Opinion Flash

May 23, 2003
Volume 9 — Number 094

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
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
02 New Opinion(s) from the Tennessee Court of Appeals
02 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

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version.
Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document.

Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


STATE OF TENNESSEE v. MAURICE LASHAUN NASH
CORRECTED OPINION: Adds Kathy Aslinger as an attorney for the
appellant, State of Tennessee.

Court:TSC

Attorneys: 

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Kim R. Helper, Assistant Attorney General; Kathy
Aslinger, Assistant Attorney General; Elizabeth T. Rice, District
Attorney General; and Ryan D. Brown, Assistant District Attorney
General, for the appellant, State of Tennessee.

C. Michael Robbins, Memphis, Tennessee, for the appellee, Maurice
Nash.

Judge: BARKER

First Paragraph:

Maurice Lashaun Nash was tried before a Tipton County jury for
possession of marijuana, a schedule VI controlled substance, with
intent to deliver.  The jury convicted Nash of the lesser-included
offense of facilitation of possession of marijuana with the intent to
deliver.  On appeal, the Court of Criminal Appeals concluded that
there was insufficient evidence to support an instruction to the jury
and conviction on the lesser-included offense of facilitation of
possession with the intent to deliver.  The Court of Criminal Appeals
reversed Nash's conviction and remanded the case to the trial court
for a new trial on the charge of simple possession.  Both Nash and the
State sought permission to appeal the decision of the Court of
Criminal Appeals.  We granted both petitions and after conducting a
thorough review of the record and applicable law, we hold that there
was sufficient evidence to support a conviction for facilitation of
possession of marijuana with the intent to deliver.  Accordingly, the
judgment of the Court of Criminal Appeals is reversed, and the case is
remanded to the trial court for enforcement of its judgment of
conviction.

