January 19, 2001 Volume 7 -- Number 013 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):   07 New Opinion(s) from the Tennessee Supreme Court 03 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 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 GARRY L. ALLEN v. CITY OF GATLINBURG, et al. Court:TSC Attorneys: John T. Batson, Jr., and Nathan D. Rowell, Knoxville, Tennessee, for the appellants, City of Gatlinburg and Tennessee Municipal League Risk Management Pool. Richard T. Wallace, Sevierville, Tennessee, for the appellee, Garry L. Allen. Kathleen W. Stratton, Nashville, Tennessee, for the appellee, Second Injury Fund. Judge: BIRCH First Paragraph: This case requires us to interpret subsections (a) and (b) of the Second Injury Fund statute, Tenn. Code Ann. S 50-6-208 (1999). Garry L. Allen, sustained two injuries while working for the City of Gatlinburg; the first occurred in 1992, and the second in 1995. As a result of the 1992 injury, Allen was awarded benefits for a 20 percent permanent partial disability to the body as a whole. Following the trial for the 1995 injury, the trial court found Allen to be permanently and totally disabled and awarded him benefits to age 65, apportioning 80 percent of the liability to the City of Gatlinburg and 20 percent to the Second Injury Fund. The Special Workers' Compensation Appeals Panel agreed. We granted the City of Gatlinburg's motion for review by the entire Supreme Court pursuant to Tenn. Code Ann. S 50-6-225(e)(5)(B) (1999) to determine whether the trial court properly apportioned benefits under the laws governing Second Injury Fund awards. Because the trial court did not make a specific finding of fact regarding the extent of disability caused by the second injury without considering the first injury, we conclude that the trial court erred. Accordingly, we remand the case so that such a determination may be made. http://www.tba.org/tba_files/TSC/alleng.wpd REGINA L. CABLE v. CHARLES E. CLEMMONS, JR. CORRECTED OPINION Court:TSC Attorneys: Oliver S. Thomas, John A. Bell, Catherine P. Kligerman, and Theodore R. Kern, Knoxville, Tennessee, for the appellant, Regina L. Cable. Jonathan A. Moffatt, Knoxville, Tennessee, for the appellee, Charles E. Clemmons, Jr. Judge: ANDERSON First Paragraph: We granted this appeal to determine the following two issues: 1) whether double jeopardy bars multiple convictions for criminal contempt based on violations of an order of protection and 2) whether domestic violence counseling may be imposed as part of the sentence for criminal contempt. After finding the defendant guilty of six counts of criminal contempt, the trial court's sentence consisted of 1) ten days in jail for each act of contempt to be served consecutively and 2) forty-five weeks of domestic violence counseling. A new order of protection was issued. The Court of Appeals held that the evidence supported only one conviction for criminal contempt and that the trial court lacked the authority to impose counseling as part of a sentence for criminal contempt. After reviewing the record and authority, we hold that double jeopardy does not bar multiple convictions for criminal contempt and that the evidence supports three convictions in this case. We further hold that although the legislature has not specifically authorized domestic violence counseling as a sentence for criminal contempt, the trial court properly imposed the requirement as part of a new order of protection. http://www.tba.org/tba_files/TSC/cableri.wpd D&E; CONSTRUCTION COMPANY, INC. v. ROBERT J. DENLEY CO., INC. Court:TSC Attorneys: Julie C. Bartholomew, Somerville, Tennessee, for the appellant, Robert J. Denley Co., Inc. Ted M. Hayden, Memphis, Tennessee, for the appellee, D&E; Construction Company, Inc. Judge: BARKER First Paragraph: The contractor submitted to arbitration a contractual payment dispute with the project owner arising from a contract to build a subdivision in Collierville. The arbitrators found in favor of the contractor and included an award of attorney's fees. The trial court determined that the arbitration panel exceeded its authority in awarding attorney's fees and vacated the arbitration award. The Court of Appeals reversed, reinstating the entire award. We hold that when the arbitrators awarded attorney's fees, they exceeded their authority by awarding upon a matter not within the scope of the contract's arbitration provision. Therefore, we reverse in part the judgment of the Court of Appeals and vacate the award of attorney's fees. http://www.tba.org/tba_files/TSC/deconst.wpd STATE OF TENNESSEE v. KENYETTA FIELDS Court:TSC Attorneys: Greg W. Eichelman, Morristown, Tennessee, for the appellant, Kenyetta Fields. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: The issue raised on this appeal is whether the defendant's conviction of the Class C felony of facilitation of an illegal drug transaction within 200 yards of a school overcomes the presumption in favor of alternative sentencing so as to justify a sentence of confinement. The trial court and the Court of Criminal Appeals found confinement necessary to avoid depreciating the seriousness of the offense. We conclude that the evidence presented is insufficient to overcome the presumption of alternative sentencing. Therefore, we reverse the judgment of the Court of Criminal Appeals and remand this case to the trial court to determine an appropriate alternative sentence. http://www.tba.org/tba_files/TSC/fieldsk.wpd ERSKINE LEROY JOHNSON v. STATE OF TENNESSEE Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Amy L. Tarkington, Senior Counsel Criminal Division, Nashville, Tennessee, for the appellant, State of Tennessee. Joseph S. Ozment, Memphis, Tennessee; Jonathan I. Blackman, New York, New York; David E. Brodsky, New York, New York, for the appellee, Erskine Leroy Johnson. Judge: BARKER First Paragraph: The sole issue in this capital post-conviction appeal is whether the State improperly withheld material, exculpatory evidence at the appellee's capital sentencing hearing. The appellee was convicted of felony murder and sentenced to death in 1985, and in 1991, he filed a post-conviction petition alleging, among other things, that the State improperly withheld a police report that was discoverable under Brady v. Maryland, 373 U.S. 83 (1963). The post-conviction court denied relief, but the Court of Criminal Appeals reversed and vacated the capital sentence. Finding that the police report was exculpatory and material, the intermediate court held that a new sentencing hearing was constitutionally required. The State then appealed to this Court. For the reasons given herein, we hold that the State improperly withheld the police report, which was both "evidence favorable to the accused" and material as to the issue of sentencing. Accordingly, we affirm the judgment of the Court of Criminal Appeals vacating the appellee's sentence, and we remand this case to the Shelby County Criminal Court for a new capital sentencing hearing. http://www.tba.org/tba_files/TSC/johnsonel.wpd STATE OF TENNESSEE v. DEBIASI SIRNARD KING AND DEWAYNE KING Court:TSC Attorneys: Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General; Michael J. Fahey, II, Assistant Attorney General; William H. Cox, III, District Attorney General; and C. Leland Davis and Yolanda Mitchell, Assistant District Attorneys General, for the appellant, State of Tennessee. John Allen Brooks, Chattanooga, Tennessee, for the appellee, Debiasi Sirnard King. Lisa M. Mack, Chattanooga, Tennessee, for the appellee, Dewayne D. King. Judge: ANDERSON First Paragraph: We granted review to determine whether the trial court committed reversible error by conducting trial proceedings in violation of a common law rule that prohibits judicial functions on Sunday. The Court of Criminal Appeals reversed the defendants' convictions for second-degree murder and remanded for a new trial, holding that the trial court violated a common law rule prohibiting judicial functions on Sunday and that such proceedings were "absolutely void." We conclude that conducting judicial proceedings on Sunday does not violate the Tennessee Constitution or any state statute and that the justifications for the common law rule are no longer sufficiently persuasive to invalidate Sunday proceedings as a matter of law. We further hold that the issue of whether to conduct judicial functions on Sunday rests within the discretion of the trial court. In exercising this discretion, the trial court should be deferential to the preferences of the litigants, witnesses, jurors, and attorneys; must be mindful of the need for every participant in a trial proceeding to be prepared and rested; must respect and accommodate the genuinely-held religious view of any litigant, witness, juror or attorney; and must weigh all of these concerns against whatever pressing need or compelling interest may necessitate a Sunday proceeding. We conclude that the trial court abused its discretion under the facts of this case and, therefore, affirm the result reached by the judgment of the Court of Criminal Appeals on the separate grounds stated herein. http://www.tba.org/tba_files/TSC/kingds.wpd BILLY WAYNE LESLIE v. STATE OF TENNESSEE. CORRECTED OPINION Court:TSC Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Billy Wayne Leslie. Michael E. Moore, Solicitor General; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and John C. Zimmermann, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: We granted review in this post-conviction