Opinion Flash

January 23, 2003
Volume 9 — Number 013

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
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
10 New Opinion(s) from the Tennessee Court of Appeals
06 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


AVIS ESTES, etc. v. EDGAR MEEK

Court:TSC - Workers Comp Panel

Attorneys:

Blakely D. Matthews and Jay N. Chamness, Cornelius & Collins,
Nashville, Tennessee, for the appellant, Edgar Meek

Jerred A. Creasy, Vandivort & Creasy, Charlotte, Tennessee, for the
appellee, Avis Estes, surviving spouse of Walter B. Estes                        

Judge: LOSER

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.  In this
appeal, the employer questions the trial court's finding that the
death of Walter B. Estes was the caused by a work related accidental
injury.  As discussed below, the panel has concluded the judgment
should be affirmed.

http://www.tba.org/tba_files/TSC_WCP/estesavis.wpd
								
MICHAEL STORY v. THE HOLLAND GROUP OF TENNESSEE d/b/a THE HOLLAND GROUP, et al. Court:TSC - Workers Comp Panel Attorneys: Kenneth M. Switzer, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellants, The Holland Group of Tennessee d/b/a The Holland Group and CGU Insurance Group Charles L. Hicks, Camden, Tennessee, for the appellee, Michael Story Judge: LOSER 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. In this appeal, the employer and its insurer question the trial court's finding relative to the extent of the employee's permanent disability, as being excessive. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/storymic.wpd
DR. ROBERT EMANS v. THE BOARD OF REGENTS OF THE STATE OF TENNESSEE, et al. (Opinion originally filed 11/01/02 has been withdrawn and replaced with this opinion.) Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter; Denielle Vonende Young, Assistant Attorney General, for the appellant, State of Tennessee. Patrick T. McNally, Nashville, Tennessee, for the appellee, Dr. Robert Emans. Judge: CANTRELL First Paragraph: The Claimant was appointed Dean of the College of Education of Tennessee State University in 1990, evidenced by a Notice of Appointment and Agreement of Employment. Four years later, he was terminated as Dean, and appointed to the tenured position of Professor, at a lesser salary. In this action he sought damages for breach of contract, inter alia. The Commission ruled that the Claimant, although lawfully terminated as Dean, was nevertheless entitled to receive the salary of a deanship. http://www.tba.org/tba_files/TCA/emansrcorr.wpd
VIOLET GUARINO A/K/A/ VIOLET CORROZZO v. JOSEPH CORROZZO Court:TCA Attorneys: James R. Smith, Murfreesboro, Tennessee, for the appellant, Joseph Corrozzo. James D. Roberts, Nashville, Tennessee, for the appellee, Violet Guarino. Judge: CANTRELL First Paragraph: The appellant was ordered in a divorce decree to pay his wife a portion of his pension. He attempted to discharge these payments in a bankruptcy proceeding. The Chancery Court of Rutherford County held that the payments were non-dischargeable because they constituted "support, maintenance or alimony" payments which are not dischargeable under the bankruptcy code. On appeal, appellant argues that wife violated the automatic stay injunction by filing in a state court and that she failed to properly object to the discharge. Appellant also argues that the trial court did not have subject matter jurisdiction. We hold that the payments were in the nature of support and, therefore, not a dischargeable debt. This result means that the issues raised by the appellant are moot. We affirm the trial court's decision. http://www.tba.org/tba_files/TCA/guarinov.wpd
JET PRINTING, LLC v. DEEP SOUTH WHOLESALE PAPER COMPANY, INC. Court:TCA Attorneys: Wayne L. Robbins, Jr. and Mary Taylor Gallagher, Nashville, Tennessee, for appellant, Jet Printing, LLC. James C. Edwards, Madison, Tennessee, for appellee, Deep South Wholesale Paper Company, Inc. Judge: LILLARD First Paragraph: This is a breach of contract case. A bag manufacturer ordered printed polyethylene film from a printing company, to be made into bags to sell to chicken packaging companies. The film was treated on both sides. Consequently, the bag manufacturer was unable to properly seal the bags. Later shipments of film that were not treated on both sides sealed properly. The bag manufacturer refused to pay for the initial shipment of film that