July 13, 2000
Volume 6 -- Number 110

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
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
08 New Opinion(s) from the Tennessee Court of Appeals
06 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

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Lucian T. Pera
Editor-in-Chief, TBALink


Court:TSC - Workers Comp Panel


For the Appellant:              For the Appellee:

Ronald J. Zuker                 J. Eric Harrison
Vaughan and Zuker               Wimberly, Lawson & Seale
112 Durwood Drive               550 Main Avenue
Knoxville, TN 37922             Knoxville, TN 37901                          


First Paragraph:

This workers' compensation appeal has been referred to the 
Special Workers' Compensation Appeals Panel of the Supreme Court in
accordance with Tennessee Code Annotated S 50-6-225(e)(1) for hearing
and reporting to the Supreme Court of findings of fact and conclusions
of law.


HARRY W. BORDERS, d/b/a RISK MANAGEMENT ASSOCIATES v. RONNIE J. B. CROW, d/b/a RONNIE CROW INSURANCE SERVICE Court:TCA Attorneys: Dennis L. Tomlin, Hendersonville, For Appellant Lee D. Anderson, Nashville, For Appellee Judge: CRAWFORD First Paragraph: This is a suit by employee for compensation allegedly due after discharge under oral contract of employment. Upon finding that the discharge was for cause, the jury nevertheless returned a verdict for the employee for post-discharge compensation. On the employer's appeal, we vacate that part of the judgment awarding post-discharge compensation. http://www.tba.org/tba_files/TCA/bordershar.wpd
JOSEPH SPOTTSWOOD CROWELL v. MAYME MODENA ROBERSON CROWELL OPINION DENYING PETITION FOR REHEARING Court:TCA Judge: SUSANO First Paragraph: The appellee has filed a petition for rehearing pursuant to Tenn. R. App. P. 39. In the first ground of his petition, he asserts that we made a mistake in computing the "[a]djustment re: North Carolina property" reflected on page 8 of our opinion. The appellee is in error in this assertion. We purposely utilized an adjusting figure of $141,915 rather than $140,447.50 -- the latter figure being fifty percent of the value of the marital property share of the North Carolina property. The larger figure was a "plug" figure used to achieve equality in the overall division of the parties' marital property. Since it will be necessary to transfer funds to consummate this division, we deemed it equitable in this case to equally divide the parties' marital estate. The trial court found that equality was equitable and the evidence does not preponderate against this finding. http://www.tba.org/tba_files/TCA/CrowellJS.wpd
RONALD L. DAVIS v. DONAL CAMPBELL, COMMISSIONER, et al. Court:TCA Attorneys: Ronald L. Davis, Only, Tennessee, Pro Se Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, and Pamela S. Lorch, Assistant Attorney General, for the appellee, Donal Campbell, Commissioner, and the Tennessee Department of Correction Judge: CANTRELL First Paragraph: A prison inmate filed an action in the Chancery Court of Davidson County seeking a declaratory judgment that his sentence should be corrected. He sought to proceed on an affidavit showing his inability to pay costs. The Commissioner of Correction moved to dismiss under Rule 12.02(2) and (6), Tenn. R. Civ. P. The Chancery Court of Davidson County dismissed the action because the plaintiff had failed to pay the costs and expenses in prior cases in violation of Tenn. Code Ann. S 41-21-812. The court also ruled that the complaint failed to state a cause of action. We affirm the trial court. http://www.tba.org/tba_files/TCA/davisronaldl.wpd
JIMMY HOBBS v. ANN MARIE HOBBS Court:TCA Attorneys: Jimmy Hobbs, Dunlap, Tennessee, Pro Se. M. Keith Davis, Dunlap, Tennessee, for the appellee, Ann Marie Hobbs Judge: CANTRELL First Paragraph: Two years after a divorce, and eight months after the divorce decree was affirmed on appeal, the former husband filed a pro se motion asking the trial court to review new evidence and to find that he had been defrauded and denied his constitutional rights in the divorce proceeding. The trial court treated the pleading as a motion under Rule 60, Tenn. R. Civ. P., and held that the motion was (1) untimely and (2) not supported by the proof submitted by the movant. We affirm the trial court. http://www.tba.org/tba_files/TCA/hobbsj.wpd
