Opinion FlashMarch 26, 2002
Volume 8 Number 055
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.
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Howard H. Vogel
ROBERT TERRY DAVIS, et al. v. WILSON COUNTY, TENNESSEE Court:TSC Attorneys: Neal Agee, Jr., Lebanon, Tennessee, for the appellants, Robert Terry Davis and Donald Hamblen. Michael R. Jennings, Lebanon, Tennessee, for the appellee, Wilson County, Tennessee. Judge: ANDERSON First Paragraph: We granted this appeal to determine whether county employees had a vested interest after retirement in health care benefits provided under resolutions passed by the Wilson County Commission. The chancellor found that the appellants had a vested interest in health care benefits because they were county employees who met the requirement of ten years of service and eight years of continuous service with Wilson County under a 1992 resolution. The Court of Appeals reversed the chancellor's judgment, concluding that the health care benefits were welfare benefits in which the appellants did not have a vested interest. After reviewing the record and applicable authority, we hold that the health care benefits were welfare benefits that did not vest automatically and that there was no clear and express language in the resolutions that the health care benefits were intended to vest or could not be terminated. We therefore affirm the Court of Appeals' judgment. http://www.tba.org/tba_files/TSC/davisrobertterry.wpd
STATE OF TENNESSEE v. TIMOTHY McKINNEY Court:TSC Attorneys: William Gosnell, C. Michael Robbins, and William D. Massey, Memphis, Tennessee, for the appellant, Timothy McKinney. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General; William L. Gibbons, District Attorney General; Phillip Gerald Harris and David Henry, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: The defendant, Timothy McKinney, was convicted of premeditated first degree murder and attempted second degree murder. The jury imposed a death sentence for the first degree murder after finding that evidence of an aggravating circumstance, i.e., the defendant was previously convicted of a felony whose statutory elements involved the use of violence to the person, outweighed evidence of mitigating circumstances beyond a reasonable doubt. The trial judge imposed a sentence of twelve (12) years for the attempted second degree murder, to run consecutively to the death sentence. After the Court of Criminal Appeals affirmed the convictions and the sentences, the case was automatically docketed in this Court. We entered an order specifying six issues for oral argument, and we now hold as follows: (1) the trial court did not commit error by denying the defendant's motion to introduce expert testimony on the issue of eyewitness identifications; (2) the jury's verdict form was sufficiently clear to demonstrate that the jury found the prior violent felony aggravating circumstance relied upon by the prosecution; (3) the evidence was sufficient to sustain the prior violent felony aggravating circumstance found by the jury; (4) the trial court's refusal to allow defense counsel to refer to evidence from the guilt phase of the trial during his closing argument in the sentencing phase of the trial did not affect the jury's determination to the prejudice of the defendant and was harmless error; (5) the trial court did not commit error in admitting victim impact evidence during the sentencing phase; and (6) the sentence of death was neither arbitrary nor disproportionate. We also conclude that the evidence was sufficient to support the jury's findings that the prior violent felony aggravating circumstance had been established beyond a reasonable doubt and that it outweighed evidence of mitigating factors beyond a reasonable doubt. Finally, we agree with the Court of Criminal Appeals' conclusions with respect to the remaining issues, the relevant portions of which are included in the appendix to this opinion. Accordingly, we affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/mckinneyt_opn.wpd
STATE OF TENNESSEE v. TIMOTHY McKINNEY BIRCH CONCURRING AND DISSENTING http://www.tba.org/tba_files/TSC/mckinneyt_dis.wpd
STATE OF TENNESSEE v. TIMOTHY McKINNEY APPENDIX http://www.tba.org/tba_files/TSC/mckinneyt_apx.wpd
RALPH D. RICHARDS v. LIBERTY MUTUAL INSURANCE COMPANY Court:TSC Attorneys: Frank C. Lynch, Winchester, Tennessee, for the appellant, Liberty Mutual Insurance Company. Gregory M. O'Neal, Winchester, Tennessee, for the appellee, Ralph D. Richards. Judge: ANDERSON First Paragraph: We granted review in this workers' compensation case to determine whether the Special Workers' Compensation Appeals Panel erred in concluding that the evidence preponderated against the trial court's finding that the employee's injury did not arise out of and in the course of his employment. After reviewing the record and applicable authority, we conclude that the evidence did not preponderate against the trial court's finding that the employee's injury did not arise out of and in the course of his employment. We therefore reject the Panel's findings and conclusions and affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC/richardralph.wpd
