March 24, 1999
Volume 5 -- Number 039

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):
 
00 New Opinion(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
07 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

		
		
VELMA BRADLEY
VS.
DEROYAL INDUSTRIES, INC. AND LIBERTY MUTUAL INSURANCE COMPANY   

Court:TSC - Workers Comp Panel

Attorneys:  

For the Appellants:             For the Appellee:

James T. Shea IV                David H. Dunaway
P.O. Box 1708                   100 South Fifth Street
Knoxville, Tenn.  37901         P.O. Box 231
                                LaFollette, Tenn.  37766                        

Judge:THAYER

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.

Defendants, DeRoyal Industries, Inc. and Liberty Mutual Insurance
Company, have appealed from the trial court's ruling that plaintiff,
Velma Bradley, was totally and permanently disabled as a result of her
work activities with her employer, DeRoyal Industries.  At the
commencement of the trial, a nonsuit was taken as to the Second Injury
Fund.

http://www.tba.org/tba_files/TSC_WCP/Bradleyv_wc.WP6



MITCHELL BROGDON VS. CHATTANOOGA GENERAL SERVICES, and LUMBERMEN'S MUTUAL CASUALTY COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Phillip A. Fleissner David C. Nagle 800 Vine Street Chattanooga, TN 37403 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. 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 findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. S 50-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). http://www.tba.org/tba_files/TSC_WCP/Brogdonm_wc.WP6
DENNIS E. PARSONS VS. W.T. WARREN DISTRIBUTING and THE ST. PAUL Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellees: James L. Milligan, Jr. Ricky L. Apperson Law Offices of James L. Milligan, Jr. Spicer, Flynn & Rudstrom, PLLC and Associates 800 S. Gay St., Suite 1209 607 Market Street, 10th Fl. Knoxville, TN 37929 Knoxville, TN 37902 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. 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 findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. S 50-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). http://www.tba.org/tba_files/TSC_WCP/Parsonsd_wc.WP6
RODNEY E. AYERS VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: Richard F. Vaughn John Knox Walkup 100 North Main, Suite 1928 Attorney General & Reporter Memphis, TN 38103 425 Fifth Avenue North Nashville, TN 37243 J. Ross Dyer Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103 James J. Challen, III Assistant District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103 Judge:BEASLEY First Paragraph: Under indictment for first-degree murder, the petitioner, Rodney E. Ayers, pled guilty to second-degree murder and received a sentence of forty (40) years in the Tennessee Department of Correction as a Range II multiple offender. On June 21, 1994, the petitioner filed a pro se petition for post-conviction relief. With the assistance of appointed counsel, an amended petition was filed. After an evidentiary hearing, the trial court filed a comprehensive findings of fact and conclusions of law denying relief and dismissing the petition. http://www.tba.org/tba_files/TCCA/ayersre_opn.WP6
STATE OF TENNESSEE VS. DONALD L. CULBREATH and GENNA MCCALLIE Court:TCCA Attorneys: FOR THE APPELLEES: THOMAS E. HANSOM 659 Freeman Memphis, TN 38122-3728 FRIERSON M. GRAVES, JR. 165 Madison, Ste. 2000 Memphis, TN 38103-2723 FOR THE APPELLANT: JOHN KNOX WALKUP Attorney General and Reporter ELIZABETH T. RYAN Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General AMY P. WEIRICH JENNIFER S. NICHOLS Asst. District Attorneys General Criminal Justice Complex, Ste.301 201 Poplar Avenue Memphis, TN 38103-1947 Judge:RILEY First Paragraph: The state appeals as of right an order of the Criminal Court of Shelby County disqualifying the District Attorney General and his staff and dismissing the prostitution and obscenity-related indictments against the defendants. The issues presented for our review are: (1) whether the trial court erred in disqualifying the entire Shelby County District Attorney General's Office, as well as a special assistant appointed to aid in the prosecution of sexually oriented businesses; and (2) whether the trial court erred in dismissing the indictments. http://www.tba.org/tba_files/TCCA/culbread_opn.WP6
STATE OF TENNESSEE VS. EDWARD L. DAVIS Court:TCCA Attorneys: For Appellant: For Appellee: Edward B. Johnson John Knox Walkup Attorney Attorney General and Reporter 112 East Court Square Somerville, TN 38068 Marvin E. Clements, Jr. Assistant Attorney General Criminal Justice Division Cordell Hull Building, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493 Elizabeth T. Rice District Attorney General 302 Market Street Somerville, TN 38068 Judge:WADE First Paragraph: The defendant, Edward L. Davis, was convicted of sexual battery, a class E felony. Tenn. Code Ann. S 39-13-505. The trial court imposed a Range I sentence of one year and required the defendant to serve eighteen days in the county jail and the remainder of his sentence on intensive supervision with Corrections Management Corporation, a community based alternative. The defendant was required to perform one hundred hours of community service, abide by the terms of a behavioral contract, and pay court costs. http://www.tba.org/tba_files/TCCA/davisel_opn.WP6
