Opinion Flash

May 22, 2002
Volume 8 — Number 90

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

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

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


ROBERT LEEGRAND v. TRINITY UNIVERSAL INSURANCE

Court:TSC - Workers Comp Panel

Attorneys:

J. Mark Patey, Jackson, Tennessee, for the appellant, Robert LeeGrand.

William F. Kendall, III, B. Duane Willis, Jackson, Tennessee, and J.
Michael Morgan, Nashville, Tennessee, for appellee, Trinity Universal
Insurance.                         

Judge: CHILDERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Panel of the Supreme Court in accordance with
Tennessee Code Annotated S 50-6-225(e)(1999) for a hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.  The appellant presents the following issues for review: (1)
Whether the trial court erred in ruling that the plaintiff did not
sustain an injury that arose out of his employment; (2) whether the
trial court erred in ruling that the plaintiff received no permanent
disability from his injuries; (3) whether the trial court erred in
failing to make a specific finding as to the benefit rate, and (4)
whether the trial court erred in failing to award plaintiff
discretionary costs.  Although we hold that the plaintiff's injury
arose out of the plaintiff's employment, we affirm the trial court's
conclusion that the plaintiff received no permanent disability from
his injury.

http://www.tba.org/tba_files/TSC_WCP/leegrandr.wpd

VULCAN MATERIALS COMPANY v. KITSMILLER AND COMPANY, et al.

Court:TCA

Attorneys:

K. Stephen Powers and Stephen G. Kabalka, Chattanooga, Tennessee, for
the appellants, Seaboard Farms of Chattanooga, Inc., and ConAgra
Poultry Company.

Gary E. Lester and Robert S. Grot, Chattanooga, Tennessee, for the
appellee, Vulcan Materials Company.                    

Judge: SUSANO

First Paragraph:

Vulcan Materials Company ("Vulcan") brought this action seeking to
enforce a materialman's lien against a piece of property at 1300
Market Street, Chattanooga ("the subject property"). Vulcan's
complaint originally named as defendants, Seaboard Farms of
Chattanooga ("Seaboard") - the owner of the subject property when
Vulcan first delivered materials to a construction site on the
property - and another entity that the plaintiff simply identified as
"Conagra."  It is alleged in the complaint that "Conagra" owned the
subject property at the time the lawsuit was filed.  The trial court
allowed Vulcan to amend its complaint to identify "Conagra" by its
correct name, i.e., ConAgra Poultry Company ("ConAgra Poultry"), and
held that the amended complaint related back to the date of filing of
the original complaint.  Presented with cross motions for summary
judgment, the trial court initially ruled that Vulcan violated the
statutory scheme pertaining to real property liens because it failed
to mail a notice of lien to ConAgra Poultry.  Upon Vulcan's motion to
alter or amend the judgment, the trial court reversed itself, ruling
that Vulcan had perfected its lien as to ConAgra Poultry by filing a
notice of lien in the Register of Deeds' office within 90 days of the
date of the last delivery of materials. The trial court then granted
Vulcan summary judgment. Seaboard and ConAgra Poultry appeal. We
affirm.

http://www.tba.org/tba_files/TCA/vulcan.wpd

STATE OF TENNESSEE v. FELICIA JOANN CANNON

Court:TCCA

Attorneys:

Donna Leigh Hargrove, District Public Defender, and Andrew Jackson
Dearing III, Assistant Public Defender, for the appellant, Felicia
Joann Cannon.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael David Randles, Assistant District Attorney
General, for the appellee, State of Tennessee.                     

Judge: WILLIAMS

First Paragraph:

After convictions for sale and delivery of a Schedule II controlled
substance, the trial court sentenced defendant to nine years and ten
months incarceration.  Defendant appeals asserting she is entitled to
Community Corrections Program.  We disagree and affirm.

http://www.tba.org/tba_files/TCCA/cannonfj.wpd

STATE OF TENNESSEE v. STEVEN DALTON

Court:TCCA

Attorneys:

E. Covington Johnston, Franklin, Tennessee, and Mark C. Scruggs,
Nashville, Tennessee, for the appellant, Steven Dalton.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; Kenneth K. Crites, Assistant District Attorney General; and
Jeffrey L. Long, Assistant District Attorney General, for the
appellee, State of Tennessee.                       

Judge: GLENN

First Paragraph:

A Hickman County Criminal Court jury found the defendant, Steven
Dalton, guilty of voluntary manslaughter for the killing of a fellow
inmate.  The trial court imposed a six-year sentence to be served
consecutively to the defendant's existing life sentence.  The
defendant appeals his conviction, claiming:  (1) the trial court erred
in allowing the State to impeach him with his prior felony murder
conviction and (2) the evidence was insufficient to support his
conviction for voluntary manslaughter.  We affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCCA/daltonsteven.wpd

STATE OF TENNESSEE v. GARY DWAYNE HARTON, MICHAEL TERRELL THOMAS, and
SHAWN LAVELL FORE

Court:TCCA

Attorneys:  

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellant, State of Tennessee.

John H. Norton, III, Shelbyville, Tennessee, and Cynthia C. Chappell,
Nashville, Tennessee, for the appellees, Gary Dwayne Harton, Michael
Terrell Thomas and Shawn Lavell Fore.                          

