Opinion Flash

March 12, 2003
Volume 9 — Number 044

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):
01 New Opinion(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
01 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


BELLSOUTH ADVERTISING AND PUBLISHING COMPANY v. RUTH JOHNSON,
COMMISSIONER OF REVENUE, STATE OF TENNESSEE

Court:TSC

Attorneys:       

James W. McBride, Washington, D.C., and Brigid M. Carpenter,
Nashville, Tennessee, for the appellant, BellSouth Advertising and
Publishing Company.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Wyla M. Posey, Assistant Attorney General, for
the appellee, Ruth Johnson, Commissioner of Revenue, State of
Tennessee.

Judge: DROWOTA

First Paragraph:

In this use tax case, we address the issue of whether or not the
plaintiff should receive a credit under Tennessee law for sales tax it
paid to the State of Alabama on the purchase of photocompositions used
in printing telephone directories that were later distributed in
Tennessee.  Under Tennessee Code Annotated section 67-6-203(a) (1998),
a use tax

is levied at the rate of six percent (6%) of the cost price of each
item or article of tangible personal property when the same is not
sold but is used, consumed, distributed, or stored for use or
consumption in this state; provided, that there shall be no
duplication of the tax.

(Emphasis added).  To avoid duplication of the tax, Tennessee Code
Annotated section 67-6-507(a) (1998) provides a credit for like taxes
paid to other states on tangible personal property.  The trial court
and the Court of Appeals both found that the plaintiff was not owed a
credit for sales tax paid to Alabama for the photocompositions, since
there was no "like tax" paid on the telephone directories.  We
conclude that the plaintiff is entitled to a credit because the cost
of the photocompositions on which the Alabama sales tax was paid is
included in the cost of the directories on which Tennessee is seeking
to impose a use tax.  Accordingly, we reverse the judgments of the
trial court and the Court of Appeals and grant summary judgment to the
plaintiff.

http://www.tba.org/tba_files/TSC/bellsouthvjohnson.wpd

JANINE MERRYMAN v. AQUA GLASS CORPORATION

Court:TSC - Workers Comp Panel

Attorneys: 

Steven S. Maroney, Amber A. Edwards, Jackson, Tennessee, for
appellant, Aqua Glass Corporation

Scott G. Kirk, Jackson, Tennessee, for the appellee, Janine Merryman

Judge: MALOAN

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. S50-6-285(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law.   In this
appeal, the defendant employer Aqua Glass Corporation contends the
evidence preponderates against the trial court's finding of a
compensable back injury and an award of twenty-six percent (26%)
permanent partial disability to the body as a whole.  For the reasons
stated in this opinion, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. CHARLES EUGENE JONES

Court:TCCA

Attorneys:

Richard A. Spivey, Kinsport, Tennessee, for appellant, Charles Eugene
Jones.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; Greeley Wells, District Attorney General;
and Lewis Combs, Assistant District Attorney General; for appellee,
State of Tennessee.                        

Judge: SMITH

First Paragraph:

The defendant, Charles E. Jones, pled guilty to possession of
marijuana with intent to sell or deliver, possession of drug
paraphernalia, and unlawful possession of a weapon.  For these
convictions, the trial court classified the defendant as a Range I
standard offender and ordered him to serve an aggregate one year
sentence, consisting of concurrent sentences of one year for his
possession of marijuana with intent to sell or deliver conviction,
eleven months and twenty-nine days for his possession of drug
paraphernalia conviction, and thirty days for his unlawful possession
of a weapon conviction. The state agreed to suspend the two latter
sentences, and the trial court sentenced the defendant to serve four
years of probation and one year of incarceration, which was to be
suspended after the defendant served ninety days in the county jail. 
The defendant now appeals his sentence, alleging (1) that the trial
court erroneously modified his plea agreement with the state after it
had been submitted to the trial court for approval, (2) that the trial
court improperly denied his request to serve the entirety of his
sentence on probation, and (3) that the trial court improperly weighed
and applied various enhancement and mitigating factors.   After
reviewing the record, we find that none of the defendant's allegations
merit relief and therefore affirm the defendant's sentence.

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

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