March 2 , 2001
Volume 7 -- Number 039

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
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
05 New Opinion(s) from the Tennessee Court of Appeals
10 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
 

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Lucian T. Pera
Editor-in-Chief, TBALink

						GEORGE THOMAS CARTER v. KENNETH O. LESTER COMPANY
Court:TSC - Workers Comp Panel
Attorneys:  

Kitty Boyte, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for
the appellant, Kenneth O. Lester Company.

William Joseph Butler, E. Guy Holliman, Farrar & Holliman, Lafayette,
Tennessee, for the appellee, George Thomas Carter.                        

Judge: LOSER

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.  In this
appeal, the employer insists the trial court erred in accrediting the
testimony of an examining physician over that of the treating
physician and by exceeding the multiplier applicable in cases where
the employee returns to work at the same or greater wage.  As
discussed below, the panel has concluded the judgment should be
affirmed.

http://www.tba.org/tba_files/TSC_WCP/cartergeorge.wpd


DONNA MARCOM v. PCA APPAREL INDUSTRIES, INC. AND WAUSAU UNDERWRITERS INSURANCE COMPANY, et al. Court:TSC - Workers Comp Panel Attorneys: Martin D. Holmes, Nashville, Tennessee, for Appellants, PCA Apparel Industries, Inc., and Wausau Underwriters Insurance Company Walter F. Nichols, Manchester, Tennessee, for Appellee, Donna Marcom Judge: GRAY 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 S50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff had suffered an injury arising out of her employment with the defendant and awarded her a vocational disability of sixty (60%) percent to the left leg. The defendant argues that the evidence does not support the award of sixty (60%) percent to the left leg based on an anatomical rating of twelve (12%) percent. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/marcomdonna.wpd
JOHN BRITT, et al. v. JOHNNY MASSENGILL, et al. Court:TCA Attorneys: Robert T. Keeton, III, for Appellants No filing on behalf of Appellees Judge: HIGHERS First Paragraph: This is a suit arising from the Appellants' purchase of real property from the Appellees. The Appellees executed a warranty deed to the Appellants. The Appellants claim that the Appellees failed to disclose that the property was subject to a timber contract. The Appellants filed a complaint against the Appellees in the Chancery Court of Henderson County, requesting damages for violation of the Tennessee Consumer Protection Act. The trial court ordered rescission of the contract for the sale of real property. The Appellants appeal the order of the Chancery Court of Henderson County, ordering rescission of the contract for the sale of real property. For the reasons stated herein, we reverse the trial court's decision. http://www.tba.org/tba_files/TCA/brittjohn.wpd
SABRINA BURTON, et al. v. CARROLL COUNTY, TENNESSEE, et al. Court:TCA Attorneys: Robert T. Keeton, Jr. and Robert T. Keeton, III, of Huntingdon for Appellants, Carroll County, Tennessee and Yuma Volunteer Fire Department Ricky L. Wood of Parsons and Michael A. Jaynes of Jackson for Appellees, Sabrina and Michael Burton Judge: CRAWFORD First Paragraph: Plaintiffs, husband and wife, sued county and county's volunteer fire department pursuant to Tennessee Governmental Tort Liability Act seeking damages for wife's personal injuries and husband's loss of consortium sustained while they were patronizing a "haunted house" operated by the volunteer fire department to raise funds. Plaintiffs allege that the defendants were negligent in (1) creating a dangerous and defective condition and failing to correct that condition; (2) failing to warn the public of the dangers and defective condition; and (3) failing to maintain the premises in a reasonably safe condition. The trial court, sitting without a jury, entered judgment for the plaintiffs. Defendants have appealed. The trial court's judgment is affirmed. http://www.tba.org/tba_files/TCA/burtonsab.wpd
IN THE MATTER OF: JALEESA CHANTELLE DAVIS Court:TCA Attorneys: Scot A. Bearup, Memphis, For Appellant, Angela Busigo Andrew Bernstein, Memphis, For Appellant, Curtis Davis Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Assistant Attorney General, For Appellee, State of Tennessee, Department of Children's Services Judge: CRAWFORD First Paragraph: The Shelby County Juvenile Court terminated parental rights of the natural mother and father of minor child. Parents have appealed. We affirm. http://www.tba.org/tba_files/TCA/davisjal.wpd
RONALD M. GUY v. MUTUAL OF OMAHA INSURANCE COMPANY Court:TCA Attorneys: Herbert E. Gerson, Thomas J. Walsh, Jr., Timothy S. Bland, Memphis, Tennessee, for the appellant, Mutual of Omaha Insurance Company. Donald A. Donati, Memphis, Tennessee, for the appellee, Ronald M. Guy. Judge: First Paragraph: This is a retaliatory discharge case. The plaintiff employee reported to government authorities the illegal activities of a third party, which resulted in adverse consequences to the employer. The plaintiff alleged that he was discharged in retaliation for reporting the illegal activities. The employer's motion for summary judgment was denied, and the employer then filed this interlocutory appeal. We hold, inter alia, that the Tennessee whistleblower statute is not limited to reports of illegal activities of the employer, and that any claims to which the whistleblower statute is applicable must meet the requirements of the statute. The whistleblower statute is not applicable to the plaintiff's claims in this case, because the plaintiff was not aware at the time of the report that it could result in adverse consequences to the employer, and the plaintiff did not face the choice between reporting the illegal activities or keeping his job. The plaintiff states a common law claim for retaliatory discharge in violation of public policy, and proffers sufficient evidence for a trier of fact to find that retaliation was a substantial factor in his discharge. Therefore, the denial of the employer's motion for summary judgment is affirmed. http://www.tba.org/tba_files/TCA/guyrm.wpd
