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Today's Opinions: July 14, 2005
Volume 11 — Number 133
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
01 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
05 New Opinion(s) from the Tennessee Court of Criminal Appeals
04 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


EUGENE PIRTLE v. SHONEY'S

Court:TSC - Workers Comp Panel

Attorneys:                          

Alex C. Elder, Memphis, Tennessee, for the appellant Shoney's. 

Greg A. Petrinjak, Jackson, Tennessee, for the appellee Eugene Pirtle.

Judge: WEATHERFORD

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 the employee had sustained a 14% permanent partial
disability to the body as a whole for a work related shoulder injury.
The employer contends that the trial court erred in accepting the
evaluating physician's higher impairment rating over that of the
treating physician who gave the employee a 6% permanent partial
impairment rating. For the reasons discussed below, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TSC_WCP/2005/pirtlee71405.pdf

CERTAIN UNDERWRITERS AT LLOYDS, LONDON v. TED M. WINESTONE; J.B.
MCDONALD & CO.; LEONARD E. FRANKLIN; and GUARANTY NATIONAL INSURANCE
COMPANY.

Court:TCA

Attorneys:                          

Allan B. Thorp, Memphis, for plaintiff/appellant, Certain Underwriters
at Lloyds, London.

Eugene G. Douglass, Bartlett, and Alvin A. Gordon, Memphis, for
defendant/counter-plaintiff and third party plaintiff/appellee Ted M.
Winestone and J.B. McDonald & Co.

Michael B. Neal, Memphis, for appellee Guaranty National Insurance
Company.

Judge: KIRBY

First Paragraph:

This is a casualty insurance case. A bank had a mortgage on
residential property. The homeowner stopped making payments on the
mortgage, abandoned the property, and allowed the homeowner's
insurance coverage on the property to lapse. The bank, in order to
protect its interest in the property, purchased insurance coverage on
behalf of the homeowner. The bank later sold the mortgage to a third
party and cancelled the insurance coverage. The new mortgagee
purchased insurance coverage for the property. Shortly thereafter, the
property burned, resulting in a total loss. The new mortgagee's
insurance company filed the instant lawsuit, asking for a declaratory
judgment that the prior insurance policy was still effect at the time
of the fire. The trial court held that the prior policy was not in
effect at the time of the fire. The new insurance company appealed,
arguing that, in the course of the purchase, the prior insurance
coverage had transferred to the new mortgagee as assignee of the prior
mortgage holder, and that the bank's cancellation of the prior
insurance policy was ineffective. We affirm, finding that the prior
insurance coverage was not transferred to the new mortgage holder and
that the prior insurance policy was not in effect at the time of the
fire.

http://www.tba.org/tba_files/TCA/2005/certainu71405.pdf

DANA COUNTS v. JENNIFER LYNN BRYAN, ET AL.

Court:TCA

Attorneys:                          

John S. Colley, III, Columbia, Tennessee, for the appellants, Jennifer
L. Bryan, Jerry Bryan and Geri Bryan.

Lawrence D. Sands, Columbia, Tennessee, for the appellee, Dana Counts.

Judge: CLEMENT

First Paragraph:

Defendants appeal the denial of a Tenn. R. Civ. P. 50 motion for
directed verdict. This is Plaintiff's second action against Defendants
to recover damages resulting from a personal injury accident. The
first action was timely filed and voluntarily dismissed. This action,
which is a separate, subsequent action, was commenced within one year
of the voluntary dismissal; however, Plaintiff did not plead
sufficient facts in the complaint to establish the timeliness of the
commencement of the new action. Defendants affirmatively pled the
statute of limitations defense in their answer; however, Plaintiff did
not amend the complaint nor introduce evidence at trial to address the
statute of limitations issue. Defendants put the affirmative defense
at issue during closing arguments. The trial court took the motion
under advisement, the trial proceeded and the jury returned a verdict
in favor of Plaintiff. Thereafter, the trial court elected to take
judicial notice of facts appearing in the record in the first action,
the date the first action was commenced and the date of the voluntary
dismissal, determined the second action was timely filed and denied
Defendants' motion. We affirm.

http://www.tba.org/tba_files/TCA/2005/countsd71405.pdf

LORRIE LISA CROWE v. KYLE ERIC CROWE

Court:TCA

Attorneys:                          

L. L. Harrell, Jr., Trenton, TN, for Appellant

Larry Rice, Laura D. Rogers, Memphis, TN, for Appellee

Judge: HIGHERS

First Paragraph:

This appeal arises out of a divorce. The trial court awarded the
mother a divorce on the stipulated ground of adultery, named the
mother primary residential parent of the parties' youngest child,
named the father primary residential parent of the parties' second
oldest child by consent of the parties, set child support payments for
both parties, divided the marital property, awarded mother alimony in
futuro, and denied the mother's request for attorney's fees. The
mother appeals the denial of her request for attorney's fees, and the
father cross-appeals the naming of the mother as the primary
residential parent of the parties' youngest child, the child support
amount set for the mother, the division of marital property, and the
award of alimony in futuro. For the following reasons, we affirm in
part, reverse in part, and remand for further proceedings.

