Opinion Flash

February 15, 2002
Volume 8 — Number 030

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
06 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


CLINT LOWE v. WAL-MART STORES, INC.

Court:TSC - Workers Comp Panel

Attorneys:     

M. Scott Ogan, Nashville, Tennessee, for the appellant, Wal-Mart
Stores, Inc.

Joseph L. Mercer, III, Nashville, Tennessee, for the appellee Clint
Lowe.                     

Judge: INMAN

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.  After being
informed by his employer that he could see no more physicians, the
plaintiff nevertheless sought additional treatment for a neck injury
which resulted in a surgical correction.  The trial judgment ordered
these unauthorized expenses to be paid by the employer.  We affirm.

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

BETTY LOUISE MOSS v. FINDLAY INDUSTRIES, INC.

Court:TSC - Workers Comp Panel

Attorneys:

Patrick A. Ruth, Nashville, Tennessee, for the appellant, Findlay
Industries, Inc.

William Joseph Butler, Lafayette, Tennessee, for the appellee, Betty
Louise Moss.

Judge: INMAN

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.  The trial
court awarded benefits for vocational impairment of 55 percent to each
of the plaintiff's arms.  The defendant insists that the award is
excessive, because the anatomical rating was only 10 percent, as a
result of carpal tunnel release.  The judgment is affirmed.

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

WASHSHUKRU AL-JABBAR A'LA v. STATE OF TENNESSEE 

Court:TCA

Attorneys:   

Washshukru Al-Jabbar A'La, Pro Se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General and Dawn Jordan, Assistant Attorney General, for the
Appellee, State of Tennessee.                       

Judge: FARMER

First Paragraph:

This is an appeal from an order of the Claims Commission granting
summary judgment in favor of the Defendant.  The claim was brought by
an inmate in the custody of the Tennessee Department of Correction
claiming that employees of the Department lost two pages of pleadings
he filed in an action in circuit court.

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

T. R. MILLS CONTRACTORS, INC. v. WRH ENTERPRISES, LLC, et al.

Court:TCA

Attorneys:  

Ted M. Hayden, Memphis, Tennessee, for the appellant, T. R. Mills
Contractors, Inc.

William M. Jeter, Memphis, Tennessee, for the appellees, WRH
Enterprises, LLC and North South, LLC                        

Judge: FARMER

First Paragraph:

This appeal raises an issue of first impression in Tennessee,
requiring us to address whether an arbitration clause in a written but
unsigned contract is enforceable under Tennessee's version of the
Uniform Arbitration Act.  We join the majority of jurisdictions which
have adopted the Act in holding that an arbitration clause contained
in a written contract may be enforced absent a signature where the
contract is otherwise found to be binding on the parties.

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

STATE OF TENNESSEE v. ANTONIO DEWAYNE CARPENTER

Court:TCCA

Attorneys: 

Marty McAfee, Memphis, Tennessee (at trial and on appeal), and James
A. Simmons, Nashville, Tennessee (at trial), for the appellant,
Antonio Dewayne Carpenter.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; and Elizabeth T. Rice, District Attorney General,
for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Antonio Dewayne Carpenter, was indicted for
premeditated murder, felony murder, especially aggravated kidnapping,
and especially aggravated robbery.  The state filed notice seeking the
death penalty.  The defendant was convicted on each count of the
indictment and the trial court merged the felony murder conviction
with the premeditated murder conviction.  At the conclusion of the
penalty phase of the trial, the jury imposed a sentence of life
without the possibility of parole.  The trial court ordered concurrent
twenty-year sentences for especially aggravated kidnapping and
especially aggravated robbery.  All of these sentences were ordered to
be served consecutively to three life sentences for federal
convictions stemming from the same incident.  In this appeal of right,
the defendant challenges the sufficiency of the evidence and argues
that the dual sovereignty doctrine, which permits successive federal
and state prosecutions for the same acts, should be abandoned.  The
judgments are affirmed.

