Opinion Flash

April 7, 2003
Volume 9 — Number 061

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
03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06 New Opinion(s) from the Tennessee Court of Appeals
06 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


LUCILLE COTHAM, et al. v. PERRY COUNTY, etc.

Court:TSC - Workers Comp Panel

Attorneys: 

Gene Hallworth, Columbia, Tennessee, for the appellant, Pamela J.
Honey

Robert E. Kolarich and L. R. DeMarco, Nashville, Tennessee, for the
appellant, Lucille Cotham

Bradford D. Box and Geoffrey A. Lindley, Jackson, Tennessee, for the
appellees, Perry County and Perry County Sheriff's Department                         

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 appellants insist the trial court erred in summarily
dismissing the claim.  As discussed below, the panel has concluded
there is no genuine issue as to a material fact and that the employer
is entitled to judgment of dismissal as a matter of law.

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

BUFORD PRINCE v. CITY OF TULLAHOMA, et al.

Court:TSC - Workers Comp Panel

Attorneys:  

Rick L. Moore, Tullahoma, Tennessee, for the appellant, Buford Prince

Dale A. Tipps, Nashville, Tennessee, for the appellees, City of
Tullahoma and AIU Insurance Company                        

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 employee insists (1) the trial court erred in limiting his
award of disability benefits to the maximum of 400 weeks times his
weekly compensation rate and (2) the trial court erred in applying his
award of temporary total disability benefits against the maximum.  As
discussed below, the panel finds no reversible error.

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

WHIRLPOOL CORPORATION v. JAMES NEVILLE

Court:TSC - Workers Comp Panel

Attorneys:   

David T. Hooper, of Brentwood, Tennessee, for the Appellant, Whirlpool
Corporation.

Jerry D. Mayo, of Nashville, Tennessee, for the Appellee, James
Neville.                       

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
plaintiff (employer)  appeals the trial court's decision that the disc
herniation in the defendant's (employee's) neck, resulting in cervical
radiculopathy, was a gradually occurring injury that arose out of and
in the course of his employment with the plaintiff.  The plaintiff
also appeals on the grounds that it contends that proper notice was
not given and that the claim should have been barred by the statute of
limitations.  We affirm the decision of the trial court.

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

WILLIAM A. DALTON, et al. v. GERALD W. DALE, et al.

Court:TCA

Attorneys:  

W. Carl Spining, Nashville, Tennessee, for the appellant, Gerald W.
Dale.

William H. Farmer, Nashville, Tennessee, for the appellees, William a.
and M. Charleston Dalton.                        

Judge: CAIN

First Paragraph:

Defendant appeals adverse summary judgment as to diminution in value
of a 1995 Jaguar XJ6 automobile based upon alleged undisputed expert
testimony.  Judgment is reversed, and the case is remanded.

http://www.tba.org/tba_files/TCA/daltonwilliam.wpd

ALVIN FREEMAN v. TENNESSEE DEPARTMENT OF PROBATION AND PAROLE

Court:TCA

Attorneys: 

Alvin Freeman, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Shay B.
Winebarger, Assistant Attorney General, for the appellee, Tennessee
Board of Probation and Parole.

Judge: KOCH

First Paragraph:

This appeal involves a dispute between a prisoner and the Tennessee
Board of Probation and Parole.  After the Board declined to parole
him, the prisoner filed a pro se petition for common-law writ of
certiorari in the Chancery Court for Davidson County seeking judicial
review of the Board's action.  The trial court, acting pursuant to
Tenn. Code Ann. S 41-21-807 (Supp. 2002), ordered the prisoner to make
a partial payment of the filing fee within thirty days and dismissed
the petition for failure to prosecute when the prisoner failed to do
so.  The prisoner has appealed.  We have determined that the trial
court properly dismissed the prisoner's petition.

http://www.tba.org/tba_files/TCA/freemana.wpd

JOSE and GIOCONDA MATUS, et al. v. METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY, TENNESSEE d/b/a METROPOLITAN NASHVILLE
GENERAL HOSPITAL

Court:TCA

Attorneys:   

Lora Barkenbus, C. Dawn Deaner, Nashville, For Appellant, Metropolitan
Government

G. Thomas Nebel, Nashville, For Appellees, Jose and Gioconda Matus, et
al                       

Judge: CRAWFORD

First Paragraph:

This is a medical malpractice case against a municipal hospital
pursuant to the Governmental Tort Liability Act.  Originally, the
defendants included a private physician and two nurse employees of the
hospital.  Plaintiffs alleged, among other things, that the two nurse
employees were partially at fault, and their negligence attributed to
the hospital was a cause of the damages alleged.  Prior to the trial
date, a settlement was reached by the plaintiffs with the private
physician and the two nurse employees.  Over defendants' objection,
plaintiffs were allowed by motion on the eve of trial to amend their
complaint to allege that previously un-named nurse employees of the
hospital were negligent, which contributed to the damages alleged for
which the hospital was responsible.  Defendants also filed a motion
for summary judgment asserting that, because the two nurse employees
were no longer liable and thus their liability could not be attributed
to the hospital, the hospital was entitled to summary judgment because
there was no allegation of negligence on the part of other employees
of the hospital.  The trial court granted plaintiffs' motion to amend
the complaint and denied the hospital's motion for summary judgment. 
At the conclusion of a nonjury trial, the hospital was assigned a
percentage of fault for the damages incurred, and judgment was entered
accordingly.  Hospital appeals.  We affirm.

http://www.tba.org/tba_files/TCA/matusjose.wpd

JEAN RICK v. MIDDLE TENNESSEE MEDICAL CENTER, INC., et al.

