January 24, 2000
Volume 6 -- Number 010

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):
02 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
05 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

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Lucian T. Pera
Editor-in-Chief, TBALink





For Appellant:              For Appellee:

Knoxville, TN               Attorney General and Reporter

                            MICHAEL E. MOORE
                            Solicitor General

                            TODD R. KELLEY
                            Assistant Attorney General
                            Nashville, TN

                            RANDALL E. NICHOLS
                            District Attorney General

                            CHARME P. JOHNSON KNIGHT
                            Asst. District Attorney General

                            GREG HARRISON
                            Asst. District Attorney General
                            Knoxville, TN                         

Judge: BIRCH

First Paragraph:

The issue here presented is whether the trial court correctly applied
the rape shield rule in excluding testimony about a rape complainant's
prior sexual behavior with a person other than the defendant.  The
trial court excluded the proffered evidence upon a finding that the
defendant did not describe the evidence in detail sufficient to
satisfy the requirement of Tenn. R. Evid. 412(d)(1)(iii).  In
contrast, the Court of Criminal Appeals found no issue in the
application of Rule 412(d)(1)(iii); however, it held that the
proffered evidence was properly excluded because it constituted
inadmissible hearsay.



GARY WAYNE DAVIS VS. SUMNER COUNTY BOARD OF EDUCATION, GALLATIN, TN Court:TSC Attorneys: Judge: PER CURIAM First Paragraph: This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and ... http://www.tba.org/tba_files/TSC/jodavis.wpd
GLORIA ROOKER VS. ZURICH INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellee: For the Appellant: Steve Taylor Archie Sanders, III 6263 Poplar Avenue McWhirter & Wyatt Suite 601 73 Union Avenue Memphis, Tennessee 38119 Memphis, TN 38103 Judge: HOLDER First Paragraph: This worker's 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) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the defendant's insurer appeals the award of 25% disability to the body as a whole, as well as the court ordered payment of medical charges by a physician not authorized by the employer. After thorough review of the record, this panel finds the award of permanent partial disability should be affirmed, but that portion of the judgment ordering payment of medical expenses for charges by an unauthorized physician should be reversed. The plaintiff employee is a forty-six year old female. She attended but did not complete high school. She had obtained her GED. She had been working for Morning Star Foods, the defendant's insured, for nine years. The injury that gave rise to this award occurred on November 16, 1997, when the plaintiff, in the course of her employment, was attempting to "stomp down" cardboard boxes in a trash compacter at her employment. While engaged in this activity the cardboard gave way causing the plaintiff's left foot to drop approximately two to three feet. The plaintiff reported her injury to her supervisor and embarked on a course of medical treatment through authorized physicians, as well as a physician that the plaintiff saw of her own initiative. The plaintiff's complaints of pain in the right hip area were consistent throughout the course of her treatment. http://www.tba.org/tba_files/TSC_WCP/rooker.wpd
HAROLD DAVIS VS. TENNESSEE DEPARTMENT OF EMPLOYMENT SECURITY, TENNESSEE CIVIL SERVICE COMMISSION, and MARGARET CULPEPPER, in her official capacity as Commissioner of the Tennessee Department of Employment Security Court:TCA Judge: LEWIS First Paragraph: Harold Davis has filed a timely and courteous Tenn. R. App. P. 39 petition requesting this court to reconsider its opinion filed in this case on December 10, 1999. The petition raises two issues. First, Mr. Davis questions the impartiality of a member of this court. Second, Mr. Davis asserts that the court should have reinstated his civil rights claim that had been dismissed by the trial court. We have determined that Mr. Davis has not presented grounds entitling him to further relief. http://www.tba.org/tba_files/TCA/DavisH_reh.wpd
