November 23, 1999 Volume 5 -- Number 161 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):   08 New Opinion(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 07 New Opinion(s) from the Tennessee Court of Appeals 02 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 HENRY CIRCUIT VS. BRENDA ANNE BURNS CORRECTED OPINION Court:TSC Attorneys: For the Appellant: For the Appellee: Andrew Frazier Paul G. Summers Camden, Tennessee Attorney General and Reporter (At Trial) Michael C. Moore David Raybin Solicitor General Nashville, Tennessee (On Appeal) Elizabeth T. Ryan Assistant Attorney General Nashville, Tennessee Robert Radford District Attorney General Judge: BARKER First Paragraph: Defendant/appellee Brenda Burns was tried and convicted of criminal responsibility for the commission of first-degree murder in the death of her ex-husband, Paul Burns. The Court of Criminal Appeals reversed the conviction on the basis that trial counsel was ineffective in failing to interview two potential defense witnesses and present the testimony of those witnesses before the jury. The State filed an Application for Permission to Appeal contesting the intermediate court's reversal of the defendant's conviction on that basis. The defendant filed a Cross-Application for Permission to Appeal raising, among other issues, whether the trial court had committed reversible error by failing to instruct the jury on the lesser-included offenses of facilitation of a felony (i.e., first-degree murder), Tenn. Code Ann. S 39-11-403 (1991), and solicitation to commit a criminal offense (i.e., first-degree murder), Tenn. Code Ann. S 39-12-102 (1991). We granted both Applications in order to address these important issues. http://www.tba.org/tba_files/TSC/burnsba.wpd STATE OF TENNESSEE VS. CHARLES D. FOWLER DISSENTING OPINION CORRECTED OPINION Court:TSC Judge: BIRCH First Paragraph: The criminal attempt statute in issue provides: (a) A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense: http://www.tba.org/tba_files/TSC/FOWLERC_DIS.wpd HARRY LUTHER VS. BILLY COMPTON, Warden; BEN LINDEMOOD, Warden; DONNIE NOLES, Warden; DONNA KLUTTS, P.A.; EDNA FREEMEN, Health Administrator; JANE VERNON, Director of Nurses; PAT BURCH, L.P.N.; BRITTON MORTON, L.P.N.; JIMMY CHILDRESS, Vo-Tech Shop Instructor; KENNY FOSTER, Vo-Tech Security Officer; and ROY O'STEEN, Safety Inspector Court:TSC Attorneys: For Appellee: For Appellants: W. LEWIS JENKINS, JR. PAUL G. SUMMERS Dyersburg, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General PATRICIA C. KUSSMAN Assistant Attorney General Nashville, TN Judge: BIRCH First Paragraph: We granted review in this case to determine if the plaintiff should be allowed to conduct additional discovery on his claim that the defendants were "deliberate[ly] indifferen[t]" to his serious medical needs. In addition, we will consider whether the plaintiff's 42 U.S.C. S 1983 and negligence claims were properly dismissed pursuant to the defendants' motion for summary judgment. Because we conclude that the plaintiff's assertions of deliberate indifference do not state an independent cause of action but are, instead, part of his 42 U.S.C. S 1983 claim, we reverse only that portion of the intermediate court's decision permitting additional discovery. Further, we reinstate the trial court's decision granting the defendants' motion for summary judgment on the plaintiff's negligence claim. http://www.tba.org/tba_files/TSC/lutherh.wpd STATE OF TENNESSEE VS. DONALD TERRY MOORE Court:TSC Attorneys: For the Appellant: For the Appellee: Charles R. Ray Paul G. Summers Nashville, Tennessee Attorney General & Reporter Jeffery S. Frensley Michael E. Moore Nashville, Tennessee Solicitor General Elizabeth T. Ryan Assistant Attorney General Nashville, Tennessee Judge: BARKER First Paragraph: We granted the appeal in this case to address the proper application of Tennessee Rule of Criminal Procedure 14(b)(1), which is used to sever criminal offenses. For the reasons set forth below, we hold that the Court of Criminal Appeals erred in affirming the trial court's denial of appellant's motion to sever one count of child rape based upon a finding that the offense was part of a common scheme or plan. However, we also hold that the error is harmless because the appellant was acquitted on two of the three counts of child rape, and the evidence is entirely sufficient to support the appellant's conviction on the remaining count. Accordingly, the judgment of the Court of Criminal Appeals is affirmed. http://www.tba.org/tba_files/TSC/MOOREDT.wpd CHRISTOPHER NIZIOL VS. LOCKHEED MARTIN ENERGY SYSTEMS, INC. Court:TSC Attorneys: For the Appellant: For the Appellee: John D. Agee Robert M. Stivers, Jr. COOLEY, COOLEY & AGEE Associate General Counsel Kingston, Tennessee Lockheed Martin Energy Systems, Inc. Oak Ridge, Tennessee Judge: ANDERSON First Paragraph: We granted the motion to review this workers' compensation case to determine whether an award that was paid in a lump sum pursuant to Tenn. Code Ann. S 50-6-231 (1999) may be later reconsidered and increased upon the filing of a new cause of action by the employee pursuant to Tenn. Code Ann. S 50-6-241(a)(2) (1999). http://www.tba.org/tba_files/TSC/NIZIOLC.wpd STATE OF TENNESSEE VS. DONALD RAY SHIRLEY Court:TSC Attorneys: For the Appellant: For the Appellee: William J. Brown Paul G. Summers Nashville, Tennessee Attorney General & Reporter Michael E. Moore Solicitor General Elizabeth T. Ryan Assistant Attorney General Nashville, Tennessee Judge: BARKER First Paragraph: In this case we consider the proper standard of appellate review of a trial court's denial of a motion to sever offenses under Tennessee Rule of Criminal Procedure 14(b)(1). For the reasons set forth below, we hold that a denial of a severance will only be reversed for an abuse of discretion. We also hold that the trial court in this case abused its discretion in denying a severance because the methods used to commit the offenses were not so materially distinct or unique as to rise to an inference of identity. Because we find that this abuse of discretion was not harmless, the decision of the Court of Criminal Appeals is reversed, and this case is remanded to the trial court for new trials. http://www.tba.org/tba_files/TSC/SHIRLEYD.wpd STEVEN A. WAKEFIELD VS. MICHAEL F. CRAWLEY, MacTENN VALVE COMPANY, a Tennessee Corporation, and MACAWEBER SYSTEMS, INC., a Tennessee Corporation Court:TSC Attorneys: For Plaintiff-Appellee: For Defendants-Appellants: H. Allen Bray William S. Lockett, Jr. Maryville, Tennessee Kennerly,Montgomery & Finley,PC Knoxville, Tennessee Judge: DROWOTA First Paragraph: We granted this appeal to determine whether stock in a closely-held corporation is a "security," as defined by Tenn. Code Ann. S 47-8-102 (1992 Repl. & Supp. 1998), so that Chapter 8 of the Uniform Commercial Code (UCC) governs its sale or transfer. http://www.tba.org/tba_files/TSC/wakefieldsa.wpd PAULA YORK and BRIAN YORK VS. SEVIER COUNTY AMBULANCE AUTHORITY, ET AL., and BLUE CROSS AND BLUE SHIELD OF TENNESSEE Court:TSC Attorneys: For the Appellants: For Appellee, Blue Cross and Blue Shield of Tennessee: Richard T. Wallace WALLACE & JONES Daniel M. Gass Sevierville, Tennessee O'NEIL, PARKER & WILLIAMSON