Opinion Flash

November 15, 2002
Volume 8 — Number 202

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
04 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 New Opinion(s) from the Tennessee Court of Appeals
09 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


ALMA HANEY v. MABRY HEALTH CARE, INC.

Court:TSC - Workers Comp Panel

Attorneys:

Kirk L. Clements, Nashville, Tennessee, for the appellant, Mabry
Health Care, Inc.

William E. Halfacre, Cookeville, Tennessee, for the appellee, Alma
Haney

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 questions the trial court's award of permanent
partial disability benefits based on 80 percent to the left leg.  As
discussed below, the panel has concluded the judgment should be
affirmed.

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

ROYAL & SUNALLIANCE v. BARBARA COOPER

Court:TSC - Workers Comp Panel

Attorneys:

Diana C. Benson and Larry G. Trail, Murfreesboro, Tennessee, for the
appellant, Royal and SunAlliance

Keith Jordan, Nashville, Tennessee, for the appellee, Barbara Cooper

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's insurer questions the trial court's finding
that the employee's injury is causally related to her employment; and
the employee questions the sufficiency of the award.  As discussed
below, the panel has concluded the judgment should be affirmed.

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

GLENN ELIZABETH TEFFT v. WEAKLEY COUNTY AMBULANCE SERVICE

Court:TSC - Workers Comp Panel

Attorneys:  

Sean Antone Hunt, Spicer, Flynn & Rudstrom, Memphis, Tennessee, for
the appellant, Weakley County Ambulance Service

Charles L. Hicks, Camden, Tennessee, for the appellee, Glenn Elizabeth
Tefft                        

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 (1) the evidence preponderates against
the trial judge's finding that the plaintiff sustained a back injury
on September 13, 1999 from lifting a patient where the evidence shows
the plaintiff never lifted a patient, (2) the evidence preponderates
against the trial judge's finding that the plaintiff gave proper
notice as required by Tenn. Code Ann. S 50-6-201 where, without a
reasonable excuse for delay, plaintiff began treatment but did not
inform defendant that plaintiff's alleged injury was work related
until a month and fourteen days later, (3) the trial judge erred in
admitting the plaintiff's entire deposition into evidence, over the
objection of the defendant, when the plaintiff offered the same after
excerpts of the deposition were properly offered by defendant pursuant
to Tenn. R. Civ. P. 32.01, and (4) the trial judge erred in awarding
the plaintiff medical expenses paid by the plaintiff's health
insurance, a nonparty.  As discussed below, the panel has concluded
the judgment should be affirmed.

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

CHESTER GRAY THOMPSON v. NASHVILLE ELECTRIC SERVICE

Court:TSC - Workers Comp Panel

Attorneys:        

Mark A. Baugh and Eugene Ward, Nashville, Tennessee, for the
appellant, Nashville Electric Service

E. Guy Holliman and William Joseph Butler, Lafayette, Tennessee, for
the appellee, Chester Thompson

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 (1) the award of permanent partial
disability benefits based on 37.5 percent to the body as a whole is
excessive, (2) the trial court erred in finding that the employee
suffered a back injury "in the scope and course of the employment,"
and (3) the trial court erred in commuting the award to a lump sum. 
The employee questions the admissibility of the treating physician's
records because the records were neither admitted through a medical
records custodian nor the deposition of the treating physician, and no
C-32 form was submitted.  As discussed below, the panel has concluded
that any error in the admission of the medical records was harmless.
We therefore affirm the judgment.

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

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. RICHARD AGBIGOR, SR.

Court:TCA

Attorneys:

Merrilyn Feirman, Nashville, Tennessee, for the appellant, Richard
Agbigor.

Douglas Earl Dimond, Nashville, Tennessee, for the appellee,
Department of Children's Services.

Judge: CAIN

First Paragraph:

Richard Agbigor, Sr. takes this appeal from the Juvenile Court of
Davidson County, challenging that court's termination of his parental
rights to two children, R.A. and L.M.A.  Although these two children
are only two of six children to whom the trial court terminated the
parental rights of both Richard Agbigor, Sr. and Terry C. Agbigor, the
mother does not appeal the termination of her parental rights, and the
father appeals the termination of parental rights only to his two
biological children.  Since we find that Mr. Agbigor effectively
waived his right to counsel below and that clear and convincing
evidence established grounds for termination and that termination of
parental rights of Mr. Agbigor is in the best interest of the
children.  We affirm the judgment of the trial court.

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

DEBORAH A. COATES v. THOMAS A. COATES

Court:TCA

Attorneys: 

Thomas A. Coates, Lexington, Kentucky, Pro Se.

Delilah Ann Speed, Columbia, Tennessee, for the appellee, Deborah A.
Coates.

