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October 9, 2001
Volume 7 — Number 186
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):
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| 00 |
New Opinion(s) from the Tennessee Supreme Court |
| 04 |
New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel |
| 00 |
New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court |
| 03 |
New Opinion(s) from the Tennessee Court of Appeals |
| 10 |
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 |
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink
ARGONAUT INSURANCE COMPANY, as workers' compensation carrier of
G.UB.MK. Constructors v. BOBBY E. STILES v. JIM FARMER, Director of
the Division of Worker's Compensation, Tennessee Department of Labor
Court:TSC - Workers Comp Panel
Attorneys:
J. Bartlett Quinn, Chattanooga, Tennessee, for the Appellant Bobby E.
Stiles
E. Blaine Sprouse, Nashville, Tennessee, for the Appellee Jim Farmer,
Director of Division of Worker's Compensation, Tennessee Department of
Labor.
Judge: PEOPLES
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 of findings of fact and conclusions of law. The employee
appeals an award of twenty percent permanent partial disability as
inadequate. We modify the award.
http://www.tba.org/tba_files/TSC_WCP/argonautvstiles.wpd
MARTHA FRITTS V. BRADLEY HEALTHCARE AND REHABILITATION
Court:TSC - Workers Comp Panel
Attorneys:
Fred C. Stantum, III, Nashville, Tennessee, for the Appellant Bradley
Healthcare & Rehabilitation
M. Drew Robinson, Cleveland, Tennessee, for the Appellee Martha Fritts
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 employer appeals and contends the trial court
erred (1) in granting an award because the employee failed to
establish causation by medical proof, and (2) in accepting the
independent medical examiner's impairment rating. We affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TSC_WCP/frittsvbradley.wpd
BILLY RICHARD KEITH v. CINCINNATI INSURANCE COMPANY, et al.
Court:TSC - Workers Comp Panel
Attorneys:
Michael Lee Parsons, Nashville, Tennessee, for the appellant, Carrier
Corporation.
William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee, for
the appellee, Billy Richard Keith.
Judge: LOSER
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
appeal, the employer-appellant contends (1) the award of permanent
partial disability benefits based on 30 percent to the body as a whole
and 20 percent to the leg violates Tenn. Code Ann. S50-6-207(3)(C) and
(2) the conditional award of permanent partial disability benefits
based on 40 percent to the body as a whole is excessive. As discussed
below, the panel has concluded the separate awards to a scheduled
member and the body as a whole should be vacated and the conditional
award of permanent partial disability benefits based on 40 percent to
the body as a whole affirmed.
http://www.tba.org/tba_files/TSC_WCP/keithbillyrichard.wpd
DONALD MONSON v. UNITED PARCEL SERVICES, INC., AND JAMES FARMER,
DIRECTOR, DIVISION OF WORKERS' COMPENSATION, TENNESSEE DEPARTMENT OF
LABOR, SECOND INJURY FUND
Court:TSC - Workers Comp Panel
Attorneys:
James T. Shea, IV, Knoxville, Tennessee for the Appellant United
Parcel Service, Inc.
Jess D. Campbell, Knoxville, Tennessee for the Appellee Donald Monson
Judge: PEOPLES
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 S50-6- 225(e)(3) for hearing and
reporting of findings of fact and conclusions of law. The employer
appeals the trial court award of sixty percent permanent vocational
disability benefits. We affirm.
http://www.tba.org/tba_files/TSC_WCP/monsonvups.wpd
HEIDI JEAN BROOKS v. WILLIAM WALL BROOKS
Court:TCA
Attorneys:
Vivian L. Crandall, Oak Ridge, Tennessee, for the Appellant, Heidi
Jean Brooks.
Robert W. Wilkinson, Oak Ridge, Tennessee, for the Appellee, William
Wall Brooks.
Judge: SWINEY
First Paragraph:
After twenty-four years of marriage, Heidi Jean Brooks ("Wife") sought
a divorce from her husband, William Wall Brooks ("Husband"), on the
grounds of inappropriate marital conduct and indignities. See Tenn.
Code Ann. SS 36-4-101(11)-(12). After hearing testimony at trial and
upon Husband's motion, the Trial Court dismissed Wife's Complaint for
Absolute Divorce, holding that Wife did not sustain her burden of
proof to warrant an award of divorce. Wife appeals. We affirm.
http://www.tba.org/tba_files/TCA/brookshj.wpd
MARTHA McELROY v. NORMA SHARP and VICTORIA L. SHARP
Court:TCA
Attorneys:
Jerry M. Martin, Knoxville, Tennessee, for Appellants.
