Opinion Flash

March 26, 2002
Volume 8 — Number 055

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):
 
03 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
08 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
08 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


ROBERT TERRY DAVIS, et al. v. WILSON COUNTY, TENNESSEE

Court:TSC

Attorneys:

Neal Agee, Jr., Lebanon, Tennessee, for the appellants, Robert Terry
Davis and Donald Hamblen.

Michael R. Jennings, Lebanon, Tennessee, for the appellee, Wilson
County, Tennessee.

Judge: ANDERSON

First Paragraph:

We granted this appeal to determine whether county employees had a
vested interest after retirement in health care benefits provided
under resolutions passed by the Wilson County Commission.  The
chancellor found that the appellants had a vested interest in health
care benefits because they were county employees who met the
requirement of ten years of service and eight years of continuous
service with Wilson County under a 1992 resolution.  The Court of
Appeals reversed the chancellor's judgment, concluding that the health
care benefits were welfare benefits in which the appellants did not
have a vested interest.  After reviewing the record and applicable
authority, we hold that the health care benefits were welfare benefits
that did not vest automatically and that there was no clear and
express language in the resolutions that the health care benefits were
intended to vest or could not be terminated.  We therefore affirm the
Court of Appeals' judgment.

http://www.tba.org/tba_files/TSC/davisrobertterry.wpd

STATE OF TENNESSEE v. TIMOTHY McKINNEY

Court:TSC

Attorneys:

William Gosnell, C. Michael Robbins, and William D. Massey, Memphis,
Tennessee, for the appellant, Timothy McKinney.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Gordon W. Smith, Associate Solicitor General;
William L. Gibbons, District Attorney General; Phillip Gerald Harris
and David Henry, Assistant District Attorneys General, for the
appellee, State of Tennessee.

Judge: ANDERSON

First Paragraph:

The defendant, Timothy McKinney, was convicted of premeditated first
degree murder and attempted second degree murder.  The jury imposed a
death sentence for the first degree murder after finding that evidence
of an aggravating circumstance, i.e., the defendant was previously
convicted of a felony whose statutory elements involved the use of
violence to the person, outweighed evidence of mitigating
circumstances beyond a reasonable doubt.  The trial judge imposed a
sentence of twelve (12) years for the attempted second degree murder,
to run consecutively to the death sentence.

After the Court of Criminal Appeals affirmed the convictions and the
sentences, the case was automatically docketed in this Court.  We
entered an order specifying six issues for oral argument, and we now
hold as follows:  (1) the trial court did not commit error by denying
the defendant's motion to introduce expert testimony on the issue of
eyewitness identifications; (2) the jury's verdict form was
sufficiently clear to demonstrate that the jury found the prior
violent felony aggravating circumstance relied upon by the
prosecution; (3) the evidence was sufficient to sustain the prior
violent felony aggravating circumstance found by the jury; (4) the
trial court's refusal to allow defense counsel to refer to evidence
from the guilt phase of the trial during his closing argument in the
sentencing phase of the trial did not affect the jury's determination
to the prejudice of the defendant and was harmless error; (5) the
trial court did not commit error in admitting victim impact evidence
during the sentencing phase; and (6) the sentence of death was neither
arbitrary nor disproportionate.  We also conclude that the evidence
was sufficient to support the jury's findings that the prior violent
felony aggravating circumstance had been established beyond a
reasonable doubt and that it outweighed evidence of mitigating factors
beyond a reasonable doubt.  Finally, we agree with the Court of
Criminal Appeals' conclusions with respect to the remaining issues,
the relevant portions of which are included in the appendix to this
opinion. Accordingly, we affirm the judgment of the Court of Criminal
Appeals.

http://www.tba.org/tba_files/TSC/mckinneyt_opn.wpd

STATE OF TENNESSEE v. TIMOTHY McKINNEY

BIRCH CONCURRING AND DISSENTING

http://www.tba.org/tba_files/TSC/mckinneyt_dis.wpd

STATE OF TENNESSEE v. TIMOTHY McKINNEY

APPENDIX

http://www.tba.org/tba_files/TSC/mckinneyt_apx.wpd

RALPH D. RICHARDS v. LIBERTY MUTUAL INSURANCE COMPANY

Court:TSC

Attorneys:  

Frank C. Lynch, Winchester, Tennessee, for the appellant, Liberty
Mutual Insurance Company.

