Opinion Flash

May 9, 2002
Volume 8 — Number 81

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
08 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
07 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


WILMA M. ADKINS v. , MODINE MANUFACTURING COMPANY, INC., et al.

Court:TSC - Workers Comp Panel

Attorneys: 

Robert W. Knolton, of Oak Ridge, Tennessee, for Appellants, Modine
Manufacturing Company, Inc. and Sentry Insurance Company.

Roger L. Ridenour, of Clinton, Tennessee, for Appellee, Wilma M.
Adkins.                         

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 awarded the employee 75 percent permanent partial disability to
each arm.  The employer has appealed and insists the award is
excessive and should have been fixed to the body as a whole.  The
judgment is affirmed.

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

MICHELE BEELER v. SOUTHEAST SERVICE CORPORATION d/b/a SSC SERVICE
SOLUTIONS, et al.

Court:TSC - Workers Comp Panel

Attorneys:

James C. Cone, Knoxville, Tennessee, for the appellant, Michele
Beeler.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellees,
Southeast Service Corporation d/b/a SSC Service Solutions and CNA
Insurance Company.                       

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 had failed to show by a
preponderance of the evidence that she had suffered carpal tunnel
syndrome as a result of her work for the defendant.  The plaintiff, in
two issues, basically claims the trial judge erred by finding the
plaintiff had failed to carry the burden of showing she was entitled
to recover for a work related injury.  We affirm the judgment of the
trial court.

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

MELISSA SUZANNE DEW v. PRO-TEMP

Court:TSC - Workers Comp Panel

Attorneys: 

Roger E. Ridenour, of Clinton, Tennessee, for Appellant, Melissa
Suzanne Dew.

B. Chadwell Rickman, of Knoxville, Tennessee, for Appellee, Pro-Temp.                         

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 awarded the employee 20 percent permanent partial disability to
her right hand.  The employee appeals insisting the court had used the
multiplier statute in computing the award and that the statute does
not apply to scheduled member injuries.  The judgment is modified to
award the employee 40 percent to the right hand.

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

NICOLAIE DANIEL LUCESCU, v. TWIN CITY MOTORS, INC.

Court:TSC - Workers Comp Panel

Attorneys:  

Robert L. Cheek, Jr., and Jesse Guin, for the appellant, Nicolaie
Daniel Lucescu

Frank Q. Vettori, for the appellee, Twin City Motors, Inc.

Judge: THOMAS

First Paragraph:

The issue presented by this appeal is whether there is evidence to
support the finding of the trial court that the hernia experienced by
the employee occurred before the date of the report of the accident
and is, therefore, not compensable under the Hernia Statute, T.C.A.
S50-6-212. After a review of the record and the briefs and after
consideration of  the arguments of counsel, we find that the trial
court simply chose to believe the plaintiff's treating physician
rather than the plaintiff as to when the hernia occurred. We,
therefore, affirm.

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

JOHNNY A. STEPHENSON v. CONTAINER PRODUCTS CORPORATION

Court:TSC - Workers Comp Panel

Attorneys: 

Jill A. Hanson, Nashville, Tennessee, for the appellant, Container
Products Corporation.

Bruce D. Fox and April D. Carroll, Clinton, Tennessee, for the
appellee, Johnny A. Stephenson.

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 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 that the plaintiff had suffered a work-related injury and
awarded permanent partial disability of thirty percent to the body as
a whole.  We affirm the judgment of the trial court but reduce the
amount of the award to twenty percent (20%) vocational disability.

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

BIRDIE I. TREECE v. LEAR CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:  

Robert S. Hahn, of Morristown, Tennessee, for Appellant, Lear
Corporation.

James M. Davis, of Morristown, Tennessee, for Appellee, Birdie I.
Treece.                        

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 totally and permanently disabled.  The
court also found the employer was entitled to a set off for payment of
long-term disability benefits and made other rulings as to the
employee's rights under the employer's disability retirement plan. 
Judgment of the trial court is affirmed as to the award of total
disability and set off rulings, and vacated as to issues relating to
the employee's vested rights to future disability retirement benefits.

