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.
- 06-New Opinons From TSC
- 01-New Opinons From TSC-Rules
- 00-New Opinons From TSC-Workers Comp Panel
- 02-New Opinons From TCA
- 08-New Opinons From TCCA
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STATE OF TENNESSEE vs. JAMES J. BENSON, Court:TSC Attorneys: For Plaintiff-Appellee: For Defendant-Appellant: John Knox Walkup William H. Farmer Attorney General & Reporter Stephen W. Grace Nashville Waller Lansden Dortch & Davis Nashville Michael E. Moore Solicitor General Nashville Gordon W. Smith Associate Solicitor General Nashville Amy L. Tarkington Assistant Attorney General Nashville Joseph D. Baugh, Jr. District Attorney General Franklin Judge:REID First Paragraph: This case presents for review the appeal by the petitioner, James J. Benson, from the judgment of the Court of Criminal Appeals affirming the trial court's denial of his petition for post-conviction relief. The petitioner asserts that he was denied the right to a fair trial before an impartial judge because the judge who presided over his criminal trial solicitated a bribe from him. The judgment denying the petition is reversed, and the petitioner is granted a new trial. URL:http://www.tba.org/tba_files/TSC/bensonjj_opn.WP6 CASTLEWOOD, INC. vs. ANDERSON COUNTY, TENNESSEE; PATSY STAIR, TRUSTEE; OWEN K. RICHARDSON, TAX ASSESSOR; CITY OF OAK RIDGE, TENNESSEE; AND THE TENNESSEE STATE BOARD OF EQUALIZATION Court:TSC Attorneys: For Plaintiff-Appellant: For Defendants-Appellees: Bernard E. Bernstein David A. Stuart Knoxville Clinton Doris C. Allen Robert W. Wilkinson Knoxville Oak Ridge John Knox Walkup Attorney General & Reporter Nashville Michael E. Moore Solicitor General Nashville Christine Lapps Assistant Attorney General Nashville Judge:REID First Paragraph: This case presents for review the Court of Appeals' decision that the classification as industrial and commercial of two or more condominium units rented by the owner to others for their use as residences does not violate Article II, Section 28 of the Tennessee Constitution. Nor does the statute violate the equal protection clause of the United States Constitution. That decision is affirmed. URL:http://www.tba.org/tba_files/TSC/castlewo_opn.WP6 PATRICIA LOVE vs. AMERICAN OLEAN TILE COMPANY and LIBERTY MUTUAL INSURANCE COMPANY and SUE ANN HEAD, DIRECTOR OF THE DIVISION OF WORKERS' COMPENSATION, STATE OF TENNESSEE Court:TSC Attorneys: For the Appellant: For the Appellee, Sue Ann Head, Director of the Division of Workers' Lisa June Cox Compensation: Jackson John Knox Walkup For the Appellees, American Olean Attorney General and Reporter Tile Company and American Mutual Insurance Company: Sue A. Sheldon Assistant Attorney General Lewis L. Cobb Catherine B. Clayton Sandra E. Keith Jackson Assistant Attorney General Dianne Stamey Dycus For the Amicus Curiae, Senior Counsel Tennessee Trial Lawyers Association: J. Anthony Farmer Knoxville Judge:DROWOTA First Paragraph: In this workers' compensation action, the employee, Patricia Love, plaintiff-appellant, has appealed from a judgment of the Circuit Court of Madison County awarding her permanent total disability benefits to age 65 or until the payment of such benefits reached the maximum total benefit. The trial court apportioned the award 67.5 percent to the Second Injury Fund and 32.5 percent to the employer, American Olean Tile Company, and its insurer, Liberty Mutual Insurance Company, defendants-appellees. The Special Workers' Compensation Appeals Panel, upon reference for findings of fact and conclusions of law pursuant to Tenn. Code Ann. S 50-6-225(e)(5), affirmed the trial court. Thereafter, the employee filed a motion for full Court review of the Panel's decision. We granted the motion for review to determine (1) whether it was error not to have awarded benefits payable to age 65 notwithstanding the maximum total benefit, and (2) whether the apportionment between the employer and the Second Injury Fund was correct. After examining the record before us and considering the relevant authorities, we reverse the