Opinion FlashMarch 5, 2004
Volume 10 Number 044
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):
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Howard H. Vogel
JUDITH A. JOHNSON, SURVIVING WIDOW OF DAVID C. JOHNSON, ET AL. v. ROBERT B. RICHARDSON, d/b/a RICHARDSON LANDSCAPING & TRUCKING Court:TSC - Workers Comp Panel Attorneys: Debra A. Wall, Clarksville, Tennessee, attorney for appellant, Robert B. Richardson. Timothy K. Barnes, Clarksville, Tennessee, attorney for appellee, Judith A. Johnson, Kimberly Ann Mahoney and Sean Patrick Mahoney. 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. The defendant/appellant has appealed the action of the trial court, which overruled his motion to set aside a default judgment under the provisions of Tenn. R. Civ. P., Rule 60. The standard of review is whether the trial court abused its discretion in denying the motion to set aside the judgment. http://www.tba.org/tba_files/TSC_WCP/johnsonjudith.wpd
CHARTER OAK FIRE INS. CO. v. LEXINGTON INS. CO. Court:TCA Attorneys: Bridgett A. Wohlpart, Brentwood, Tennessee, for the appellant, Charter Oak Fire Insurance Company. Michael Patrick McGovern, Knoxville, Tennessee, for the appellee, Lexington Insurance Company. Judge: ASH First Paragraph: On November 16, 1997, a fire destroyed a Chili's Restaurant ("Chili's") in Nashville, Tennessee. At the time of the fire, the premises were owned and operated by RMR Investments and Gower Center, Ltd. ("RMR/Gower") and leased to Chili's. Under a 20-year lease agreement, Chili's agreed to insure the improvements against loss or damage by fire and other casualties and to insure against property damage and public liability arising out of occurrences on the premises. RMR/Gower was to be named as a loss payee or additional insured under the insurance policies obtained by Chili's. According to the lease, in the event the premises and/or the improvements were destroyed by fire or other casualty, Chili's had the option to terminate the lease, and all insurance proceeds were to be paid to RMR/Gower, except for the portion payable to Chili's for loss of personal property. Pursuant to the lease agreement, Chili's obtained insurance coverage through Lexington Insurance Company ("Lexington"). The certificate of insurance dated December 5, 1997 listed RMR/Gower as certificate holder and named RMR/Gower as additional insured. After the fire, Chili's elected to terminate the lease agreement due to the condition of the premises. Lexington paid the proceeds for the loss of the building to RMR/Gower, less amounts paid to Chili's for loss of personal property. RMR/Gower submitted an additional claim for damages it incurred for the loss of rental income and other charges it would have otherwise collected from Chili's. This claim was denied by Lexington. RMR/Gower then submitted a claim to its insurer Charter Oak Fire Insurance Company ("Charter Oak") for the loss of rental income, which Charter Oak paid. After Lexington refused to reimburse Charter Oak for the amounts it paid RMR/Gower for the loss of rental income, Charter Oak filed suit against Lexington for breach of contract under the theory of third party beneficiary. Parties filed cross motions for summary judgment. On June 26, 2002, the trial court granted Lexington's summary judgment motion and denied Charter Oak's motion. Notice of this appeal soon followed. For the reasons set forth below, the order of the trial court is reversed in part and affirmed in part. http://www.tba.org/tba_files/TCA/charteroak.wpd
ALBERT THOMPSON v. PATRICIA CHAFETZ Court:TCA Attorneys: Warner Hodges, III of Germantown For Appellant, Albert Thompson Eugene J. Podesta, Jr. of Memphis For Appellee, Patricia Chafetz Judge: CRAWFORD First Paragraph: This is an appeal from an Order denying Appellant's Tenn. R. Civ. P. 60 Motion, which sought relief from the grant of Appellee's Motion for Summary Judgment. Appellant's attorney failed to set the Motion for hearing until some nineteen (19) months after the entry of the Order granting summary judgment. The trial court found that the attorney's failure to prosecute resulted in prejudice to Appellee and denied the Rule 60 Motion. We affirm http://www.tba.org/tba_files/TCA/thompna.wpd
CATHERINE CLAIRE WILLCUTTS v. JOHN FRANCIS WILLCUTTS Court:TCA Attorneys: Clark Lee Shaw, Nashville, For Appellant, John Francis Willcutts Debera Bell-Beam, Linden, For Appellee, Catherine Claire Willcutts Judge: CRAWFORD First Paragraph: This is an appeal of a final decree of divorce primarily as it concerns custody of the parties' children. The trial court awarded custody to mother and provided for a supervised visitation to father. Father appeals and, in addition to the custody issue, also presents issues pertaining to the trial court's out-of-court interview with the children and the mental examination of the parties. We affirm. http://www.tba.org/tba_files/TCA/willcutts.wpd
