Opinion Flash

December 10, 2002
Volume 8 — Number 216

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
03 New Opinion(s) from the Tennessee Court of Appeals
12 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


HAROLD J. GARTH v. SISKIN STEEL & SUPPLY COMPANY, et al.

Court:TSC - Workers Comp Panel

Attorneys:

Kent T. Jones, Chattanooga, Tennessee, attorney for appellant,
Randstand Staffing Services.

David D. Moore, Chattanooga, Tennessee, attorney for appellant, Siskin
Steel & Supply Company.

Richard H. Winningham, Chattanooga, Tennessee, attorney for appellee,
Harold J. Garth.

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 the plaintiff suffered 75 percent disability to his right
hand as a result of an on-the-job injury, which occurred on March 10,
2000.  The defendant says the trial judge erred in not finding the
plaintiff's recovery for the injury should be limited to the thumb or
the first phalange of the thumb.  The plaintiff says the trial court
properly found the plaintiff suffered an impairment to his right hand
but says the trial court should have granted a higher award.  We
affirm the judgment of the trial court.

http://www.tba.org/tba_files/TSC_WCP/garthh.wpd
								
DEXTER LEBRON JOSHEN v. MCKEE FOODS CORPORATION Court:TSC - Workers Comp Panel Attorneys: Charles D. Lawson and J. Barlett Quinn, Chattanooga, Tennessee, attorneys for appellant, McKee Foods Corporation. Gary W. Starnes, Chattanooga, Tennessee, attorney for appellee, Dexter Lebron Joshen. 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 the plaintiff had sustained a compensable injury to his shoulder and fixed an award of 30 percent vocational disability to the body as a whole. The defendant says the trial judge fixed this award on the basis of a 6 percent medical impairment to the body rather than on the basis of 4 percent medical impairment, which the defendant asserts is the correct medical impairment rating. The plaintiff responds to the defendant's claim by saying he is satisfied by the ruling of the trial court on the award to the plaintiff. However, the plaintiff says if we reverse the trial court's judgment he wishes us to address the four assignments of error raised by him. These assignments concern the treatment of the plaintiff by a Dr. Alan Odom, who did surgery on the plaintiff's shoulder. The trial court found the treatment by Dr. Odom was not shown to be related to the compensable injury the plaintiff suffered while working for the defendant. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/joshend.wpd
CARRIE MILDRED MAYER DUBE v. MICHAEL NORMAN DUBE Court:TCA Attorneys: Thomas C. Jessee, Johnson City, Tennessee, for the Appellant Michael Norman Dube. Olen G. Haynes, Jr., and Robert D. Arnold, Johnson City, Tennessee, for the Appellee Carrie Mildred Mayer Dube. Judge: SWINEY First Paragraph: Carrie Mildred Mayer Dube ("Wife") sued Michael Norman Dube ("Husband") for a divorce. Wife is primarily a stay-at-home mother and Husband is an emergency room physician. The Trial Court divided the marital property with 65% of the property going to Wife. The Trial Court awarded Wife permanent alimony of $3,200 per month after finding Wife could not be sufficiently rehabilitated. Child support was set based on Husband's income for 2000, during which time he claims to have worked approximately 90 hours per week. Husband appeals the division of marital property, award of permanent alimony, and amount of child support which was based on his 90 hour work week. We affirm. http://www.tba.org/tba_files/TCA/dubec.wpd
KIMBERLY G. LEWIS (HARMON) v. TIMOTHY E. LEWIS Court:TCA Attorneys: David W. Blankenship, Kingsport, for the Appellant, Timothy E. Lewis Jeffrey P. Miles, Johnson City, for the Appellee, Kimberly G. Harmon Judge: GOODARD First Paragraph: In this divorce case, Timothy E. Lewis ("Husband") appeals the Trial Court's decision, arguing that it erred in classifying certain assets as marital rather than his separate property. Husband asserts that "the failure of the Trial Court to properly characterize separate property versus marital property [resulted in] an inequitable division of the parties' assets." We find that several of the assets classified by the Trial Court as marital property should have been classified as Husband's separate property. We also find that a portion of the Husband's credit card debt, which was incurred during the marriage, should be assigned to Kimberly G. Harmon ("Wife"). We affirm the Trial Court's judgment in all other respects. http://www.tba.org/tba_files/TCA/lewiskim.wpd
JAMES L. THOMPSON v. KNOXVILLE TEACHERS FEDERAL CREDIT UNION, et al. Court:TCA Attorneys: C. Mark Troutman, LaFollette, Tennessee, for the Appellant James L. Thompson. Sam H. Poteet, Jr., Fred C. Statum, III, and Jeffrey S. Price, Nashville, Tennessee, for the Appellees Knoxville Teachers Federal Credit Union and Cumis Insurance Society, Inc. Judge: SWINEY First Paragraph: James L. Thompson ("Plaintiff") was the principal stockholder, director, and officer of People Personnel Industrial Corporation. Plaintiff began kiting checks when the corporation started having financial difficulties. Plaintiff's actions resulted in a substantial monetary loss to Knoxville Teachers Federal Credit Union ("Credit Union"). After both the corporation and Plaintiff filed for bankruptcy, the parties entered into an agreement whereby the Credit Union agreed not to pursue or assist any other party in pursuing a cause of action against Plaintiff based on the check kiting. Thereafter, Plaintiff was prosecuted in federal court. The Credit Union supplied information to the United States Government pertaining to the amount of its financial losses. After Plaintiff pled guilty in federal court to defrauding the Credit Union, he was ordered to serve a small amount of time in prison and pay restitution of $74,417.29 to the Credit Union. Plaintiff brought this lawsuit claiming the Credit Union pursued the order of restitution in the criminal proceeding and thereby violated the terms of the settlement agreement. The Trial Court granted summary judgment to Defendants, and Plaintiff appeals. We affirm. http://www.tba.org/tba_files/TCA/thompsonjl.wpd
