June 14, 1999 Volume 5 -- Number 080 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 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 06 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   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion. *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WordPerfect 6.0 version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original WordPerfect 6.0 document. Lucian T. Pera Editor-in-Chief, TBALink BRENDA D. ENGLAND VS. HICKORY SPECIALTIES, INC. Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: C. Douglas Dooley James P. Smith Charles W. Poss Bean & Smith Leitner, Williams, Dooley & Napolitan Crossville, Tennessee Chattanooga, Tennessee Judge:LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Hickory Specialties, insists (1) the trial judge erred in relying on the testimony of Dr. Gene Turner with respect to the extent of the employee's medical impairment, (2) the trial judge erred in finding a causal connection between the employee's injury and her employment by the employer, (3) the award of permanent partial disability benefits is excessive and (4) the trial judge erred in finding that the employee did not have a meaningful return to work. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, England, initiated this action to recover medical disability benefits allegedly due her because of a back injury. The employer denied any liability. After a trial on the merits, the trial court awarded, inter alia, permanent partial disability benefits based on thirty-five percent to the body as a whole. The extent of an injured worker's disability is a question of fact. Collins v. Howmet Corp., 970 S.W.2d 941 (Tenn. 1998). So is causation. We have therefore reviewed the case de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. S 50-6-225(e)(2). http://www.tba.org/tba_files/TSC_WCP/Englvhic_doc.WP6 CORA McGINN VS. DENAMERICA CORPORATION d/b/a DENNY'S RESTAURANT and CNA INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: For Appellants: For Appellee: Linda J. Hamilton Mowles Vic Pryor Lewis, King, Krieg, Waldrop & Catron Jacksboro, Tennessee Knoxville, Tennessee Kathy Parrott LaFollette, Tennessee Judge:LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer and its insurer insist (1) the employee did not suffer an injury compensable under the workers' compensation law of Tennessee, (2) the award of permanent partial disability benefits is excessive and (3) the trial judge erred in rejecting the testimony of Dr. Robert E. Ivy. As discussed below, the panel has concluded the judgment should be affirmed. After a trial of the issues raised by the parties, the chancellor awarded permanent partial disability benefits based on eighty percent to the body as a whole. Because the first two issues involve factual questions, we have reviewed those issues de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise, as required by Tenn. Code Ann. S 50-6-225(e)(2). http://www.tba.org/tba_files/TSC_WCP/Mcgivden_doc.WP6 HOMER R. (TOBY) BARNES, et al. VS. EMPLOYERS MUTUAL CASUALTY COMPANY Court:TCA Attorneys: JAMES H. RIPLEY, SHARP & RIPLEY, Sevierville, for Plaintiff-Appellee. FRANK Q. VETTORI, O'NEIL, PARKER & WILLIAMSON, Knoxville, for Defendant-Appellant. Judge:FRANKS First Paragraph: In this Declaratory Judgment action, the Trial Judge entered summary judgment against Employers Mutual Casualty Company, in favor of the plaintiffs, declaring "[t]he defendant owes the plaintiffs a duty of defense of the action pending in the Circuit Court for Sevier County, Tennessee, captioned Devin Phillips v. Toby Barnes . . . and further owes indemnity coverage respecting such claim, pursuant to the policies of insurance in question . . .". The judgment was entered pursuant to T.R.C.P. Rule 54.02, and the insurance company has appealed that decision to this Court. http://www.tba.org/tba_files/TCA/barnesh_opn.WP6 PEGGY ANN BOUCHILLON BRASFIELD VS. JIMMY CARROLL BRASFIELD Court:TCA Attorneys: JOHN D. LOCKRIDGE and SCARLETT A. BEATY, LOCKRIDGE, VALONE & BEATY, PLLC, Knoxville, for Plaintiff-Appellant. THOMAS C. JESSEE, JESSEE & JESSEE, Johnson City, for Defendant-Appellee. Judge:FRANKS First Paragraph: This is an appeal from a reduction in ordered child support. Peggy Anne Brasfield and Jimmy Carroll Brasfield were divorced on June 16, 1992. They were awarded joint custody of the three minor children, with Ms. Brasfield receiving physical custody of the two younger sons, Hunter and Tyler, and Dr. Brasfield receiving physical custody of the older