December 18, 2001
Volume 7 — Number 233

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
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 New Opinion(s) from the Tennessee Court of Appeals
03 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

MICHAEL BRUCE HARRIS v. MAGOTTEAUX, INC., et al.

Court:TSC - Workers Comp Panel

Attorneys:  

Joseph W. Henry, Jr., Henry, Henry & Speer, Pulaski, Tennessee, for
the appellant, Magotteaux, Inc.


Rankin P. Bennett, Cookeville, Tennessee, for the appellee, Michael
Bruce Harris

William M. Billips, Ortale, Kelley, Herbert & Crawford, Nashville,
Tennessee, for the appellee, Home Insurance Company and Home Indemnity
Company                        

Judge: GAYDEN

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.  The employer appeals the trial court's
calculation of the workers' compensation award of permanent partial
disability benefits using the employee's total medical impairment
rating, as opposed to using only the medical impairment rating arising
from the most recent injury.  In addition, the employer's previous
insurance carrier challenges the trial court's finding that it is
equally liable along with the current insurance carrier for the
employee's most recent injury and the employee's future medical
benefits.  The Panel concludes the award should be modified in part
and reversed in part.  We modify the trial court's judgment, finding
that the employee is entitled to workers' compensation benefits solely
for his most recent injury and award a 12% permanent partial
disability to the body as a whole.  An employee cannot combine a claim
for a new injury with a claim for reconsideration of a pre-existing
workers' compensation award when the employee sustains an additional
injury.  We reverse the trial court's judgment, finding that Home
Insurance Company, the previous insurance carrier, is not liable for
benefits arising from the second injury.

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

BOARDWALK REGENCY CORPORATION v. ROY B. PATTERSON and TRUMP TAJ MAHAL
ASSOCIATES v. ROY B. PATTERSON

Court:TCA

Attorneys:

John E. Buffaloe, Jr., Nashville, Tennessee, for the appellants,
Boardwalk Regency Corporation and Trump Taj Mahal Associates.

Jon E. Jones and Gwen D. Jones, Cookeville, Tennessee, for the
appellee, Roy B. Patterson. 

Judge: KOCH

First Paragraph:

This appeal involves the efforts of two Atlantic City casinos to
collect the gambling debts of a Tennessee resident.  After obtaining
default judgments against the Tennessee resident in New Jersey, the
casinos twice attempted to file their judgments in the Chancery Court
for Putnam County in accordance with the Uniform Enforcement of
Foreign Judgments Act.  On both occasions, the trial court declined to
file the judgments after finding that they were irregular and that
they were not properly authenticated.  On the second occasion, the
trial court also concluded that its refusal to file the first set of
judgments precluded the casinos from filing the second set of
judgments.  The casinos have appealed.  We have determined that the
second set of judgments meet the requirements for filing and
enforcement under the Uniform Enforcement of Foreign Judgments Act and
that the casinos' unsuccessful efforts to file the first set of
judgments does not prevent them from filing the second set of
judgments.  Accordingly, we reverse the trial court's order denying
the application to enforce the foreign judgments.

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

CHANTAL M. ELDRIDGE v. PUTNAM COUNTY, TENNESSEE

Court:TCA

Attorneys: 

Jeffrey G. Jones, Cookeville, Tennessee, for the appellant, Putnam
County.

Chantal M. Eldridge, Cookeville, Tennessee, Pro Se.

Judge: CANTRELL

First Paragraph:

This is a case about the Open Records Act as applied to the telephone
records of a Drug Task Force.  After the Chancery Court of Putnam
County ordered the County to produce the records, the County appealed,
arguing that the records fit an exception to the Act or that the
County should be able at the plaintiff's expense to redact the records
to delete confidential information.  We modify the chancellor's order
to allow the County to redact the records at their own expense.

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

JANET HARPER, et al. v. KEITH D. CHURN, et al.

Court:TCA

Attorneys:

Terry R. Clayton, Nashville, Tennessee, for the appellants, Janet
Harper and James Harper.

Alan M. Sowell, Nashville, Tennessee, for the appellee, Keith Churn.

Nancy W. Phillips, Nashville, Tennessee, for the appellee, Rodney
Beard.                     

