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Howard Vogel
TBALink Editor in Chief

Today's Opinions: April 13, 2005
Volume 11 — Number 069
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.
00 New Opinion(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
07 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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 or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


LAWRENCE PARISI v. RYAN'S FAMILY STEAKHOUSE, ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Marvin A. Bienvenu, Jr., Memphis, Tennessee, for the Appellant,
Lawrence Parisi.

Tanya L. Crosse, Knoxville, Tennessee, for the Appellees, Ryan's
Family Steakhouse and Zurich American Insurance Company.

Judge: BROWN

First Paragraph:

The employee, Lawrence Parisi, has appealed the trial court's
dismissal of his workers' compensation lawsuit. Mr. Parisi was a
Mississippi resident. He worked at a Ryan's Family Steakhouse in
Mississippi and was injured there. Based upon the facts of this case
and the applicable law, we affirm the dismissal entered by the trial
court.

http://www.tba.org/tba_files/TSC_WCP/2005/parisilawrence.pdf

LOUCINDRA TAYLOR V. AMERICAN PROTECTION INSURANCE CO., ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Deana C. Seymour and Lee R. Sparks, Jackson, Tennessee for the
Appellants, American Protection Insurance Company and Tower Automotive
Products Company, Inc.

Floyd S. Flippin, Humboldt, Tennessee, for Appellee, Loucindra Taylor

Judge: BROWN

First Paragraph:

American Protection Insurance Company and Tower Automotive Products
Company, Inc. appeal the trial court's grant to Loucindra Taylor of
12% permanent partial disability to both of her arms. First, the
Appellants contend that the injured employee did not give notice to
the employer as required by law. Second, the Appellants argue that the
medical evidence failed to show that the Plaintiff's condition was
related to her employment. Third, the Appellants claim that the 12%
award to each arm is excessive and not supported by the evidence. For
the reasons set forth below, we affirm the decision of the trial
court.

http://www.tba.org/tba_files/TSC_WCP/2005/taylorloucindra.pdf

IN THE MATTER OF: THE ESTATE OF EMORY B. PEGRAM, DECEASED v. GREGORY
BAXTER PEGRAM, ET AL.

Court:TCA

Attorneys:                          

Bruce D. Brooke of Memphis for Appellant, Carolyne Park-Pegram

James E. Bingham of Memphis for Appellees, Gregory Baxter Pegram and
Teresa Pegram Hostetler

Judge: CRAWFORD

First Paragraph:

Appellant, the widow of decedent, appeals from probate court judgment
that decedent died intestate. Decedent had executed an individual
will, as well as a joint mutual will with Appellant, on the same day.
Both wills executed by decedent contained revocation clauses
purporting to revoke all prior wills. Neither Appellant, nor the
witnesses to the execution of the wills, could recall the order in
which Decedent executed the wills. Probate court held that, since each
of Decedent's two wills purported to revoke all prior wills and the
order in which they were executed could not be established, Decedent
died intestate. Finding no error, we affirm the judgment of the
probate court.

http://www.tba.org/tba_files/TCA/2005/pegramemoryb.pdf

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, v. S.A.M.H.

Court:TCA

Attorneys:                          

Murry C. Groseclose, III, Kingsport, Tennessee, for the Appellant
S.A.M.H.

Paul G. Summers, Attorney General and Reporter, and Elizabeth C.
Driver, Assistant Attorney General, Nashville, Tennessee, for the
Appellee, State of Tennessee, Department of Children's Services.

Judge: SWINEY

First Paragraph:

On May 27, 2004, the Juvenile Court Referee entered an order
terminating the parental rights of S.A.M.H. ("Mother") to her two
minor daughters. The Referee concluded that the State of Tennessee,
Department of Children's Services ("DCS") had proven by clear and
convincing evidence that grounds to terminate Mother's parental rights
existed and that doing so was in the best interests of the children.
Pursuant to Tenn. R. Juv. P. 4(c)(2), the Referee was required to
inform Mother of her right to request a rehearing before the Juvenile
Court Judge as well as the manner and time limits within which to
perfect such a request. The Referee inadvertently failed to inform
Mother than she had only five judicial days in which to file her
request for a rehearing. Mother filed her request for a rehearing one
day late. The Juvenile Court Judge dismissed Mother's appeal after
concluding that it was untimely and the Referee's decision had become
final after five judicial days. We vacate the judgment.

http://www.tba.org/tba_files/TCA/2005/samh.pdf

MICHAEL SOWELL v. JAMES W. DAVIS

Court:TCA

Attorneys:                          

Michael Sowell, Pro Se

Kyle C. Atkins of Humboldt for Appellee, James W. Davis

Judge: CRAWFORD

First Paragraph:

Pro se plaintiff appeals the order of the trial court dismissing his
personal injury lawsuit for failure to comply with an order compelling
discovery. Because no order compelling discovery was entered by the
trial court, we reverse.

http://www.tba.org/tba_files/TCA/2005/sowellmichael.pdf

JAMES BURNS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Merrilyn Feirman, Nashville, Tennessee and Andrew Jackson Dearing,
III, Assistant Public Defender, Shelbyville, Tennessee, for the
appellant James Burns.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; Mike McCowen,District Attorney General, and
WeakleyE. Barnard, Assistant District Attorney General, for the
appellee, State of Tennessee

