June 28, 1999 Volume 5 -- Number 088 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):   07 New Opinion(s) from the Tennessee Supreme Court 01 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 04 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 SHELBY CRIMINAL VS. STEVEN B. BUGGS Court:TSC Attorneys: For the Appellant: For the Appellee: A. C. Wharton John Knox Walkup District Public Defender Attorney General and Reporter Michael E. Moore W. Mark Ward Solicitor General Asst. Public Defender Memphis, Tennessee Daryl J. Brand Assistant Attorney General Judge:BARKER First Paragraph: This is an appeal by the defendant from the judgment of the intermediate appellate court affirming his conviction for felony murder in the perpetration of a robbery. The sole issue is whether the evidence was sufficient to establish intent to commit robbery at the time of the murder. http://www.tba.org/tba_files/TSC/Buggssb_opn.WP6 ANTHONY P. GUILIANO VS. CLEO, INC. Court:TSC Attorneys: For the Petitioner: For the Respondent: Frank L. Watson James H. Stock, Jr., Waring Cox, P.L.C. Christopher E. Moore Memphis, Tennessee Weintraub, Stock, Bennett, Grisham & Underwood, P.C. Memphis, Tennessee Judge:BARKER First Paragraph: We granted this appeal to address the recovery of liquidated damages where a plaintiff/employee alleges that he has been constructively terminated from his employment. The trial court in this case granted summary judgment in favor of the appellant, Anthony P. Guiliano, based upon a finding that he had been constructively terminated from his employment and that he was entitled to recover the remainder of his salary under Paragraph 9 of his employment contract. The Court of Appeals agreed that the appellant had been constructively terminated from his employment, but concluded that he was not entitled to any recovery. The intermediate court held that Paragraph 9 of the contract was a liquidated damages provision that imposed a penalty on the appellee, Cleo, Inc., (Cleo). http://www.tba.org/tba_files/TSC/Glianoap_opn.WP6 DWAYNE HAWKINS and AL GOSSETT VS. SUPERIOR MOTORS, INC. PATRICK A. HART, NELSON BOWERS II and BOWERS TRANSPORTATION GROUP, LLC, Court:TSC Attorneys: FOR DEFENDANTS/APPELLANTS: FOR PLAINTIFFS/APPELLEES: JOHN BRANHAM STEVEN A. RILEY KATHRYN BARNETT KATHARINE R. CLOUD Nashville Nashville Judge:HOLDER First Paragraph: We granted this appeal to address: (1) whether the Court of Appeals erred in effectively granting summary judgment to the plaintiffs on the issue of individual liability; and (2) whether a party is required to produce privilege logs for documents or materials withheld pursuant to a claim of privilege or work product protection. We hold that there exist genuine issues of material fact on the issue of individual liability and that any creation of a requirement for privilege logs similar to that found in the Federal Rules of Civil Procedure should be in the form of an amendment to the Tennessee Rules of Civil Procedure. The decision of the Court of Appeals on both these issues is reversed. http://www.tba.org/tba_files/TSC/Hawkinsd_opn.WP6 LORRAINE BURTON SPIERS MARCUS VS. TRENT WRIGHT MARCUS Court:TSC ORDER First Paragraph: The appellee has filed a petition for rehearing in this appeal pursuant to Tenn. R. App. P. 39. We have considered all of the arguments raised in the petition, and we have found them to be without merit. It is, therefore, ORDERED that the petition is denied. http://www.tba.org/tba_files/TSC/Marcus_pet.WP6 MARY MATTHEWS VS. PICKETT COUNTY, TENNESSEE, LARRY PEEK and DANA DOWDY, Individually and in their official capacity as employees for the Pickett County Sheriff's Department Court:TSC Attorneys: FOR PETITIONER: FOR RESPONDENTS: JOSEPH H. JOHNSTON ALAN T. FISTER MAX MENDELSOHN JEFFREY M. BEEMER Nashville Nashville FOR AMICUS CURIAE, TENNESSEE FOR AMICI CURIAE, THE TENNESSEE MUNICIPAL LEAGUE RISK TASK FORCE AGAINST DOMESTIC MANAGEMENT POOL: VIOLENCE; LAWYERS' ASSOCIATION FOR WOMEN, MARION GRIFFIN ROBERT H. WATSON, JR. CHAPTER, and TENNESSEE LAWYERS JOHN C. DUFFY ASSOCIATION FOR WOMEN: Knoxville CHRISTINA NORRIS Nashville FOR AMICUS CURIAE, TENNESSEE ASSOCIATION OF LEGAL SERVICES: THEODORE R. KERN Knoxville Judge:HOLDER First Paragraph: This case comes to us on a certified question of law. The petitioner, Mary Matthews, filed this action in the United States District Court against the respondents, Pickett County, Tennessee, Larry Peek, and Dana Dowdy. The district court held that the petitioner's negligence action was barred by the public duty doctrine, which shields public