STATE OF TENNESSEE v. TROY D. BILLINGSLEY Court:TCCA Attorneys: Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, Troy D. Billingsley. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helena Walton Yarbrough, Assistant Attorney General; W. Michael McCown, District Attorney General; and Robert Crigler, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Troy D. Billingsley, pled guilty to Driving After Being Declared an Habitual Motor Vehicle Offender, Felony Driving Under the Influence of an Intoxicant ("DUI") and Failure to Appear in the Circuit Court for Moore County. After a sentencing hearing, the trial court imposed an aggregate sentence of fifteen years in prison. On appeal, the Defendant contends that his sentence was excessive and contrary to law. Finding no reversible error, we affirm the trial court's judgments. http://www.tba.org/tba_files/TCCA/billingsleytb.wpd
STATE OF TENNESSEE v. BOBBY BLAIR CORRECTED OPINION Court:TCCA Attorneys: William B. "Jake" Lockert, III, District Public Defender, for the appellant, Bobby Blair. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and Lisa Carol Donegan, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Humphreys County Circuit Court jury convicted the defendant, Bobby Blair, of manufacturing methamphetamine, a Class B felony, and the trial court sentenced him as a Range I, standard offender to twelve years in the Department of Correction. The defendant appeals, claiming that (1) the evidence is insufficient to support his conviction; (2) the trial court erred by refusing to grant a continuance when the state announced a few days before trial that it was going to call an expert witness to testify; (3) the trial court erred by denying the defendant's motion to suppress and exclude evidence because the defense was not able to examine and test the equipment and chemicals found at the crime scene; (4) the trial court erred by allowing the state's expert to testify that the defendant was not manufacturing methamphetamine for personal use; (5) the trial court erred by failing to instruct the jury on the lesser included offense of simple possession of methamphetamine; and (6) the trial court erred by refusing to instruct the jury on "immediate precursor." We conclude that no error occurred, and we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/blairb_opn.wpd CORRECTION MEMO http://www.tba.org/tba_files/TCCA/blairb_memo.wpd
STATE OF TENNESSEE v. JAMES LEE FOREMAN, II Court:TCCA Attorneys: Roger Eric Nell, District Public Defender; and Russel A. Church, Assistant Public Defender, for the appellant, James Lee Foreman, II. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: A Montgomery County Circuit Court jury convicted the defendant, James Lee Foreman, II, of two counts of rape, a Class B felony. The trial court merged the convictions and sentenced the defendant as a violent offender to ten years in confinement. The defendant appeals, claiming that his sentence is excessive. Having determined that we lack jurisdiction in the case, the defendant's appeal is dismissed. http://www.tba.org/tba_files/TCCA/foremanjameslee.wpd
DEXTER P. JONES v. STATE OF TENNESSEE Court:TCCA Attorneys: Jack D. Lowery, Lebanon, Tennessee, for the appellant, Dexter P. Jones. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Robert N. Hibbett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Dexter P. Jones, appeals from the Wilson County Criminal Court's denial of post-conviction relief from his four convictions for assault, a Class A misdemeanor, and resulting consecutive eleven-month, twenty-nine-day sentences. He contends that his guilty pleas were not knowingly, voluntarily, and intelligently made because the trial court did not advise him that he was waiving a double jeopardy claim. We affirm the trial court's denial of the petition. http://www.tba.org/tba_files/TCCA/jonesdexterp.wpd
TONY G. SMITH v. STATE OF TENNESSEE Court:TCCA Attorneys: Tony G. Smith, Nashville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Stephen Douglas Thurman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Tony G. Smith, appeals as of right from the order of the Davidson County Criminal Court holding that his petition for post-conviction relief was barred by the statute of limitations and dismissing the petition without appointing counsel or holding an evidentiary hearing. The petitioner is seeking relief from his convictions for attempted first degree murder and stalking and his effective twenty-nine-year sentence. The petitioner contends that the trial court erred in its finding that the petitioner did not allege any circumstances that would qualify as an exception to the one-year statute of limitations for filing post-conviction relief. We affirm the trial court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/smithtonyg.wpd
CARLOS WILLIAMS v. STATE OF TENNESSEE Court:TCCA Attorneys: Carlos Williams, Pro Se, Tiptonville, Tennessee. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Braden H. Boucek, Assistant Attorney General; William L. Gibbons, District Attorney General; and Emily B. Campbell, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Carlos Williams, appeals the summary dismissal of his pro se petition for post- conviction relief. On appeal, Williams acknowledges that the instant petition was not timely filed; however, he alleges that a prior petition was timely delivered to the appropriate prison official for filing but apparently never received by the Shelby County Criminal Court Clerk. For this reason, we find it necessary to vacate the post-conviction court's ruling and remand for a determination of whether Williams' prior petition was timely filed. http://www.tba.org/tba_files/TCCA/willimsc.wpd
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