March 6, 2000
Volume 6 -- Number 033

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.

This Issue (IN THIS ORDER):
 
00 New Opinion(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
07 New Opinion(s) from the Tennessee Court of Criminal Appeals
04 New Opinion(s) from the Tennessee Attorney General (PDF format)
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.

Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.

Lucian T. Pera
Editor-in-Chief, TBALink

						
						
BARRY L. BLACKWELL
VS.
MADISON COUNTY SHERIFF'S DEPARTMENT

Court:TSC - Workers Comp Panel

Attorneys: FOR THE APPELLANT:           FOR THE APPELLEE:

RUSSELL E. REVIERE                      GEORGE L. MORRISON, III
Rainey, Kizer, Butler, Reviere & Bell
209 East Main Street                    201 East Baltimore Street
Jackson, Tennessee 38301                Jackson, Tennessee 38301                         

Judge: LAFFERTY

First Paragraph:

This workers' compensation appeal has been referred to the Special
Worker's Compensation Panel of the Supreme Court in accordance with
Tennessee Code Annotated S 50-6-225(e) for a hearing and reporting to
the Supreme Court of findings of fact and conclusions of law.
This case arises out of heart problems suffered by a sheriff's deputy.
 The trial court found that the plaintiff was entitled to the
statutory presumption in Tennessee Code Annotated S 7-5-201(a)(1)
allowing the court to presume that a law enforcement officer's heart
problems are work-related.  The trial court found that the plaintiff
suffered a 30 percent permanent partial disability to the body as a
whole from this injury.