M.R. DILLARD CONSTRUCTION VS. J. P. REALTY, II, INC., and MERCHANTS BONDING COMPANY Court:TCA Attorneys: GARY S. RUBENSTEIN J. CARSON STONE, III 501 Union Street, Suite 701 Nashville, Tennessee 37219-0676 Attorneys for Plaintiff/Appellant KARLA C. HEWITT 211 Donelson Pike, Suite 4 Nashville, Tennessee 37214 Attorney for Defendants/Appellees Judge: CANTRELL First Paragraph: This appeal involves a dispute over whether the appellant's action to enforce a mechanics' and materialmen's lien against the appellee should be stayed or dismissed pending arbitration. The Chancery Court for Davidson County found that the arbitration clause in the contract between the appellant and appellee was the exclusive remedy for the resolution of all disputes and dismissed the appellant's complaint without prejudice. We reverse the dismissal and instead stay the appellant's action pending arbitration between the two parties. http://www.tba.org/tba_files/TCA/dillardmr.wpd
MARGIE HERALD, ALLEN EVANS, and DAVID PARRIS VS. RUTH E. JOHNSON, in her capacity as Commissioner of Revenue for the State of Tennessee Court:TCA Attorneys: PHILLIPS M. SMALLING P. O. Box 340 Byrdstown, Tennessee 38549 Attorney for Plaintiffs/Appellants PAUL G. SUMMERS Attorney General & Reporter ELIZABETH A. CARNAHAN Assistant Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243 Attorney for Defendant/Appellee Judge: CANTRELL First Paragraph: This is a dispute with the Tennessee Department of Revenue over whether the privilege tax set out at Tenn. Code Ann. S 67-4-410 is applicable where the appellants illegally sold sealed bottles of liquor for off premises consumption. The Chancery Court of Pickett County denied any refund of the taxes paid by the appellants to satisfy the department's assessment. We affirm. http://www.tba.org/tba_files/TCA/heraldm.wpd
RUTH S. STRZELECKI (MCGRIFF) VS. ROY D. MCGRIFF Court:TCA Attorneys: PAUL G. SUMMERS Attorney General & Reporter MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243 Attorney for Appellee State of Tennessee RANDLE W. HILL, JR. Suite 310 222 Second Avenue North Nashville, Tennessee 37201 Attorney for Appellant Judge: CANTRELL First Paragraph: This is an appeal from an order of the Fourth Circuit Court of Davidson County finding the appellant, Roy D. McGriff, in contempt of court for failure to meet his child support and alimony obligations and awarding a judgment of arrearages to the appellant's ex-wife, Ruth Strzelecki. We affirm the judgment below. http://www.tba.org/tba_files/TCA/strzeleckirs.wpd
CAROL D. SWANSON, as heir of JAMES FRANKLIN HATCHER, deceased, and for the benefit of WILLIE MAE HATCHER, widow VS. LARRY C. PETERSON, and ALL AMERICAN BOTTLING CO., INC., d/b/a ROYAL CROWN BOTTLING CO., a/k/a R.C. CANADA DRY BOTTLING CO. Court:TCA Attorneys: For Plaintiff/Appellant: For Defendants/Appellees: Lloyd T. Kelso Wendy Lynne Longmire Lloyd T. Kelso & Associates Joseph M. Huffaker Nashville, Tennessee Ortale, Kelley, Herbert & Crawford Judge: KOCH First Paragraph: This appeal stems from two wrongful death suits involving the death of the same person. Both suits were filed in the Circuit Court for Davidson County, the first by the decedent's daughter and the second by the decedent's widow. The trial court granted the common defendants' motion to dismiss the daughter's suit on the ground that the widow has a superior right to maintain a wrongful death action. On this appeal, the daughter asserts that she has a statutory right to continue her wrongful death action despite the filing of the widow's suit. We disagree and, therefore, affirm the trial court. http://www.tba.org/tba_files/TCA/Swansoncd.wpd
