TBALink Opinion-Flash

December 7, 1998 -- Volume 4 -- Number 175

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

This Issue (IN THIS ORDER):
09-New Opinion(s) from the Tennessee Supreme Court
00-New Opinion(s) from the Tennessee Supreme Court Workers Comp Panel
00-New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02-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



BAPTIST HOSPITAL; EAST TENNESSEE CHILDREN'S
HOSPITAL; ERLANGER MEDICAL CENTER; FORT SANDERS
REGIONAL MEDICAL CENTER; HOLSTON VALLEY HOSPITAL AND
MEDICAL CENTER; JOHNSON CITY MEDICAL CENTER HOSPITAL;
LE BONHEUR CHILDREN'S MEDICAL CENTER; MAURY REGIONAL
HOSPITAL; METHODIST HOSPITALS OF MEMPHIS; REGIONAL MEDICAL
CENTER OF MEMPHIS; SAINT MARY'S MEDICAL CENTER; AND
VANDERBILT UNIVERSITY MEDICAL CENTER
VS.
TENNESSEE DEPARTMENT OF HEALTH, AND TENNESSEE
DEPARTMENT OF FINANCE AND ADMINISTRATION

Court:TSC

Attorneys:     

FOR CLAIMANT/APPELLANT:     FOR RESPONDENT/APPELLEE:

William B. Hubbard          John Knox Walkup
Nashville                   Attorney General and Reporter

Sanford E. Pitler           Sue A. Sheldon
Elizabeth A. McFall         Assistant Attorney General
Seattle, Washington         Nashville                     

Judge:HOLDER

First Paragraph:

We granted this appeal to determine whether the Tennessee claims
commission has subject matter jurisdiction over the plaintiffs'
challenge to certain Medicaid reimbursements paid to them by the
State.  Upon review, we hold that the Tennessee claims commission
lacks subject matter jurisdiction over this case.  Because the
plaintiffs' challenge is based upon an assertion that a state Medicaid
regulation is invalid under federal law, the Tennessee Department of
Health was the agency with subject matter jurisdiction over this case
pursuant to Tenn. Code Ann. S 4-5-223 of the Uniform Administrative
Procedures Act ("UAPA").

URL:http://www.tba.org/tba_files/TSC/bapthosp_opn.WP6
Opinion-Flash

BAPTIST HOSPITAL; EAST TENNESSEE CHILDREN'S
HOSPITAL; ERLANGER MEDICAL CENTER; FORT SANDERS
REGIONAL MEDICAL CENTER; HOLSTON VALLEY HOSPITAL AND
MEDICAL CENTER; JOHNSON CITY MEDICAL CENTER HOSPITAL;
LE BONHEUR CHILDREN'S MEDICAL CENTER; MAURY REGIONAL
HOSPITAL; METHODIST HOSPITALS OF MEMPHIS; REGIONAL MEDICAL
CENTER OF MEMPHIS; SAINT MARY'S MEDICAL CENTER; AND
VANDERBILT UNIVERSITY MEDICAL CENTER
VS.
TENNESSEE DEPARTMENT OF HEALTH, AND TENNESSEE
DEPARTMENT OF FINANCE AND ADMINISTRATION

J U D G M E N T

Court:TSC
First Paragraph:

This cause came on to be heard upon the record on appeal from the
Court of Appeals, briefs and argument of counsel; and upon
consideration thereof, this Court is of the opinion that the Tennessee
Claims Commission lacks jurisdiction to invalidate or amend a state
Medicaid regulation or contract.

URL:http://www.tba.org/tba_files/TSC/bapthosp_ord.WP6
Opinion-Flash

PATRICIA JONES
VS.
ROSEWOOD MANOR, INC

Court:TSC

Judge:PER CURIAM

First Paragraph:

This case is before the Court upon motion for review pursuant to Tenn.
Code Ann. S 50-6-225(e)(5)(B), 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; ...

URL:http://www.tba.org/tba_files/TSC/jonesp_jo.WP6
Opinion-Flash

FAY THOMAS NUTT
VS.
CHAMPION INTERNATIONAL CORPORATION

Court:TSC

Attorneys: 

FOR APPELLANT:          FOR APPELLEE:

P. ALLEN PHILLIPS       WM. LANDIS TURNER
JACKSON                 HOHENWALD
                         

Judge:HOLDER

First Paragraph:

We granted this appeal to determine whether an employer is entitled to
an offset of long-term disability payments against a workers'
compensation award for permanent total disability.  A 1996 amendment
to Tenn. Code Ann. S 50-6-114 permits offsets against workers'
compensation benefits for payments made to an employee under an
employer-funded disability plan.  The plaintiff's injury pre-dated the
effective date of the statute.  We hold that the amendment is not
retroactive and the employer is not entitled to an offset in this
case.