decision of the lower courts to subject the employee's award to the maximum total benefit. However, we affirm the apportionment of the award between the employer and the Second Injury Fund under Tenn. Code Ann. S 50-6-208(a). URL:http://www.tba.org/tba_files/TSC/lovepat_opn.WP6 URL:http://www.tba.org/tba_files/TSC/lovepatd_dis.WP6 WIN MYINT and wife PATTI K. MYINT vs. ALLSTATE INSURANCE COMPANY Court:TSC Attorneys: For Appellants: For Appellee: JOSEPH H. JOHNSTON BARRY FRIEDMAN Nashville, TN PAIGE WALDROP MILLS JOHN D. SCHWALB Nashville, TN JON L. FLEISCHAKER Louisville, KY Judge:BIRCH First Paragraph: In this cause, the insuror refused to pay a claim under a policy of insurance. The insured contends that such refusal constitutes an "unfair or deceptive act or practice," in violation of the Consumer Protection Act, Tenn. Code Ann. SS 47-18-101, et seq. In contrast, the insuror insists that Tenn. Code Ann. S 56-7-105, commonly known as the "bad faith statute," is the exclusive remedy for the bad faith denial of an insurance claim. Because Title 56, Chapters 7 and 8 of the Tennessee Code comprehensively regulates the insurance industry, the insuror insists that the acts and practices of an insurance company are never subject to the Consumer Protection Act. URL:http://www.tba.org/tba_files/TSC/myintw_opn.WP6 NORTHWEST AIRLINES, INC., FEDERAL EXPRESS CORPORATION, AMERICAN AIRLINES, INC., FLAGSHIP AIRLINES, AND DELTA AIR LINES, INC. vs. TENNESSEE STATE BOARD OF EQUALIZATION and CSX TRANSPORTATION, INC. vs. TENNESSEE STATE BOARD OF EQUALIZATION and ILLINOIS CENTRAL RAILROAD COMPANY vs. TENNESSEE STATE BOARD OF EQUALIZATION Court:TSC Attorneys: For Plaintiffs-Petitioners: For Defendant-Respondent: Stephen D. Goodwin John Knox Walkup Janis Wild Kesser Attorney General & Reporter Baker, Donelson, Bearman & Caldwell Nashville Memphis Jimmy G. Creecy James W. McBride Chief Special Counsel Baker, Donelson, Bearman & Caldwell Nashville Washington, D.C. Daryl J. Brand Senior Counsel Nashville Judge:REID First Paragraph: Pursuant to Rule 23 of the Rules of the Supreme Court of Tennessee, this Court has accepted from the United States District Court for the Middle District of Tennessee a certified question of law regarding the effect of the 1996 amendment to Tenn. Code Ann. S 67-5-1512(b)(2) on the calculation of interest on property tax payments and refunds. URL:http://www.tba.org/tba_files/TSC/northwes_opn.WP6 SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL June 1, 1998 Court:TSC - Rules URL:http://www.tba.org/tba_files/TSC_RULES/statelst30_61.WP6 WAYNE MILLER and ELIZABETH ANN MILLER vs. DAVID WILLBANKS, M.D., HAMBLEN PEDIATRIC ASSOCIATES, INC. and MORRISTOWN-HAMBLEN HOSPITAL ASSOCIATION, Court:TCA Attorneys: Judy McCarthy, Knoxville, Tennessee Dennis M. McCarthy, Knoxville, Tennessee Attorneys for Plaintiffs/Appellants. Douglas L. Dutton, Knoxville, Tennessee Amy V. Hollars, Knoxville, Tennessee Attorneys for Defendants/Appellees David Willbanks, M.D. and Hamblen Pediatric Associates, P.C. R. Franklin Norton, Knoxville, Tennessee Gary G. Spangler, Knoxville, Tennessee Attorneys for Defendant/Appellee Morristown-Hamblen Hospital Association Judge:FARMER First Paragraph: Plaintiffs Wayne and Elizabeth Ann Miller appeal the trial court's summary judgment which dismissed the Millers' claims for outrageous conduct and negligent infliction of emotional distress against Defendants/Appellees David Willbanks, M.D., Hamblen Pediatric Associates, Inc., and Morristown-Hamblen Hospital Association. We affirm the trial court's judgment based on our conclusion that, even when viewed in the light most favorable to the Millers, the evidence fails to support a cause of action for these claims against the Defendants. URL:http://www.tba.org/tba_files/TCA/millerwa_opn.WP6 BERNARD S. RUBIN vs. JENNIFER RUBIN Court:TCA Attorneys: SELMA CASH PATY OF CHATTANOOGA FOR APPELLANT B. PRINCE MILLER, JR., OF CLEVELAND FOR APPELLEE Judge:Goddard First Paragraph: Jennifer Rubin appeals a final judgment of the Trial Court entered on June 5, 1997. The Trial Court placed primary