Judge: SMITH

First Paragraph:

The petitioner pled guilty to one count of second degree murder and
one count of aggravated assault on February 7, 2003. The trial court
sentenced him to twenty (20) years and five (5) years, respectively,
for the above convictions. The petitioner filed a petition for
post-conviction relief. The trial court held a hearing and stated upon
the record that the petition was denied. However, a written order was
never entered by the trial court. Because there is no final order from
which the petitioner may appeal, we dismiss the appeal.

http://www.tba.org/tba_files/TCCA/2005/burnsjames.pdf

STATE OF TENNESSEE v. KEVIN DEWITT FORD
ORDER

Court:TCCA

Judge: PER CURIAM

First Paragraph:

The petitioner pled guilty to one count of second degree murder and
one count of aggravated assault on February 7, 2003. The trial court
sentenced him to twenty (20) years and five (5) years, respectively,
for the above convictions. The petitioner filed a petition for
post-conviction relief. The trial court held a hearing and stated upon
the record that the petition was denied. However, a written order was
never entered by the trial court. Because there is no final order from
which the petitioner may appeal, we dismiss the appeal.

ORDER
http://www.tba.org/tba_files/TCCA/2005/fordkevind_ord.pdf

LORENZO D. HARRIS v. WARDEN GLEN TURNER AND STATE OF TENNESSE

Court:TCCA

Attorneys:                          

Lorenzo D. Harris, pro se.

Paul G.Summers, Attorney General &Reporter; DavidEdward Coenen,
Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: MCLIN

First Paragraph:

The Petitioner, Lorenzo D. Harris, appeals 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. Because
the Petitioner has failed to allege a ground for relief which would
render the judgment void, we grant the State's motion and affirm the
judgment of the lower court.

http://www.tba.org/tba_files/TCCA/2005/harrislorenzod.pdf

STANLEY HARVELL v. GLEN TURNER

Court:TCCA

Attorneys:                          

Stanley Harvell, pro se.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner,
Assistant Attorney General, for the appellee, the State of Tennessee.

Judge: GLENN

First Paragraph:

The Petitioner, Stanley Harvell, appeals 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 pursuant to Rule 20,
Rules of the Court of Criminal Appeals. The State's motion is granted.
The judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TCCA/2005/harvellstanley.pdf

STATE OF TENNESSEE v. DANIEL W. LIVINGSTON
CORRECTED OPINION

Court:TCCA

Attorneys:                          

Charles Walker, Nashville, Tennessee, for the appellant, Daniel W.
Livingston.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Brett Gunn, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This is a direct appeal as of right from a conviction on a jury
verdict of evading arrest by motor vehicle with risk of death or
injury. The trial court determined that the Defendant, Daniel
Livingston, was a career offender and sentenced him to twelve years
for the felony evading arrest conviction and time served for a
misdemeanor resisting arrest conviction. On appeal, the Defendant
argues five issues: (1) the evading arrest statute is unconstitutional
because it violates the "Caption Clause" of the Tennessee
Constitution; (2) the evidence is insufficient to sustain the
conviction for felony evading arrest with risk of death or injury; (3)
the trial court erred in sentencing the Defendant as a career offender
because the State's notice of enhanced punishment was defective; (4)
the Defendant received ineffective assistance of counsel at trial; and
(5) the Defendant's Sixth Amendment right to a jury trial was violated
because the trial court made findings of fact for sentencing purposes.
We affirm the Defendant's conviction, but modify the sentence to four
years to be served as a Range I standard offender.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/2005/livingstondanw.pdf

JIM L. TOWNSEND v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Jim L. Townsend, pro se.

Paul G.Summers, Attorney General &Reporter; Mark A.Fulks, Assistant
Attorney General, for the appellee, the State of Tennessee.

Judge: HAYES

First Paragraph:

This matter is before the Court upon the State's motion to affirm the
judgment of the trial court pursuant to Rule 20, Rules of the Court of
Criminal Appeals. The Petitioner, Jim L. Townsend, appeals the trial
court's denial of his application for writ of error coram
nobis/petition for postconviction relief. Finding that the instant
petition is not proper as either a motion for writ of error coram
nobis, petition for post-conviction relief, or application for writ of
habeas corpus relief, we affirm the dismissal of the trial court.

http://www.tba.org/tba_files/TCCA/2005/ricehoratio.pdf

HORATIO RICE v. DAVID MILLS, WARDEN (STATE OF TENNESSEE)

Court:TCCA

Attorneys:                          

Horatio Rice, pro se.

Paul G. Summers, Attorney General &Reporter; Blind Akrawi, Assistant
Attorney General, for the appellee, the State of Tennessee.

Judge: GLENN

First Paragraph:

The Petitioner, Horatio L. Rice, appeals the lower court's denial of
his petition for habeas corpus relief. The State has filed a motion
requesting that this Court affirm the trial court pursuant to Rule 20,
Rules of the Court of Criminal Appeals. The Petitioner has failed to
establish that his convictions are void or that his sentence has
expired. Accordingly, we grant the State's motion and affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/townsendjiml.pdf

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