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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