case to determine whether the trial court erred by allowing the appellant's appointed attorneys to withdraw and refusing to appoint new counsel. A majority of the Court of Criminal Appeals held that the trial court did not err either by allowing the appointed attorneys to withdraw or by refusing to appoint new counsel because the appellant had abused the post-conviction process. We conclude, and the State concedes, that the trial court erred by allowing counsel to withdraw without a hearing and failing to appoint new counsel. We therefore reverse the Court of Criminal Appeals' judgment and remand the case to the trial court for the appointment of counsel and proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/lesliebw.wpd ELSIE ANNE BULLOCK v. MEDICAL PROFESSIONAL, INC., AND CIGNA. Court:TSC - Workers Comp Panel Attorneys: Ralph M. Maylott, Knoxville, Tennessee for the appellant, Elsie Ann Bullock Robert M. Shelor, Knoxville, Tennessee, for the Appellee, Medical Professional, Inc., and CIGNA. Judge: PEOPLES 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 to the Supreme Court of findings of fact and conclusions of law. The appellant, Elsie Bullock, appeals the dismissal of her claim for workers' compensation benefits. The trial court found that she had "failed to meet her burden of proof that the conditions of which she complains are related to work-related accident of February 14, 1996." Ms. Bullock contends the trial court (1) erred in finding that she did not have a compensable injury to her back, and (2) erred in finding she did not have a compensable mental injury as a result of the injury she sustained at work. We affirm in part and reverse in part. http://www.tba.org/tba_files/TSC_WCP/bullockvmedprof.wpd VERONICA GOODLOE v. STATE OF TENNESSEE Court:TSC - Workers Comp Panel Attorneys: Tracy W. Moore, Columbia, Tennessee, for the appellee, Veronica Goodloe. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Heather C. Ross, Assistant Attorney General, for the appellant, State of Tennessee. Judge: ANDERSON First Paragraph: In this workers' compensation case, the employee, Veronica Goodloe, has appealed from a judgment of the Tennessee Claims Commission denying her claim for benefits filed against the employer, Columbia State Community College. The employee, who suffered from pre-existing depression, had a mental breakdown after being informed by her supervisor that she might be terminated. The Tennessee Claims Commission granted summary judgment to the employer on the basis that the employee's mental breakdown did not result from an event producing sudden fright, shock, or excessive unexpected anxiety. The Special Workers' Compensation Appeals Panel, upon reference for findings of fact and conclusions of law pursuant to Tenn. Code Ann. S 50-6-225(e)(3) (1999 & Supp. 2000), held that summary judgment was improperly granted and remanded the case for trial. Thereafter, the employer filed a motion for full Court review of the Panel's decision. We granted the motion to decide whether the employee's psychiatric injury arose out of her employment because it resulted from the type of identifiable stressful, work-related event producing sudden fright, shock, or excessive unexpected anxiety to justify a recovery. After carefully examining the record and considering the relevant authorities, we hold that the employee's mental injury is not compensable. Therefore, we reject the findings of fact and conclusions of law of the Panel and affirm the judgment of the Claims Commission. http://www.tba.org/tba_files/TSC_WCP/goodloev.wpd PHIL HOUSER, Deceased, et al. v. BI-LO, INC. Court:TSC - Workers Comp Panel Attorneys: K. O. Herston, Knoxville, Tennessee, for the appellant, Phil Houser, deceased, by and through his surviving spouse, Sharon Houser. B. Chadwick Rickman, Knoxville, Tennessee, for the appellee, Bi-Lo, Inc. Judge: ANDERSON First Paragraph: In this workers' compensation case, the widow of the employee, Phil Houser, has appealed from a circuit court judgment denying the employee's claim for benefits filed against the employer, Bi-Lo, Inc. The employee, who managed the employer's grocery store, suffered a stroke after becoming upset over unexpectedly receiving an unusually large order of stock. The trial court denied benefits because receiving a large shipment of stock did not constitute an unusual or abnormal circumstance for the manager of a grocery store. The plaintiff appealed, arguing that the employee was performing the obligations of his employment in an abnormally stressful set of circumstances when he suffered the stroke. The appeal was argued before the Special Workers' Compensation Appeals Panel pursuant to Tenn. Code Ann. S 50-6-225(e)(3) (1999 & Supp. 2000), but transferred to the full