Judge: COTTRELL

First Paragraph:

This appeal arose after the trial court rejected the father's petition
to reduce child support.  Because the father showed a substantial
variance between the amount of child support he was ordered to pay and
the amount of child support called for under the guidelines, we
reverse the trial court's order denying modification prospectively. 
Because the court originally awarded support from the father's
property, we affirm the denial of modification of that portion of the
child support award.

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

LISA ANNETTE DAVIS v. CHARLES LEE JENSEN

Court:TCA

Attorneys:

Deana C. Hood, Franklin, Tennessee, for the appellant, Charles Lee
Jensen.

Thomas F. Bloom, Nashville, Tennessee, for the appellee, Lisa Annette
Davis.                     

Judge: CAIN

First Paragraph:

Appellant, an incarcerated prisoner in the Department of Corrections
of California, appeals the action of the Juvenile Court of Williamson
County in terminating his parental rights to his biological child.  He
refused to participate in the termination hearing by means of
telephonic communication as authorized by the trial court demanding,
instead, that the trial court either continue the case until after his
release from confinement, or have him transported from California to
Williamson County for personal participation.  The trial court held
that he waived his right to participation in the termination
proceedings and terminated his parental rights.  We affirm the trial
court.

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

HILLSBORO PLAZA v. H. T. POPE ENTERPRISES, INC., et al.

Court:TCA

Attorneys:     

Donald Capparella, Brentwood, Tennessee, for the appellants, H. T.
Pope Enterprises Inc., Hilda S. Pope and Terry W. Pope.

David S. Zinn, Brentwood, Tennessee, for the appellee, Hillsboro
Plaza.                     

Judge: FARMER

First Paragraph:

This cause of action involves damages resulting from the breach of a
commercial lease agreement.  The trial court awarded judgment to the
landlord, including forfeiture damages, prejudgment interest and
attorney's fees.  We affirm in part and reverse in part.

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

KRISHINA DENIA LEACH, et al. v. METROPOLITAN GOVERNMENT OF NASHVILLE
AND DAVIDSON COUNTY, et al.

Court:TCA

Attorneys:  

John L. Kennedy, Daniel W. Champney, Nashville, Tennessee, for the
appellant, Metropolitan Government of Nashville and Davidson County.

Lee Ofman, Franklin, Tennessee, for the appellee, Krishina Denia
Leach.

Terrance E. McNabb, Nashville, Tennessee, for appellee Richard Dale
Moore.                        

Judge: CANTRELL

First Paragraph:

This is a Tennessee Governmental Tort Liability Act case.  A tow truck
owned and operated by an employee of the Metropolitan Government of
Nashville and Davidson County was traveling northwardly on Second
Avenue South when it struck and killed Jacob Leach, age three, and
seriously injured his mother, Krishina Leach.  Jacob and his mother
were walking southwardly on the sidewalk when Jacob broke free of his
mother's restraint and darted into the path of the truck.  The trial
judge concluded that the driver of the tow truck was negligent because
he "should have seen what was there to be seen."  The judgment is
reversed upon a finding that a motorist is under no duty to assume
that an escorted child, in the restraint of an adult, will suddenly
break free and run into traffic.

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

NATIONS RENT OF TENNESSEE, INC. v. MEL LANGE, et al. FORKLIFTS
UNLIMITED, LLC, et al. v. DAVID Q. WRIGHT, et al. SOUTHERN WOOD
TREATMENT CO., INC. v. DAVID Q. WRIGHT, et al.
Corrected Opinion

Court:TCA

Attorneys:

John T. Blankenship, Murfreesboro, Tennessee, for the appellants,
David Q. Wright and RLI Insurance Company.

Ewing Sellers, Murfreesboro, Tennessee, for the appellee, Nations Rent
of Tennessee, Inc.

Robert P. Gritton, Murfreesboro, Tennessee, for the appellees,
Forklifts Unlimited LLC and Forklifts Unlimited, Inc.

Judge: LYLE

First Paragraph:

Vendors of rental equipment filed suit to collect unpaid invoices from
the landowner after the contractor abandoned the job.  The trial court
granted recovery based upon the Mechanics' and Materialmen's Lien
Statute and quantum meruit.  We reverse for insufficient proof on the
correct measure of damages.

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

DAN B. WILSON, JR. v. LAWRENCE H. RUBIN, et al.
Corrected Opinion

Court:TCA

Attorneys:

W. Gary Blackburn, Nashville, Tennessee, for the appellant, Dan B.
Wilson, Jr.

Gail Vaughn Ashworth, Nashville, Tennessee, for the appellees,
Lawrence H. Rubin and Sony/ATV Music Publishing Company, LLC.                         

