December 21, 1998
Volume 4 -- Number 182

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 from Tennessee's three appellate courts.

This Issue (IN THIS ORDER):
06 New Opinion(s) from the Tennessee Supreme Court
00 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
05 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





Jimmy W. Bilbo                  Donald W. Strickland
Logan, Thompson, Miller, Bilbo, Steven W. Grant
   Thompson & Fisher, P.C.      Grant, Konvalinka & Harrison, P.C.
Cleveland, TN                   Chattanooga, TN 


Tennessee Defense Lawyers Assoc.    Tennessee Trial Lawyers Assoc.
Brian H. Trammell                   Thomas Stratton Scott, Jr.
Knoxville, TN                       Knoxville, TN           

National Association of Independent
G. Brian Jackson
Amanda Haynes Young
Nashville, TN                         


First Paragraph:

This suit arose from a motor vehicle accident in which plaintiff David
Alcazar was injured.  Alcazar appeals from the Court of Appeal's
affirmance of the trial court's award of summary judgment to defendant
Government Employees Insurance Company ("GEICO").  The sole issue for
our determination is whether an insurance policy is automatically
forfeited when the insured does not comply with the policy's notice
provision, regardless of whether the insurer has been prejudiced by
the delay.  For the reasons stated hereinafter, we reverse the
judgments of the lower courts and remand the case to the trial court.