physical custody of the parties' only child, a daughter, 16 months of age at that time, with the father and ordered Ms. Rubin to pay child support in the amount of $150 per month. She also appeals a further order of the Trial Court in connection with a custody hearing entered on August 22, 1997, which awarded sole custody of the child to the father. URL:http://www.tba.org/tba_files/TCA/rubinb_opn.WP6 STATE OF TENNESSEE vs. JOHN JASON BAKENHUS Court:TCCA Attorneys: For Appellant: For Appellee: Gregory D. Smith John Knox Walkup One Public Square, Ste. 321 Attorney General and Reporter Clarksville, TN 37040 (on appeal) Janis L. Turner Counsel for the State Edward E. DeWerff Criminal Justice Division 103 S. Third Street Cordell Hull Building, Second Floor Clarksville, TN 37040 425 Fifth Avenue North (at trial) Nashville, TN 37243-0493 Arthur F. Bieber Assistant District Attorney General 204 Franklin Street, Ste. 200 Clarksville, TN 37040 Judge:WADE First Paragraph: The defendant, John Jason Bakenhus, was indicted for aggravated arson, two counts of arson, three counts of civil rights intimidation, aggravated burglary, theft of property over five hundred dollars and theft of property under five hundred dollars. The jury returned guilty verdicts on all nine counts. The trial court imposed a Range I, effective sentence of twenty-two and one-half years and ordered restitution in excess of $65,000. The defendant was convicted for the same acts in federal court. The state and federal sentences are to be served concurrently. URL:http://www.tba.org/tba_files/TCCA/bkenhsjj_opn.WP6 DAVID M. FARMER vs. STATE OF TENNESSEE, Court:TCCA Attorneys: For Appellant: For Appellee: G. Kline Preston, IV John Knox Walkup Attorney Attorney General and Reporter Washington Sq. Two, Ste 416 222 Second Avenue North Clinton J. Morgan Nashville, TN 37201 Counsel for the State 425 Fifth Avenue North, Second Fl Cordell Hull Building Nashville, TN 37243-0493 James W. Milam Asst District Attorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201 Judge:WADE First Paragraph: The petitioner, David M. Farmer, appeals from the trial court's denial of his petition for post-conviction relief. The issues presented for review are whether the original sentence violated the due process rights of the petitioner, whether the plea agreement violated the terms of Rule 11(e)(3) of the Tennessee Rules of Criminal Procedure, and whether the original, conditional sentence of six years, which was later increased to ten years, qualified as an unlawful, indeterminate sentence. URL:http://www.tba.org/tba_files/TCCA/farmerdm_opn.WP6 CAREY GILES FRALIX vs. STATE OF TENNESSEE Court:TCCA Judge:PEAY First Paragraph: This matter is before the Court upon the state's motion requesting that the judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. URL:http://www.tba.org/tba_files/TCCA/fralix_ord.WP6 STATE OF TENNESSEE vs. JOHN CHRISTOPHER JACKSON Court:TCCA Attorneys: For Appellant: For Appellee: Lionel R. Barrett, Jr. John Knox Walkup Attorney Attorney General and Reporter Washington Sq. Two - Ste 417 222 Second Avenue North Lisa A. Naylor Nashville, TN 37201 Assistant Attorney General Cordell Hull Building, Second Fl Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 Katrin Miller Asst District Attorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201 Judge:WADE First Paragraph: The defendant, John Christopher Jackson, entered guilty pleas to six counts of aggravated robbery accomplished with a deadly weapon and one count of robbery. Tenn. Code Ann. SS 39-13-401, -402. A forgery count was dismissed. The trial court imposed a Range I sentence of nine years for three of the aggravated robberies; these sentences were ordered to be served consecutively. Range I, eight-year sentences were imposed on each of the remaining aggravated robberies and a three-year sentence was imposed for the simple robbery; all of these sentences were ordered to be served concurrently. The effective sentence is twenty-seven years. URL:http://www.tba.org/tba_files/TCCA/jacksnjc_opn.WP6 STATE OF TENNESSEE vs. JOHN