June 25, 2001 Volume 7 — Number 115 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 03 New Opinion(s) from the Tennessee Court of Appeals 04 New Opinion(s) from the Tennessee Court of Criminal Appeals 07 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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink MICHAEL T. BURUM v. BNFL, INCORPORATED AND HARTFORD INSURANCE COMPANY et al. Court:TSC - Workers Comp Panel Attorneys: Robert R. Davies, Knoxville, Tennessee, for the appellants, BNFL, Inc. and Hartford Insurance Company. Roger L. Ridenour, Clinton, Tennessee, for the appellee, Michael T. Burum. Judge: BYERS 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 awarded the plaintiff, who fell at work, permanent partial disability of 50 percent to the left leg. We affirm the decision of the trial court. http://www.tba.org/tba_files/TSC_WCP/burum.wpd DANNY MIDDLETON v. PORCELAIN PRODUCTS COMPANY Court:TSC - Workers Comp Panel Attorneys: Richard Baker, Knoxville, Tennessee, for the Appellant, Danny Middleton. Steven B. Johnson, Knoxville, Tennessee, for the Appellee, Porcelain Products Company. Judge: PEOPLES 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) for hearing and reporting of findings of fact and conclusions of law. The employee appeals and contends the trial court erred (1) in finding his medical impairment to be eleven percent instead of eighteen percent to the body, (2) in concluding that he has employment opportunities available locally, and (3) in failing to consider economic feasibility in determining local employment opportunities. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/middletondanny.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0625.wpd HOPEWELL BAPTIST CHURCH v. SOUTHEAST WINDOW MANUFACTURING CO., LLC., et al. Court:TCA Attorneys: Dudley W. Taylor, Knoxville, Tennessee, for the Appellant Southeast Window Manufacturing, LLC. Melanie E. Davis, Maryville, Tennessee, for the Appellee Hopewell Baptist Church. Judge: SWINEY First Paragraph: Hopewell Baptist Church brought suit against defendant Southeast Window Mfg. LLC., alleging that it was a successor corporation and liable under a contractual warranty given by its predecessor. The Trial Court ruled that the defendant was a successor corporation and had expressly or impliedly assumed the obligations under its predecessor's warranty through the acts of its agent. We reverse. http://www.tba.org/tba_files/TCA/hopewell.wpd THE CITY OF JOHNSON CITY, TENNESSEE v. STEVEN M. TAYLOR AND ELEASE R. TAYLOR Court:TCA Attorneys: Steven M. Taylor and Elease R. Taylor, pro se. James D. Culp and James H. Epps, IV., Johnson City, for Appellee. Judge: FRANKS First Paragraph: In this condemnation action, defendants attempted to appeal during pendency of the action in the Trial Court. This Court determined there was no basis to treat the issue as either an interlocutory appeal or extraordinary appeal, and dismissed appeal. http://www.tba.org/tba_files/TCA/johnsoncty.wpd TONYA M. SEXTON v. HARTCO FLOORING COMPANY, A DIVISION OF TRIANGLE PACIFIC CORPORATION Court:TCA Attorneys: David H. Dunaway, LaFollette, Tennessee, for Plaintiff-Appellant, Tonya M. Sexton. Edward Bograd, Charlotte, North Carolina, and Lynn C. Peterson, Knoxville, Tennessee, for Defendant-Appellee, Hartco Flooring Company. Judge: FRANKS First Paragraph: The Trial Court granted defendant summary judgment on plaintiff's claims of sexual harassment and retaliatory discharge from employment. On appeal, we affirm judgment on the sexual harassment claim, but vacate and remand on claim of retaliatory discharge. http://www.tba.org/tba_files/TCA/sextont.wpd STATE OF TENNESSEE v. RICKY EUGENE COFER Court:TCCA Attorneys: William R. Pratt, Clinton, Tennessee, for the appellant, Ricky Eugene Cofer. Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan, Assistant Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Ricky Eugene Cofer, was convicted of aggravated robbery. The trial court imposed a Range II sentence of 15 years. In this appeal of right, the defendant contends that his indictment for aggravated robbery was legally insufficient; that the evidence was insufficient to convict; and that his trial counsel was ineffective. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/coferrickye.wpd STATE OF TENNESSEE v. KENNETH S. GRIFFIN Court:TCCA Attorneys: Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Kenneth Griffin. Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Zane M. Scarlett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Kenneth Griffin, was found guilty of burglary (Class D) and theft (Class D) following a bench trial. He was sentenced as a career offender on each conviction to twelve (12) years incarceration, and the sentences were ordered to be served consecutively. The Defendant, with counsel, appealed the conviction raising the sole issue of the sufficiency of the evidence. This court affirmed. State v. Kenneth S. Griffin, C.C.A. No. 03C01-9811-CR-00406, 1999 Tenn. Crim. App. LEXIS 1316, Knox County (Tenn. Crim. App., Knoxville, Dec. 27, 1999). Subsequently, Defendant timely filed a petition for post-conviction relief alleging, apparently among other issues, that he received ineffective assistance of counsel on appeal because appellate counsel did not raise as an issue the consecutive sentencing ordered by the trial court. The post-conviction court, in a written order, granted Defendant a "delayed appeal" as "authorized under TENNESSEE CODE ANNOTATED SECTION. 40-30-213." The post-conviction court's order limited the delayed appeal to the sole issue "of the correctness of [defendant's] sentence." However, the post-conviction court, while impliedly finding ineffective assistance of counsel for not raising the sentencing issue on direct appeal, made no finding that the Petitioner was prejudiced by the deficient representation. In any event, we find that the granting of a delayed appeal from the original conviction is not authorized by statute, and accordingly, this appeal from the sentence imposed in the original convictions is dismissed. http://www.tba.org/tba_files/TCCA/griffink.wpd STATE OF TENNESSEE v. TAKEITA M. LOCKE Court:TCCA Attorneys: Wade V. Davies (on appeal) and Gerald Lee Gulley, Jr. (at trial), Knoxville, Tennessee, for the appellant, Takeita M. Locke. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and G. Scott Green, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted in the Knox County Criminal Court of especially aggravated robbery and felony murder. She timely appealed, arguing that the State had failed to show that statements she gave while a juvenile were admissible, that the trial court erred in not instructing as to lesser- included offenses or that the jury must find whether felony murder was a "natural and probable consequence" of especially aggravated robbery, and that the evidence was insufficient to sustain the convictions. Based upon our review, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/locketm.wpd FRANKLIN PARTON v. STATE OF TENNESSEE Court:TCCA Attorneys: Franklin Parton, Edgefield, South Carolina, Pro Se. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; and Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: The petitioner/appellant, Franklin Parton, filed a pro se "Petition for Writ of Habeas Corpus" in the Knox County Criminal Court, which was dismissed by the trial court without an evidentiary hearing. Petitioner filed a motion for reconsideration and for treatment of the petition as a petition for writ of error coram nobis. This motion was also summarily denied by the trial court. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/partonf.wpd Impact of Growth Plan on Extension of Sewer Service Date: June 12, 2001 Opinion Number: 01-096 http://www.tba.org/tba_files/AG/OP96.pdf Accounting method under Tenn. Code Ann. S 68-221-1010(a)(2) Date: June 13, 2001 Opinion Number: 01-097 http://www.tba.org/tba_files/AG/OP97.pdf Extraterritorial Power of Eminent Domain for Municipal Utilities Date: June 13, 2001 Opinion Number: 01-098 http://www.tba.org/tba_files/AG/OP98.pdf Local School Board Contract with Outside Provider to Operate School Date: June 18, 2001 Opinion Number: 01-099 http://www.tba.org/tba_files/AG/OP99.pdf City of Knoxville - Recall Petition - Qualified Voters - Home Rule - Constitutionality Date: June 18, 2001 Opinion Number: 01-100 http://www.tba.org/tba_files/AG/OP100.pdf Use of student information collected from private, parochial, and denominational schools Date: June 22, 2001 Opinion Number: 01-101 http://www.tba.org/tba_files/AG/OP101.pdf Legality of extending director of schools' contract Date: June 22, 2001 Opinion Number: 01-102 http://www.tba.org/tba_files/AG/OP102.pdf PLEASE FORWARD THIS E-MAIL! 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