August 05, 1999
Volume 5 -- Number 109

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
 
01 New Opinion(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 New Opinion(s) from the Tennessee Court of Appeals
06 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Lucian T. Pera
Editor-in-Chief, TBALink


RONALD TATE
VS.
TRAVELERS INSURANCE      
COMPANY

Court:TSC

JUDGMENT ORDER

Judge:THAYER

First Paragraph:

This case is before the Court upon the entire record, including the
order of referral to the Special Workers' Compensation Appeals Panel,
and the Panel's memorandum Opinion setting forth its findings of fact
and conclusions of law, which are incorporated herein by reference;

Whereupon, it appears to the Court that the memorandum Opinion of the
Panel should be accepted and approved; and

It is, therefore, ordered that the Panel's findings of facts and
conclusions of law are adopted and affirmed and the decision of the
Panel is made the Judgment of the Court.

http://www.tba.org/tba_files/TSC/Taterona_wc.WP6



DEBORAH Z. BARNES VS. RITTENHOUSE, INC. Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: J. Eric Harrison James M. Davis Wimberly, Lawson & Seale 214 North Jackson St. 550 W. Main Ave. Morristown, Tenn. 37814 Nations Bank Center, Suite 601 Knoxville, Tenn. 37902 Judge:THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. http://www.tba.org/tba_files/TSC_WCP/Barnesde_wc.WP6
C. DOUGLAS GIBSON VS. WILLIAM GIBSON (MORRISTOWN DRIVERS SERVICE) Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Phillip L. Boyd Robert A. Crawford 108 South Church St. 10th Floor First Amer. Center P.O. Box 298 P.O. Box 2485 Rogersville, Tenn. 37857 Knoxville, Tenn. 37901 Judge:THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. http://www.tba.org/tba_files/TSC_WCP/Gibsoncd_wc.WP6
LINDA GRAY VS. TENNESSEE RESTAURANT ASSN. SELF-INSURED and HONEYMOON HIDEAWAY, INC. Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Lewis A. Combs, Jr. Ronald C. Newcomb 707 Market Street Robin M. King Knoxville, Tenn. 37902 P.O. Box 2231 Knoxville, Tenn. 37901-2231 Judge:THAYER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. http://www.tba.org/tba_files/TSC_WCP/Graylind_wc.WP6
SCOTT S. McKEEHAN VS. WHITE CONSOLIDATED INDUSTRIES, INC., d/b/a ATHENS PRODUCTS, and DINA TOBIN, DIRECTOR OF THE DIVISION OF WORKERS' COMPENSATION, TENNESSEE DEPARTMENT OF LABOR, SECOND INJURY FUND Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Michael D. Newton Paul G. Summers Third Floor Pioneer Building Attorney General and Reporter 801 Broad Street Chattanooga, TN 37402 Dianne Stamey Dycus Deputy Attorney General General Civil Division 425 Fifth Avenue North 2nd Floor, Cordell Hull Building Nashville, TN 37243 Judge:BYERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. http://www.tba.org/tba_files/TSC_WCP/Mckeehan_wc.WP6
RONALD VANDERGRIFF VS. NATIONAL UNIFORM SERVICE Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Dana C. Holloway Jennifer P. Craig James P. Catalano Whelchel, May & Associates Leitner, Williams, Dooley P.O. Box 11407 & Napolitan, PLLC Knoxville, TN 37939-1407 1130 First American Center 507 S. Gay Street Knoxville, TN 37902 Judge:BYERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. http://www.tba.org/tba_files/TSC_WCP/Vandergr_wc.WP6
DANNY W. GLENN VS. TENNESSEE DEPARTMENT OF CORRECTION Court:TCA Attorneys: Paul G. Summers Michael E. Moore Stephanie R. Reevers Nashville, Tennessee Attorneys for Respondent/Appellee Danny W. Glenn, Pro Se Mountain City, Tennessee Judge:LILLARD First Paragraph: This matter appears appropriate for consideration pursuant to Rule 10(b of the Rules of the Court of Appeals of Tennessee. This is a petition by a prisoner for judicial review, declaratory judgment, and for a common law writ of certiorari regarding his sentencing. The prisoner contends, inter alia, that he should be resentenced under the Criminal Sentencing Reform Act of 1989. The trial court granted the motion to dismiss filed by the defendant Tennessee Department of Correction. We affirm. http://www.tba.org/tba_files/TCA/Glenndw_opn.WP6
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES VS. JAMES BOSTICK OSBORNE IN THE MATTER OF: SHERRY MONET HENDREN Court:TCA Attorneys: Thomas H. Miller P. O. Box 681662 Franklin, TN 37068-1662 Attorney for Respondent-Appellant Paul G. Summers ATTORNEY GENERAL AND REPORTER Douglas Earl Dimond ASSISTANT ATTORNEY GENERAL General Civil Division Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0499 Attorneys for Petitioner-Appellee Judge:GODDARD First Paragraph: This case involves a petition for termination of parental rights. The Respondent/Appellant, James Bostick Osborne, appeals from an order of the Juvenile Court of Davidson County terminating his parental rights as the biological father of Sherry Monet Hendren. We affirm the judgment of the Trial Court. http://www.tba.org/tba_files/TCA/Hendrens_opn.WP6