STATE OF TENNESSEE VS. WALTER LEE GAINES, JR. Court:TCCA Attorneys: FOR THE APPELLANT: J. THOMAS CALDWELL 114 Jefferson Street Ripley, TN 38063 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter GEORGIA BLYTHE FELNER Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General JAMES W. FREELAND, JR. Assistant District Attorney General 302 E. Market Street Somerville, TN 38068 Judge:RILEY First Paragraph: A Tipton County jury convicted defendant, Walter Lee Gaines, Jr., of reckless homicide, possession of a prohibited weapon, and filing a false report. The trial court sentenced him as a Range I standard offender to serve 3_ years for reckless homicide, a Class D felony; 1_ years for possession of a prohibited weapon, a Class E felony; and 11 months and 29 days at 75% for filing a false report, a Class A misdemeanor. The court ordered the weapon and false report sentences to run concurrently, but consecutively to the reckless homicide sentence, for an effective sentence of five years. The sole issue in this appeal as of right is the propriety of these sentences. Upon our de novo review, we AFFIRM the length of sentences imposed and the denial of probation; but MODIFY the sentences so as to run them concurrently rather than consecutively. http://www.tba.org/tba_files/TCCA/gaineswl_opn.WP6
STATE OF TENNESSEE VS. ANTHONY HOLT Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CARTHEL L. SMITH, JR. JOHN KNOX WALKUP 85 East Church Street Attorney General & Reporter Lexington, TN 38351 DOUGLAS D. HIMES Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 JAMES G. WOODALL District Attorney General BILL R. MARTIN Assistant District Attorney General Village Square, Suite M 777 West Church Street Lexington, TN 38351 Judge:WOODALL First Paragraph: The Defendant, Anthony Holt, appeals as of right following his sentencing hearing in the Circuit Court of Henderson County. Defendant was indicted on a charge of committing second degree murder on July 10, 1996, but he eventually pled guilty to a reduced charge of voluntary manslaughter. Pursuant to the plea agreement, the trial court was to determine both the length and manner of service of the sentence at the sentencing hearing. The trial court ordered Defendant to serve a sentence of 4.5 years in the Tennessee Department of Correction, denying any form of alternative sentence. The Defendant's sole issue on appeal is the denial of alternative sentencing. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/holta_opn.WP6
JAMES MOORE VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Petitioner For the Respondent Joe H. Byrd, Jr. John Knox Walkup 203 S. Shannon Street Attorney General and Reporter Suite 300 Jackson, TN 38302-2764 Douglas D. Himes Assistant Attorney General 425 Fifth Avenue South Nashville, TN 37243-0493 Jerry Woodall District Attorney General P.O. Box 2825 Jackson, TN 38302-2825 Judge:WEDEMEYER First Paragraph: The petitioner appeals the trial court's dismissal of his petition for post-conviction relief. The petitioner was originally indicted for bank robbery and being an habitual criminal. In 1984, the petitioner was convicted of bank robbery with the use of a firearm and sentenced to forty-five years imprisonment. State v. Moore, 713 S.W.2d 670 (Tenn. Crim. App. 1985), perm. to app. denied, (Tenn. 1986). The jury, however, could not reach a verdict on the habitual criminal charge and a mistrial was declared on that charge. A second trial was had on that charge, but again a mistrial was declared in 1986. Finally, during a third trial in 1987, the petitioner was found to be an habitual criminal and sentenced to life imprisonment. State v. Moore, 751 S.W.2d 464 (Tenn. Crim. App.), perm. to app. denied, (Tenn. 1988). The state relied upon two guilty plea convictions in 1975 for third degree burglary and three guilty plea convictions in 1978 for third degree burglary to enhance the petitioner's sentence. http://www.tba.org/tba_files/TCCA/moore_op.WP6
ISAAC WILLIAMS VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN F. CANALE III JOHN KNOX WALKUP 100 N. Main Bldg, Ste 1933 Attorney General & Reporter Memphis, TN 38103 GEORGIA BLYTHE FELNER Counsel for the State 425 Fifth Avenue North Nashville, TN 37243 WILLIAM L. GIBBONS District Attorney General LEE COFFEE Assistant District Attorney General Criminal Justice Center, Third Floor 201 Poplar Avenue Memphis, TN 38103 Judge:WILLIAMS First Paragraph: Isaac Williams appeals as of right from a judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. On March 31, 1995, following a bench trial, the appellant was convicted of aggravated robbery and sentenced to twenty years' confinement as a Range III offender. This Court affirmed his conviction on direct appeal. See State v. Isaac Williams, No. 02C01-9507-CR-00205 (Tenn. Crim. App. filed Dec. 6, 1996, at Jackson). On March 6, 1997, the appellant filed a pro se petition for post-conviction relief alleging that his trial counsel was ineffective. Counsel was appointed, and the appellant filed an amended petition on April 30, 1997. Following an evidentiary hearing, the trial court denied relief. The sole issue for our review is whether the evidence preponderates against the findings of the trial court. We conclude that it does not and AFFIRM the judgment of the trial court. http://www.tba.org/tba_files/TCCA/willamsi_opn.WP6

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