December 7, 2001
Volume 7 — Number 226

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
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
02 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

EMMETT EARL FALCON v. GAYLORD ENTERTAINMENT COMPANY, et al

Court:TSC - Workers Comp Panel

Attorneys:

Byron Davis, Jr. and M. Scot Ogan, Nashville, Tennessee, for the
appellant, Wal-Mart Stores, Inc.

Richard K. Smith, Nashville, Tennessee, for the appellee, Gaylord
Entertainment Company.

Steve C. Norris, Nashville, Tennessee, for the appellee, Emmett Earl
Falcon.                          

Judge: LOSER

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)(3) for hearing and reporting of findings of fact and
conclusions of law.  In this case, the employer contends (1) the trial
court erred in concluding that the Last Injurious Exposure Rule
applied to the facts of this case and (2) the trial court erred in
finding the employee was not barred from recovery because of a
misrepresentation in the employment application process.  In this
case, the employee had two successive employers.  The trial court
found that the employee developed symptoms of bilateral carpal tunnel
syndrome while he worked for the first employer but that the
employee's condition was aggravated from his work for the second
employer.  We agree with the trial court that the Last Injurious
Exposure Rule applies to this case.  As discussed herein, the panel
has concluded the judgment should be affirmed.

http://www.tba.org/tba_files/TSC_WCP/falconemmett.wpd

JOHNNY JENKINS v. KEMPER INSURANCE CO.

Court:TSC - Workers Comp Panel

Attorneys:

Clint Woodfin, Knoxville, Tennessee, for the appellant, Kemper
Insurance Company.

Bruce D. Fox, Clinton, Tennessee, for the appellee, Johnny Jenkins.                         

Judge: BYERS

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 to the Supreme Court of findings of fact and conclusions of
law.  The trial court found the plaintiff sustained an 80 percent
permanent partial disability to his right leg as a result of his knee
injury.  We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TSC_WCP/jenkinsj.wpd

STATE OF TENNESSEE, ex rel STEVEN M. WRZESNIEWSKI, v. LORI L. MILLER

Court:TCA

Attorneys:

Kevin W. Shepherd, Maryville, Tennessee, for Appellant.

Paul G. Summers, Attorney General and Reporter, and Kim Beals,
Assistant Attorney General, Nashville, Tennessee, for Appellee, State
of Tennessee, ex rel Steven M. Wrzesniewski.

Judge: FRANKS

First Paragraph:

Appellant was not ordered to pay child support when divorce was
granted.  Subsequently, retroactive child support was ordered.  On
appeal, we affirm.

http://www.tba.org/tba_files/TCA/millerl.wpd

KIMBERLY J. SVACHA, et al. v. WALDENS CREEK SADDLE CLUB, et al.

Court:TCA

Attorneys:

Robert L. Ogle, Jr., Sevierville, Tennessee for the Appellants
Kimberly and William Svacha.


David H. Parton, Gatlinburg, Tennessee, for the Appellees Benjamin and
Mary Darnell, and Waldens Creek Saddle Club.

Judge: SWINEY

First Paragraph:

The Trial Court granted Defendants' motion for summary judgment
relying, at least in part, on oral testimony from one of the
Plaintiffs.  This testimony was not transcribed, filed with the Trial
Court, and provided to this Court as part of the record on appeal. 
Due to the somewhat peculiar procedural aspects of this case, we
conclude that Defendants had the responsibility to file a transcript
of this testimony.  Because we cannot evaluate the propriety of the
grant of summary judgment without having before us this evidence
relied on by the Trial Court, we vacate the grant of summary judgment.

http://www.tba.org/tba_files/TCA/svachakj.wpd

STATE OF TENNESSEE v. CORY MILLIKEN

Court:TCCA

Attorneys:  

Dwight E. Scott, Nashville, Tennessee, for the appellant, Cory
Milliken.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Tom Thurman, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Corey L. Milliken, pled guilty to two counts of first
degree premeditated murder and one count of aggravated robbery.  His
agreed sentence was two concurrent life sentences for the murders and
a consecutive twelve year term for the aggravated robbery, for an
effective sentence of life plus twelve years.  The Defendant timely
filed a petition for post-conviction relief, alleging that he received
ineffective assistance of counsel and that his guilty plea was not
entered knowingly and voluntarily.  After a hearing the trial court
denied relief and the Defendant appealed as of right.  Finding no
error in the trial court's ruling on the Defendant's petition, we
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/millikenc.wpd

STATE OF TENNESSEE v. TIMOTHY L. ROBERTSON

Court:TCCA

Attorneys:

Nicholas D. Hare, Nashville, Tennessee, for the appellant, Timothy L.
Robertson.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Erik R. Herbert, Assistant District Attorney General, for
the appellee, State of Tennessee.                      

Judge: SMITH

First Paragraph:

The defendant, Timothy L. Robertson, was indicted on two counts of
unlawful possession of a controlled substance with intent to sell; one
count of felony possession of a weapon; and one count of driving on a
revoked or suspended license.  Following the trial court's denial of
his motion to suppress, he pled guilty to one count of possession of
more than .5 grams of cocaine with the intent to resell, a Class B
felony, and one count of felony possession of a weapon, a Class E
felony.  In accordance with the terms of his plea bargain agreement,
the remaining counts of the indictment were dismissed.  Pursuant to
Rule 37(b)(2)(1) of the Tennessee Rules of Criminal Procedure, the
defendant reserved the right to appeal as a dispositive question of
law the issue of whether his custodial arrest and the subsequent
search of his vehicle violated the Fourth Amendment of the United
States Constitution, Article I, Section 7 of the Tennessee
Constitution, and Tennessee Code Annotated Section 40-7-118(b)(1)(c). 
We conclude that the officers were required to make a custodial arrest
of the defendant to prevent his continued violation of the driver's
license law, and that the subsequent search of his vehicle was valid
as incident to that arrest.  Accordingly, we affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TCCA/robertsontimothyl.wpd

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