August 28, 2000 Volume 6 -- Number 136 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 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 10 New Opinion(s) from the Tennessee Court of Appeals 05 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 SUPREME COURT OF TENNESSEE STATE LIST FOR PERMISSION TO APPEAL Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/CERTLIST_0828.wpd JULI BROWN, et al. v. KNOX COUNTY, et al. Court:TCA Attorneys: A. James Andrews and Steven Oberman, Knoxville, Tennessee, for the appellant Juli Brown. Richard T. Beeler, Knox County Law Director; John E. Owings, Chief Deputy Law Director; and Robert R. Davies, Knoxville, Tennessee, for the appellees Knox County and Lillian Bean. Judge: SUSANO First Paragraph: This is an action seeking a declaratory judgment, injunctive relief, monetary damages, and class action certification. The plaintiff, who had earlier been convicted of driving under the influence of an intoxicant ("DUI"), contends that there is no statutory authority for imposing jail fees on individuals found guilty of violating the DUI statute, T.C.A. S 55-10-403, unless the jail fees exceed the amount of the fine imposed by the sentencing court and then only to the extent of the excess. We reject the plaintiff's interpretation of the pertinent provision, T.C.A.S 55-10-403(a)(2), and agree with the trial court's grant of summary judgment to the defendants. http://www.tba.org/tba_files/TCA/BrownJ.wpd GRETCHEN BISH, et al. v. SMITH & NEPHEW RICHARDS, INC., et al. EUGENE HAFFEY, ET AL. v. SOFAMOR DANEK GROUP, INC., ET AL. GRETCHEN BISH, ET AL, Relating to Donald Burton v. SMITH & NEPHEW, ET AL. Court:TCA Attorneys: Roy F. Amedee, Jr., LaPlace, LA; Lisa June Cox, Jackson, TN, for Appellants, Haffey, Bish and Burton Glen Reid, Jr., Memphis, TN; James B. Irwin, Nathan T. Gisclair, Jr., Sally I. Gaden, New Orleans, LA, for Appellees, Smith & Nephew, Inc. Murray Levin, Philadelphia, PA; George Lehner, Washington, D.C., Sam B. Blair, Jr., Memphis, TN, for Appellees Danek Medical, Inc., Warsaw Orthopaedic, Inc. and Sofamor Danek Group, Inc. Judge: CRAWFORD First Paragraph: These are consolidated interlocutory appeals of products liability suits against the manufacturers of spinal fixation devices. The trial court dismissed plaintiffs' negligence per se claims based on the alleged violation of the Food, Drug and Cosmetics Act (FDCA) and the Medical Device Amendments (MDA). In one of the cases, the trial court also granted defendants' motion in limine to exclude all Federal Drug Administration (FDA) regulatory evidence information and documents concerning the fixation devices. Plaintiffs appeal the rulings of the trial court. http://www.tba.org/tba_files/TCA/haffeyeug.wpd GARY WAYNE ROBERTSON v. LORI VANHOOSER ROBERTSON Court:TCA Attorneys: Leroy Phillips, Jr., Chattanooga, Tennessee, for the appellant, Lori Vanhooser Robertson. Sherry B. Paty, Chattanooga, Tennessee, for the appellee, Gary Wayne Robertson. Judge: SUSANO First Paragraph: The Supreme Court granted Mr. Robertson's application for permission to appeal and remanded this case to us "for reconsideration in light of Crabtree v. Crabtree [16 S.W.3d 356 (Tenn. 2000)]." Upon reconsideration, we adhere to our original opinion. http://www.tba.org/tba_files/TCA/RobertsonGW.wpd SUSAN SMYTKA & DONALD SMYTKA v. DAYTON-HUDSON CORPORATION, a Tennessee Corporation, d/b/a TARGET Court:TCA Attorneys: Stephen P. Hale, Joseph M. Koury, Memphis, for Appellants Robert D. Flynn, Minton P. Mayer, Memphis, for Appellee Judge: HIGHERS First Paragraph: This appeal arises out of a complaint for personal injuries sustained when the Plaintiff was struck by a shopping cart in the parking lot of the Defendant's store. The Defendant filed a motion for summary judgment arguing that it did not violate the duty of care owed to the Plaintiff. The trial court granted the motion and entered judgment accordingly. http://www.tba.org/tba_files/TCA/smytkasusan.wpd JOHN B. TIGRETT v. UNION PLANTERS BANK Court:TCA Attorneys: Mark Vorder-Bruegge, Jr., Memphis, For Appellant, Union Planters Bank Richard Glassman, Memphis, For Appellee, John Burton Tigrett Judge: CRAWFORD First Paragraph: Bank, as escrow agent, was authorized by chancery court in a declaratory judgment suit to sell certain stock held in escrow. The stock was sold pursuant to a tender offer at the behest of the secured parties over the objection of the stock owner. Bank and the secured parties asserted in the declaratory judgment suit that there was no readily available market for the stock. The secured parties contended that