STATE OF TENNESSEE VS. DAVID MICHAEL GAMBLE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: ARDENA J. GARTH PAUL G. SUMMERS District Public Defender Attorney General and Reporter DONNA ROBINSON MILLER MICHAEL J. FAHEY, II Assistant Public Defender Assistant Attorney General 701 Cherry Street, Suite 300 425 Fifth Avenue North Chattanooga, TN 37402 Nashville, TN 37243 BILL COX District Attorney General JOSEPH A. REHYANSKY Assistant District Attorney General 600 Market Street Chattanooga, TN 37402 Judge: WELLES First Paragraph: In this appeal as of right, the Defendant, David Michael Gamble, appeals his conviction of theft of property valued at over $60,000.00. After a jury trial, he was convicted of both theft of property valued at over $60,000.00 and possession of drug paraphernalia. http://www.tba.org/tba_files/TCCA/gambledm.wpd
STATE OF TENNESSEE VS. ANGELA RENEE GATES Court:TCCA Attorneys: FOR THE APPELLANT: RAYMOND MACK GARNER District Public Defender NATALEE HURLEY (At Trial) Assistant Dist. Public Defender 419 High Street Maryville, TN 37804 GERALD L. GULLEY, JR. (On Appeal) P. O. Box 1708 Knoxville, TN 37901-1708 FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter ERIK W. DAAB Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 MICHAEL L. FLYNN District Attorney General KIRK ANDREWS EDWARD P. BAILEY, JR. Assistant Dist. Attorneys General 363 Court Street Maryville, TN 37804-5906 Judge: RILEY First Paragraph: Defendant, Angela Renee Gates, appeals as of right her convictions by a Blount County jury for the offenses of facilitation of aggravated child abuse and aggravated assault. Honorable D. Kelly Thomas, Jr. sentenced her to concurrent terms of twelve years and six years, respectively. http://www.tba.org/tba_files/TCCA/GATESAR.wpd
STATE OF TENNESSEE VS. GARRY LEE MATHES Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: DEBORAH HUSKINS PAUL G. SUMMERS Assistant Public Defender Attorney General and Reporter JULIE A. RICE MICHAEL J. FAHEY, II P.O. Box 426 Assistant Attorney General Knoxville, TN 37901-0426 425 Fifth Avenue North Nashville, TN 37243 JOE G. CRUMLEY District Attorney General STEVE FINNEY Assistant District Attorney General P.O. Box 38 Jonesborough, TN 37659 Judge: WELLES First Paragraph: The Defendant, Garry Lee Mathes, was indicted for felony reckless endangerment and felony evading arrest and was subsequently found guilty by a Washington County jury of misdemeanor reckless endangerment and felony evading arrest. He was sentenced to eleven months and twenty-nine days for the misdemeanor reckless endangerment conviction and four years for the felony evading arrest conviction. He was also ordered to serve eight years of probation for the felony evading arrest conviction after serving ninety days in jail. The first year of probation was to be served on intensive probation. In addition, as conditions of his probation, the Defendant was ordered to continue to receive mental health treatment, to continue taking his mental health medication as prescribed, to refrain from driving a vehicle unless one of his parents is in the car with him, and to refrain from drinking any alcohol. In this appeal as of right, the Defendant argues that the evidence is insufficient to support the convictions and that the sentence is excessive. http://www.tba.org/tba_files/TCCA/mathesgl.wpd
STATE OF TENNESSEE VS. JAMES ALAN MORGAN Court:TCCA Attorneys: For Appellant: For Appellee: Michael A. Walcher Paul G. Summers Office of the Public Defender Attorney General and Reporter Third Judicial District 1609 College Park Drive Ellen H. Pollack Morristown, TN 37813 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493 Eric D. Christiansen Assistant District Attorney General 109 South Main Street, Suite 501 Greeneville, TN 37743 Judge: WADE First Paragraph: The petitioner, James Alan Morgan, appeals the trial court's denial of post-conviction relief. The issues presented for our review are whether the petitioner's voluntary manslaughter conviction was proper and whether he was denied the effective assistance of counsel, particularly during the sentencing hearing. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/morganja.wpd

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