JAMES BURKS v. WILLIAMS TYPESETTING, INC. Court:TSC - Workers Comp Panel Attorneys: Richard H. Winningham, of Chattanooga, Tennessee, for Appellant, James Burks. Phillip E. Fleenor and Jane M. Stahl, of Chattanooga, Tennessee, for Appellee, Williams Typesetting, Inc. 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. The trial court found the employee was permanently and totally disabled. The employee appealed insisting the award should be fixed as a permanent partial award payable for a period of 400 weeks. The judgment of the trial court is affirmed as to the 100 percent award of permanent and total disability, the denial of attorney's fees on unpaid medical expenses and the commutation of a lump-sum award for payment of attorney's fees. The judgment is reversed as to allowing a credit against the total disability award and the commutation of benefits in favor of the employee. The case is remanded for the purpose of amending the judgment to allow additional temporary total benefits and for further hearing on the employee's application for commutation benefits. http://www.tba.org/tba_files/TSC_WCP/burksj.wpd
JEFFERY A. WRIGHT v. JOHNSTON COCA-COLA & DR. PEPPER BOTTLING CO., et al. Court:TSC - Workers Comp Panel Attorneys: R. Jerome Shepherd, Cleveland, Tennessee, for the appellant, Jeffery A. Wright. Paul D. Hogan, Jr., Knoxville, Tennessee, for the appellees, Johnston Coca-Cola & Dr. Pepper Bottling Co. and Travelers Property & Casualty Co. 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 Tennessee Code Annotated S 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 the plaintiff suffered a 5 percent permanent medical impairment as a result of an injury sustained while working for the defendant. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/wrightj.wpd
ARFKEN & ASSOCIATES, P.A. v. SIMPSON BRIDGE COMPANY, INC., et al. Court:TCA Attorneys: Jes Beard, Chattanooga, Tennessee, for the appellant, Alan Arfken, successor in interest to Arfken & Associates, P.A. Robert B. Wilson, III, Cleveland, Tennessee, for the appellee, Simpson Bridge Company, Inc. Judge: SUSANO First Paragraph: This is an action by an attorney, Alan Arfken, against his former client, Simpson Bridge Company, Inc. ("Simpson Bridge"), seeking to recover additional fees for professional services allegedly rendered by the attorney in defending the client against a sexual harassment suit. Following a bench trial, the court below found that the attorney was not entitled to any fees over and above those already paid. The court dismissed the original complaint. It also dismissed Simpson Bridge's counterclaim, by which the counter-plaintiff sought to recover fees allegedly overpaid by it. The attorney appeals, raising a number of issues. By way of a separate issue, Simpson Bridge argues that the attorney's notice of appeal was not timely filed. Because we agree with the defendant's contention, we find that we are without jurisdiction to hear the attorney's appeal. Accordingly, we dismiss the appeal. http://www.tba.org/tba_files/TCA/arfken_opn.wpd
ARFKEN & ASSOCIATES, P.A. v. SIMPSON BRIDGE COMPANY, INC., et al. SWINEY DISSENTING http://www.tba.org/tba_files/TCA/arfken_dis.wpd
ASSOCIATES HOME EQUITY SERVICES, INC. v. FRANKLIN NATIONAL BANK Court:TCA Attorneys: Stephen C. Small, C. Dewees Berry, IV, Nashville, Tennessee, for the appellant, Associates Home Equity Services, Inc. J. Timothy Street, Franklin, Tennessee, for the appellee, Franklin National Bank. Judge: COTTRELL First Paragraph: In this appeal Associates, a mortgage company, appeals the trial court's holding that it was not entitled to equitable subrogation to the rights and priority of earlier mortgagees whose loans it paid off. Franklin, another mortgage company, made a loan to the same property owners one day before Associates made its loan and recorded its deed of trust three days before Associates recorded its deed of trust to the same real property. Associates claims that, although Franklin recorded first, Associates is entitled to priority pursuant to the doctrine of equitable subrogation. Franklin filed a Motion for Judgment on the Pleadings, which the trial court granted. We find that because the remedy of equitable subrogation is an equitable one dependent upon the facts and circumstances of the situation and the equities between the parties, judgment on the pleadings was inappropriate. http://www.tba.org/tba_files/TCA/associates.wpd
