Opinion Flash

June 3, 2002
Volume 8 — Number 97

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

This Issue (IN THIS ORDER):
 
02 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
03 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


CORRECTED VERSION: CORRECTION ON PAGE 1
JULIA BETH CREWS v. BUCKMAN LABORATORIES INTERNATIONAL, INC.
Court:TSC Attorneys: Donald A. Donati and William B. Ryan, Memphis, Tennessee, for the appellant, Julia Beth Crews. Frederick J. Lewis, Thomas L. Henderson, and Whitney K. Fogerty, for the appellee, Buckman Laboratories International, Inc. David A. Burkhalter, II and Ronald A. Rayson, Knoxville, Tennessee, and R. Sadler Bailey, Memphis, Tennessee, for Amicus Curiae, Tennessee Trial Lawyers Association. Judge: BARKER First Paragraph: The sole issue in this case is whether an in-house lawyer can bring a common-law claim for retaliatory discharge when she was terminated for reporting that her employer's general counsel was engaged in the unauthorized practice of law. The trial court dismissed the plaintiff's complaint for failure to state a claim, and the dismissal was affirmed by the Court of Appeals. We hold that in- house counsel may bring a common-law action for retaliatory discharge resulting from counsel's compliance with a provision of the Code of Professional Responsibility that represents a clear and definitive statement of public policy. Accordingly, the judgment of the Court of Appeals is reversed, and this case is remanded for further proceedings. http://www.tba.org/tba_files/TSC/crewsjuliabeth.wpd

ROY L. LEAB v. S & H MINING COMPANY

Court:TSC

Attorneys:  

Benjamin C. Mullins and Imogene A. King, Knoxville, Tennessee, for the
appellant, S & H Mining Company.

Bruce D. Fox, Clinton, Tennessee, for the appellee, Roy L. Leab.                         

Judge: BIRCH

First Paragraph:

In this workers' compensation appeal, the employer raises several
issues.  Primarily, it contends that the trial court erred in awarding
benefits pursuant to Tenn. Code Ann. S 50-6-242 (1999) rather than
applying the "multiplier" provision of  Tenn. Code Ann. S 50-6-241(b)
(1999), which, if applied, would limit the plaintiff's award to six
times his medical impairment rating.  We hold that the evidence does
not preponderate against the trial court's finding.  Specifically, we
hold that the requirements of Tenn. Code Ann. S 50-6-242(1) are
satisfied whenever the employee either cannot read or write on an
eighth-grade level or lacks a high school diploma or general
equivalency diploma.  We reject the contention that both elements must
be satisfied to meet the statutory requirements.  The employer also
contends that the trial court failed to document the clear and
convincing evidence supporting an award in excess of the multiplier
provision, as required by Peace v. Easy Trucking Co., 38 S.W.3d 526
(Tenn. 2001), and that it abused its discretion in commuting the
benefit award to a lump sum because it did not make a finding that a
lump sum award would be in the plaintiff's best interest.  We hold
that the trial court's judgment fails to document specific findings
required for the resolution of both these issues, and we remand the
cause so these omissions may be remedied.

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

LARRY PATTERSON v. PREMIER MEDICAL GROUP, P. C., et al.

Court:TSC - Workers Comp Panel

Attorneys:

D. Andrew Saulters, Nashville, Tennessee, for the appellants, Premier
Medical Group, P. C., and CNA Insurance Company

Stanley A. Davis, Nashville, Tennessee, for the appellee, Larry
Patterson

Judge: LOSER

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.  In this
appeal, the appellants contend (1) the trial court erred in awarding
disability benefits in light of the appellee's refusal to undergo
carpal tunnel release surgery, (2) the trial judge erred in admitting
into evidence and considering testimony of a vocational expert called
by the appellee, and (3) the trial judge erred in awarding permanent
total disability benefits for a scheduled injury.  As discussed below,
the panel has concluded the award of permanent partial disability
benefits should be modified to one based on 100 percent to both arms.

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

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0603.wpd

PAUL IVY v. ALTON HESSON, WARDEN, TONY PARKER, ASSOCIATE WARDEN,
ROBERT HENRY, DEPUTY WARDEN, CAPTAIN MOORE, SGT. AARON TITTLE, and
CPL. MICHAEL OTTINGER, DISCIPLINARY BOARD CHAIRMAN

Court:TCA

Attorneys:  

Paul Ivy, appellant, pro se.

Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, and Pamela S. Lorch, Nashville, Tennessee, for the
appellees, Alton Hesson, Tony Parker, Robert Henry, Captain Moore,
Aaron Tittle, and Michael Ottinger.                        

Judge: LILLARD

First Paragraph:

This is a 42 U.S.C. S 1983 prisoner case.  The plaintiff, a state
prisoner, brought this S 1983 action in forma pauperis, claiming that
his due process rights were violated because he was disciplined in
retaliation for filing a letter of complaint to the appropriate
authorities.  The trial court dismissed the complaint without
prejudice, determining that the plaintiff did not submit an affidavit
that accurately documented his prior history of litigation as is
required under Tennessee Code Annotated S 41-21- 805.  The plaintiff
now appeals.  We reverse, finding that the trial court erred in
failing to allow the plaintiff limited discovery to rebut the
defendants' evidence that his affidavit was incomplete.

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

RICHARD MADKINS v. STATE OF TENNESSEE 

Court:TCA

Attorneys:

Richard Madkins, Pro Se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, and Martha A. Campbell, Senior Counsel, for the
State of Tennessee.                       