Judge: RILEY

First Paragraph:

This is a consolidated state appeal from the trial court's order
suppressing evidence in two separate drug cases involving three
defendants.  The defendants were stopped on Interstate 65 in Marshall
County when officers observed traffic violations; their vehicles were
searched after a trained canine "alerted;" and, as a result of the
search of their vehicles, they were charged with possession of a
substantial quantity of drugs with intent to sell.  The state contends
the trial court erred (1) in declaring Tenn. Code Ann. S 55-8-124, the
"following too closely" statute, unconstitutionally vague; and (2) by
finding an equal protection violation based upon selective prosecution
due to the officers' use of various "indicators" in determining
whether to stop the vehicles for traffic violations.  We conclude
Tenn. Code Ann. S 55-8-124 is not unconstitutionally vague, and the
stops did not deprive the defendants of equal protection; therefore,
we reverse the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/hartongd.wpd

STATE OF TENNESSEE v. RICKY T. HUGHES

Court:TCCA

Attorneys:

Bruce Poag (on appeal) and Lionel Barrett and Daniel McMurtry (at
trial), Nashville, Tennessee, for the appellant, Ricky T. Hughes.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Sharon L. Brox and Roger D. Moore, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Davidson County Criminal Court jury convicted the defendant, Ricky
T. Hughes, of facilitation of first degree felony murder, a Class A
felony, and especially aggravated robbery, a Class A felony.  The
trial court sentenced him to concurrent sentences of twenty-five years
as a standard offender for the facilitation conviction and twenty-five
years as a violent offender for the aggravated robbery conviction. 
The defendant appeals, claiming that (1) the evidence is insufficient
to support his convictions, (2) the trial court erred by denying his
motion to suppress his confession, and (3) the trial court erred by
not allowing him to testify about a prior consistent statement.  We
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/hughesrt.wpd

STATE OF TENNESSEE v. STEVEN JAMES MCCAIN

Court:TCCA

Attorneys:

Dwight E. Scott, Karl F. Dean, Wendy S. Tucker, and Jodie A. Bell, for
the appellant, Steven James McCain.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; Victor S. (Torry) Johnson, District
Attorney General; and Katrin Novak Miller and Bret T. Gunn, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: MCGEE OGLE

First Paragraph:

The appellant, Steven James McCain, was convicted by a jury in the
Criminal Court of Davidson County of two counts of first degree
premeditated murder.  He received two consecutive sentences of life
imprisonment with the possibility of parole.  On appeal, the appellant
raises the following issues for our review: (1) whether the trial
court erred in denying the appellant's "Motion to Suppress
Identifications Made During an Unconstitutional Photographic Line-Up
Procedure"; (2) whether the trial court erred in denying the
appellant's "Motion to Suppress Defendant's Statements"; (3) whether
the trial court erred in admitting the audio-tape-recorded statement
of Chad Collins; (4) whether the trial court erred in overruling the
defense request for a mistrial when the prosecution improperly argued
that the jury should consider Chad Collins' statement as substantive
evidence at trial; and (5) whether the evidence was sufficient to
support his convictions.  Upon review of the record and the parties'
briefs, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/mccains.wpd

STATE OF TENNESSEE v. WILLIE J. MILLER, JR.

Court:TCCA

Attorneys:   

John H. Henderson, District Public Defender; and Gene Honea, Assistant
District Public Defender, for the appellant, Willie J. Miller, Jr.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Derek K. Smith, Assistant District Attorney General, for
the appellee, State of Tennessee.                         

Judge: RILEY
 
First Paragraph:

The defendant appeals from his conviction for child rape rendered
after a jury trial.  On appeal, the defendant claims: (1) the trial
court erred in denying the defendant's request for an appointed DNA
expert; (2) the victim, who was five years old at the time of trial,
was not competent to testify; and  (3) the evidence was insufficient
to support his conviction because the victim's testimony should not
have been presented.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/millerwj.wpd

STATE OF TENNESSEE v. NATHAN SCOTT RAMAGOS

Court:TCCA

Attorneys:

J. Todd Faulkner, Nashville, Tennessee (on appeal); Ross E. Alderman,
District Public Defender (at trial), and Ralph W. Newman, Assistant
Public Defender (at trial), for the appellant, Nathan Scott Ramagos.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; Victor S. Johnson, III,  District Attorney
General; and Jason W. Lawless, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

The defendant pled guilty to one count of sexual battery, a Class E
felony; one count of indecent exposure, a Class A misdemeanor; and one
count of reckless aggravated assault, a Class D felony.  Denying his
request for probation, the trial court sentenced him as a Range I,
standard offender to the maximum sentence for each offense, for an
effective sentence of four years.  In a timely appeal to this court,
the defendant challenges his sentences, arguing that the trial court
erred in its application of enhancement factors, and in failing to
find any factors in mitigation.  Based upon our review, we conclude
that two of the three enhancement factors found applicable by the
trial court are unsupported by the record, but that the remaining
enhancement factor, the defendant's prior history of criminal conduct,
is entitled to great weight.  We further conclude that mitigating
factor (1), the defendant's actions did not cause or threaten serious
bodily injury, applies to the defendant's convictions for sexual
battery and indecent exposure, but that it carries very little, if
any, weight in mitigation.  Accordingly, we affirm the trial court's
denial of the defendant's request for probation, and the sentences
imposed in this case.

http://www.tba.org/tba_files/TCCA/ramagosnathans.wpd


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