CLEMENT F. BERNARD, M.D. v. SUMNER REGIONAL HEALTH SYSTEMS, INC. Court:TCA Attorneys: Joe Bednarz, Jr. and Joe Bednarz, Sr., Nashville, Tennessee, for the appellant, Clement F. Bernard, M.D. James C. Bradshaw, III and Jonathan D. Rose, Nashville, Tennessee, for the appellee, Sumner Regional Health Systems, Inc. Judge: ASH First Paragraph: On or about March 26, 1999, the appellee Sumner Regional Health Systems, Inc. revoked appellant Clement F. Bernard, M.D. privileges to practice medicine at Sumner Regional Medical Center. Consequently, Dr. Bernard filed a complaint on March 29, 1999, alleging procurement of breach of contract and defamation. On February 9, 2000, Sumner Regional Health Systems filed a Motion for Summary Judgment on the grounds that Dr. Bernard could not establish viable claims for procurement of breach of contract or defamation. The trial court granted Sumner Regional's motion. On June 12, 2000, Dr. Bernard filed a Notice of Appeal and this litigation resulted. http://www.tba.org/tba_files/TCA/bernard.wpd
PATRICK C. COOLEY, et ux. CATHY COOLEY, v. FIRST AMERICAN BANK and NATIONSBANK Court:TCA Attorneys: Gerald Largen, Kingston, Tennessee, for Appellants. H. Frederick Humbracht, Jr., and Melissa R. Ballengee, Nashville, Tennessee, for Appellee, NationsBank of Tennessee, N.A. Melinda Meador and Regina M. Lambert, Knoxville, Tennessee, for Appellee, First American National Bank, AmSouth Bank. Judge: FRANKS First Paragraph: Bank depositors brought action against Banks for mishandling depositors' check payable to the Internal Revenue Service. The Trial Court granted Banks summary judgment. We affirm. http://www.tba.org/tba_files/TCA/cooleyp.wpd
CHARLES KENDALL DUTY, et al. v. FARAH DABIT, et al. Court:TCA Attorneys: Bruce N. Oldham, Gallatin, TN, for Appellant R. Price Nimmo, Rabin P. Nimmo, Nashville, TN, for Appellees Judge: HIGHERS First Paragraph: This appeal involves a suit brought by the purchasers of a new home. The seller and purchaser entered into a contract of sale, wherein the seller agreed to construct a home on a parcel of real property. Having no construction experience, the seller hired a contractor to construct the home. Upon the completion of the home and closing on the property, the purchasers discovered numerous defects that were allegedly caused by a failure to construct the home in a workmanlike manner. The purchasers filed suit against the seller and the contractor. The seller and the contractor hired an attorney, but the attorney eventually withdrew from the case. Four months after the attorney's withdrawal, the case proceeded to trial. The seller, acting pro se, arrived at the trial several hours late. By the time the seller had arrived, the contractor and purchaser had completed voir dire and the contractor had been dismissed through a judgment on the pleadings. With the trial judge acting as finder of fact, the trial proceeded and a judgment was entered against the seller in the amount of $22,182.84. After the trial, in an attempt to amend his pleadings to assert a cross-claim against the contractor, the seller moved the court for a new trial or to set aside the judgment. The trial court denied the seller's motion and for the following reasons, we affirm. http://www.tba.org/tba_files/TCA/dutycharlesk.wpd
WALTER FLETCHER v. DEANNA M. FLETCHER, et al. IN RE: K.B.F. and K.S.F. Court:TCA Attorneys: Douglas T. Jenkins, Rogersville, Tennessee, for the Appellant, Walter Fletcher. Phillip L. Boyd, Rogersville, Tennessee, for the Appellees, David and Debra Fleenor. Judge: SWINEY First Paragraph: This appeal concerns a custody dispute between the biological father, Walter Fletcher ("Father"), and the maternal grandparents, David and Debra Fleenor ("Grandparents"), of two minor children ("Children"). The Grandparents initiated this matter by filing a petition for emergency custody in juvenile court, essentially alleging that the Children were dependent and neglected. Thereafter, Father sought custody of the Children, but his petition was denied by the juvenile court. Father appealed the juvenile court order to circuit court in accordance with Tenn. Code Ann. S 37-1 159(a). The circuit court dismissed his appeal, holding it did not have jurisdiction. Father appeals both the juvenile court order and the circuit court order. We vacate the circuit court order and remand. Father's appeal of the juvenile court order is dismissed. http://www.tba.org/tba_files/TCA/fletcherwalter.wpd