Judge: FARMER

First Paragraph:

This is a personal injury case arising from a vehicular collision. 
The plaintiffs, the Harpers, and the defendants, Mr. Churn and Mr.
Beard, along with several others, were traveling together in a rented
vehicle at the time of the collision.  Mr. Churn was the driver of the
vehicle; Mr. Beard was the pastor of the parties' church.  At trial,
the Harpers asserted that Mr. Churn was negligent in his operation of
the vehicle.  Additionally, the Harpers claimed that Mr. Beard was
vicariously liable for their injuries, or in the alternative, that Mr.
Beard was liable under the theory of negligent entrustment.  The trial
court granted Mr. Beard's motion for a directed verdict, and the jury
found in favor of Mr. Churn.  The Harpers appeal both decisions.  We
affirm the judgment of the trial court.

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

MARIE HAWKS v. MICHAEL C. GREENE, COMMISSIONER OF TENNESSEE DEPARTMENT
OF SAFETY

Court:TCA

Attorneys:

Paul G. Summers, Attorney General and Reporter, Paula D. Godsey,
Assistant Attorney General, for the appellant, Michael C. Greene,
Commissioner of Tennessee Department of Safety.

Fletcher W. Long, Nashville, Tennessee, Wesley MacNeil Oliver, New
Orleans, Louisiana, for the appellee, Marie Hawks.                         

Judge: COTTRELL

First Paragraph:

The  Tennessee Department of Safety, appellant, seeks review of the
decision of the Chancery Court for Davidson County reversing the
State's order forfeiting the vehicle owned by Ms. Marie Hawks,
appellee.  Because we find that forfeiture of the van, under the facts
of this case, constitutes an excessive fine, we affirm the trial
court.

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

KOCH CONCURRING

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

GLORIA G. NEUENSCHWANDER v. ROY P. NEUENSCHWANDER

Court:TCA

Attorneys:       

Ricky A.W. Curtis, Knoxville, Tennessee, for Appellant.

Charles H. Child, Knoxville, Tennessee, for Appellee.                   

Judge: FRANKS

First Paragraph:

Trial Judge refused to recuse, set amount of alimony, and established
rental value of parties' property.  On appeal we reverse the change in
the amount of alimony by the Trial Court, but otherwise affirm.

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

JOHN L. POINTER, et al. v. TENNESSEE EQUITY CAPITAL CORPORATION et al.

Court:TCA

Attorneys:

Adrian H. Altshuler, Charles G. Blackard, III, Brentwood, Tennessee,
for the appellants, John L. Pointer, Victoria Pointer, and Pointer Oil
Company, Inc.

C. Bennett Harrison, Jr., J. Frank Rudy, Jr., Robert M. Garfinkle,
Nashville, Tennessee, for the appellees, Tennessee Equity Capital
Corporation and Walter Cohen.                          

Judge: COTTRELL

First Paragraph:

A now defunct company and its owner sued a former creditor on the
basis the creditor's control and management of the company damaged it
so that it was no longer a profitable business, causing the stock to
lose value.  The trial court granted summary judgment to the
defendants because the only competent evidence established that the
company was never profitable and that no action by the defendants
caused the demise of the company.  We affirm.

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

CHRISTELL STAGGS v. WILLIAM E. SELLS, et al.

Court:TCA

Attorneys:

Daryl A. Colson, Livingston, Tennessee, for the appellants, William
Sells and wife, Betty Jean Sells.

Onnie L. Winebarger, Byrdstown, Tennessee, for the appellee, Christell
Staggs.

Judge: CAIN

First Paragraph:

This case involves a claim of negligent misrepresentation in the sale
of a home.  The trial court found that Defendants' statements and
actions constituted negligent misrepresentation of the condition of
the property resulting in $25,000.00 in damages to Plaintiff. 
However, the trial court also found, applying principles of
comparative fault, that Defendants were 60% at fault and Plaintiff was
40% at fault.  A judgment of $15,000 was, thus, assessed against
Defendants.  Defendants appeal the court's finding of negligent
misrepresentations, as well as the amount of damages determined by the
court to be suffered by Plaintiff.  We affirm.

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

CORRECTED OPINION
WILLIAMSON COUNTY, et al. v. TENNESSEE STATE BOARD OF EQUALIZATION

Court:TCA

Attorneys:

Jeffrey Dean Moseley, Franklin, Tennessee, for the appellant,
Williamson County, Tennessee.

James Charles and Jennifer Clinard Surber, Nashville, Tennessee, for
the appellant, Metropolitan Government of Nashville and Davidson
County.

Donnie E. Wilson and Robert B. Rolwing, Memphis, Tennessee, for the
appellant, Shelby County, Tennessee.

Jean Dyer Harrison, Nashville, Tennessee, for the appellants,
Tennessee City Governments and Tennessee County Governments.

Paul G. Summers, Attorney General & Reporter; and Jimmy G. Creecy,
Chief Special Counsel, Nashville, Tennessee, for the appellee,
Tennessee State Board of Equalization.

