Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.
- 01-New Opinions From TSC
- 00-New Opinions From TSC-Rules
- 00-New Opinions From TSC-Workers Comp Panel
- 07-New Opinions From TCA
- 10-New Opinions From TCCA
There are three ways to get the full opinion from the Web: (TBALink members only)
TBALink Chief Editor
JERRY BAIN and wife SUE BAIN VS. DR. WAYNE WELLS AND NATIONAL MEDICAL ENTERPRISES, INC., NEW BEGINNINGS CENTER, UNIVERSITY MEDICAL CENTER and NATIONAL RECOVERY CENTERS OF Supreme Court AMERICA Court:TSC Attorneys: FOR PLAINTIFFS/APPELLEES: FOR DEFENDANTS/APPELLANTS: Henry Clay Barry William C. Moody Lebanon, Tennessee Moody, Whitfield & Castellarin Nashville, Tennessee Judge: DROWOTA First Paragraph: Defendants, National Medical Enterprises, Inc., New Beginnings Center, University Medical Center and National Recovery Centers of America, sought and obtained permission to appeal from the Court of Appeals' affirmance of the trial court's denial of their request for summary judgment. We are asked to determine whether a hospital's policy of placing patients known to be infected with the human immunodeficiency virus (HIV or the AIDS virus) in the same room with patients who are not infected with the virus without warning or obtaining the consent of the non-infected patients constitutes outrageous conduct or negligent infliction of emotional distress. TRIAL COURT AND COURT OF APPEALS REVERSED. URL:http://www.tba.org/tba_files/TSC/BAIN3_OPN.WP6 STEFANIE LYNNE BRUMIT VS. WALTER JESSEE BRUMIT Court:TCA Attorneys: For Appellant For Appellee T. WOOD SMITH EDWARD L. KERSHAW Greeneville, Tennessee Leonard & Kershaw Greeneville, Tennessee Judge: Susano First Paragraph: This post-divorce litigation presents issues revolving around the custody of the parties' only child, Emily Constance Brumit (Emily) (DOB: November 22, 1989). At the time of the parties' divorce in 1993, Stefanie Lynne Brumit (Mother) was awarded sole custody. In the present chapter of this litigation, Walter Jessee Brumit (Father) seeks to change the child's custodial arrangement to that of joint custody. The trial court denied Father's petition; modified the visitation arrangement; and ordered that the child's previously-ordered psychological therapy would take place in Florida rather than in Tennessee. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/BRUMIT_OPN.WP6 EDDIE HEATH VS. JAYNE S. CRESON, WAYLON WININGER, and PAT HUTCHINSON A. C. GILLESS Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendants/Appellees: Eddie Heath, Pro Se Donnie E. Wilson Memphis, Tennessee Paul A. Robinson, Jr. Memphis, Tennessee Judge: LILLARD First Paragraph: In this action, Plaintiff Eddie Heath ("Heath") filed a pro se complaint for declaratory judgment to determine whether he provides a taxable service under the Business Tax Act. Heath brought suit against A.C. Gilless ("Gilless"), the Shelby County Sheriff, Jayne S. Creson ("Creson"), the Shelby County Clerk, as well as two employees of the Shelby County Clerk's Office, Waylon Wininger ("Wininger") and Pat Hutchinson ("Hutchinson"). The trial court dismissed Heath's complaint, finding that it failed to state a claim upon which relief could be granted. We affirm. URL:http://www.tba.org/tba_files/TCA/HEATHED_OP.WP6 MICHAEL MORAT, individually, and MORAT'S INSURANCE AGENCY, INC., a Tennessee Corporation, VS. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Court:TCA Attorneys: Eugene C. Gaerig, Memphis, Tennessee Attorney for Plaintiffs-Appellants. Fred P. Wilson, WILSON, McRAE, IVY, McTYIER AND STRAIN, Memphis, Tennessee and Alan Strain, Memphis, Tennessee Attorneys for Defendant-Appellee. Judge: FRANKS First Paragraph: Plaintiff Michael Morat is an insurance agent with the Morat Insurance Agency, Inc., in Memphis. The genesis of this dispute occurred in 1981, when plaintiffs sent a policy change request form to defendant to change the motor vehicle insured by defendant under the assigned risk plan through this agency for the insured, J.W. Whitten. Whitten was in the process of purchasing