June 19, 2000 Volume 6 -- Number 094 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 07 New Opinion(s) from the Tennessee Court of Appeals 00 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 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 STATE OF TENNESSEE v. DENNIS RAY GILLILAND Court:TSC Attorneys: Guy T. Wilkerson, District Public Defender, Camden, Tennessee, for the appellant, Dennis Ray Gilliland. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Kim R. Helper, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: We granted appeal in this case to decide the following two issues: (1) whether the trial court abused its discretion in a felony murder prosecution by admitting evidence that the appellant was involved in a prior shooting of two individuals in order to "tell the full story" of the current prosecution; and (2) whether the State's withdrawal of its notice seeking the death penalty was also an implicit withdrawal of the State's notice seeking life imprisonment without parole. We hold that although the trial court abused its discretion in admitting evidence of the other killings, the error did not affirmatively affect the outcome of the trial. We also hold that the State's withdrawal of its notice seeking the death penalty is, without more, also a withdrawal of its notice seeking life without parole. Accordingly, the judgment of the Court of Criminal Appeals is affirmed in part as modified and reversed in part. The appellant's conviction is sustained, and pursuant to Tennessee Code Annotated section 39-13-208(c), the appellant's sentence is modified to imprisonment for life. http://www.tba.org/tba_files/TSC/Gilliland.wpd JACOB E. WARREN v. AMERICAN HOLDING COMPANY d/b/a WILSON SPORTING GOODS, and LUMBERMENS MUTUAL CASUALTY COMPANY Court:TSC - Workers Comp Panel Attorneys: Bryan Essary, Nashville, Tennessee, for the appellant, American Holding Company d/b/a Wilson Sporting Goods, and Lumbermens Mutual Casualty Company. Ronald Thurman, Cookeville, Tennessee, for the appellee, Jacob E. Warren. Judge: GRAY 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 a hearing and reporting of finding of fact and conclusions of law to the Supreme Court. The sole issue on appeal is whether the trial court's award of 400 weeks of permanent total disability benefits is contrary to Tenn. Code Ann. S 50-6-207(4)(A)(i), which cuts off permanent total benefits when the worker reaches 65 years of age provided the compensable injury occurred before the worker reached age 60. We hold that the trial court's award of 400 weeks exceeds the number of weeks payable under Tenn. Code Ann. S 50-6-207(4)(A)(i). For the reasons set forth below, the judgment of the trial court is modified to reflect an award of 195 weeks of permanent total disability benefits. http://www.tba.org/tba_files/TSC_WCP/warrenjacob.wpd SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/CERTLIST_0619.wpd WILLIAM ALLEN, et al. v. WILLIAM LLOYD Court:TCA Attorneys: William Allen, Yusuf El-Amin, Kirk Freeman, Daniel Muhammad, and R. W. Farid Abd Al Rafi, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Terri L. Bernal, Assistant Attorney General, Nashville, Tennessee, for the appellee, William Lloyd Judge: CANTRELL First Paragraph: Nine prisoners brought a suit in forma pauperis against an employee of the Department of Correction for interfering with Muslim congregational prayers. The trial court dismissed their complaint for failure to comply with Tenn. Code. Ann. S 41-21-805 (requirement of affidavits detailing all previous lawsuits filed by plaintiffs) and Tenn. Code. Ann. S 41-21-806 (requirement that administrative remedies be exhausted before filing suit). We affirm on the basis of the plaintiffs' failure to comply with Tenn. Code. Ann. S 41-21-805. http://www.tba.org/tba_files/TCA/allenw.wpd CORA B. CANTRELL, et al. v. KNOX COUNTY BOARD OF EDUCATION, et al. Court:TCA Attorneys: Herbert S. Moncier and Ann C. Short, Knoxville, Tennessee, for the appellants, Cora B. Cantrell, Joan I. Dozier, Sandra C. Barnard, Margaret H. Schaefer, and Mildred A. Morrell. Richard T. Beeler and Mary Ann Stackhouse, Knoxville, Tennessee, for the appellees, Knox County Board of Education and Allen Morgan. Judge: GODDARD First Paragraph: This appeal arises from a hearing in Circuit Court on a petition for certiorari, which sought review of the actions of the Knox County Board of Education and the Superintendent of the Department of Public Instruction. The Court held that the Board and the Superintendent acted arbitrarily in its dismissal of the five teacher aides and held that the aides were entitled to back pay and benefits for the 1993-1994 Knox County School year, as well as prejudgment interest. On appeal, the teacher aides take issue with the Circuit Court's decision, insisting