August 20, 2001 Volume 7 — Number 152 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 06 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 01 New Opinion(s) from the Tennessee Court of Appeals 05 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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink BRIDGESTONE/FIRESTONE, INC. v. PHILLIP GOINS Court:TSC - Workers Comp Panel Attorneys: Katherine Dent Boyte, Nashville, Tennessee, for the appellant, Bridgestone/Firestone, Inc. Scott Daniel, Murfreesboro, Tennessee, for the appellee, Phillip Goins. Judge: CANTRELL First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the 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 case, the employer contends the trial court erred in (1) finding that the gradual aggravation of a claimant's pre-existing arthritic condition over the course of twenty-one years is a compensable accident under the Workers' Compensation Act and (2) assessing a 75% vocational disability for an injury not wholly attributable to employment. As discussed below, the panel has concluded that the judgment of the trial court should be affirmed on both issues. http://www.tba.org/tba_files/TSC_WCP/bridgestonevgoins.wpd WILLIS LEE MELTON v. BUTCH BOWMAN, d/b/a Bowman's Trailer Transport and Repair Court:TSC - Workers Comp Panel Attorneys: Daryl A. Colson, Livingston, Tennessee, for the appellant/employer Butch Bowman, d/b/a Bowman's Trailer Transport and Repair. Randy S. Chaffin, Cameron & Chaffin, Cookeville, Tennessee, for the appellee/employee Willis Lee Melton. Judge: CLEMENT First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. S50-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The issue on appeal presented by employer/appellant is whether the trial court abused its discretion in refusing to grant the appellant's motion pursuant to Rule 60.02(1)(5) of the Tenn. R. Civ. P. The panel has concluded that the judgment of the trial court should be reversed because the notice requirement of due process was not satisfied. http://www.tba.org/tba_files/TSC_WCP/meltonwillislee.wpd JAMES MORRIS v. ZURICH AMERICAN INS. CO., ET AL. Court:TSC - Workers Comp Panel Attorneys: George H. Rieger, II, Leitner, Williams, Dooley & Napolitan, PLLC, Nashville, TN, for the appellants, Zurich American Insurance Co., and The Gap, Inc. William Joseph Butler, Farrar & Holliman, Lafayette, TN, for the appellee, James Morris. Judge: CLEMENT First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The issues on appeal are (1) whether the trial court erred in determining that the employee suffered a compensable work-related shoulder injury, and (2) whether the vocational disability ratings as awarded were excessive. The panel has concluded that the judgment of the trial court should be affirmed. http://www.tba.org/tba_files/TSC_WCP/morrisjames.wpd DONNIE SARTAIN v. ELDECO, INC., ET AL. Court:TSC - Workers Comp Panel Attorneys: John W. Barringer, Jr., Nashville, Tennessee, for the appellants, Eldeco, Inc. and Continental Insurance Company. Joseph E. Ford, Winchester, Tennessee, for the appellee, Donnie Sartain. Judge: CANTRELL 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 case, the employer contends the trial court erred in awarding permanent partial disability in the amount of 75% to the body as a whole and in allowing vocational expert testimony amounting to a legal conclusion. As discussed herein, the panel has concluded that the judgment of the trial court should be affirmed. http://www.tba.org/tba_files/TSC_WCP/sartaindonnie.wpd BOBBY WILLIAM SMITH v. FINDLAY INDUSTRIES, INC., et. al. Court:TSC - Workers Comp Panel Attorneys: Patrick A. Ruth and Michael L. Parsons, Ruth, Howard, Tate & Sowell, Nashville, TN, for the appellants, Findlay Industries, Inc., et. al. William J. Butler, Farrar & Holliman, Lafayette, TN, for the appellee Judge: CLEMENT First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. S 50-6- 225(e)(3) for hearing and reporting findings of fact and conclusions of law. The employer/appellant contends the trial court erred in 1) awarding 100% permanent partial disability to the right upper extremity, and 2) computing the employee's average weekly wage and benefit rate. As discussed herein, the panel has concluded that the judgment awarding 100% permanent partial disability to the right upper extremity should be affirmed, and that the determination of the average weekly wage and benefit rate is incorrect and should therefore be remanded to the trial court. http://www.tba.org/tba_files/TSC_WCP/smithbobby.wpd WAYNE WOOD, D/B/A WAYNE WOOD TIMBER CONTRACTOR, MEADOWBROOK INSURANCE GROUP, and ASSOCIATION SELF INSURANCE SERVICES, INC. v. SAMMY DALE BENSON Court:TSC - Workers Comp Panel Attorneys: Mac E. Robinson, Jr., Nashville, TN for the appellants, Wayne Wood, d/b/a Wayne Wood Timber Contractor, et al Steve Beal, Lexington, TN for the appellee, Sammy Dale Benson Judge: CLEMENT First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. S50-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The issue on appeal is whether the trial court erroneously granted a partial lump sum commutation of permanent total disability benefits. This panel has concluded that the judgment of the trial court should be affirmed as modified. http://www.tba.org/tba_files/TSC_WCP/woodwayne.