May 29, 2001 Volume 7 — Number 097 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 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 06 New Opinion(s) from the Tennessee Court of Appeals 04 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 SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0529.wpd LARRY W. BARNES v. THE GOODYEAR TIRE AND RUBBER COMPANY Court:TCA Attorneys: Dan M. Norwood and James R. Becker, Jr., Memphis, Tennessee, for the appellant Larry W. Barnes James M. Glasgow, Jr., Union City, Tennessee and Tim K. Garrett and Michael S. Moschel, Nashville, Tennessee, for the appellee The Goodyear Tire and Rubber Company Judge: LILLARD First Paragraph: This is a suit for wrongful termination under the Tennessee Handicap Act, remanded to this Court by the Tennessee Supreme Court. After a jury trial, the jury found that the employer regarded the employee as handicapped and terminated his employment in violation of the Tennessee Handicap Act. The jury awarded the employee $150,000 in back pay and $150,000 for humiliation and embarrassment. The trial court suggested a remittitur, reducing the back pay award to $100,000, and reducing the award for humiliation and embarrassment to $75,000. The defendant was ordered to pay approximately $30,000 in attorney's fees and court costs. The plaintiff employee accepted the remittitur under protest, and both parties appealed. This Court reversed, holding that there was insufficient evidence to permit the jury to find that the employer regarded the plaintiff as "suffering from an impairment which substantially limited a major life activity." Based on this holding, all remaining issues were pretermitted. The Tennessee Supreme Court reversed this Court's holding, finding that there was material evidence to support the jury verdict. The Supreme Court remanded the case for resolution of the pretermitted issues. On remand, we affirm the trial court's remittitur of the award for humiliation and embarrassment, affirm the trial court's award of attorney's fees and court costs, and reverse and remand the trial court's remittitur of the back pay award. http://www.tba.org/tba_files/TCA/barneslw.wpd WALTER CHANDLER v. D. CANALE & CO., et al Court:TCA Attorneys: Plaintiff appeals from a grant of summary judgment in favor of the defendants. The complaint alleged the plaintiff had a partnership with the defendants and accused the defendants of breach of contract. The trial court granted summary judgment for the defendants on the basis of judicial estoppel, concluding the plaintiff had previously testified under oath in prior litigation that he had no ownership interest in the business. We affirm the judgment of the trial court. Judge: RILEY First Paragraph: Plaintiff appeals from a grant of summary judgment in favor of the defendants. The complaint alleged the plaintiff had a partnership with the defendants and accused the defendants of breach of contract. The trial court granted summary judgment for the defendants on the basis of judicial estoppel, concluding the plaintiff had previously testified under oath in prior litigation that he had no ownership interest in the business. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/chandler.wpd IN RE: THE MATTER OF LEOLA DEDMAN, DECEASED PATRICIA HENDERSON JOHNSON AND CATHERINE HENDERSON ZELINSKI, CO-EXECUTORS OF THE ESTATE OF GEORGE HENDERSON V. MARY MURPHY Court:TCA Attorneys: Erich w. Merrill, Memphis, for Appellants Kathleen N. Gomes, Memphis, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from an order of the Probate Court of Shelby County surcharging George Henderson, executor and trustee of the estate of Leola Dedman, in the amount of $11,018.29. This Court granted Mr. Henderson's T.R.A.P. Rule 10 Application for Extraordinary Appeal as to the surcharge. For the reasons stated herein, we affirm the trial court's decision. http://www.tba.org/tba_files/TCA/dedmanleola.wpd DE LAGE LANDEN FINANCIAL SERVICES, INC. v. EARTH LAB PRODUCTIONS, INC., et al. Court:TCA Attorneys: Joseph P. Rusnak, Nashville, for Appellant John R. Branson, Memphis, for Appellee Linda Erickson Ronald D. Tuech, Memphis, for Appellee Earth Lab Productions, Inc. Judge: HIGHERS First Paragraph: This appeal involves a contract dispute. The Appellant alleges that the Appellees made one payment but then failed to continue making payments as per the terms of the agreement. The Appellees, however, assert that consideration for the contract is lacking. At the close of Plaintiff's proof at trial, Defendants moved for an involuntary dismissal pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure, which the trial court granted. For the following reasons, we affirm the decision of the court below. http://www.tba.org/tba_files/TCA/delagelanden.wpd STEFFONE MCCLENDON, FATHER OF DAMIEN O'SHAY MAURICE MCCLENDON, THE NEXT OF KIN OF CYNTHIA VANESSA FRANCIS, DECEASED v. DR. ELAINE BUNICK Court:TCA Attorneys: H. Naill Falls, Jr., James B. Johnson, Nashville, for Appellant