that they have causes of action under the Education Truth in Reporting and Employee Protection Act and for retaliatory discharge and that they had a reasonable expectation of retaining employment with the school system had they not been terminated for refusing training to perform catheterizations on students. We affirm the Circuit Court's judgment with respect to its decision on the teacher aides' claims under the Education Truth in Reporting Act and retaliatory discharge, but remand for further proceedings on the issue of whether the aides are entitled to back pay, benefits, and interest for more than the 1993-1994 school year. http://www.tba.org/tba_files/TCA/cantrellcor.wpd LINDA MARIE CLINE v. RICHARD ALLEN CLINE, JR. Court:TCA Attorneys: Delilah A. Speed, Columbia, For Appellant Virginia Lee Story, Franklin, For Appellee Judge: CRAWFORD First Paragraph: This is a divorce case involving the question of child custody. The trial court provided for joint custody with primary physical custody to Mother. Father has appealed. http://www.tba.org/tba_files/TCA/clinelin.wpd EDNA J. KELLEY, et al. v. JAMES C. TOMLINSON, et al. Court:TCA Attorneys: G. Kline Preston, IV and Lawrence D. Wilson, Nashville, Tennessee, for the appellants, Edna J. Kelly and Jeanette M. Coke. John E. Herbison, Nashville, Tennessee, for the appellees, James C. Tomlinson and Charles McKelvey. Darrell G. Townsend, Nashville, Tennessee, for the appellee, Dan R. Alexander. Judge: CANTRELL First Paragraph: The trial court granted summary judgment to the defendants in this malicious prosecution case. Because we find that the plaintiffs raised genuine issues of material fact in regard to the existence of probable cause in the antecedent defamation case, we reverse. http://www.tba.org/tba_files/TCA/kelleyej.wpd KNOX LOUDON CORPORATION v. TOWN OF FARRAGUT, TENNESSEE Court:TCA Attorneys: David L. Buuck of Knoxville, Tennessee, for the Appellant Knox Loudon Corporation David E. Rodgers of Oak Ridge, Tennessee, for the Appellee, Town of Farragut, Tennessee Judge: GODDARD First Paragraph: This is a suit seeking damages under the theory of inverse condemnation by Knox Loudon Corporation against the Town of Farragut, in connection with Knox Loudon's improvement of certain property by erecting condominiums. The theory of the suit is that the Town of Farragut, by insisting that the plan for the project include a dedication of one portion for a roadway and another for a hiking and bike trail, was a taking entitling Knox Loudon to compensation. The Trial Court sustained Farragut's motion for summary judgment, resulting in this appeal. We affirm. http://www.tba.org/tba_files/TCA/knoxlou.wpd PATRICK J. MCREDMOND, JR., et al. v. ESTATE OF ANDREW MARIANELLI, et al. Court:TCA Attorneys: G. Thomas Nebel, John I. Harris, III, Jeffrey T. Loy and Kenneth R. Jones, Jr., Nashville, Tennessee, for the appellants, Patrick J. McRedmond, Jr. and Monica McRedmond Terry. Cyrus L. Booker and Charlnette A. Richard, Nashville, Tennessee, for the appellees, Estate of Andrew Marianelli, Walter Marianelli, David Manning, Edwin S. Pyle and Gordon Ferragina John P. Branham and Kathryn E. Barnett, Nashville, Tennessee, for the appellee Milano Corporation. Judge: CANTRELL First Paragraph: Minority shareholders in a Kentucky apparel manufacturing company brought this suit in the name of the corporation. The plaintiffs claimed an agreement approved by the Board of Directors siphoned off a significant portion of the corporation's revenues to another entity in which the defendant directors had an interest. The trial court dismissed the derivative claim on summary judgment, finding that the action of the Board was not voidable under Kentucky's conflict of interest law. It also found that the directors did not violate their fiduciary duty to the corporation. We affirm the judgment on the conflict of interest issue; we reverse as to certain officers and directors on the fiduciary duty issue. http://www.tba.org/tba_files/TCA/mcredmondpj.wpd BENNY SKINNER v. NANNIE BELL Court:TCA Attorneys: Nannie Bell, Clarksville, Tennessee, Pro Se. Roger A. Maness, Clarksville, Tennessee, for the appellee, Benny Skinner. Judge: CANTRELL First Paragraph: A Clarksville landowner asked the court to order a neighboring homeowner to remove a fence that he claimed encroached on his property. The homeowner claimed that she had considered the disputed property to be part of her yard for over twenty years. The trial court granted the plaintiff's demand because the deeds presented to the court showed that the plaintiff had title to the disputed property and the defendant did not. We affirm. http://www.tba.org/tba_files/TCA/skinnerb.wpd 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! 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