MOBILE LIVING, INC. VS. J. MICHAEL TOMLIN and AUBREY EARL GREGORY Court:TCA Attorneys: DAVID MURRAY SMYTHE 114 Second Avenue North Second Floor Nashville, Tennessee 37201 ATTORNEY FOR PLAINTIFF/APPELLEE STEVE NORTH MARK NORTH 1215 Gallatin Pike, South Madison, Tennessee 37115 ATTORNEYS FOR DEFENDANTS/APPELLANTS Judge:CAIN First Paragraph: This case is before the court on interlocutory appeal from the Chancery Court of Davidson County under Tennessee Rules of Appellate Procedure Rule 9. The trial court order granting the interlocutory appeal presents a single issue: "1. Whether the defendant Gregory's affirmative defenses of waiver, laches and estoppel, abandonment, and breach of duty of good faith and fair dealing are matters of law to be decided by the court and not material facts in dispute, which would be decided by the jury in the case." http://www.tba.org/tba_files/TCA/Mobilelv_opn.WP6
BETTY NESMITH and CECIL NESMITH VS. JOHN ALSUP, II and TERESA ALSUP Court:TCA Attorneys: DARRELL L. SCARLETT 16 Public Square North P. O. Box 884 Murfreesboro, Tennessee 37133-0884 Attorney for Plaintiffs/Appellees FREDERICK L. CONRAD, JR. 607 Market Street, Ninth Floor P. O. Box 2466 Knoxville, Tennessee 37902 Attorney for Defendants/Appellants Judge:CANTRELL First Paragraph: The plaintiff petitioned the court for a declaration that she was entitled to a one-half interest in a farm that had been part of her father's estate. Her brother responded by claiming to be the sole owner under the provisions of their father's will, or in the alternative, under a theory of adverse possession. The trial court found that the effect of the will was to divide the property equally between the siblings, and that the brother failed to prove ownership by adverse possession. We affirm the trial court. http://www.tba.org/tba_files/TCA/Nesmithb_opn.WP6
BARRY SHAWN RALSTON VS. GINA IONE HOLLOWAY RALSTON Court:TCA Attorneys: ROBERT L. JACKSON W. SCOTT ROSENBERG 214 2nd AVENUE, NORTH/SUITE 103 NASHVILLE, TENNESSEE 37201 ATTORNEYS FOR PLAINTIFF/APPELLANT ROSEMARY E. PHILLIPS 429 CHURCH STREET P.O. BOX 590 GOODLETTSVILLE, TENNESSEE 37070-0590 ATTORNEY FOR DEFENDANT/APPELLEE Judge:COTTRELL First Paragraph: This appeal arose after the trial court rejected Appellant Barry Shawn Ralston's ("the father") petition to reduce child support on the basis of his reduced actual income. In his sole issue on appeal, the father argues that the trial court misapplied Tenn. Code Ann. S 36-5-101 (a) (1), which he claims mandated the modification of child support on a showing of a significant variance between the amount of child support required by application of the Child Support Guidelines to his current actual income and the previously-ordered support obligation. Appellee Gina Ione Holloway Ralston ("the mother") responds that the father remains intentionally underemployed and that the trial court properly considered the father's potential income in denying the requested reduction. For the reasons set out herein, we vacate and remand for further proceedings. http://www.tba.org/tba_files/TCA/Ralston4_opn.WP6
SHANNON REA ROBERTS VS. CREIG McLAUGHLIN JANICE ROBERTS Intervening Petitioner-Appellant. Court:TCA Attorneys: For Appellant For Appellee JOE F. GILLESPIE, JR. JAMES ROBIN McKINNEY, JR. Joelton, Tennessee Nashville, Tennessee Judge:SUSANO First Paragraph: This case originated as a paternity action. Shannon Rea Roberts ("Ms. Roberts") sought to establish that Creig McLaughlin ("McLaughlin") was the father of her child, Dylan Daniels Roberts ("Dylan") (DOB: February 14, 1997). The part of the case now before us concerns the petition to intervene filed in that proceeding by Janice Roberts ("Grandmother"), who is the mother of Shannon Rea Roberts and the grandmother of Dylan. In her petition, Grandmother seeks court-ordered "reasonable visitation rights" with Dylan. McLaughlin moved to dismiss Grandmother's petition, relying on Rule 12.02(6), Tenn.R.Civ.P., and asserting that the petition "fail[s] to state a claim upon which relief can be granted." Id. The trial court granted McLaughlin's motion, finding that T.C.A. S 36-6-306 (Supp. 1998) does not authorize an award of grandparents' visitation under the undisputed material facts of this case. Grandmother appeals, arguing that the trial court erred in dismissing her petition. We affirm. http://www.tba.org/tba_files/TCA/Robrtssr_opn.WP6