son, Spencer, who was sixteen years old at the time of the divorce. Dr. Brasfield was awarded liberal visitation with Hunter and Tyler. http://www.tba.org/tba_files/TCA/brasfiel_opn.WP6 REGINA HARRIS, Individually and as Parent and Next Friend of RONNIE DALE NETHERTON, JR., a Minor VS. DR. ANDREW L. CHERN and BAPTIST HOSPITAL, INC. Court:TCA Attorneys: Tricia Dennis 6400 Lee Highway, Suite 102 Chattanooga, TN 37421 Attorney for Plaintiffs-Appellants Gayle Malone, Jr. Kathryn J. Ladd Trabue, Sturdivant & DeWitt 2500 Nashville City Center 511 Union Street Nashville, TN 37219 Attorneys for Defendant-Appellee Baptist Hospital, Inc. Judge:GODDARD First Paragraph: This is a medical malpractice case wherein Ronnie Dale Netherton, Jr., sustained severe brain injury incident to his birth at Baptist Hospital, Inc. The Trial Judge granted a partial judgment in favor of Baptist as to any negligence alleged against it in connection with the post-natal care of Plaintiff Ronnie Netherton, Jr. Although the Trial Judge overruled the motion for summary judgment alleging negligence by Baptist preceding Ronnie's birth, the Trial Judge, when ruling on the Plaintiffs' motion to reconsider his order of partial summary judgment, overruled the motion and made the partial summary judgment final pursuant to Rule 54 of the Tennessee Rules of Civil Procedure, resulting in this appeal. http://www.tba.org/tba_files/TCA/Harrisre_opn.WP6 IDEAL PRODUCTS, INC. VS. AGMARK FOODS, INC. Court:TCA Attorneys: Larry D. Ashworth 227 Second Avenue, North Nashville, TN 37201 Peter D. Heil P. O. Box 40651 Nashville, TN 37204 Attorneys for Plaintiff-Appellee William R. O'Bryan, Jr. W. Neal McBrayer Kenneth M. Bryant TRABUE, STURDIVANT & DEWITT 2500 Nashville City Center 511 Union Street Nashville, TN 37219-1738 Attorneys for Defendant-Appellant Judge:GODDARD First Paragraph: This suit involves a commercial lease agreement entered into by Agmark Foods, Inc., Defendant-Appellant, with Ideal Products, Inc., Plaintiff-Appellee, for container chassis used in transporting commodities and bulk products. Agmark contends that the Chancellor improperly granted a summary judgment in favor of Ideal. http://www.tba.org/tba_files/TCA/Idealpro_opn.WP6 FIRST DEPOSIT NATIONAL BANK VS. MEN K. QUACH Court:TCA Attorneys: JOHN E. BUFFALOE, JR. JOHN A. BARNEY BUFFALOE & SHARP 201 Fourth Avenue North, #1300 Nashville, Tennessee 37219 Attorney for Plaintiff/Appellee JOHN L. WHITFIELD, JR. MOODY, WHITFIELD & CASTELLARIN 95 White Bridge Road Suite 509, Cavalier Building Nashville, Tennessee 37205 Attorney for Defendant/Appellant Judge:CANTRELL First Paragraph: This is an attack on the service of a summons. The Chancery Court of Davidson County refused to set aside a default judgment based on the sheriff's return. We affirm. http://www.tba.org/tba_files/TCA/Quachmk_opn.WP6 JANICE YOUNG VS. JOHN DOE, ET AL Court:TCA Attorneys: Edwin Z. Kelly, Jr.; Kelly & Kelly of Jasper For Appellee, State Farm Insurance Company Jerry S. Sloan of Chattanooga For Appellant, Janice Young Judge:CRAWFORD First Paragraph: This is an uninsured motorist insurance case. Plaintiff/Appellant, Janice C. Young, appeals the order of the trial court granting summary judgment to the unnamed Defendant/Appellee, State Farm Mutual Automobile Insurance Company (State Farm). http://www.tba.org/tba_files/TCA/Young_opn.WP6 STATE OF TENNESSEE VS. SANDRA C. HUNDLEY Court:TCCA Attorneys: For Appellant: For Appellee: Julie A. Martin John Knox Walkup P.O. Box #426 Attorney General and Reporter Knoxville, TN 37901-0426 425 Fifth Avenue North Nashville, TN 37243-0493 Mack Garner District Public Defender Todd R. Kelly 419 High Street Assistant Attorney General Maryville, Tennessee 37804 Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 Philip Morton Assistant District Attorney General 363 Court Street Maryville, TN 37804 Judge:OGLE First Paragraph: The appellant, Sandra C. Hundley, appeals the order of the Circuit Court of Blount County revoking her probation and requiring that she serve the balance of her sentence in the Tennessee Department of Correction Special Needs Unit. Specifically, the appellant contends that, following the revocation of her probation, the trial court should have sentenced her pursuant to the Tennessee Community Corrections Act of 1985. Following a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Hundley_pro.WP6 STATE OF TENNESSEE VS. JULIA JENKINS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: LESLIE HUNT JOHN KNOX WALKUP 139 North Main Street Attorney General and