Opinion Flash

December 4, 2002
Volume 8 — Number 212

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
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
02 New Opinion(s) from the Tennessee Court of Appeals
05 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


SYLVAIN KINNON v. WAL-MART STORE, INC., et al.

Court:TSC - Workers Comp Panel

Attorneys:

Jay L. Johnson, Jackson, Tennessee, for the appellant, Wal-Mart
Stores, Inc.

Christopher L. Taylor, Memphis, Tennessee, for the appellee, Sylvain
Kinnon                        

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 as to causation, permanency and extent of
permanent disability.  As discussed below, the panel has concluded the
judgment should be affirmed.

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

JERRY WAYNE MATLOCK v. LTV STEEL, INC. AND INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA

Court:TSC - Workers Comp Panel

Attorneys:   

Lori Keen, Memphis, Tennessee, for Appellant.

Art D. Wells, Jackson, Tennessee, for Appellee.                       

Judge: GAYDEN

First Paragraph:

This worker's compensation appeal has been referred to the Special
Worker's Compensation Appeals Panel of the Supreme Court in accordance
with Tenn. Code Ann. S 50-6-225(e)(3) for a 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 finding of permanent
partial disability for injury to the back, neck and hand.  The
employer also questions the award of benefits to claimant's right hand
for carpel tunnel syndrome, due to the lack of notice of the injury to
employer.  As discussed below, the panel has concluded the evidence
supports the findings of the trial court.

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

DOROTHY RAULT HEIDEMAN v. RICHARD LAWRENCE HEIDEMAN

Court:TCA

Attorneys:         

Joe M. Duncan, Memphis, TN, for Appellant

Leslie Gattas Coleman, Pounders Coleman, Memphis, TN, for Appellee                 

Judge: HIGHERS

First Paragraph:

This appeal arises from a divorce initiated by the wife.  The trial
court granted the wife a divorce based on adultery. The marital
property was divided giving the wife approximately 55% or $650,491.00
and giving the husband approximately 45% or $533,731.00.  The trial
court found that the wife could not be rehabilitated and ordered the
husband to pay $2,500.00 per month in alimony in futuro. 
Additionally, the wife was awarded $15,000.00 in attorney's fees. 
Husband raises issues regarding the award of alimony in futuro and
attorney's fees for our review.  For the following reasons, we affirm
in part as modified and reverse in part.

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

JAMES KILLINGSWORTH, et al. v. TED RUSSELL FORD, INC.

Court:TCA

Attorneys:  

George W. Morton, Jr. and J. Myers Morton, Knoxville, Tennessee, for
the appellants, James Killingsworth and wife, Kathy Killingsworth.

J. Douglas Overbey and Ben M. Rose, Knoxville, Tennessee, for the
appellee, Ted Russell Ford, Inc.

Judge: SUSANO

First Paragraph:

This is an action under the Tennessee Consumer Protection Act that
arises out of the sale of an SUV.  James Killingsworth, and his wife,
Kathy Killingsworth ("the purchasers"), sued Ted Russell Ford, Inc.
("the seller"), alleging that the seller failed to advise them about
damage to the previously- unowned vehicle sold to the purchasers.  At
the conclusion of the trial below, the jury returned a verdict in
favor of the purchasers, awarding them $2,500.  The purchasers then
moved for attorney's fees and discretionary costs, which the court
granted, but only in the amount of $500.  The purchasers appeal,
arguing that the fees and expenses awarded by the trial court are
unreasonably low.  By way of separate issues, the seller argues that
the purchasers' second reply brief should be stricken and that the
trial court erred in granting any fees and costs to the purchasers. 
We vacate and remand.

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

SAMMY S. BONDS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Jeff Mueller, Jackson, Tennessee (on appeal); and Roger Stanfield,
Jackson, Tennessee (at guilty plea hearing) for the Appellant, Sammy
S. Bonds

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; James G. Woodall, District Attorney
General; Alfred L. Earls, Assistant District Attorney General; and
Jody S. Pickens, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Sammy S. Bonds, appeals the trial court's denial of his
petition for post-conviction relief.  Petitioner's pro se petition
alleges that he received ineffective assistance of counsel.  We reject
Petitioner's argument and affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. ADRIAN LUMPKIN

Court:TCCA

Attorneys:

Jerry Stokes, Memphis, Tennessee, for the appellant, Adrian Lumpkin.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; William L. Gibbons, District
Attorney General; and Stephanie Johnson, Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: WELLES

First Paragraph:

The Defendant, Adrian Lumpkin, was indicted for aggravated assault. 
He pled guilty and agreed to a sentence of three years with the manner
of service to be determined by the trial court.  After a sentencing
hearing, the trial court granted the Defendant judicial diversion
subject to several conditions.  In this appeal, the Defendant contends
that the trial court erred by placing unreasonable conditions on its
grant of judicial diversion.  We conclude that the trial court had no
legal authority to impose a term of incarceration as a condition of
judicial diversion.  However, with respect to the remaining
conditions, we dismiss the Defendant's appeal because a defendant to
whom judicial diversion was granted has no appeal as of right.

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

BARRY C. MELTON  v. STATE OF TENNESSEE 

Court:TCCA

Attorneys:  

Charles R. Ray (at hearing and on appeal) and Jeffery S. Frensley (on
appeal), Nashville, Tennessee, for the appellant, Barry C. Melton.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and Steven R. Hawkins, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: RILEY

First Paragraph:

The petitioner appeals the denial of post-conviction relief, arguing:
(1) his "best interest" plea was not entered voluntarily and
intelligently; and (2) trial counsel was ineffective in representing
him at sentencing.  We affirm the judgment of the post-conviction
court.

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

RICKY LEE NETHERTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

C. Douglas Fields, Crossville, Tennessee, for the appellant, Ricky Lee
Netherton.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William E. Gibson, District Attorney
General; and Anthony J. Craighead, Assistant District Attorney 
General, for the appellee, State of Tennessee.                        

Judge: MCGEE OGLE

First Paragraph:

The petitioner, Ricky Lee Netherton, was convicted by a jury in the
Criminal Court of Cumberland County of especially aggravated robbery,
a Class A felony.  The trial court sentenced the petitioner as a
violent offender to twenty-four years incarceration in the Tennessee
Department of Correction to be served at one hundred percent (100%). 
Following an unsuccessful appeal of his conviction, the petitioner
filed a petition for post-conviction relief, alleging, among other
grounds, ineffective assistance of counsel.  The petitioner now brings
this appeal challenging the post-conviction court's denial of his
petition.  After reviewing the record and the parties' briefs, we
affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. JODY LANE ORR

Court:TCCA

Attorneys:  

Charles N. Griffith, Waverly, Tennessee, for the Appellant, Jody Lane
Orr.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General; G.
Robert Radford, District Attorney General; and Eleanor Cahill,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                        

Judge: HAYES

First Paragraph:

The Appellant, Jody Lane Orr, was convicted by a Carroll County jury
of aggravated burglary, aggravated rape, and class E felony theft.  He
received an effective twenty-five-year sentence.   On appeal, Orr
raises the following issues for review:  (1) whether the trial court
erred by denying his motion to suppress; (2) whether the State lost
and/or mishandled a blood sample drawn by law enforcement after his
arrest; (3) whether the evidence was sufficient to support the
verdicts; and (4) whether his sentence was proper.  After a review of
the record, the judgments of the trial court are affirmed.

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

STATE OF TENNESSEE v. JODY LANE ORR

Court:TCCA

TIPTON CONCURRING

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

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