entities and public employees from tort liability for injuries caused by a breach of a duty owed to the public at large. The petitioner appealed to the Sixth Circuit Court of Appeals. The Sixth Circuit Court of Appeals certified the following question for our resolution: "May the existence of an order of protection give rise to a 'special duty' to protect, and, if so, does the special duty extend to the protection of property?" We accept certification and hold under the facts of this case that the special duty exception to the public duty doctrine is applicable. Accordingly, the respondents may be held liable for the petitioner's damages under the Governmental Tort Liability Act ("GTLA"), Tenn. Code Ann. S 29-20-201 et seq. http://www.tba.org/tba_files/TSC/Mattmary_opn.WP6 DONALD WAYNE STROUTH VS. STATE OF TENNESSEE Court:TSC Attorneys: For the Appellant: For the Appellee: Mark E. Olive Paul G. Summers 321 W. Jefferson St. Attorney General & Reporter Tallahassee, FL 32301 Michael E. Moore Solicitor General Gordon W. Smith Associate Solicitor General Nashville, Tennessee H. Greeley Wells, Jr. District Attorney General Second Judicial District Edward E. Wilson Assistant District Attorney P.O. Box 526 Blountville, TN 37617 Judge:DROWOTA First Paragraph: In this post conviction capital appeal, we must determine whether the jury's reliance upon the invalid felony murder aggravating circumstance as support for imposition of the death penalty is harmless error beyond a reasonable doubt under the analysis adopted in State v. Howell, 868 S.W.2d 238 (Tenn. 1993). Both the trial court and the Court of Criminal Appeals concluded that the error was harmless and dismissed the petition for post conviction relief. After fully reviewing the record, we conclude that the sentence would have been the same had the jury given no weight to the invalid felony murder aggravating circumstance and therefore affirm the lower courts' dismissal of the petition. http://www.tba.org/tba_files/TSC/Strouthd_opn.WP6 CONCURRING OPINION: http://www.tba.org/tba_files/TSC/Strouthd_con.WP6 MELISSA HATCHER VS. RUBBERMAID, et al. Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Michael J. Mollenhour Gerald C. Russell P. O. Box 9299 125 E. Broadway Avenue Knoxville, TN 37940 Maryville, TN 37804 Judge:INMAN 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. http://www.tba.org/tba_files/TSC_WCP/Hatcher_wc3.WP6 STATE OF TENNESSEE VS. ALFRED "CHUCKIE" FRANCIS Court:TCCA Attorneys: FOR THE APPELLANT FOR THE APPELLEE Jerry Hoffer John Knox Walkup 275 North Ocoee Street Attorney General & Reporter Suite C Cleveland, TN 37311 Todd R. Kelley Assistant Attorney General 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 Judge:BYERS First Paragraph: On September 4, 1997, the defendant was found guilty in a jury trial of the sale of crack cocaine over .5 grams. The trial court found the defendant to be a Range II, multiple offender and sentenced him to eighteen years in the Tennessee Department of Corrections. This sentence was to be served consecutive to any time the defendant had to serve for crimes committed in Oklahoma. The jury fined the defendant $25,000. http://www.tba.org/tba_files/TCCA/Francisa_cca.WP6 STATE OF TENNESSEE VS. BETTY JUNE WOODS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: J. THOMAS MARSHALL, JR. JOHN KNOX WALKUP Office of the Public Defender Attorney General and Reporter 101 South Main Street Clinton, TN 37716 ERIK W. DAAB Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 JAMES N. RAMSEY District Attorney General JOHN G. MADDOX Assistant District Attorney 100 North Main Street Clinton, TN 37716 Judge:SMITH First Paragraph: The appellant, Betty June Woods, was convicted by an Anderson County jury of one (1) count of driving under the influence of an intoxicant. The trial court sentenced her to eleven (11) months and twenty-nine (29) days, with all but thirty (30) days of her sentence suspended. On appeal, she claims that the evidence is insufficient to support the jury's verdict. She also argues that the trial court erred in instructing the jury under the driving under the influence statute. Finally, the appellant contends that the trial court erred in requiring her to serve thirty (30) days in jail. After a thorough review of the record before this Court, we find no reversible error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Woodsbet_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? Anyone -- whether a TBA member or not is welcome to subscribe ... it's free! 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