STELLA L. STARKS VS. SAMUEL J. BROWNING, JOSEPH F. BROWNING, and MARY BROWNING BART DURHAM INJURY AND ACCIDENT LAW OFFICES Court:TCA Attorneys: For Stella L. Starks: For Bart Durham Injury & Steve R. Darnell Accident Law Offices: Bateman, Bateman & Darnell Robert L. Whitaker Clarksville, Tennessee Nashville, Tennessee Judge:KOCH First Paragraph: This appeal involves a law firm's efforts to enforce a statutory attorney's lien on the proceeds of a post-verdict personal injury settlement. After the law firm withdrew from representing the plaintiff because of a dispute arising from the settlement, the Circuit Court for Robertson County, the court where the underlying personal injury action had been tried, granted the law firm's motion for a lien on the settlement proceeds for its fee and costs advanced on the plaintiff's behalf. Thereafter, the trial court granted the law firm's motion to execute on the lien and directed the plaintiff to pay her former law firm $51,091.99. On this appeal, the plaintiff asserts that the trial court erred by directing her to pay her former law firm because the lien was not properly perfected and because the procedure followed by the trial court did not permit her to assert her available claims and defenses against her former law firm. While we have determined that the law firm properly perfected its lien, we find that the trial court did not have the authority to adjudicate the fee dispute between the law firm and its former client. Accordingly, we reverse the portion of the trial court's order granting the motion for execution of the attorney's lien. http://www.tba.org/tba_files/TCA/Starkssl_opn.WP6
CHARLES CLAY YOUNG VS. LOUISE JOHNSON, TOY YOUNG, and HUBERT BARR Court:TCA Attorneys: For the Appellant: For the Appellees: CHARLES CLAY YOUNG LYNN O. SPARKMAN Pro Se Sparta, Tennessee Judge:SWINEY First Paragraph: Plaintiff filed a pro se complaint ["Torts Suit"] for damages suffered as a result of Defendants' removal of a dwelling he constructed on Young-Graham family cemetery property, and for back wages as a maintenance worker at the cemetery and punitive damages. The Trial Court, after consideration of the pleadings and Affidavits filed by the parties, entered an Order granting the Defendants summary judgment, which judgment the Plaintiff appeals. The appeal was submitted on briefs and addressed only the Defendants' removal of the dwelling the Plaintiff constructed on cemetery property. For the reasons herein stated, we affirm the Trial Court's dismissal of the Plaintiff's complaint. http://www.tba.org/tba_files/TCA/Young_opn.WP6
STATE OF TENNESSEE VS. ROBERT MATTHEW LANE Court:TCCA Attorneys: For the Appellant: For the Appellee: Dan Cook Paul G. Summers 102 N. Maine, Suite C Attorney General of Tennessee Ashland City, TN 37015 and (AT TRIAL) Elizabeth T. Ryan Assistant Attorney General of Tennessee Hershell D. Koger 425 Fifth Avenue North 131 North 1st Street Nashville, TN 37243-0493 Post Office Box 15524 Pulaski, TN 38478 Dan Mitchum Alsobrooks (AT TRIAL AND ON APPEAL) District Attorney Post Office Box 580 Charlotte, TN 37036-0580 Wally Kirby Assistant District Attorney 105 Sycamore Street Ashland City, TN 37015 Judge:TIPTON First Paragraph: The defendant, Robert Matthew Lane, appeals as of right following his conviction upon a guilty plea in the Cheatham County Circuit Court for felony murder. He was sentenced by the trial court to life imprisonment without parole in the custody of the Department of Correction. The defendant contends that the trial court erred by finding two aggravating circumstances and by failing to consider his proposed mitigating circumstances. We affirm the judgment of conviction. http://www.tba.org/tba_files/TCCA/Lane_opn.WP6
STATE OF TENNESSEE VS. RAYMOND MITCHELL, III Court:TCCA Attorneys: For the Appellant: For the Appellee: C. Edward Fowlkes & John Knox Walkup Thomas L. Whiteside Attorney General & Reporter 172 Second Ave North, Ste. 214 Nashville, TN. 37201 Daryl J. Brand Assistant Attorney General 425 Fifth Avenue North Cordell Hull Building, 2nd Floor Nashville, TN. 37243 Victor S. Johnson, III District Attorney General Thomas Thurman & Diane S. Lance Assistant District Attorney Generals Washington Square Building, Ste. 500 222 Second Avenue North Nashville, TN. 37201 Judge:BARKER First Paragraph: The appellant, Raymond Mitchell, appeals as of right from the convictions he received in the Criminal Court of Davidson County. The appellant was indicted on three counts of rape accomplished by fraud and one count of attempted rape by fraud. Before trial, one of the rape charges was severed by the prosecution and set to be adjudicated separately. The remaining two counts of rape by fraud and the count of attempted rape by fraud were tried together. http://www.tba.org/tba_files/TCCA/Mtchelrm_opn.WP6
