March 1, 2001 Volume 7 -- Number 038 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):   04 New Opinion(s) from the Tennessee Supreme Court 02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Court of Appeals 03 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 BVT LEBANON SHOPPING CENTER, LTD v. WAL-MART STORES, INC., et al. WITH CONCURRING OPINION Court:TSC Attorneys: John B. Comstock and Ranae Bartlett, Bentonville, Arkansas, Thomas Wright Lawrence, Nashville, Tennessee, and Vester Neal Agee, Lebanon, Tennessee, for the appellants, Wal-Mart Stores, Inc. and Kuhn's-Big K Stores Corp. Kenneth F. Scott and Thomas V. White, Nashville, Tennessee, for the appellee, BVT Lebanon Shopping Center, LTD. Judge: HOLDER First Paragraph: This appeal arises out of a commercial lease dispute between Wal-Mart Stores, Inc. (Wal-Mart) and BVT Lebanon Shopping Center, Ltd. (BVT). We granted this appeal to determine the appropriate measure of damages for Wal-Mart's breach of the leasing agreement. We hold that the Court of Appeals properly affirmed the trial court's award of summary judgment in favor of BVT, holding that the gross receipts of a third party occupying part of the leased premises should be included in calculating the amount of percentage rent due under the leasing contract. We further conclude that the Court of Appeals correctly held that the appropriate measure of damages for Wal-Mart's breach of the implied covenant of continued occupancy was the diminution in the fair market value of the entire shopping center. We conclude, however, that the Court of Appeals erred in declining to remand to the trial court for an assessment of the amount of such damages. We therefore affirm the Court of Appeals in part and reverse and remand in part. http://www.tba.org/tba_files/TSC/bvtleban_opn.wpd CONCURRING OPINION http://www.tba.org/tba_files/TSC/bvtleban_con.wpd PAULINE DAVIS v. LIBERTY MUTUAL INSURANCE COMPANY Court:TSC Attorneys: David H. Dunaway, LaFollette, Tennessee, for the appellant, Pauline Davis. James T. Shea, IV, Knoxville, Tennessee, for the appellee, Liberty Mutual Insurance Company. Judge: DROWOTA First Paragraph: In this workers' compensation case, the employee, Pauline Davis, has appealed from the trial court's judgment denying her claim for benefits filed against her employer, DeRoyal Industries, Inc. The employee, who worked as a sewing machine operator, was overcome by noxious fumes which she alleges caused a mental injury. On a subsequent occasion the employee injured her shoulder. The trial court awarded benefits for the shoulder injury but denied benefits for the mental injury. The employee appealed, arguing that she is disabled due to her mental injury. The appeal was argued before the Special Workers' Compensation Appeals Panel pursuant to Tenn. Code Ann. S 50-6- 225(e)(3), but transferred to the full Supreme Court prior to the Panel issuing its decision. Three questions are presented for our review: (1) whether the trial judge abused his discretion in not recusing himself, (2) whether the trial court erred in appointing an independent psychiatrist to evaluate the employee, and (3) whether the evidence preponderates against the trial court's finding that the employee failed to prove a work-related psychiatric injury. After carefully examining the record and the relevant authorities, we affirm the trial court's judgment. http://www.tba.org/tba_files/TSC/davispauline.wpd STATE OF TENNESSEE v. ANTONIO KENDRICK Court:TSC Attorneys: Pamela J. Drewery-Rodgers, Jackson, Tennessee, and Joseph S. Ozment, Memphis, Tennessee, for the appellant, Antonio Kendrick. Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; William L. Gibbons, District Attorney General; and Perry Hayes, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: We granted this appeal to determine whether the prosecution's failure to elect the particular offense of aggravated rape upon which it sought to convict the defendant constituted plain error and required a new trial. The main purpose of the election requirement is to preserve a defendant's right to a unanimous jury verdict under the Tennessee Constitution. A majority of the Court of Criminal Appeals affirmed the defendant's conviction for one count of aggravated rape without examining the election issue. After reviewing the record and controlling authority, we conclude that the prosecution's failure to elect the particular offense upon which it sought to convict the defendant failed to preserve the defendant's rights under the Tennessee Constitution and constituted plain error. The judgment of the Court of Criminal Appeals is reversed, and the case is remanded to the trial court for a new trial. http://www.tba.org/tba_files/TSC/kendricka.wpd STATE OF TENNESSEE v. MAURICE SHAW Court:TSC Attorneys: Jason G. Whitworth, Covington, Tennessee, for the appellant, Maurice Shaw. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Patricia C. Kussmann, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and James W. Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: ANDERSON First Paragraph: We granted this appeal to decide two issues: (1) whether there was sufficient evidence to corroborate the testimony of an accomplice and to support the defendant's conviction for possession of cocaine with the intent to deliver and (2) whether the defendant was denied his constitutional right to the effective assistance of counsel. The Court of Criminal Appeals concluded that the evidence was sufficient to corroborate the testimony of the accomplice and to support the defendant's conviction and that the defendant was not denied his constitutional right to the effective assistance of counsel. After reviewing the record and applicable authority, we affirm the result reached by the Court of Criminal Appeals upon the separate grounds stated herein. http://www.tba.org/tba_files/TSC/shawm.wpd ROBERT W. CUNNINGHAM, JR, ET AL. v. SHELTON SECURITY SERVICE, INC., ET AL. Court:TSC - Workers Comp Panel Attorneys: Angus Gillis, III, Nashville, Tennessee, for the appellants, Shelton Security Service, Inc. and Employers Insurance of Wausau. Terry R. Clayton, Nashville, Tennessee, for the appellees, Robert W. Cunningham, Administrator of the Estate of Robert W. Cunningham, Sr., and William E. Cunningham, Jr. Judge: ANDERSON First Paragraph: In this workers' compensation case, the estate of the employee, Robert W. Cunningham, Sr., has appealed from a chancery court judgment dismissing a claim for death benefits filed against the employer, Shelton Security Service, Inc. The employee, who worked as a security guard for the employer, died of heart failure while performing his duties at a store. At the close of the employee's proof, the trial court granted the employer's motion to dismiss on the basis that the emotional stress experienced by the employee the night of his death was not extraordinary or unusual for a security guard. The Special Workers' Compensation Appeals Panel, upon reference for findings of fact and conclusions of law, found that there was sufficient evidence of causation to warrant a trial and, thus, reversed the trial court's dismissal. Thereafter, the employer filed a motion for full Court review of the Panel's decision. We granted the motion for review to consider whether the trial court erred in dismissing the employee's claim on the basis that his heart failure did not arise out of the employment because it was not caused by a mental or emotional stimulus of an unusual or abnormal nature, beyond what is typically encountered by one in his occupation. After carefully examining the record and considering the relevant authorities, we agree with the Panel and reverse the trial court's judgment. http://www.tba.org/tba_files/TSC_WCP/cunningham.wpd DOROTHY G. MACKIE, et al. v. YOUNG SALES CORPORATION, et al. Court:TSC - Workers Comp Panel Attorneys: H. Douglas Nichol and Gregory D. Onks, Knoxville, Tennessee, for the appellant, Dorothy G. Mackie Bryan Essary, Nashville, Tennessee, for the appellee, Young Sales Corporation. Judge: ANDERSON First Paragraph: We granted review in this workers' compensation case to determine whether the trial court erred in awarding temporary total benefits and death benefits based on the maximum weekly wage where the employee did not earn any wages in the 52 weeks prior to being diagnosed with malignant mesothelioma. On appeal, the Special Workers' Compensation Appeals Panel concluded that the trial court erred in awarding benefits based on the maximum weekly wage because the employee was voluntarily retired at the time of his diagnosis, and that benefits were to be based on the minimum weekly wage. After reviewing the record and applicable authority, we conclude that an employee's voluntary retirement does not preclude workers' compensation benefits for an injury arising out of and in the course of employment and that the trial court properly awarded benefits based on the maximum weekly rate under the facts of this case. http://www.tba.org/tba_files/TSC_WCP/mackiedg.wpd STATE OF TENNESSEE v. DAVID HOWARD PROFFITT Court:TCCA Attorneys: Joe L. Finley, Jr., Cookeville, Tennessee, for the appellant, David Howard Proffitt. Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General; and Anthony J. Craighead, Assistant District Attorney. Judge: WADE First Paragraph: The defendant, David Howard Proffitt, was convicted of theft of property over $10,000 and less than $60,000 in value, a Class C felony. See Tenn. Code Ann. S 39-14-105. The trial court imposed a Range I sentence of five years, to be served consecutively to a prior sentence for aggravated assault. In this appeal of right, the defendant claims that the evidence was insufficient to support his conviction and that the sentence was excessive. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/proffittdavidh.wpd STATE OF TENNESSEE v. ROBERT D. RING Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney General, for the appellant, State of Tennessee. George Todd East, Kingsport, Tennessee, for the appellee, Robert D. Ring. Judge: WILLIAMS First Paragraph: After pleading guilty to vehicular homicide by intoxication, a Class B felony, the trial court ordered the defendant to serve his eight-year sentence on intensive probation, in-house arrest circumstances, subject further to the following conditions: (a) zero use of alcohol; (b) not own or drive an automobile; (c) alcohol counseling after evaluation; (d) payment of liquidated restitution to the victim's family within twenty-four (24) months; (e) any other conditions deemed prudent after intake of the Probation Department. The State appeals and asserts that the trial court erred in placing this defendant on probation because the trial court failed to consider the victim's impact testimony at the sentencing hearing. We agree that the trial court misapplied the applicable law characterizing the victim's impact testimony as a "victim's impact statement" and unduly limited the consideration of such statement to enhancing and mitigating factors. However, after de novo review of the record, we affirm the trial court's judgment, after considering all evidence presented, including the victim's impact testimony, concluding that the factors favoring an alternative sentence, specifically intensive probation, clearly outweigh any factors favoring incarceration. http://www.tba.org/tba_files/TCCA/ringrd.wpd STATE OF TENNESSEE v. HOWARD W. WEAVER Court:TCCA Attorneys: Charles B. Hill, II, for the Appellant, Howard W. Weaver. Paul G. Summers, Attorney General & Reporter; R. Stephen Jobe, Assistant Attorney General; J. Scott McCluen, District Attorney General; Wayne Henry, Assistant District Attorney General, for the Appellant, State of Tennessee. Judge: WITT First Paragraph: The defendant appeals his convictions of two counts of aggravated sexual battery. He claims that the trial court erred (1) in denying his motion to suppress his statement given to investigators from the Department of Children's Services and sheriff's department, and (2) in failing to require the state to elect the particular offenses upon which it sought convictions. He also claims that the evidence presented at trial is insufficient to support his convictions. Upon review, we accept the state's concession of error in the failure to elect, but we are unpersuaded of merit in the defendant's suppression and sufficiency issues. We reverse the defendant's convictions and remand for a new trial. http://www.tba.org/tba_files/TCCA/weaverhw.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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