Judge: KOCH

First Paragraph:

This appeal involves the termination of an employee by a music
publishing company after one of its songwriters complained that the
employee had stalked and harassed her.  The employee filed suit in the
Chancery Court for Davidson County alleging gender and age
discrimination in violation of the Tennessee Human Rights Act.  The
publishing company moved for a summary judgment asserting that it had
a valid non-discriminatory ground for terminating the employee.  The
employee responded that the proffered non-discriminatory ground was
pretextual.  The trial court granted the summary judgment and
dismissed the employee's complaint.  On this appeal, the employee
asserts that genuine material factual disputes regarding the
publishing company's non-discriminatory reasons for terminating him
should have prevented the trial court from granting the summary
judgment.  We agree and, therefore, vacate the order dismissing the
employee's complaint.

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

STATE OF TENNESSEE v. DANIEL JAMES COSGROVE

Court:TCCA

Attorneys:

Merrilyn Feirman, Nashville, Tennessee (on appeal); Donna Leigh
Hargrove, District Public Defender; and Andrew Jackson Dearing, III,
Assistant District Public Defender (at trial), for the appellant,
Daniel James Cosgrove.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; William Michael McCowan,
District Attorney General; and Michael David Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Daniel James Cosgrove, pled guilty in the Bedford
County Circuit Court to nineteen felonies and thirty-one misdemeanors.
 The trial court sentenced him to an effective sentence of twenty-one
years and eleven months, twenty-nine days in confinement to be served
consecutively to another sentence for which his probation was revoked.
 The defendant appeals, claiming that the trial court failed to apply
and weigh mitigating factors properly and improperly ordered
consecutive sentencing.  We affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. JAMES COREY EDMISTON

Court:TCCA

Attorneys:

Hershell Koger, Pulaski, Tennessee, for the appellant, James Corey
Edmiston.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; W. Michael McCown, District Attorney
General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: WELLES

First Paragraph:

A jury convicted the Defendant, James Corey Edmiston, of attempted
second degree murder, especially aggravated robbery, especially
aggravated burglary, aggravated assault, vandalism and resisting
arrest.  The trial court merged the aggravated assault conviction into
the attempted murder conviction.  The court sentenced the Defendant as
a Range I offender to ten years for the attempted murder; twenty-four
years for the especially aggravated robbery; ten years for the
especially aggravated burglary; and eleven months, twenty-nine days
for each of the two misdemeanor convictions.  The trial court ordered
the felony sentences to run consecutively to each other, with the
misdemeanor sentences to run concurrently with the attempted murder
sentence, for an effective sentence of forty-four years.  The
Defendant now appeals, challenging the sufficiency of the evidence for
the attempted second degree murder conviction, and the trial court's
imposition of consecutive sentences.  We affirm the trial court's
judgment.

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

STATE OF TENNESSEE v. RICHARD LACARDO ELLIOTT

Court:TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal); and Roger Eric
Nell, District Public Defender; and Fred W. Love, Assistant Public
Defender, Clarksville, Tennessee (at trial and of counsel on appeal)
for the appellant, Richard Lacardo Elliott.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; John Wesley Carney, Jr.,
District Attorney General; and C. Daniel Brollier, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, Richard Lacardo Elliott, appeals his convictions in the
Circuit Court of Montgomery County for aggravated robbery and
aggravated kidnapping.  Defendant argues that his conviction for
aggravated kidnapping may not stand pursuant to the Tennessee Supreme
Court's holding in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991).  He
further contends that the evidence at trial was insufficient to
support his convictions, and that the trial court should have granted
a motion for mistrial based upon the State's improper comments during
closing argument.  We disagree, and affirm the judgments of the trial
court.

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

STATE OF TENNESSEE v. JAMES DEWEY JENSEN, JR.

Court:TCCA

Attorneys:

Jeffrey S. Schaarschmidt, Chattanooga, Tennessee, for the appellant,
James Dewey Jensen, Jr.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; William H. Cox, III, District
Attorney General; and Thomas E. Kimball, Assistant District Attorney
General, for the appellee, State of Tennessee.                          

Judge: RILEY

First Paragraph:

A Hamilton County jury convicted the defendant, James Dewey Jensen,
Jr., of a seventh offense of driving under the influence, theft of
identity, and violation of the Motor Vehicle Habitual Offenders Act. 
The sole issue presented by the defendant in this appeal is whether
the trial court erred in denying the motion to suppress evidence
obtained as a result of the vehicle stop.  We affirm the judgment of
the trial court.

