April 7, 2000 Volume 6 -- Number 053 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):   01 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 06 New Opinion(s) from the Tennessee Court of Appeals 03 New Opinion(s) from the Tennessee Court of Criminal Appeals 11 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 TROY C. LEDBETTER VS. BATESVILLE CASKET COMPANY Court:TSC Judge: PER CURIAM First Paragraph: This case is before the Court upon motion for review of Troy C. Ledbetter pursuant to Tenn. Code Ann. S 50-6-225(e)(5)(B), 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 motion for review is not well taken and should be denied; and ... http://www.tba.org/tba_files/TSC/Ledbetter.wpd CLARA SCRUGGS VS. WAL-MART STORES, INC. Court:TSC - Workers Comp Panel Attorneys: FOR THE APPELLEE: FOR THE APPELLANT: GAYDEN DREW, IV JEFFREY P. BOYD Drew & Martindale, PLLC B. CHADWICK RICKMAN 470 North Parkway, Suite C Allen, Kopet & Boyd, PLLC Jackson, Tennessee 38305 45 Conrad Drive, Suite 200 P.O. Box 2385 Jackson, Tennessee 38302 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. The trial court, in its findings of fact and conclusions of law, determined that the plaintiff had a gradually occurring injury, and the statute of limitations was not tolled when she gave sufficient notice on September 29, 1997, the date of her lawsuit. Likewise, the trial court found the plaintiff suffered a thirteen (13) percent permanent partial disability to each upper extremity. We will determine if the record supports the trial court's conclusions. http://www.tba.org/tba_files/TSC_WCP/Scruggs.wpd FARMERS & MERCHANTS BANK, A Tennessee Corporation VS. MIDWAY SUPPLY COMPANY, INC., A Tennessee Corporation Court:TCA Attorneys: Jerry W. Hamlin, Ashland City, Tennessee, for the appellant Farmers & Merchants Bank Marks, Shell & Maness; Roger A. Maness, Clarksville, Tennessee, for the appellee, Midway Supply Co., Inc. Judge: CRAWFORD First Paragraph: This appeal involves a suit to recover money advanced by a construction lender to a building supply company to pay for building supplies which the bank mistakenly thought had been delivered to the bank's debtor. Plaintiff, Farmers & Merchants Bank (Bank) sued defendant, Midway Supply Company, Inc., (Midway) to recover the sums advanced after Midway failed to deliver the supplies and applied the advanced funds to pay other accounts of the Bank's debtor. From the judgment of the Circuit Court awarding judgment to Bank for the advanced funds less certain credit, Midway has appealed. http://www.tba.org/tba_files/TCA/farmersmer.wpd DORIS HUTTCHSON VS. DONALD COLE, M.D., et al. Court:TCA Attorneys: Thomas W. Lawrence, Jr., and Richard F. Russell, Nashville, Tennessee, for Appellant Donald Cole, M.D. William C. Moody, Jr., Nashville, Tennessee, for Appellant National Medical Hospital of Wilson County, Inc. F. Michie Gibson, Jr., and T.J. Cross, Nashville, Tennessee, for Appellee, Doris Huttchson. Judge: FARMER First Paragraph: Defendants Donald Cole, M.D., and National Medical Hospital of Wilson County, Inc., appeal the trial court's nonfinal order denying their motions for summary judgment in this medical malpractice action brought against them by Plaintiff/Appellee Doris Huttchson. We granted the Defendants' application for an extraordinary appeal to determine the sole issue of whether Huttchson's cause of action is barred by the one-year statute of limitations applicable to medical malpractice actions. Based upon the undisputed record evidence, we conclude that Huttchson's action against Dr. Cole and the Hospital is time-barred, and we reverse the trial court's order denying their motions for summary judgment. http://www.tba.org/tba_files/TCA/huttchsond.wpd STATE OF TENNESSEE ex rel. JEFFREY G. JONES, et al., VS. BYRON LOOPER Court:TCA Attorneys: Jeffrey G. Jones, David Day, and William D. Birdwell, Cookeville, Tennessee, for the appellees, State of Tennessee ex rel. Jeffrey G. Jones, et al. Chantal M. Eldridge, Cookeville, Tennessee for the appellant, Byron Looper. Judge: COTTRELL First Paragraph: Byron Looper, the former Property Assessor of Putnam County, appeals the default judgment entered against him in ouster proceedings brought pursuant to Tenn. Code Ann. S 8-47-101, et seq. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/LooperB.wpd KARUNA T. SONI, et al. VS. KENNETH P. TULLY, et al. Court:TCA Attorneys: Michael Parks Mills and William Bryan Smith, Nashville, Tennessee, for the appellants, Kenneth P. Tully and Dorothy S. Tully. Joseph Y. Longmire, Hendersonville, Tennessee, for the appellees Karuna T. Soni and Sushil K. Soni. Judge: KOCH First Paragraph: This extraordinary appeal involves an automobile collision. The driver of the automobile that was struck from behind and her husband filed a negligence action in the Circuit Court for Davidson County against the driver and record owner of the automobile that struck her. The trial court granted the plaintiffs' motion for partial summary judgment on the issue of the driver's liability. The defendants applied for an extraordinary appeal after the trial court declined to grant them an interlocutory appeal. We have determined this is a proper case for an extraordinary appeal and that the plaintiffs are not entitled to a partial summary judgment because of the existence of material factual disputes regarding liability. Accordingly, pursuant to Tenn. Ct. App. R. 10(b), we reverse the partial summary judgment and remand the case for further proceedings. http://www.tba.org/tba_files/TCA/Sonikt.wpd TAMCO SUPPLY, a Tennessee partnership composed of THOMAS LEON CUMMINS AND JOANN C. CUMMINS VS. TOM POLLARD, ET AL. Court:TCA Attorneys: Earl F. Johnson, John W. Palmer, Dyersburg, For Appellant Karyn C. Bryant, Nashville, For Appellees Judge: CRAWFORD First Paragraph: This appeal involves a dispute as to an erroneous description of real estate in a warranty deed. Because the description embraced property not owned by defendants-sellers, plaintiff-buyer seeks rescission and damages for the breach of the covenant of seisin. The facts are undisputed, and the trial court entered summary judgment for defendants holding that the transaction was a sale in gross, and the deficiency in the property was not sufficient to "shock the conscience" of the court. Plaintiff has appealed. http://www.tba.org/tba_files/TCA/TAMCOSUP.wpd VICTORIA INSURANCE COMPANY VS. ANNIE HAWKINS, et al. Court:TCA Attorneys: Roane Waring III, Memphis, For Appellant Kendall Reeves, Memphis, For Appellees, Annie Hawkins and Arnold Hawkins Judge: CRAWFORD First Paragraph: Plaintiff, Victoria Insurance Company, filed this declaratory judgment suit against defendants, Annie Hawkins, Arnold Hawkins, individually and as parents or legal guardians of Terrell Hawkins, Marlus Taylor and Tammy Terry to determine coverage under the uninsured motorist provision of a liability insurance policy issued to defendant, Arnold Hawkins, and applicable to defendants, Annie Hawkins and Terrell Hawkins. The Hawkins vehicle collided with a vehicle driven by defendant, Marlus Taylor, and owned by defendant, Tammy Terry, after Marlus Taylor was shot from another motor vehicle by unknown assailant. From the order of the trial court denying Victoria's motion for summary judgment and granting judgment to the defendants, Victoria has appealed. http://www.tba.org/tba_files/TCA/VICTOR~1.wpd STATE OF TENNESSEE VS. ROBERT H. HARPER, JR. Court:TCCA Attorneys: Terry L. Wood, Corinth, Mississippi, for the appellant, Robert H. Harper, Jr. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee Judge: TIPTON First Paragraph: The defendant, Robert H. Harper, Jr. appeals upon a certified question of law his conviction in the Hardin County Circuit Court for felonious possession of marijuana for which he received a three- year sentence as a Range I, standard offender and a fine of five thousand dollars. The defendant asserts that the stop of his vehicle was not based upon reasonable suspicion and that the subsequent warrantless search was unlawful. We conclude that the stop and search were improper, and we reverse the judgment of conviction and dismiss the case. http://www.tba.org/tba_files/TCCA/HARPERRH.wpd RONALD C. MITCHELL VS. STATE OF TENNESSEE Court:TCCA Attorneys: D. Michael Dunavant, Ripley, Tennessee, for the appellant, Ronald C. Mitchell. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Mark Davidson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: Ronald C. Mitchell appeals from the Lauderdale County Circuit Court's denial of his petition for post-conviction relief following an evidentiary hearing. He contends that he is entitled to post- conviction relief from a conviction for felonious possession of cocaine because (1) he received the ineffective assistance of trial counsel, (2) he received the ineffective assistance of appellate counsel, (3) the convicting trial court's admission of a pager and money violated his right to due process, and (4) the systematic exclusion of African-Americans from the position of grand jury foreperson violated his right to equal protection. We affirm the trial court's denial of the petition. http://www.tba.org/tba_files/TCCA/MITCHE~1.wpd JEFFERY L. VAUGHN VS. STATE OF TENNESSEE Court:TCCA Attorneys: Stephen D. Scofield, Dyersburg, Tennessee, for the appellant, Jeffery L. Vaughn. Michael Moore, Solicitor General of Tennessee; J. Ross Dyer, Assistant Attorney General of Tennessee; C. Phillip Bivens, District Attorney General; and James E. Lanier, Assistant District Attorney, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: Jeffery L. Vaughn appeals from the Dyer County Circuit Court's denial of his petition for post- conviction relief following an evidentiary hearing. He contends that he was deprived of his constitutional right to a fair trial because jurors allegedly overheard a bench conference regarding his prior criminal record. He also contends that he received the ineffective assistance of counsel at trial due to his counsels' failure to inform him of the correct sentencing range, to have the cocaine independently weighed, to present the testimony of his drug counselor, and to move for an acquittal at the end of the proof. We affirm the trial court's denial of the petition for post-conviction relief. http://www.tba.org/tba_files/TCCA/VAUGHNJL.wpd Permanent Disqualification from Office Date: March 28, 2000 Opinion Number: Opinion No. 00-055 http://www.tba.org/tba_files/AG/OP55.pdf Responsibility for FBI R-84 Disposition Report Date: March 31, 2000 Opinion Number: Opinion No. 00-056 http://www.tba.org/tba_files/AG/OP56.pdf Teachers' organizations - limitations on access to school communication media Date: March 31, 2000 Opinion Number: Opinion No. 00-057 http://www.tba.org/tba_files/AG/OP57.pdf Publication of Criminal Court Records on the Internet. Date: March 31, 2000 Opinion Number: Opinion No. 00-058 http://www.tba.org/tba_files/AG/OP58.pdf Local Option Budgeting Law and Private Act Date: April 3, 2000 Opinion Number: Opinion No. 00-059 http://www.tba.org/tba_files/AG/OP59.pdf Constitutionality of Limiting Minor's Access to Video Games Date: April 3, 2000 Opinion Number: Opinion No. 00-060 http://www.tba.org/tba_files/AG/OP60.pdf Worthless Checks, Tenn. Code Ann. S 39-14-121 Date: April 3, 2000 Opinion Number: Opinion No. 00-061 http://www.tba.org/tba_files/AG/OP61.pdf Exclusion from Ad Valorem Taxation of Personal Property of Individuals Date: April 3, 2000 Opinion Number: Opinion No. 00-062 http://www.tba.org/tba_files/AG/OP62.pdf Status of Ambulatory Surgical Treatment Center License After Closure Date: April 3, 2000 Opinion Number: Opinion No. 00-063 http://www.tba.org/tba_files/AG/OP63.pdf Legislator as State Employee Date: April 3, 2000 Opinion Number: Opinion No. 00-064 http://www.tba.org/tba_files/AG/OP64.pdf Authority of Limited Insurance Representative under Tenn. Code Ann. S 56-6-138 Date: April 3, 2000 Opinion Number: Opinion No. 00-065 http://www.tba.org/tba_files/AG/OP65.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! 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