STATE OF TENNESSEE VS. BOBBY VINCENT BLACKMON WITH ORDER Court:TSC Attorneys: For Appellant: For Appellee: MARK W. HENDERSON JOHN KNOX WALKUP Nashville, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General DOUGLAS D. HIMES Assistant Attorney General Nashville, TN LAWRENCE RAY WHITLEY District Attorney General DEE DAVID GAY KATHI PHILLIPS Assistant District Attorney General Gallatin, TN Judge:BIRCH First Paragraph: We granted permission to appeal pursuant to Tenn. R. App. P. 11 to the appellant, Bobby Vincent Blackmon, in order to determine whether, and if so, under what circumstances, the right to be tried by a judge who is constitutionally qualified can be waived. We address also the appellant's contention that the judgment of forfeiture entered against his vehicle seized incident to his arrest on April 20, 1993, constitutes "punishment," such as would violate the constitutional prohibitions against double jeopardy. ORDER:
FREDA G. MOON, EXECUTOR OF THE ESTATE OF RUTH GARRETT VS. ST. THOMAS HOSPITAL WITH ORDER Court:TSC Attorneys: FOR APPELLANT: FOR APPELLEE: Harlan Dodson III Mary Martin Schaffner Anne C. Martin Nashville Julie K. Sandine Nashville FOR AMICUS CURIAE: Richard L. Duncan Knoxville Judge:HOLDER First Paragraph: We granted this appeal to address whether a hospital's general duty to exercise reasonable and ordinary care to maintain an open airway in an intubated patient is negated merely because the transection of an endotracheal tube is an uncommon occurrence. We hold: (1) that under the circumstances, a factual question exists concerning whether the standard of care required placement of an oral airway or bite block when the patient exhibited agitation and began biting on the endotracheal tube; (2) that the foreseeability of the intubated and restrained patient's actions are relevant when assessing the appropriate standard of care and deviation from that standard of care; and (3) that the affidavits of the plaintiff's experts created genuine issues of material fact concerning the standard of care and breach of that standard. The appellate court's decision affirming the trial court's dismissal is reversed. The case is remanded to the trial court for proceedings consistent with this opinion. ORDER
JORGE ARIEL SANJINES VS. ORTWEIN AND ASSOCIATES, P.C., WILLIAM H. ORTWEIN, and J. CRIS HELTON Court:TSC Attorneys: For Appellee: For Appellants: J. ARIEL SANJINES, M.D. SAMUEL R. ANDERSON Pro se SHANE USARY Chattanooga, TN Judge:BIRCH First Paragraph: Jorge Ariel Sanjines, M.D., the plaintiff, is currently in the custody of the Department of Correction. On February 12, 1996, the plaintiff filed a pro se complaint alleging legal malpractice against Ortwein & Associates, William Ortwein, J. Cris Helton, and John Morgan, the attorneys who had previously represented him in a criminal proceeding. The essential allegation of this civil action was that the attorneys had been ill-prepared and had failed to represent the plaintiff adequately. These "shortcomings," he alleged, forced him to enter guilty pleas to first-degree murder, attempted first-degree murder, and conspiracy to commit first-degree murder. The trial court granted summary judgment to the attorneys because the plaintiff failed to file any response to their motions for summary judgment. On the same day that the plaintiff filed the malpractice case, he also filed a pro se petition under the Post-Conviction Procedure Act. In it, the plaintiff alleged that he did not receive the effective assistance of counsel in the above-described criminal proceeding. ORDER
SHARON WALKER VS. SATURN CORPORATION WITH JUDGMENT Court:TSC Attorneys: For the Plaintiff/Appellant: For the Defendant/Appellee: J. Anthony Arena Thomas H. Peebles, IV Schulman, LeRoy & Bennett, P.C. Dana C. McLendon Nashville, Tennessee Waller, Lansden, Dortch & Davis Columbia, Tennessee Judge:BARKER First Paragraph: We granted the plaintiff's motion for full court review of the Special Workers' Compensation Appeals Panel's findings of fact and conclusions of law to determine whether the Panel erred in deciding: (1) that the evidence preponderates against the trial court's finding that plaintiff suffered a permanent partial disability to the right arm; and (2) that the evidence preponderates against an eighty-five percent permanent partial disability to the plaintiff's left arm. For the reasons contained herein, we conclude that the Panel erred in finding no permanent disability to the right arm and in reducing the disability to her left arm to sixty percent. Accordingly, the decision of the Panel is reversed and the trial court's judgment is affirmed. JUDGMENT
JENNIFER O. WILSON VS. LARRY ARNOLD WILSON WITH DISSENT Court:TSC Attorneys: FOR APPELLANT: FOR APPELLEE: Earl J. Porter, Jr., John Herbison Nashville, Tennessee Nashville, Tennessee John J. Hollins, Sr. David L. Raybin Hollins, Wagster & Yarbrough, P.C. Nashville, Tennessee FOR AMICUS CURIAE: Richardson and Baker Family Law Section of the Clark Lee Shaw Memphis Bar Association Nashville, Tennessee Joy Tanner Bomar Memphis, Tennessee State of Tennessee John Knox Walkup Family Law Section of the Attorney General & Reporter Tennessee Bar Association Larry Rice Michael E. Moore Memphis, Tennessee Solicitor General Kathy Morante Deputy Attorney General Nashville, Tennessee Judge:DROWOTA First Paragraph: We granted this appeal to determine whether a private attorney representing the beneficiary of a court order in a civil case may prosecute a criminal contempt action alleging a violation of the order. After due consideration, we conclude that no constitutional principle nor ethical standard automatically disqualifies the private attorney for the beneficiary of the order from prosecuting a contempt action for a violation of the order. Accordingly, we reverse the judgment of the Court of Appeals which adopted an automatic rule of disqualification and remand this cause to the trial court for further proceedings consistent with this decision. DISSENT
