Opinion Flash

May 6, 2002
Volume 8 — Number 78

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


RONALD HAYWOOD v. ORMET ALUMINUM MILL PRODUCTS CORPORATION, et al.

Court:TSC - Workers Comp Panel

Attorneys:   

W. Timothy Hayes, Jr. and Christopher H. Crain, Memphis, Tennessee,
for the Defendants/Appellants, Ormet Aluminum Mill Products
Corporation, et al.

Donald E. Parish, Huntingdon, Tennessee, for the Plaintiff/Appellee,
Ronald Haywood.

Judge: LAFFERTY

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 of
findings of fact and conclusions of law.  In this appeal, the
Employer/Defendant asks: (1) Whether the limitations in Tenn. Code
Ann. S 50-6-241(a)(1) apply?; and (2) whether the evidence supports an
award of fifty-six percent (56%) to the body as a whole?  As discussed
below, the Panel concludes the trial court's judgment is affirmed.

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

LISA SILLS v. HUMBOLDT NURSING HOME, INC.

Court:TSC - Workers Comp Panel

Attorneys:

John D. Burleson and V. Latosha Mason, Jackson, Tennessee, for the
appellant, Humboldt Nursing Home.

T.J. Emison, Jr., for the appellee, Lisa Sills.                   

Judge: CHILDERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Panel of the Supreme Court in accordance with
Tennessee Code Annotated S 50-6-225(e)(1999) for a hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.  The appellant presents the following issues for review: (1)
Whether the evidence preponderates against the trial court's finding
that the plaintiff sustained a work related injury that resulted in a
permanent disability to the plaintiff, and (2) Whether the evidence
preponderates against the trial court's award of benefits to the
plaintiff based on a percentage of the body as a whole rather than to
a scheduled member.

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

RANDY ARNWINE v. UNION COUNTY BOARD OF EDUCATION, et al.

Court:TCA

Attorneys:

Pamela L. Reeves and Jenny Coques Rogers, Knoxville, Tennessee, and
Charles Cagle, Nashville, Tennessee, for the appellants, Union County
Board of Education and David F. Coppock.

Lynn Tarpy and Thomas M. Leveille, Knoxville, Tennessee, for the
appellee, Randy Arnwine.                       

Judge: SUSANO

First Paragraph:

Randy Arnwine, an employee of the defendant Union County Board of
Education ("the Board"), brought this declaratory judgment action
against the Board and David F. Coppock, Director of Schools for Union
County.  Arnwine sought a declaration that his employment contract as
"Assistant Superintendent" of the school system was valid and
enforceable, and that the Board had violated that contract when it
"demoted" him to a different position within the school system and
reduced his salary beginning with the 2001-02 school year. The trial
court held that the parties' four-year contract was valid and that
Arnwine was entitled to receive his contractually-stipulated salary,
plus any system-wide annual increases, for the four-year term of the
contract. We find that the Board was without authority to enter into
multi-year teacher employment contracts.  Accordingly, we reverse the
judgment of the trial court.

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

BETTY BERRYHILL v. CHARLES THOMAS RHODES 

Court:TCA

Attorneys: 

Robert L. Green, Memphis, Tennessee, for the appellant, Charles Thomas
Rhodes.

Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the
appellee, Betty Berryhill.                         

Judge: FARMER

First Paragraph:

This is a child support case with significant appellate history. 
Pursuant to the Tennessee Supreme Court's opinion in Berryhill v.
Rhodes, 21 S.W.3d 188, 188-89 (Tenn. 2000), this case was before the
trial court in order to determine Dr. Rhode's retroactive child
support obligations.  The court applied the Child Support Guidelines
from 1989 until the date the child reached majority, in September
1995.  The court deviated from the guidelines in assessing Dr.
Rhodes's child support obligation from 1977 to 1989.  The court
calculated the total arrearage as $180,202.00.  In assessing interest
on the judgment, the court determined that interest should accrue from
August 21, 1996, the date of the trial court's original judgment in
this matter.  Both parties take issue with the trial court's decision.
 We reverse in part, affirm in part, and remand for proceedings
consistent with this opinion.

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

C.D.C., et al. v. C.E.D.