MICHAEL CAPERS v. STATE OF TENNESSEE Court:TCCA Attorneys: Michael Capers, Coleman, Florida, Pro Se. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Michael Capers, pled guilty to procuring prostitution in 1986. In 2001 he filed a petition for writ of error coram nobis alleging that his 1986 guilty plea was constitutionally invalid. The trial court denied relief and this appeal followed. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/capersm.wpd
STATE OF TENNESSEE v. DARREN A. DEWALT Court:TCCA Attorneys: AC Wharton, Jr., Shelby County Public Defender; Garland Erguden, Assistant Public Defender; Phyllis Aluko, Assistant Public Defender; and Marty McAfee, Assistant Public Defender, Memphis, Tennessee, for the appellant, Darren A. Dewalt. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William L. Gibbons, District Attorney General; Karen Cook, Assistant District Attorney General; Scott Gordon, Assistant District Attorney General; and Kevin Rardin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Darren A. Dewalt, appeals as of right from the trial court's order revoking his probation and reinstating his original sentence to be served in the Shelby County Correction Center. Defendant contends that the trial court erred by revoking his probation based upon an unidentified and unsubstantiated laboratory report indicating that Defendant had used drugs in violation of his probation. Based upon a review of the entire record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/dewalt.wpd
JAMES E. JACKSON v. STATE OF TENNESSEE Court:TCCA Attorneys: Dwight E. Scott, Nashville, Tennessee, for the appellant, James E. Jackson. Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Jon P. Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, James E. Jackson, appeals the trial court's denial of his petitions for writ of error coram nobis and post-conviction relief from his conviction for first degree murder. In regard to the petition for writ of error coram nobis, the petitioner claims that newly discovered evidence entitles him to a new trial. In regard to the petition for post-conviction relief, he contends that he received the ineffective assistance of counsel because his trial attorney failed to call certain witnesses to testify and did not investigate and present a diminished capacity defense. We affirm the trial court's denial of the petitions. http://www.tba.org/tba_files/TCCA/jacksonjamese.wpd
STATE OF TENNESSEE v. GEORGE J. JOHNSON Court:TCCA Attorneys: John H. Henderson, District Public Defender; Douglas P. Nanney, Assistant Public Defender, Franklin, Tennessee, for the Appellant, George J. Johnson. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helena Walton Yarbrough, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Mary K. Harvey, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, George J. Johnson, pled guilty to one count of felony reckless endangerment, one count of vandalism over $1,000, and one count of vandalism over $500. Following a sentencing hearing, the trial court imposed an effective two-year community corrections sentence. On appeal, Johnson contends that the trial court erred in failing to grant judicial diversion. After review, we find that the trial court failed to consider all the relevant factors in denying diversion. Accordingly, we reverse the judgment of the trial court and remand the case for deferment of further proceedings, as provided by Tennessee Code Annotated S 40-35-313 (2001). http://www.tba.org/tba_files/TCCA/johnsongeorgej.wpd
JAVONNI JONES v. STATE OF TENNESSEE Court:TCCA Attorneys: Roger Eric Nell, District Public Defender; and Fred W. Love, Assistant District Public Defender, for the appellant, Javonni Jones. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Lance A. Baker, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The petitioner, Javonni Jones, appeals the dismissal of his petition for post-conviction relief as being barred by the statute of limitations. We affirm the judgment of the post-conviction court. http://www.tba.org/tba_files/TCCA/jonesjavonni.wpd
STATE OF TENNESSEE v. CLARK DOUGLAS LIVELY Court:TCCA Attorneys: Michael J. Flanagan, Nashville, Tennessee, for the appellant, Clark Douglas Lively. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant pled guilty to attempted second degree murder, and the trial court imposed a ten-year sentence. He appeals his sentence, arguing he should have received the minimum sentence of eight years with alternative sentencing. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/livelyclark.wpd
