Get the CLE you need at TennBarU Film Festival 2006

With popular CLE programs playing from 7 a.m. to 7 p.m. on four screens, the 2006 End-of-Year CLE Film Festival is already a huge hit. Critics are raving! If you haven't completed your 2006 CLE requirements yet, come by the Tennessee Bar Center on Friday or Saturday to get the credits you need to avoid the $100 late fee. Online CLE programs also available at www.tennbaru.com

https://www.tba.org/TennBarU/endofyear_2006.html

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

00 - TN Supreme Court
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00 - TN Supreme Court - Rules
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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

MARY ELLEN REAGAN v. TENNPLASCO, FEDERATED MUTUAL INSURANCE COMPANY, and CNA INSURANCE

Court: TWCA

Attorneys:

D. Brett Burrow, David M. Hannah, Brewer, Krause, Brooks, Chastain, & Burrow, Nashville, Tennessee, for the Appellants, Tennplasco and Federated Mutual Insurance Company.

William Joseph Butler, Frank D. Farrar, Farrar, Holliman, & Butler, Lafayette, Tennessee, for the Appellee, Mary Ellen Reagan.

Sarah H. Reisner, Stacey Billingsley Cason, Manier & Herod, Nashville, Tennessee, for the Appellee, CNA Insurance.

Judge: PEOPLES

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 of findings of fact and conclusions of law. The employer contends the trial court erred in (a) holding the employee's right shoulder injury could not be considered in determining vocational disability resulting from carpal tunnel syndrome, (b) accrediting the testimony of one physician over that of another, (c) finding the employee sustained a 75 percent vocational disability to the arm, and (d) permitting co-defendant CNA Insurance to participate in the trial. We affirm.

https://www.tba2.org/tba_files/TSC_WCP/2006/reaganpn_122806.pdf


MARY ELLEN REAGAN v. TRANSCONTINENTAL INSURANCE CO., MANAR, INC., TENNPLASCO DIVISION, and SUE ANN HEAD, ADMINISTRATOR OF THE TENNESSEE DEPARTMENT OF LABOR SECOND INJURY FUND

Court: TWCA

Attorneys:

Paul G. Summers, Attorney General and Reporter, Lauren S. Lamberth, Assistant Attorney General, Nashville, Tennessee for the Appellant, Second Injury Fund.

William Joseph Butler, Frank D. Farrar, Farrar, Holliman, & Butler, Lafayette, Tennessee, for the Appellee, Mary Ellen Reagan.

Sarah H. Reisner, Stacey Billingsley Cason, Manier & Herod, Nashville, Tennessee, for the Appellees, Tennplasco and CNA Insurance Companies.

Judge: PEOPLES

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 of findings of fact and conclusions of law. The Second Injury Fund contends the trial court erred in (a) finding the employee gave notice of injury to her left arm and shoulder, (b) awarding separate scheduled member and body as a whole awards for one gradually occurring injury, (c) failing to find the employee permanently and totally disabled from the last injury if notice was properly given, and (d) finding that an award on appeal constituted a "prior award" for the purposes of assigning liability to the Second Injury Fund under Tenn. Code Ann. section 50-6-208(b). We modify and remand.

https://www.tba2.org/tba_files/TSC_WCP/2006/reagantrans_122806.pdf


KIMBERLY WALLS v. NATIONAL HEALTHCARE CORP.

Court: TWCA

Attorneys:

Joseph Ward Henry, Jr., Henry, Henry & Underwood, Pulaski, Tennessee, for Appellant, National Healthcare Corp.

Barbara G. Medley, Medley & Spivy, Lewisburg, Tennessee for Appellee, Kimberly Walls.

Judge: PEOPLES

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 of findings of fact and conclusions of law. The employer asserts that the evidence preponderates against a finding that the employee's injury is work-related, that the award is excessive, and that the employee failed to give appropriate or reasonable notice of the claimed injury. We affirm.

https://www.tba2.org/tba_files/TSC_WCP/2006/wallsk_122806.pdf


HARVEY DALTON v. LINDA JANE FAASEN DALTON

Court: TCA

Attorneys:

Gail R. Sevier, Vicki J. Singh, Memphis, TN, for Appellant.

Kathleen D. Norfleet, Steven R. Walker, Memphis, TN, for Appellee.

Judge: HIGHERS

This case involves a trial court's division of marital property following a divorce. The wife came into the marriage with substantial assets, but the husband had no assets and owed a large debt to the IRS. During the marriage, the wife was continuously employed, and the husband was often unemployed. After the wife found out that her husband had quit one of his jobs, he executed a quitclaim deed conveying his interest in their house to the wife. When they later divorced, the trial court appointed a special master to classify certain assets and debts as marital or separate property. The trial court affirmed the special master's report with modifications. Both parties now challenge the classification of certain assets and the court's division of the marital property. For the following reasons, we affirm.

https://www.tba2.org/tba_files/TCA/2006/daltonh_122806.pdf


JEREMY FLAX, ET AL. v. DAIMLERCHRYSLER CORPORATION, ET AL.