Court:TCA

Attorneys:

Douglas R. Beier, Morristown, Tennessee, for the appellants, C.D.C.
and N.M.C.

Jonathan R. Perry, Morristown, Tennessee, for the appellee, C.E.D.    
                    
Judge: SUSANO

First Paragraph:

This is an adoption case in which the petitioners seek to terminate
parental rights.  N.M.C. ("Mother"), the biological mother and
custodian of the two affected children, joined her husband, C.D.C.
("Stepfather"), in petitioning the trial court to terminate the
parental rights of C.E.D. ("Father") - the children's biological
father - as an adjunct to Stepfather's request to adopt the children. 
The trial court refused to terminate Father's parental rights, finding
that the petitioners had failed to prove the asserted grounds for
termination by clear and convincing evidence.  Mother and Stepfather
appeal, arguing that the evidence preponderates against the trial
court's findings.  We disagree.  Accordingly, we affirm the trial
court's judgment.

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

JAMES CHARLES MIMS v. PAMELA DANNETTE MIMS

Court:TCA

Attorneys:   

Chadwick G. Hunt, Savannah, TN, for Appellant

Ed Neal McDaniel, Savannah, Tn, for Appellee                       

Judge: HIGHERS

First Paragraph:

This appeal arises from a trial court's refusal to modify a custody
agreement or increase child support obligations.  A divorced father of
three children petitioned the court to hold the mother in contempt and
change the custody agreement embodied in a marital dissolution
agreement from joint custody to primary or sole custody of the
children by him.  The mother counterpetitioned seeking to have the
father held in contempt and to have child support increased.  The
trial court found that no material change in circumstances warranting
a change in custody existed and refused to increase the father's child
support obligations for lack of proof.  For the following reasons, we
affirm

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

BOB PATTERSON, TRUSTEE OF SHELBY COUNTY, TENNESSEE v. JIM ROUT, MAYOR
OF SHELBY COUNTY, TENNESSEE

Court:TCA

Attorneys:

Alan G. Crone, Memphis, Tennessee, for the appellant, Jim Rout, Mayor
of Shelby County, Tennessee.

Joedae L. Jenkins and Tyrone J. Paylor, Memphis, Tennessee, for the
appellee, Bob Patterson, Trustee of Shelby County, Tennessee.                      

Judge: FARMER

First Paragraph:

This appeal concerns the application of the Shelby County Civil
Service Merit Act to five appointed employment positions in Shelby
County.  The trial court found that since the five positions were
appointed by the County Trustee, they were exempt from the Act. The
chancellor accordingly held that the Human Resources Department does
not have the authority to override salary decisions of the Trustee
with respect to appointed positions, and that petitions for salary
increases could be made to the court pursuant to Tenn. Code Ann. S
8-20-101, et. seq.  The chancellor approved three of the five
requested increases, finding them reasonable and necessary.  We hold
that the five positions are classified and governed by the Civil
Service Merit Act.  We accordingly reverse.

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

ANGELA KAY (GARRARD) PHILLIPS v. WILLIAM STACY PHILLIPS

Court:TCA

Attorneys: 

Chadwick G. Hunt, Savannah, TN, for Appellant

Stephanie L. Prentis, Savannah,TN, for Appellee                         

Judge: HIGHERS

First Paragraph:

This appeal arises from a divorce proceeding wherein the parties had
two minor children.  While the divorce was pending, the trial court
issued a temporary order outlining the custodial rights of the parties
with respect to their children.  The final decree of divorce adopted a
permanent parenting plan and distributed the marital property and
debts. The husband filed this appeal contesting the permanent
parenting plan and the manner in which the marital debts were
apportioned.  For the following reasons, we affirm the decision of the
trial court.

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

HANNAH ROBINSON v. CHARLES C. BREWER, et al.

Court:TCA

Attorneys: 

Terry Abernathy, Selmer, For Appellant, Hannah Robinson

William M. Jeter, Memphis, For Appellees, Charles C. Brewer and
Charles R. Brewer                         

Judge: CRAWFORD

First Paragraph:

This is an automobile collision personal injury case. 
Plaintiff-motorist was stopped in a thru- traffic lane over the crest
of a hill behind a vehicle attempting to make a left turn off of the
highway.  The defendant-motorist came over the crest of the hill and
struck the plaintiff-motorist in the rear, causing injuries to the
plaintiff.  Judgment was entered on a jury verdict for the defendant
that the defendant was not at fault in the accident.  Plaintiff
appeals.  We affirm.

