Opinion Flash

June 11, 2002
Volume 8 — Number 102

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):
 
00 New Opinion(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
10 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


MARY BARNETT v. S&R OF TENNESSEE, et al.

Court:TSC - Workers Comp Panel

Attorneys:     

William B. Walk, Jr. and Jeannie M. Kosciolek, Memphis, Tennessee, for
the appellant, S&R of Tennessee

Frank Deslauriers, Covington, Tennessee, for the appellee, Mary
Barnett

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 employer insists the evidence preponderates against the
trial court's findings (1) that the claimant suffered an injury
arising out of and in the course of employment, and (2) the trial
court's finding that the injury is permanent.  As discussed below, the
panel has concluded the award should be modified to one based on 15
percent to both arms, but otherwise affirmed.

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

FAYE BUTTERFIELD v. CRAWFORD & COMPANY

Court:TSC - Workers Comp Panel

Attorneys:

Mark W. Raines and R. Scott Vincent, Memphis, Tennessee, for the
appellant, Crawford & Company

George L. Morrison, Jr., Jackson, Tennessee, and Mary Dee Allen,
Cookeville, Tennessee, for the appellee, Faye Butterfield                         

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 employer-appellant insists the trial court erred in (1)
considering an evaluating physician's opinion of the extent of the
employee's medical impairment, as not being based on statutorily
approved guidelines, and (2) the award of permanent partial disability
benefits based on 42 percent to the body as a whole is excessive under
the circumstances.  As discussed below, the panel has concluded the 
award exceeds the maximum prescribed by statute and the judgment
should be vacated and the cause remanded with instructions.

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

JEWEL POWERS v. JOHNSON CONTROLS, et al.

Court:TSC - Workers Comp Panel

Attorneys:

Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse,
Assistant Attorney General, Nashville, Tennessee, for the appellant,
Second Injury Fund

Ricky L. Boren, Jackson, Tennessee, for the appellee, Jewel Powers

John D. Burleson and L. Beth Williams, Jackson, Tennessee, for the
appellee, Johnson Controls                     

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 Second Injury Fund insists (1) the claim is barred by the
one-year statute of limitations, (2) the employer is judicially
estopped from asserting it had actual notice of the employee's
pre-existing disability, when it denied such knowledge in its answer,
and (3) the trial court erred in its apportionment of liability
between the Fund and the employer.  As discussed below, the panel has
concluded the judgment should be affirmed

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

DWAYNE E. ANDERSON v. STATE OF TENNESSEE

Court:TCA

Attorneys:

Dwayne E. Anderson, appellant, pro se.

Paul G. Summers, Attorney General, Michael E. Moore, Solicitor
General, and Mark A. Hudson, Senior Counsel for the appellee, State of
Tennessee.                         

Judge: LILLARD

First Paragraph:

This is an appeal by a plaintiff prisoner seeking review of the
Tennessee Claims Commission's dismissal of his case for lack of
subject matter jurisdiction.  The Claims Commission dismissed the
plaintiff's petition, finding that it did not have jurisdiction to
hear intentional tort claims. We affirm, finding that Tennessee Code
Annotated S 9-8-307 does not confer jurisdiction on the Claims
Commission to hear intentional tort claims or claims based on the
negligent deprivation of constitutional rights.

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

CONTEMPORARY MEDIA, INC., d/b/a THE MEMPHIS FLYER, and ASHLEY FANTZ v.
A. C. GILLESS, AS SHERIFF OF SHELBY COUNTY  

Court:TCA

Attorneys:

Donnie E. Wilson, Shelby County Attorney, Renee Allen-Walker, Senior
Assistant County Attorney, and Brian L. Kuhn, Assistant County
Attorney, Memphis, Tennessee, for the appellant, A.C. Gilless.

Jerry E. Mitchell, John H. Dotson, and Craig C. Conley, Memphis,
Tennessee, for the appellees, Contemporary Media, Inc. and Ashley
Fantz.                      

