Opinion Flash

April 30, 2003
Volume 9 — Number 078

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
01 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
08 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06 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


JEWELL WINNINGHAM v. FINDLAY INDUSTRIES, et al.

Court:TSC - Workers Comp Panel

Attorneys:

Sonya Henderson, Thomas, Henderson & Pate, Murfreesboro, Tennessee,
for the appellant, Jewell Winningham

Kenneth M. Switzer, Ruth, Howard, Tate & Sowell, Nashville, Tennessee,
for the appellee, Findlay Industries                         

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 the trial court erred in denying her
application for reconsideration pursuant to Tenn. Code Ann. S
50-6-241(a)(2).  As discussed below, the panel has concluded that,
under the circumstances, the claimant is entitled to an evidentiary
hearing to determine whether she is entitled to an increased award.

http://www.tba.org/tba_files/TSC_WCP/winninghamj.wpd
								
								
APPENDIX TO COURT'S ORDER AMENDING RULES OF PROFESSIONAL CONDUCT Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rpc8_apx.wpd
ORDER REGARDING TBA PETITION ON RPC 4.1 Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rpc8_a_ord.wpd
ORDER AMENDING TENNESSEE SUPREME COURT RULE 8, TENNESSEE RULES OF PROFESSIONAL CONDUCT Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rpc8_ord.wpd
AMENDMENT TO SUPREME COURT RULE 13 Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rule13_ord.wpd
AMENDMENT TO SUPREME COURT RULE 17 Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rule17form_ord.wpd
UNIFORM JUDGMENT DOCUMENT CALLED FOR IN NEW RULE 17 Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rule17form_rul.wpd
AMENDMENT TO SUPREME COURT RULE 7, ARTICLE VI, Section 5.01(b) Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rule75_01_ord.wpd
AMENDMENT TO SUPREME COURT RULE 7, ARTICLE XII, Section 12.09 Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rule7_ord.wpd
IN RE: ADOPTION OF: SAMUEL JUSTIN DOWNEY, a/k/a JUSTIN SAMUEL DOWNEY, JESSICA LEE DOWNEY SHERBAN, a/k/a JESSICA LEE DOWNEY, AND TAYLOR MARIE SHERBHAN, a/k/a TAYLOR MARIE DOWNEY, minors, by JULIA MARSHALL DOWNEY, v. CATHERINE DOWNEY Court:TCA Attorneys: David W. Wallace, Bryan H. Hoos, and C. Leland Davis, Chattanooga, Tennessee, for Appellant. Leah M. Gerbitz and Esther R. DeCambra, Chattanooga, Tennessee, for Appellee. Judge: FRANKS First Paragraph: The Trial Court approved adoption of three minor children by sister of biological mother. Mother appealed, insisting Georgia Court decree terminating her parental rights to the children was defective. We affirm. http://www.tba.org/tba_files/TCA/downeys.wpd
RANDY J. HENSLEY v. TENNESSEE DEPARTMENT OF CORRECTIONS Court:TCA Attorneys: Randy J. Hensley, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Nichon Shannon, Assistant Attorney General, for the appellee, Tennessee Department of Correction Judge: COTTRELL First Paragraph: An inmate who was allowed to commence and proceed in forma pauperis in this litigation, but who was unsuccessful and had costs taxed against him, appeals the trial court's denial of his motion to quash execution on his trust fund account to collect the costs. We affirm. http://www.tba.org/tba_files/TCA/hensleyr.wpd
FERN KEATON v. HANCOCK COUNTY BOARD OF EDUCATION Court:TCA Attorneys: Floyd W. Rhea, Sneedville, Tennessee, for the appellant, Hancock County Board of Education. Mark S. Stapleton, Rogersville, Tennessee, and W. Lewis Jenkins, Dyersburg, Tennessee, for the appellee, Fern Keaton. Judge: SUSANO First Paragraph: This is a personal injury action arising out of a workplace accident not covered by the Worker's Compensation Law. Fern Keaton sued her employer, the Hancock County Board of Education, alleging that it was negligent in failing to maintain the electrical appliances in her kitchen work area in a safe working condition and that this negligence was the proximate cause of the injuries and damages she sustained when she was electrocuted while using one of the appliances. The trial court, sitting without a jury, found the defendant guilty of 66-2/3% fault and assigned the balance of the fault to the plaintiff. The plaintiff was awarded $50,000 in damages, which amount represents the defendant's fault-based share of the total damages. The defendant appeals, contending (1) that it is immune from suit pursuant to Tenn. Code Ann. S 29-20-204 (2000); (2) that it was not negligent; and (3) that any negligence it may have committed is outweighed by that of the plaintiff's. By a separate issue, the plaintiff argues that the trial court erred in assigning any fault to her. We modify the trial court's judgment for the plaintiff. As modified, it is affirmed. http://www.tba.org/tba_files/TCA/keatonf.wpd
TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. L.F. Court:TCA Attorneys: Monica J. Franklin, Knoxville, Tennessee, for the appellant, L.F. Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services. Judge: SUSANO First Paragraph: The trial court terminated the parental rights of L.F. ("Mother") with respect to her minor child, D.F. (DOB: January 28, 1994) ("the child"). Mother appeals, essentially arguing that the evidence preponderates against the trial court's dual findings, by clear and convincing evidence, (1) that statutory grounds for termination exist and (2) that termination is in the best interest of the child. We affirm. http://www.tba.org/tba_files/TCA/lf.wpd
JACK H. PARKS v. CHUCK RICH Court:TCA Attorneys: Jack H. Parks, Johnson City, Tennessee, Pro Se. Suzanne S. Cook, Kingsport, Tennessee, for the appellee, Chuck Rich. Judge: SUSANO First Paragraph: Jack H. Parks sued Chuck Rich, the owner of an apartment complex. Parks initially complained of a back injury resulting from his jumping off a first floor balcony railing, and irritation to his body caused by a bug spray applied in his apartment unit, both of which incidents occurred at the complex. The trial court granted the defendant's motion for summary judgment. The plaintiff appeals, contending that summary judgment is not appropriate with respect to the bug spray matter and that the trial court erred with respect to certain discovery matters. We affirm. http://www.tba.org/tba_files/TCA/parksjh.wpd
WILLIAM JOSEPH WILLIAMS v. MARLA JANE BARNES-MASON Court:TCA Attorneys: Douglas R. Beier, Morristown, Tennessee, for Appellant. J. Eric Harrison, Morristown, Tennessee, for Appellee. Judge: First Paragraph: Primary residential custody was awarded to mother. Father appealed. We affirm. http://www.tba.org/tba_files/TCA/williamsw.wpd
RANDALL EUGENE BEST v. STATE OF TENNESSEE Court:TCCA Attorneys: Steve McEwen, Mountain City, Tennessee (on appeal), and William Donaldson, Assistant District Public Defender (at trial), for the appellant, Randall Eugene Best. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; and Richard Newman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WADE First Paragraph: The petitioner, Randall Eugene Best, appeals the trial court's denial of his petition for post conviction relief. In this appeal, he asserts that he was denied the effective assistance of counsel at trial and on appeal. The judgment is affirmed. http://www.tba.org/tba_files/TCCA/bestr.wpd
STATE OF TENNESSEE v. EDWARD CLAY and TIMOTHY B. CLAY Court:TCCA Attorneys: Michael J. Flanagan and Dale M. Quillen, Nashville, Tennessee, for the appellants, Edward Clay and Timothy B. Clay. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The co-defendants pled guilty to conspiracy to sell "ecstasy," a Schedule I controlled substance. After a sentencing hearing, each received a sentence of eight years to be served in split confinement, with all but eight months on probation. The co-defendants contend that the trial court erred in not granting them full probation. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/dlay.wpd
STATE OF TENNESSEE v. GEORGE MEARS Court:TCCA Attorneys: David W. Piper, Woodbury, Tennessee (on appeal), and Larry B. Stanley, Jr., McMinnville, Tennessee (at trial) for the appellant, George Mears. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and David L. Puckett, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Following a jury trial, Defendant, George Mears, was found guilty of theft of property of not less than $1,000 nor more than $10,000, a Class D felony. In his motion for a new trial, Defendant raised one issue, alleging that he received ineffective assistance of counsel at trial. Defendant contended that his counsel failed to adequately investigate and develop all available defense strategies and failed to adequately prepare for trial. Following an evidentiary hearing, the trial court denied Defendant's motion for a new trial. The trial court concluded that Defendant's counsel should have interviewed two witnesses prior to the day of trial but that Defendant failed to show that he was prejudiced by counsel's delayed interviews. As to all other claims of ineffective assistance of counsel, the trial court found that Defendant failed to show that his counsel's performance was deficient. After a thorough review of the record, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mearsg.wpd

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