Opinion Flash

February 19, 2002
Volume 8 — Number 031

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
08 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


HARRISON DRIVER v. BRIDGESTONE/FIRESTONE, INC.

Court:TSC - Workers Comp Panel

Attorneys:

Katherine D. Boyte, Ruth, Howard, Tate & Sowell, Nashville, Tennessee,
for the appellant, Bridgestone/Firestone, Inc.

Wm. Kennerly Burger, Burger, Whately, Siskin, Scott & Goad,
Murfreesboro, Tennessee, for the appellee, Harrison Driver.

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 argues that the employee's pre-
existing condition was not advanced, progressed, or anatomically
changed during his employment at Bridgestone.  In the face of
conflicting medical testimony, the trial court found in favor of the
employee, awarding $13,766 for a 7% permanent disability to his body
as a whole.  Relying on the employee's own medical testimony as well
as an opinion of one of the testifying physicians, concluding that the
employee's injury more probably than not was a result of his
employment, the Panel affirms the trial court's finding that the
employee suffered a compensable injury while at work.

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

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0219.wpd

LANDWORKS, INC., et al. v. JOHN LESLIE VICK

Court:TCA

Attorneys: 

Fletcher L. Ervin, Newport, Tennessee, for the Appellant John Leslie
Vick.

William M. Leibrock, Newport, Tennessee, for the Appellees Landworks,
Inc., and Dorothy R. Meadors, Trustee of the Dorothy R. Meadors
Revocable Trust.                         

Judge: SWINEY

First Paragraph:

Landworks, Inc., and Dorothy Meadors ("Plaintiffs") filed this lawsuit
seeking, among other things, a declaration that they were the rightful
owners of a certain tract of land in Cocke County.  The adjoining land
owner, John Vick ("Defendant"), claimed he was the owner of the
disputed area and filed a counter-claim.  Both Plaintiffs and
Defendant had deeds which purported to convey to them the disputed
area.  The property taxes on the disputed area had been paid for more
than the last twenty years by Plaintiffs or their predecessors in
title.  The Trial Court found in Plaintiffs' favor, relying in large
part on the presumptions found in Tenn. Code. Ann. SS 28-2-109 and
28-2-110.  We affirm.

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

MICHAEL SUTTON, et al. v. LARRY BARNES, et al.

Court:TCA

Attorneys:

Steven Douglas Drinnon, Dandridge, Tennessee, for the appellants,
Michael Sutton and Sandra Sutton.

Douglas L. Dutton and Lisa J. Hall, Knoxville, Tennessee, for the
appellees, Cocke County and the Cocke County Highway Commission.                         

Judge: SUSANO

First Paragraph:

The plaintiffs, Cocke County homeowners, brought this action seeking
compensation for damage caused to their home by blasting activity on
their neighbors' property.  In response to interrogatories, the
company that did the blasting identified the Cocke County Highway
Commission as the provider of the explosives.  Thereafter, the
plaintiffs filed an amended complaint, naming Cocke County and the
Cocke County Highway Commission (collectively "the County") as
additional party defendants.  Upon the County's motion, the trial
court dismissed the plaintiffs' complaint as to the County, holding
that their action is time-barred.  On appeal, the plaintiffs argue
that the discovery rule applies to their action against the County,
and, therefore, their claim is not time-barred.  The County argues
that even if the plaintiffs' action is not barred by the applicable
statute of limitations, the plaintiffs have failed to state a claim
upon which relief can be granted.  We hold that the discovery rule
applies to actions against governmental entities and that there is a
genuine issue for trial as to when the plaintiffs' cause of action
"ar[ose]."  We further hold that the complaint adequately states a
cause of action, but only as to the plaintiffs' claim of common-law
negligence.  Accordingly, the judgment of the trial court is affirmed
in part and reversed in part.

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

ANNIE L. TRUETT, as Administratrix of the Estate of GLENDA F. PLUNK,
and MARVIN PLUNK v. WAYNE BOWMAN, CRNA, et al.

Court:TCA

Attorneys:  

Marty R. Phillips, Jackson, Tennessee, for the appellant, James T.
Craig, Jr., M.D.

Michael L. Weinman, Henderson, Tennessee, Thomas J. Long, Memphis,
Tennessee, for the appellees, Annie L. Truett, as Administratrix of
the Estate of Glenda F. Plunk, and Marvin Plunk.                         

