September 12, 2000 Volume 6 -- Number 145 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 04 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 02 New Opinion(s) from the Tennessee Court of Appeals 04 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 THEODORE DAVIS v. U. S. COAL INC. Court:TSC - Workers Comp Panel Attorneys: Linda J. Hamilton Mowles, of Knoxville, Tennessee, for the Appellant, U. S. Coal, Inc. Charles B. Sexton, of Oneida, Tennessee, for the Appellee, Theodore Davis. 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 appellant-employer appealed the trial court's ruling awarding appellee-employee 32% permanent partial disability to the body as a whole. Appellant argues the trial court was in error in accepting certain medical testimony when the doctor failed to follow AMA Guides in conducting examination and evaluation of employee. Judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC_WCP/davist.wpd CLAYTON D. ELLER v. LORAM MAINTENANCE OF WAY, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Philip D. Burnett, Crossville, Tennessee, for the appellant, Clayton D. Eller. Joe M. Looney, Crossville, Tennessee, for the appellees, Loram Maintenance of Way, et al. Judge: LAFFERTY First Paragraph: This workers' compensation appeal from the Cumberland County Circuit Court 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 Cumberland County Circuit Court dismissed the plaintiff's claim for Tennessee workers' compensation benefits on the basis that the plaintiff affirmatively elected to seek workers' compensation benefits in the states of Maryland and Pennsylvania. After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment. http://www.tba.org/tba_files/TSC_WCP/ellercd.wpd EDDIE RAY HARPER v. LOCKHEED MARTIN ENERGY SYSTEMS, INC. Court:TSC - Workers Comp Panel Attorneys: Roger L. Ridenour, Clinton, Tennessee, for the appellant, Eddie Ray Harper. Christopher H. Hayes, Oak Ridge, Tennessee, for the appellee, Lockheed Martin Energy Systems, Inc. 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 appellant-employee appealed the trial court's award of 12.5% permanent disability to the body as a whole which was based on a finding the employee had made a meaningful return to work resulting in capping the award at two and one-half times the medical impairment under T.C.A. S 50-6- 241(a)(1). On appeal, appellant argues he did not return to work for the "pre-injury employer" and the six times medical impairment under subsection (b) should control the award. Judgment of the trial court is affirmed as the new employer was a successor or substitute employer for the original employer by reason of a change of contractors at the U.S. government facility. http://www.tba.org/tba_files/TSC_WCP/harper.wpd MERVIN REED v. ABB COMBUSTION ENGINEERING, INC. Court:TSC - Workers Comp Panel Attorneys: Thomas L. Wyatt, Chattanooga, Tennessee, for the appellant, Mervin Reed. Jeffrey L. Cleary and Michael A. Kent, Chattanooga, Tennessee, for the appellee, ABB Combustion Engineering, Inc. Judge: LAFFERTY 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)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the plaintiff/appellant asserts that the trial court erred in basing plaintiff's award of permanent disability benefits on a percentage of impairment other than that supported by the medical evidence at trial. After a complete review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment. http://www.tba.org/tba_files/TSC_WCP/reedm.wpd CGR INVESTMENTS, INC., v. HACKNEY PETROLEUM, INC. Court:TCA Attorneys: Barry K. Maxwell, Knoxville, Tennessee, for appellant, Hackney Petroleum, Inc. Arthur G. Seymour, Jr., Knoxville, for appellee, CGR Investments, Inc. Judge: FRANKS First Paragraph: In a dispute over the meaning of a notice of termination provision in the Lease, the Trial Judge ruled the notice given did not comply with the Lease and awarded damages for breach. We reverse. http://www.tba.org/tba_files/TCA/cgrinvest.wpd MAELEA TSIA MORRISON GALYON, v. TED DANIEL GALYON Court:TCA Attorneys: Martha Meares and Anne M. Stair, Maryville, Tennessee, for appellant, Ted Daniel Galyon. Perry Paine and David M. Boyd, Maryville, Tennessee, for appellee, Maelea Tsia Morrison Galyon. Judge: FRANKS First Paragraph: In this divorce action, the husband appeals the custody award of the minor child to the wife, and the distribution of marital property. We affirm. http://www.tba.org/tba_files/TCA/galyonm.wpd STATE OF TENNESSEE v. SHAWN DONTAY BEARD Court:TCCA Attorneys: Billy K. Tollison, III, McMinnville, Tennessee (on appeal) and Robert Peters, Winchester, Tennessee (at trial) for the appellant, Shawn Dontay Beard. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William M. Locke, District Attorney General; and Thomas J. Miner, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The Defendant, Shawn Dontay Beard, appeals as of right following his conviction in the Warren County Circuit Court. Defendant was convicted by a jury for sale of a Schedule II controlled substance, cocaine, in an amount of less than point five (0.5) grams within one thousand feet of school grounds. Defendant argues there was insufficient evidence regarding his identity to support his conviction. He further challenges the length of his sentence on the grounds that the State raised the felony classification of his offense pursuant to the Drug-Free School Zone Act but failed to provide the Defendant with notice of enhancement. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/beardsd.wpd ALVIN FEATHERSTONE v. STATE OF TENNESSEE Court:TCCA Attorneys: Alvin Featherstone, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson; District Attorney General, and Pam Anderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Alvin Featherstone, appeals as of right from the trial court's denial of post-conviction relief without an evidentiary hearing. He pleaded guilty to possession of cocaine for resale on October 15, 1998. He was sentenced to eight years imprisonment, to be served in the Community Corrections program. It appears that the Defendant's Community Corrections sentence was revoked, and he was resentenced on March 24, 1999 to an eight year sentence to be served in the Department of Correction. On December 8, 1999, the Defendant filed a petition for post-conviction relief, alleging that the trial court erred by revoking his Community Corrections sentence and resentencing him and further alleging that he was not informed he had the right to appeal the revocation and resentencing. The trial court summarily dismissed the petition as barred by the statute of limitations. We hold that the petition was not barred by the statute of limitations. Accordingly, we reverse the judgment of the trial court dismissing the petition for post-conviction relief. http://www.tba.org/tba_files/TCCA/featherstonea.wpd STATE OF TENNESSEE v. STEJANA HOLDER Court:TCCA Attorneys: Cynthia M. Fort, Nashville, Tennessee (on appeal) and Glenn R. Funk, Nashville, Tennessee (at trial) for the appellant, Stejana Holder. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth T. Ryan, Assistant Attorney General, Victor S. (Torry) Johnson, III, District Attorney General, and Phil Wehby, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: The appellant, Stejana S. Holder, was convicted of one count of aggravated assault, one count of resisting arrest, and one count of disorderly conduct. The Davidson County Criminal Court imposed an effective sentence of three years to serve sixty days in the workhouse followed by two years probation. On appeal, the appellant alleges that the trial court erred by denying total probation. Upon review, we find no error and affirm the sentence of the Davidson County Criminal Court. http://www.tba.org/tba_files/TCCA/holderstejana.wpd STATE OF TENNESSEE v. STEPHEN MULLICAN Court:TCCA Attorneys: L. Scott Grissom, McMinnville, Tennessee, for the appellant, Stephen Mullican. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, and Tom P. Thompson, District Attorney General Pro Tem, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Stephen Mullican, appeals the Warren County Circuit Court's denial of his motion for the correction or reduction of his two-year sentence of incarceration imposed pursuant to his conviction of reckless endangerment. The appellant asserts that the trial court erroneously refused to apply pretrial jail credits to the appellant's sentence pursuant to Tenn. Code Ann. S 40-23-101 (1997). Following a review of the record and the parties' briefs, we vacate the judgment of the trial court and dismiss the instant appeal. http://www.tba.org/tba_files/TCCA/mullicanst.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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