http://www.tba.org/tba_files/TSC/nashmlcxcx.wpd
								
LISA GREGORY v. SAFETY NATIONAL CASUALTY CORPORATION Court:TSC - Workers Comp Panel Attorneys: Randolph Anderson Veazey, Nashville, Tennessee for the appellant Safety National Casualty Corporation. E. Guy Holliman and William Joseph Butler, Lafayette, Tennessee, for the appellee Lisa Gregory. Judge: WEATHERFORD First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court 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 trial court found that the employee, who suffered from carpal tunnel syndrome caused by her job activities, had sustained a 45% permanent partial disability to her left arm and a 30% permanent partial disability to her right arm. The defendant contends that the trial court erred: 1) in not granting a motion to continue the case; 2) in assessing permanent vocational disability; and 3) as to the manner of payment of the non-commuted portion of the award. For the reasons set out in this opinion, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/gregorylisa.wpd
LARRY HAYMANS v. WILLIAMS POWER CORPORATION Court:TSC - Workers Comp Panel Attorneys: F. Michie Gibson, Jr., Nashville, Tennessee, for the appellant Larry Haymans. Richard C. Mangelsdorf, Jr. and Mark W. Honeycutt II, Nashville, Tennessee, for the appellee Williams Power Corporation. Judge: WEATHERFORD First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court 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. In this case, the trial court found that the plaintiff had failed to carry his burden of proving a compensable work-related injury and entered an order denying workers' compensation benefits. A Notice of Appeal was not filed within 30 days of the entry of the final order. The plaintiff appeals the trial court's ruling denying a "Motion to be Allowed to Late File Notice of Appeal" pursuant to Tennessee Rule of Civil Procedure 60.02. For the reasons stated in this opinion, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/haymanslarry.wpd
DONALD MARTIN v. NORRIS & SON, INC. Court:TSC - Workers Comp Panel Attorneys: Andrew J. Berke, Berke, Berke & Berke, Chattanooga, Tennessee for the appellant, Donald Martin Bruce C. Bailey, Chambliss, Bahner & Stophel, Chattanooga, Tennessee, for the appellee, Norris & Son, Inc. 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 his motion for summary judgment and in granting summary judgment in favor of the employer. As discussed below, the panel has concluded the trial court erred in summarily dismissing the complaint. http://www.tba.org/tba_files/TSC_WCP/martindonald.wpd
WILEY HUTCHERSON, et al. v. LAUDERDALE COUNTY BOARD OF ZONING APPEALS Court:TCA Attorneys: Jerry D. Kizer, Jr. And Patrick W. Rogers, Jackson, Tennessee, for the appellants, Wiley Hutcherson and Western Tennessee Enterprises, Inc. J. Thomas Caldwell, Ripley, Tennessee, and Kemper B. Durand and Michael E. Keeney, Memphis, Tennessee, for the appellee, Lauderdale County Board of Zoning Appeals. Judge: FARMER First Paragraph: Appellant appeals from a decision of the trial court affirming the Lauderdale County Board of Zoning Appeals denial of an application to use certain property as a sanitary landfill. The BZA and the trial court cited safety concerns as a valid reason to deny Appellant's application. We find that, under the provisions of the ordinance in question, the BZA acted beyond its authority in considering such safety concerns. We therefore reverse the decision of the trial court. http://www.tba.org/tba_files/TCA/hutcherson.wpd
WATSON & SON LANDSCAPING, PARTNERS, JAMES T. WATSON, GENERAL PARTNER v. POWER EQUIPMENT COMPANY Court:TCA Attorneys: Charles C. Exum, Jackson, Tennessee, for appellant, Power Equipment Company. P. Kevin Carter and Bradley G. Kirk, Lexington, Tennessee, for appellee, Watson & Son Landscaping, Partners, James T. Watson, General Partner. Judge: LILLARD First Paragraph: This is a sales/UCC case. A landscaper contracted to purchase a used piece of machinery, an excavator, from an equipment company. The excavator had a defective hydraulic system. Under the terms of the sales contract, the equipment company was to repair the defective hydraulic system. The equipment company attempted to do so and delivered the excavator to the landscaper. The hydraulic system, however, did not work properly and the equipment company was unable to repair the excavator to the landscaper's satisfaction. The landscaper then had the excavator repaired by a third party. The landscaper sued the equipment company for failure to satisfy a condition precedent to the contract, and for breach of contract. The trial court awarded actual damages for the difference in value between the excavator bargained for and the excavator actually received, as well as consequential damages. The equipment company appeals. We modify the actual damages to the cost to repair the excavator, and we reverse the award of consequential damages, finding that the proof of consequential damages was too speculative to support such an award. http://www.tba.org/tba_files/TCA/watson.wpd
STATE OF TENNESSEE v. STEPHON HARDEN Court:TCCA Attorneys: Stephen M. Wallace, District Public Defender; Terry L. Jordan, Assistant Public Defender, Blountville, Tennessee, for the Appellant, Stephon Harden. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Peter M. Coughlan, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and James Goodwin, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Stephon Harden, appeals from the judgment of the Sullivan County Circuit Court revoking his probation and remanding him to the Department of Correction. In March of 1999, Harden pled guilty to two counts of class E felony theft, one count of forgery, aggravated burglary, and failure to appear. He received an effective six-year sentence to be served in the Department of Correction. Harden was released following completion of the "boot camp" program and was administratively granted probation by the Commissioner of Correction. Warrants alleging violations of his probationary sentence were issued on February 21st and 28th of 2002. Following a hearing, he was found in violation of his probation and resentenced to the Department of Correction. On appeal, he argues that the trial court erred by failing to consider alternatives to revocation. Finding no merit to Harden's claim, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/hardenstephon.wpd
STATE OF TENNESSEE v. THURMAN G. LEDFORD Court:TCCA Attorneys: Paul G. Whetstone, Mosheim, Tennessee, for the Appellant, Thurman G. Ledford. Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Jonathan Holcomb, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Thurman G. Ledford appeals a certified question of law whether the strong odor of ammonia emanating from his residence supported probable cause for the issuance of a search warrant, which resulted in his arrest for drug-related activities. Because we conclude that the issue is not dispositive of the defendant's case, we dismiss his appeal. http://www.tba.org/tba_files/TCCA/ledford.wpd

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi


HomeContact UsPageFinderWhat's NewHelp
© Copyright 2003 Tennessee Bar Association