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

KENNETH TRIVETT, v. NORMAN LITCHFIELD, 

Court:TSC - Workers Comp Panel

Attorneys: 

Tony Seaton, Johnson City, for the appellant, Kenneth Trivett

Donald Spurrell, Johnson City, for the appellee, Norman Litchfield

Judge: THOMAS
 
First Paragraph:

Although the appellant argues that he was unfairly forced to trial and
that the decision of the trial court was improper, no timely notice of
appeal was filed. Although this issue was neither briefed nor argued,
failure to file a timely appeal is jurisdictional. Consequently, the
appeal will be dismissed.

http://www.tba.org/tba_files/TSC_WCP/trivettk.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/wright.wpd

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0506.wpd

STATE OF TENNESSEE v. JARED ANTHONY BREAUX

Court:TCCA

Attorneys:

Ross E. Alderman, District Public Defender, and Hollis I. Moore, Jr.,
Assistant District Public Defender, for the appellant, Jared Anthony
Breaux.

Paul G. Summers, Attorney General & Reporter; Christine M. Lapps,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and James D. Sledge, Assistant District Attorney General, for
the appellee, State of Tennessee.               

Judge: GLENN

First Paragraph:

The defendant, who had three convictions for DUI, was incarcerated
after the suspended portion of his most recent DUI sentence had been
revoked because of a fourth arrest for DUI and his failure to report
the new arrest to his probation officer.  The following month, the
defendant was released on a four-day furlough to attend his
grandmother's funeral in Louisiana, and, apparently because of the
late hour when the release occurred, the conditions of his release
were not explained.  Two hours later, the defendant was seen by a jail
deputy at a nearby Hooter's Restaurant, as he drank a beer with his
brothers, whom he had met there for the journey to Louisiana. 
Following a hearing, he was held in contempt of court for consuming an
alcoholic beverage while on furlough and sentenced to ten days
confinement to be served consecutively to the sentence for which he
then was incarcerated. He timely appealed that ruling, arguing that
since the conditions of the furlough had not been explained to him,
the evidence was insufficient for the finding that he was in contempt
of court. Upon our review, we affirm the trial court.

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

STATE OF TENNESSEE v. PERCY PEREZ  FARRIS

Court:TCCA

Attorneys:

Karen T. Fleet, Bolivar, Tennessee, for the appellant, Percy Perez
Farris.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General;  Elizabeth Rice, District Attorney
General; and Jerry W. Norwood, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: WELLES

First Paragraph:

The Defendant, Percy Perez Farris, was convicted by a jury of attempt
to commit first degree premeditated murder and especially aggravated
robbery.  The trial court sentenced the Defendant to twenty-five years
for each offense, to be served concurrently in the Department of
Correction.  In this direct appeal the Defendant raises the following
issues:  (1)  whether the trial court erred in denying the Defendant's
motion to change venue; (2) whether the trial court erred in refusing
to suppress identification testimony;  (3) whether the trial court
erred in refusing to suppress evidence concerning the victim's blood;
(4) whether the evidence is sufficient to support the convictions; and
(5) whether cumulative error requires a new trial.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. BRIAN VAL KELLEY

Court:TCCA

Attorneys:

David L. Raybin, Nashville, Tennessee (on appeal) and Gary Vandever,
Lebanon, Tennessee (at trial) for the appellant, Brian Val Kelley.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; Tom P. Thompson, Jr., District Attorney
General; David Durham, Assistant District Attorney General; and Robert
N. Hibbett, Assistant District Attorney General, for the appellee,
State of Tennessee.                         

Judge: WOODALL

First Paragraph:

Defendant, Brian Val Kelley, was convicted by a Wilson County jury of
one count of premeditated and intentional first degree murder, Tenn.
Code Ann. S 39-13-202(1), and one count of murder committed in the
perpetration of or attempt to perpetrate aggravated child abuse, Tenn.
Code Ann. S 39-13-202(2).  The trial court merged the felony-murder
conviction with the premeditated and intentional first degree murder
conviction and sentenced Defendant to life with the possibility of
parole.  In this appeal, Defendant raises the following issues: (1)
whether Defendant met his burden of proving the defense of insanity by
clear and convincing evidence which, without conflicting proof,
rendered the evidence against him insufficient to support his
convictions; (2) whether the trial court erred by failing to instruct
the jury concerning how to properly define "wrongfulness" when
considering the defense of insanity; (3) whether the trial court's
failure to charge the jury on the lesser-included offense of voluntary
manslaughter was reversible error; and (4) whether the trial court
erred by improperly limiting the testimony of Defendant's expert
witnesses and by giving erroneous instructions to the jury regarding
such limitation.  After a thorough review of the record and applicable
law, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. TIMOTHY J. KING