http://www.tba.org/tba_files/TCA/2005/crowel71405.pdf

ROLAND BENNETT v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

A. Philip Lomonaco, Knoxville, Tennessee (at trial); and Roland
Bennett, Pro Se (on appeal).

Paul G. Summers, Attorney General & Reporter; William G. Lamberth, II,
Assistant Attorney General; and Dale Potter, District Attorney General
Pro Tem, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Roland Bennett, is currently serving a life sentence
imposed in 1984. In 2001, the petitioner's counsel filed a petition
for writ of error coram nobis on the basis of newly discovered
evidence. After holding an evidentiary hearing on the matter, the
coram nobis court dismissed the petition, and the petitioner now
brings this appeal challenging that action. Upon review, we affirm the
judgment of the lower court.

http://www.tba.org/tba_files/TCCA/2005/bennettr71405.pdf

ELTON BOWERS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

J. Colin Morris, Jackson, Tennessee, for the appellant.

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

Judge: HAYES

First Paragraph:

The Petitioner, Elton Bowers, 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/bowerse71405.pdf

DUSTIN DWAYNE DAVIS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Dustin
Dwayne Davis.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; Zane Scarlett, Assistant District Attorneys General, for the
appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The petitioner, Dustin Dwayne Davis, was convicted by a jury in 1998
of especially aggravated kidnapping, aggravated robbery, misdemeanor
theft and two (2) counts of aggravated rape. As a result, the
petitioner was sentenced to a total effective sentence of 100 years in
the Tennessee Department of Correction. On direct appeal, this Court
affirmed the petitioner's convictions and sentence. See State v.
Dustin Dwayne Davis, No. 03C01-9712-CR-00543, 1999 WL135054 (Tenn.
Crim. App., at Knoxville, Mar. 15, 1999), perm. app. denied (Tenn.
Oct. 11, 1999). The petitioner subsequently sought post-conviction
relief in which he alleged, inter alia, that he received ineffective
assistance of counsel at trial. After a hearing, the petition for
post-conviction relief was denied. On appeal, the petitioner
challenges the post-conviction court's dismissal of the petition for
postconviction relief. Because we determine that the petitioner was
afforded the effective assistance of counsel, we affirm the
post-conviction court's dismissal of the petition for post-conviction
relief.

http://www.tba.org/tba_files/TCCA/2005/davisd71405.pdf

WAYNE MICHAEL FULLER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Joe H. Walker, District Public Defender; and Walter B. Johnson, II,
Assistant District Public Defender, for the Appellant, Wayne Michael
Fuller.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; and Frank A.Harvey, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Wayne Michael Fuller, stands convicted of seven counts
of statutory rape, Tenn. Code Ann. S 39-13-506 (1997), and one count
of contributing to the delinquency of a minor, id. S 37-1-156, for
which he is serving an effective 10-year sentence. The petitioner
challenged his sentences on direct appeal, and this court found that
the petitioner's sentences were validly imposed. See State v. Wayne
Michael Fuller, No. E1999-01676-CCA-R3-CD (Tenn. Crim. App.,
Knoxville, Aug. 16, 2000). The petitioner subsequently filed a
petition for writ of habeas corpus, and after conducting an
evidentiary hearing, the habeas corpus court denied the petition.
Accordingly, the petitioner now brings the instant appeal of the
denial of his petition, and for the reasons set forth below, we affirm
the judgment of the lower court.

http://www.tba.org/tba_files/TCCA/2005/fullerw71405.pdf

STATE OF TENNESSEE v. RASCHAD DONNELL SIMPSON

Court:TCCA

Attorneys:                          

Richard A. Tate, Blountville, Tennessee, for the appellant, Raschad
Donnwll Simpson.

Paul G.Summers, Attorney General &Reporter; BlindAkrawi, Assistant
Attorney General; Greeley Wells, District Attorney General; Robert
Montgomery, Assistant District Attorneys General, for the appellee,
State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Raschad Donnell Simpson, pled guilty to possession of
cocaine for resale. As a result of the plea agreement, the appellant
was sentenced to serve eight (8) years in incarceration. During his
incarceration, the appellant was accepted to and participated in a
bootcamp program and on August 29, 2001 was released to probation.
Subsequently, a probation violation warrant was issued against the
appellant alleging a violation of probation based on a new arrest and
conviction. At a probation revocation hearing, the appellant pled
guilty to the violation. As a result, the trial court revoked the
appellant's probation and ordered him to serve the eight (8) year
sentence in confinement. Because the trial court did not abuse its
discretion in revoking the appellant's probation, we affirm the
judgment of the trial court.

http://www.tba.org/tba_files/TCCA/2005/simpsonr71405.pdf

Age-Based Punishment for DUI

Date: July 11, 2005

Opinion Number: 05-108

http://www.tba.org/tba_files/AG/2005/op108.pdf

Municipal Eligibility for State Grants

Date: July 11, 2005

Opinion Number: 05-109

http://www.tba.org/tba_files/AG/2005/op109.pdf

Entitlement to the Collected Fines and Court Costs after Transfer of a
Case Pursuant to Tenn. Code Ann. S 40-35-214

Date: July 12, 2005

Opinion Number: 05-110

http://www.tba.org/tba_files/AG/2005/op110.pdf

Title Pawn Lenders (also known as Title Pledge Lenders)

Date: July 12, 2005

Opinion Number: 05-111

http://www.tba.org/tba_files/AG/2005/op111.pdf

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