June 30, 1999 Volume 5 -- Number 090 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 03 New Opinion(s) from the Tennessee Court of Appeals 03 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 ERNEST RODNEY FORD VS. THE TENNESSEE COAL COMPANY COMPANY ODIS E. PHILLIPS VS. THE TENNESSEE COAL COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Robert Knowlton Roger L. Ridenour 105 Donner Drive, Suite B P.O. Box 530 PO Box 4459 Clinton, Tennessee 37717 Oak Ridge, TN 37831-4459 Judge:PEOPLES First Paragraph: These workers' compensation appeals have been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appeals present a common issue of law involving the application of Tennessee Code Annotated Section 50-6-241. If an employer initially returns an injured employee to work at the same rate of pay after an injury but then goes out of business, is the employee's award capped at two and one-half times the medical impairment rating? The trial court refused to limit the award. We affirm. http://www.tba.org/tba_files/TSC_WCP/Fordvt~o_wpd.WP6 BRETT KILGORE VS. TENNESSEE DISTRIBUTION, INC. Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: Steven B. Johnson Michael E. Large K. O. Herston Bristol, Tennessee Butler, Vines & Babb Knoxville, Tennessee Judge:LOSER 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. section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The appellant insists "the trial court abused his discretion when it allowed the plaintiff to re-open his proof after final judgment was entered against plaintiff." The appellee insists the "defendant has waived the issue it now presents for appellate review, due to the fact that defendant failed to make the appropriate objection at the trial court level." As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/Kilgvten_doc.WP6 VICKIE SUE ANDERSON VS. RONNY LEE ANDERSON Court:TCA Attorneys: John W. Cleveland, Sweetwater, for Appellant. H. Chris Trew, Athens, for Appellee. Judge:INMAN First Paragraph: These parties were divorced in 1995. They were awarded joint custody of two children, with 'primary physical custody' awarded to Mother, who, in 1998, advised Father of her intent to home school their youngest daughter, Delilah. Father thereupon petitioned the Court for an order requiring Mother to continue Delilah's public schooling. The trial judge found (1) that Mother had not properly supervised the educational needs of Delilah, (2) "that she has too many irons in the fire," (3) that she has neither the time nor the detachment nor the ability to by herself manage the educational needs of this child. http://www.tba.org/tba_files/TCA/Anderson_ca3.WP6 CONCURRING OPINION: http://www.tba.org/tba_files/TCA/Andrsnvs_con.WP6 LEE P. FITE, Individually and Derivatively on behalf of H & M CONSTRUCTION CO., INC. VS. CHARD L. FITE, C. DAVID FITE, LARRY P. BECKER, H & M CONSTRUCTION CO., INC., a Tennessee Corporation and SHARES OF STOCK IN H & M CONSTRUCTION CO., INC. OWNED BY LEE P. FITE Court:TCA Attorneys: For the Plaintiff/Appellant: For the Defendants/Appellees: Martin H. Aussenberg Lee J. Chase, III Memphis, Tennessee Memphis, Tennessee Judge:HAYES First Paragraph: This case involves allegations of breach of fiduciary duty, fraud in the inducement of a contract, and violation of the Tennessee Securities Act. The plaintiff asserts that the defendants, his two brothers who are majority shareholders in the family corporation, the corporation, as an alter ego or veil of the majority shareholders, and an officer and director of the corporation, used fraudulent expense and contract-kickback schemes to lower the book value of the corporation's stock when plaintiff executed an option to sell agreement. The trial court granted summary judgment to the defendants. We reverse and remand. http://www.tba.org/tba_files/TCA/fiteleep_opn.WP6 STATE OF TENNESSEE VS. LESTER DOUGLAS BELL Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARK E. STEPHENS JOHN KNOX WALKUP District Public Defender Attorney General & Reporter PAULA R. VOSS and ELLEN H. POLLACK JAMIE LYNN NILAND Assistant Attorney General Assistant Public Defenders 425 Fifth Ave. N., 2d Floor 1209 Euclid Avenue Nashville, TN 37243-0493 Knoxville, TN 37921 RANDALL E. NICHOLS District Attorney General JANET S. GURWITCH Assistant District Attorney 400 Main, P.O. Box 1468 Knoxville, TN 37901-1468 Judge:WITT First Paragraph: The defendant, Lester Douglas Bell, appeals from his conviction of misdemeanor assault in the Knox County Criminal Court. The trial court imposed a sentence of eleven (11) months and twenty-nine (29) days to be suspended after serving the first 30 days in confinement. In this direct appeal, the defendant raises four issues: I. Whether the trial court erred in denying the defendant's motion for a court reporter to be provided by the state. II. Whether the evidence was sufficient to support the jury's verdict and whether the trial court erred in failing to set aside the verdict. III. Whether there was prosecutorial misconduct in the following: a. Eliciting testimony regarding the defendant's history of violence in his relationship with the victim; b. During voir dire, continuously using the term "domestic violence"; c. During voir dire, telling the jury to assess the defendant's credibility by the fact that he had a strong interest in the outcome of the case. IV. Whether the trial court erred in denying full probation and ordering an excessive sentence. After a review of the record and the briefs of the parties, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Bellld_opn.WP6 STATE OF TENNESSEE VS. TERRY C. MEADORS Court:TCCA Attorneys: For the Appellant: For the Appellee: Jim Wiseman Paul G. Summers Sally Schneider Attorney General and Reporter Attorneys for Appellant 131 North Church Street Marvin E. Clements, Jr. Murfreesboro, TN 37130 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 William C. Whitesell, Jr. District Attorney General 3rd Floor, Rutherford Co. Judicial Bldg. Murfreesboro, TN 37130 Judge:HAYES First Paragraph: The appellant, Terry C. Meadors, appeals the order entered by the Rutherford County Circuit Court returning him to confinement after his inadvertent release by the Sheriff's Department. While serving sentences in the Rutherford County Workhouse, the appellant escaped. After his return to confinement, he pled guilty to escape and received an 18 month sentence as a range I offender. This sentence, entered December 11, 1996, was ordered to be served consecutively to a prior sentence the appellant was serving at the time of his escape. On June 23, 1997, the appellant was granted probation for those sentences he was serving prior to his escape. Notwithstanding the TDOC detainer for escape, the appellant, on June 23, 1997, was inadvertently released from his confinement in the Rutherford County Workhouse. http://www.tba.org/tba_files/TCCA/Meadorst_opn.WP6 LONNIE R. THOMPSON VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Gerald T. Eidson Paul G. Summers Attorney for Appellant Attorney General and Reporter 107 East Main, Suite 205 Rogersville, TN 37857 Erik W. Daab Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 C. Berkeley Bell, Jr. District Attorney General Douglas Godbee Asst. District Attorney General Hawkins County Courthouse Main Street Rogersville, TN 37857 Judge:HAYES First Paragraph: The appellant, Lonnie Ray Thompson, appeals the dismissal of his petition for post-conviction relief by the Hawkins County Criminal Court. On appeal, the appellant contends, first, that counsel was ineffective for failing to request a mental evaluation and, second, that his guilty pleas were involuntarily entered because counsel failed to explain that he would receive a 100% release eligibility date. After review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Thomplr_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! 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