Court:TCCA

Attorneys:  

Philip A. Condra, District Public Defender, for the appellant, Timothy
J. King.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and Steven H. Strain and Sherry Durham Gouger, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The defendant was indicted for second degree murder, convicted by a
jury of the lesser-included offense of voluntary manslaughter, and
subsequently sentenced to a term of six years.  In this appeal, the
defendant contends:  (1) the evidence was insufficient to support his
conviction; (2) the state improperly cross-examined him concerning his
use of illegal drugs; (3) the district attorney committed
prosecutorial misconduct in closing argument; (4) the trial court
improperly instructed the jury concerning the weight to be given the
defendant's testimony; and (5) the defendant's sentence was excessive.
 After a thorough review of the record, we affirm the judgment of the
trial court in all respects.

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

STATE OF TENNESSEE v. CORY JAMES MARTIN

Court:TCCA

Attorneys:     

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Jan Hicks, Assistant District Attorney
General, for the appellant, the State of Tennessee.

James K. Scott, Oak Ridge, Tennessee, for the appellee, Cory James
Martin.                     

Judge: WADE

First Paragraph:

The defendant, Cory James Martin, was indicted for two counts of rape
of a child and three counts of especially aggravated sexual
exploitation of a minor.  After granting a motion to suppress two
incriminating statements made by the defendant prior to his arrest,
the trial court permitted the state an application for permission to
appeal under Rule 9 of the Tennessee Rules of Appellate Procedure.  In
this interlocutory appeal, the state asserts that the trial court
erred by granting the motion to suppress.  Because the defendant was
not in custody at the time of the statements and Miranda warnings were
not required, the judgment of the trial court is reversed and the
cause is remanded for trial.

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

STATE OF TENNESSEE v. SHANTA LAVETT MCKINNEY

Court:TCCA

Attorneys: 

Gary F. Antrican, Somerville, Tennessee, for the appellant, Shanta
Lavett McKinney.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; and Elizabeth Rice, District Attorney
General, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Shanta Lavett McKinney, pled guilty to one count of
automobile burglary; one count of theft over $1000; one count of
misdemeanor assault; and one count of theft under $500.  He was
sentenced as a Range I standard offender to one year, six months for
the auto burglary; three years for the theft over $1000; eleven
months, twenty-nine days for the assault; and eleven months, twenty-
nine days for the theft under $500, all sentences running
concurrently.  Under separate indictment, the Defendant pled guilty to
four counts of aggravated burglary; one count of theft between $500
and $1000; and three counts of theft under $500.  He was sentenced as
a Range I standard offender to five years for each of the burglaries;
one year six months for the theft over $500; and eleven months,
twenty-nine days for each of the thefts under $500.  These sentences
were ordered to run concurrently with each other, but consecutively to
the previously mentioned sentences, for an effective sentence of eight
years in the Department of Correction.  In this direct appeal the
Defendant challenges both the length of his felony sentences and the
trial court's denial of an alternative sentence.  We affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. THOMAS SLATES

Court:TCCA

Attorneys: 

David M. Livingston, Brownsville, Tennessee (on appeal), and Harold
Gunn, Humboldt, Tennessee (at trial), for the appellant, Thomas
Slates.

Paul G. Summers, Attorney General & Reporter; Gill Robert Geldreich,
Assistant Attorney General;  and William Bowen and Larry Hardister,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: WADE

First Paragraph:

The defendant, Thomas Slates, was indicted for three counts of selling
cocaine in an amount greater than .5 grams, a Class B felony.  See
Tenn. Code Ann. S 39-17-417(a)(3), (b).  The jury returned a guilty
verdict on the first count, a not guilty verdict on the second count,
and could not reach a verdict on the third.  The trial court imposed a
Range I sentence of eight years on count one.  In this appeal of
right, the defendant contends that (1) the evidence was insufficient;
and (2) the trial court erred by failing to consider alternative
sentencing.  The judgment of the trial court is affirmed.

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

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