http://www.tba.org/tba_files/TSC_WCP/BLACKWEL.wpd



DAVID COLEMAN VS. LUMBERMAN'S MUTUAL CASUALTY COMPANY Court:TSC - Workers Comp Panel Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: R. SADLER BAILEY S. NEWTON ANDERSON ANDREW C. CLARKE THOMAS F. PRESTON Law Offices of Bailey & Clarke Spicer, Flynn & Rudstorm, PLLC 6256 Poplar Avenue 80 Monroe Avenue, Suite 500 Memphis, Tennessee 38119 Memphis, Tennessee 38103 Judge: LAFFERTY First Paragraph: At issue in this case is the extent of disability resulting from an injury that occurred on July 7, 1995, when a 200-250 pound hide-a-bed sofa fell on the plaintiff. The trial court found that the plaintiff suffered a work-related injury to his right shoulder on July 7, 1995, and awarded the plaintiff 25 percent permanent partial disability to the body as a whole. However, the court found that the plaintiff did not sustain compensable injuries to his back, reflex sympathetic dystrophy ("RSD") to his right shoulder, or any psychiatric injury as a result of the accident on July 7, 1995. For the reasons below, we affirm the trial court's decision as to both the claims for injury to the shoulder and back but reverse the trial court's determination that the plaintiff suffered no psychiatric injury arising out of this incident. http://www.tba.org/tba_files/TSC_WCP/coleman.wpd
JACKSON MANUFACTURING COMPANY, and LIBERTY MUTUAL INSURANCE COMPANY VS. MARIE LAMBERT, Court:TSC - Workers Comp Panel Attorneys: For the Appellants: For the Appellee: Paul H. Dietrich James F. Logan, Jr. P. O. Box 198 P. O. Box 191 Cleveland, TN 37364 Cleveland, TN 37364 Judge: CATE 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. The plaintiffs, Jackson Manufacturing Company and Liberty Mutual Insurance Company, contend the trial court was incorrect in awarding the defendant, Marie Lambert, 40% permanent partial disability to the body as a whole instead of a lesser amount to a scheduled member on the basis that the disability associated with the shoulder and neck area was not caused by the accident at work. http://www.tba.org/tba_files/TSC_WCP/jackson-mfg.wpd
MARY ALICE MAUPIN VS. METHODIST MEDICAL CENTER OF OAK RIDGE Court:TSC - Workers Comp Panel Attorneys: Judge: THAYER 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. The employer, Methodist Medical Center of Oak Ridge, has appealed from the trial court's ruling awarding the employee, Mary Alice Maupin, certain travel expenses pursuant to the provisions of T.C.A. S 50-6-204. All other issues were settled and approved by the trial court. http://www.tba.org/tba_files/TSC_WCP/maupin_wc.wpd
CRAIG STEPHEN PORTMAN VS. CAMELOT CARE CENTERS, INC. Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Jeffrey P. Boyd J. Anthony Farmer 45 Conrad Drive, Suite 200 P. O. Box 709 P. O. Box 2385 Knoxville, Tn 37901-0709 Jackson, TN 38302 Judge: CATE 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. The only issue for resolution is whether the trial court properly concluded that the injury to the eye of the plaintiff, Craig Stephen Portman, arose out of his employment with the defendant, Camelot Care Center, Inc. We agree with the trial court and affirm. http://www.tba.org/tba_files/TSC_WCP/portman_wc.wpd
PAMELA LANNOM VS. BOARD OF EDUCATION FOR THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Court:TCA Attorneys: JAMES G. THOMAS KENDRA E. SAMSON 150 Fourth Avenue North Nashville, Tennessee 37219 Attorneys for Petitioner/Appellant FRANCIS H. YOUNG Metropolitan Attorney 204 Metropolitan Courthouse Nashville, Tennessee 37201 Attorney for Respondent/Appellee Judge: CANTRELL First Paragraph: The Davidson County Board of Education conducted a termination hearing for a tenured teacher who had been caught on videotape stealing pills from a student's prescription bottle. After the hearing, the teacher was dismissed from her position. She subsequently filed a Petition for Writ of Certiorari, which was dismissed after a Chancery Court hearing. We affirm the Chancery Court. http://www.tba.org/tba_files/TCA/lannomp.wpd
VIRGINIA A. PARKER VS. FIRST AMERICAN CORPORATION Court:TCA Attorneys: WILLIAM L. MOORE, JR. Rogers & Moore 119 Public Square Gallatin, Tennessee 37066 ATTORNEY FOR PLAINTIFF/APPELLANT WENDY LYNNE LONGMIRE 200 Fourth Avenue North Noel Place, Third Floor P. O. Box 198985 Nashville, Tennessee 37219-8985 ATTORNEY FOR DEFENDANT/APPELLEE Judge: CAIN First Paragraph: This appeal involves the jury's assessment of damages arising out of a premises liability case. Finding the plaintiff to be 49% at fault and the defendant to be 51% at fault, the jury awarded to the plaintiff 51% of the damages that it had assessed. On appeal, the plaintiff argues that the jury's damage award is not supported by material evidence in that it does not include damages for pain, suffering and loss of enjoyment of life. We agree with the plaintiff. Therefore, we reverse the jury's award as to damages and remand this case for a new trial only on the issue of damages. http://www.tba.org/tba_files/TCA/parkerva.wpd
