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
 

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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

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