Court: TCA

Attorneys:

Theodore J. Boutrous, Jr., of Los Angeles, CA, Thomas H. Dupree, Jr., of Washington, D.C., and Lawrence A. Sutter, of Franklin, TN, for the Appellants.

Gail Vaughn Ashworth, of Nashville, TN, James E. Butler, Jr., of Atlanta, GA, George W. Fryhofer III, of Atlanta, GA, and Leigh Martin May, of Atlanta, GA, for the Appellees.

Judge: HIGHERS

This appeal comes from a wrongful death action brought by the parents of an infant child who died from injuries suffered in an automobile accident. In 2001, the mother was one of several passengers involved in a collision in which a man, driving his pickup truck and speeding, rear-ended the minivan occupied by mother and her infant son. The plaintiff parents' infant son suffered a fatal injury when his head collided with the head of another occupant of the vehicle, who was seated in the passenger seat directly in front of the child and whose seat fell backwards during the accident. The mother and father of the deceased child brought suit against the manufacturer of the minivan and the man who drove the truck that struck the minivan. The parents' claims against the manufacturer were for wrongful death of their son as a result of the manufacturer's defective design of the front seat backs in the minivan and failure to warn of the defect, and the mother also brought a claim against the manufacturer for negligent infliction of emotional distress as a result of witnessing her son's injury. The jury found for the parents and awarded them $5 million in compensatory damages for the wrongful death claim, and awarded the mother $2.5 million for her negligent infliction of emotional distress claim. The jury also found that the manufacturer had acted recklessly and was liable for punitive damages. The trial court bifurcated the trial, and the jury returned a $98 million punitive damages verdict against the manufacturer. The trial court remitted the punitive damage award to $20 million. The manufacturer filed a timely notice of appeal to this Court alleging several errors at trial: that the parents' complaint contained an invalid ad damnum clause; that the plaintiff mother had not satisfied the proof requirements for a negligent infliction of emotional distress claim; that there was insufficient evidence of recklessness to support an Award of punitive damages; that the trial court improperly recognized a post-sale duty to warn in Tennessee; numerous evidentiary errors and alleged discovery abuse warranting a mistrial; and excessive damage awards. We affirm in part and reverse in part.

https://www.tba2.org/tba_files/TCA/2006/flaxjeremyetal_122806.pdf


HAL GERBER v. ROBERT R. HOLCOMB

Court: TCA

Attorneys:

David E. Caywood and Lucie K. Brackin, Memphis, Tennessee, for the appellant, Hal Gerber.

Michelle L. Betserai, Memphis, Tennessee, for the appellee, Robert R. Holcomb.

Judge: CAIN

Attorney filed an action against client to collect unpaid installments due under a promissory note. The trial court entered a consent final decree awarding attorney the sum currently due under the note. Attorney filed a second action against client to collect the then unpaid installments due under the same promissory note. Client answered alleging affirmative defenses which attacked the validity of the note and which were not raised in the first proceeding. Attorney filed a motion for summary judgment claiming that client was precluded from asserting the defenses under the doctrine of res judicata and collateral estoppel. The trial court denied the motion and attorney filed an extraordinary appeal. We reverse the judgment of the trial court and remand the matter for further proceedings consistent herewith.

https://www.tba2.org/tba_files/TCA/2006/gerberh_122806.pdf


MARY ELIZABETH STILLWELL, DECEDENT BY AND THROUGH HUSBAND, H. CHESTER STILLWELL v. KENNETH WAYNE HACKNEY, SR., ET AL.

Court: TCA

Attorneys:

James Robin McKinney, Jr., Nashville, Tennessee, for the appellant, H. Chester Stillwell.

John J. Griffin, Jr. and Caroline M. Gobbell, Nashville, Tennessee, for the appellees, Kenneth Wayne Hackney, Sr. and Linda Darline Hackney.

Judge: CAIN

Invitee fell in gravel driveway of rental property, allegedly due to a partially hidden concrete divider. Invitee ultimately died as result of the fall and invitee, by and through her husband, filed an action against rental property owners. Property owners filed a motion for summary judgment, which the trial court granted, finding that Plaintiff failed to establish an exception to the general rule of landlord non-liability. Plaintiff appealed. We affirm the decision of the trial court.

https://www.tba2.org/tba_files/TCA/2006/stillwellm_122806.pdf


RISA STOCK v. MORRIS STOCK

Court: TCA

Attorneys:

Patricia Chafetz, T. Tarry Beasley, II, and Timothy A. Perkins, Memphis, TN, for Appellant.