LULA FAYE MOODY, et vir v. GENERAL MOTORS CORPORATION, ET AL. Court:TCA Attorneys: Lula Faye Moody, Pro se. William Earl Moody, Pro se. Louis F. Allen and William F. Burns, Memphis, Tennessee, for the appellee, Townsend Chevrolet- Buick-Pontiac, Inc. Judge: FARMER First Paragraph: Plaintiffs sued General Motors Corporation and Townsend Chevrolet-Buick-Pontiac, Inc. as a result of injuries sustained by Ms. Moody as a result of a single car accident. In a separate complaint they sued Townsend alleging that it had sold them a purportedly new vehicle when in fact the odometer had been rolled back. The cases were consolidated for trial and the accident case resulted in a jury verdict in favor of the defendants. The case involving the odometer was dismissed by the trial court. Appellants failed to present this court with either a transcript or a statement of the evidence. We affirm. http://www.tba.org/tba_files/TCA/moodylulaf.wpd
STATE OF TENNESSEE v. CURTIS CLEGGINS Court:TCCA Attorneys: Joseph S. Ozment, Memphis, Tennessee, for the appellant, Curtis Cleggins. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alanda Horne Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, indicted for aggravated sexual battery for intentionally engaging in sexual contact with a child under the age of thirteen, pled guilty to one count of sexual battery, a Class E felony, and received a two-year sentence. The trial court ordered that the defendant serve ninety consecutive days in jail, with the remainder of the sentence suspended, and the defendant placed on three years' probation. Counseling was ordered as a condition of probation. The defendant challenges the sentencing imposed, arguing that the trial court erred in denying his requests for full probation, service of his sentence of incarceration on weekends, or judicial diversion. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/clegginsc.wpd
STATE OF TENNESSEE v. MICHAEL R. FLOYD ORDER Court:TCCA First Paragraph: The defendant Michael R. Floyd pled guilty to possession with intent to sell over .5 grams of cocaine and over one half ounce of marijuana. For these offenses he received agreed upon sentences of eight (8) years and one (1) year, respectively, as a Range I, standard offender. In addition, his plea agreement included two-thousand dollar ($2,000.00) fines for each offense. Following a subsequent sentencing hearing, the trial court ordered the sentences to run concurrently to one another and the defendant to serve six months of this period in the county jail with the remainder to be served on supervised probation. The defendant thereafter brought this appeal contending that the trial court erred by ordering him to serve a period of incarceration. However, we are unable to determine whether error occurred because of the insufficiency of the record on appeal. Therefore, we affirm the judgment of the trial court pursuant to Rule 20 of the Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/floydmr.wpd
ANTHONY M. FREEMAN v. STATE OF TENNESSEE Court:TCCA Attorneys: Anthony M. Freeman, Talladega, Alabama, Pro Se. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General; and William L. Gibbons, District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Petitioner, Anthony M. Freeman, appeals the dismissal of his petition seeking a writ of habeas corpus and/or post-conviction relief. We conclude the petition does not state a cognizable claim for habeas corpus relief, and the petition was filed beyond the statute of limitations for post-conviction relief. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/freemanam.wpd
STATE OF TENNESSEE v. ANTONIO JACKSON Court:TCCA Attorneys: Jeffery S. Glatstein, Memphis, Tennessee, for the appellant, Antonio Jackson. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; Paula Wulff, Assistant District Attorney General; and Patience Branham, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant appeals his convictions for facilitation of first degree murder and especially aggravated kidnapping. He raises issues regarding the sufficiency of the evidence relative to accomplice testimony, the competency of a witness, the exhibition of the victim's skull to the jury, and the failure to merge the convictions for due process and double jeopardy purposes. We affirm the trial court. http://www.tba.org/tba_files/TCCA/Jacksona.wpd