would not seal, so the seller printing company sued for breach of contract. The trial court found for the bag manufacturer, holding that the seller breached both an implied term of the contract and an implied warranty of fitness for a particular purpose. On appeal, the seller printing company argues that the trial court erred in finding that the film did not conform to the contract and that the seller breached the implied warranty of fitness for a particular purpose, and that the trial court erred in excluding the testimony of the seller's proffered expert. We affirm, finding that the trial court did not err in finding that the seller breached an implied warranty for a particular purpose, nor in excluding the testimony of the seller's expert witness. http://www.tba.org/tba_files/TCA/jetprinting.wpd
LARRY KERR, vs. ANDERSON COUNTY, TENNESSEE Court:TCA Attorneys: David S. Clark, Oak Ridge, Tennessee, for Appellant. Dail R. Cantrell, Clinton, Tennessee, for Appellee. Judge: FRANKS First Paragraph: The Trial Judge held plaintiff's employment Contract was valid and enforceable. On appeal, we reverse on the grounds the provisions in the Contract are against public policy. http://www.tba.org/tba_files/TCA/kerrl.wpd
MARISA R. LOVIN v. CHARLES E. NAVE, D.D.S., P.C. Court:TCA Attorneys: Darren F. Mitchell, Knoxville, Tennessee, for the Appellant, Marisa R. Lovin. F. Michael Fitzpatrick, Knoxville, Tennessee, for the Appellee, Charles E. Nave, D.D.S., P.C. Judge: SWINEY First Paragraph: Marisa R. Lovin ("Plaintiff") was involved in a one car accident on her way home from Dr. Charles E. Nave's ("Defendant") dental office. Although Plaintiff has no memory of the accident itself, she claims she suffered an adverse reaction to an anesthetic agent administered by Defendant, which caused the car accident. Plaintiff sued Defendant for dental malpractice claiming Defendant failed to warn her about potential side effects of the anesthesia and did not properly manage her treatment after administering the anesthetic agent. The Trial Court granted Defendant summary judgment. Plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/lovinmr.wpd
IN RE: SHON AUSTIN MARR CHRISTY RENEE OSBORN v. JUSTIN CHANDLER MARR Court:TCA Attorneys: Kenneth W. Rucker, Nolensville, Tennessee, for the appellant, Christy Renee Osborn. Stacey M. Brackeen, Franklin, Tennessee, for the appellee, Justin Chandler Marr. Judge: LILLARD First Paragraph: This case involves the termination of parental rights. The parents of the child lived together but were never married to one another. The father abused the mother on occasion, usually during times in which the father was drinking alcohol. The couple had a son in September 1998. From September 1998 until February 1999, the father and mother lived together. In February 1999, the father pled guilty to and was imprisoned for especially aggravated robbery, a crime committed prior to the birth of the parties' son. In July 2001, the mother filed this petition to terminate the father's parental rights. The trial court declined to do so, finding insufficient evidence that the child would be substantially harmed if the father's parental rights were not terminated. Mother now appeals. We reverse and remand, concluding that a separate showing of substantial harm is not required when grounds for termination exist under Tennessee Code Annotated S 36-1-113(g)(6). http://www.tba.org/tba_files/TCA/marrsa.wpd
BRENDA MARTIN, EXECUTOR OF THE ESTATE OF DEWEY O. MOORE v. JEAN MOORE Court:TCA Attorneys: Randle W. Hill, Jr., Nashville, Tennessee, for the appellant, Jean Moore. August C. Winter, Brentwood, Tennessee, for the appellee, Brenda Martin. Judge: CANTRELL First Paragraph: A man who had been diagnosed with dementia executed a power of attorney in favor of his wife. The wife used the power to withdraw all the money from her husband's separately owned bank account, and sent most of it to her brother for investment overseas. She also completed the sale of real property her husband had owned in Kentucky, and placed the proceeds in a marital account. After his death, the man's daughter from a previous marriage brought suit for breach of fiduciary duty, asking for the return of the assets to his estate. The trial court ordered the return of the money taken from the bank account, but ruled that the wife was entitled to keep the proceeds from the sale of the real property. The court also ordered the wife to pay some of the daughter's attorney fees. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/martinb.wpd