Judge: LILLARD

First Paragraph:

This is a medical malpractice case.  The plaintiff's decedent
allegedly was improperly intubated in preparation for hip replacement
surgery.  The plaintiff sued the orthopedic surgeon, the nurse
anesthetist, and two anesthesiologists involved in the surgery.  The
trial court entered summary judgment in favor of the surgeon, based in
part on the assertion of the surgeon and his attorney that the surgeon
was responsible only for the orthopedic aspect of the decedent's care.
 Two years later, the other defendants, also represented by the same
attorney who represented the surgeon, testified in depositions that,
in contrast to the surgeon's assertions, the surgeon had broad
responsibility for the decedent's care.  In light of this testimony,
the trial court granted the plaintiff's motion to set aside the order
of summary judgment in favor of the surgeon.  The surgeon's request
for interlocutory appeal of this decision was granted.  We now affirm,
finding that the trial court did not abuse its discretion in setting
aside its previous order of summary judgment.

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

STACY MOLTER TURNEY v. RONALD ROSS TURNEY

Court:TCA

Attorneys:

Michael B. McWherter, Jackson, Tennessee, for the appellant, Stacy
Molter Turney.

C. Timothy Crocker and Michael A. Carter, Milan, Tennessee, for the
appellee, Ronald Ross Turney.                          

Judge: FARMER

First Paragraph:

This appeal from a divorce decree raises issues concerning the
classification and distribution of the parties' property, and the
determination of income for the purposes of setting child support.  We
modify the distribution of property and remand for determination of
child support.

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

STATE OF TENNESSEE v. MARK A. CALDWELL

Court:TCCA

Attorneys:

John C. Cavett, Jr., Chattanooga, Tennessee, for the appellant, Mark
A. Caldwell.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Rodney C. Strong, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

The defendant was convicted of first degree premeditated murder, first
degree felony murder, and especially aggravated robbery, with the
murder convictions merged into a single conviction for first degree
murder following the jury's verdict.  The jury sentenced him to life
imprisonment on the murder conviction, and the trial court sentenced
him to twenty-two years on the especially aggravated robbery
conviction, to be served concurrently to the life sentence.  Following
the denial of his motion for a new trial, the defendant filed a timely
appeal to this court, raising four issues: (1) whether the evidence
was sufficient to support his convictions; (2) whether the trial court
erred in allowing testimony about a statement of denial he made to
police; (3) whether the trial court erred in allowing a photograph of
the victim's body to be introduced into evidence; and (4) whether the
jury should have been instructed that the State had taken the
position, in a dismissed conspiracy indictment, that the defendant's
accomplice was the shooter.  After a careful review, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. KENNETH ENGLAND

Court:TCCA

Attorneys:

Julie A. Rice, Knoxville, Tennessee (on appeal); and Charles Herman,
Jacksboro, Tennessee (at trial), for the Appellant, Kenneth England.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; William Paul Phillips, District Attorney
General; Michael Ripley, Assistant District Attorney General; and John
Steakley, Assistant District Attorney General, for the Appellee, State
of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Defendant pled guilty to three counts of retaliation for past
action, a Class E felony, and the trial court sentenced him to four
years on community corrections.  Three separate violation warrants
were subsequently issued against the Defendant.  Following a
revocation hearing, the trial court revoked the Defendant's placement
on community corrections and ordered that the Defendant serve his
original sentence in the Tennessee Department of Correction.  The
Defendant now appeals, arguing that the trial court erred in revoking
his community corrections sentence and ordering him to serve his
sentence in confinement.  Finding no error, we affirm the judgment of
the trial court.

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

STATE OF TENNESSEE v. PAUL FLANNIGAN

Court:TCCA

Attorneys:

A.C. Wharton, Jr., Public Defender; and Trent Hall (at trial) and W.
Mark Ward (on appeal), Assistant Public Defenders, for the appellant,
Paul Flannigan.

Paul G. Summers, Attorney General and Reporter;  Thomas E. Williams,
III, Assistant Attorney General; William L. Gibbons, District Attorney
General; and Karen Cook and Alonda Dwyer, Assistant District Attorneys
General, for the appellee, State of Tennessee.                       

Judge: RILEY
 
First Paragraph:

The defendant, Paul Flannigan, was convicted by a Shelby County jury
of one count of attempted first degree murder, two counts of
especially aggravated robbery, three counts of aggravated rape, and
one count of aggravated burglary.  He received an effective sentence
of 125 years.  He appeals, raising two points: (1) there was
insufficient proof to support his convictions, and (2) his sentences
are excessive.  We reverse one conviction for aggravated rape and
remand that charge for a new trial; we modify some of the judgments
for an effective sentence of 93 years; we affirm in all other
respects.

