August 22, 2001 Volume 7 — Number154 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):   02 New Opinion(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Court of Appeals 06 New Opinion(s) from the Tennessee Court of Criminal Appeals 04 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 STATE OF TENNESSEE v. ROBERT DERRICK JOHNSON Court:TSC Attorneys: John E. Herbison, Nashville, Tennessee, for the appellant, Robert Derrick Johnson. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Marvin E. Clements, Jr., Assistant Attorney General; William Michael McCown, District Attorney General; Robert G. Crigler and Hollynn Hewgley, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: DROWOTA First Paragraph: We granted this appeal to consider two issues: whether the evidence introduced at trial indicated two separate offenses of sexual battery such that the trial court erred in failing to require the State to make an election at the close of the proof; and (2) whether the trial court erred in failing to give the jury an enhanced unanimity instruction. The Court of Criminal Appeals found that no election was required because the proof did not establish two separate offenses but concluded that the trial court erred by failing to give an enhanced unanimity instruction. However, the Court of Criminal Appeals found the error harmless and affirmed the defendant's conviction. After a careful and thorough review of the record and relevant authority, we agree with the Court of Criminal Appeals that the proof in this case indicates only one offense, with the two touches establishing one element, sexual contact, of the charged offense, sexual battery. Therefore, we conclude that the trial court did not err in failing to require an election. However, we do not agree that the trial court erred in failing to give the jury an enhanced unanimity instruction. Accordingly, we affirm the judgment of the Court of Criminal Appeal on the separate grounds stated. http://www.tba.org/tba_files/TSC/johnsonrobertderrick.wpd CONCURRING AND DISSENTING http://www.tba.org/tba_files/TSC/johnsonrobertderrick_dis.wpd DOROTHY G. MACKIE, et al. v. YOUNG SALES CORPORATION, et al. Court:TSC Attorneys: H. Douglas Nichol and Gregory D. Onks, Knoxville, Tennessee, for the appellant, Dorothy G. Mackie Bryan Essary, Nashville, Tennessee, for the appellee, Young Sales Corporation. Judge: ANDERSON First Paragraph: We granted review in this workers' compensation case to determine whether the trial court erred in awarding temporary total benefits and death benefits based on the maximum weekly wage where the employee did not earn any wages in the 52 weeks prior to being diagnosed with malignant mesothelioma. On appeal, the Special Workers' Compensation Appeals Panel concluded that the trial court erred in awarding benefits based on the maximum weekly wage because the employee was voluntarily retired at the time of his diagnosis, and that benefits were to be based on the minimum weekly wage. After reviewing the record and applicable authority, we conclude that an employee's voluntary retirement does not preclude workers' compensation benefits for an injury arising out of and in the course of employment and that the trial court properly awarded benefits based on the maximum weekly rate under the facts of this case. http://www.tba.org/tba_files/TSC/mackiedorothyg.wpd WAYNE FANNING, et al. v. SHIRLEY B. WALLEN Court:TCA Attorneys: Ben W. Hooper, III, Newport, Tennessee, and Thomas N. McAdams, Knoxville, Tennessee, for the appellant, Shirley B. Wallen. Robert N. Goddard, Maryville, Tennessee, for the appellees, Wayne Fanning and wife, Janet Fanning. Judge: SUSANO First Paragraph: This case involves a dispute over a right-of-way. Following a bench trial, the court below decreed that the plaintiffs, Wayne Fanning and wife, Janet Fanning, have a 40-foot right-of-way across two tracts of land owned by the defendant, Shirley B. Wallen, providing access from the plaintiffs' property to a public road. The defendant appeals, arguing that the original reservation of the right-of- way by the defendant's grantor was not valid. The defendant further argues that, even if the reservation of the right-of-way was valid, the trial court erred in locating it as the court did. We affirm. http://www.tba.org/tba_files/TCA/fanningw.wpd BRENDA C. KING v. DANNY F. KING, D.V.M. Court:TCA Attorneys: Robert L. Jackson and Stanley Kweller, Nashville, Tennessee, for the appellant, Danny F. King. Marlene Eskind Moses and Thomas F. Bloom, Nashville, Tennessee, for the appellee, Brenda C. King. Judge: LILLARD First Paragraph: This is a divorce case. The parties divorced after 31 years of marriage. The trial court granted the wife a divorce on the grounds of inappropriate marital conduct. The wife was awarded alimony in futuro in the amount of $6000 per month for two years. After two years, the wife would receive $4500 per month and, upon remarriage, the amount of alimony in futuro would decrease to $2000 per month. The trial court also ordered the husband to pay $10,000 of the wife's attorney's fees. Both parties appeal; the wife appeals the division of marital property and the husband appeals the award of alimony. We affirm in part, modify in part, and reverse in part, affirming the award of alimony in futuro, modifying the amount of alimony and eliminating the award of alimony in futuro after the wife's