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 |
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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
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