URL:http://www.tba.org/tba_files/TSC/nuttfayt_opn.WP6
Opinion-Flash

FAY THOMAS NUTT
VS.
CHAMPION INTERNATIONAL CORPORATION

J U D G M E N T

Court:TSC

First Paragraph:

This cause came on to be heard upon the record on appeal from the
Special Worker's Compensation Appeals Panel, and the briefs and
argument of counsel; and upon consideration thereof, this Court is of
the opinion that the 1996 amendment to Tenn. Code Ann. S 50-6-114 of
the Workers' Compensation Act is not retroactive and the employer is
not entitled to an offset against the worker's compensation award in
this case.

URL:http://www.tba.org/tba_files/TSC/nuttfayt_ord.WP6
Opinion-Flash

BILLY R. PHILLIPS
VS.
TENNESSEE TECHNOLOGICAL UNIVERSITY, STATE OF TENNESSEE

Court:TSC

Attorneys:   

FOR APPELLANT:                      FOR APPELLEE:

JOHN KNOX WALKUP                    RONALD THURMAN
Attorney General and Reporter       Cookeville

MARY BYRD FERRARA
Assistant Attorney General                       

Judge:HOLDER

First Paragraph:

We granted this appeal to address whether the State may be liable for
discretionary costs pursuant to Tenn. R. Civ. P. 54.04(2) in a
workers' compensation case.  We hold that the State may only be taxed
for costs expressly permitted by either the Tennessee claims
commission statute or the Workers' Compensation Act.

URL:http://www.tba.org/tba_files/TSC/phillipb_opn.WP6
Opinion-Flash

BILLY R. PHILLIPS
VS.
TENNESSEE TECHNOLOGICAL UNIVERSITY, STATE OF TENNESSEE

J U D G M E N T

Court:TSC

First Paragraph:

This cause came on to be heard upon the record on appeal, briefs and
argument of counsel; and upon consideration thereof, this Court is of
the opinion that the State may only be taxed for costs expressly
permitted by either the Tennessee claims commission statute or the
Workers' Compensation Act.

URL:http://www.tba.org/tba_files/TSC/phillipb_ord.WP6
Opinion-Flash

EDMUND GEORGE ZAGORSKI
VS.
STATE OF TENNESSEE

Court:TSC

Attorneys: 

For the Appellant:          For the Appellee:

Samuel L. Felker &          John Knox Walkup
Joseph F. Welborn           Attorney General and Reporter
Nashville, Tennessee                            
                            Michael E. Moore
                            Solicitor General

                            Amy L. Tarkington       
                            Assistant Attorney General
                            Nashville, Tennessee                             

Judge:BARKER

First Paragraph:

We granted this post-conviction appeal to determine whether there is
ineffective assistance of counsel where, at the express instruction of
a competent and fully informed defendant, defense counsel does not
investigate or present mitigating evidence at the sentencing phase of
a capital trial.  For the reasons provided herein, we hold that there
is not.

URL:http://www.tba.org/tba_files/TSC/zagorski_opn.WP6
Opinion-Flash

EDMUND GEORGE ZAGORSKI
VS.
STATE OF TENNESSEE

JUDGMENT

Court:TSC

First Paragraph:

This case was heard on the record on appeal from the Court of Criminal
Appeals, application for permission to appeal having heretofore been
granted, briefs and argument of counsel; and upon consideration
thereof, this Court is of the opinion that the appellant was afforded
both effective and competent assistance in the guilt and sentencing
phases of trial.

URL:http://www.tba.org/tba_files/TSC/zagorski_jdg.WP6
Opinion-Flash

GEHL CORPORATION
VS.
RUTH E. JOHNSON, Commissioner of Revenue for the
State of Tennessee

Court:TCA

Attorneys: 

WILLIAM H.D. FONES, JR.
JANIS WILD KESSER
Baker, Donelson, Bearman & Caldwell
2000 First Tennessee  Building
Memphis, Tennessee  38103
    ATTORNEYS FOR PLAINTIFF/APPELLANT

JOHN KNOX WALKUP
Attorney General & Reporter

STACY E. GIBSON
425 Fifth Avenue North
Cordell Hull Building, Second Floor
Nashville, Tennessee  37243-0489
    ATTORNEYSFOR DEFENDANT/APPELLEE                         

Judge:CAIN

First Paragraph:

Gehl Corporation filed suit in the Chancery Court of Davidson County
to contest an assessment by the Commissioner of Revenue of the
"Amusement Tax" imposed by Tennessee Code Annotated section
67-6-212(a)(2).

URL:http://www.tba.org/tba_files/TCA/gehlcorp.WP6
Opinion-Flash

STEPHEN P. KOPELS
VS.
KATHERINE ANNETTE BRYANT

Court:TCA

Attorneys: 

David M. Zolensky, Nashville, for Appellant.
Dot Dobbins, Nashville, for Appellee.
                         
