Opinion FlashOctober 11, 2004Volume 10 — Number 196 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 DANNY CAPPS v. ANVIL INTERNATIONAL, INC. Court:TSC - Workers Comp Panel Attorneys: K. Don Bishop, Henderson, Tennessee, for the appellant, Danny Capps. Zachary C. Luttrell, and Jeffery G. Foster, Jackson, Tennessee, for the appellee, Anvil International, Inc. Judge: WALKER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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 trial court found that employee suffered a permanent partial disability of 15% to the right arm. We affirm. http://www.tba.org/tba_files/TSC_WCP/cappsdanny.wpd BERNARD FALCICCHIO v. GIBSON MECHANICAL CONTRACTORS, INC., ET AL. Court:TSC - Workers Comp Panel Attorneys: Michael P. Pfrommer, Memphis, Tennessee, for the appellant, Bernard Falcicchio. Stephen P. Miller and Evan Nahmias, Memphis, Tennessee, for the appellees, Gibson Mechanical Contractors, Inc., and Amerisure Insurance Company. William C. Sessions, Memphis, Tennessee, for the appellees, Day & Zimmermann, and Zurich American Insurance Company. Judge: CHILDERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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, Employee argues that the trial court erred in granting the motion to dismiss filed by Gibson Mechanical Contractors, Inc. and Amerisure Insurance Company. We conclude that the trial court erred granting the motion to dismiss and reverse the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/falchicchiober.wpd SHIRLEY MOORE v. BEST METAL CABINETS Court:TSC - Workers Comp Panel Attorneys: Jeffery G. Foster and Zachary C. Luttrell, Jackson, Tennessee, for the appellant, Best Metal Cabinets. L.L. Harrell, Jr., Trenton, Tennessee, for the appellee, Shirley Moore. Judge: CHILDERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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 Employer argues that the trial court erred in awarding permanent disability benefits to the Employee, in failing to apply the 2.5 cap pursuant to Tennessee Code Annotated section 50-6-241(a), and in failing to make specific findings of fact pursuant to Tennessee Code Annotated section 50-6-241(c). We conclude that the evidence preponderates in favor of the trial court's award of permanent disability benefit; that the evidence fails to preponderate against the trial court's award of benefits that exceed the 2.5 cap; and that the evidence preponderates against the trial court's award of six times the anatomic impairment rating. We, therefore, affirm the trial court's judgment, as modified. http://www.tba.org/tba_files/TSC_WCP/mooreshirley.wpd DONNA PAYTON v. McKENZIE VALVE AND MACHINING COMPANY, ET AL. Court:TSC - Workers Comp Panel Attorneys: S. Newton Anderson and Mildred L. Sabbatini, Memphis, Tennessee, for the appellants, McKenzie Valve and Machining Company and Travelers Insurance Company. Robert T. Keeton, Jr., Huntingdon, Tennessee, for the appellee, Donna Payton. Judge: CHILDERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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, Employer argues: (i) that the trial court erred in allowing the testimony of one of Employee's witnesses; (ii) that the evidence preponderates against the trial court's finding that Employee's injury was caused by her employment; and (iii) that the evidence preponderates against the trial court's award of 37.5% permanent partial disability to each arm. We conclude that the evidence fails to preponderate against the trial court's decision to allow the testimony of Employee's witness, the trial court's finding that Employee's injury was caused by her employment, and the trial court's award of 37.5% permanent partial disability to each arm. We, therefore, affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/paytondonna.wpd WILLIAM ANTHONY BACIGALUPO v. MARY DARLENE RAINES BLACKNALL BACIGALUPO Court:TCA Attorneys: James A. Hamilton, III, Dyersburg, TN, for Appellant Thomas H. Strawn, Dyersburg, TN, for Appellee Judge: HIGHERS First Paragraph: This case arises from the divorce proceedings of Husband and Wife. Husband filed for a divorce from Wife, citing inappropriate marital conduct and irreconcilable differences as grounds for a divorce. Wife filed her answer and counterclaim, stating she was entitled to a divorce on the basis of inappropriate marital conduct and adultery. The trial court granted Wife a divorce, established Wife as the primary residential parent of Child, divided the parties' marital property, set alimony payments Husband must pay to Wife, imposed a lien on Husband's property to secure the property division and support payments, and awarded Wife a portion of her attorney's fees incurred as a result of the proceedings. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/bacigalupowa.wpd STEVEN R. OUZTS v. MICHAEL L. WOMACK, VICTORIA A. RAUB, FRANK DONATO, REMAX-ELITE, STEVEN BOYSEN, CRYE-LEIKE, INC., AND MCANALLY INSPECTION SERVICE, INC. Court:TCA Attorneys: Stephen H. Biller, Memphis, for the appellant Steven R. Ouzts. Richard Glassman and Tameka Turner-Perry, Memphis, for the appellees Michael L. Womack and Victoria A. Raub. Judge: KIRBY First Paragraph: This case involves alleged fraud in the sale of real estate. The sellers completed a residential disclosure statement indicating that the subject property had no flooding problems. The sellers then bargained to include language in the deed disavowing any previous representations concerning the property's condition. The buyer accepted these terms. After the buyer took possession, the property flooded. The buyer filed suit against the sellers, alleging fraudulent concealment and misrepresentation. The sellers filed a motion for summary judgment, which was granted. We affirm, holding that the buyers are bound by the unambiguous terms of the contract for sale and the deed. http://www.tba.org/tba_files/TCA/ouztsstevenr.wpd MONTE PANITZ, ET AL. v. F. PERLMAN & COMPANY, INC., ET AL.
Court:TCA
Attorneys:
John Andre Chiapella of Memphis For Appellants, Monte Panitz and Barry
Panitz
Leo Bearman, Jr. and Maurice Wexler of Memphis For Appellees, F.
Perlman & Company, Inc., Alan Perlman, Neil Cohen, Michael Wexler,
Southern Steel Supply Company, Inc. and American Metal Sales, Inc.
Judge: CRAWFORD
First Paragraph:
Shareholders seek to inspect certain records of corporation of which
they are shareholders, as well as records of two other corporations
("the subsidiaries"): a second corporation which is the wholly-owned
subsidiary of the corporation in which Plaintiffs hold shares, and
another that is the wholly owned-subsidiary of the second corporation.
Defendants maintain that plaintiffs do not have any right to inspect
the records of corporations in which they are not shareholders, but
agreed to allow inspection of limited records of two subsidiaries as a
courtesy, contingent upon plaintiffs signing a confidentiality
agreement. Plaintiffs maintain that they have an unqualified right to
inspect records of all three corporations under T.C.A. 48-26-102. The
trial court found that the confidentiality agreement was reasonable
and entered an order requiring defendants to produce certain records,
dating back to 1991, for inspection and copying. It further held that,
in light of defendants' agreement to allow limited inspection of
records of subsidiaries, it need not rule on issue of whether
plaintiffs were entitled to inspect records of subsidiaries. We affirm
as modified herein.
http://www.tba.org/tba_files/TCA/panitzmonte.wpd
VICKERY TRANSPORTATION, INC. and GRAMMER INDUSTRIES, INC. v. HEPACO, INC. Court:TCA Attorneys: John Andre Chiapella of Memphis For Appellants, Monte Panitz and Barry Panitz Leo Bearman, Jr. and Maurice Wexler of Memphis For Appellees, F. Perlman & Company, Inc., Alan Perlman, Neil Cohen, Michael Wexler, Southern Steel Supply Company, Inc. and American Metal Sales, Inc. Judge: HIGHERS First Paragraph: This case arises out of an action seeking declaratory relief concerning the validity of an arbitration clause in a contract between the parties. Appellee filed a complaint in the Chancery Court at Haywood County for a determination of whether a contract, and, therefore, the arbitration clause in the contract, were invalid because the contract was one of adhesion or executed under duress. The trial court, upon Appellees' motion to stay arbitration, ordered that the arbitration proceedings should be stayed because there was no agreement to arbitrate. Appellant filed its appeal to this Court, and, for the following reasons, we reverse and remand this case for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/vickerytrans.wpd STATE OF TENNESSEE v. CHARLES BENSON Court:TCCA Attorneys: Merrilyn Feirman, Nashville, Tennessee (on appeal), Donna Leigh Hargrove, District Public Defender, and Andrew Jackson Dearing, III, Assistant Public Defender (at trial), for the appellant, Charles Benson. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael David Randles and Ann L. Filer, Assistant District Atttorneys General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Bedford County Criminal Court jury convicted the defendant, Charles Benson, of possession of a schedule II controlled substance with intent to sell and of possession of a schedule II controlled substance with intent to deliver, both Class B felonies. The trial court merged the two convictions and sentenced the defendant on the possession with intent to sell count as a Range II, multiple offender to twenty years in the Tennessee Department of Correction. The defendant appeals, claiming that (1) the evidence is insufficient to support his conviction; (2) the trial court erred by denying his motion to suppress evidence; and (3) his sentence is excessive. We conclude that the evidence is sufficient and that the trial court properly denied the defendant's motion to suppress. Although we hold that the trial court improperly relied on certain enhancement factors in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), we conclude that the record supports a sentence of twenty years. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/bensoncharles.wpd STATE OF TENNESSEE v. LALON R. DAVENPORT
Court:TCCA
Attorneys:
Gerald L. Melton and Russell ("Rusty") N. Perkins, Murfreesboro,
Tennessee, for the appellant, Lalon R. Davenport.
Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; John W. Price, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Defendant, Lalon R. Davenport, pled guilty to one count of
violating the Motor Vehicle Habitual Offender Act. Pursuant to
Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a
certified question of law the issue of whether the three-year time
period articulated in the Habitual Offender Act bars prosecution for
violating the Act after the time period has expired. We conclude that
such prosecution is not barred by the Act, and the judgment of the
trial court is therefore affirmed.
http://www.tba.org/tba_files/TCCA/davenportlalonr.wpd
STATE OF TENNESSEE v. WILLIAM MARTIN FREY, JR. Court:TCCA Attorneys: Leann Smith, Nashville, Tennessee, for the Appellant, William Martin Frey, Jr. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: Following a jury trial, the Defendant was convicted of five burglary, three theft and five drug offenses. The trial court sentenced the Defendant, William M. Frey, Jr., to 50 years as a persistent offender. The Defendant argues six issues on appeal: (1) there was insufficient evidence to find the Defendant guilty beyond a reasonable doubt, (2) the trial court erred by not severing the Defendant's charges at trial, (3) the trial court erred by admitting prior statements made by the Defendant pertaining to his criminal record, (4) the trial court erred in admitting at trial the Defendant's statements concerning his drug use, (5) the trial court erred by failing to adequately consider the Defendant's diminished mental capacity as a mitigating factor during sentencing, and (6) the trial court erred in ordering the Defendant's sentences to be served consecutively. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/freywmjr.wpd DAVID E. GARRISON v. STATE OF TENNESSEE Court:TCCA Attorneys: David M. Hopkins, for the appellant. Paul G. Summers, Attorney General & Reporter; Michelle Chapman McIntire, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Petitioner, David E. Garrison, appeals the trial court's dismissal of his petition for post conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner filed his petition outside the statute of limitations. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/garrisondavide.wpd MATTHEW M. JACKSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Matthew M. Jackson, Bowling Green, Kentucky, Pro Se. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; and Lawrence Ray Whitley, District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Matthew M. Jackson, appeals the order of the trial court denying the Defendant's "Motion to Reconsider Order Denying Motion to Vacate and/or Relief from Judgment." The State has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/jacksonmatthewm.wpd STATE OF TENNESSEE v. KEVIN MAGNESS CORRECTED OPINION WITH MEMO Court:TCCA Attorneys: Steven R. Roller, McMinnville, Tennessee, and Donald Capparella, Nashville, Tennessee, for the appellant, Kevin Magness. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Clement Dale Potter, District Attorney General; and Larry G. Bryant, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Warren County Circuit Court jury convicted the defendant, Kevin Magness, of manufacturing more than one hundred grams of methamphetamine, a Class B felony, and the trial court sentenced him as a Range I, standard offender to eight years in confinement. The defendant appeals, claiming that (1) the evidence is insufficient to support his conviction, and (2) the trial court erred by allowing into evidence the manner by which the state calculated the weight of the substance containing methamphetamine. We hold that the evidence is sufficient to show felonious manufacturing but that an incorrect standard was used to calculate the weight of the controlled substance. We modify the defendant's conviction to reflect a conviction for a Class C felony, and we remand the case to the trial court for resentencing. CORRECTED OPINION http://www.tba.org/tba_files/TCCA/magnesskevin.wpd MEMO http://www.tba.org/tba_files/TCCA/magnesskevin_mem.wpd KEVIN L. MARSHALL v. STATE OF TENNESSEE Court:TCCA Attorneys: Kevin L. Marshall, Clifton, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Kevin L. Marshall, appeals from the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition fails to establish a cognizable claim for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/marshallkevinl.wpd JAMES MARVIN MARTIN v. STATE OF TENNESSEE Court:TCCA Attorneys: Liddell Kirk, Knoxville, Tennessee, for the appellant, James Marvin Martin. Paul G. Summers, Attorney General and Reporter; David H. Findley, 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 petitioner, James Marvin Martin, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that his claim was beyond the statute of limitations. After careful review, we affirm the denial of the petition. http://www.tba.org/tba_files/TCCA/martinjamesm.wpd STATE OF TENNESSEE v. BOBBY NORTHCUTT Court:TCCA Attorneys: Michael D. Galligan (on appeal), Robert W. Newman (at sentencing hearing), John P. Partin (at plea hearing), McMinnville, Tennessee, for the appellant, Bobby Northcutt. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Dale Potter, District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Bobby Northcutt, pled guilty to two counts of rape of a child, and the trial court sentenced him to twenty-five years in prison on each count, ordering the sentences to run consecutively. The Defendant appeals his sentence, contending that the trial court: (1) improperly failed to apply one mitigating factor; (2) improperly applied two enhancement factors; and (3) erred when it ordered that his sentences run consecutively. Finding that reversible error exists, we reverse the judgments of the trial court and remand the case for resentencing. http://www.tba.org/tba_files/TCCA/northcuttbobby.wpd JOHNNY PROFFITT v. STATE OF TENNESSEE Court:TCCA Attorneys: Johnny Proffitt, pro se. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner, Johnny Proffitt, appeals the trial court's dismissal of his petition for post conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner cannot collaterally attack his probation revocation order. Moreover, the petitioner filed his petition outside the statute of limitations. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/proffittjohnny.wpd STATE OF TENNESSEE v. DAVID SCARBROUGH Court:TCCA Attorneys: Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, David Scarbrough. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Randall E. Nichols, District Attorney General; and William H. Crabtree, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, David Scarbrough, was convicted of two counts of first degree felony murder, two counts of theft, and aggravated burglary and sentenced to a term of life imprisonment with the possibility of parole for each of the murders, six years for the aggravated burglary, and eleven months, twenty-nine days for each of the thefts, with the sentences to be served consecutively. On direct appeal, this court affirmed the aggravated burglary and theft convictions but reversed the felony murder convictions because the trial court had not instructed the jury as to facilitation of felony murder. See State v. David Leon Scarbrough, No. E1998-00931-CCA-R3-CD, 2001 WL 775603 (Tenn. Crim. App. July 11, 2001), perm. to appeal denied (Tenn. Jan. 7, 2002). On remand and before the start of the second trial, the trial court, applying the doctrine of the law of the case, granted the State's motion to prevent the defendant from contesting his conviction for aggravated burglary; and the defendant was granted permission to file this interlocutory appeal pursuant to Rule 9, Tenn. R. App. P., asserting that the trial court's order impinged on his rights to a jury trial and to present evidence in his defense. Following our review, we reverse the order of the trial court. http://www.tba.org/tba_files/TCCA/scarbroughdavid.wpd Application of Mineral Severance Tax to "Tennessee Mountain Stone" Date: October 7, 2004 Opinion Number: 04-152 http://www.tba.org/tba_files/AG/2004/op152.pdf HIPAA Date: October 7, 2004 Opinion Number: 04-153 http://www.tba.org/tba_files/AG/2004/op153.pdf 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? ... 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