a 1981 Cadillac and plaintiffs, after exploring the possibility of insurance from other companies, agreed to Whitten's request to apply to substitute the 1981 Cadillac for the motor vehicle on the existing assigned risk policy. Michael Morat filled out the application for change, which Whitten signed. The plaintiff noted on the form that it was a replacement vehicle and in the application in the space for "cost new", the plaintiff filled in $25,000.00. In a box on the form, plaintiff noted that the vehicle had not been altered. Upon defendant's receipt of the application, the change was processed and the 1981 Cadillac became the insured vehicle. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/MORAT_OPN.WP6 CITY OF JOHNSON CITY, TENNESSEE VS. OUTDOOR WEST, INC. OF TENNESSEE Court:TCA Judge: Susano First Paragraph: The appellee has filed a petition for rehearing. In the petition, the appellee contends that our opinion "failed to properly consider the evidence and the specifics of the trial judge's ruling" concerning the testimony of William Miller, one of the experts who testified on market value. While conceding in its petition that Miller testified that "if canceled the lease would be worth $4,600", the appellee points out, and we agree, that Miller did not adopt $4,600 as his opinion of value; however, we disagree with appellee's opinion regarding the significance of this latter fact. The appellee concludes, as did the trial judge, that the jury was properly instructed that it could not return a verdict for less than $59,500, the value that was adopted by Miller as his opinion of value, and the lowest opinion of value adopted by either of the expert witnesses. Appellee contends that we were wrong when we held that the trial judge committed reversible error when he placed a lower limit of $59,500 on the jury's verdict. We respectfully disagree. The petition for rehearing is DENIED. URL:http://www.tba.org/tba_files/TCA/OUTDOORW_OPN.WP6 DOROTHY C. THOMPSON VS. CHARLES EDWARD THOMPSON Court:TCA Attorneys: BRETT A. YORK and CYNTHIA S. LYONS, WITH DONALD JAKE GAMBLE & ASSOCIATES, OF CROSSVILLE, TENNESSEE, FOR APPELLANT TOM BEESLEY, OF CROSSVILLE, TENNESSEE, FOR APPELLEE Judge: Sanders First Paragraph: The Plaintiff has appealed from a judgment of divorce, insisting the trial court made an inequitable division of marital property. We cannot agree, and affirm. URL:http://www.tba.org/tba_files/TCA/THOMPSND_OPN.WP6 NORMA C. TOLLIVER VS. CLEO CARICO, et al VS. BILLY E. CALL, et ux VS. BETTY JO SEATS and JUNIOR PAUL HOLCOMB VS. CLEO CARICO and husband, HARRY CARICO VS. BILLY E. CALL, BERNICE E. CALL, BETTY JO SEATS, and JUNIOR PAUL HOLCOMB Court:TCA Attorneys: DAVID W. BLANKENSHIP OF KINGSPORT FOR APPELLANT TIMOTHY W. HUDSON OF BRISTOL FOR APPELLEES Judge: Goddard First Paragraph: In this boundary line dispute the Trial Court essentially fixed the boundary line between property owned by Norma C. Tolliver--widow of John Tolliver--and their two daughters, Johnnie Wilson and Vera Hockett, and property owned by Cleo Carico, as insisted by Mrs. Tolliver and her daughters, which prompted Mrs. Carico to appeal and raise as her single issue, which we re-state, that the evidence preponderates against the Trial Court's findings. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/TOLLIVER_OPN.WP6 CLYDE TULL VS. PAUL WILSON Court:TCA Attorneys: Michael L. Weinman, TATUM AND TATUM, Henderson, Tennessee Attorney for Plaintiff-Appellant. Michael T. Tabor, Jackson, Tennessee Attorney for Defendant-Appellee. Judge: FRANKS First Paragraph: In this action the plaintiff sought extraordinary relief to prevent defendant from interfering with plaintiff's use of a roadway, and for damages for past interference. Plaintiff averred that he was entitled to use the roadway because it was either a public road or he had acquired the right through prescriptive use. AFFIRMED AND REMANDED. URL:http://www.tba.org/tba_files/TCA/TULLC_OPN.WP6 STATE OF TENNESSEE VS. ROBERT R. BLACK Court:TCCA Attorneys: For the Appellant: For the Appellee: Martha J. Yoakum Charles W. Burson District Public Defender Attorney General and Reporter Laura Rule Hendricks Karen M. Yacuzzo Appellant Contract Attorney Assistant Attorney General for the District Public Defenders Criminal Justice Division Conference 450 James Robertson Parkway 810 Henley Street Nashville, TN 37243 Knoxville, TN 37902 William Paul Phillips District Attorney General P. O. Box 10 Huntsville, TN 37756 Judge: Hayes First Paragraph: The appellant, Robert R. Black, was convicted by a Campbell County jury of two counts of aggravated sexual battery, a Class B felony. Tenn. Code Ann. S 39-13-504 (1991). For each offense, the trial court sentenced the appellant as a standard, range I offender to ten years imprisonment in the Tennessee Department of Correction. See Tenn. Code Ann. S 40-35-112(a)(2) (1990). The court ordered concurrent service of the sentences. The appellant now challenges the sufficiency of the evidence supporting his convictions and further asserts that his sentences are excessive. Following a review of the record, we affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/BLACKRBT_OPN.WP6 IVORY BROWN VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Tom W. Crider Charles W. Burson District Public Defender Attorney General and Reporter Periann S. Houghton Sarah M. Branch Asst. Public Defender Assistant Attorney General 107 S. Court Square Criminal Justice Division Trenton, TN 38282 450 James Robertson Parkway Nashville, TN 37243-0493 Clayburn L. Peeples District Attorney General 109 East First Street Trenton, TN 38382 Judge: Hayes First Paragraph: The appellant, Ivory Brown, appeals the Haywood County Circuit Court's order denying his petition for post-conviction relief. In this appeal, the appellant contends that he was denied his constitutional right to the effective assistance of counsel. In his brief, the appellant alleges that his trial counsel was ineffective based upon counsel's: (A) failure to apprise the appellant of the charges against him; (B) failure to contact "three to four" witnesses named by the appellant; (C) failure to request a special jury instruction on missing witnesses; and (D) failure to adequately prepare for trial. After a review of the record and the brief of both parties, we affirm the order of the trial court denying post-conviction relief. URL:http://www.tba.org/tba_files/TCCA/BROWNIV_OPN.WP6 STATE OF TENNESSEE VS. ROBERT CHAPMAN Court:TCCA Attorneys: For the Appellant: For the Appellee: Kim G. Sims Charles W. Burson 1729 Lamar Avenue Attorney General and Reporter Memphis, TN 38104 Robin L. Harris Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 John W. Pierotti District Attorney General David C. Henry Assistant District Attorney Criminal Justice Complex Third Floor 201 Poplar Memphis, TN 38103 Judge: Barker First Paragraph: The appellant, Robert Chapman, appeals as of right the sentences he received as a result of convictions in the Shelby County Criminal Court for attempted second degree murder and reckless endangerment. He was sentenced as a Range I standard offender to twelve (12) years on the attempted second degree murder conviction and two years in a workhouse for the reckless endangerment conviction. The sentences were ordered to be served consecutively. AFFIRMED. URL:http://www.tba.org/tba_files/TCA/CHAPMANR_OPN.WP6 STATE OF TENNESSEE VS. LEON BARNETT COLLIER Court:TCCA Attorneys: For the Appellant: For the Appellee: Ardena J. Garth Charles W. Burson District Public Defender Attorney General and Reporter Donna Robinson Miller Michael J. Fahey, II Asst. District Public Defender Assistant Attorney General William A. Dobson Criminal Justice Division Asst. District Public Defender 450 James Robertson Parkway Suite 300, 701 Cherry Street Nashville, TN 37243 Chattanooga, TN 37402 Kenneth Rucker Legal Assistant William H. Cox III District Attorney General City/County Courts Building Room 300 Chattanooga, TN 37402 Judge: Hayes First Paragraph: The appellant, Leon Barnett Collier, was convicted by a Hamilton County jury of the