Gregory M. O'Neal, Winchester, Tennessee, for the appellee, Ralph D.
Richards.                        

Judge: ANDERSON

First Paragraph:

We granted review in this workers' compensation case to determine
whether the Special Workers' Compensation Appeals Panel erred in
concluding that the evidence preponderated against the trial court's
finding that the employee's injury did not arise out of and in the
course of his employment.  After reviewing the record and applicable
authority, we conclude that the evidence did not preponderate against
the trial court's finding that the employee's injury did not arise out
of and in the course of his employment.  We therefore reject the
Panel's findings and conclusions and affirm the judgment of the trial
court.

http://www.tba.org/tba_files/TSC/richardralph.wpd

JAMES BURKS v. WILLIAMS TYPESETTING, INC.

Court:TSC - Workers Comp Panel

Attorneys:

Richard H. Winningham, of Chattanooga, Tennessee, for Appellant, James
Burks.

Phillip E. Fleenor and Jane M. Stahl, of Chattanooga, Tennessee, for
Appellee, Williams Typesetting, Inc.                         

Judge: THAYER

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 found the employee was permanently and totally disabled.  The
employee appealed insisting the award should be fixed as a permanent
partial award payable for a period of 400 weeks.  The judgment of the
trial court is affirmed as to the 100 percent award of permanent and
total disability, the denial of attorney's fees on unpaid medical
expenses and the commutation of a lump-sum award for payment of
attorney's fees.  The judgment is reversed as to allowing a credit
against the total disability award and the commutation of benefits in
favor of the employee.  The case is remanded for the purpose of
amending the judgment to allow additional temporary total benefits and
for further hearing on the employee's application for commutation
benefits.

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

JEFFERY A. WRIGHT v.  JOHNSTON COCA-COLA & DR. PEPPER BOTTLING CO., et
al.

Court:TSC - Workers Comp Panel

Attorneys:  

R. Jerome Shepherd, Cleveland, Tennessee, for the appellant, Jeffery
A. Wright.

Paul D. Hogan, Jr., Knoxville, Tennessee, for the appellees, Johnston
Coca-Cola & Dr. Pepper Bottling Co. and Travelers Property & Casualty
Co.                        

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 suffered  a 5 percent
permanent medical impairment as a result of an injury sustained while
working for the defendant.  We affirm the judgment of the trial court.

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

ARFKEN & ASSOCIATES, P.A. v. SIMPSON BRIDGE COMPANY, INC., et al.

Court:TCA

Attorneys:

Jes Beard, Chattanooga, Tennessee, for the appellant, Alan Arfken,
successor in interest to Arfken & Associates, P.A.

Robert B. Wilson, III, Cleveland, Tennessee, for the appellee, Simpson
Bridge Company, Inc.

Judge: SUSANO

First Paragraph:

This is an action by an attorney, Alan Arfken, against his former
client, Simpson Bridge Company, Inc. ("Simpson Bridge"), seeking to
recover additional fees for professional services allegedly rendered
by the attorney in defending the client against a sexual harassment
suit.  Following a bench trial, the court below found that the
attorney was not entitled to any fees over and above those already
paid.  The court dismissed the original complaint.  It also dismissed
Simpson Bridge's counterclaim, by which the counter-plaintiff sought
to recover fees allegedly overpaid by it.  The attorney appeals,
raising a number of issues.  By way of a separate issue, Simpson
Bridge argues that the attorney's notice of appeal was not timely
filed.  Because we agree with the defendant's contention, we find that
we are without jurisdiction to hear the attorney's appeal. 
Accordingly, we dismiss the appeal.