Court:TCA

Attorneys: 

William R. O'Bryan and Ryan A. Kurtz, Nashville, Tennessee, for the
appellant, Middle Tennessee Medical Center, Inc.

Ewing Sellers, Murfreesboro, Tennessee, for the appellee, Jean Rick.

Judge: KOCH

First Paragraph:

This appeal involves the right of one child of a testator to impose a
lien on real property devised to a sibling and subsequently conveyed
by that sibling to a third party.  In 1996, the probate court having
jurisdiction over the estate determined that the property, which had
already been conveyed to a third party, could be subjected to a lien
if the devisee defaulted on a personal obligation to his sister
mandated by their father's will.  The devisee thereafter defaulted on
his obligation and died.  In 1998, his sister filed an action in the
Chancery Court for Rutherford County seeking to recover her brother's
$52,500 debt to her by imposing a lien on real and personal property
her brother had conveyed to third parties.  The trial court, relying
on Hutchinson v. Gilbert, 86 Tenn. 464, 7 S.W. 126 (1888), held that
the testator's daughter had a lien by operation of law against the
real property devised to her brother and directed that the property be
sold at auction to satisfy this lien if its current owner did not pay
the testator's son's personal $55,917.57 debt to his sister.  The
current owner of the real property has appealed.  We have determined
that the trial court's reliance on Hutchinson v. Gilbert is misplaced.
 We have also determined that neither the will nor the probate court's
1996 order provides a basis for imposing a lien on property already
conveyed to a third party.

http://www.tba.org/tba_files/TCA/rickj.wpd

RICK SHEDD, et al. v. GAYLORD ENTERTAINMENT COMPANY

Court:TCA

Attorneys:

Jay S. Bowen and Amy C. Martin, Nashville, Tennessee, for the
appellants, Rick Shedd, Mike Owens, Kevin Erickson, Denise Nichols and
Bryan Switzer.

Laurence M. Papel, Cyrus L. Booker, Lawrence S. Eastwood, Nashville,
Tennessee, for the appellee, Gaylord Entertainment Company.                          

Judge: CANTRELL

First Paragraph:

The developer of a new country music record label made verbal offers
of multi-year employment contracts to five music industry executives. 
The executives accepted the offers, but before work was scheduled to
begin, the human resources manager of the label's parent company sent
letters to all five, rescinding the offers.  The five executives
brought suit against the parent company for breach of contract.  The
trial court granted the defendant's Motion for Summary Judgment, on
the ground that the contracts violated the Statute of Frauds.  The
court also held that the plaintiffs were not entitled to prevail on
their theories of partial performance or promissory estoppel.  We
affirm the trial court.

http://www.tba.org/tba_files/TCA/sheddr.wpd

TRUSTEES OF THE LAKEWOOD PARK TRUSTEESHIP v. RAMSEY A. JOHNSON, SR.

Court:TCA

Attorneys:       

Joseph E. Ford, Winchester, Tennessee, for the appellant, Ramsey A.
Johnson, Sr.

Mark A. Nobles, Murfreesboro, Tennessee, for the appellee, Trustees of
the Lakewood Park Trusteeship.                   

Judge: COTTRELL

First Paragraph:

The trustees of a residential/recreational development sued the owner
of a number of lots in the development for failure to pay assessments
for several years.  The owner appeals arguing there was insufficient
proof he received the notices for the years in question.  We affirm
the trial court's judgment in favor of the trustees.

http://www.tba.org/tba_files/TCA/trusteeslakewood.wpd

STATE OF TENNESSEE v. PERCY WADE COCKRILL

Court:TCCA

Attorneys:

Paul Julius Walwyn, Madison, Tennessee, for the appellee, Percy Wade
Cockrill.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Philip H. Wehby, Assistant District Attorney General, for
the appellee, State of Tennessee.                          

Judge: WELLES

First Paragraph:

The Defendant, Percy Wade Cockrill, pled guilty to six counts of
robbery.  After a  hearing, the trial court sentenced the Defendant as
a Range I offender to four years each on three of the robberies, and
to five years each on the remaining three robberies.  The trial court
further ordered the five-year sentences to run consecutively to each
other, for an effective sentence of fifteen years to be served in the
Department of Correction.  The Defendant now challenges the length of
each term as well as the imposition of consecutive sentences.  We
affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. SAMUEL L. GIDDENS

Court:TCCA

Attorneys:  

Ernest W. Williams and Anna E. Freeman, Franklin, Tennessee, for the
appellant, Samuel L. Giddens.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan,
Assistant Attorney General; Ron Davis, District Attorney General; and
Lee E. Dryer, Assistant District Attorney General, for the appellee,
State of Tennessee.                        