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0820.wpd STATE OF TENNESSEE, EX REL, PERNIE BARGER, ET AL., v. CITY OF HUNTSVILLE, TENNESSEE, STATE OF TENNESSEE, EX REL, GEORGE BRAWNER, SR., ET AL., v. CITY OF HUNTSVILLE, TENNESSEE Court:TCA Attorneys: David L. Buuck, Knoxville, Tennessee, for Appellant. Andrew R. Tillman, Knoxville, Tennessee, for Appellee. Judge: FRANKS First Paragraph: The Trial Court held service of process on the City's Mayor under Tenn. R. Civ. P. 4.04(8) was insufficient. On appeal, we affirm. http://www.tba.org/tba_files/TCA/bargerp.wpd STATE OF TENNESSEE v. JAMES L. BREEDEN Court:TCCA Attorneys: Raymond Mack Garner, District Public Defender; Shawn G. Graham, Assistant District Public Defender, Maryville, Tennessee; and Julie A. Rice, Knoxville, Tennessee, for the appellant, James L. Breeden. Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Kirk E. Andrews, Assistant District Attorney General, for the appellee, State of Tennessee Judge: TIPTON First Paragraph: The defendant, James L. Breeden, appeals from the one-year sentence to confinement imposed by the trial court for his driving a car in violation of an order under the Habitual Motor Vehicle Offender (HMVO) Act that barred him from driving. He contends that the trial court erred by not imposing a sentence of split confinement with inpatient substance abuse evaluation and treatment. We affirm the trial court. http://www.tba.org/tba_files/TCCA/breedenjl.wpd STATE OF TENNESSEE v. STEVE HILLIARD Court:TCCA Attorneys: Jerry H. Summers, Chattanooga, Tennessee; and Gary D. Gerbitz, Chattanooga, Tennessee, for the appellant, Steve Hilliard. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William H. Cox, III, District Attorney General; C. Parke Masterson, Jr., Assistant District Attorney General; and Rodney C. Strong, Assistant District Attorney General; for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant was indicted for one count of extortion and one count of theft of property over $1000, both Class D felonies. The Defendant requested pretrial diversion, which the prosecutor denied. The Defendant then filed a writ of certiorari to the trial court alleging an abuse of prosecutorial discretion. The trial court affirmed the prosecutor's decision. The Defendant now appeals, arguing that the trial court erred in ruling that the prosecutor did not abuse his discretion in denying pretrial diversion. Finding no error, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hilliards.wpd STATE OF TENNESSEE v. DARRELL PRESNELL Court:TCCA Attorneys: Melinda Meador, Knoxville, Tennessee, for the appellant, Darrell Presnell. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; and James B. Dunn, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, Darrell Presnell, who was indicted for especially aggravated robbery, was convicted of the lesser included offense of aggravated robbery. The trial court imposed a sentence of ten years. In this appeal of right, the defendant contends that (1) there was a fatal variance between the presentment and the proof at trial; (2) the trial court erred by instructing the jury on aggravated robbery as a lesser included offense; and (3) the trial court erred by not instructing the jury on the lesser included offense of robbery. Because the trial court failed to instruct on the lesser offense of robbery, the judgment must be reversed and the case must be remanded for a new trial. http://www.tba.org/tba_files/TCCA/presnelld.wpd STATE OF TENNESSEE v. MARK A. SHULTZ Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Glen C. Watson, Assistant Attorney General; Alfred C. Schmutzer, Jr., District Attorney General; and Charles E. Atchley, Assistant District Attorney General, for the appellant, State of Tennessee. Joe M. Felknor, Knoxville, Tennessee, for the appellee, Mark A. Shultz. Judge: TIPTON First Paragraph: The state appeals the trial court's dismissal of its prosecution of the defendant, Mark A. Shultz, for driving under the influence of an intoxicant (DUI). It contends that the trial court's conclusion that the case had been left unresolved too long could not lawfully justify dismissal. We reverse the trial court and remand the case for further proceedings. http://www.tba.org/tba_files/TCCA/shultzma.wpd STATE OF TENNESSEE v. HAROLD LEONARD WHITE Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Marsha Selecman, Assistant District Attorney General, for the Appellant, State of Tennessee. Mark E. Stephens, District Public Defender; Paula R. Voss (on appeal), Assistant Public Defender; Jim D. Owen (at trial), Assistant Public Defender, Knoxville, Tennessee, for the Appellee, Harold Leonard White. Judge: WEDEMEYER First Paragraph: The Defendant, was arrested in September 1996 for aggravated assault, being a felon in possession of a firearm, and fleeing. His case was not set for trial until July 2000. The Defendant moved for dismissal of the charges on the ground that he had been denied his constitutional right to a speedy trial. The trial court granted the Defendant's motion, and the State now appeals as of right. Concluding that the trial court incorrectly found that the Defendant was prejudiced by the delay, we reverse the trial court's ruling and remand this matter for trial. http://www.tba.org/tba_files/TCCA/whitehl.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! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! 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