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

ARFKEN & ASSOCIATES, P.A. v. SIMPSON BRIDGE COMPANY, INC., et al.

SWINEY DISSENTING

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

ASSOCIATES HOME EQUITY SERVICES, INC. v. FRANKLIN NATIONAL BANK

Court:TCA

Attorneys:   

Stephen C. Small, C. Dewees Berry, IV, Nashville, Tennessee, for the
appellant, Associates Home Equity Services, Inc.

J. Timothy Street, Franklin, Tennessee, for the appellee, Franklin
National Bank.                       

Judge: COTTRELL

First Paragraph:

In this appeal Associates, a mortgage company, appeals the trial
court's holding that it was not entitled to equitable subrogation to
the rights and priority of earlier mortgagees whose loans it paid off.
 Franklin, another mortgage company, made a loan to the same property
owners one day before Associates made its loan and recorded its deed
of trust three days before Associates recorded its deed of trust to
the same real property.  Associates claims that, although Franklin
recorded first, Associates is entitled to priority pursuant to the
doctrine of equitable subrogation.  Franklin filed a Motion for
Judgment on the Pleadings, which the trial court granted.  We find
that because the remedy of equitable subrogation is an equitable one
dependent upon the facts and circumstances of the situation and the
equities between the parties, judgment on the pleadings was
inappropriate.

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

CLEMENT F. BERNARD, M.D. v. SUMNER REGIONAL HEALTH SYSTEMS, INC.

Court:TCA

Attorneys:

Joe Bednarz, Jr. and Joe Bednarz, Sr., Nashville, Tennessee, for the
appellant, Clement F. Bernard, M.D.

James C. Bradshaw, III and Jonathan D. Rose, Nashville, Tennessee, for
the appellee, Sumner Regional Health Systems, Inc.                       

Judge: ASH

First Paragraph:

On or about March 26, 1999, the appellee Sumner Regional Health
Systems, Inc. revoked appellant Clement F. Bernard, M.D. privileges to
practice medicine at Sumner Regional Medical Center.  Consequently,
Dr. Bernard filed a complaint on March 29, 1999, alleging procurement
of breach of contract and defamation.  On February 9, 2000, Sumner
Regional Health Systems filed a Motion for Summary Judgment on the
grounds that Dr. Bernard could not establish viable claims for
procurement of breach of contract or defamation.  The trial court
granted Sumner Regional's motion.  On June 12, 2000, Dr. Bernard filed
a Notice of Appeal and this litigation resulted.

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

PATRICK C. COOLEY, et ux. CATHY COOLEY, v. FIRST AMERICAN BANK and
NATIONSBANK

Court:TCA

Attorneys:  

Gerald Largen, Kingston, Tennessee, for Appellants.

H. Frederick Humbracht, Jr., and Melissa R. Ballengee, Nashville,
Tennessee, for Appellee, NationsBank of Tennessee, N.A.

Melinda Meador and Regina M. Lambert, Knoxville, Tennessee, for
Appellee, First American National Bank, AmSouth Bank.                        

Judge: FRANKS

First Paragraph:

Bank depositors brought action against Banks for mishandling
depositors' check payable to the Internal Revenue Service.  The Trial
Court granted Banks summary judgment.  We affirm.

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

CHARLES KENDALL DUTY, et al. v. FARAH DABIT, et al.

