September 24, 1999
Volume 5 -- Number 130

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
08 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


DOUG BLACK
VS.
LIBERTY MUTUAL  INSURANCE   
  COMPANY

Court:TSC - Workers Comp Panel

Attorneys:                          
For the Appellant:          For the Appellee:

C. Edward Daniel            James T. Shea, IV
825 Freels Lane Baker,      McReynolds, Byrne, O'Kane, Shea
Knoxville, TN  37922        & Townsend
                            607 Market Street, 11th Floor
                            PO Box 1708
                            Knoxville, TN  37901-1708
        
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 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
plaintiff, Doug Black, appeals a determination that his disability is
limited to 35 percent to the leg because of the Americans with
Disabilities Act (ADA).  The defendant, Liberty Mutual Insurance
Company (carrier for Roadway Express), asserts the award is excessive
in that plaintiff sustained no vocational disability.  Both parties
assert there is no legal basis for the trial court to retain
jurisdiction to modify the award if a court determines that the ADA
does not apply.  We agree that the result of a separate proceeding
under the ADA has no bearing on the disability of the employee and
accordingly modify the award.

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



PHILIP STEVEN FANN VS. ADVANCE TRANSFORMER COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Arthur G. Seymour, Jr. James Frank Wilson Robert L. Kahn Wilson & Brooks, PC Frantz, McConnell & Seymour, LLP P.O. Box 160 P.O. Box 39 Wartburg, TN 37887 Knoxville, TN 37901 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. http://www.tba.org/tba_files/TSC_WCP/FANNPHIL_WC.WP6
VIVIAN L. RUSSELL VS. ADVANCE TRANSFORMER COMPANY Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: Arthur G. Seymour, Jr. Roger L. Ridenour Robert L. Kahn Ridenour, Ridenour & Fox Knoxville, Tennessee Clinton, 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 contends (1) the employee failed to give notice of her injury, (2) the claimant's injury did not arise out of the employment relationship and (3) the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/russvadv_wpd.WP6
STATE OF TENNESSEE VS. FRANK CHESTER BRIGHT, JR., a/k/a MERVYN JORDAN Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: STEVEN M. WELLS PAUL G. SUMMERS 222 Second Avenue North Attorney General & Reporter Suite 360M Nashville, TN 37201 LUCIAN D. GEISE Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General JOHN C. ZIMMERMAN Assistant District Attorney General 222 Second Avenue North, Suite 500 Nashville, TN 37201-1649 Judge:GLENN First Paragraph: The defendant, Frank Chester Bright, Jr., appeals as of right from his conviction by a jury in the Davidson County Criminal Court of possession with intent to deliver over twenty-six grams of a substance containing cocaine, a Schedule II controlled substance, which is a Class B felony, and of facilitation of possession of a deadly weapon with intent to employ in the commission of or escape from an offense of possession with intent to deliver over twenty-six grams of a substance containing cocaine, which is a Class A misdemeanor. He was sentenced as a career offender to thirty years on the possession count and eleven months and twenty-nine days on the facilitation count, the sentences to run concurrently. http://www.tba.org/tba_files/TCCA/BRIGHTFC_wpd.WP6
STATE OF TENNESSEE VS. MICHAEL BROWN Court:TCCA Attorneys: For the Appellant: For the Appellee: Michael O. Brown, Paul G. Summers Pro Se Attorney General and Reporter CCA/SCCC Post Office Box 279 Clifton, TN 38425 Clinton J. Morgan Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493 W. Michael McCown District Attorney General Weakley Edward Barnard Asst. District Attorney General P. O. Box 878 Fayetteville, TN 37334 Judge:HAYES First Paragraph: The appellant, Michael Brown, appeals pro se, his conviction for one count of sale of cocaine, a class B felony. The Lincoln County Circuit Court subsequently sentenced the appellant, as a range II offender, to twenty years in the Tennessee Department of Correction. http://www.tba.org/tba_files/TCCA/BROWNM_wpd.WP6
WILLIAM GARRETT VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: David A. Simpson Paul G. Summers 113 West Main Street Attorney General and Reporter Gallatin, TN 37066 425 Fifth Avenue North Nashville, TN 37243-0493 Georgia Blythe Felner Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 Judge:OGLE First Paragraph: The petitioner, William Garrett, appeals the summary dismissal of his petition for post-conviction relief by the Criminal Court of Sumner County on October 13, 1998. According to the petition for post-conviction relief, the petitioner was convicted in the Criminal Court of Sumner County on May 24, 1994, pursuant to a plea of guilt and received a sentence of twelve years incarceration in the Tennessee Department of Correction. He did not appeal his conviction until October 1, 1998, when he filed the instant petition for post-conviction relief. In his petition, the petitioner claimed that the State had violated the terms of his plea agreement and the petitioner was entitled to release from the Department pursuant to the original agreement. Alternatively, the petitioner challenged the knowing and voluntary nature of his plea, the trial court's compliance with Tenn. R. Crim. P. 11, and the performance of his trial counsel. The post-conviction court dismissed the instant petition due to the expiration of the applicable statute of limitations. Tenn. Code. Ann. S 40-30-202(a) (1997). http://www.tba.org/tba_files/TCCA/GARRETTW_wpd.WP6