Knoxville, Tennessee Stephen J. Cox REISCHLING & AULT Knoxville, Tennessee For Amicus Curiae, Tennessee Trial Lawyers Association: Jimmy W. Bilbo LOGAN, THOMPSON, MILLER, BILBO, THOMPSON & FISHER, P.C. Cleveland, Tennessee Judge: ANDERSON First Paragraph: We granted this appeal to decide whether an insured must receive full compensation for losses, i.e., be "made whole," before an insurer may receive reimbursement for medical expenses paid on behalf of the insured. http://www.tba.org/tba_files/TSC/YorkP.wpd SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/CERTLIST_1122.wpd DEAN ARNOLD d/b/a, THE CHATTANOOGA FAX and TENNESSEE-AMERICAN WATER COMPANY VS. CITY OF CHATTANOOGA, TENNESSEE, and MAYOR JON KINSEY Court:TCA Attorneys: JOE A. CONNER and MISTY SMITH KELLEY, BAKER DONELSON, BEARMAN & CALDWELL, Chattanooga, for Petitioner-Appellee, Tennessee American Water Company. J. CHRISTOPHER CLEM, LUTHER-ANDERSON, PLLP, Chattanooga, for Appellee, Dean Arnold, d/b/a The Chattanooga Fax. RANDALL L. NELSON, City Attorney, Chattanooga, and FREDERICK L. HITCHCOCK, LARRY L. CASH, and STEPHEN D. BARHAM, STRANG, FLETCHER, CARRIGER, WALKER, HODGE & SMITH, PLLC, Chattanooga, for Appellants. PAUL G. SUMMERS, Attorney General and Reporter, MICHAEL E. MOORE, Solicitor General, and JANET M. KLEINFELTER, Senior Counsel, Financial Division, Nashville, for Response of Attorney General to Appellants' Constitutional Challenge. Judge: FRANKS First Paragraph: In this action to inspect documents in the possession of the defendants, the Trial Judge ordered defendants to "permit the inspection and reproduction of the full volume report prepared by Decosimo's Management Consultants, and the written report of the Public Finance Administration. Defendants obtained a stay of the Trial Court's judgment, and appealed the matter to this Court. http://www.tba.org/tba_files/TCA/arnoldd.wpd TONY MILO CROWE VS. WANDA JUNE COMER Court:TCA Attorneys: TIMOTHY L. BALDRIDGE OF KNOXVILLE FOR APPELLANT JAMES H. BEELER OF KINGSPORT FOR APPELLEE Judge: GODDARD First Paragraph: This is an appeal from the Circuit Court's order finding it had subject matter jurisdiction to determine the custody of the minor child Nicholas Crowe. Wanda Comer, Defendant-Appellant, contests the Circuit Court's subject matter jurisdiction. http://www.tba.org/tba_files/TCA/croweton.wpd KENNETH DAVIS, T.Q. HEIDEL, JR. and GAIL F. WORTLEY VS. BOWATER, INC Court:TCA Attorneys: For the Appellants: For the Appellee: Gail F. Wortley James Frank Wilson 3715 Powers Street P. O. Box 160 Knoxville, TN 37917 Wartburg, TN 37887 Judge: SWINEY First Paragraph: In this dispute over Bowater, Inc.'s cutting of timber on a certain tract of land, Kenneth Davis, T. Q. Heidel, Jr. and Gail F. Wortley ("Appellants"), appeal the Trial Court's grant of summary judgment to Bowater ("Appellee"). http://www.tba.org/tba_files/TCA/DavisKe.wpd DEBBIE KAY MARION, as next friend for JONI MARION and JOY K. BOWLING, children under the age of 18 years VS. CHARLES DAVID BOWLING WITH DISSENTING OPINION Court:TCA Attorneys: For Appellant For Appellee CHARLES DAVID BOWLING JANETTE TAYLOR Pro Se Oneida, Tennessee Pikeville, Tennessee Judge: SUSANO First Paragraph: This is an action brought by Debbie Kay Marion ("Marion") on behalf of her two minor children seeking damages for injuries allegedly sustained by the children as a result of the criminal conduct of the defendant, Charles David Bowling ("Bowling"). http://www.tba.org/tba_files/TCA/Mariondk.wpd DISSENTING OPINION: http://www.tba.org/tba_files/TCA/mariond.wpd THE OCEANICS SCHOOLS, INC. VS. OPERATION SEA CRUISE, INC. Court:TCA Attorneys: For the Appellant: For the Appellee: J. Douglas Overbey Brian C. Quist Catherine B. Coffey Jenkins & Jenkins PLLC Robertson, Ingram & Overbey 2121 First Tennessee Plaza The Farragut Building Knoxville, TN 37929-2121 530 South Gay Street, Suite 802 Knoxville, TN 37902-1537 Judge: SWINEY First Paragraph: This is an appeal from the Trial Court's Order denying the motion of Plaintiff/Appellant, The Oceanics Schools, Inc. ("Appellant") for Writ of Execution against Clifford E. Barbour, Jr., sole shareholder of Defendant/Appellee, Operation Sea Cruise, Inc. ("Appellee" or "OSC"), or in the alternative, to Amend, after final judgment, Appellant's Complaint to domesticate a foreign judgment against OSC, by adding Barbour as a party-defendant. http://www.tba.org/tba_files/TCA/Oceanics.wpd PATSY CARR SMITH VS. DONALD WALKER SMITH Court:TCA Attorneys: KYLE E. HEDRICK, Chattanooga, for Plaintiff-Appellee. MITCHELL A. BYRD, Chattanooga, for Defendant-Appellant. Judge: FRANKS First Paragraph: In this action, the Trial Judge dismissed Donald Smith's petition to modify the alimony award to his former wife, Patsy Smith. http://www.tba.org/tba_files/TCA/smithp.wpd JOHNNY D. YOUNG VS. NORFOLK SOUTHERN RAILWAY COMPANY Court:TCA Attorneys: For the Appellant: For the Appellee: Robert D. Bradshaw George L. Foster Chattanooga Chattanooga Judge: SWINEY First Paragraph: This is an appeal from the Trial Court's denial of a Motion for New Trial filed by Plaintiff/Appellant, Johnny D. Young. The motion was based upon allegations of a quotient verdict, improper admission of evidence, and improper argument by counsel for Defendant/Appellee, Norfolk Southern Railway Company. http://www.tba.org/tba_files/TCA/Youngj.wpd STATE OF TENNESSEE VS. CONLEY ROSS FAIR Court:TCCA Attorneys: For the Appellant: For the Appellee: William B. Lawson Paul G. Summers 112 Gay Street Attorney General of Tennessee Post Office Box 16 and Erwin, TN 37650 Erik W. Daab Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243 Joe C. Crumley, Jr. District Attorney General 144 Alf Taylor Road Johnson City, TN 37601 Judge: TIPTON First Paragraph: The defendant, Conley Ross Fair, appeals as of right from his convictions by a jury in the Unicoi County Criminal Court for one count of first degree murder and one count of attempted first degree murder. http://www.tba.org/tba_files/TCCA/FAIR.wpd DAVID EARL MILLER VS. STATE OF TENNESSEE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: MARK E. STEPHENS PAUL G. SUMMERS District Public Defender Attorney General & Reporter JOHN HASTEAD (on appeal) MICHAEL E. MOORE PAULA R. VOSS Solicitor General Assistant Public Defenders 1209 Euclid Avenue MICHAEL J. FAHEY, II Knoxville, TN 37921 Assistant Attorney General 425 Fifth Avenue North MARK OLIVE (at trial) Nashville, TN 37243 ANDRU VOLINSKY School of Law RANDALL EUGENE NICHOLS University of N. Carolina District Attorney General Van Hecke-Wettach Hall Chapel Hill, NC 27514 ROBERT L. JOLLEY, JR. Assistant District Attorney 400 Main Knoxville, TN 37902 Judge: WILLIAMS First Paragraph: The petitioner, David Earl Miller, appeals the Knox County Criminal Court's dismissal of his post-conviction relief petition. In March of 1982, the petitioner was found guilty of first degree murder and sentenced to death by a Knox County jury. The petitioner's direct appeal resulted in the Tennessee Supreme Court affirming his conviction, but reversing his death sentence and remanding the case for a new sentencing trial. http://www.tba.org/tba_files/TCCA/MILLERDE.wpd 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! 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