March 30, 2001 Volume 7 -- Number 059 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):   03 New Opinion(s) from the Tennessee Supreme Court 04 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 STATE OF TENNESSEE v. GERALD H. SHAFFER Court:TSC Attorneys: Mark E. Stephens, District Public Defender, and Paula R. Voss, Assistant Public Defender, Knoxville, Tennessee, for the appellant, Gerald H. Shaffer. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Todd R. Kelley, Assistant Attorney General, Randall E. Nichols, District Attorney General, and Marsha Selecman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: The Criminal Court for Knox County found that Gerald H. Shaffer had violated the terms of his probation and, on this finding, revoked it. Shaffer appealed and contended that the trial court did not have the authority to revoke probation and that the trial court abused its discretion by basing revocation on new grounds alleged in an amendment to the revocation warrant. The Court of Criminal Appeals affirmed and held that the trial court had the authority to revoke probation and did not abuse its discretion. Because we conclude that the trial court had the authority to revoke Shaffer's probation and did not abuse its discretion in basing the probation revocation on additional grounds alleged in the amendment, we affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/shafferg.wpd DEXTER L. WILLIAMS v. STATE OF TENNESSEE Court:TSC Attorneys: Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General, Nashville, Tennessee, for the appellant, State of Tennessee. John E. Eldridge, Knoxville, Tennessee, for the appellee, Dexter L. Williams. Judge: BAKER First Paragraph: The appellee in this case was convicted of first degree murder and sentenced to life imprisonment. After the Court of Criminal Appeals affirmed the conviction, the appellee averred that his trial counsel failed to notify him of counsel's withdrawal from the case, or to explain to him his rights for filing a pro se petition to this Court. Although a Rule 11 petition was eventually filed, it was dismissed as time-barred. Appellee then filed a post-conviction petition for relief, which the trial court dismissed without a full evidentiary hearing because the appellee was unprepared to present evidence. The Court of Criminal Appeals remanded the case for an evidentiary hearing. The State appealed, arguing that the post-conviction petition was untimely pursuant to the 1995 Post- Conviction Procedure Act and should have been dismissed. We agree that the appellee filed his petition after the statute of limitations had run. However, because the appellee may have been deprived by his counsel of a reasonable opportunity to seek post-conviction relief, due process considerations may have tolled the limitations period during this time when the appellee was unable to seek such relief. Because the record needs further development for this Court to decide this issue, we affirm the decision of the Court of Criminal Appeals to remand the case to the trial court for further evidentiary hearing to determine the circumstances surrounding the appellee's untimely filing of his post-conviction petition. http://www.tba.org/tba_files/TSC/wwilliamsdlopn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/williamsdldis.wpd PHILIP R. WORKMAN v. STATE OF TENNESSEE Court:TSC Attorneys: Robert L. Hutton, Memphis, Tennessee, for the appellant, Phillip R. Workman. Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, Glenn R. Purden, Senior Counsel, Alice B. Lustre, Assistant Attorney General, and John Campbell, Assistant Attorney General, for the appellee, State of Tennessee. George E. Barrett, Edmond L. Carey, Jr., Cecil D. Branstetter, and James G. Stranch, III, Nashville, Tennessee, appearing as Amicus Curiae. Judge: DROWOTA, BIRCH AND HOLDER First Paragraph: Phillip R. Workman filed this action in the Criminal Court for Shelby County, seeking, inter alia, a petition for a writ of error coram nobis. He sought this writ based on claims that new evidence, which was unavailable at his trial and which has never been evaluated in a hearing in this State's courts, shows that he is actually innocent of capital murder. The trial court denied this motion on the basis that the statute of limitations barred consideration of the