January 11, 2001 Volume 7 -- Number 008 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 06 New Opinion(s) from the Tennessee Court of Appeals 02 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 LINDA BOGLE v. TOSHIBA AMERICA CONSUMER PRODUCTS, INC. AND THE TRAVELERS INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: Terry L. Hill, Manier & Herod, Nashville, TN, for the appellant Toshiba America Consumer Products, Inc., et al. M. Reid Estes, Jr., Jennifer A. Lawrence, Stewart, Estes, & Donnell, Nashville, TN, for the appellee Linda Bogle Judge: TURNBULL First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Panel in accordance with the Tenn. Code Ann. S50-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. In this case, the defendant-employer contends (1) that the evidence does not support the trial court's finding that the plaintiff-employee's closed head injury and herniated cervical disc arose out of and in the course of her employment with the defendant, (2) that the trial court erred in determining the plaintiff's permanent partial impairment of 52.5%, and (3) that the trial court erred in determining that the defendant is entitled to an offset for the net short-term disability benefits provided to the plaintiff rather than for the gross amount that was paid by the provider. As discussed below, the Panel concludes that the judgment of the trial court should be affirmed in all respects. http://www.tba.org/tba_files/TSC_WCP/boglelinda.wpd GREGORY CHILDRESS VS. WINSETT-SIMMONDS, INC. and USF&G; INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: Terry R. Clayton Blakeley D. Matthews Nashville, Tennessee Cornelius & Collins Nashville, Tennessee Judge: BROTHERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The appellant-employee argues that the employee proved by a preponderance of the evidence that he sustained a work-related injury which caused him permanent injury. The employee also argues that the trial court erred by ordering the appellant to pay the cost of the entire transcript. The employer argues that the trial court erred in not allowing the employer to be reimbursed for previously paid workers' compensation benefits. The employer also argues that the trial court was correct in its determination of what items were to be included in the appellate court record. As discussed below, the panel has concluded that the trial court should be affirmed on all points. http://www.tba.org/tba_files/TSC_WCP/childressgregory.wpd HAROLD W. FERRELL, JR. v. APAC-TENNESSEE, INC. and CIGNA PROPERTY & CASUALTY INSURANCE CO. Court:TSC - Workers Comp Panel Attorneys: William Joseph Butler and Frank D. Farrar, LaFayette, TN, for the Appellee Harold W. Ferrell, Jr. Tyree B. Harris, IV, and Alan D. Johnson, Nashville, TN, for the Appellants APAC-Tennessee, Inc. and Cigna Property and Casualty Insurance Company Judge: TURNBULL First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. section 50-6-225 (e)(3) for hearing and reporting findings of fact and conclusions of law. The employer contends the trial court erred in finding that the plaintiff suffered a vocational disability of 12% to the body as a whole from his back injury, and an additional 15% to the left arm from his wrist injury which occurred two months later. As discussed below, the panel concludes that the judgment of the trial court should be affirmed. The panel further concludes that the appeal was frivolous or for the purpose of delay and remands the case to the trial court for imposition of appropriate penalty. http://www.tba.org/tba_files/TSC_WCP/ferrell199902260.wpd HAROLD W. FERRELL, JR. v. APAC-TENNESSEE, INC. AND CIGNA PROPERTY & CASUALTY INSURANCE CO., Court:TSC - Workers Comp Panel Attorneys: Tyree B. Harris, IV, and Alan D. Johnson, Nashville, TN, for the Appellants APAC-Tennessee, Inc. and Cigna Property and Casualty Insurance Company William Joseph Butler and Frank D. Farrar, LaFayette, TN, for the Appellee Harold W. Ferrell, Jr. Judge: TURNBULL First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. section 50-6-225 (e)(3). The employer contends this claim for work related hearing loss is time barred by notice and statute of limitations provisions, and that the award is excessive. We conclude that notice was timely given, suit was timely filed, and the award is supported by the evidence. http://www.tba.org/tba_files/TSC_WCP/ferrell2000.wpd EDWIN L. JAVIUS v. VICTORIA JAVIUS Court:TCA Attorneys: Michael Louis Heyman, Nashville, Tennessee, for the appellant, Edwin L. Javius. Patricia A. McDade, Franklin, Tennessee, for the appellee, Victoria Javius. Judge: CANTRELL First Paragraph: After a stormy and sometimes violent marriage, the trial court awarded a divorce to