February 8, 2001 Volume 7 -- Number 025 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):   02 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 05 New Opinion(s) from the Tennessee Court of Criminal Appeals 04 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. AMMENDED 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 RAY H. PEACE v. EASY TRUCKING COMPANY Court:TSC Attorneys: James T. Shea, IV, Knoxville, Tennessee, for the appellant, Easy Trucking Company. Clifford C. Cruze and Frank Q. Vettori, Knoxville, Tennessee, for appellee, Ray H. Peace. Judge: BIRCH First Paragraph: We are asked in this case to determine whether awards of permanent partial disability to the body as a whole for employees over age 60 should be calculated as a percentage of 400 weeks, with a "cap" at 260 weeks, or whether such awards should be calculated as a percentage of 260 weeks. After thorough consideration of the entire record and the relevant authorities, we hold that permanent partial disability awards are properly calculated at 400 weeks, with a "cap" at 260 weeks for employees over age 60. In addition, the defendant contends that the trial court erred in granting the plaintiff an award pursuant to Tenn. Code Ann. S 50-6-242 (1999) rather than applying the "multiplier" provision of Tenn. Code Ann. S 50-6-241(b) (1999) to limit the plaintiff's awards to six times his medical impairment rating. Because we find that Tenn. Code Ann. S 50-6-242 allows trial courts to make an award in excess of the "multiplier" provision only if the statute's requirements are supported by clear and convincing evidence, we remand the cause to the trial court so that it may document such clear and convincing evidence as may support an award in excess of the "multiplier" provision. http://www.tba.org/tba_files/TSC/peacer.wpd GERALD ATKINS v. WOZNIAK INDUSTRIES, INC., et al. Court:TSC - Workers Comp Panel Attorneys: George Lee Morrison III, Jackson, Tennessee, Kathryn M. Tucker, Milan, Tennessee, and Mary Dee Allen, Cookeville, Tennessee, for the appellee, Gerald Atkins. Catherine Bulle Clayton and Michael Lynn Russell, Jackson, Tennessee, for the appellants, Wozniak Industries, Inc. d/b/a GMP Metal Products and Liberty Mutual Insurance Co. Judge: WALKER First Paragraph: Employee suffered a brown recluse spider bite while at work. The incident resulted in infectious eczematoid dermatitis that affected his ability to work by causing swelling, interfering with sweating, severe itching and required employee to be cautious of overheating from direct rays of sunlight, justifying an award of forty percent to the body as a whole. http://www.tba.org/tba_files/TSC_WCP/atkinsgerald.wpd TOMMIE A. DRUMWRIGHT v. ANDERSON HICKEY COMPANY AND TRAVELERS INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: Thomas H. Strawn, Dyersburg, Tennessee, for the Appellant, Tommie A. Drumwright S. Newton Anderson and Marc A. Sorin, Memphis, Tennessee, for the Appellees, Anderson Hickey Company and Travelers Insurance Company Judge: MALOAN 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. S50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff, Tommie A. Drumwright, appeals the judgment of the trial court which found the plaintiff failed to carry her burden of proving a work-related injury and dismissed her claim. For the reasons stated in this opinion, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/drumwrgt.wpd LUKE KEELING v. FLORIDA STEEL, now known as AMERISTEEL Court:TSC - Workers Comp Panel Attorneys: Christopher Crain and W. Timothy Hayes, Memphis, Tennessee, for the appellant Florida Steel, now known as Ameristeel. Ricky L. Boren, Jackson, Tennessee, for appellee, Luke Keeling. Judge: BYERS 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 defendant appeals from the trial judge's finding that: the plaintiff sustained an injury within the course and scope of his employment; that he suffered a thirty-five percent vocational disability; and that he did not have a meaningful return to work. The defendant also appeals the trial court's holding that it was not entitled to a set off for funds paid to the plaintiff under a self-insurance plan. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/keelingl.wpd JACKIE L. REYNOLDS, et al. v. TAMMY M. BATTLES, et al. Court:TCA Attorneys: Jackie L. Reynolds and Audrey Jeannine Reynolds, pro se No filing on behalf of Appellees Judge: HIGHERS First Paragraph: This case involves three alleged criminal conspiracies committed by the Appellees against the Appellants. The Appellants filed a complaint against the Appellees in the United States District Court for the Western District of Tennessee. The district court dismissed the Appellants' complaint for lack of jurisdiction. The Appellants then filed a complaint against the Appellees in the Circuit Court of Hardin County. The Appellees brought a motion to dismiss. The trial court granted the Appellees' motion to dismiss, finding that the Appellants' complaint was barred by the statute of limitations and failed to state a claim for which relief can be granted. The Appellants appeal the dismissal of the Appellants' complaint. For the reasons stated herein, we reverse the trial court's decision. http://www.tba.org/tba_files/TCA/reynoldsjackie.wpd HARRY JAMES TUSANT, JR., et al. v. CITY OF MEMPHIS Court:TCA Attorneys: David M. Sullivan, Memphis, For Appellants Louis P. Britt III, David P. Knox, Memphis, For Appellee Judge: CRAWFORD First Paragraph: Petitioners, Memphis police officers, filed a petition in chancery court for writ of mandamus to require the city to promote them to certain civil service ranks after they successfully completed the promotional process and are otherwise eligible and qualified for promotion. The trial court denied the petition, and petitioners have appealed. http://www.tba.org/tba_files/TCA/tusanthar.wpd STATE OF TENNESSEE v. JOHN DAVID