Judge: WELLES

First Paragraph:

Following a jury trial, the Defendant, Samuel L. Giddens, was
convicted of facilitation of possession of heroin with the intent to
sell or deliver and possession of cocaine with the intent to sell or
deliver.  In this appeal as of right, the Defendant raises the
following four issues: (1) whether the trial court erred by allowing
law enforcement officers to testify regarding factual indications that
a person possesses drugs with the intent to sell, rather than for
personal use; (2) whether the trial court erred by admitting testimony
regarding prior drug transactions conducted by the Defendant; (3)
whether the evidence is sufficient to sustain his two convictions; and
(4) whether he was entitled to a mistrial due to a statement made by
the prosecutor during closing argument.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. BERNITA HOGAN

Court:TCCA

Attorneys:

William B. Lockert, III, District Public Defender, and Chris L. Young,
Assistant District Public Defender, for the appellant, Bernita Hogan.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Dan M. Alsobrooks, District
Attorney General; and Suzanne M. Lockert, Assistant District Attorney
General, for the appellee, State of Tennessee.                           

Judge: GLENN

First Paragraph:

The defendant, Bernita Hogan, appeals the trial court's revocation of
her probation for nonpayment of restitution, raising the sole issue of
whether the trial court abused its discretion in revoking her
probation when the record fails to show that her nonpayment was
willful.  The State responds by arguing that the record supports the
trial court's finding that the defendant's nonpayment of restitution
was in fact willful, rather than the result of any inability to pay. 
Based on our review, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. LEROY NEVILS

Court:TCCA

Attorneys:

Joseph D. Baugh, Franklin, Tennessee, for the appellant, Leroy Nevils.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Sharon T. Guffee, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant was convicted of driving while under the influence of an
intoxicant, a Class A misdemeanor.  He appeals that conviction,
raising the following issues:
(1) Sufficiency of the evidence and the proper standard of review when
a recording of the trial is available for the reviewing court;
(2) Improper return of the presentment;
(3) Duplicitous presentment;
(4) Improper limitation on voir dire questions concerning potential
length of incarceration;
(5) Improper limitation on voir dire questions whether jurors would
trust a machine;
(6) Improper elicitation of an alcohol testing flashlight;
(7) Improper jury charge as to the certainty needed to find beyond a
reasonable doubt; and
(8) Improper jury charge allowing inference of guilt for refusing a
blood alcohol test.
After careful review of the record, we affirm the judgment from the
trial court.

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

STATE OF TENNESSEE v. ALICIA THARPE

Court:TCCA

Attorneys: 

John H. Henderson, District Public Defender; and Gene Honea Assistant
District Public Defender, for the Appellant, Alicia Tharpe.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner,
Assistant Attorney General; Ronald L. Davis, District Attorney
General; and Lee E. Dryer, Assistant District Attorney General, for
the Appellee, State of Tennessee.                         

Judge: WITT

First Paragraph:

Alicia Tharpe appeals her sentence of split confinement imposed upon
her guilty plea to theft over $1000.  She seeks a fully probated
sentence and challenges the imposition of day-for-day county jail
confinement.  We affirm the trial court's denial of full probation but
reverse the day-for-day period of confinement and remand for
modification of the judgment to reflect that the defendant is eligible
for good conduct or work credits pursuant to Tennessee Code Annotated
section 41-2-111(b).

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

STATE OF TENNESSEE v. WENDELL RAY WILLIAMS
WITH DISSENTING OPINION

Court:TCCA

Attorneys:  

Sam E. Wallace, Jr., Nashville, Tennessee, for the appellant, Wendell
Ray Williams.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Bret T. Gunn, Assistant District Attorney General, for
the appellee, State of Tennessee.                        

Judge: TIPTON

First Paragraph:

A Davidson County Criminal Court jury convicted the defendant, Wendell
Ray Williams, of possessing one-half gram or more of cocaine with
intent to sell, a Class B felony, and the trial court sentenced him as
a Range III, persistent offender to twenty-five years in the
Department of Correction (DOC).  The defendant appeals, claiming that
the trial court erred by (1) denying his motion to suppress evidence;
(2) allowing a police officer to testify as an expert in drug
investigation; (3) admitting evidence of the facts underlying his 1995
conviction for selling cocaine under Tenn. R. Evid. 404(b); (4)
allowing the state to impeach him with his prior convictions for
selling cocaine, car theft, and passing forged papers under Tenn. R.
Evid. 609; and (5) refusing to instruct the jury on the lesser
included offense of facilitation.  We conclude that the trial court
erred by admitting evidence of the defendant's involvement in the 1995
cocaine sale and allowing the state to impeach the defendant with his
resulting conviction.  In addition, we conclude that the trial court
erred by refusing to instruct the jury on facilitation.  We reverse
the judgment of the trial court and remand the case for a new trial.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/williamswendellray_dis.wpd

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