Opinion Flash

December 16, 2002
Volume 8 — Number 220

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
07 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


SHERRY LYNN HUDGENS v. ROYAL & SUNALLIANCE INSURANCE COMPANY, et al.

Court:TSC - Workers Comp Panel

Attorneys:

John W. Barringer, Jr., Nashville, Tennessee, for the appellants,
Royal & Sunalliance Insurance and TennPlasco, Inc.

Frank D. Farrar and William Joseph Butler, Lafayette, Tennessee, for
the appellee, Sherry Lynn Hudgens.

Judge: WEATHERFORD

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tennessee Code
Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme
Court of findings of fact and conclusions of law.  The employer
appeals the judgment of the trial court awarding the employee 45%
permanent partial disability to her left arm.  The employee, who was
diagnosed with DeQuervain's Syndrome caused by repetitive use of her
hands while working for the employer, had sustained a 2% anatomical
impairment to the upper extremity  and had permanent restrictions on
the use of her left hand.  The employer contends the trial court erred
by 1)  granting an excessive award; and 2) finding that the injury was
to the arm rather than the hand.  We hold that the evidence does not
preponderate against the trial court's findings.  Accordingly, the
judgment of the trial court is affirmed.

http://www.tba.org/tba_files/TSC_WCP/hudgens.wpd
								
DAVID C. MOSS v. FELDKIRCHER WIRE FABRICATING CO., INC. and THE CONNECTICUT INDEMNITY COMPANY Court:TSC - Workers Comp Panel Attorneys: Gail V. Ashworth, Gideon & Wiseman, Nashville, TN for the Appellant, David C. Moss. Robert R. Davies, Davies & Humphreys, Nashville, TN, for the Appellee, Feldkircher Wire Fabricating Co., Inc., Judge: GRAY First Paragraph: This Worker's Compensation Appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Annotated S 50-6-225(e) for hearing and reporting findings of fact and conclusion of law. In this case, the plaintiff contends that the trial court erred in (1) concluding that he did not sustain work related carpal tunnel syndrome and (2) in assigning him a vocational impairment of ten percent (10%) to the body as a whole. For reasons stated below we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/mossd.wpd
SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_1216.wpd
DECATUR COUNTY, TENNESSEE v. VULCAN MATERIALS COMPANY VULCAN MATERIALS COMPANY, WEST TENNESSEE GRAVEL COMPANY, TINKER SAND & GRAVEL COMPANY, INC., and McCLANAHAN ROCK PRODUCTS v. DECATUR COUNTY, TENNESSEE Court:TCA Attorneys: Robert E. Boston and Mark W. Peters, Nashville, Tennessee, for appellants Vulcan Materials Company, West Tennessee Gravel Company, Tinker Sand & Gravel Company, Inc., and McClanahan Rock Products. James I. Pentecost and Jennifer K. Craig, Jackson, Tennessee, for appellees, Decatur County, Tennessee. Judge: LILLARD First Paragraph: This case involves the constitutionality of a mineral severance tax increase. In 1984, the Tennessee General Assembly enacted a public act of statewide application authorizing counties to collect a mineral severance tax, directing that the proceeds of the tax be deposited in the county road fund. In 1987, the General Assembly passed a private act allowing Decatur County to impose a mineral severance tax, but allocating the revenue from the tax to the county's general fund. Decatur County adopted the tax and the proceeds went to the county's general fund. In 1994, the General Assembly amended the private act to provide for an increase in the mineral severance tax. Decatur County adopted the increased rate, and then filed suit against a company that severed minerals from the earth in that county, to collect the mineral severance tax at the increased rate. The mineral company, and three other mineral companies, resisted payment of the tax, arguing inter alia that the tax was unconstitutional under Article XI, Section 8 of the Tennessee Constitution, the equal protection clause, because the proceeds were allocated to the county's general fund, rather than to the county road fund, as directed in the public act authorizing the tax. After a trial, the trial court held that the mineral companies were estopped from arguing that the tax was unconstitutional, and, in the alternative, that the tax was constitutional because the mineral companies failed to show that there was not a rational basis for the allocation of the funds to the county's general fund rather than to the road fund. Both parties appealed. We affirm in part and reverse in part, finding that the mineral companies were not required to pay the tax in protest, that the mineral companies have standing to sue and are not estopped from contesting the constitutionality of the tax, and finally that the tax is constitutional because there is a rational basis for allocating the revenue to the county's general fund rather than to its road fund. http://www.tba.org/tba_files/TCA/decaturco.wpd