JEFFREY A. SIMMONS v. GATH BAPTIST CHURCH, et al. Court:TCA Attorneys: Jeffrey A. Simmons, McMinnville, Tennessee, Pro Se. William E. Godbold, III, Chattanooga, Tennessee, for the appellee, Gath Baptist Church. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Ellen H. Pollack, Assistant Attorney General, for the appellees, Department of Children's Services, District Attorney General of Warren County, and Tennessee Bureau of Investigation. Larry B. Stanley, Sr., McMinnville, Tennessee, for the appellees, Doug Deaton, Warren County Jail, and Warren County General Sessions Judge Larry Ross. Judge: CANTRELL First Paragraph: A man arrested for child sexual abuse brought an action against the church he once worked for, as well as against the Department of Children's Services and other governmental agencies, claiming that his arrest was procured by illegal or unconstitutional means. The trial court dismissed the action for failure to state a claim for which relief can be granted, and the passing of the Statute of Limitations. The court further held that the defendant governmental entities were immune from civil liability. We affirm. http://www.tba.org/tba_files/TCA/simmonsja.wpd
SUMNER COUNTY BOARD OF EDUCATION v. MANSKER FARMS, LLC Court:TCA Attorneys: John R. Phillips, Jr., Gallatin, TN, for Appellant Joe H. Thompson, Gallatin, TN, for Appellee Judge: HIGHERS First Paragraph: This is a dispute over an option contract. Mansker Farms, a land developer, offered the Sumner County School Board an option on land in its development to build a school. A dispute arose over whether a condition precedent existed in the contract and whether the nonfulfillment of this condition prevented the School Board from exercising the option. The trial court found that no valid contract existed because there was no meeting of the minds between Mansker Farms, who gave the option, and the Sumner County Board of Education, who attempted to exercise the option. For the following reasons, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/sumnercobd.wpd
WESTERN EXPRESS, INC. v. BENCHMARK ELECTRONICS, et al. Court:TCA Attorneys: Roland M. Lowell, Nashville, Tennessee, for the appellant, Western Express, Inc. Brigid M. Carpenter, Nashville, Tennessee, for the appellee, Benchmark Electronics Huntsville, Inc. d/b/a Benchmark Electronics Pulaski. Judge: CANTRELL First Paragraph: Western Express, Inc. sued Benchmark Electronics Huntsville, Inc. for detention charges after Western's trailers were unreasonably detained at Benchmark's plant in Pulaski. The Chancery Court of Davidson County granted summary judgment to Benchmark, and Western asserts on appeal that the court erred in finding that the undisputed facts show that Western cannot prevail on its claims. We reverse the judgment of the trial court. http://www.tba.org/tba_files/TCA/westernexpress.wpd
ALLEN DALE CUTSHAW v. STATE OF TENNESSEE Court:TCCA Attorneys: J. Russell Pryor, Greeneville, Tennessee, for the appellant, Allen Dale Cutshaw. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; and Cecil Mills, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WADE First Paragraph: The petitioner, Allen Dale Cutshaw, appeals the trial court's denial of his petition for post-conviction relief. In this appeal, the petitioner asserts that he was denied the effective assistance of counsel. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/cutshaw.wpd
STATE OF TENNESSEE v. MAURICE LAMONT DAVIDSON Court:TCCA Attorneys: Richard McGee, Nashville, Tennessee, for the appellant, Maurice Lamont Davidson. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Maurice Lamont Davidson, was convicted by a jury of one count of second degree murder, one count of voluntary manslaughter, and one count of attempted voluntary manslaughter. The trial court subsequently sentenced the Defendant to twenty-two years for the second degree murder, three years for the voluntary manslaughter, and two years for the attempted voluntary manslaughter, with the first two sentences to be served concurrently and the third sentence to be served consecutively, all to be served in the Department of Correction. In this direct appeal, the Defendant contends that the trial court erred in excluding certain expert testimony; that the evidence is not sufficient to support his convictions; and that the sentences are excessive. We affirm the Defendant's convictions, reduce his sentence for the second degree murder to twenty years, and order that his sentence for attempted voluntary manslaughter be served concurrently. http://www.tba.org/tba_files/TCCA/davidsonml.wpd