the wife, divided the marital property, and ordered the husband to pay alimony. The husband claims on appeal that the wife's fault should have resulted in the divorce being granted to both parties; that the property was divided in an inequitable manner; and that the trial court should have ordered rehabilitative alimony rather than alimony in futuro. We affirm the grant of divorce to the wife and the property division, but modify the alimony award. http://www.tba.org/tba_files/TCA/javiusel.wpd STANLEY J. KLINE, et al. v. WILLIAM I. BENEFIEL, et al. Court:TCA Attorneys: David A. Siegel, for Appellants Ralph D. Golden, for Appellees Judge: HIGHERS First Paragraph: This case arises from a home construction contract entered into by the Appellants and the Appellees. The Appellants filed a complaint against the Appellees in the Circuit Court of Shelby County for breach of contract. The Appellees filed a counter-complaint for breach of contract and unjust enrichment. The Appellants filed an amended complaint for violations of the Tennessee Consumer Protection Act. The trial court dismissed the Appellees' counter-complaint and found in favor of the Appellees as to the Appellants' complaint. The Appellants appeal from the order of the Circuit Court of Shelby County, finding in favor of the Appellees. For the reasons stated herein, we affirm the trial court's decision. http://www.tba.org/tba_files/TCA/klinestanleyj.wpd TERRY BATES LYNN, et al. v. CITY OF JACKSON TENNESSEE Court:TCA Attorneys: Donna Brown Wilkerson, Jackson, For Appellants, Terry Bates Lynn, Steven Todd Bates and John Darryl Bates John D. Burleson, Dale Conder, Jr. Jackson, For Appellee, City of Jackson, Tennessee Judge: CRAWFORD First Paragraph: Plaintiffs, personal representative of decedent, an adult child of decedent, and a minor child of decedent, filed a wrongful death suit more than one year after decedent's date of death against the City of Jackson pursuant to the Tennessee Governmental Tort Liability Act (TGTLA). Plaintiffs had filed suit within one year of the date of death in federal court, and after federal court dismissed the case, they filed the instant case two days later in circuit court. The circuit court dismissed plaintiffs' case because it was not filed within one year of the accrual of the cause of action as mandated by TGTLA. Plaintiffs have appealed. http://www.tba.org/tba_files/TCA/lynnter.wpd MARK A. MAYHEW, et al. v. HON. JOHN WILDER, et al. WITH CONCURRING OPINION Court:TCA Attorneys: Ben H. Cantrell, P.J., M.S., delivered the opinion of the court, in which William B. Cain, JJ., joined. William C. Koch, Jr., J., concurring. Paul G. Summers, Attorney General and Reporter, Andy D. Bennett, Chief Deputy Attorney General, Michael E. Moore, Solicitor General, Michael W. Catalano, Associate Solicitor General, Ann Louise Vix, Senior Counsel, for the appellants, Hon. John Wilder, Jimmy Naifeh, Paul Summers, Steve Adams, John Morgan and the Tennessee General Assembly, individually and as a body in their official capacity as members of the Senate and the House of Representatives. George E. Barrett, Douglas S. Johnston, Edmund L. Carey, Jr., James G. Stranch, III, and C. Dewey Branstetter, Jr.,Nashville, Tennessee, for the appellees, Mark A. Mayhew, individually, and on behalf of all the citizens of the State of Tennessee, the Nashville Scene, NashvillePost.com, and Lyle Media, Inc., d/b/a In Review. Alfred H. Knight and Alan D. Johnson, Nashville, Tennessee, for the appellees, The Tennessean, The Jackson Sun, The Knoxville News-Sentinel, Chattanooga Times/Chattanooga Free Press, the Daily News Journal (Rutherford County), the Greenville Sun, the Newport Plain Talk, the Daily Post- Athenian, Rogersville Review, the News-Herald (Louden County), the Herald-News (Rhea County), Monroe County Advocate, the Society of Professional Journalists, Middle Tennessee Chapter and Tennessee Associated Press Managing Editors. Lucian T. Pera, Memphis, Tennessee, for the appellee, Memphis Publishing Company, d/b/a The Commercial Appeal. Richard L. Hollow and Nathan D. Rowell, Knoxville, Tennessee, for the appellee, Tennessee Press Association. Rob Briley, Nashville, Tennessee, Amicus Curiae, Pro Se. Susan L. Kay, Nashville, Tennessee, for Amicus Curiae Tennessee Chapter, American Civil Liberties Union. Judge: CANTRELL First Paragraph: A citizen of the state, later joined by three Nashville newspapers, filed this action alleging that Tennessee's fiscal year 2000-2001 budget and revenue bills are void because they resulted from secret meetings in both houses of the General Assembly. The Tennessee Press Association, the Middle Tennessee Chapter of the Society of Professional Journalists, the Tennessee