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

STATE OF TENNESSEE v. CHARLES DAMIEN DARDEN

Court:TCCA

Attorneys:      

Charles Damien Darden, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; C.
Phillip Bivens, District Attorney General; and Marcia Fogle, Assistant
District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Charles Damien Darden, proceeding pro se, appeals as of
right from an order of the Lake County Circuit Court denying his
petition for the writ of habeas corpus.  After a review of the record,
we reverse the judgment of the trial court and remand for the
appointment of counsel.

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

STATE OF TENNESSEE v. WILLIE G. LOFTON

Court:TCCA

Attorneys:  

David M. Livingston, Brownsville, Tennessee, for the appellant, Willie
G. Lofton.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; James G. Woodall, District Attorney
General; and James W. Thompson, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: WOODALL

First Paragraph:

Defendant, Willie G. Lofton, appeals his conviction for driving under
the influence.  Defendant claims that the trial court erred by
refusing to instruct the jury as to the offense of driving while
impaired as a lesser included of driving under the influence.  We
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. JERRY MCPEAK, IV

Court:TCCA

Attorneys:     

Mike Mosier, Jackson, Tennessee, for the Appellant, Jerry McPeak, IV.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Mark E. Davidson, Assistant Attorney General; James
G. (Jerry) Woodall, District Attorney General; and  Jody Pickens,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                     

Judge: HAYES

First Paragraph:

The Appellant, Jerry McPeak, IV, was convicted by a Madison County
jury of aggravated robbery.  On appeal, McPeak raises the following
issues for our review: (1) Whether the evidence was sufficient to
establish that the victim suffered serious bodily injury; (2) whether
the evidence was sufficient to establish that the assault occurred
during the act of robbery; and (3) whether McPeak was convicted solely
upon the uncorroborated testimony of an accomplice.  After review, we
find the issues raised to be without merit and affirm the judgment of
the trial court.

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

STATE OF TENNESSEE v. DARRELL S. MILLER

Court:TCCA

Attorneys:

Victoria L. DiBonaventura, Paris, Tennessee, and Steven L. West,
McKenzie, Tennessee, for the appellant, Darrell S. Miller.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Robert "Gus" Radford, District Attorney
General; and Beth Boswell and Jerry Wallace, Assistant District
Attorneys General, for the appellee, State of Tennessee.                          

Judge: MCGEE OGLE

First Paragraph:

The appellant, Darrell S. Miller, was convicted by a jury in the
Benton County Circuit Court of two counts of possessing controlled
substances with intent to manufacture, sell, or deliver, and one count
of possession of drug paraphernalia.  The trial court sentenced the
appellant to a total effective sentence of eight years incarceration
in the Tennessee Department of Correction, suspending all but one year
and placing the appellant in a community corrections program for the
remainder.  On appeal, the appellant raises the following issues for
our review: (1) whether the trial court properly admitted drug
exhibits; (2) whether the trial court erred in permitting the
testimony of Stacy Mumper regarding a prior transaction between the
appellant and Mumper's companion; (3) whether the evidence was
sufficient to sustain his convictions; (4) whether the trial court
approved the verdict as thirteenth juror; and (5) whether the trial
court erred in failing to grant a new trial when the appellant
produced sworn affidavits that Brenda Wynn perjured herself on the
witness stand.  Upon review of the record and the parties' briefs, we
affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. JAMES BRENT MOUBRAY

Court:TCCA

Attorneys:  

C. Michael Robbins, Memphis, Tennessee (on appeal); and Colin Johnson,
Dresden, Tennessee (at trial and on appeal), for the Appellant, James
Brent Moubray.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and Allen Strawbridge, Assistant District Attorney General,
for the Appellee, State of Tennessee.                        

Judge: WEDEMEYER

First Paragraph:

The Defendant was convicted by a jury of possessing a firearm where
alcoholic beverages are served, a Class A misdemeanor, and the trial
court sentenced him to eleven months and twenty-nine days to be served
at seventy-five percent.  The Defendant now appeals, arguing that the
sentence imposed by the trial court was excessive.  Finding no error,
we affirm the judgment of the trial court.

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

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