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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