Associated Press Managing Editors and thirteen newspapers were allowed to intervene to challenge the General Assembly's right to meet in closed sessions, but they did not seek to have the budget and revenue bills declared void. The complaint and amended complaints sought declaratory and injunctive relief against various state officials, alleging that any secret meeting of the General Assembly violates the Tennessee Constitution, the United States Constitution, and the State Open Meetings Act. The defendants moved to dismiss, raising the defenses of standing, soverign immunity, separation of powers, and failure to state a claim. The Circuit Court of Davidson County overruled the motion to dismiss, and we granted the defendant's application for an extraordinary appeal under Rule 10, Tenn. R. App. Proc. We find that the Open Meetings Act does not apply to the General Assembly, that the plaintiffs have not stated a claim under either the Tennessee or United States Constitutions, and that the question of when to close legislative meetings is non-justiciable because our Constitution commits that question exclusively to the General Assembly. We, therefore, reverse the lower court's order and dismiss the complaint. http://www.tba.org/tba_files/TCA/mayhewma_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/mayhewma_con.wpd RAIN AND HAIL INSURANCE SERVICES, INC. v. JAMES DREW PEELER, et al. Court:TCA Attorneys: Marti L. Kaufman, for Appellant Randy S. Gardner, for Appellee Judge: HIGHERS First Paragraph: This is a suit for the recovery of an insurance premium. The Appellant brought a complaint against the Appellee in the Circuit Court of Tipton County, seeking to recover the premium it claimed was due pursuant to a clause in the insurance policy. Both the Appellant and the Appellee brought motions for summary judgment. The trial court dismissed the Appellant's complaint and granted the Appellee's motion for summary judgment. http://www.tba.org/tba_files/TCA/rainandhailins.wpd STATE OF TENNESSEE, ex rel. JUDY LYNN STANLEY v. JOHN FRANK HOOPER Court:TCA Attorneys: David D. Wolfe, Dickson, Tennessee, for the appellant, John Frank Hooper. Paul G. Summers, Attorney General and Reporter and Stuart Wilson-Patton, Assistant Attorney General, for the appellee, State of Tennessee, Department of Human Services, ex. rel., Judy Lynn Stanley. Judge: CANTRELL First Paragraph: This is an appeal from the trial court's order finding the appellant to be the natural father of the appellee's minor child. The appellant contends that the trial court erroneously denied the appellant's request for a jury trial and that the trial court erroneously excluded an out of court statement identifying the appellant's brother as a potential father. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/stanleyjl.wpd TATE OF TENNESSEE v. KENNETH ENGLAND Court:TCCA Attorneys: Charles Herman, Assistant Public Defender, Julie A. Rice, for the Appellant, Kenneth England. Paul G. Summers, Attorney General & Reporter; Patricia C. Kussman, Assistant Attorney General; William Paul Phillips, District Attorney General; Mike Ripley and Todd Longmire, Assistant District Attorneys General, for the Appellee, State of Tennessee Judge: WITT First Paragraph: The defendant appeals the revocation of his community corrections sentence. Finding a lack of justiciable, substantial evidence to support the revocation, we reverse. http://www.tba.org/tba_files/TCCA/englandk.wpd STATE OF TENNESSEE v. ERIC WILLIAM SANDERS Court:TCCA Attorneys: Terry L. Jordan, Assistant Public Defender, Blountville, Tennessee, for the appellant, Eric Sanders. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; H. Greeley Wells, District Attorney General; and Joseph E. Perrin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant pleaded guilty in Sullivan County Criminal Court to violation of a habitual traffic offender order, a Class E felony, and driving under the influence, second offense, a Class A misdemeanor. The Defendant was sentenced to serve one year in the Tennessee Department of Correction as a Range I standard offender for violation of the HTO order and eleven months and twenty-nine days, suspended except for forty-five days, for the DUI. The sentences were to run consecutively. After serving thirty percent of his one-year sentence for violation of the HTO order, the Defendant was released by determinate release to the local jail to serve the remainder of his mandatory forty-five day jail term for the DUI conviction, and he was then released on probation pursuant to determinate release. http://www.tba.org/tba_files/TCCA/sandersew.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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