MINNIE LORENA LONG v. HCA HEALTH SERVICES OF TENNESSEE, INC. d/b/a SOUTHERN HILLS MEDICAL CENTER Court:TCA Attorneys: Dixie W. Cooper, Edward A. Hadley, Nashville, TN, for Appellant Karen M. Weimar, Justin Johnson, Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal involves a personal injury sustained by the plaintiff while a patient at defendant's nursing home facility. The plaintiff filed suit against the defendant for negligence and the case proceeded to trial before a jury. During the trial, the defendant filed several motions for a directed verdict, which were denied. The trial resulted in a hung jury and the court was forced to declare a mistrial. Before the second trial, the defendant renewed its motion for directed verdict. The court ruled that the plaintiff's cause of action should be considered a claim for medical malpractice, but that the plaintiff made out a prima facie case. The plaintiff voluntarily dismissed the suit before the second trial took place and the defendant motioned the court for discretionary costs. The court awarded the defendant only some of the requested costs and this appeal followed. For the following reasons, we affirm the decisions of the trial court to deny defendant's last motion for a directed verdict and to award only partial discretionary costs. http://www.tba.org/tba_files/TCA/longminniel.wpd
M.P.P., et al. v. D.L.K. IN RE: C.E.P. Court:TCA Attorneys: Josephine D. Clark, Oak Ridge, Tennessee, for the Appellant, D.L.K. N. David Roberts, Jr., Knoxville, Tennessee, for the Appellees, M.P.P. and A.E.P. Judge: SWINEY First Paragraph: Josephine D. Clark, Oak Ridge, Tennessee, for the Appellant, D.L.K. N. David Roberts, Jr., Knoxville, Tennessee, for the Appellees, M.P.P. and A.E.P. http://www.tba.org/tba_files/TCA/mpp.wpd
STATE OF TENNESSEE v. JERRY B. GRAVES Court:TCCA Attorneys: Susan E. Shipley, Knoxville, Tennessee, for the appellant, Jerry B. Graves. Paul G. Summers, Attorney General and Reporter; Angele Michele Gregory, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Scott G. Green, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of felony murder and especially aggravated robbery and sentenced to concurrent punishment of life imprisonment and twenty-three years, respectively. In his appeal, he argues that the trial court erred in not remanding the matter for another preliminary hearing after it was discovered that the first hearing had not been recorded; in limiting his cross-examination of two prosecution witnesses as to pending matters; and in admitting an autopsy photograph of the victim's head, with the scalp pulled back, to show the gravity of his wound. Based upon our review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/gravesjerry.wpd
STATE OF TENNESSEE v. THOMAS DEE HUSKEY Court:TCCA Attorneys: Herbert S. Moncier and Gregory P. Isaacs, Knoxville, Tennessee, for the appellant, Thomas Dee Huskey. Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich, Assistant Attorney General; Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee. W. Thomas Dillard, Knoxville, Tennessee, and Martin S. Pinales, Cincinnati, Ohio, for the Amicus Curiae, National Association of Criminal Defense Lawyers. Paula R. Voss and Richard L. Gaines, Knoxville, Tennessee, for the Amicus Curiae, Tennessee Association of Criminal Defense Lawyers. Randall E. Reagan, Knoxville, Tennessee, for the Amicus Curiae, Knoxville Defense Lawyers Association. Judge: TIPTON First Paragraph: The defendant, Thomas Dee Huskey, brings this extraordinary appeal in which he challenges the order of the Knox County Criminal Court removing his lead counsel of record for his retrial on four counts of first degree murder. The defendant asserts that the trial court's action is an infringement on his Sixth Amendment right to counsel. We conclude that the trial court's order violated the defendant's right to counsel and exceeded its discretion. We vacate the trial court's order and remand the case for further proceedings. http://www.tba.org/tba_files/TCCA/huskey_opn.wpd
STATE OF TENNESSEE v. THOMAS DEE HUSKEY WADE DISSENTING http://www.tba.org/tba_files/TCCA/huskey_dis.wpd
Surrender of Memphis City Charter Date: March 14, 2002 Opinion Number: 02-028 http://www.tba.org/tba_files/AG/OP28.pdf
Employment of Real Estate Appraisers and Taxpayer Agents by Lawyers and Accountants Date: March 14, 2002 Opinion Number: 02-029 http://www.tba.org/tba_files/AG/OP29.pdf
House Redistricting Plan - 2002 Tenn. Pub. Acts Ch. 468 - Representation of New Districts Date: March 14, 2002 Opinion Number: 02-030 http://www.tba.org/tba_files/AG/OP30.pdf
Appropriations Exceeding Revenues Date: March 15, 2002 Opinion Number: 02-031 http://www.tba.org/tba_files/AG/OP31.pdf
Qualifications for State Senator - Residency for Three Years in the State - Article II, Section 10 of the Tennessee Constitution Date: March 15, 2002 Opinion Number: 02-032 http://www.tba.org/tba_files/AG/OP32.pdf
Hours for Beer Sales in Unincorporated Areas of a County Date: March 15, 2002 Opinion Number: 02-033 http://www.tba.org/tba_files/AG/OP33.pdf
Failure to Adopt a Budget Date: March 15, 2002 Opinion Number: 02-034 http://www.tba.org/tba_files/AG/OP34.pdf
Correctional Officers Carrying Firearms While Off Duty (Revised) Date: March 15, 2002 Opinion Number: 02-035 http://www.tba.org/tba_files/AG/OP35.pdf
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