Judge: LILLARD

First Paragraph:

This is a petition brought under the Public Records Act.  As part of
an investigative story into the hiring practices of the county
sheriff's department, a local newspaper publisher sought photographs
from the personnel files of nineteen recently hired deputy sheriffs. 
The sheriff's department denied the request because the newly hired
deputy sheriffs were in the pool of officers available for undercover
work.  The publisher then filed a petition seeking disclosure of the
photographs under the Public Records Act.  The trial court ordered
that the sheriff's department make the photographs available to the
publisher.  The sheriff's department appealed.  We reverse, finding
that the requested photographs were exempted from the Act's disclosure
requirements.

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

CORRECTED VERSION: NEW FIRST PAGE
IN THE MATTER OF THE ESTATE OF NELLIE K. ELLIS
CHARLES W. MOORE, et al. v. CLYDE GREEN, et al.

Court:TCA

Attorneys:

Homer R. Ayers, Goodlettsville, Tennessee, for the appellants Charles
W. Moore and Linda Moore Maggart as executrix for the estate of
William Herschel Moore, a/k/a Herschel Moore, deceased.

Grant W. Smith, Goodlettsville, Tennessee, for the appellants Ray
Swing, Juanita Swing Sircy, Jeanne Swing Pennington, and James Edward
Swing.

William H. Lassiter, Jr. and Jordan S. Keller, of Lassiter, Tidwell &
Hildebrand, PLLC, Nashville, Tennessee, for the appellee, Clyde Green.

William L. Harbison, J. Scott Hickman and Stephen D. Hurd of Sherrard
& Roe, PLC, Nashville, Tennessee, for the appellee, First American
National Bank.                      

Judge: LILLARD

First Paragraph:

This case involves the interpretation of a remainder interest granted
in a will.  The decedent's husband bequeathed to the decedent a life
estate in stock in a family-owned business, with the remainder to go
50% to his "living heirs" and 50% to "some deserving person in the
music department at Belmont College."  After her husband's death, the
decedent purchased the remainder interest in the stock from all of the
remaindermen.  By virtue of this purchase, the decedent presumed that
she owned the stock outright.  At her death, her will included a
bequest of the stock.  Her heirs brought this declaratory judgment
action, seeking a declaration that the decedent did not own the stock
at her death.  They argued that the decedent's purchase of the
remainder interest in the stock was invalid because the remaindermen
did not own a vested interest in the stock at the time of the
husband's death.  The trial court found that the case was barred by
the statute of limitations and that the decedent had, in fact,
acquired 100% ownership in the stock.  The heirs now appeal.  We
affirm, finding that the remaindermen in the husband's will acquired a
vested, transmissible remainder interest in the stock at the husband's
death.

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

GEORGE HAMILTON, V v. THE STARDUST THEATRE, INC., et al.

Court:TCA

Attorneys:

Grant Smith, Goodlettsville, Tennessee, for the appellants, The
Stardust Theatre, Inc., Gary Bridges, and Edward H. Arnold.

Melissa M. Allen, Nashville, Tennessee, for the appellee, George
Hamilton, V.                         

Judge: CANTRELL

First Paragraph:

A singer/songwriter brought a copyright infringement suit against a
country music theater, its manager and its owner.  The defendants
admitted to the unlicenced use of the plaintiff's trademark, but
argued that the plaintiff did not suffer any damages from their
infringement.  The trial court did not agree, and awarded the
plaintiff over $90,000.  We reverse in part, because we believe that
the evidence preponderates against the court's award of damages.

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

EFFIE LOUISE HAYES v. ROGER STRUTTON, et al.

Court:TCA

Attorneys:     

Effie Louise Hayes, Chattanooga, Tennessee, pro se

Arthur P. Brock and Daniel M. Stefaniuk, Chattanooga, Tennessee, for
the Appellee, Mark G. Rothberger

Gary E. Lester and Robert S. Grot, Chattanooga, Tennessee, for the
Appellees, Roger Strutton, Betty Strutton and Gary Lester

Judge: HAYES

First Paragraph:

Plaintiff/Appellant, Effie Louise Hayes, appeals the Hamilton County
Circuit Court's judgment on the pleadings dismissing her complaint
wherein she asserted that  the Defendants/Appellees, Roger Strutton,
Betty Strutton, Gary Lester and Mark Rothberger, defrauded her of real
property.  We affirm the judgment of the Circuit Court.

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

HEALTH COST CONTROLS, INC. v. RONALD GIFFORD

Court:TCA

Attorneys:

H. Max Speight, Dresden, Tennessee, for the appellant, Ronald Gifford.

Thomas H. Lawrence and John M. Russell, of Memphis, Tennessee, for the
appellee, Health Cost Controls, Inc.