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

DEBORAH SMITH, et al. v. TACO BELL CORPORATION

Court:TCA

Attorneys:

Clint J. Woodfin, Knoxville, Tennessee, for the Appellant Taco Bell
Corporation.


Ronald E. Cunningham and Kenneth W. Holbert, Knoxville, Tennessee, for
the Appellees Deborah and Alan Smith.

Judge: SWINEY

First Paragraph:

The Trial Court awarded Deborah Smith ("Plaintiff") $250,000 for
injuries received as a result of her fall at Taco Bell.  Plaintiff's
husband was awarded $10,000 for his loss of consortium claim.  On
appeal, Taco Bell Corporation ("Defendant") contends the Trial Court
committed reversible error by failing to rule at trial on Defendant's
objections made during the depositions of the two primary treating
physicians.  Defendant also claims the medical proof was insufficient
to establish a causal connection between Plaintiff's fall at Taco Bell
and her medical condition.  We affirm.

http://www.tba.org/tba_files/TCA/smithd1.wpd

STATE OF TENNESSEE v. JESSIE NELSON HODGES

Court:TCCA

Attorneys:   

Jessie Nelson Hodges, Pro Se (on appeal and at trial); and Julie
Pillow, Assistant Public Defender (at trial), Ripley, Tennessee, for
the Appellant, Jessie Nelson Hodges.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General; and Tracey Brewer, Assistant District Attorney General, for
the Appellee, State of Tennessee.                       

Judge: WEDEMEYER

First Paragraph:

A Lauderdale County Grand Jury indicted the Defendant for robbery, and
following a trial, a Lauderdale County jury convicted the Defendant of
the offense charged.  In this direct appeal, the Defendant presents
the following issues for our review: (1) whether sufficient evidence
was presented at trial to support his conviction; (2) whether evidence
introduced at trial was illegally obtained in contravention of the
Defendant's Fourth Amendment rights; (3) whether the Defendant was
deprived of an "independent analysis of the evidence"; and (4) whether
the trial court improperly instructed the jury.  Finding no error in
the record, we affirm the Defendant's conviction.

http://www.tba.org/tba_files/TCCA/hodgesjn1.wpd

STATE OF TENNESSEE v. WILLIE EARL KYLES, JR.

Court:TCCA

Attorneys:  

Julie K. Pillow, Assistant District Public Defender, for the
appellant, Willie Earl Kyles, Jr.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; and Tracey Brewer, Assistant District
Attorney General, for the appellee, State of Tennessee.                        

Judge: WADE

First Paragraph:

The defendant, Willie Earl Kyles, Jr., was convicted of possession of
.5 grams or more of cocaine with the intent to deliver.  See Tenn.
Code Ann. S 39-17-417(c)(1).  The trial court imposed a 12- year
sentence.  Because the defendant was classified as a multiple
offender, release eligibility was established at 35%.  In this appeal
of right, the defendant challenges the sufficiency of the evidence. 
The judgment is affirmed.

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

STATE OF TENNESSEE v. DAMOND LAVONZELL MACON and KENNETH RAY WOODS

Court:TCCA

Attorneys:      

Joe H. Byrd, Jr., Jackson, Tennessee, for the appellant, Damond
Lavonzell Macon.

C. Mark Donahoe, Jackson, Tennessee, for the appellant, Kenneth Ray
Woods.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; and Shaun A. Brown, District Attorney General, for
the appellee, State of Tennessee.                    

Judge: WADE

First Paragraph:

The defendants, Damond Lavonzell Macon and Kenneth Ray Woods, entered
pleas of guilt to possession of marijuana and possession of drug
paraphernalia.  Pursuant to a plea agreement, the defendant Macon
received concurrent sentences of 11 months and 29 days on each count,
suspended after six months; the defendant Woods received concurrent
sentences of 11 months and 29 days, all of which was to be served on
unsupervised probation.  The charge against Woods for disobeying a
stop sign was dismissed as part of the plea agreement.  The defendants
reserved for appeal the question of whether the stop was based upon a
reasonable suspicion supported by specific and articulable facts.  See
Tenn. R. Crim. P. 37.  The judgments are affirmed.