CLARICE C. WHITE VS. MARY JO DOZIER and THE MONTGOMERY COUNTY ELECTION COMMISSION Court:TCA Attorneys: JEREMY E. WHITE Faegre & Benson 2200 Norwest Center 90 South Seventh Street Minneapolis, Minnesota 55402-3901 LUTHER WRIGHT, JR. Boult, Cummings, Conners & Berry 414 Union Street, Suite 1600 P. O. Box 198062 Nashville, Tennessee 37219 ATTORNEYS FOR PLAINTIFF/APPELLANT F. EVANS HARVILL Rudolph, Ross, Fendley, Hogan, Moyer & Sykes 107 N. Third Street Clarksville, Tennessee 37040 ATTORNEY FOR DEFENDANTS/APPELLEES Judge: CAIN First Paragraph: This is an appeal by the contestant in an election contest brought pursuant to Tennessee Code Annotated sections 2-17-101 to 2-17-116. The trial court dismissed the complaint specifically holding that the mandate of section 2-17-106, that trial of an election contest "be held no more than fifty days from the date the complaint was filed," was jurisdictional such that after the expiration of this fifty-day period, the trial court lost jurisdiction. http://www.tba.org/tba_files/TCA/whitec2.wpd
RALPH E. WILLIAMS VS. TENNESSEE DEPARTMENT OF EMPLOYMENT SECURITY, COMMISSIONER MARGARET CULPEPPER, AND CHATTANOOGA AREA REGIONAL TRANSPORTATION AUTHORITY ("CARTA") Court:TCA Attorneys: For Appellant For Appellees RALPH E. WILLIAMS PAUL G. SUMMERS Pro Se Attorney General and Reporter Chattanooga, Tennessee Nashville, Tennessee DOUGLAS EARL DIMOND Assistant Attorney General Civil Rights Division Nashville, Tennessee Judge: SUSANO First Paragraph: This is an unemployment compensation case. The Tennessee Department of Employment Security ("the Department") denied the claim of Ralph E. Williams for unemployment benefits, finding that Williams had been guilty of work-related misconduct. After exhausting his administrative remedies to no avail, Williams filed a petition for certiorari in the trial court, which court affirmed the Department's denial of benefits. Williams appeals, essentially arguing: (1) that he was not guilty of work-related misconduct; and (2) that he was deprived of a fair hearing in violation of state and federal law. http://www.tba.org/tba_files/TCA/Williamsre.wpd
STATE OF TENNESSEE VS. TERRY BALLARD a/k/a TERRY BATTLE Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: PETER D. HEIL PAUL G. SUMMERS 810 Broadway, Suite 203 Attorney General & Reporter Nashville, TN 37203 (On Appeal) RUSSELL S. BALDWIN Assistant Attorney General JUDY OXFORD 2nd Floor, Cordell Hull Building 136 Fourth Avenue South 425 Fifth Avenue North P.O. Box 1608 Nashville, TN 37243 Franklin, TN 37065 (At Trial) RONALD DAVIS District Attorney General JEFF BURKS Assistant District Attorney General P.O. Box 937 Franklin, TN 37065-0937 Judge: WOODALL First Paragraph: Defendant Terry Ballard a/k/a Terry Battle was convicted by a Williamson County jury of theft of property worth more than $1,000.00 and criminal impersonation. The trial court subsequently sentenced Defendant as a career offender to consecutive terms of twelve years for theft and six months for criminal impersonation. Defendant challenges his conviction, raising the following issue: whether the trial court erred when it excluded Defendant from his trial. After a review of the record, we reverse the judgment of the trial court and remand this matter for a new trial. http://www.tba.org/tba_files/TCCA/ballardt.wpd
STATE OF TENNESSEE VS. WAYFORD DEMONBREUN, JR. Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CYNTHIA M. FORT PAUL G. SUMMERS Suite 340-M, Washington Square II Attorney General and Reporter 222 Second Avenue North Nashville, TN 37201 KIM R. HELPER Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243 VICTOR S. JOHNSON District Attorney General TOM THURMAN Asst District Attorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1649 Judge: WELLES First Paragraph: The Defendant, Wayford Demonbreun, Jr., appeals as of right from his convictions on a jury verdict of second degree murder and aggravated assault. He challenges only the sufficiency of the convicting evidence. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/demonbreunw.wpd
BILLY MERLE MEEKS VS. STATE OF TENNESSEE Court:TCCA Attorneys: For Appellant: For Appellee: Edward L. Boring John Know Walkup P.O. Box 1025 Attorney General and Reporter Pikeville, TN 37367 450 James Robertson Parkway Nashville, TN 37243-0493 Marvin E. Clements, Jr. Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Thomas D. Hembree Assistant District Attorney General 2nd Floor Lawyers Bldg Jasper, TN 37347 Judge: OGLE First Paragraph: The petitioner, Billy Merle Meeks, appeals the dismissal of his petition for post-conviction relief by the Grundy Circuit Court on February 9, 1998. The petitioner was convicted of aggravated kidnapping, especially aggravated robbery, aggravated burglary, and extortion in the Grundy County Circuit Court in August 1990. The petitioner received an effective sentence of thirty-nine years in the Department of Correction. http://www.tba.org/tba_files/TCCA/meeksbm.wpd