Judge:INMAN

First Paragraph:

This is a domestic relations case.  The appellant complains of the
award of the residence to the appellee, and the award of the
attorney's fees.  Our review of the findings of fact made by the trial
Court is de novo upon the record of the trial Court, accompanied by a
presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise. Tenn. R. App. P., Rule
13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996).
Where there is no conflict in the evidence as to any material fact,
the question on appeal is one of law, and the scope of review is de
novo with no presumption of correctness accompanying a chancellor's
conclusions of law. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87
(Tenn. 1993).

URL:http://www.tba.org/tba_files/TCA/kopels_ca1.WP6
Opinion-Flash

ROBERT TERRY CROWSON
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

Hershell D. Koger           John Knox Walkup
Attorney at Law             Attorney General & Reporter
131 N. 1st St.                  
P.O. Box 1148               Lisa A. Naylor
Pulaski, TN 38478           Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN 37243
                
                            William Michael McCown
                            District Attorney General

                            Robert Crigler
                            Assistant District Attorney General
                            One Public Square, Suite 100
                            Shelbyville, TN 37160                         

Judge:SUMMERS

First Paragraph:

The petitioner was convicted by a jury of second degree murder and
sentenced to eighteen and one-half years incarceration.  His
conviction and sentence were upheld on direct appeal.  See State v.
Robert Terry Crowson, No. 01C01-9503- CC-00086 (Tenn. Crim. App. filed
Feb. 13, 1996, at Nashville).  In July 1997, the petitioner filed for
post-conviction relief alleging ineffective assistance of counsel at
both his trial and on appeal.  After a hearing the court below
dismissed the petition, from which ruling the petitioner now appeals. 
Upon our review of the record, we affirm the judgment of the
post-conviction court.

URL:http://www.tba.org/tba_files/TCCA/crowsonr_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
KIMBERLY HAYES

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

Lionel R. Barrett, Jr.          John Knox Walkup
Washington Square Two, Ste 418  Attorney General & Reporter 
222 Second Avenue, North
Nashville, TN 37201             Lisa A. Naylor
                                Assistant Attorney General
                                425 Fifth Avenue North
                                Nashville, TN 37243

                                Victor S. (Torry) Johnson, III
                                District Attorney General

                                Dan Hamm
                                Assistant District Attorney General
                                Washington Square, Suite 500
                                222 Second Avenue North
                                Nashville, TN 37201-1649                         

Judge:SUMMERS

First Paragraph:

The appellant, Kimberly Hayes, pled guilty to possession of
thirty-five and one-half pounds of marijuana with intent to sell or
deliver, a Class D felony.  See T.C.A. S 39-17-417(g)(2).  The trial
court denied the appellant's request for judicial diversion, see
T.C.A. S 40-35-313, and imposed a four-year suspended sentenced with
four years' standard probation.  The sole issue on appeal is whether
the trial court abused its discretion in denying judicial diversion. 
Finding no error, we affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCCA/hayeskim_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
JOHN JAMES

Court:TCCA

Attorneys:  

FOR THE APPELLANT:
    
    THOMAS F. BLOOM
    500 Church Street, 5th Floor
    Nashville, TN  37219-2349

FOR THE APPELLEE:
    
    JOHN KNOX WALKUP
    Attorney General and Reporter
    
    KIM R. HELPER
    Assistant Attorney General
    Cordell Hull Building, 2nd Floor
    425 Fifth Avenue North
    Nashville, TN  37243-0493
    
    VICTOR S. JOHNSON III
    District Attorney General
    
    WILLIAM R. REED
    Assistant District Attorney General
    222 - 2nd Avenue North
    Washington Square, Suite 500
    Nashville, TN  37201-1649                        

Judge:RILEY

First Paragraph:

Defendant was convicted by a Davidson County jury of thirteen counts
of sexual abuse of his nine-year-old stepdaughter.  The trial court
ordered defendant to serve an aggregate sentence of seventy years.  On
direct appeal, this Court reversed three of the convictions and
remanded the case to the trial court for re-sentencing.  See State v.
John James, C.C.A. No. 01C01-9601-CR-00016, Davidson County (Tenn.
Crim. App. filed March 27, 1997, at Nashville).  Upon remand the trial
court ordered defendant to serve an aggregate sentence of fifty years.
 Defendant appeals this sentence contending that all counts should be
run concurrently for a total sentence of twenty years.  We AFFIRM the
sentencing decision of the trial court.