WILLIAM KUHLMAN Court:TCCA Attorneys: FOR THE APPELLANT: JOHN WILLIAM KUHLMAN, Pro Se 341 Stable Drive Franklin, TN 37064 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter DARYL J. BRAND Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JOSEPH D. BAUGH, JR. District Attorney General JEFFREY P. BURKS Assistant District Attorney General Williamson County Courthouse Suite G-6 P.O. Box 937 Franklin, TN 37065-0937 Judge:RILEY First Paragraph: The defendant, John William Kuhlman, was convicted by a Williamson County jury of assault, the Class B misdemeanor. The trial court sentenced him to six (6) months in the county jail and approved the jury's assessment of a fine of $2,500. On appeal, defendant presents several issues for our review, including: (1) whether the evidence is sufficient to support the jury's verdict; (2) whether the state proved his sanity at the time of the offense; (3) whether his preliminary hearing was held in violation of Tenn. R. Crim. P. 5; (4) whether the trial court erred in refusing to strike hearsay evidence; and (5) whether he was denied his right against self-incrimination when he was compelled to testify at his sentencing hearing. We affirm defendant's conviction; however, because the jury imposed a fine that exceeds the statutory maximum for a Class B misdemeanor, we remand so that a new jury may be empaneled on the sole issue of fixing a fine. URL:http://www.tba.org/tba_files/TCCA/kuhlmanw_opn.WP6 STATE OF TENNESSEE vs. RICKY GENE WILKERSON, AND TINA LYNN WILKERSON Court:TCCA Judge:SMITH First Paragraph: This matter is again before the Court upon the state's motion requesting that the judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. Previously, this Court ordered that the appellants would have 10 days to request that the trial court clerk certify and transmit a supplemental record which included the final judgments. The supplemental record is now before the Court, and after reviewing the pleadings and the entire record on appeal, we find that this is an appropriate case for affirmance pursuant to Rule 20 and therefore, grant the state's motion. URL:http://www.tba.org/tba_files/TCCA/wilkers3_ord.WP6 STATE OF TENNESSEE vs. JAMES CLAYTON YOUNG, JR. Court:TCCA Judge:WITT First Paragraph: DISSENTING AND CONCURRING OPINION Although I concur in the treatment of most issues and concur in the remand for a new trial, I respectfully depart from the majority on the issue of sufficiency of the evidence to support felony murder and the somewhat related issue of the redaction of the defendant's pretrial statement. For the reasons explained below, I would dismiss the felony murder charge and remand for retrial as to second-degree murder. URL:http://www.tba.org/tba_files/TCCA/youngdc_sep.WP6 STATE OF TENNESSEE vs. JAMES CLAYTON YOUNG, JR. Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: R. STEVEN WALDRON JOHN KNOX WALKUP TERRY A. FANN Attorney General & Reporter 202 West Main St. Murfreesboro, TN 37130 DARYL J. BRAND Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 WILLIAM C. WHITESELL, JR. District Attorney General 303 Rutherford County Judicial Bldg. Murfreesboro, TN 37130 Judge:WADE First Paragraph: The defendant, James Clayton Young, was convicted of felony murder, a Class A felony. The trial court imposed a life sentence. The grand jury had returned a three-count indictment that included charges of deliberate and premeditated murder, felony murder in the perpetration of a rape or an attempted rape, and unlawful disposal of a corpse. The defendant pled guilty to the unlawful disposal of a corpse and received a one-year sentence to be served concurrently with the life sentence for felony murder. Neither that conviction nor the sentence is at issue in this appeal. The trial judge granted the defendant's motion for judgment of acquittal on the first degree murder charge and had instructed the jury on second degree murder, voluntary manslaughter, reckless homicide, and criminally negligent homicide. URL:http://www.tba.org/tba_files/TCCA/youngjc_opn.WP6
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