Wynne C. Hall, Summer H. Stevens, Knoxville, for Appellee Judge: HIGHERS First Paragraph: In this medical malpractice action, Plaintiff appeals the trial court's entry of summary judgment in favor of the Defendant, Dr. Bunick. For the reasons set forth below, we affirm the trial court in all respects. http://www.tba.org/tba_files/TCA/mcclendonsteffone.wpd SUSAN LOUISE WEISSFELD v. STEVEN CURTIS WEISSFELD Court:TCA Attorneys: John D. Lockridge, Jr., and Scarlett A. Beaty, Knoxville, Tennessee, for Appellant, Susan Louise Weissfeld. Jerrold L. Becker, Samuel W. Brown, and Annie Scott Duncan, Knoxville, Tennessee, for Appellee, Steven Curtis Weissfeld. Judge: FRANKS First Paragraph: In this divorce action the Trial Court divided marital property, set child support, and granted wife limited rehabilitative alimony. Wife appealed. We affirm, as modified. http://www.tba.org/tba_files/TCA/weissfelds.wpd VERNON BERNARD LOVE v. STATE OF TENNESSEE Court:TCCA Attorneys: Marsha W. Johns, Huntingdon, Tennessee, for the appellant, Vernon Bernard Love. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner was originally convicted by a Carroll County jury of the sale of a controlled substance. The conviction was affirmed on direct appeal. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal as a matter of right, the petitioner contends that his trial counsel provided ineffective assistance of counsel. After a thorough review of the record, we conclude that the trial court correctly denied post-conviction relief. http://www.tba.org/tba_files/TCCA/lovev.wpd STATE OF TENNESSEE v. BRENDA REDWINE Court:TCCA Attorneys: H. Randolph Fallin, Mountain City, Tennessee, for the appellant, Brenda Redwine. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Kenneth Carson Baldwin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The defendant, Brenda Redwine, after pleading guilty to possession of Schedule II drugs and simple possession of marijuana, properly reserved a certified question of law for our review. The Johnson County Criminal Court denied her motion to suppress a search warrant that was issued on January 6, 1999. The defendant asserts, by certified question of law, that the search warrant was not properly issued because the affidavit that was the basis for the warrant contained material misrepresentation by the officer. After review, we affirm the trial court's denial of the defendant's motion to suppress. http://www.tba.org/tba_files/TCCA/redwineb.wpd STATE OF TENNESSEE v. MICHAEL D. RIMMER Court:TCCA Attorneys: Paula Skahan and Gerald Skahan, Memphis, Tennessee, for the defendant, Michael Dale Rimmer. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Tonya G. Miner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Thomas D. Henderson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The Defendant appeals his conviction for murder in the first degree and the sentence of death imposed by the jury. This opinion is delivered in two parts, with a separate opinion addressing Part II. In Part I of this opinion we address the following issues: 1. Admission of evidence regarding his escape attempts; 2. Shackling of his feet and hands; 3. Prohibition of mitigation evidence at sentencing; 4. Admission of his statement to police; 5. Propriety of the prosecutor's closing argument; 6. Unconstitutionality of the death penalty; and 7. Proportionality of sentence of death. After careful review, we affirm the conviction for murder in the first degree. In Part II of this opinion, Judge Williams sets forth his minority position on the following issues: (1) Application of the (i)(2) aggravating factor in the imposition of the death penalty; and (2) Cumulative effect of errors. The position of the majority on the issues addressed in Part II is set forth in the separate opinion filed by Judge Witt, in which Judge Hayes has joined. The majority concludes that the verdict is enigmatic and uncertain, requiring reversal of the sentence of death and re-sentencing. http://www.tba.org/tba_files/TCCA/rimmermd_opn.wpd PART 2 http://www.tba.org/tba_files/TCCA/rimmermdc_con.wpd JAMES BYRON TRANSOU v. STATE OF TENNESSEE Court:TCCA Attorneys: Rolf G. S. Hazlehurst, Jackson, Tennessee (on appeal), and Ramsdale O'DeNeal, Jackson, Tennessee (at trial), for the appellant, James Byron Transou. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, James Byron Transou, appeals the trial court's denial of his petition for post- conviction relief. The issues presented for review are (1) whether the petitioner was denied his constitutional right to self-representation; (2) whether the denial of a motion for continuance is a basis for relief; (3) whether the election on the charge made by the state is a basis for relief; and (4) whether the petitioner was denied the effective assistance of counsel. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/transoujamesb.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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