URL:http://www.tba.org/tba_files/TCCA/jamesj_opn.WP6
Opinion-Flash

JIMMY JONES, JR.
VS.
STATE OF TENNESSEE

Court:TCCA

Attorneys: 

FOR THE APPELLANT:              FOR THE APPELLEE:

Jimmy Jones, Jr., pro se        John Knox Walkup
D.S.N.F. Unit 15-B              Attorney General & Reporter
7575 Cockrill Bend Ind. Road    425 Fifth Avenue North
Nashville, TN  37209-1057       Nashville, TN  37243-0493

                                Kim R. Helper
                                Assistant Attorney General
                                425 Fifth Avenue North
                                Nashville, TN  37243-0493
        
                                Lawrence Ray Whitley
                                District Attorney General
                                113 West Main Street
                                Gallatin, TN  37066-2803

                                Dee D. Gay
                                Assistant District Attorney General
                                113 West Main Street
                                Gallatin, TN  37066-2803                         

Judge:LAFFERTY

First Paragraph:

The appellant, Jimmy Jones, Jr., appeals the dismissal of his pro se
motion to reopen post-conviction petition or in the alternative a
petition for habeas corpus relief by the Sumner County Criminal Court.
 In December, 1987, the appellant was convicted by a Sumner County
jury on two counts of armed robbery and one count of burglary. The
appellant received concurrent Range II sentences of forty-five years
for the armed robbery convictions and fourteen years for the burglary
conviction to run consecutively.  On direct appeal, the appellant
alleged trial errors as to (1) the sufficiency of the evidence to
sustain the verdicts, (2) whether the trial court erred in limiting
production of police reports, and (3) whether his effective sentence
of fifty-nine years was excessive.  In January, 1989, this court
affirmed the judgment of the trial court in State v. Jimmy Jones, Jr.,
Sumner County No. 88-58-III (Tenn. Crim. App., Nashville, January 11,
1989) per. app. denied (Tenn. 1989).

URL:http://www.tba.org/tba_files/TCCA/jonesjjr_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
BILLY GENE ODEN, JR.

Court:TCCA

Attorneys:  


FOR THE APPELLANT:              FOR THE APPELLEE:

SHARA ANN FLACY                 JOHN KNOX WALKUP
District Public Defender        Attorney General & Reporter

WILLIAM C. BRIGHT (at hearing)  LISA A. NAYLOR
JOSEPH L. PENROD (on appeal)    Asst. Attorney General
Asst. District Public Defenders 425 Fifth Ave. N., 2d Floor
128 N. Second St.               Nashville, TN  37243-0493
P.O. Box 1208
Pulaski, TN  38478              MIKE BOTTOMS
                                District Attorney General

                                LARRY NICKELL
                                Asst. District Attorney General
                                P.O. Box 1619
                                Columbia, TN  38401-1619
                        

Judge:WITT

First Paragraph:

The defendant, Billy Gene Oden, Jr., appeals from the trial court's
order revoking his probation and ordering him to serve his sentence in
the Department of Correction.  In this appeal, he claims the trial
court was without jurisdiction to revoke his probation because his
sentence had expired and because the court which revoked his probation
was not the sentencing court.  After a review of the record and the
parties' briefs, we affirm the trial court's revocation of probation.

URL:http://www.tba.org/tba_files/TCCA/odenbg_opn.WP6
Opinion-Flash

STATE OF TENNESSEE
VS.
DARRELL WENTZEL

Court:TCCA

Attorneys: 

FOR THE APPELLANT:          FOR THE APPELLEE:

EUGENE J. HONEA             JOHN KNOX WALKUP
Assistant Public Defender   Attorney General and Reporter
407-C Main Street, POB 68   
Franklin, TN  37065-0068    ELIZABETH B. MARNEY
                            Assistant Attorney General
                            425 Fifth Avenue North
                            Nashville, TN  37243-0493

                            JOSEPH BAUGH
                            District Attorney General
                            P. O. Box 937
                            Franklin, TN  37065-0937                         

Judge:SMITH

First Paragraph:

On December 6, 1996, a Williamson County jury convicted Appellant,
Darrell Wentzel, of two counts of aggravated robbery, one count of
aggravated burglary, and one count of aggravated kidnapping.  After a
sentencing hearing on January 31, 1997, Appellant was sentenced to
twelve years for each count of aggravated robbery, twelve years for
aggravated kidnapping, and six years for aggravated burglary, with all
sentences to be served concurrently.  On February 18, 1997, Appellant
filed a motion for judgment of acquittal or, in the alternative, a
motion for a new trial, claiming that the evidence was insufficient
for a conviction, that the aggravating kidnapping conviction should be
dismissed because it was incidental to the robbery, that several of
the trial court's evidentiary rulings were erroneous, and that the
trial court had misapplied enhancement factors to arrive at maximum
sentences on all four convictions.  The trial court denied the motion.

URL:http://www.tba.org/tba_files/TCCA/wentzdar_opn.WP6


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