Supreme Court prior to the Panel issuing its decision. The question before this Court is whether the evidence preponderates against the trial court's finding that the employee's stroke did not arise out of his employment because it was not caused by a mental or emotional stimulus of an unusual or abnormal nature, beyond what is typically encountered by the manager of a grocery store. After carefully examining the record and the relevant authorities, we affirm the trial court's decision. http://www.tba.org/tba_files/TSC_WCP/houserp.wpd JUDD'S INCORPORATED v. DORIS L. MUIR, et al. Court:TCA Attorneys: W. Richard Baker, Jr., Knoxville, Tennessee, for the Appellants, Doris L. Muir and Allan T. Muir James H. Ripley, Sevierville, Tennessee, for the Appellee Judd's Incorporated Edward H. Hamilton, Sevierville, Tennessee, for the Appellee Holladay-Tyler Printing, Inc. Judge: GODDARD First Paragraph: In this appeal Doris and Allan Muir insist that the Chancellor was in error in not allowing their homestead exemption as to certain funds realized from the sale of real estate to satisfy a judgment previously entered against them. Their attorney, W. Richard Baker, Jr., insists that the Chancellor was in error in not enforcing a lien for his attorney fees that he claimed was properly perfected as to the same funds. We affirm. http://www.tba.org/tba_files/TCA/juddinc.wpd RICHARD EUGENE STONER v. MARY ELIZABETH STONER Court:TCA Attorneys: Teresa McCaig Marshall, Paris, Tennessee, for the appellant, Richard Eugene Stoner. Vicki H. Hoover, Paris, Tennessee, for the appellee, Mary Elizabeth Stoner. Judge: FARMER First Paragraph: This appeal arises from a divorce between a couple with a long standing pre-marital relationship. Citing this relationship, the trial court classified two stock accounts as marital property and awarded Wife a portion of their funds. These accounts were pre-marital accounts of Husband. No marital funds were deposited in the accounts by either party and Wife had no interaction with the accounts. Under the circumstances of this case, the trial court's classification of this property as marital property amounts to recognition of a common-law marriage, and Tennessee does not recognize common-law marriages. As such, the trial court was incorrect in awarding funds from the accounts to Wife. The trial court correctly assigned pre-marital debt, divided the remainder of marital property, and awarded alimony in futuro and attorney's fees. We affirm in part and reverse in part. http://www.tba.org/tba_files/TCA/stonerrichardeugene.wpd MICHAEL EUGENE SAMPLE and LARRY MCKAY v. STATE OF TENNESSEE Court:TCCA Attorneys: David M. Eldridge and Richard L. Gaines, Knoxville, Tennessee; and Harry R. Reinhart, Columbus, Ohio, for the appellant, Michael Eugene Sample. David C. Stebbins, Columbus, Ohio, for the appellant, Larry McKay. Paul G. Summers, Attorney General and Reporter; Erik W. Daab, Assistant Attorney General; William L. Gibbons, District Attorney General; and Reginald Henderson and John W. Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendants were each convicted in 1982 of two counts of felony murder. Each Defendant received two death penalties for the murders. On post-conviction, the Defendants contend that the State withheld exculpatory information and that their death penalties were predicated in part on an invalid aggravating circumstance. The trial court dismissed the petitions without a hearing, finding that the Brady claims were time-barred and finding beyond a reasonable doubt that the jury would have imposed the death sentences absent consideration of the invalid aggravating circumstance. The Defendants now appeal the trial court's findings on both claims for relief. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/sampleme.wpd STATE OF TENNESSEE v. GILFORD E. WILLIAMS WITH CONCURRING OPINION Court:TCCA Attorneys: Patrick F. Martin, Jackson, Tennessee, for the appellant, Gilford E. Williams. Paul G. Summers, Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General; Don Allen, Christopher J. Schultz, and Shaun A. Brown, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Gilford E. Williams, was convicted of one count of vehicular homicide. The trial court imposed a Range I sentence of five years. In this appeal of right, the defendant claims an entitlement to a new trial because the state violated the rules of discovery and the trial court erroneously admitted a photograph of the victim into evidence. Because there was no reversible error, the judgment is affirmed. http://www.tba.org/tba_files/TCCA/williamsgil_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCCA/williamsgil_con.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. 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