her injury to employer pursuant to Tennessee Code Annotated Section 50-6-201 and 202; (2) whether the employee sustained an injury by accident arising out of her employment with defendant on May 1, 2000; (3) whether the employee retained any permanent anatomical impairment as a result of the alleged work injury. As discussed below, we affirm the trial court. http://www.tba.org/tba_files/TSC_WCP/caryrhonda.wpd MICHAEL RAY HAILEY v. E. W. JAMES & SONS, ET AL. Court:TSC - Workers Comp Panel Attorneys: Paul G. Summers, Attorney General and Reporter, and Dianne Stamey Dycus, Deputy Attorney General, Nashville, Tennessee, for the appellant, Sue Ann Head, Director, Workers' Compensation Division, Tennessee Department of Labor and Workforce Development, Second Injury Fund. Alex C. Elder, Memphis, Tennessee, for the appellees, E. W. James & Sons and Royal and SunAlliance Insurance Company. Jeffrey A. Garrety, Jackson, Tennessee, for the appellee, Michael Ray Hailey. 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 Tennessee Code Annotated section 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 Second Injury Fund insists the trial court erred in its apportionment of permanent total disability benefits 35 percent to the employer and 65 percent to the Second Injury Fund. As discussed below, the panel has concluded the judgment of the trial court should be modified by apportioning 100 percent of the disability benefits to the employer and none to the Second Injury Fund. http://www.tba.org/tba_files/TSC_WCP/haileymichaelr.wpd MELLY L. LEE v. SATURN CORPORATION Court:TSC - Workers Comp Panel Attorneys: Thomas H. Peebles, IV and Stephen Zralek, Columbia, Tennessee, for the appellant, Saturn Corporation. Larry R. McElhaney, II, Nashville, Tennessee, for the appellee, Melly L. Lee. Judge: STOTTS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with the Tennessee Code Annotated section 50-6- 225(2)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case the trial court found that the employee gave actual notice of her neck injury and that the injury was work related. The employee's award was based on a permanent partial impairment rating of 18%. The employer raises the following issues: 1) Whether the trial court erred in concluding that the union representative had apparent authority to receive notice of employee's work-related injury; 2) Whether the trial court erred in concluding that the employee gave the employer actual notice of her injury; and 3) Whether the trial court erred in concluding that employee's injury was work related. We find no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/leemellyl.wpd CONSOLIDATED PIPE & SUPPLY COMPANY, INC. v. DEER PATH VACATIONS, L.P., ET AL. Court:TCA Attorneys: John A. Walker, Jr., Knoxville, Tennessee, for the appellant, Consolidated Pipe & Supply Company, Inc. John C. Speer, Timothy F. Zitzman, and Erica Taylor Greene, Memphis, Tennessee, for the appellees, First Tennessee Bank National Association and J. Michael Winchester, Trustee. Judge: SUSANO First Paragraph: Consolidated Pipe & Supply Company, Inc. ("the Lienor") contracted with Stetson & Associates of Tennessee, Inc. ("the Debtor") to furnish pipe in connection with the Debtor's construction activities on a subdivision being developed by Deer Path Vacations, Inc. ("the Owner"). The Debtor failed to pay for the pipe furnished by the Lienor. Subsequently, the Debtor and the Owner filed separate petitions in bankruptcy court seeking relief under the Bankruptcy Code ("the Code"). The Lienor served notice of its lien claim on the Owner. Thereafter, the Lienor filed suit on its lien claim against the Owner and First Tennessee Bank National Association and J. Michael Winchester, Trustee (collectively "the Bank"). The Bank moved to dismiss the Lienor's suit on the basis that the suit was not timely filed. The trial court dismissed the Lienor's complaint, finding that the Lienor "fail[ed] to timely enforce [its] lien." The Lienor appeals. We affirm. http://www.tba.org/tba_files/TCA/conpipe.wpd MARIE F. OGLESBY ELBELL v. CHARLES LUTHER ELBELL
Court:TCA
Attorneys:
Roland E. Cowden, Maryville, Tennessee, for the appellant, Charles
Luther Elbell.
John M. Norris, Strawberry Plains, Tennessee, for the appellee, Marie
F. Oglesby Elbell.
Judge: SUSANO
First Paragraph:
This is a divorce case. Following a bench trial, the court below
granted a divorce to Marie F. Oglesby Elbell ("Wife") and Charles
Luther Elbell ("Husband"), and divided their marital property.
Husband appeals the trial court's division of marital property, in
particular the allocation of several rental properties which served,
during the parties' marriage, as their primary source of income. We
affirm.
http://www.tba.org/tba_files/TCA/elbellmfo.wpd
RAYMOND RUTTER v. H. GREELEY WELLS, JR.
Court:TCA
Attorneys:
Raymond Rutter, appellant, Mountain City, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter, and Michael A. Meyer,
Assistant Attorney General, Nashville, Tennessee, for the appellee, H.