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

STATE OF TENNESSEE v. BEN MILLS

Court:TCCA

Attorneys:

Mike Roberts, Memphis, Tennessee (at trial), and Marty B. McAfee,
Memphis, Tennessee (on appeal), for the appellant, Ben Mills.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Dan Woody and Thomas Hoover, Assistant
District Attorneys General, for the appellee, the State of Tennessee. 
                    
Judge: WADE

First Paragraph:

The defendant, Ben Mills, was convicted of one count of first degree
premeditated murder, one count of felony murder, one count of
aggravated robbery and two counts of attempted first degree murder. 
The trial court merged the murder convictions and imposed a sentence
of life imprisonment.  For the remaining convictions, the trial court
imposed sentences as follows: eight years as a standard, Range I
offender for aggravated robbery to be served concurrently with the
life sentence, and 15 years as a standard, Range I offender for each
attempted first degree murder conviction to be served concurrently to
each other but consecutively to the sentences for first degree murder
and aggravated robbery.  The effective sentence, therefore, is life
plus 15 years.  In this appeal as of right, the defendant contends (1)
that the evidence was insufficient to support his convictions; (2)
that the trial court erred by failing to instruct the jury regarding
all of the lesser included offenses of felony murder; and (3) that the
trial court erred by failing to instruct the jury on intoxication. 
The judgments of the trial court are affirmed.  The judgment for first
degree murder is modified to reflect that the conviction for felony
murder is merged into the conviction for premeditated first degree
murder.

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

STATE OF TENNESSEE v. JOHNNY SHIELDS

Court:TCCA

Attorneys:    

Scott G. Kirk, Jackson, Tennessee, for the Appellant, Johnny Shields.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Braden H. Boucek, Assistant Attorney General; James
G. (Jerry) Woodall, District Attorney General; and  Shaun A. Brown,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                      

Judge: HAYES

First Paragraph:

The Appellant, Johnny Shields, was convicted of two counts of
aggravated sexual battery,  a class B felony, following a jury trial. 
The trial court sentenced Shields, as a Range I offender, to
concurrent eleven year sentences in the Department of Correction.  On
appeal, Shields raises the following issues:  (1)  whether the
evidence was sufficient to support the verdicts, and (2) whether his
sentences were proper.  After a review of the record, we affirm
Shields' convictions but modify his sentences due to misapplication of
enhancing and mitigating factors.

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

STATE OF TENNESSEE v. MONTEA WILSON

Court:TCCA

Attorneys:  

James V. Ball (on appeal) and Gerald Skahan (at trial), Memphis,
Tennessee, for the appellant, Montea Wilson.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; and Jerry Kitchen, Assistant District
Attorney General, for the appellee, State of Tennessee.                        

Judge: WADE

First Paragraph:

A jury convicted the defendant, Montea Wilson, of felony murder and
attempted especially aggravated robbery.  The trial court merged the
attempted robbery conviction with the felony murder conviction and the
jury sentenced the defendant to life without the possibility of
parole.  In this appeal of right, the defendant contends (1) that the
evidence was insufficient; (2) that the trial court erred by failing
to exclude certain evidence as unfairly prejudicial; (3) that defense
counsel was erroneously prohibited from making a full opening
statement; (4) that the trial court erred by denying a defense request
for expert witness funds; (5) that prior robbery convictions were
erroneously admitted for impeachment purposes; (6) that the trial
court erred by limiting the testimony of defense witness Sammie
Ballard; and (7) that the trial court erred by permitting certain
testimony at a suppression hearing.  Because there is no reversible
error, the judgment of the trial court is affirmed.

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

Court Security Committee

Date: April 24, 2002

Opinion Number: 02-052                         

http://www.tba.org/tba_files/AG/OP52.pdf

Execution of Distress Warrants for Unpaid Business Taxes

Date: April 26, 2002

Opinion Number: 02-053                        

http://www.tba.org/tba_files/AG/OP53.pdf

Legality of Redemption Machines

Date: April 30, 2002

Opinion Number: 02-054                         

http://www.tba.org/tba_files/AG/OP54.pdf

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