Opinion Flash

February 28, 2003
Volume 9 — Number 036

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
03 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


MICHELLE DEVERS v. AQUA GLASS CORPORATION, et al.

Court:TSC - Workers Comp Panel

Attorneys:   

Steven Maroney, J. Arthur Crews and Jay Dustin King, Jackson,
Tennessee, for the appellant, Aqua Glass Corporation

Edward L. Martindale, Jr., Jackson, Tennessee, for the appellee,
Michelle Devers

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 trial court erred in finding that
the plaintiff had sustained a compensable injury under the Workers'
Compensation Act and, as a result thereof, suffered an 18 percent
permanent partial disability to each arm."  As discussed below, the
panel has concluded the judgment should be affirmed.

http://www.tba.org/tba_files/TSC_WCP/deversm.wpd
								
RAY DUNNAGAN v. FOAMEX Court:TSC - Workers Comp Panel Attorneys: Joseph M. Crout, Memphis, Tennessee, for the appellant, Foamex Ricky L. Boren, Jackson, Tennessee, for the appellee, Ray Dunnagan 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 action is time barred, (2) the evidence preponderates against the trial court's finding that the employee's restrictive lung disease was caused by exposure to silica at work and (3) the award of permanent partial disability based on 65 percent to the body as a whole is excessive. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/dunnaganr.wpd
KEVIN C. HANEY, et al. v. BRAD COPELAND Court:TCA Attorneys: Michael E. Richardson, Chattanooga, Tennessee, for the appellants, Kevin C. Haney and Marilyn Sue Melhorn. Phillip R. Crye, Jr., Clinton, Tennessee, for the appellee, Brad Copeland. Judge: SUSANO First Paragraph: Kevin C. Haney and his wife, Marilyn Sue Melhorn ("the buyers"), purchased a retail business from Brad Copeland ("the seller") for $200,000. When their business failed, the buyers sued the seller for rescission and, in the alternative, for compensatory and punitive damages, alleging fraud and breach of contract. Following a bench trial, the buyers were awarded incidental and punitive damages totaling $99,053. The buyers appeal, arguing that they were entitled to additional damages equal to the amount of the purchase price. We affirm. http://www.tba.org/tba_files/TCA/haneykc.wpd
E. PAUL RECTOR v. ELIZABETH HALLIBURTON, et al. CORRECTED OPINION Court:TCA Attorneys: Dan R. Alexander, Nashville, Tennessee, for the appellant, E. Paul Rector. C. Dewey Branstetter, Jr., Nashville, Tennessee, for the appellee, Elizabeth Halliburton. Eugene W. Ward and Laura Israel Smith, Nashville, Tennessee, for the appellee, The Electric Power Board of Nashville and Davidson County, Tennessee. Judge: CANTRELL First Paragraph: The residence owned by Mrs. Halliburton had no access owing to highway construction. She acquired a driveway easement from the adjoining landowner, who later sold the property to Mr. Rector. An electric service line extended across the front of Mr. Rector's property which was relocated. Mr. Rector's efforts to purchase the Halliburton property were unavailing, and he began a policy of harassment presumably to acquire the property. He claimed, inter alia, that the easement terminated because it was improperly maintained, and that NES moved the service line without his permission and hence was guilty of trespass. Mrs. Halliburton filed a counterclaim for damages, charging Mr. Rector with trespass and outrageous conduct. Mr. Rector's suit was dismissed, and the counterclaim of Mrs. Halliburton was sustained. The dismissal of Mr. Rector's suit is affirmed; the award of attorney fees to Mrs. Halliburton is reversed; the case is remanded for a determination of the damages sustained by Mrs. Halliburton, including punitive damages. http://www.tba.org/tba_files/TCA/rectorecorrex.wpd
STATE OF TENNESSEE v. TOMMY WILLIAM DAVIS Court:TCCA Attorneys: Edward C. Miller, District Public Defender; and Amber D. Haas, Assistant District Public Defender, for the Appellant, Tommy William Davis. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Tommy William Davis, was convicted of Class D theft of property over $1,000 and was sentenced to a term of six years incarceration, as a Range II offender. On appeal, he argues that the trial court should have granted a judgment of acquittal at the close of the state's proof, and he challenges the length of his sentence as premised on an invalid enhancement factor. Our review convinces us that the evidence was sufficient to support his conviction and that, although improper enhancement factors were applied, a sentence of six years is appropriate. http://www.tba.org/tba_files/TCCA/davistommy_opn.wpd
STATE OF TENNESSEE v. TOMMY WILLIAM DAVIS Court:TCCA SMITH CONCURRING http://www.tba.org/tba_files/TCCA/davistommy_con.wpd
STATE OF TENNESSEE v. CHIVOUS SIRREL ROBINSON Court:TCCA Attorneys: Mike Whalen, Knoxville, Tennessee, for the appellant, Chivous Sirrell Robinson. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Scott, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The defendant, Chivous Sirrel Robinson, was convicted of one count of solicitation to commit first degree murder and one count of second degree murder. He was sentenced to twenty-three years incarceration for the second degree murder conviction and nine years incarceration for the solicitation conviction. The sentences were ordered to run consecutively. In this appeal the defendant argues that (1) the trial court erred in declining to admit at the defendant's request the redacted statement of Toni Hill, the alleged co-perpetrator of the murder, (2) the trial court erred in denying the defense's motion to sever the solicitation count from the substantiative murder count for purposes of trial, (3) the trial court erred in admitting certain photographs of the victim's body, and (4) the trial court erred in ordering consecutive sentencing. After a thorough review of the record and the applicable law we find no reversible error. The judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/robinsonchivous.wpd
STATE OF TENNESSEE v. DONALD P. WILCOX Court:TCCA Attorneys: John D. Parker, Jr., Kingsport, Tennessee, for the appellant, Donald P. Wilcox. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and B. Todd Martin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TITPON First Paragraph: The defendant, Donald P. Wilcox, appeals the Sullivan County Criminal Court's denial of his request for probation for his guilty pleas to violating a habitual traffic offender order, a Class E felony; violating the registration law, a Class C misdemeanor; and possession of alprazolam pills, marijuana, and drug paraphernalia, Class A misdemeanors. We affirm the decision of the trial court. http://www.tba.org/tba_files/TCCA/wilcoxdonaldp.wpd

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