STATE OF TENNESSEE v. SHIRLEY MASON Court:TCCA Attorneys: Donna Leigh Hargrove, District Public Defender; Andrew Jackson Dearing, III, Assistant District Public Defender (at hearing and on appeal); and Merrilyn Feirman, Nashville, Tennessee (on appeal), for the appellant, Shirley Mason. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; W. Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: The defendant pled guilty to delivery of cocaine under .5 grams. The trial court imposed a Range II eight-year sentence in the Department of Correction. The defendant appeals her sentence, arguing it was excessive and she should have received alternative sentencing. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/masonshirley.wpd
STATE OF TENNESSEE v. TIMOTHY MAURICE REYNOLDS Court:TCCA Attorneys: Gregory D. Smith, Clarksville, Tennessee (on appeal); Claudia S. Jack, District Public Defender; and Robert H. Stovall, Jr., Assistant District Public Defender, for the appellant, Timothy Maurice Reynolds. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Mike Bottoms, District Attorney General; and Richard H. Dunavant and Patrick S. Butler, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: A Giles County jury convicted the defendant, Timothy Maurice Reynolds, of aggravated robbery, and the trial court sentenced the defendant to twenty years as a Range II multiple offender. On direct appeal, the defendant raises the following issues: (1) whether the evidence was sufficient to support the conviction for aggravated robbery; (2) whether the trial court erred in prohibiting defense counsel, during cross-examination and closing arguments, from referring to the United States Attorney General's comments on eyewitness identification; and (3) whether the trial court erred in finding the defendant to be a Range II multiple offender. We affirm the conviction; however, because essential exhibits relating to sentencing are missing from the record without fault of the parties, we remand for resentencing. http://www.tba.org/tba_files/TCCA/reynoldstimothy.wpd
MICHAEL A. RHODES v. STATE OF TENNESSEE Court:TCCA Attorneys: Christopher K. Thompson, Murfreesboro, Tennessee, for the Appellant, Michael A. Rhodes. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The petition of Michael A. Rhodes for post-conviction relief was denied by the Rutherford County Circuit Court following an evidentiary hearing. Because the record supports the post-conviction court's determination that the petitioner had failed to establish ineffective assistance of counsel, we affirm. http://www.tba.org/tba_files/TCCA/rhodesma1.wpd
OSCAR A. SERRANO v. STATE OF TENNESSEE Court:TCCA Attorneys: Jerry Gonzalez, Nashville, Tennessee, for the appellant, Oscar A. Serrano. Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The petitioner, Oscar A. Serrano, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief from his conviction for attempted second degree murder and sentence of nine years. He contends (1) that he received the ineffective assistance of counsel because his trial attorney failed to have an interpreter explain the concept of waiving his right to appeal before he entered into a sentencing agreement with the state; (2) that as a result of his receiving the ineffective assistance of counsel, he did not knowingly and voluntarily waive his right to appeal his conviction; and (3) that the trial court improperly refused to consider various other grounds for his receiving the ineffective assistance of counsel at trial. We affirm the trial court's denial of the petition. http://www.tba.org/tba_files/TCCA/serranooscara.wpd
DONALD WALLACE v. STATE OF TENNESSEE Court:TCCA Attorneys: Richard McGee, Nashville, Tennessee; and James O. Martin, III, Nashville, Tennessee, for the Appellant, Donald Wallace. Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; Dan Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Pursuant to the grant of a delayed appeal, the defendant, Donald Wallace, seeks a new trial in connection with his homicide conviction arising from the 1996 shooting death of Melinda Sue Perrin. Previously, the defendant obtained relief on direct appeal when his first-degree murder conviction was reduced to second-degree murder. State v. Donald Wallace, No. 01C01-9711-CC- 00526 (Tenn. Crim. App., Nashville, Sept. 30, 1998). After review, we conclude that the lower court lacked statutory authority to grant a delayed appeal, which, in turn, deprives this court of jurisdiction to hear the appeal. Accordingly, we dismiss the defendant's appeal. http://www.tba.org/tba_files/TCCA/wallaced1.wpd
ROBERT LEWIS WILKS v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert Lewis Wilks, pro se, Mountain City, TN. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H. Findley, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Robert Lewis Wilks, appeals from the judgment of the Robertson County Circuit Court summarily dismissing his petition for post-conviction relief. In 1989, Wilks pled guilty to multiple felony and misdemeanor offenses, resulting in an effective sentence of twenty-seven years, eleven months, and twenty-nine days. The post-conviction court dismissed Wilks' petition, finding it barred by the statute of limitations. Finding no error, the judgment of the post-conviction court is affirmed. http://www.tba.org/tba_files/TCCA/wilksrl.wpd

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