Mitchell D. Moskovitz and Adam N. Cohen, Memphis, TN, for Appellee.

Judge: HIGHERS

This appeal involves a trial court's distribution of marital property in a divorce proceeding. The parties owned their own business, and the husband generally ran its operations while the wife handled its financial aspects. After the business caught fire, the husband found $240,000 in the company safe. He took the money to a bank and placed it in a safety deposit box. The company's head of security accompanied the husband to the bank and testified about these events at trial. The wife also had access to the box, and the bank records revealed that she accessed it over thirty times in the next five years. The husband and the security officer returned to the safety deposit box when he learned that the wife intended to file for divorce, but there was no cash remaining in the box. The trial court determined that the wife had dissipated the marital estate in the amount of $240,000 and subtracted half that amount, $120,000, from her award of the marital property. The wife appealed. For the following reasons, we affirm.

https://www.tba2.org/tba_files/TCA/2006/stockrisa_122806.pdf


STATE OF TENNESSEE v. TAVARSKI CHILDRESS

Court: TCCA

Attorneys:

Lance R. Chism, Memphis, Tennessee, (on appeal); and Coleman Garrett and Michelle Betserai, Memphis, Tennessee, (at trial), for the appellant, Tavarski Childress.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; Patience Branham, Assistant District Attorney General; and Gregg Gilluly, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Following a jury trial, Defendant, Tavarski Childress, was convicted of first degree felony murder, reckless homicide, and especially aggravated robbery. The trial court merged Defendant's conviction of reckless homicide with his felony murder conviction, and Defendant was sentenced to life with the possibility of parole for his felony murder conviction. Following a sentencing hearing, the trial court sentenced Defendant to twenty-two years for his especially aggravated robbery conviction, and ordered that this sentence be served consecutively to his life sentence. After filing a petition for post-conviction relief, Defendant was granted a delayed appeal. In his appeal, Defendant argues as plain error that the admission of his co-defendant's statements to the police during the State's re-direct examination of Sergeant Shemwell violated his constitutional right of confrontation. Defendant also argues that the trial court erred in imposing consecutive sentencing. After a thorough review of the record, we affirm Defendant's convictions of first degree felony murder and especially aggravated kidnapping. We affirm the trial court's judgment as to the length of Defendant's sentences, but remand for a new sentencing hearing to reconsider whether consecutive sentencing is appropriate.

https://www.tba2.org/tba_files/TCCA/2006/childresstavarski_122806.pdf


JOSEPH FRANKLIN CLARK v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ruth H. Delange, Chattanooga, Tennessee, for the appellant, Joseph Franklin Clark.

Robert E. Cooper, Jr., Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Bill Cox, District Attorney General; and Bates Bryan, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Joseph Franklin Clark, pled guilty to numerous felony and misdemeanor charges of theft, burglary, and possession of drug paraphernalia. The Petitioner filed a timely petition for post-conviction relief, which was later amended by counsel. The trial court orally denied the petition. The Petitioner argues that his plea was not knowingly and voluntarily entered and that he received the ineffective assistance of counsel. We conclude that the trial court did not enter an order or written memorandum containing adequate findings of fact and conclusions of law. We further conclude that the trial court's oral statements on the record were insufficient to deem the error harmless. Therefore, we remand for the entry of a proper order or written memorandum as required by the Post-Conviction Procedure Act.

https://www.tba2.org/tba_files/TCCA/2006/clarkjoseph_122806.pdf


STATE OF TENNESSEE v. THOMAS R. COOK, III

Court: TCCA

Attorneys:

John C. Cavett, Jr., Chattanooga, Tennessee, for the appellant, Thomas R. Cook, III.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; Bill Cox, District Attorney General; and Barry A. Steelman, Executive Assistant District Attorney General; Neal Pinkston and Jason Thomas, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: SMITH

The appellant, Thomas R. Cook, III, was convicted by a jury of assault, resisting arrest and carrying a dangerous weapon. As a result, the appellant was sentenced to an effective sentence of eleven months and twenty-nine days on probation after the service of thirty days in jail. After the denial of a motion for new trial, the appellant filed a timely notice of appeal. On appeal, the appellant argues that he was denied the right to testify because of an erroneous evidentiary ruling made by the trial court and that the evidence was insufficient to support his convictions. After a review of the evidence, we conclude that the evidence was sufficient to support the verdict and that the trial court erred in determining that the piece of evidence was admissible. However, because we are unable to determine from the record whether the error was reversible, we affirm the judgment of the trial court.