STATE OF TENNESSEE v. LESTER E. ELLIOTT Court:TCCA Attorneys: David McGovern, Jasper, Tennessee, for the appellant, Lester E. Elliott. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; J. Michael Taylor, District Attorney General; and William Copeland, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Lester E. Elliott, was convicted by a jury of driving in violation of the Motor Vehicle Habitual Offenders Act. He was sentenced to two years in the Department of Correction for this offense. The Defendant now appeals as of right, arguing that the evidence is not sufficient to sustain his conviction. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/elliottle.wpd
STATE OF TENNESSEE v. MARK A. GRIFFIN Court:TCCA Attorneys: Mart S. Cizek, Clinton, Tennessee, for the appellant, Mark A. Griffin. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Mark A. Griffin, was convicted by a jury in the Anderson County Criminal Court of first degree murder committed in the perpetration of an aggravated robbery and was sentenced to life imprisonment without the possibility of parole. On appeal, the appellant raises several evidentiary questions, contests the jury charge, and challenges the sufficiency of the evidence supporting his conviction. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/griffinma2.wpd
STATE OF TENNESSEE v. ROBERT WAYNE HERRON Court:TCCA Attorneys: David Neal Brady, District Public Defender; H. Marshall Judd, Asst. Public Defender, for the Appellant, Robert Wayne Herron. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W. Turner, Assistant Attorney General; William Edward Gibson, District Attorney General; and John Moore, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Robert Wayne Herron, was convicted by a Putnam County jury of felony possession of cocaine with intent to deliver, simple possession of cocaine, and possession of drug paraphernalia. In this appeal, Herron contends that (1) the trial court erred in admitting evidence of his prior drug activity in violation of Tennessee Rule of Evidence 404(b) and (2) the evidence is legally insufficient to support these convictions. After review, we find these contentions are without merit. Although not raised as error, we find Herron's multiple convictions for simple possession and felony possession, stemming from a single cocaine possession, violate principles of double jeopardy. The misdemeanor cocaine conviction is, therefore, merged with the felony cocaine conviction. We remand for entry of judgments of conviction consistent with this holding. Herron's convictions for felony possession with intent to deliver and misdemeanor possession of drug paraphernalia are affirmed. http://www.tba.org/tba_files/TCCA/herron.wpd
STATE OF TENNESSEE v. ART MAYSE Court:TCCA Attorneys: James D. Purple, Chattanooga, Tennessee, for the appellant, Art Mayse. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; William Paul Phillips, District Attorney General; and John G. Galloway, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Art Mayse, was convicted by a jury of eleven counts of rape of a child, each a class A felony, and seven counts of aggravated sexual battery, each a class B felony. After a sentencing hearing, he was sentenced as a Range I offender to an effective sentence of fifty years to be served in the Department of Correction. In this appeal as of right, the Defendant challenges: (1) the adequacy of the bill of particulars, (2) the constitutionality of the delay between the commission of the offenses and the disclosure to authorities, (3) the trial court's denial of his request for a change of venue and motion to excuse a juror for cause, and (4) the sufficiency of the evidence. Because the evidence is insufficient to support two of the aggravated sexual battery convictions, those convictions are reversed and dismissed. The remaining convictions are reversed and the case is remanded for a retrial on those charges because the trial court failed to require the State to elect the offenses on which it relied to support the convictions. http://www.tba.org/tba_files/TCCA/maysea.wpd

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