remarriage. http://www.tba.org/tba_files/TCA/kingbc.wpd FRANCES I. LUNA, et al. v. MICHAEL ROSS BREEDING, et al. Court:TCA Attorneys: Eugene N. Bulso, Jr. and Barbara Hawley Smith, Nashville, Tennessee, for the appellant, Robert Orr/Sysco Food Services LLC. John C. Knowles, Sparta, Tennessee, for the appellees, Frances I. Luna and Gary Luna. Judge: FARMER First Paragraph: Plaintiffs voluntarily dismissed their suit for personal injuries and damages. Defendants then filed a motion for discretionary costs with accompanying affidavit as to reasonableness and necessity. The motion was denied and Defendants appeal, contending the trial court abused its discretion in disallowing their motion. We find it did not and affirm. http://www.tba.org/tba_files/TCA/lunafrancesI.wpd WILLIAM C. MARTIN v. DOUGLAS M. SIZEMORE, et al. Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter, and Sara L. Rosson, Deputy Attorney General, Nashville, Tennessee, for the appellants, Douglas M. Sizemore, Tennessee State Board of Architectural and Engineering Examiners, Theodore E. Wynne, William H. Beaty, Ronald V. Gobble, David O. Lose, Richard A. Piske, Jr., Gary L. Rowe, John W. Smith, Linda E. Smith, and Willard Vance Travis, Jr. David N. Garst, Knoxville, Tennessee, for the appellee, William C. Martin. Judge: KOCH First Paragraph: This appeal involves a disciplinary proceeding against a licensed architect. Following a lengthy hearing, the Tennessee Board of Examiners for Architects and Engineers concluded that the architect had engaged in misconduct in the practice of architecture in connection with four projects and suspended his certificate of registration for three years. The architect appealed the Board's decision to the Chancery Court for Davidson County. The trial court reversed the Board's decision after determining that the decision was not supported by substantial and material evidence. On this appeal, the Board asserts that its suspension of the architect's certificate of registration has adequate evidentiary support. The architect renews his argument that the Board's proceedings violated his procedural due process rights because the attorney who prosecuted the State's case against him also served as the Board's lawyer in other matters. Except for a portion of the charges involving one project, we concur with the trial court's conclusion that the Board's decision lacked evidentiary support because the State failed to present expert testimony regarding the applicable standard of care. We have also determined that the architect has not carried his burden of demonstrating that the Board was actually biased against him because the lawyer who prosecuted the State's case also provided other, unrelated legal services to the Board. Accordingly, we affirm the trial court's judgment as modified herein and remand the case to the Board for further proceedings. http://www.tba.org/tba_files/TCA/martinwc.wpd KEVIN SANDERS, et al. v. LINCOLN COUNTY, et al. Court:TCA Attorneys: Kevin Sanders, Fayetteville, Tennessee, Pro Se. Gregory H. Oakley and Christopher W. Cardwell, Nashville, Tennessee, for the appellees, Lincoln County, Tennessee and Steve Graham. Judge: CAIN First Paragraph: This case questions the defendants' decision to remove Gill Road and Endsley Road from the county road list, thereby exempting landowners on these roads from the stock gap removal policy of the county affecting public roads. Plaintiff claims such action violates constitutional equal protection rights. The jury returned a verdict in favor of the defendants. The plaintiffs assert that the jury's verdict is contrary to the weight of the evidence and that the trial court erred by submitting an incomplete and misleading verdict form to the jury. The trial court approved the jury verdict for the defendant and we affirm. http://www.tba.org/tba_files/TCA/sanderskevin.wpd DANNY RAY THOMAS v. DR. MOLLY P. O'TOOLE, et al. Court:TCA Attorneys: Danny Ray Thomas, Clifton, Tennessee, Pro Se. George A. Dean, Nashville, Tennessee, for the appellees, Dr. Molly P. O'Toole and Dr. Donald J. Boatright. Judge: CAIN First Paragraph: Appellant, Danny Ray Thomas, a prison inmate, brought suit against two medical doctors, Molly P. O'Toole and Donald J. Boatright, on September 1, 2000 alleging various acts of malpractice. On November 9, 2000, Plaintiff sought a default judgment. On November 15, 2000, counsel for Defendants made his appearance and, on November 22, 2000, answered the complaint. Both Defendants filed motions for summary judgment, which motions were granted by the trial court. Plaintiff appealed, and after consideration, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCA/thomasdanny.wpd Applicability of the Blind Vendors Program, Tenn. Code Ann. SS 71-4-501, et seq., to municipalities Date: August 17, 2001 Opinion Number: 01-128 http://www.tba.org/tba_files/AG/OP128.pdf Authority to Establish a Credit Card Bank Date: August 17, 2001 Opinion Number: 01-129 http://www.tba.org/tba_files/AG/OP129.pdf Authority of Juvenile Court to Detain Child on Pending Delinquency Charges Date: August 20, 2001 Opinion Number: 01-130 http://www.tba.org/tba_files/AG/OP130.pdf Responsibility for Collecting Litigation Tax in Appeals Date: August 20, 2001 Opinion Number: 01-131 http://www.tba.org/tba_files/AG/OP131.pdf 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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