WILLIAM FOX v. BAPTIST MEMORIAL HOSPITAL TIPTON Court:TCA Attorneys: Frank Deslauriers, Covington, Tennessee, for the appellant, William Fox. Paul E. Prather, W. Terry Smith, Jr., and David S. Wilson, III, Memphis, Tennessee, for the appellee, Baptist Memorial Hospital Tipton. Judge: FARMER First Paragraph: The plaintiff in this case alleges he was wrongfully terminated by Baptist Memorial Hospital, Tipton, in violation of Tenn. Code. Ann. S 4-21-101 et seq, which prohibits employment discrimination based on age. The trial court awarded summary judgment to Baptist Memorial Hospital, finding its stated reasons for terminating the plaintiff were legitimate and not pretextual. We affirm. http://www.tba.org/tba_files/TCA/fox.wpd
GENERAL CONSTRUCTION CONTRACTORS ASSOCIATION, INC., v. GREATER ST. THOMAS BAPTIST CHURCH Court:TCA Attorneys: James H. Kee, Memphis, Tennessee, for the appellant, Greater St. Thomas Baptist Church. Regina C. Morrison and James W. Hodges, Jr., for the appellee, General Construction Contractors Association, Inc. Judge: FARMER First Paragraph: This appeal arises from a dispute over the construction of a church. Both parties alleged that the other breached the construction contract. The trial court found the Church to be in breach, awarded damages to the Contractor, and this appeal ensued. We affirm in part and reverse in part. http://www.tba.org/tba_files/TCA/general.wpd
DANIEL P. GOODWIN, et al. v. JOHN E. DUNLAP Court:TCA Attorneys: Daniel P. Goodwin, Pro Se James L. Kirby, Michelle M. Drake, Memphis, For Appellee, John E. Dunlap Judge: CRAWFORD First Paragraph: This is a legal malpractice action originally filed by individual plaintiff and a corporation. The individual plaintiff was acting pro se for himself and also for the corporation. The trial court granted summary judgment to defendant based upon his affidavit that he complied with the standard of care representing the corporate plaintiff, that he had no attorney/client relationship with the individual plaintiff. No countervailing affidavit concerning the standard of care was filed by the plaintiffs and the dismissal of the corporation's case was also premised on the rule that a corporation cannot act pro se by a nonlawyer agent. Individual plaintiff's affidavit does not specifically refute defendant's affidavit concerning no attorney-client relationship between the individual plaintiff and defendant. Plaintiffs appeal. We affirm. http://www.tba.org/tba_files/TCA/goodwind.wpd
STATE OF TENNESSEE v. GARY WILLIAM BALES Court:TCCA Attorneys: Joseph E. Costner and Amy E. Burroughs, Maryville, Tennessee, for the appellant, Gary William Bales. Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan, Assistant Attorney General; and Kirk E. Andrews and Edward P. Bailey, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The defendant, indicted for second degree murder, was convicted by a jury of voluntary manslaughter and sentenced to six years in the Department of Correction. See Tenn. Code Ann. S 39-13-211. In this appeal as of right, the defendant challenges the length of his sentence, arguing that the trial court improperly applied two enhancement factors and failed to properly weigh one mitigating factor. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/balesgw.wpd
STATE OF TENNESSEE v. HARRY JAMIESON Court:TCCA Attorneys: A C Wharton, Jr., Shelby County Public Defender; W. Mark Ward, Assistant Shelby County Public Defender (on appeal); and Robert C. Felkner, Assistant Shelby County Public Defender (at trial), for the appellant, Harry Jamieson. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy L. Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant was convicted by a Shelby County Criminal Court jury of one count of aggravated robbery, a Class B felony, and two counts of aggravated assault, Class C felonies, based on his participation in an armed robbery of a Memphis restaurant. He was sentenced by the trial court as a standard, Range I offender to concurrent terms of nine years for the aggravated robbery conviction and four years for each aggravated assault conviction, for an effective sentence of nine years in the Department of Correction. He was fined $500 for each conviction. On appeal, the defendant argues that the trial court erred by failing to instruct the jury on the lesser-included offenses of facilitation of aggravated robbery and aggravated assault and by improperly applying enhancement factors to enhance his sentences from the minimum in his range. We conclude that the trial court's failure to instruct the jury on the lesser-included offenses of facilitation constitutes reversible error under the circumstances of this case. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial. http://www.tba.org/tba_files/TCCA/jamieson.wpd