petition. The Court of Criminal Appeals affirmed. Upon consideration of the application for permission to appeal filed by Workman and the answer in opposition filed on behalf of the State of Tennessee, a majority of this Court concludes that the application should be granted. Because we find, under the circumstances of this case, that due process requires that Workman be granted a hearing to evaluate his claims, we reverse the decision of the Court of Criminal Appeals affirming the trial court's dismissal of the petition for writ of error coram nobis. Accordingly, the stay of execution is granted. The case is remanded to Division III of the Criminal Court for Shelby County for a hearing on the petition for writ of error coram nobis. http://www.tba.org/tba_files/TSC/workmanp.wpd DISSENTING OPINION http://www.tba.org/tba_files/TSC/workmandissent.wpd DORETHA CURRIE v. KAISER ALUMINUM & CHEMICAL CORPORATION, D/B/A TENNALUM Court:TSC - Workers Comp Panel Attorneys: John D. Burleson and Jeffery G. Foster, Jackson, Tennessee, for the appellant, Kaiser Aluminum & Chemical Corporation, d/b/a/ Tennalum. David Hardee, Jackson, Tennessee, for the appellee, Doretha Currie. Judge: DORAN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(1999) for a hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant presents the following issues for review: (1) Whether the trial court erred in finding that plaintiff sustained permanent partial disability as a result of a work-related injury on August 16, 1997; and (2) Whether the trial court's award of 35 percent permanent partial disability to the left arm was supported by a preponderance of the evidence. After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment. http://www.tba.org/tba_files/TSC_WCP/curried.wpd SANDRA G. JACKSON v. GOODYEAR TIRE & RUBBER COMPANY Court:TSC - Workers Comp Panel Attorneys: James M. Glasgow, Jr., Union City, Tennessee, for the appellant, Goodyear Tire & Rubber Company. Jeffrey A. Garrety, Jackson, Tennessee, for the appellee, Sandra G. Jackson. Judge: STAFFORD 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 trial court determined that the plaintiff had suffered a 20% permanent partial disability to her right arm and a 30% permanent partial disability to her left arm as the result of bilateral carpal tunnel syndrome. The defendant submits that the awards are excessive and that the testimony of the independent medical evaluator should be disallowed due to his failure to utilize the AMA Guidelines in determining grip strength loss. For the following reasons, we disallow that portion of the independent medical evaluator's testimony dealing with grip strength loss but affirm the trial court's award of vocational disability. http://www.tba.org/tba_files/TSC_WCP/jacksonsandra.wpd KITTY LOU KIMBRO v. FERRO CORPORATION Court:TSC - Workers Comp Panel Attorneys: Jill A. Hanson, Nashville, Tennessee, for the appellant, Ferro Corporation. Susan K. Bradley, Murfreesboro, Tennessee, for the appellee, Kitty Lou Kimbro. Judge: CATALANO First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e)(3) (1999) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Ferro Corporation raises three issues on appeal, arguing that the trial court erred in (1) finding that the plaintiff had suffered a permanent injury to the left upper extremity, (2) finding a 10 percent anatomical impairment to the left upper extremity, and (3) assessing awards of 45 percent permanent partial disability to the right upper extremity and 30 percent permanent partial disability to the left upper extremity. On review, the Panel concludes that the evidence does not preponderate against the trial court's finding of a permanent injury to the left upper extremity. Furthermore, though we conclude that the trial court's finding of 10 percent anatomical impairment to the left upper extremity was excessive, we nonetheless hold that the evidence does not preponderate against the trial court's awards of 45 percent permanent partial disability to the right upper extremity and 30 percent permanent partial disability to the left upper extremity. http://www.tba.org/tba_files/TSC_WCP/kimbrokitty.wpd CAROLYN SUE MOORE v. WAL-MART STORES, INC. Court:TSC - Workers Comp Panel Attorneys: Jeffrey P. Boyd and Jay L. Johnson, Jackson, Tennessee, for the appellant, Wal-Mart Stores, Inc.. Jeffrey