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

KENNETH R. GRIFFIN v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Kenneth R. Griffin, Pikeville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Joe C. Crumley, Jr., District Attorney
General; and Victor J. Vaughn, Assistant District Attorney General,
for the appellee, State of Tennessee.                         

Judge: WOODALL

First Paragraph:

Petitioner, Kenneth R. Griffin, appeals from the trial court's summary
dismissal of his petition for post-conviction relief.  Pursuant to
Tennessee Code Annotated section 40-30-206, the trial court entered an
order dismissing the petition without an evidentiary hearing.  In its
order, the trial court made a finding of fact that the petition
contained no verification of any facts under oath.  Since the petition
was devoid of verified facts upon which the trial court could grant
relief, it concluded that a dismissal was required.  On appeal, the
State agrees with Petitioner that the trial court's judgment should be
reversed.  After a thorough review of the record, we reverse the
judgment of the trial court and remand this case for further
proceedings.

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

STATE OF TENNESSEE v. JEANNIE HUDSON

Court:TCCA

Attorneys:   

Edward Cantrell Miller, District Public Defender, and Susanne Bales,
Assistant District Public Defender, for the appellant, Jeannie Hudson.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and Charles Edward Atchley, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.                       

Judge: WILLIAMS

First Paragraph:

After pleading guilty to aggravated assault and receiving a sentence
of split confinement of three years with nine months to be served
day-for-day, defendant appeals her sentence.  She requests full
probation or allowance of good conduct credits while serving the
incarceration portion of her sentence.  We affirm the denial of full
probation and reverse that portion of the sentence that provides
day-for-day service.  We hold that a defendant sentenced to the county
jail for less than one year is entitled to earn good conduct credits
pursuant to Tennessee Code Annotated section  41-2-111(b).

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

STATE OF TENNESSEE v. SEAN E. MILLER

Court:TCCA

Attorneys:      

Paul E. Lewis, Millington, Tennessee, for the appellant, Sean E.
Miller.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Paula Wulff and Reginald R. Henderson, Assistant District
Attorneys General, for the appellee, State of Tennessee.                      

Judge: RILEY

First Paragraph:

The defendant was found guilty by a Shelby County jury of DUI, second
offense, and reckless driving.  He was sentenced to 11 months and 29
days, all suspended except 60 days for DUI, second offense, and fined
$50 for reckless driving.  On appeal, he argues: (1) the results of
his breath alcohol test were not properly admitted; (2) the evidence
was insufficient to support his conviction for reckless driving; (3)
the trial court improperly aided the prosecution in the presentation
of its case; and (4) the trial court erred in ordering the defendant
to consent to breath alcohol tests as a condition of his probation. 
We reverse the judgments of the trial court, dismiss the charge of
reckless driving, and remand the DUI charge to the lower court for a
new trial.

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

STATE OF TENNESSEE v. THADDEUS MORRIS

Court:TCCA

Attorneys:

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Thaddeus
Morris.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and James Lammey, Assistant District Attorney General, for
the appellee, State of Tennessee.                      

Judge: GLENN

First Paragraph:

The defendant, Thaddeus Morris, was convicted of three counts of
assault, three counts of reckless aggravated assault, one count of
aggravated robbery, and one count of carjacking following a jury
trial.  The trial court merged the three assault convictions with the
three reckless aggravated assault convictions and the aggravated
robbery conviction with the carjacking conviction.  The defendant was
sentenced to seven years, six months for each of the reckless
aggravated assault convictions, with two of the sentences to be served
concurrently and the third to be served consecutively.  For the
carjacking conviction, the trial court sentenced the defendant to
twelve years to be served consecutively to the third reckless
aggravated assault sentence, for an effective sentence of twenty-
seven years in the Department of Correction.  On appeal, the defendant
argues:  (1) the evidence was insufficient to support his convictions
for carjacking and aggravated robbery; (2) the trial court erred by
not including "moral certainty" in its jury instruction on reasonable
doubt; (3) cumulative error occurred during the trial; and (4) the
trial court erred in imposing consecutive sentencing.  After a careful
review of the record, we affirm the judgment of the trial court.

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

CAMILLA RAY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:  

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant,
Camilla Ray.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Robert L. Jolley, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.                        

Judge: TIPTON

First Paragraph:

The petitioner appeals from the Knox County Criminal Court's denying
her post-conviction relief from her especially aggravated robbery and
especially aggravated kidnaping convictions and resulting concurrent
fifteen-year sentences that she received in 2000 based upon her pleas
of guilty.  She contends that her guilty pleas resulted from the
ineffective assistance of counsel in that counsel misadvised her about
the percentage of her sentence that she would have to serve in
confinement.  We affirm the trial court's denial of relief.

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

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