first degree murder of Marketta Green and the attempted first degree murder of Eric Young. Following these convictions, the jury sentenced the appellant to life imprisonment without the possibility of parole for the first degree murder of Ms. Green. The trial court imposed a twenty year sentence for the attempted first degree murder conviction and ordered this sentence to run consecutively with the sentence of life without parole. After reviewing the record and applicable case law, we conclude that the trial court did not commit error. Accordingly, we affirm. URL:http://www.tba.org/tba_files/TCCA/COLLIER_OPN.WP6 ROGER DAY VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: J. Blake Anderson Charles W. Burson Attorney at Law Attorney General & Reporter 200 East Main, Suite 110 500 Charlotte Avenue Jackson, TN 38301 Nashville, TN 37243-0497 Clinton J. Morgan Counsel for the State 450 James Robertson Parkway Nashville, TN 37243-0493 James G. Woodall District Attorney General P.O. Box 2825 Jackson, TN 38302-2825 Donald H. Allen Assistant District Attorney General P.O. Box 2825 Jackson, TN 38302-2825 Judge: Jones First Paragraph: The appellant, Roger Day, appeals as of right from a judgment of the trial court dismissing his suit for post-conviction relief. He contends he was denied his constitutional right to the effective assistance of counsel, and his guilty plea was neither voluntarily nor intelligently entered. The evidence offered by the appellant during the hearing is relatively weak. Where the testimony of the appellant and trial counsel, who testified for the state, conflicted, the trial court resolved the conflicts in favor of the state. In short, the evidence in this case does not preponderate against the facts found by the trial court. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/DAYR_OPN.WP6 LOUIS FRANCIS GIANNINI VS STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ROBERT M. FRIEDMAN CHARLES W. BURSON LAWRENCE W. WHITE Attorney General and Reporter Suite 3400 100 North Main Building DEBORAH A. TULLIS Memphis, TN 38103 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 JOHN W. PIEROTTI District Attorney General DAVID SHAPIRO Assistant District Attorney General Criminal Justice Complex, Third Floor 201 Poplar Memphis, TN 38103 Judge: WELLES First Paragraph: The Defendant, Louis Giannini, appeals as of right the trial court's denial of his petition for post-conviction relief and writ of error coram nobis. He presents the following issues for review: (1) That the trial court erred by denying him a new trial from a writ of error coram nobis because of newly discovered evidence; (2) that the Defendant's due process rights were violated because he was force medicated when he appeared at trial; and (3) that defense counsel rendered ineffective assistance. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/GIANNINI_OPN.WP6 STATE OF TENNESSEE VS. MARVIN HILL, JR. Court:TCCA Attorneys: R. Mack Garner Charles W. Burson District Public Defender Attorney General & Reporter 419 High Street 500 Charlotte Avenue Maryville, TN 37804 Nashville, TN 37243-0497 Elizabeth T. Ryan ASsistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Michael L. Flynn District Attorney General 363 Court Street Maryville, TN 37804-5906 Edward P. Bailey, Jr. Assist. District Attorney General 363 Court Street Maryville, TN 37804-5906 Judge: Jones First Paragraph: The appellant, Marvin Hill, Jr., appeals as of right from a judgment of the trial court revoking his community corrections sentence. The appellant admits that he violated the conditions of his sentence. He tested positive for marijuana on two separate occasions; he failed to report to the probation officer; and he violated the curfew. In this Court, he claims that the evidence adduced at the hearing was insufficient to justify a revocation of the community corrections sentence. After a thorough review of the record, the briefs submitted by the parties, and the law that controls the issue presented for review, it is the opinion of this Court that the