STATE OF TENNESSEE v. BRENDA MCKENZIE Court:TCCA Attorneys: Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Brenda McKenzie. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Jerry Woodall, District Attorney General; and Kevin Youngberg and Shaun A. Brown, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: MCGEE OGLE First Paragraph: The appellant, Brenda McKenzie, pled guilty in the Chester County Circuit Court to one count of facilitating the manufacture of methamphetamine and one count of possession of anhydrous ammonia, both Class E felonies. The plea agreement provided for concurrent sentences of two years to be served on community corrections. The appellant moved the trial court to waive or suspend the mandatory fines on both offenses. The court denied the motion and the appellant now appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mckenzieb.wpd
STATE OF TENNESSEE v. ADRIANNE ELIZABETH NOLES Court:TCCA Attorneys: Tom Crider, Trenton, Tennessee (at trial), and Joyce Diane Blount, Trenton, Tennessee (on appeal), for the Appellant, Adrianne Elizabeth Noles. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and Garry G. Brown, District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Pursuant to Tennessee Code Annotated section 39-13-213(a)(1) (1997), the defendant, Adrianne Elizabeth Noles, was charged with vehicular homicide by recklessness in the Haywood County Circuit Court. She submitted a guilty plea to the charge, a Class C felony, and agreed to have the trial court determine the length and manner of service of her sentence. After a sentencing hearing, the trial court imposed a three-year sentence to be served in the Department of Correction. Aggrieved of the trial court's rejection of any sentencing alternative to incarceration, she appeals. We affirm. http://www.tba.org/tba_files/TCCA/noles.wpd
STATE OF TENNESSEE v. DAVID EARL PALMER Court:TCCA Attorneys: Victoria DiBonaventura, Paris, Tennessee (at trial) and Guy T. Wilkinson, District Public Defender; and Billy R. Roe, Jr., Assistant Public Defender, Camden, Tennessee (on appeal) for the appellant, David Earl Palmer. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Defendant, David Earl Palmer, was convicted by a jury of aggravated burglary and aggravated rape. The trial court sentenced Defendant to five years for the aggravated burglary conviction and twenty- five years for the aggravated rape conviction. In his appeal, Defendant contends that the evidence presented at trial was insufficient to sustain either conviction. After a thorough review of the record, we affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/palmerde.wpd
STATE OF TENNESSEE v. TRACY R. PIPES Court:TCCA Attorneys: Richard W. DeBerry, Assistant District Public Defender, Camden, Tennessee, for the Appellant, Tracy R. Pipes. Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General; G. Robert Radford, District Attorney General; and John Overton, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Tracy R. Pipes, appeals the Hardin County Circuit Court's revocation of her drug- offense probation. The court ordered her to serve the effective eight-year sentence in the Department of Correction. Because the record supports the lower court's actions, we affirm. http://www.tba.org/tba_files/TCCA/pipest.wpd
STATE OF TENNESSEE v. STEVEN E. SMITH Court:TCCA Attorneys: Merrilyn Feirman, Nashville, Tennessee (on appeal); David Neal Brady, District Public Defender; and Cynthia S. Lyons, Assistant Public Defender (at trial and on appeal), for the appellant, Steven E. Smith. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William E. Gibson, District Attorney General; and Terry D. Dycus, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: In December 1997, the defendant was convicted of the sale of cocaine over .5 grams, a Class B felony, and sentenced to eight years, with all but sixty days suspended, and the balance to be served on probation. In October 1998, his probation was revoked because he was convicted that year of possession of marijuana, criminal impersonation, and contributing to the delinquency of a minor. He was incarcerated for ninety days and again placed on probation, this time in community corrections. In December 1998, another probation violation warrant was issued, this time alleging that the defendant had absconded. In September 1999, his probation was revoked and he was ordered to serve the balance of his sentence in the Department of Correction. Apparently, he was again placed on probation, with the case transferred to Michigan. In April 2001, another probation warrant was issued, charging the defendant with failing two drug screens and attempting to adulterate a drug screen. Following a hearing, the court revoked the defendant's probation and he timely appealed. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/smithstevene.wpd

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