Court:TCA

Attorneys:  

Bruce N. Oldham, Gallatin, TN, for Appellant

R. Price Nimmo, Rabin P. Nimmo, Nashville, TN, for Appellees                        

Judge: HIGHERS

First Paragraph:

This appeal involves a suit brought by the purchasers of a new home. 
The seller and purchaser entered into a contract of sale, wherein the
seller agreed to construct a home on a parcel of real property. 
Having no construction experience, the seller hired a contractor to
construct the home.  Upon the completion of the home and closing on
the property, the purchasers discovered numerous defects that were
allegedly caused by a failure to construct the home in a workmanlike
manner.  The purchasers filed suit against the seller and the
contractor.  The seller and the contractor hired an attorney, but the
attorney eventually withdrew from the case.  Four months after the
attorney's withdrawal, the case proceeded to trial.  The seller,
acting pro se, arrived at the trial several hours late.  By the time
the seller had arrived, the contractor and purchaser had completed
voir dire and the contractor had been dismissed through a judgment on
the pleadings.  With the trial judge acting as finder of fact, the
trial proceeded and a judgment was entered against the seller in the
amount of $22,182.84.  After the trial, in an attempt to amend his
pleadings to assert a cross-claim against the contractor, the seller
moved the court for a new trial or to set aside the judgment.  The
trial court denied the seller's motion and for the following reasons,
we affirm.

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

WALTER FLETCHER v. DEANNA M. FLETCHER, et al. IN RE: K.B.F. and K.S.F.

Court:TCA

Attorneys:

Douglas T. Jenkins, Rogersville, Tennessee, for the Appellant, Walter
Fletcher. 

Phillip L. Boyd, Rogersville, Tennessee, for the Appellees,
David and Debra Fleenor.

Judge: SWINEY

First Paragraph:

This appeal concerns a custody dispute between the biological father,
Walter Fletcher ("Father"), and the maternal grandparents, David and
Debra Fleenor ("Grandparents"), of two minor children ("Children").
The Grandparents initiated this matter by filing a petition for
emergency custody in juvenile court, essentially alleging that the
Children were dependent and neglected.  Thereafter, Father sought
custody of the Children, but his petition was denied by the juvenile
court.  Father appealed the juvenile court order to circuit court in
accordance with Tenn. Code Ann. S 37-1 159(a).  The circuit court
dismissed his appeal, holding it did not have jurisdiction.  Father
appeals both the juvenile court order and the circuit court order.  We
vacate the circuit court order and remand.  Father's appeal of the
juvenile court order is dismissed.

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

MINNIE LORENA LONG v. HCA HEALTH SERVICES OF TENNESSEE, INC. d/b/a
SOUTHERN HILLS MEDICAL CENTER

Court:TCA

Attorneys:  

Dixie W. Cooper, Edward A. Hadley, Nashville, TN, for Appellant

Karen M. Weimar, Justin Johnson, Nashville, TN, for Appellee                         

Judge: HIGHERS

First Paragraph:

This appeal involves a personal injury sustained by the plaintiff
while a patient at defendant's nursing home facility.  The plaintiff
filed suit against the defendant for negligence and the case proceeded
to trial before a jury.  During the trial, the defendant filed several
motions for a directed verdict, which were denied.  The trial resulted
in a hung jury and the court was forced to declare a mistrial.  Before
the second trial, the defendant renewed its motion for directed
verdict.  The court ruled that the plaintiff's cause of action should
be considered a claim for medical malpractice, but that the plaintiff
made out a prima facie case.  The plaintiff voluntarily dismissed the
suit before the second trial took place and the defendant motioned the
court for discretionary costs.  The court awarded the defendant only
some of the requested costs and this appeal followed.  For the
following reasons, we affirm the decisions of the trial court to deny
defendant's last motion for a directed verdict and to award only
partial discretionary costs.

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

M.P.P., et al. v. D.L.K. IN RE:  C.E.P. 

Court:TCA

Attorneys:

Josephine D. Clark, Oak Ridge, Tennessee, for the Appellant, D.L.K.

N. David Roberts, Jr., Knoxville, Tennessee, for the Appellees, M.P.P.
and A.E.P.                  

Judge: SWINEY

First Paragraph:

Josephine D. Clark, Oak Ridge, Tennessee, for the Appellant, D.L.K.

N. David Roberts, Jr., Knoxville, Tennessee, for the Appellees, M.P.P.
and A.E.P.

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


STATE OF TENNESSEE v. JERRY B. GRAVES

Court:TCCA

Attorneys:

Susan E. Shipley, Knoxville, Tennessee, for the appellant, Jerry B.
Graves.