Judge: LILLARD

First Paragraph:

This is an insurance case on remand from the Tennessee Supreme Court. 
The Court has directed us "to reconsider the case on its merits in
accordance with . . . York v. Sevier County Ambulance Auth., 8 S.W.3d
616 (Tenn. 1999)," which was decided after the appellate briefs were
filed in the initial appeal.  In York, the Supreme Court established
that the "made whole" doctrine, applicable in cases involving an
insurer's subrogation rights, is also applicable in cases involving an
insurer's right to reimbursement for amounts paid to the insured from
another source.  After careful consideration, we find that York does
not affect our original disposition of this case, and, therefore, on
remand, we affirm the decision of the trial court.

http://www.tba.org/tba_files/TCA/healthcostcontrols1.wpd

LARRY LITTLES v. DONAL CAMPBELL, et al.

Court:TCA

Attorneys: 

Larry Littles, Pro Se

Paul G. Summers, Attorney General and Reporter, Arthur Crownover, II,
Senior Counsel, For Appellees. Donal Campbell, James Dukes and Lisa
Reynolds

Judge: CRAWFORD

First Paragraph:

Petitioner, an inmate of the Tennessee Department of Correction, filed
a petition for writ of certiorari, seeking judicial review of a
disciplinary hearing at which the disciplinary board found him guilty
of Conspiracy to Violate State Law and sentenced him to punitive
segregation.  The trial court granted respondents' motion to dismiss
for, inter alia, failure to state a claim.  We affirm.

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

NATALYA MAZOR v. KENNETH ISAACMAN, D.D.S.

Court:TCA

Attorneys: 

Patricia L. Penn, Memphis, Tennessee, for the appellant, Natalya
Mazor.

R. Sadler Bailey, Memphis, Tennessee, for the appellee, Kenneth
Isaacman, D.D.S.                         

Judge: LILLARD

First Paragraph:

This is a dental malpractice case.  The patient visited the defendant
dentist in August 1997 for routine root canal surgery.  After the
surgery, the patient began experiencing "constant" pain in the tooth
in which the root canal was performed.  She was told by the defendant
dentist that this was pain ordinarily felt after root canal surgery. 
In February 1999, the patient visited another dentist who discovered
that a piece of a drill bit had been left inside patient's tooth
during the previous root canal.  In December 1999, the patient filed a
lawsuit against the defendant dentist for dental malpractice. The
defendant dentist filed a motion to dismiss, arguing that the patient
did not bring the claim within the one year statute of limitations. 
This motion was granted and the patient now appeals.  We reverse,
finding that the patient had one year from the time she discovered or
should have discovered the foreign object in which to file her
lawsuit.

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

DAVID STOVALL v. CHRISTOPHER L. DUNN

Court:TCA

Attorneys:   

David Stovall, Only, Tennessee, Pro Se.

Christopher L. Dunn, Columbia, Tennessee, Pro Se.                       

Judge: KOCH

First Paragraph:

This appeal involves a state prisoner's civil rights action against a
private lawyer appointed to represent him in a post-conviction
proceeding.  The prisoner filed suit against his former lawyer in the
Circuit Court for Maury County alleging that the lawyer, motivated by
racial bias, had intentionally deprived him of an opportunity to seek
appellate review of an adverse decision of the Tennessee Court of
Criminal Appeals and had refused to provide him with his case file. 
The lawyer moved for summary judgment on the ground that the
prisoner's complaint was barred by the statute of limitations.  The
trial court granted the summary judgment, and the prisoner has
appealed.  We have determined that the trial court erred by granting
the summary judgment because there is a genuine factual issue
regarding whether the prisoner's complaint is time-barred.

http://www.tba.org/tba_files/TCA/stovall v.wpd

VICTOR R. WINGO v. TENNESSEE DEPARTMENT OF CORRECTION 

Court:TCA

Attorneys:

Victor Wingo, Pro Se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General and Mark A. Hudson, Senior Counsel, for the
appellee, Tennessee, Department of Correction.                        