PETER GREGG McKEE v. PENNY MARIE PEARSALL McKEE WITH OPINION DENYING PETITION FOR REHEARING CORRECTED OPINION Court:TCA Attorneys: Robert L. Holloway, Jr., Columbia, Tennessee, for the appellant, Penny Marie Pearsall McKee. Thomas W. Hardin and Darren J. Scoggins, Columbia, Tennessee, for the appellee, Peter Gregg McKee. Judge: KOCH First Paragraph: This appeal involves the financial aspects of a marriage that lasted less than ten years. Both parties sought a divorce and vigorously joined issue over the classification of their property, the division of the marital estate, and the wife's demands for spousal support and attorney's fees. Following a bench trial, the Chancery Court for Maury County declared the parties divorced. The trial court also awarded the parties their separate property, distributed 37% of the marital estate to the wife, and declined to award the wife spousal support. On this appeal, the wife takes issue with the trial court's classification and division of the property and its refusal to award her either spousal support or attorney's fees. http://www.tba.org/tba_files/TCA/Mckeepg.wpd OPINION DENYING PETITION FOR REHEARING http://www.tba.org/tba_files/TCA/McKeepg_reh.wpd
CHERYL S. MURPHY v. CARL D. MARTIN, et al. Court:TCA Attorneys: Cheryl S. Murphy, Antioch, Tennessee, Pro Se Judge: CANTRELL First Paragraph: The trial court dismissed this negligence action for the failure to prosecute. On appeal the plaintiff asserts that she did not have adequate notice that her lawsuit was in jeopardy. We affirm the trial court. http://www.tba.org/tba_files/TCA/murphycs.wpd
IN THE MATTER OF T.S. AND M.S. Court:TCA Attorneys: J.G. Mitchell, III, Murfreesboro, Tennessee, for the appellant, Tina Rena Stacey. Paul G. Summers, Attorney General and Reporter and Douglas Earl Dimond, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services. Judge: COTTRELL First Paragraph: This case involves the termination of parental rights regarding two children who were removed from the parental home by the Department of Children's Services in 1995 and placed in foster care. The mother was ordered to take steps to remedy the deficiencies in the home and made some efforts to comply. After four years, DCS petitioned to terminate the mother's parental rights. The trial court found that the mother had failed to substantially comply with the Plan of Care and terminated the mother's rights on grounds (1) that the conditions that led to the children's removal continued to persist with little likelihood of remedy and (2) that the mother was incompetent to adequately provide for the children. Because DCS has established grounds for termination and has also established that termination is in the best interest of the children, we affirm. http://www.tba.org/tba_files/TCA/TSMS.wpd
CATHY LEE BARNES WILLIAMS v. RODNEY LEE WILLIAMS CORRECTED OPINION Court:TCA Attorneys: Mary Anne Kevil, LaGrange, Kentucky, for the appellant, Cathy Lee Barnes Williams. F. Dulin Kelly and Andy L. Allman, Henderson, Tennessee, for the appellee, Rodney Lee Williams. Judge: LILLARD First Paragraph: This is a post-divorce petition for reduction in alimony. The wife's income had increased because she began working full-time instead of part-time, and her expenses decreased because the parties' son graduated from college and the parties' daughter, living with the wife, was close to obtaining her professional license. The husband was unemployed at the time of the hearing. The trial court granted the husband's petition, finding that husband's decrease in income was temporary, but holding that the wife's increase in income, combined with the decrease in her expenses, constituted a substantial and material change in circumstances sufficient to justify a reduction in alimony. http://www.tba.org/tba_files/TCA/WilliamsCathyL.wpd
STATE OF TENNESSEE v. RONALD WAYNE ASHBY Court:TCCA Attorneys: Larry Wallace, Assistant Public Defender, Fayetteville, Tennessee, for the appellant, Ronald Wayne Ashby, at trial. Robert Massey, Pulaski, Tennessee, for the appellant, Ronald Wayne Ashby, at sentencing and motion for new trial. Paul G. Summers, Attorney General & Reporter, Jennifer L. Bledsoe, Assistant Attorney General, William Michael McCown, District Attorney General, Ann L. Filer, Assistant District Attorney, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant appeals his aggravated burglary conviction. He asserts that insufficient evidence supported the jury verdict, that the trial court improperly admitted evidence of another crime, and that his sentence is excessive. We conclude that sufficient evidence supported the verdict and that the "other crime" evidence was properly admitted. We affirm the sentence. http://www.tba.org/tba_files/TCCA/AshbyRW.wpd
