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):
 
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
 

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

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

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!

For the
Plain Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type:
SUBSCRIBE
3) Leave the body of the message blank

For the HTML Text Version:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type:
SUBSCRIBE HTML
3) Leave the body of the message blank

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

To STOP receiving TBALink Opinion-Flash:
1) Send an e-mail message to: Opinion-Flash@tba.org
2) In the SUBJECT of the message type:
UNSUBSCRIBE
3) Leave the body of the message blank


© Copyright 2001 Tennessee Bar Association