the tender offer should be accepted. The chancery court's order authorizing sale was affirmed in the Court of Appeals, and the Supreme Court denied the application for permission to appeal. http://www.tba.org/tba_files/TCA/tigrettjoh.wpd TENNESSEE PINE COMPANY v. DAVID AND PATTY VIA Court:TCA Attorneys: Charles M. Agee, Jr., Dyersburg, For Appellants, David and Patty Via Terry Abernathy, Selmer, For Appellee, Tennessee Pine Company Judge: CRAWFORD First Paragraph: A timber company filed a declaratory judgment suit to determine its rights and to declare its contract with a landowner valid and enforceable. The trial court modified the contract and declared the contract as modified valid and enforceable. The landowner has appealed and presents the sole issue for review as whether the trial court erred in not holding the contract unenforceable because of laches. http://www.tba.org/tba_files/TCA/tnpine.wpd UNDERGROUND, INC., d/b/a THE UNDERGROUND, v. THE CITY OF KNOXVILLE, TENNESSEE Court:TCA Attorneys: Jerrold L. Becker and Samuel W. Brown, Knoxville, Tennessee, for appellant, Underground, Inc., d/b/a The Underground. Michael Kelley, Charles W. Swanson and Jason H. Long, Knoxville, Tennessee, for appellee, The City of Knoxville, Tennessee. Judge: FRANKS First Paragraph: The Beer Board summarily suspended Petitioner's licence to sell beer and following a hearing, revoked the permit. On appeal to Chancery Court, the Chancellor upheld the revocation. We affirm. http://www.tba.org/tba_files/TCA/underground.wpd DARLENE VERSA v. POLICY STUDIES, INC. Court:TCA Attorneys: Kenneth O. Fritz, Chattanooga, Tennessee, for the appellant, Darlene Versa. David F. Harrod, Athens, Tennessee; Andrew W. Loewi and Jeanine M. Anderson, Denver, Colorado, for the appellee Policy Studies, Inc. Judge: SUSANO First Paragraph: The plaintiff, an African-American female, brought this employment discrimination action against her employer, Policy Studies, Inc. The employer filed a motion for summary judgment with supporting material. The trial court granted the motion, finding that the plaintiff had failed to demonstrate that there was a genuine issue of material fact on the question of whether the employer had a legitimate non-discriminatory reason for terminating her. We affirm. http://www.tba.org/tba_files/TCA/VersaD.wpd LARRY D. WARD, Individually and On Behalf of the Heirs at Law of RECO ANTONIO WARD, Deceased v. A.C. GILLESS, JR., et al. Court:TCA Attorneys: Marcus Nahon and Bradley G. Kirk, Memphis, Tennessee, for the appellant, Larry D. Ward. Carroll C. Johnson, Memphis, Tennessee, for the appellees, A.C. Gilless, Jr., The Shelby County Sheriff's Office, Ted Fox, and The Shelby County Division of Public Works. Judge: FARMER First Paragraph: This is a dispute between Plaintiff Larry D. Ward and Defendants A.C. Gilless, Jr., The Shelby County Sheriff's Office ("Sheriff's Office"), Ted Fox, and The Shelby County Division of Public Works ("Division of Public Works") regarding the cause of an automobile accident that resulted in the death of Reco Antonio Ward ("Decedent"), Mr. Ward's son. The trial court found that the Decedent was negligent, that the Decedent's own negligence was the proximate cause of his death, and that any negligence on the part of the Defendants was exceeded by the negligence of the Decedent. For the reasons set forth below, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/WardLD.wpd CHRISTOPHER LAMAR WOODS v. ELLIE JOAN WOODS Court:TCA Attorneys: Daniel Loyd Taylor and John N. Bean, Memphis, Tennessee, for the appellant, Christopher Lamar Woods. Kay Farese Turner and William E. Miller, Memphis, Tennessee, for the appellee, Ellie Joan Woods. Judge: FARMER First Paragraph: This appeal arises from a dispute between Plaintiff Christopher Lamar Woods and Defendant Ellie Joan Woods regarding Mr. Woods' financial obligations under the parties' final decree of divorce. The trial court approved the ruling of the arbitrator, which was that Mr. Woods is responsible for the expense of Ms. Woods' "tummy tuck" and breast reduction surgery but is not responsible for the expense of Ms. Woods' Obagi cream treatments, collagen injections, lip implants, and other topical procedures. For the reasons set forth below, we affirm the ruling of the trial court. http://www.tba.org/tba_files/TCA/WoodsCL.wpd STATE OF TENNESSEE v. ARTHUR CLARK Court:TCCA Attorneys: Marvin E. Ballin and Mark A. Mesler, Memphis, Tennessee, for the appellant, Arthur Clark. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Daniel S. Byer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was found guilty by a Shelby County jury on two counts of rape. The second count of the indictment, charging rape of a "physically helpless" victim, was merged by the trial court with the first count, charging forcible rape; and the defendant was sentenced to eight years and three months. In this appeal as of right, he argues the trial court should have forced the State to elect one count of the indictment upon which to proceed. He further challenges the sufficiency of the evidence as to both counts of the indictment. We conclude the State was not required to make an election. We further conclude that the evidence is sufficient to support the defendant's conviction for forcible rape, but not rape of a "physically helpless" victim. Thus, we remand to the trial court for entry of a new judgment in accordance with this opinion. http://www.tba.org/tba_files/TCCA/CLARKA.wpd STATE OF TENNESSEE v. FREDERICK GONZALEZ Court:TCCA Attorneys: John Conners, Franklin, Tennessee, for the appellant, Frederick Gonzalez. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; Ron Davis, District Attorney General; and Jeff Burks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant appeals as of right from his conviction of simple possession of cocaine. He argues that the trial court erred in failing to suppress the evidence used to convict him because the evidence was the fruit of an unlawful seizure. We agree; accordingly, we reverse the Defendant's conviction and remand for further proceedings. http://www.tba.org/tba_files/TCCA/gonzalezf.wpd STATE OF TENNESSEE v. CURTIS D. LEWIS Court:TCCA Attorneys: Michael A. Colavecchio, Attorney, Nashville, Tennessee, for the appellant, Curtis D. Lewis. Paul G. Summers, Attorney General & Reporter, Todd R. Kelley, Assistant Attorney General, and Dan Hamm and Sarah Carran Daughtrey, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Curtis D. Lewis, was convicted of aggravated assault, especially aggravated kidnaping, and spousal rape. The trial court imposed concurrent sentences of four years for the aggravated assault, 15 years for the especially aggravated kidnaping, and four years for the spousal rape. In this appeal of right, the defendant contends that the evidence was insufficient to support the convictions for both especially aggravated kidnaping and spousal rape, that the convictions for both especially aggravated kidnaping and rape violate due process of law, and that the sentence was excessive. We hold that there was no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Lewis.wpd STATE OF TENNESSEE v. BILLY LEE SMITH, JR. Court:TCCA Attorneys: Charles E. Morton, IV, Franklin, Tennessee, for the appellant, Billy Lee Smith, Jr. Paul G. Summers, Attorney General and Reporter; Todd R. Kelley, Assistant Attorney General; Ronald L. Davis, District Attorney General; Lee E. Dryer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted of various offenses, consisting of aggravated burglary, theft, and reckless endangerment, for which he received an effective sentence of twelve years as a Range I standard offender. He timely appealed, challenging the sufficiency of the evidence and claiming that he was denied the right to cross-examine a State's witness, that the court failed to give curative instructions, that the court referred to his being in custody, and that the State improperly called two witnesses. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/smithbl.wpd STATE OF TENNESSEE v. ORLANDO WARD Court:TCCA Attorneys: Arch B. Boyd, III, for the appellant, Orlando Ward. Paul G. Summers, Attorney General & Reporter, Lucian D. Geise, Assistant Attorney General, William L. Gibbons, District Attorney General, Edgar A. Peterson, IV, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: CLARK First Paragraph: Undercover police officers arrested defendant and recovered 2.7 grams of cocaine from his vehicle. Defendant was indicted for possession of cocaine with intent to sell or deliver, a Class C felony. He entered a plea of guilty to the lesser offense of attempt to commit possession of cocaine with intent to sell or deliver, a Class D felony. As a part of the negotiated plea agreement defendant agreed to a sentence of two (2) years as a standard offender. The manner of service was left for determination by the trial court. Defendant now appeals the trial court's finding that he should serve his sentence without the opportunity for alternative sentencing. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/wardoc.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! 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