EVA L. MILES VS. MARJORIE M. NELSON Court:TCA Attorneys: WILLIAM A. ZIERER OF MORRISTOWN FOR APPELLANT JAMES D. HUTCHINS OF DANDRIDGE FOR APPELLEE Judge:GODDARD First Paragraph: In this case Plaintiff Eva L. Miles sues Defendant Marjorie M. Nelson to have decreed to her a triangular strip of land which is not encompassed in the deed to her and her husband. It is, however, included in the deed to Mrs. Nelson and her husband. The Plaintiff asserts that because she has adversely possessed the disputed area for a period of almost 39 years, she is entitled to prevail.
CHAUNCEY R. GORDON VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: Joseph W. Henry, Jr. 119 South First Street Pulaski, TN 38478-0458 For the Appellee: John Knox Walkup Attorney General and Reporter and Karen M. Yacuzzo Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 T. Michael Bottoms District Attorney General and Richard H. Dunavant Assistant District Attorney General Giles County Courthouse P.O. Box 304 Pulaski, TN 38478-0304 Judge:TIPTON First Paragraph: The petitioner appeals the denial of his petition for post-conviction relief. On January 2, 1991, the petitioner pled guilty to one count of first degree murder and one count of second degree murder. He received an agreed sentence of life plus twenty-five years, respectively. The petitioner now attacks the validity of that guilty plea, arguing that the plea was not voluntarily, knowingly, and understandingly made. Upon a complete review of the record, we conclude that the evidence does not preponderate against the trial court's findings. Thus, we affirm the dismissal of the petition.
ELISEO HERNANDEZ VS. STATE OF TENNESSEE ORDER Court:TCCA Judge:SMITH First Paragraph: This matter is before the Court upon the state's motion requesting that the judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. The petitioner opposes the motion.
STATE OF TENNESSEE VS. STEVEN OVERSTREET Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: D. MITCHELL BRYANT JOHN KNOX WALKUP P. O. Box 161 Attorney General and Reporter Cleveland, TN 37364-0161 SANDY C. PATRICK Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 JERRY N. ESTES District Attorney General JOSEPH A. REHYANSKY Assistant District Attorney P. O. Box 1351 Cleveland, TN 37311 Judge:SMITH First Paragraph: On February 4, 1997, a Bradley County jury convicted Appellant Steven Overstreet of driving under the influence, second offense. After a sentencing hearing on February 6, 1997, Appellant was sentenced to eleven months and twenty-nine days in jail, with the sentence to be suspended and Appellant put on probation after 45 days in jail. Appellant challenges his conviction, raising the following issue: is there an inherent conflict between Tennessee Code Annotated sections 55-10-401 and 55-10-408.
RONALD DAVID DUKES VS. CHARLIE JONES, WARDEN, and STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: RONALD DAVID DUKES, pro se JOHN KNOX WALKUP MCRCF, Box 2000, Unit 14 Attorney General & Reporter Wartburg, TN 47887 KENNETH W. RUCKER Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 CHARLES E. HAWK District Attorney General FRANK A. HARVEY Assistant District Attorney General P.O. Box 703 Kingston, TN 37763 Judge:WOODALL First Paragraph: The Petitioner, Ronald David Dukes, appeals the trial court's dismissal of his pro se petition for writ of habeas corpus challenging a 1986 escape conviction. We affirm the judgment of the trial court.
STATE OF TENNESSEE VS. GREGORY STEELE Court:TCCA Attorneys: FOR THE APPELLEE: FOR THE APPELLANT: ROBERT S. PETERS JOHN KNOX WALKUP SWAFFORD, PETERS & PRIEST Attorney General & Reporter 100 First Avenue, S.W. Winchester, TN 37398 KAREN M. YACUZZO Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 JAMES MICHAEL TAYLOR District Attorney General WILLIAM B. COPELAND Assistant District Attorney General 324 Dinah Shore Boulevard Winchester, TN 37398 Judge:WOODALL First Paragraph: The State of Tennessee (State) appeals from a judgment of the trial court suppressing evidence found pursuant to a search of Gregory Steele, the Defendant, by a law enforcement officer. The State appeals pursuant to Rule 3(c) of the Tennessee Rules of Appellate Procedure on the basis that the trial court's order granting the motion to suppress had the substantive effect of dismissing the indictments against the Defendant. The two indictments charged the Defendant with DUI in violation of Tennessee Code Annotated section 55-10-401, and possessing methamphetamine, a Schedule II controlled substance, with the intent to sell or deliver in violation of Tennessee Code Annotated section 39-17-417. In this court, the state contends the trial court erroneously suppressed the evidence found by the officer. After a thorough review of the record, the briefs submitted by the parties, and the law governing the issue presented for review, it is the opinion of this court that the judgment of the trial court should be affirmed.

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