Opinion Flash

March 7, 2002
Volume 8 — Number 042

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
02 New Opinion(s) from the Tennessee Court of Appeals
04 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


ARMINTA CARTER WOODS V. CITY OF MCMINNVILLE

Court:TSC - Workers Comp Panel

Attorneys:

Daniel H. Rader, III, Moore, Rader, Clift and Fitzpatrick, Cookeville,
Tennessee, for the Appellant, The City of McMinnville, Tennessee.

A. Vester Parsley, Jr., Smithville, Tennessee, for the Appellee,
Arminta Carter Woods

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 an award of workers'
compensation benefits to an employee who, while attending a
work-related seminar distant from her place of employment, was injured
on a personal mission.  We vacate the judgment as void and remand for
a trial by a duly elected judge.

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

MARY J. BAIN v. TERRANCE A. SIMPSON

Court:TCA

Attorneys:    

J. Mark Rogers, Murfreesboro, TN; Donald Capparella, Nashville, TN,
for Appellant

Daniel J. Ripper, Chattanooga, TN; Michael Johnson, Nashville, TN, for
Appellee

Judge: HIGHERS

First Paragraph:

This appeal involves a trial court's granting of a motion for
remittitur following a jury's verdict of $19,790.00 in favor of the
plaintiff.  The suit arose from an automobile accident caused by
defendant in which plaintiff's back was injured.  The evidence at
trial indicated that the injury was an aggravation of a preexisting
condition that caused the plaintiff additional pain and suffering for
a period of approximately six months.  Based on our review of the
evidence, we reverse the trial court's reduction of damages and
reinstate the jury's verdict.

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

OLIVER RANDOLPH, ET AL V. COFFEE COUNTY BEER BOARD, ET AL.

Court:TCA

Attorneys:   

Robert Fulton Hazard, Tullahoma, Tennessee, for the Appellants, Coffee
County Beer Board, et al.

William C. Reider, Tullahoma, Tennessee, for the Appellees, Oliver
Randolph and Susan Nichols.

Judge: DANIEL

First Paragraph:

This is an appeal by the Coffee County Beer Board from a decision of
the Coffee County Circuit Court ordering the Beer Board to issue
permits to Oliver Randolph and Susan Nichols.  The trial court
concluded that the Coffee County Beer Board regulation prohibiting the
issuance of a beer permit to an applicant within two thousand feet of
a school or church was void because of discriminatory application of
this regulation.  The County has appealed this decision insisting that
it had uniformly enforced its distance rule including a grandfather
provision which authorized the reissuance of permits to nonconforming
locations who had enjoyed such a privilege prior to the readoption of
the county resolution in 1980.  For the reasons stated in this
opinion, we affirm the trial court's decision and remand the case.

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

STATE OF TENNESSEE v. NELSON KEITH FOSTER

Court:TCCA

Attorneys:

Mark H. Toohey, Kingsport, Tennessee, for the appellant, Nelson Keith
Foster.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner,
Assistant Attorney General; and Joseph E. Perrin, Assistant District
Attorney General, for the appellee, State of Tennessee.                        

Judge: WADE

First Paragraph:

The defendant, Nelson Keith Foster, entered a plea of guilt to
violation of a motor vehicle habitual offender order.  See Tenn. Code
Ann. S 55-10-601 (Motor Vehicle Habitual Offenders Act).  The trial
court imposed a Range II sentence of three years.  After an
evidentiary hearing, the trial court denied a defense motion to
withdraw the guilty plea and ordered a three-year period of probation.
 Because he had filed his motion to withdraw the guilty plea prior to
the entry of judgment, the defendant contends that the trial court
erred by denying relief.  The judgment is affirmed.

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

STATE OF TENNESSEE v. JOHN GEORGE

Court:TCCA

Attorneys:

William B. "Jake" Lockert, III and Chris L. Young, Ashland City,
Tennessee, for the appellant, John George.

Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich,
Assistant Attorney General; Dan Alsobrooks, District Attorney General;
and Suzanne Lockert, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This case arises out of a series of armed robberies of gas stations in
several counties along Interstate 40.  The Defendant, John George, and
two codefendants were arrested in Humphreys County, Tennessee.  The
Defendant gave a statement to police after his arrest confessing his
role in robberies in both Humphreys and Dickson counties. 
Subsequently, the Defendant pled guilty to a charge of aggravated
robbery in Humphreys County and was sentenced to nine years in the
Department of Correction.  In the case before us, the Defendant also
entered a guilty plea to aggravated robbery and felony theft arising
out of a robbery in Dickson County.  After a sentencing hearing, the
Defendant was sentenced to nine years for the aggravated robbery and
four years for the felony theft to be served concurrently.  However,
the trial court ordered the sentence to be served consecutively to the
Defendant's sentence for aggravated robbery in Humphreys County.  The
Defendant now appeals the sentence imposed by the trial court.  The
Defendant contends that the trial court (1) improperly imposed a
sentence above the minimum and (2) improperly ordered that the
sentence for aggravated robbery to be served consecutively to the
Humphreys County sentence.  We affirm the judgment of the trial court
setting the length of the sentences for aggravated robbery and theft. 
We remand for further proceedings on the consecutive sentence issue.

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

RONNIE W. MALONE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Larry D. Brandon, Murfreesboro, Tennessee, for the Appellant, Ronnie
W. Malone.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann,
Assistant Attorney General; William C. Whitesell, Jr., District
Attorney General; and Paul A. Holcombe, III, Assistant District
Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Petitioner pleaded guilty to felony possession of less than .5
grams of cocaine for the purpose of sale and delivery, a Class C
felony, and to violating the Motor Vehicle Habitual Offender's Act, a
Class E felony.  For the felony possession conviction, the trial court
sentenced the Petitioner as a Range III, persistent offender to ten
years incarceration to be served at forty-five percent.  For the motor
vehicle habitual offender conviction, the trial court sentenced the
Petitioner as a Range II, multiple offender to three years
incarceration to be served at thirty-five percent.  The trial court
ordered that the two sentences be served concurrently, but consecutive
to sentences for four prior convictions.  The Petitioner filed a
petition for post-conviction relief, claiming that his plea was
constitutionally defective because he was inadequately represented and
that his plea was not voluntarily, knowingly and intelligently
entered.  The trial court denied relief.  After review, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. DRINI  D. XHAFERI

Court:TCCA

Attorneys:  

Gregory D. Smith, Clarksville, Tennessee (at trial); Wade Bobo,
Clarksville, Tennessee, and Lionel Barrett, Nashville, Tennessee (on
appeal), for the Appellant, Drini D. Xhaferi.

Paul G. Summer, Attorney General & Reporter; Gill Robert Geldreich,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Arthur F. Bieber, Assistant District Attorney General,
for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Convicted in the Montgomery County Circuit Court of the second-degree
murder of his wife, Imja Xhaferi, the defendant, Drini D. Xhaferi,
appeals and claims the trial court erred in not instructing the jury
as to voluntary manslaughter, in not suppressing evidence seized by
military authorities, and in admitting evidence of the defendant's
prior assaults of the victim.  Finding no reversible error, we affirm.

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

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