L. Lay, Dyersburg, Tennessee, for the Appellee, Carolyn Sue Moore Judge: MCGINLEY First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer contends this claim is time barred by the statute of limitations and notice provisions and that the award to the workers' scheduled member was excessive. As discussed below, the panel concludes that the judgment of the trial court should be affirmed in all respects. http://www.tba.org/tba_files/TSC_WCP/moorecarolyn.wpd ALLIED SOUND, INC., v. EDDIE W. NEELY and JOHNNY JESS DAVIS Court:TCA Attorneys: George F. Legg, and Eric J. Morrison, Knoxville, Tennessee, for Plaintiff-Appellant, Allied Sound, Inc. Robert S. Stone and Katherine M. Hamilton, Knoxville, Tennessee, for Defendant-Appellee, Eddie W. Neely. P. Edward Pratt, Knoxville, Tennessee, for Defendant-Appellee, Johnny Jess Davis. Judge: FRANKS First Paragraph: In this action alleging misrepresentation, concealment and fraud, the Trial Court granted defendants summary judgment on the grounds that it was unreasonable for plaintiff to rely on any representations made by defendants. On appeal, we affirm. http://www.tba.org/tba_files/TCA/alliedsound.wpd CONCURRING OPINION http://www.tba.org/tba_files/TCA/alliedsoundc.wpd MELANIE DEE CONGER v. TIMOTHY D. GOWDER, M.D. Court:TCA Attorneys: Ronald L. Grimm and William F. Searle, III, Knoxville, Tennessee, for the appellant, Melanie Dee Conger. Debra A. Thompson, Knoxville, Tennessee, for the appellee, Timothy D. Gowder, M.D. Judge: SUSANO First Paragraph: In this medical malpractice case arising out of surgery, the trial court granted the defendant summary judgment on the plaintiff's claims of surgical negligence and lack of informed consent. The plaintiff appeals, arguing (1) that disputed issues of material fact exist that make summary judgment inappropriate and (2) that the trial court erred in refusing to allow the plaintiff to take the depositions of the defendant and another physician pending a hearing on the defendant's motion for summary judgment. Because we find that the trial court erred in refusing to allow the plaintiff to take the subject depositions, we vacate the grant of summary judgment and remand for further proceedings. http://www.tba.org/tba_files/TCA/congermd.wpd STATE OF TENNESSEE v. CHARLIE M. GARDNER Court:TCCA Attorneys: C. Edward Fowlkes and Thomas L. Whiteside, Nashville, Tennessee, for the appellant, Charlie M. Gardner. Paul G. Summers, Attorney General and Reporter; Russell S. Baldwin, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Roger D. Moore, Assistant District Attorney General; and Sharon L. Brox, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The Defendant, Charlie M. Gardner, was found guilty by a Davidson County jury of one count of first degree premeditated murder and two counts of reckless aggravated assault. The jury sentenced the Defendant to life without the possibility of parole for the first degree murder conviction, and the trial court sentenced the Defendant to four years for each reckless aggravated assault conviction, all sentences to be served consecutively. In this appeal, the Defendant challenges (1) the admissibility of hearsay statements as falling within the excited utterance exception, (2) the sufficiency of the evidence as to all three convictions and (3) the fatal variance between the allegations in count two of the indictment and the proof offered at trial. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/gardnercm.wpd THOMAS J. WILLIAMS v. STATE OF TENNESSEE Court:TCCA Attorneys: Thomas J. Williams, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attorney General, for the appellee, State of Tennessee. Judge: HAYES First Paragraph: Thomas J. Williams appeals from the Hickman County Circuit Court's denial of his pro se petition for post-conviction relief. After review, we find the trial court's summary dismissal proper because the petition (1) is time barred; (2) fails to state a colorable claim; and (3) raises claims which are waived as they were not raised in previous petitions. Accordingly, we affirm the trial court's denial of the petition. http://www.tba.org/tba_files/TCCA/williamstj.wpd TCCA ORDER http://www.tba.org/tba_files/TCCA/williamstjord.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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