STATE OF TENNESSEE VS. TROY RANDALL JOHNSON Court:TCCA Attorneys: FOR THE APPELLANT: GREGORY D. SMITH Contract Appellate Defender One Public Square, Suite 321 Clarksville, TN 37040 (On Appeal) ANDREW JACKSON DEARING III Assistant Public Defender 105 South Main P.O. Box 1119 Fayetteville, TN 37334-1119 (At Trial and On Appeal) FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter CLINTON J. MORGAN Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 W. MICHAEL McCOWN District Attorney General ROBERT G. CRIGLER Assistant District Attorney General One Public Square, Suite 100 Shelbyville, TN 37160-3953 Judge:RILEY First Paragraph: A Bedford County Grand Jury indicted defendant, Troy Randall Johnson, for theft of property over $1000, driving under the influence (DUI) third offense, and driving on a revoked driver's license (DORL) third offense. After a jury trial, he was convicted of joyriding, DUI third offense, and DORL third offense, all Class A misdemeanors. The trial court sentenced defendant to an effective sentence of nineteen months and fifteen days. On appeal, defendant challenges: (1) the sufficiency of the evidence, and (2) his sentences. After a thorough review of the record, this Court MODIFIES the sentence for DUI to conform to the statutory requirement, but AFFIRMS the trial court's judgment in all other respects. http://www.tba.org/tba_files/TCCA/JOHNSONT_wpd.WP6
STATE OF TENNESSEE VS. TIM LEE MOOR Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: BILLY K. TOLLISON, III PAUL G. SUMMERS 114 North College Street Attorney General & Reporter McMinnville, TN 37111 KIM R. HELPER Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 CLEMENT DALE POTTER District Attorney General THOMAS J. MINER Assistant District Attorney Professional Building McMinnville, TN 37111 Judge:WILLIAMS First Paragraph: The defendant, Tim Lee Moore, was convicted upon his plea of guilty in Warren County to Driving while Restriction in Effect, a Class E felony. See Tenn. Code Ann. S 55-10-616. He was sentenced to the Department of Correction for sixteen months as a Range I Standard offender. He appeals as of right upon a certified question of law. See T.R.A.P. 3(b); Tenn. R. Crim. P. 37(b). The state asserts that the defendant did not properly reserve a certified question of law. We AFFIRM the trial court. http://www.tba.org/tba_files/TCCA/MOORETL_wpd.WP6
STATE OF TENNESSEE VS. JOHN D. NEBLETT Court:TCCA Attorneys: FOR THE APPELLANT: MICHAEL R. JONES District Public Defender COLLIER W. GOODLETT Assistant Public Defender 109 South Second Street Clarksville, TN 37040 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter KIM R. HELPER Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JOHN WESLEY CARNEY, JR. District Attorney General C. DANIEL BROLLIER Assistant District Attorney General 204 Franklin Street, Suite 200 Clarksville, TN 37040-3420 Judge:RILEY First Paragraph: Defendant, John D. Neblett, pled guilty to aggravated vehicular homicide, a Class A felony; vehicular assault, a Class D felony; and second-offense driving on a revoked driver's license (DORL), a Class A misdemeanor. The trial court sentenced defendant to 20 years for the aggravated vehicular homicide; 4 years for the vehicular assault, to be served consecutively; and 11 months and 29 days for DORL, to be served concurrently. http://www.tba.org/tba_files/TCCA/NEBLETTJ_wpd.WP6
STATE OF TENNESSEE VS. JACQUELINE STEPHERSON Court:TCCA Attorneys: FOR THE APPELLANT: JOHN S. COLLEY III 710 N. Main Street P. O. Box 1476 Columbia, TN 38402-1476 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General and Reporter LUCIAN D. GEISE Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 T. MICHAEL BOTTOMS District Attorney General JESSE DURHAM LAWRENCE R. NICKELL, JR. Asst. District Attorneys General 10 Public Square P. O. Box 1619 Columbia, TN 38402-1619 Judge:RILEY First Paragraph: Defendant, Jacqueline Stepherson, pled guilty to possession of cocaine over 0.5 grams with intent to sell and possession of marijuana over _ ounce with intent to sell. Pursuant to a plea agreement, defendant received concurrent suspended sentences of eight (8) years and one (1) year, respectively. The defendant with the consent of the state and the trial court reserved a certified question of law relating to the search and seizure of the drugs and certain banking records. See Tenn. R. Crim. P. 37(b)(2)(i). http://www.tba.org/tba_files/TCCA/STPHRSNJ_wpd.WP6
WILLIE WITHERSPOON VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MICHAEL R. JONES (On Appeal) JOHN KNOX WALKUP District Public Defender Attorney General & Reporter 110 Public Square Springfield, TN 37172 KIM R. HELPER Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 JOHN WESLEY CARNEY, JR. District Attorney General B. DENT MORRISS Assistant District Attorney 500 South Main Street Springfield, TN 37172 Judge:WILLIAMS First Paragraph: The defendant, Willie Witherspoon, files this delayed appeal from a Robertson County jury verdict convicting him of two sales of a Schedule II controlled substance. One sale, a Class B felony, involved 0.5 or more grams of cocaine, and the other sale, a Class C felony, involved less than 0.5 gram of cocaine. http://www.tba.org/tba_files/TCCA/WITHRSPN_wpd.WP6

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