STATE OF TENNESSEE v. ANTHONY WAYNE LANKFORD and CHRISTOPHER ARTHUR McKEON Court:TCCA Attorneys: Gary F. Antrican, District Public Defender, Somerville, Tennessee, for the appellant, Anthony Wayne Lankford, and Michael W. Whitaker, Covington, Tennessee, for the appellant, Christopher Arthur McKeon. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: This case raises issues of first impression in Tennessee. The defendants are convicted felons from Montana who were sent to serve portions of their Montana sentences at a private, for-profit prison facility in Tennessee. Following their escape from the Tennessee facility, the defendants were each convicted of one count of escape, in violation of Tennessee Code Annotated Section 39-16-605. The defendants now appeal their convictions, raising two interrelated issues: 1) whether Tennessee's escape statute makes it a crime for a prisoner who has not been convicted under Tennessee law to escape from a private prison in this state; and 2) whether they were unlawfully imprisoned in Tennessee. After a thorough review of applicable law, we conclude that Tennessee Code Annotated Section 39-16-605, by its plain language, applies to the escape of an out-of-state prisoner from a private prison facility in this state. We further conclude that the defendants, duly convicted of crimes in Montana and incarcerated at the private prison pursuant to a contract between the Montana Department of Corrections and a private prison company, were not unlawfully imprisoned in Tennessee. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/lankfordaw.wpd
STATE OF TENNESSEE v. MICHAEL P. MALLEY Court:TCCA Attorneys: Ivan D. Harris, Jr., Collierville, Tennessee, for the appellant, Michael P. Malley. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Camille N. McMullen, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted by a Shelby County jury of assault, a Class A misdemeanor. He was sentenced to the maximum term of eleven months and twenty-nine days, to be served as a split sentence with five months and twenty-nine days served in confinement at the workhouse, and the balance served on probation. In this appeal as of right, the defendant asserts that the trial court erred in allowing the victim, his former wife, to testify as to two other bad acts committed by the defendant, one a prior beating incident and the other an act of vandalism of the victim's car. Having reviewed the entire record, we conclude that the trial court did not abuse its discretion in allowing the testimony. Judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/malleymp.wpd
STATE OF TENNESSEE v. EDWARD MITCHELL Court:TCCA Attorneys: A.C. Wharton, Jr., District Public Defender; Garland Ergueden, Assistant Public Defender; and Robert Felkner, Assistant Public Defender, for the appellant, Edward Mitchell. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The defendant, Edward Mitchell, appeals as of right from his conviction by a jury in the Shelby County Criminal Court for two counts of aggravated assault, a Class C felony. His sole issue on appeal is whether the trial court erred by denying him a continuance because of the unavailability of a witness. After a review of the record, we reverse the judgment of the trial court and remand for a new trial. http://www.tba.org/tba_files/TCCA/mitchelle.wpd
STATE OF TENNESSEE v. DAVID PLUNK Court:TCCA Attorneys: Charles S. Kelly, Dyersburg, Tennessee (at trial) and Joseph S. Ozment, Memphis, Tennessee (at trial and on appeal), for the appellant, David Plunk. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and Clayburn L. Peeples, District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Crockett County jury convicted the defendant of premeditated first degree murder, and the trial court sentenced him to life imprisonment. In this appeal as a matter of right, the defendant challenges (1) the introduction of statements he made to officers, and (2) the sufficiency of the evidence. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/plunkd.wpd
STATE OF TENNESSEE v. JEFFERY SCOTT SHANDS Court:TCCA Attorneys: Joe H. Byrd, Jr., Jackson, Tennessee, for the appellant, Jeffery Scott Shands. Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; James (Jerry) Woodall, District Attorney General; Christopher Shultz, Assistant District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The defendant, Jeffery S. Shands, challenges the trial court's order upholding the District Attorney General's denial of pretrial diversion for the charges of criminally negligent homicide and reckless driving. He contends that the District Attorney abused his discretion in failing to consider and weigh all of the relevant factors presented in the evidence. After a review of the record and the applicable law, we affirm the trial court's order denying pretrial diversion. http://www.tba.org/tba_files/TCCA/shandsjs.wpd
STATE OF TENNESSEE v. CEDRIC TERRY Court:TCCA Attorneys: Michael E. Scholl, Memphis, Tennessee, for the appellant, Cedric Terry. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; John W. Campbell and Rosemary S. Andrews, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Shelby County jury convicted defendant of one count of premeditated first degree murder and two counts of attempted first degree murder. Defendant was sentenced to life imprisonment for first degree murder and twenty years for each attempted first degree murder conviction. The two twenty- year sentences run concurrently with each other but consecutively to the defendant's life sentence. In this appeal as of right, defendant challenges: (1) the trial court's denial of his motion to suppress his identification by the two surviving victims, (2) the sufficiency of the evidence, and (3) the length and consecutive nature of his sentences. Upon our review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/terryc.wpd

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