judgment of the trial court should be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals. URL:http://www.tba.org/tba_files/TCCA/HILLMARV_OPN.WP6 JAMES JACKIE JONES VS CHARLES L. NOLES, WARDEN Court:TCCA Attorneys: For Appellant: For Appellee: James Jackie Jones, Pro Se Charles W. Burson Cold Creek Correctional Facility Attorney General & Reporter P.O. Box 1000 Henning, TN 38041 Hunt S. Brown Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Jerry N. Estes District Attorney General 10th Judicial District Madison Avenue Athens, TN 37303 Judge: WADE First Paragraph: The pro se petitioner, James Jackie Jones, appeals the trial court's denial of his petition for writ of habeas corpus. The sole issue presented for review is whether the dismissal was proper. We hold that it was and affirm the judgment of the trial court. URL:http://www.tba.org/tba_files/TCCA/JONESNOL_OPN.WP6 STATE OF TENNESSEE VS. TIMOTHY S. MYRICK Court:TCCA Attorneys: For the Appellant: For the Appellee: Guy T. Wilkinson Charles W. Burson District Public Defender Attorney General and Reporter Richard W. DeBerry Sarah M. Branch Asst. District Public Defender Assistant Attorney General P. O. Box 663 Criminal Justice Division Camden, TN 38320 450 James Robertson Parkway Nashville, TN 37243-0493 G. Robert Radford District Attorney General John Overton Asst. District Attorney General Hardin County Courthouse Savannah, TN 38372 Judge: Hayes First Paragraph: The appellant, Timothy S. Myrick, appeals from a sentence imposed by the Hardin County Circuit Court upon his plea of guilty to one count of possession of a schedule II drug (hydromorphone) with intent to deliver or sell, a class C felony; and to one count of unlawful possession of drug paraphernalia, one count of failure to report an accident, and one count of public intoxication, all misdemeanors. Pursuant to a negotiated plea, the appellant received an effective sentence of three years as a range I offender. The manner of service of the sentence was submitted to the trial court for determination. Following a sentencing hearing, the trial court denied any form of alternative sentence and imposed a sentence of incarceration in the Department of Correction. In this appeal, the appellant challenges the trial court's denial of alternative sentencing. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/MYRICKT_OPN.WP6 STATE OF TENNESSEE VS. DALE KEVIN WATTERSON Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ETHEL P. LAWS CHARLES W. BURSON 503 North Jackson St. Attorney General & Reporter Morristown, TN 37814 ELIZABETH T. RYAN Asst. Attorney General 450 James Robertson Pkwy. Nashville, TN 37243-0493 C. BERKELEY BELL District Attorney General VICTOR VAUGHN Asst. District Attorney General 510 Allison St. Morristown, TN 37814 Judge: PEAY First Paragraph: The defendant was indicted in October 1995 for driving under the influence (DUI). The indictment included a second count alleging that the defendant had been previously convicted three times of DUI in violation of T.C.A. S 55-10-403. On November 9, 1995, he was convicted by a jury of DUI. The defendant waived a bifurcated trial as to the issue of his fourth offense and pled guilty to that offense. In exchange for this plea, the trial court agreed to impose the minimum fine for the fourth offense. The defendant was sentenced to eleven months and twenty-nine days with a release eligibility date of seventy-five percent. AFFIRMED. URL:http://www.tba.org/tba_files/TCCA/WATERSOD_OPN.WP6
Feel free to forward this Opinion-Flash on to any attorney you know of with an internet address, who is not a TBALink member. To Join TBALink - Http://www.tba.org/join.html/
Would you like to receive the TBALink Opinion-Flash each day
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: SUBSCRIBE
3) Leave the body of the message blank
Non TBA members are WELCOME to subscribe...it's free!!
Would you like to STOP receiving the TBALink Opinion-Flash?
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type: UNSUBSCRIBE
3) Leave the body of the message blank