June 25, 1999 Volume 5 -- Number 087 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 ERIC K. MACK VS. CNA INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Linda J. Hamilton Mowles Bruce D. Fox Lewis, King, Krieg, Waldrop & Ridenour, Ridenour & Fox Cathron, P.C. P.O. Box 530 One Centre Square, Fifth Floor Clinton, Tennessee 37717-0530 620 Market Street PO Box 2425 Knoxville, TN 37901 Judge:PEOPLES First Paragraph: This workers= compensation appeal has been referred to the Special Workers= Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. http://www.tba.org/tba_files/TSC_WCP/Mackopn_doc.WP6 LANA R. WOODS VS. MODINE MANUFACTURING COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: George H. Buxton, III Roger L. Ridenour 31 East Tennessee Avenue P.O. Box 530 Oak Ridge, Tennessee 37830 Clinton, Tennessee 37717 Judge: 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. ' 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The threshold issue in this appeal is whether the trial court erred in awarding the plaintiff a disability rating of 25 percent to the body as a whole. http://www.tba.org/tba_files/TSC_WCP/WoodsvModineMfg_doc.WP6 RONALD D. BOWLIN VS. MARY WILMA BOWLIN Court:TCA Attorneys: For Appellant For Appellee PAUL G. WHETSTONE DOUGLAS R. BEIER Morristown, Tennessee Evans & Beier Morristown, Tennessee Judge:SUSANO First Paragraph: In this divorce case, the trial court awarded Ronald D. Bowlin ("Father") the "sole and exclusive custody" of the parties' minor child, Mariah Summer Bowlin ("Summer"), age 3. The child's mother, Mary Wilma Bowlin ("Mother"), was awarded specific visitation rights. Mother appeals, raising one issue for our review: Did the trial court err when it admitted into evidence records of Mother's in-patient stay at a drug and alcohol rehabilitation center operated by Cornerstone of Recovery, Inc. ("Cornerstone"). http://www.tba.org/tba_files/TCA/bowlinrd_opn.WP6 ROBERT DALE COBB VS. DOUGLAS BEIER Court:TCA Attorneys: J. RANDALL SHELTON OF MORRISTOWN FOR APPELLANT JAMES M. DAVIS OF MORRISTOWN FOR APPELLEE Judge:GODDARD First Paragraph: This is a suit for malicious prosecution brought by Robert Dale Cobb against Douglas R. Beier, attorney at law, who represented Mr. Cobb's wife in a divorce action. The Trial Court granted Mr. Beier summary judgment upon sustaining his defense of advice of counsel. http://www.tba.org/tba_files/TCA/cobbrd_opn.WP6 CON PAC SOUTH, INC. VS. JAMES W. BURNETT, d/b/a BURNETT PRODUCE CO. Court:TCA Attorneys: J. RANDALL SHELTON OF MORRISTOWN FOR APPELLANT C. DWAINE EVANS OF MORRISTOWN FOR APPELLEE Judge:GODDARD First Paragraph: Con Pac South, Inc. ("Con Pac") appeals the dismissal of its suit against James W. Burnett d/b/a Burnett Produce Co. ("Mr. Burnett") through summary judgment by the Hamblen County Circuit Court. Con Pac sought judgment against Mr. Burnett in the amount of $31,009.44 arising from an overdue debt for goods ordered and received. http://www.tba.org/tba_files/TCA/conpacso_opn.WP6 ENGLEWOOD CITIZENS FOR ALTERNATE B, et al. VS. THE TOWN OF ENGLEWOOD, et al. Court:TCA Attorneys: JOHN W. CLEVELAND OF SWEETWATER FOR APPELLANTS JON G. ROACH OF KNOXVILLE FOR APPELLEES Judge:GODDARD First Paragraph: The Englewood Citizens for Alternate B appeal the decision of the McMinn County Chancery Court to dismiss their complaint against the Town of Englewood, it's mayor, Ed Simpson, and three of its commissioners, Amos Brock, Robert Middleton, and Elizabeth Raper. The Englewood Citizens group sought to challenge the town commission's selection of a route for a highway construction