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

STATE OF TENNESSEE v. FELIX M. LEACH

Court:TCCA

Attorneys:

John H. Henderson, District Public Defender, for the appellant, Felix
M. Leach.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Derek K. Smith, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

On November 13, 2000, a Williamson County grand jury indicted the
defendant, Felix M. Leach, for possession with intent to sell or
deliver cocaine, possession of marijuana, and possession of drug
paraphernalia.  In a negotiated plea agreement dated June 19, 2001,
the defendant pled guilty as a Range II, multiple offender to each of
the three counts of the indictment.  The plea agreement specified that
the three sentences would run concurrently and that all remaining
sentencing issues would be determined by the trial court following a
sentencing hearing.  After a sentencing hearing, the trial court
sentenced the defendant to ten years for possession with intent to
sell or deliver cocaine, eleven months and twenty-nine days for each
of the other two counts, and ordered the sentences to be served
consecutively to a previous sentence that he was on probation for at
the time.  The defendant raises two issues on appeal:  (1) whether the
ten-year sentence for possession with intent to sell or deliver
cocaine was excessive; and (2) whether the three sentences should be
concurrent or consecutive to the sentence for which he was on
probation at the time.  After reviewing the record, we affirm the
judgment of the trial court.

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

STATE OF TENNESSEE v. QUAWN L. LILLARD

Court:TCCA

Attorneys:

Edward S. Ryan, Brentwood, Tennessee (at trial); and Dwight E. Scott,
Nashville, Tennessee (at trial and on appeal), for the appellant,
Quawn L. Lillard.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Brian Holmgren, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Quawn L. Lillard, appeals his Davidson County Criminal
Court convictions for aggravated robbery and aggravated assault.  On
appeal, he insists that the convicting evidence is not legally
sufficient to support his convictions, and he claims that the trial
court should not have admitted the identification testimony of one of
the victims.  After review, we affirm the judgments of the trial
court.

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

STATE OF TENNESSEE v. SAMUEL LEE PARTIN

Court:TCCA

Attorneys:

Julie A. Rice, Knoxville, Tennessee (on appeal); Raymond Mack Garner,
District Public Defender; and Shawn G. Graham, Assistant District
Public Defender (at sentencing hearing), for the appellant, Samuel Lee
Partin.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and John Anderson Bobo, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The defendant pled guilty to two counts of driving after being
declared an habitual motor vehicle offender and one count each of
"third or subsequent" offense DUI, child endangerment, and vehicular
assault, and it was agreed the trial court would determine the
sentences.  The trial court imposed a total effective sentence of five
years, eleven months, and twenty-eight days in incarceration.  In this
appeal, the defendant argues the trial court erred in sentencing him. 
We conclude the defendant was indicted for fourth offense DUI, a Class
E felony; he pled guilty to the offense as charged in the indictment,
yet the plea erroneously referred to the non-existent enhancement
classification of "third or subsequent" offense DUI rather than fourth
offense DUI; and the defendant was erroneously sentenced for a
misdemeanor based upon this non-existent enhancement classification. 
Because the defendant's guilty plea and sentence for this offense were
erroneous and his pleas to all other offenses were part of his
agreement to plead guilty, we vacate all judgments of conviction and
remand to the trial court for further proceedings.

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

STATE OF TENNESSEE v. THOMAS MICHAEL SHINAVAR

Court:TCCA

Attorneys:     

Roger E. Nell, District Public Defender; and Collier W. Goodlett,
Assistant District Public Defender, for the appellant, Thomas Michael
Shinavar.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and C. Daniel Brollier, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.                     

Judge: RILEY

First Paragraph:

A Montgomery County jury convicted the defendant, Thomas Michael
Shinavar, of driving under the influence (DUI), his fourth offense and
a Class E felony.  On appeal, the defendant presents the following
issues: (1) whether the indictment charging DUI failed to satisfy
constitutional and statutory requirements; and (2) whether the
indictment failed to provide adequate notice to the defendant that he
was charged with a felony rather than a misdemeanor.  After reviewing
the record, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. JERRY W. SOUDER

Court:TCCA

Attorneys:

Wayne Culbertson, Kingsport, Tennessee, for the appellant, Jerry W.
Souder.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Greeley Wells, District Attorney General;
and James Goodwin, Assistant District Attorney General, for the
appellee, State of Tennessee.                         

Judge: WELLES

First Paragraph:

The Defendant, Jerry W. Souder, pled nolo contendere to one count of
attempted aggravated sexual battery.  As part of the plea agreement,
the Defendant was sentenced as a Range II offender to six years, with
the manner of service to be determined by the trial court.  After a
hearing, the trial court ordered the Defendant to serve his sentence
in the Department of Correction.  The Defendant now appeals as of
right, alleging that the trial court erred by denying him an
alternative sentence, specifically probation.  We affirm the judgment
of the trial court.

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

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