Judge: FARMER

First Paragraph:

Plaintiff was convicted of especially aggravated robbery and attempted
felony murder.  The trial court sentenced Plaintiff to two consecutive
sentences of sixty years for each count.  In an opinion filed on March
22, 1999, the Tennessee Supreme Court reversed Plaintiff's conviction
for attempted felony murder, concluding that the offense did not exist
in Tennessee.  On March 28, 2001, Plaintiff sued the State of
Tennessee in the Division of Claims Administration.  The State filed a
motion to dismiss Plaintiff's action, which the Claims Commission
granted.  Plaintiff appeals the decision of the Claims Commission.  We
affirm.

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

MELISSA GAY TAYLOR v. TERRY FRANKLIN TAYLOR, JR. 

Court:TCA

Attorneys:  

Holly D. Bishop, Henderson, Tennessee, for the appellant, Terry
Franklin Taylor, Jr.

Charles A. Spitzer, Jackson, Tennessee, for the appellee, Melissa Gay
Taylor.                        

Judge: FARMER

First Paragraph:

Husband moved the trial court to set aside a default judgment and
permanent parenting plan in this divorce action on the basis that the
final decree and permanent parenting plan differed significantly from
the relief sought in the complaint and temporary parenting plan filed
by Wife.  The trial court denied the motion and Husband appeals.  We
reverse the decision of the trial court insofar as it failed to grant
Husband the relief sought.

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

STATE OF TENNESSEE v. TERRANCE BURKE

Court:TCCA

Attorneys:

James M. Gulley, Memphis, Tennessee, for the Appellant, Terrance
Burke.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Jennifer Nichols, Assistant District Attorney General,
for the Appellee, State of Tennessee.                         

Judge: WITT

First Paragraph:

A Shelby County jury convicted the defendant, Terrance Burke, of
aggravated robbery.   On appeal, he challenges the sufficiency of the
convicting evidence and the trial court's denial of his pretrial
motion to suppress the victim's identification of him via a
photographic line-up.   Discerning no reversible error, we affirm the
conviction.

http://www.tba.org/tba_files/TCCA/burket2.wpd

STATE OF TENNESSEE v. JODY ALAN FERGUSON

Court:TCCA

Attorneys:

Joseph P. Atnip, District Public Defender; William K. Randolph,
Assistant Public Defender, Dresden, Tennessee, for the Appellant, Jody
Alan Ferguson.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; John H. Bledsoe, Assistant Attorney General; Thomas
A. Thomas, District Attorney General; Kevin McAlpin, Assistant
District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

On November 9, 1999, the Appellant, Jody Alan Ferguson, pled guilty to
nine counts of forgery in the Obion County Circuit Court and was
sentenced to two years of community corrections after service of
thirty days confinement in the county jail.  On March 9, 2000,
Ferguson pled guilty to four counts of forgery and received an
effective sentence of two years in the Tennessee Department of
Correction.  Ferguson's placement in the community corrections program
was revoked and his nine two-year sentences were ordered to be served
in the Department of Correction concurrently with his March 9th
sentences.  On June 21, 2000, Ferguson was granted determinate release
by the Department of Correction for the series of two-year sentences
imposed on November 9, 1999, and March 9, 2000, and he was returned to
supervised probation.  On June 26, 2000, Ferguson again pled guilty to
two counts of forgery and received concurrent two-year suspended
sentences to be served concurrently to all outstanding sentences
previously imposed.

On August 28, 2001, probation violation warrants were issued against
Ferguson.  The warrants alleged that Ferguson had violated the
following conditions: (1) failed to report to the probation officer;
(2) failed to pay supervision fees; (3) failed to pay restitution and
court costs; and (4) failed to perform community service work. On
November 9, 2001, the trial court revoked Ferguson's probationary
status and ordered him to serve the remainder of his two-year
sentences in the Tennessee Department of Correction.

On appeal, Ferguson does not contest the trial court's finding that he
violated the terms of his probation.   Rather, Ferguson  argues that
the trial court abused its discretion by not again placing him on
probation or community corrections. After review, we find no error and
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. MICHAEL DANELLE HARVEY

Court:TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton
Googe, District Public Defender (at trial and on appeal); and Vanessa
D. King, Assistant District Public Defender (at trial and on appeal),
for the appellant, Michael Danelle Harvey.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
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: WILLIAMS

First Paragraph:

Defendant was convicted for one count of statutory rape and one count
of criminal exposure to HIV.  Defendant appeals alleging (1) that
there was insufficient evidence to support his convictions and (2) the
imposition of consecutive sentences was excessive. We affirm the trial
court judgment.

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

STEVE V. WALKER v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Steve V. Walker, Tiptonville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Patricia C. Kussmann, Assistant Attorney General;
for the Appellee, State of Tennessee.                       

Judge: WEDEMEYER

First Paragraph:

The Petitioner filed a petition for writ of habeas corpus, alleging
that his sentence was illegal because: (1)  he was improperly
sentenced as a persistent offender; (2) his sentence was improperly
enhanced because he did not receive the State's notice of intent to
seek enhanced punishment; (3) the record of his prior criminal
convictions relied upon to sentence him was inaccurate; and (4) his
counsel was ineffective.  The trial court denied the Petitioner's
request for habeas corpus relief, and the Petitioner appealed. 
Because the Petitioner has failed to allege grounds that would warrant
habeas corpus relief, the judgment of the trial court is affirmed.

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

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