project. http://www.tba.org/tba_files/TCA/englewc_opn.WP6 HARRY GILLMAN and wife SAUNDRA GILLMAN, Individually and d/b/a TENNESSEE WASTE MOVERS VS. LOUDON COUNTY COMMISSION and LOUDON COUNTY BOARD OF ZONING APPEALS Court:TCA Attorneys: RONALD J. ZUKER and KIMBERLY R. TAYLOR OF KNOXVILLE FOR APPELLANTS HARVEY L. SPROUL OF LENOIR CITY FOR APPELLEES Judge:GODDARD First Paragraph: Plaintiffs, Harry and Sandra Gillman, owners of Tennessee Waste Movers, appeal a judgment of the Chancery Court of Loudon County upholding both the validity of Loudon County zoning resolutions dealing with waste disposal facilities and the Loudon County Board of Zoning Appeals' refusal to grant a permit to add additional land to a presently functioning demolition landfill. http://www.tba.org/tba_files/TCA/gillmanh_opn.WP6 JOHN S. POINDEXTER, III, and TRUST COMPANY OF GEORGIA BANK OF SAVANNAH, N.A., Co-Trustees of the Trust Under Agreement with JOHN S. POINDEXTER, JR. VS. JAMES M. STRANG, JR., and wife CHERYL STRANG Court:TCA Attorneys: BARRY L. ABBOTT and LEE DAVIS OF CHATTANOOGA FOR APPELLANTS SCOTT N. BROWN, JR., OF CHATTANOOGA FOR APPELLEES Judge:GODDARD First Paragraph: This is a suit for declaratory judgment wherein John S. Poindexter, III, and Trust Company of Georgia Bank of Savannah, N.A., Co-Trustees of a trust established by John S. Poindexter, Jr., seek a determination that certain real estate held by them in trust was not encumbered by a right of first refusal, as insisted by the Defendants, James M. Strang, Jr., and his wife Cheryl Strang. http://www.tba.org/tba_files/TCA/poindejs_opn.WP6 STATE OF TENNESSEE VS. DONALD RAY HAMMONDS Court:TCCA Attorneys: For the Appellant: For the Appellee: Raymond Conkin John Knox Walkup 320 Cherokee Street Attorney General of Tennessee Kingsport, TN 37660 and Clinton J. Morgan Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 H. Greeley Wells, Jr. District Attorney General and Robert H. Montgomery Assistant District Attorney General P.O. Box 526 Blountville, TN 37617 Judge:TIPTON First Paragraph: The defendant, Donald Ray Hammonds, appeals as of right from his conviction by a jury in the Sullivan County Criminal Court for aggravated assault, a Class C felony. The trial court sentenced the defendant as a Range II, multiple offender to nine years in the custody of the Department of Correction and imposed a five thousand dollar fine. The court ordered the defendant to serve his sentence consecutively to an earlier sentence. The defendant contends that the evidence is insufficient to support his convictions and that the trial court erred by overruling his motion to dismiss for failure to establish venue. Although not raised by the defendant, we reverse the conviction and dismiss the indictment because it fails to state an offense. http://www.tba.org/tba_files/TCCA/Hamonddr_opn.WP6 STATE OF TENNESSEE VS. KERRY HUGHES Court:TCCA Attorneys: For Appellant: For Appellee: Keith A. Hopson John Knox Walkup Counsel for the Appellant Attorney General and Reporter 410 Shelby Street Kingsport, TN 37660 Clinton J. Morgan Counsel for the State 425 Fifth Avenue, North Cordell Hull Building, Second Floor Nashville, TN 37243-0493 Kenneth Baldwin Assistant District Attorney General 900 East Elk Avenue Elizabethton, TN 37643 Judge:WADE First Paragraph: The defendant, Kerry M. Hughes, appeals as of right the trial court's denial of his motion to correct an illegal sentence. The single issue presented is whether the trial court erred by denying the motion. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Hughesk_opn.WP6 JAMES E. LAMPKIN VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: James E. Lampkin John Knox Walkup STSRCF, Unit 6 Attorney General and Reporter Route 4, Box 600 425 Fifth Avenue North Pikeville, TN 37367 Nashville, TN 37243-0493 Ellen H. Pollack Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 Judge:OGLE First Paragraph: In this appeal, James E. Lampkin challenges the order of the Criminal Court of Knox County, entered on March 24, 1998. The order was entered in response to the appellant's motion to ascertain the status of his previously filed "Motion to be Discharged from Payment of Moot Fines and Costs." The trial court found that it had already ruled upon the appellant's motion and had dismissed the motion. The appellant now raises the following issues for our consideration: 1. Whether the trial court erroneously declined to consider the appellant's "Motion to be Discharged from Payment of Moot Fines and Costs." 2. Whether the appellant should be discharged from fines and costs imposed pursuant to his 1986 convictions for receiving stolen property, leaving the scene of an accident, driving on a revoked license, and driving under the influence of an intoxicant, third offense. 3. Whether Tenn. Code. Ann. S 67-1-1501 (1986) bars collection of the aforementioned fines and costs. Following a thorough review of the record, we remand this case to the trial court. http://www.tba.org/tba_files/TCCA/Lampkinj_op.WP6 NICHOLAS TODD SUTTON VS. STATE OF TENNESSE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: JOHN E. ELDRIDGE JOHN KNOX WALKUP ELDRIDGE, IRVINE & HENDRICKS Attorney General & Reporter Suite 350, Main Place 606 Main Street MICHAEL E. MOORE P.O. Box 84 Solicitor General Knoxville, TN 37901-0084 JOHN P. CAULEY MICHAEL J. PASSINO Assistant Attorney General LASSITER, TIDWELL & HILDEBRAND 425 5th Avenue North 213 Fifth Avenue, North Nashville, TN 37243-0493 Nashville, TN 37219-1901 CHARLES E. HAWK District Attorney General D. ROGER DELP Assistant District Attorney General FRANK A. HARVEY Assistant District Attorney General P.O. BOX 703 Kingston, TN 37763-0703 Judge:BYERS First Paragraph: In this capital case, the petitioner, Nicholas Todd Sutton, appeals as of right from the judgment of the Criminal Court of Morgan County denying his post-conviction petition. In 1986, the petitioner was convicted of first-degree murder and sentenced to death by electrocution. The petitioner's conviction and sentence were affirmed on direct appeal by the Supreme Court. See State v. Sutton, 761 S.W.2d 763 (Tenn. 1988), reh'g denied (Tenn. 1988), and cert. denied, 497 U.S. 1031, 110 S.Ct. 3287, 111 L.Ed.2d 796 (1990). http://www.tba.org/tba_files/TCCA/Suttonni_cca.WP6 JIMMY WAYNE WILSON VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Jimmy Wayne Wilson John Knox Walkup MCRCF-BMCX Attorney General and Reporter P.O. Box 2000 425 Fifth Avenue North Wartburg, TN 37887 Nashville, TN 37243-0493 Ellen H. Pollack Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 Judge:OGLE First Paragraph: The petitioner, Jimmy Wayne Wilson, appeals the summary dismissal of his petition for a writ of habeas corpus by the Criminal Court for Sullivan County. On May 26, 1998, the Court dismissed the petition on the basis of the petitioner's failure to state a cognizable ground for relief. On appeal, the petitioner asserts that the trial court erroneously dismissed his petition, because his conviction and sentence as an habitual criminal are void. Following a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wilsonjw_op.WP6 PLEASE FORWARD THIS EMAIL! 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