https://www.tba2.org/tba_files/TCCA/2006/cookt_122806.pdf


DAVID WAYNE HEARING v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

M. Brent Hensley, Greeneville, Tennessee, for the appellant, David Wayne Hearing.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; Connie Trobaugh and John Douglas Godbee, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, David Wayne Hearing, pled guilty to two counts of first degree felony murder and received concurrent life sentences. He later filed a motion to withdraw his guilty pleas pursuant to Tennessee Rule of Criminal Procedure 32(f). The trial court ordered the petitioner's motion to be treated as a petition for post-conviction relief, and the petitioner filed an amended petition contending that his guilty pleas were involuntary and unknowing and that he received the ineffective assistance of counsel. The trial court denied the petitioner post-conviction relief. On review, we conclude that the trial court erred in construing the petitioner's motion to withdraw his guilty pleas as a petition for post-conviction relief. As a result, we reverse the judgment of the trial court and remand for consideration of the petitioner's motion to withdraw his guilty pleas.

https://www.tba2.org/tba_files/TCCA/2006/hearingdavidwayne_122806.pdf


STATE OF TENNESSEE v. STEPHEN LEE NOE

Court: TCCA

Attorneys:

Stephen Lee Noe, Pro Se, Memphis, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; William L. Gibbons, District Attorney General; and, Alanda Dwyer, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Stephen Lee Noe, proceeding pro se, appeals the sentencing decision of the Shelby County Criminal Court. Noe pled guilty to one count of statutory rape and, following a sentencing hearing, was placed on a two-year period of probation. On appeal, Noe argues that the trial court erred by not granting judicial diversion. After review, the judgment of the trial court is affirmed.

https://www.tba2.org/tba_files/TCCA/2006/noestephenlee_122806.pdf


TODAY'S NEWS

Legal News
Legislative News
BPR Actions
Online CLE

Legal News
Officials trying to work out juvenile justice issues in Shelby County
Juvenile justice officials in Shelby County, led by Judge Curtis Person, hope to meet with leaders from Germantown and Bartlett to work out conflicting procedures for handling juvenile cases in the two suburban communities.
Read more about the issue in the Commercial Appeal
Insurance broker held on wire fraud charges
Smithville insurance broker B. Don James was arrested Wednesday after being indicted by a Nashville federal grand jury on charges that he scammed investors with an insurance financing product and failed to invest $1.8 million as promised.
Read more in the Tennessean
Deputy DA, officers named Nashvillians of the Year
The Nashville Scene has named Deputy District Attorney Tom Thurman and police Sgt. Pat Postiglione and Det. Bill Pridemore as its Nashvillians of the Year for their work in winning a guilty verdict against Perry March, who was convicted of murdering his wife, Janet March.
Read more in the Nashville Scene
Tuesday set as Day of Mourning for Ford
President Bush has declared next Tuesday as a National Day of Mourning for the late Gerald R. Ford, the 38th president of the United States. In a separate executive order, Bush ordered the closure Tuesday of federal departments and other governmental agencies not connected with the national security or defense of the nation or essential to public business, as a mark of respect for Ford.

New Lipscomb program tackles tough topics
Lipscomb University's new Institute of Conflict Management isn't wasting time advancing its mission of bridging the gap between divided people: last month, it hosted several dozen clergy and laity -- including people of Muslim, Christian and Jewish faiths -- to discuss religious conflict. Next month it will take on one of the most divisive political issues of the day: the death penalty.
Read more about it in The Tennessean
Pera's work keeps media interests alive
Memphis lawyer Lucian Pera once considered a career in journalism. Instead, he now represents journalists. Learn more about Pera in this Memphis Daily News interview.
Read the full interview
Grand jury calls for facilities upgrade
Grand jurors meeting in Loudon County have presented a facilities report that says the county needs more patrol officers, more parking, more seating and more patrol cars.
Read more in the Loudon County News-Herald
Mississippi attorney out for 5th Circuit appointment
Jackson, Miss., attorney Michael Wallace has asked President Bush to withdraw his nomination to the 5th U.S. Circuit Court of Appeals, saying he doesn't believe the senior Democrat on the Senate Judiciary Committee considers him a consensus nominee, the Associated Press reports. The New Orleans-based 5th Circuit hears cases from Mississippi, Louisiana and Texas.

Legislative News
Senate Democrats consider speaker candidates
State Senate Democrats gathered in Murfreesboro yesterday to try to reach consensus on whom they will nominate for speaker of the Senate -- Joe Haynes or John Wilder.
Read about it in the Nashville City Paper
BPR Actions
Knoxville lawyer censured
On Dec. 15, the Board of Professional Responsibility issued a public censure to Charles Philip Carter for failure to act with reasonable diligence and promptness in representing a client and failure to communicate with a client. The board found that his actions violated Tennessee Rules of Professional Conduct 1.3 and 1.4.
Read the BPR release
Online CLE
Disaster Recovery: Your Ethical Duty
Tornados, fires and hurricanes happen. This TennBarU online course will help you prepare for and respond to a disaster with the purpose of improving your chance to successfully recover from it.
Register now or find out more

 
 
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