STATE OF TENNESSEE v. JOSEPH S. BURRIS, JR. Court:TCCA Attorneys: Darrell L. Scarlett, Murfreesboro, Tennessee for the appellant, Joseph S. Burris, Jr. Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General, and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant brought extraordinary appeal to challenge trial court's decision to withdraw acceptance of Defendant's guilty plea following clarification of the terms of the plea. We hold that the trial court properly exercised its authority. The case is remanded for continuation of proceedings consistent with this opinion. http://www.tba.org/tba_files/TCCA/burrisjs.wpd
CHARLES D. BURTON v. STATE OF TENNESSEE ORDER First Paragraph: The petitioner, Charles D. Burton, appeals the order of the Davidson County Criminal Court denying his petition for post conviction relief. In March of 1998, the petitioner pled guilty to two (2) counts of kidnapping and one (1) count of aggravated assault and was sentenced as a Career Offender to consecutive terms of five (5) years for each count. Subsequently, the petitioner filed the present petition for post-conviction relief, alleging, inter alia, that trial counsel was ineffective for failing to inform him that his sentences would run consecutively and for failing to explain to him the difference between concurrent and consecutive sentences. After an evidentiary hearing, the trial court denied the petition. After a thorough review of the record before this Court, we affirm the trial court's judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/burtoncharles_ORD.wpd
STATE OF TENNESSEE v. JOYCE NEWMAN Court:TCCA Attorneys: Philip A. Condra, Public Defender, and B. Jeffrey Harmon, Assistant Public Defender, Jasper, Tennessee, for the appellant, Joyce Newman. Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, James Michael Taylor, District Attorney General, and Steven H. Strain, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant pled guilty in Sequatchie County to two counts of selling a Schedule II substance and was sentenced to confinement for four years and six months. After serving six months, she was placed in community corrections. Subsequently, an affidavit was filed by her probation officer, alleging that she had violated her Community Services Behavioral Contract in several ways, including "breaking house arrest." Following a hearing, the trial court agreed that the defendant had violated the house arrest provision of the contract and ordered that she serve the remainder of her sentence with the Department of Correction. http://www.tba.org/tba_files/TCCA/newmanj.wpd
STATE OF TENNESSEE v. MICHAEL S. REID Court:TCCA Attorneys: Tony L. Maples, Nashville, Tennessee attorney for the appellant Michael S. Reid Paul G. Summers, Attorney General & Reporter, Marvin E. Clements, Jr., Assistant Attorney General for the appellee State of Tennessee Judge: SMITH First Paragraph: The Williamson County grand jury indicted the appellant, Michael S. Reid, with one (1) count of driving under the influence, third offense, one (1) count of driving on a revoked license and one (1) count of criminal impersonation. The appellant pled guilty to driving on a revoked license and criminal impersonation and, after a jury trial, was found guilty of driving under the influence, third offense. The trial court sentenced the appellant to concurrent terms of eleven (11) months and twenty-nine (29) days, suspended after service of 180 days, for driving under the influence, third offense and six (6) months, suspended after service of ten (10) days, for driving on a revoked license. http://www.tba.org/tba_files/TCCA/reidmichael.wpd
STATE OF TENNESSEE v. SERIA D. WARD Court:TCCA Attorneys: Timothy V. Potter, Dickson, Tennessee, (on appeal), and William C. Roberts, Jr., Nashville, Tennessee (at trial), for the appellant, Seria D. Ward. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Kim R. Helper, Assistant Attorney General, Victor S. Johnson, III, District Attorney General, and Nicholas A. Bailey, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted in Davidson County of especially aggravated robbery and sentenced to confinement for seventeen years. He appealed the conviction, alleging that the evidence was insufficient to convict him of the offense, that his videotaped confession should have been excluded, and that his trial counsel was ineffective. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wardsd.wpd

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