Reporter Clinton, TN 37716 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 JAMES N. RAMSEY District Attorney General JAN HICKS Assistant District Attorney Room 127, Courthouse Clinton, TN 37716 Judge:SMITH First Paragraph: On September 17, 1997, Appellant Julia Jenkins pled guilty to one count of aggravated assault. After a sentencing hearing on November 14, 1997, the trial court sentenced Appellant as a Range I standard offender to three years of imprisonment. Appellant challenges the trial court's denial of probation. After a review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Jenkinsj_opn.WP6 STATE OF TENNESSEE VS. WILLIAM KENNEDY Court:TCCA Attorneys: For the Appellant: For the Appellee: Frank Lannom John Knox Walkup 102 East Main Street Attorney General of Tennessee Lebanon, TN 37087 and Lisa A. Naylor Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Tom P. Thompson, Jr. District Attorney General 203 Greentop St., P.O. Box 178 Hartsville, TN 37074-0178 and Robert Hibbett Assistant District Attorney General 119 S. College St. Lebanon, TN 37087 Judge:TIPTON First Paragraph: The state brings this interlocutory appeal pursuant to Rule 9, T.R.A.P., from an order of the Wilson County Criminal Court denying its motion to amend the date in an indictment charging William Kennedy with statutory rape. The sole question for our review is whether the trial court erred in denying the motion to amend. We reverse the trial court's denial of the motion. http://www.tba.org/tba_files/TCCA/Kennedyw_opn.WP6 STATE OF TENNESSEE VS. BRIAN ROBERSON Court:TCCA Attorneys: For the Appellant: For the Appellee: Trippe Steven Fried Paul G. Summers Attorney for Appellant Attorney General and Reporter 302 Third Avenue South Franklin, TN 37064 Marvin E. Clements, Jr. Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 Joseph Baugh District Attorney General P. O. Box 937 Franklin, TN 37065-0937 Judge:HAYES First Paragraph: The appellant, Brian Roberson, appeals the denial of a Rule 35(b) "Motion for Correction of Sentence" by the Williamson County Criminal Court. This motion arose from a plea entered on January 14, 1998, by the appellant pursuant to an agreed disposition under Rule 11(e)(1)(C), Tenn. R. Crim. P. After pleading guilty to two counts sale of cocaine, a Class B felony, and one count sale of cocaine, a Class C felony, the trial court, in accordance with the plea agreement, imposed a sentence of eight years for each Class B felony and a sentence of three years for the Class C felony. Apparently, the appellant was serving outstanding sentences of 17.5 years at the time he pled guilty to the current charges. The instant eight year sentences were ordered to run concurrently with each other and concurrently with the outstanding sentences of 17.5 years. However, the three year sentence for the Class C felony was ordered to run consecutively to the outstanding sentences for an effective sentence of 20.5 years. On appeal, the appellant argues that the trial court erroneously denied his motion to correct or reduce his three year sentence for the sale of cocaine. http://www.tba.org/tba_files/TCCA/Robersnb_opn.WP6 STATE OF TENNESSEE VS. DAVID E. SMITH, JR. Court:TCCA Attorneys: For the Appellant: For the Appellee: Jeffrey A. DeVasher Paul G. Summers Asst. Public Defender Attorney General and Reporter 1202 Stahlman Building Nashville, TN 37201 Marvin E. Clements, Jr. Assistant Attorney General (ON APPEAL) Criminal Justice Division 425 Fifth Avenue North Karl Dean 2d Floor, Cordell Hull Building Public Defender Nashville, TN 37243-0493 Victor S. (Torry) Johnson III Stephen G. Young District Attorney General Joseph E. Clifton Asst. Public Defenders Pamela Anderson 1202 Stahlman Building Asst. District Attorney General Nashville, TN 37201 Washington Sq., Suite 500 222 2nd Avenue North (AT TRIAL) Nashville, TN 37201 Judge:HAYES First Paragraph: The appellant, David E. Smith, Jr., appeals the verdict of a Davidson County jury finding him guilty of one count of theft of property over $1,000, a class D felony. For this offense, the appellant received a two year suspended sentence. On appeal, the appellant challenges the sufficiency of the convicting evidence and contends that the trial court erred by denying his request for judicial diversion. Finding no errors of law requiring reversal, we affirm. http://www.tba.org/tba_files/TCCA/Smithdej_opn.WP6 PLEASE FORWARD THIS EMAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion-Flash free each day by e-mail? 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