STATE OF TENNESSEE VS. STEVEN WILLARD SELF Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARK E. STEPHENS PAUL G. SUMMERS District Public Defender Attorney General & Reporter 1209 Euclid Avenue Knoxville, TN 37921 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 RANDALL EUGENE NICHOLS District Attorney General TRACI SCUDDER Special Assistant Attorney General MARSHA SELECMAN Assistant District Attorney General P.O. Box 1468 Knoxville, TN 37901 Judge:WILLIAMS First Paragraph: Following a bench trial, the defendant, Stephen Willard Self, was convicted of misdemeanor reckless endangerment and intentionally killing an animal valued at less that $500. The defendant appeals, arguing that the evidence at trial was insufficient to support conviction of either offense. We AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Selfstvw_opn.WP6
STATE OF TENNESSEE VS. JOSEPHINE SKIDMORE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN KNOX WALKUP CHARLES R. RAY Attorney General and Reporter JEFFERY S. FRENSLEY 211 Third Avenue North DARYL J. BRAND P. O. Box 198288 Associate Solicitor General Nashville, TN 37219-8288 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General KATRIN MILLER Assistant District Attorney 222 Second Avenue North Nashville, TN 37201-1649 Judge:SMITH First Paragraph: The appellee, Josephine Skidmore, was indicted by the Sumner County grand jury with one (1) count of forgery and one (1) count of making, presenting or using a false document with the intent that it be taken as a genuine governmental record. She applied for pretrial diversion, which was denied by the district attorney. Skidmore subsequently filed a petition for writ of certiorari with the trial court to review the district attorney's denial of pretrial diversion. The trial court found that the assistant district attorney abused her discretion and placed the appellee on pretrial diversion for a period of one (1) year, which would run retroactively from the date of the indictment. The state appeals, claiming that the trial court erred in (1) reversing the district attorney's decision to deny pretrial diversion, and (2) ordering a retroactive diversionary period. After a thorough review of the record before this Court, we conclude that the trial court erred in finding that the district attorney abused her discretion and, accordingly, reverse the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Skidmjos_opn.WP6
STATE OF TENNESSEE VS. CHRIS RUBLE TEFFETELLER Court:TCCA Attorneys: For Appellant: For Appellee: Julie A. Martin, Attorney John Knox Walkup P.O. Box 426 Attorney General and Reporter Knoxville, TN 37901-0426 (on appeal) Clinton J. Morgan 425 Fifth Avenue North Mack Garner Cordell Hull Building, Second Floor District Public Defender Nashville, TN 37243-0493 419 High Street Maryville, TN 37804 Charles Carpenter Assistant District Attorney General Blount County Courthouse 363 Court Street Maryville, TN 37804 Judge:WADE First Paragraph: The defendant, Chris Ruble Teffeteller, entered pleas of guilt to aggravated burglary and theft in excess of $1,000.00. The trial court imposed a Range I, four-year sentence for aggravated burglary and a Range I, three-year sentence for the theft. After serving six months in jail, the defendant was allowed to spend the remainder of each of the sentences in the community corrections program. http://www.tba.org/tba_files/TCCA/Teftlrcr_opn.WP6
STATE OF TENNESSEE VS. RICHARD MILBURN WHITE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: SHAWN G. GRAHAM PAUL G. SUMMERS Asst District Public Defender Attorney General and Reporter 419 High Street Maryville, TN 37804 ERIK W. DAAB Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 MIKE FLYNN District Attorney General WILLIAM REED Assistant District Attorney General 363 Court Street Maryville, TN 37804 Judge:WELLES First Paragraph: The Defendant, Richard Milburn White, was convicted, upon his pleas of guilty, of three counts of forgery, three counts of uttering a forged writing, one count of assault, and one count of aggravated assault. In exchange for his guilty pleas, he agreed to an effective sentence of five years as a Range I standard offender, with the manner of service of the sentences left to the discretion of the trial judge. After conducting a sentencing hearing, the judge ordered that the sentences be served in the Department of Correction. The Defendant appeals from the trial judge's order. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Whiterm_opn.WP6

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