Paul G. Summers, Attorney General and Reporter; Angele Michele
Gregory, Assistant Attorney General; Randall E. Nichols, District
Attorney General; and Scott G. Green, Assistant District Attorney
General, for the appellee, State of Tennessee.                        

Judge: GLENN

First Paragraph:

The defendant was convicted of felony murder and especially aggravated
robbery and sentenced to concurrent punishment of life imprisonment
and twenty-three years, respectively.  In his appeal, he argues that
the trial court erred in not remanding the matter for another
preliminary hearing after it was discovered that the first hearing had
not been recorded; in limiting his cross-examination of two
prosecution witnesses as to pending matters; and in admitting an
autopsy photograph of the victim's head, with the scalp pulled back,
to show the gravity of his wound.  Based upon our review, we affirm
the judgments of the trial court.

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

STATE OF TENNESSEE v. THOMAS DEE HUSKEY

Court:TCCA

Attorneys: 

Herbert S. Moncier and Gregory P. Isaacs, Knoxville, Tennessee, for
the appellant, Thomas Dee Huskey.

Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich,
Assistant Attorney General; Randall E. Nichols, District Attorney
General, for the appellee, State of Tennessee.

W. Thomas Dillard, Knoxville, Tennessee, and Martin S. Pinales,
Cincinnati, Ohio, for the Amicus Curiae, National Association of
Criminal Defense Lawyers.

Paula R. Voss and Richard L. Gaines, Knoxville, Tennessee, for the
Amicus Curiae, Tennessee Association of Criminal Defense Lawyers.

Randall E. Reagan, Knoxville, Tennessee, for the Amicus Curiae,
Knoxville Defense Lawyers Association.

Judge: TIPTON

First Paragraph:

The defendant, Thomas Dee Huskey, brings this extraordinary appeal in
which he challenges the order of the Knox County Criminal Court
removing his lead counsel of record for his retrial on four counts of
first degree murder.  The defendant asserts that the trial court's
action is an infringement on his Sixth Amendment right to counsel.  We
conclude that the trial court's order violated the defendant's right
to counsel and exceeded its discretion.  We vacate the trial court's
order and remand the case for further proceedings.

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

STATE OF TENNESSEE v. THOMAS DEE HUSKEY

WADE DISSENTING  

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

Surrender of Memphis City Charter

Date: March 14, 2002

Opinion Number: 02-028                         

http://www.tba.org/tba_files/AG/OP28.pdf

Employment of Real Estate Appraisers and Taxpayer Agents by Lawyers
and Accountants

Date: March 14, 2002

Opinion Number: 02-029                         

http://www.tba.org/tba_files/AG/OP29.pdf

House Redistricting Plan - 2002 Tenn. Pub. Acts Ch. 468 -
Representation of New Districts

Date: March 14, 2002

Opinion Number: 02-030                         

http://www.tba.org/tba_files/AG/OP30.pdf

Appropriations Exceeding Revenues

Date: March 15, 2002

Opinion Number: 02-031                         

http://www.tba.org/tba_files/AG/OP31.pdf

Qualifications for State Senator - Residency for Three Years in the
State - Article II, Section 10 of the Tennessee Constitution

Date: March 15, 2002

Opinion Number: 02-032                         

http://www.tba.org/tba_files/AG/OP32.pdf

Hours for Beer Sales in Unincorporated Areas of a County

Date: March 15, 2002

Opinion Number: 02-033                         

http://www.tba.org/tba_files/AG/OP33.pdf

Failure to Adopt a Budget

Date: March 15, 2002

Opinion Number: 02-034                         

http://www.tba.org/tba_files/AG/OP34.pdf

Correctional Officers Carrying Firearms While Off Duty (Revised)

Date: March 15, 2002

Opinion Number: 02-035                         

http://www.tba.org/tba_files/AG/OP35.pdf

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