PALMER Court:TCCA Attorneys: Tom W. Crider, District Public Defender; Perianne Houghton, Assistant Public Defender, Trenton, Tennessee, for the appellant, John David Palmer. Paul G. Summers, Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General; Clayburn Peeples, District Attorney General; Larry Hardister, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, John David Palmer, was convicted of voluntary manslaughter and especially aggravated robbery following a jury trial in Gibson County Circuit Court. He was sentenced to serve three years for voluntary manslaughter and twenty years for especially aggravated robbery with the sentences to be served concurrent with each other. He does not appeal the voluntary manslaughter conviction or sentence. However, regarding the conviction for especially aggravated robbery, Defendant challenges the sufficiency of the evidence to support the conviction and argues that the trial court committed reversible error by not instructing the jury on the lesser-included offense of theft and unauthorized use of a vehicle, i.e., joyriding. After review, we reverse and remand for a new trial on the offense of especially aggravated robbery. http://www.tba.org/tba_files/TCCA/palmerjd.wpd STATE OF TENNESSEE v. JOHN E. PARNELL Court:TCCA Attorneys: Glenn I. Wright, Memphis, Tennessee, for the appellant, John E. Parnell. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jennifer Nichols, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant was convicted by a Shelby County jury of criminally negligent homicide and aggravated child abuse. The trial court sentenced him to concurrent sentences of two years for the homicide charge and twenty years for the aggravated child abuse charge. In this appeal as a matter of right, the defendant alleges (1) he was incompetent to stand trial, and (2) the evidence was insufficient to sustain the guilty verdict for aggravated child abuse. The defendant was indicted in count one for aggravated child abuse by treating the child in a manner so as to inflict injury; the defendant was indicted in count two for aggravated child abuse by neglecting the child so as to adversely affect his health and welfare; the jury was instructed to consider count two only if the defendant was found not guilty of count one; the jury found guilt only as to count one; the jury never returned a verdict on count two; and the evidence is insufficient to sustain the verdict under count one. Although the evidence overwhelmingly establishes guilt of aggravated child abuse by neglect as alleged in count two, the jury's failure to return a verdict on this count requires a remand for retrial on count two. We affirm the conviction for criminally negligent homicide. http://www.tba.org/tba_files/TCCA/parnellje.wpd STATE OF TENNESSEE v. KEITH DALE THOMAS Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee, and George Morton Googe, District Public Defender (on appeal), and Leonard E. Van Eaton, Memphis, Tennessee (at trial), for the appellant, Keith Dale Thomas. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals his conviction for first degree murder, contending that the evidence was insufficient to support his conviction. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/thomaskd.wpd STATE OF TENNESSEE v. TIFFANY R. WEATHERSPOON Court:TCCA Attorneys: Guy T. Wilkinson, District Public Defender, and Richard W. DeBerry, Assistant Public Defender, for the appellant, Tiffany R. Weatherspoon. Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Tiffany R. Weatherspoon, pled guilty in the Hardin County Circuit Court to the Class B felony of unlawful possession of over .5 grams of a Schedule II controlled substance, to wit: cocaine, with the intent to manufacture, deliver, or sell. She received the agreed-upon sentence of eight years, as a Range I offender, and a $2,000 fine. The trial court denied alternative sentencing and ordered that the defendant be incarcerated. She appealed, arguing that the court erred in denying alternative sentencing. Based upon our review, we affirm the order of the trial court. http://www.tba.org/tba_files/TCCA/weatherspoontr.wpd JAMES ROBERT WHITWORTH v. STATE OF TENNESSEE Court:TCCA Attorneys: James Robert Whitworth, Parchman, Mississippi, Pro Se. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paula H. Wulff, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner, who is currently in the custody of the Mississippi Department of Corrections, entered pleas of guilty in 1974 in the Shelby County Criminal Court to the offenses of assault and battery with intent to rape and attempt to commit a felony, to wit: crime against nature. In 2000, he filed a petition to vacate and set aside these sentences, claiming that his pleas of guilty were not voluntary, that his counsel had been ineffective, and that he was innocent of the charges. The post-conviction court dismissed the petition as untimely, the statute of limitations having expired before it was filed; and the petitioner timely appealed. Based upon our review, we affirm the order of the post- conviction court dismissing the petition as untimely. http://www.tba.org/tba_files/TCCA/whitworthjr.wpd Status of Full-time Employees of the Board of Professional Responsibility for Purposes of Membership in the Tennessee Consolidated Retirement System Date: February 6, 2001 Opinion Number: 01-016 http://www.tba.org/tba_files/AG/OP16.pdf Metropolitan Form of Government Date: February 6, 2001 Opinion Number: 01-017 http://www.tba.org/tba_files/AG/OP17.pdf Charitable Solicitations Date: February 6, 2001 Opinion Number: 01-018 http://www.tba.org/tba_files/AG/OP18.pdf State Lottery - - Impact of Federal Indian Gaming Regulatory Act Date: February 7, 2001 Opinion Number: 01-019 http://www.tba.org/tba_files/AG/OP19.pdf 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! 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