STATE OF TENNESSEE VS. WILLIAM H. MOSS Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: A. Philip Lomonaco Paul G. Summers 112 Durwood Drive Attorney General & Reporter Knoxville, TN 37922 Kimberly J. Dean Deputy Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 James N. Ramsey District Attorney General Janice G. Hicks Assistant District Attorney General 127 Anderson County Courthouse 100 South Main Street Clinton, TN 37716 Judge: GLENN First Paragraph: The defendant, William H. Moss, was convicted pursuant to a guilty plea entered on March 17, 1998, in the Criminal Court for Anderson County of a Class A misdemeanor offense of DUI, third offense. For this conviction, he was sentenced to eleven months and twenty-nine days, to serve 120 days in the Anderson County Jail with the remaining portion of his sentence to be suspended. The defendant appeals as of right from an order entered by the Criminal Court for Anderson County on November 30, 1998, requiring that he be reincarcerated to serve the remainder of his 120-day jail sentence. http://www.tba.org/tba_files/TCCA/mosswh.wpd
STATE OF TENNESSEE VS. CHARLES EDWARD OVERBY Court:TCCA Attorneys: For Appellant: For Appellee: Charles G. Wright, Jr. Paul G. Summers Attorney Attorney General and Reporter 253 East Eleventh Street Chattanooga, TN 37402-4225 Elizabeth B. Marney Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243 Sandra C. Donaghy Assistant District Attorney General P.O. Box 1351 Cleveland, TN 37364 Judge: WADE First Paragraph: The defendant, Charles Edward Overby, was convicted of possession of marijuana, theft under $500.00, theft over $1,000.00, aggravated assault, and second degree murder. The jury acquitted the defendant of aggravated burglary. http://www.tba.org/tba_files/TCCA/overbyce.wpd
JOHNNY RUTHERFORD VS. STATE OF TENNESSEE Court:TCCA Attorneys: For the Appellant: For the Appellee: Johnny Rutherford, Pro Se Paul G. Summers NECXU09-00114033 Attorney General of Tennessee Northeast Correctional Complex and Post Office Box 5000 Ellen H. Pollack Mountain City, Tennessee 38583 Asst Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243 James N. Ramsey District Attorney General and Janice G. Hicks Assistant District Attorney General 127 Anderson County Courthouse 100 North Main Street Clinton, Tennessee 37716 Judge: TIPTON First Paragraph: The petitioner, Johnny Rutherford, appeals as of right the Anderson County Criminal Court's denial of his petition for post-conviction relief. He seeks relief from his 1986 convictions for armed robbery, aggravated kidnapping, and aggravated rape. He was sentenced as a habitual offender to concurrent life sentences for the armed robbery and aggravated rape convictions. He received a forty-year sentence for the aggravated kidnapping conviction, which is consecutive to the life sentences. This court affirmed the convictions for armed robbery, aggravated kidnapping, and aggravated rape on direct appeal but vacated an escape conviction. State v. Johnny Rutherford, No. 176, Anderson County (Tenn. Crim. App. Mar. 15, 1988), app. denied (Tenn. May 31, 1988). http://www.tba.org/tba_files/TCCA/rutherfordj.wpd
STATE OF TENNESSEE VS. CHRISTOPHER WALLS Court:TCCA Attorneys: FOR THE APPELLANT: JOE H. WALKER District Public Defender ROLAND COWDEN (at trial) WALTER B. JOHNSON, II (on appeal) Asst. District Public Defenders P.O. Box 334 Harriman, TN 37748-0334 FOR THE APPELLEE: PAUL G. SUMMERS Attorney General & Reporter ELIZABETH B. MARNEY Asst. Attorney General 425 Fifth Ave. North Nashville, TN 37243-0493 J. SCOTT McCLUEN District Attorney General FRANK HARVEY Asst. District Attorney General P.O. Box 703 Kingston, TN 37763-0703 Judge: WITT First Paragraph: The defendant, Christopher Walls, appeals from the denial of his motion for reduction of sentence by the Criminal Court of Morgan County. The defendant pleaded guilty to escape, a Class E felony, Tenn. Code Ann. S 39-16-601 (1997), and theft of property valued over $1000, a Class D felony, Tenn. Code Ann. S 39-14-103 (1997). http://www.tba.org/tba_files/TCCA/WallsC.wpd
Extraterritorial City Zoning Date: February 28, 2000 Opinion Number: Opinion No. 00-032 http://www.tba.org/tba_files/AG/OP32.pdf
1988 Tenn. Priv. Acts, ch. 144 - Restrictions On Solid Waste Disposal - Commerce Clause Date: February 28, 2000 Opinion Number: Opinion No. 00-033 http://www.tba.org/tba_files/AG/OP33.pdf
Workforce Investment Act of 1998 - Propriety and Constitutionality of H.B. 2389 Date: February 29, 2000 Opinion Number: Opinion No. 00-034 http://www.tba.org/tba_files/AG/OP34.pdf
Release of arrestees who have posted bail Date: March 1, 2000 Opinion Number: Opinion No. 00-035 http://www.tba.org/tba_files/AG/OP35.pdf

PLEASE FORWARD THIS E-MAIL!
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!

For the
Plain Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type:
SUBSCRIBE
3) Leave the body of the message blank

For the HTML Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type:
SUBSCRIBE HTML
3) Leave the body of the message blank

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

To STOP receiving TBALink Opinion-Flash:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type:
UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 2000 Tennessee Bar Association