T. Arthur Scott, Jr. and Suzanne S. Cook, Kingsport, Tennessee, for
the appellees, Appalachian Power Company and Kingsport Power Company.

Brigid M. Carpenter, Nashville, Tennessee; James W. McBride,
Washington, D.C.; and Stephen D. Goodwin, Memphis, Tennessee, for the
Intervenors/Appellees, Coalition of Public Utilities.


Everett B. Gibson, Memphis, Tennessee, for the Intervenors/Appellees,
Colonial Pipeline Company, MCI Metro Access Transmission Services,
Inc., MCI Telecommunications Corporation and Norfolk Southern Railway
Company.

Charles A. Trost and Michael G. Stewart, Nashville, Tennessee, for the
Intervenor/Appellee, Tennessee Association of Business.                       

Judge: CAIN

First Paragraph:

In this case, a consortium of counties and cities appeals the decision
of the Chancery Court of Davidson County upholding the action of the
Tennessee State Board of Equalization in applying depreciable life
schedules forming a part of Tennessee Code Annotated section
67-5-903(f) to commercial and industrial tangible personal property
and in holding that personal property is not constitutionally required
to be valued at its actual value in the implementation of Tennessee
Code Annotated section 67-5-1509(a).  The only issues before this
court are the constitutionality of Tennessee Code Annotated section
67-5-903(f) and Tennessee Code Annotated section 67-5- 1509(a).  We
hold both statutes to be constitutional and affirm the Chancellor.

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

KENNETH MacARTHUR JOHNSON v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:

R. Russell Mattocks, District Public Defender, for the Appellant,
Kenneth MacArthur Johnson.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney
General; and Doug Godbee, Assistant District Attorney General, for the
Appellee, State of Tennessee.                      

Judge: WITT

First Paragraph:

Aggrieved of his second degree murder conviction, the petitioner seeks
post-conviction relief, which was denied by the lower court after an
evidentiary hearing.  On appeal, the petitioner presents several
issues of the ineffective assistance of counsel.  We affirm the denial
of post-conviction relief.

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

STATE OF TENNESSEE v. JOSEPH J. LEVITT, JR.

Court:TCCA

Attorneys:

James A. H. Bell, Knoxville, Tennessee, for the appellant, Joseph J.
Levitt, Jr.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan,
Assistant Attorney General; and Eric D. Christiansen, District
Attorney General Pro Tem, for the appellee, State of Tennessee.                       

Judge: GLENN

First Paragraph:

The defendant drove up behind a vehicle which had halted because of a
driver's license roadblock near Knoxville.  He then proceeded onto the
right shoulder to get around that vehicle and was stopped by the
Tennessee Highway Patrol officer conducting the roadblock.  What next
occurred was highly disputed, but the events culminated with the
defendant's being sprayed with Freeze, some of which was deflected
back onto the officer, partially incapacitating him also.  The
defendant was charged with resisting arrest, reckless driving, and
failure to carry and display a driver's license on demand.  The
reckless driving charge was nolle prosequi and, following a jury
trial, the defendant was found not guilty of resisting arrest but was
convicted of the driver's license charge, sentenced to ten days
confinement, which was suspended, and ordered to pay a $50 fine and
court costs.  He timely appealed the conviction, arguing that the
roadblock was unconstitutional.  Based upon our review, we conclude
that the roadblock was unconstitutional and that the officers lacked
probable cause to stop the defendant's vehicle.  Accordingly, we
reverse the conviction and dismiss the charge.

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

STATE OF TENNESSEE v. ANDERSON TOLIVER

Court:TCCA

Attorneys:

Jerry H. Summers (on appeal) and Jerry S. Sloan (at trial),
Chattanooga, Tennessee, for the appellant, Anderson Toliver.

Paul G. Summers, Attorney General and Reporter; Angele Michele
Gregory, Assistant Attorney General; William H. Cox, III, District
Attorney General; and Kelli Black, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: GLENN

First Paragraph:

The defendant was convicted in two indictments of aggravated child
abuse and sentenced to concurrent nine-year sentences.  He timely
appealed, arguing that the evidence was insufficient, that the trial
court erred in consolidating the indictments, in permitting evidence
as to other similar offenses, and in not properly instructing the jury
as to various matters, including lesser-included offenses.  We
conclude that any errors in this regard were harmless.  Accordingly,
we affirm the judgment of the trial court.

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

TIPTON CONCURRING

http://www.tba.org/tba_files/TCCA/toliveranderson_con.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