B. Chase Kibler, Knoxville, Tennessee, for Appellee.
Judge: FRANKS
First Paragraph:
The Trial Court allocated fault between vehicle operators involved in
the accident. Defendants appeal the allocation. We affirm.
http://www.tba.org/tba_files/TCA/mcelroym.wpd
PERO'S STEAK AND SPAGHETTI HOUSE and LOUIS INN v. ELIZABETH JEAN
HINKLE LEE and FIRST AMERICAN NATIONAL BANK and FIRST TENNESSEE BANK
NATIONAL ASSOCIATION
Court:TCA
Attorneys:
James S. Tipton, Jr., and W. Morris Kizer, Knoxville, Tennessee, for
Plaintiffs-Appellants, Pero's Steak and Spaghetti House and Louis Inn.
Stephen G. Anderson, Knoxville, Tennessee, for Defendant-Appellee,
First Tennessee Bank National Association.
Judge: FRANKS
First Paragraph:
Plaintiffs' action against defendant Bank was dismissed by the Trial
Court on the ground the statute of limitation, Tenn. Code Ann.
S47-3-118(g) had run. On appeal, we affirm.
http://www.tba.org/tba_files/TCA/peros_opn.wpd
SUSANO DISSENTING
http://www.tba.org/tba_files/TCA/peros_dis.wpd
STATE OF TENNESSEE v. JOHN T. BLACKSMITH
Court:TCCA
Attorneys:
Hollis I. Moore, Jr., Nashville, Tennessee, for the Appellant, John T.
Blacksmith.
Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; James Sledge, Assistant District Attorney General, for the
Appellee, State of Tennessee.
Judge: MOORE
First Paragraph:
The defendant, John Blacksmith, appeals his Davidson County Criminal
Court jury conviction of second-offense driving while under the
influence of an intoxicant (DUI). He claims (1) that the evidence was
insufficient to support the jury's conclusion that, while intoxicated,
he was in physical control of an operable motor vehicle and (2) that
the trial court erred in refusing to grant a mistrial when a state's
witness introduced inadmissible evidence that besmirched the
defendant's character. We discern no reversible error and affirm the
trial court's judgment.
http://www.tba.org/tba_files/TCCA/blacksmithjt.wpd
STATE OF TENNESSEE v. DERRICK BRYANT
Court:TCCA
Attorneys:
D. Clifton Barnes, Morristown, Tennessee (on appeal), and Mark S.
Stapleton, Rogersville, Tennessee (at trial), for the appellant,
Derrick Bryant.
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; Berkeley Bell, District Attorney General;
John Dugger, Assistant District Attorney General, for the appellee,
State of Tennessee.
Judge: WADE
First Paragraph:
The defendant, Derrick Bryant, was convicted of first degree
premeditated murder. See Tenn. Code Ann. S 39-13-202(a)(1). The jury
sentenced him to life imprisonment with the possibility of parole. In
this appeal of right, the defendant asserts that the trial court erred
by (1) failing to suppress his confession; (2) denying his last
requested continuance; (3) accepting transfer of the case from the
juvenile court; and (4) excluding evidence of the victim's reputation
for violence. The judgment of the trial court is affirmed.
http://www.tba.org/tba_files/TCCA/bryantderrick.wpd
STATE OF TENNESSEE v. CHARLES L. DEBUTY
Court:TCCA
Attorneys:
Julie A. Rice, Knoxville, Tennessee (on appeal); Raymond Mack Garner,
District Public Defender; and Shawn G. Graham, Assistant District
Public Defender (at trial), for the appellant, Charles L. Debuty.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and William R. Reed, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The defendant pled guilty in the Blount County Circuit Court to four
charges of theft and one charge of automobile burglary. The court
sentenced him to an aggregate sentence of four years, with seven
months in jail, and the balance to be served on intensive probation.
In this appeal as of right, the defendant argues that the trial court
imposed an excessive amount of incarceration. After careful review of
the record, we affirm the defendant's sentence but remand for entry of
a corrected judgment in No. C-12607.
http://www.tba.org/tba_files/TCCA/debutycharlesl.wpd
STATE OF TENNESSEE v. EVELYN ELISSA DUCKETT
Court:TCCA
Attorneys:
Raymond Mack Garner, District Public Defender, and Stacey D.
Nordquist, Assistant District Public Defender, for the appellant,
Evelyn Duckett.
Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and William R. Reed, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The defendant was indicted for robbery and convicted of misdemeanor
theft, for which she was sentenced to eleven months and twenty-nine
days, and payment of restitution, with the defendant to serve thirty
percent of the sentence. She timely appealed, arguing that the entire
sentence should have been probated. Based upon our review, we affirm
the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/duckettevelyn.wpd
STATE OF TENNESSEE v. HAISON FIELDS
Court:TCCA
Attorneys:
John B. Nisbet, III, Cookeville, Tennessee (on appeal); Donna Orr
Hargrove, District Public Defender; and Andrew Jackson Dearing, III,
Assistant Public Defender, Shelbyville, Tennessee (at trial) for the
appellant, Haison Fields.
Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; J. W. Michael McCown, District Attorney
General; Michael D. Randles, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: WOODALL
First Paragraph:
The defendant, Haison Fields, was convicted by a Bedford County jury
of attempted first degree murder, Tenn. Code Ann. S 39-13-202, a Class
A felony. After a sentencing hearing, the trial court imposed upon
Defendant the maximum possible sentence of twenty-five years. In this
appeal, Defendant presents the following issues: (1) the evidence
presented at trial was insufficient to sustain his conviction; (2) the
trial court erred by failing to instruct the jury on numerous
lesser-included offenses as required under State v. Burns, 6 S.W.2d
453 (Tenn. 1999); and (3) the trial court erred by failing to give
proper weight to an applicable mitigating factor which resulted in
Defendant receiving the maximum sentence: twenty-five years.
Following a review of the record, we affirm the judgment of the trial
court.
http://www.tba.org/tba_files/TCCA/fieldshaison.wpd
STATE OF TENNESSEE v. RANDALL LLOYD HILL
Court:TCCA
Attorneys:
Michael J. Love, Clarksville, Tennessee, for the appellant, Randall
Lloyd Hill.
Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Dan Alsobrooks, District Attorney General;
and Robert Wilson, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
On July 18, 1997, the Defendant, Randall Lloyd Hill, was convicted of
one count of incest. After a sentencing hearing, the trial court
imposed a sentence of five years to be served in the Department of
Correction. In this appeal as of right, the Defendant argues that (1)
his incest conviction subjected him to double jeopardy, (2) he was
convicted solely on uncorroborated accomplice testimony, (3) the trial
court erred in allowing inappropriate opinion testimony from a child
abuse investigator, and (4) the Defendant was prejudiced by the
prosecutor's improper comments regarding the Defendant's decision not
to testify. Because we conclude that the prosecutor improperly
commented on the Defendant's election not to testify, we reverse the
Defendant's conviction and remand the case for a new trial.
http://www.tba.org/tba_files/TCCA/hillrl.wpd
JOSEPH HOUGH v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Joseph Hough, Mountain City, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Thomas E. Williams,
III, Assistant Attorney General; C. Berkeley Bell, District Attorney
General; and Victor J. Vaughn, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The petitioner's first post-conviction petition was dismissed in 1996,
the petitioner, apparently, having been released from custody before
the hearing and not appearing at the hearing to testify. Back in
custody, at some point, he filed in 2000 a motion to reopen his
petition, which was denied. He then filed an untimely appeal from
that dismissal and proceeded, on appeal, as if the motion had been
granted and the issues were those raised in his 1996 petition. Based
upon our review, we conclude that the appeal should be dismissed
because it was untimely.
http://www.tba.org/tba_files/TCCA/houghjoseph.wpd
STATE OF TENNESSEE v. CHRISTOPHER JOSEPH JOHNSON
Court:TCCA
Attorneys:
Christopher Joseph Johnson, Pro Se.
Paul G. Summers, Attorney General & Reporter; R. Stephen Jobe,
Assistant Attorney General; Randall E. Nichols, District Attorney
General, for the Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
The defendant appeals the trial court's dismissal of his motions
seeking relief from the collection of litigation taxes and trial court
costs. Because we have no jurisdiction to entertain a Rule 3 appeal,
we dismiss the appeal.
http://www.tba.org/tba_files/TCCA/johnsoncj.wpd
STATE OF TENNESSEE v. ROBERT EARL JOHNSON
Court:TCCA
Attorneys:
Larry B. Hoover, Nashville, Tennessee (on appeal); Karl Dean, District
Public Defender; Wendy Tucker, Assistant Public Defender; and Jodie
Bell, Assistant Public Defender, Nashville, Tennessee (at trial) for
the appellant, Robert Earl Johnson.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Dan Hamm, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WOODALL
First Paragraph:
The defendant, Robert Earl Johnson, was convicted of first-degree
murder and sentenced to life in prison without the possibility of
parole. In this appeal, Defendant argues insufficiency of the
evidence, improper investigative procedures by the police, errors by
the trial court regarding admissibility of evidence and jury
instructions, improper comments by the prosecutor during closing
argument, sentencing errors, and ineffective assistance of counsel.
After a review of the record, we affirm the judgment of the trial
court.
http://www.tba.org/tba_files/TCCA/johnsonroberte.wpd
STATE OF TENNESSEE v. CARL F. NEER
Court:TCCA
Attorneys:
Ann D. Kress Coria, Clinton, Tennessee, for the Appellant, Carl F.
Neer.
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; James N. Ramsey, District Attorney
General; and Jan Hicks, Assistant District Attorney General, for the
Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
The defendant, Carl F. Neer, pleaded guilty in the Anderson County
Criminal Court to a fourth- offense possession of marijuana, a
Schedule VI controlled substance, and attempted to appeal a certified
question of law. Because we are constrained to conclude that he has
not properly presented his certified question, we dismiss the appeal.
http://www.tba.org/tba_files/TCCA/neercf.wpd
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