Judge: FARMER

First Paragraph:

Petitioner, an inmate in custody of the Tennessee Department of
Correction, filed a petition for writ of certiorari seeking judicial
review of a disciplinary hearing wherein the inmate was found guilty
of assault and strong arm activity and received a deduction of
one-year in good time and was upgraded to maximum security.  The trial
court granted respondent's motion to dismiss for failure to state a
claim.  We affirm.

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

FREDERICK BEAUREGARD v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Harriet S. Thompson, Bolivar, Tennessee, for the Appellant, Frederick
Beauregard.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; Elizabeth
T. Rice, District Attorney General; and James Walter Freeland,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Frederick Beauregard, appeals from the Hardeman County
Circuit Court's denial of his petition for post-conviction relief.  In
May of 1997, Beauregard was convicted of the rape and incest of his
thirteen-year-old daughter.  He received an effective sentence of nine
years for the convictions.  Beauregard's convictions and sentences
were later affirmed on direct appeal.  See State v. Beauregard, 32
S.W.3d 681 (Tenn. 2000).  On February 13, 2001, Beauregard timely
filed his pro se petition for post-conviction relief which was amended
following appointment of counsel.  Following a hearing on the merits,
the trial court denied Beauregard's petition.

From this denial, Beauregard now appeals asserting that he received
ineffective assistance of trial counsel in the following respects: (1)
trial counsel was inadequately prepared for trial; (2) trial counsel
failed to properly investigate, interview or call material witnesses
at trial; (3) trial counsel failed to discuss trial strategy or the
theory of the case with Beauregard; (4) trial counsel failed to review
the jury list with Beauregard; (5) trial counsel failed to develop
testimony with regard to the chain of custody of the rape kit and its
reliability; and (6) trial counsel failed to provide expert proof to
rebut the State's DNA expert.  After review, we find no error and
affirm the judgment of the post- conviction court.

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

STATE OF TENNESSEE v. HOLLY FANT

Court:TCCA

Attorneys:  

Tom W. Crider, District Public Defender, Trenton, Tennessee, for the
Appellant, Holly Fant.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; J. Ross Dyer, Assistant Attorney General; Garry G.
Brown, District Attorney General; and Bill Bowen, Assistant District
Attorney General, for the Appellee, State of Tennessee.                        

Judge: HAYES

First Paragraph:

The Appellant, Holly Fant, appeals from the sentencing decision of the
Gibson County Circuit Court.  Fant pled guilty, under an "open" plea
agreement, to aggravated assault and, following a hearing, was
sentenced to a term of four years in the Tennessee Department of
Correction.  Fant now appeals, asserting that the trial court failed
to comply with the relevant sentencing principles and, therefore,
erred in not granting her a non-incarcerative sentence.  Because we
find that the trial court failed to place on the record discernable
enhancing or mitigating factors as is statutorily required, and failed
to include findings with regard to the denial of an alternative
sentence, the judgment is reversed and this case is remanded for a new
sentencing hearing.

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

ROBERT ANTHONY PAYNE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Mike Anderson, Nashville, Tennessee, for the appellant, Robert Anthony
Payne.

Michael E. Moore, Solicitor General; David H. Findley, Assistant
Attorney General; Victor S. (Torry) Johnson, III, District Attorney
General; and Kymberly L. A. Haas, Assistant District Attorney General,
for the appellee, Robert Anthony Payne.                        

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the post-conviction court's denial of his
petition for post-conviction relief.  He claims that counsel was
ineffective for failing to timely discover the existence of another
individual who was questioned regarding the aggravated assault and for
failing to interview or cross-examine the victim of the assault. 
After review, we affirm the judgment from the post- conviction court.

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

STATE OF TENNESSEE v. JOSEPH WHITE

Court:TCCA

Attorneys:

Garland Erguden, Assistant Public Defender; A C Wharton, Jr., Shelby
County Public Defender, Memphis, Tennessee, for the Appellant, Joseph
White.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Reginald Henderson,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                         

Judge: HAYES

First Paragraph:

The Appellant, Joseph White, was convicted by a Shelby County jury of
rape and was sentenced to eight years in the Tennessee Department of
Correction.  On appeal, he argues that the evidence presented at trial
was insufficient to support his conviction.  After review, we find no
error and affirm the judgment of conviction.

http://www.tba.org/tba_files/TCCA/whitej1.wpd

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