Greeley Wells, Jr.
Judge: SUSANO
First Paragraph:
This case was brought under the Tennessee Public Records Act, Tenn.
Code Ann. S 10-7-501, et seq. (1999 and Supp. 2003) ("the Act"). The
trial court granted the respondent's motion to dismiss because it
found that the petitioner, a prisoner in state custody, had failed to
comply with the court's earlier order requiring the petitioner "to
identify the exact documents to be copied." The petitioner appeals.
We vacate the trial court's judgment and remand for further
proceedings.
http://www.tba.org/tba_files/TCA/rutterraymond.wpd
THOMAS SALLEE v. TYLER BARRETT Court:TCA Attorneys: Phillip L. Davidson of Nashville for Appellant, Thomas Sallee David Haines of Clarksville for Appellee, Tyler Barrett Judge: CRAWFORD First Paragraph: Plaintiff/Appellant sued Defendant/Appellee, a police officer with the City of Clarksville, for negligent infliction of emotional distress, stemming from Defendant/Appellee's negligent discharge of his firearm. Pursuant to the provisions of T.C.A. S29-20-205(2), the trial court granted the Defendant/Appellee's Tenn. R. Civ. P. 12 Motion to Dismiss. Plaintiff/Appellant appeals. We reverse and remand. http://www.tba.org/tba_files/TCA/salleethomas.wpd STATE OF TENNESSEE v. WAYNE BOSTIC Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee, (on appeal) and Gary F. Antrican, District Public Defender; and Julie K. Pillow, Assistant District Public Defender, (at trial) for the appellant, Wayne Bostic. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey Anne Brewer, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Following a jury trial, Defendant, Wayne Bostic, was convicted of one count of delivery of cocaine, a Schedule II controlled substance. The trial court sentenced Defendant to five years confinement as a Range I, standard offender. Defendant does not appeal his sentence. Defendant does, however, appeal the sufficiency of the convicting evidence. Following a review of the record, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/bosticwayne.wpd WAYNE DAVIDSON v. RICKY BELL, WARDEN Court:TCCA Attorneys: Wayne Davidson, Nashville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; and Victor S. (Torry) Johnson, III, District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Wayne Davidson, was convicted in the Meigs County Criminal Court of second degree burglary. Upon being found by a jury to be an habitual criminal, the petitioner was sentenced to life imprisonment. Subsequently, the petitioner filed in the Davidson County Circuit Court a pro se petition for writ of habeas corpus, alleging that the statutes under which he received a life sentence were unconstitutional. The trial court summarily dismissed the petition, and the petitioner timely appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/davidsonwayne.wpd STATE OF TENNESSEE v. MARK DANIEL GODSEY Court:TCCA Attorneys: Jerry H. Summers, Chattanooga, Tennessee, for the appellant, Mark Daniel Godsey. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; William H. Cox, III, District Attorney General; and Kenneth O. Fritz, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant appeals the trial court's dismissal of his petition for writ of habeas corpus in Case No. 242704 in which Defendant alleged that the municipal ordinance supporting his conviction for reckless driving was unlawfully enacted. Defendant also appeals the trial court's order declaring him to be an habitual motor vehicle offender in Case No. 239641. After a thorough review of the record, we affirm the trial court's judgments in Case Nos. 242704 and 239641. http://www.tba.org/tba_files/TCCA/godseymarkdaniel.wpd TONY MABRY v. STATE OF TENNESSEE Court:TCCA Attorneys: Scott Hall, Memphis, Tennessee, for the appellant, Tony Mabry. Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Gail Vermaas, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Tony Mabry, appeals the trial court's dismissal of his petition for post-conviction relief. Petitioner argues that his trial counsel rendered ineffective assistance of counsel because she (1) failed to request a pre-trial voice line-up; (2) failed to cross-examine the victim about his prior statements to the police; and (3) failed to subpoena the police officer who took the victim's initial statement to testify at trial. After a thorough review of the record, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/mabrytony.wpd STATE OF TENNESSEE v. BILLY WAYNE QUILLEN Court:TCCA Attorneys: Greg W. Eichelman, District Public Defender, and Michael A. Walcher, Assistant Public Defender, for the appellant, Billy Wayne Quillen. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Cecil C. Mills, Jr. and Eric D. Christiansen, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Billy Wayne Quillen, pled guilty to two counts of attempt to obtain a controlled substance by fraud and was placed on judicial diversion for two years. His diversion was subsequently revoked, and the trial court reinstated his original two-year sentence to be served at 100%. On appeal, the defendant argues that the trial court erred in ordering him to serve his sentence at 100% without release eligibility, and the State agrees. Based upon our review, we modify the defendant's sentence to reflect release eligibility after service of 30% of the two-year sentence. http://www.tba.org/tba_files/TCCA/quillenbillyw.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! 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