Opinion Flash

August 4, 2003
Volume 9 — Number 139

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
05 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
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


ERNEST L. ATKINSON v. SIGNAGE, INC., ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Charles S. Herrell, Davies, Humphreys & Evans, Nashville, Tennessee,
for the appellants, Signage, Inc. and Liberty Mutual Insurance Company

Larry R. McElhaney, Arena & McElhaney, Nashville, Tennessee, for the
appellee, Ernest L. Atkinson

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 employer and its insurer insist the trial court erred in
awarding permanent total disability benefits where the injured
employee has returned to work for the same employer at a wage equal to
or greater than his pre-injury wage and is working forty hours per
week.  The employer and its insurer also insist the trial court erred
in commuting a portion of the award to a lump sum.  As discussed
below, the panel has  concluded the trial court committed no
reversible error.

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

TIMOTHY W. FERGUSON v. J. H. BROOKS ROOFING & SHEET METAL, INC., ET
AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Fred C. Statum and Michael Haynie, Manier & Herod, Nashville,
Tennessee, for the appellants, J. H. Brooks Roofing & Sheet Metal,
Inc. and American Interstate Insurance Company

Joseph L. Mercer, III, Nashville, Tennessee, for the appellee, Timothy
W. Ferguson

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 employer and its insurer insist the trial court erred in
its findings with respect to the employee's average weekly wage and
the extent of his permanent partial disability.  As discussed below,
the panel has concluded the evidence fails to preponderate against the
findings of the trial court.

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

MARGIE KELLY v. WHITE CONSOLIDATED INDUSTRIES, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

Lucius P. Hawes, Jr., Hopkinsville, Kentucky, for the appellant,
Margie Kelley

William R. Goodman, III, Goodman & Walker, Springfield, Tennessee, for
the appellee, White Consolidated Industries, Inc., d/b/a Electrolux
Home Products

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 dismissing her
claim for insufficient evidence of a causal connection between her
employment and her medical condition.  As discussed below, the panel
has concluded the evidence fails to preponderate against the finding
of the trial court.

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

PATRICIA A. MAXWELL v. STATE FARM FIRE & CASUALTY INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:                          

Wm. Kennerly Burger, Burger, Siskin, Scott, Goad & McFarlin,
Murfreesboro, Tennessee, for the appellant, Patricia A. Maxwell

Roger W. Hudson, Murfree, Cope, Hudson & Scarlett, Murfreesboro,
Tennessee, for the appellee, State Farm Fire & Casualty 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 appellant insists the trial court erred in summarily
dismissing her claim upon the finding that she was not a covered
employee.  As discussed below, the panel has concluded the case should
be remanded for a full trial on the merits.

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

ROMACH, INC. v. ANTHONY RAY COLE

Court:TSC - Workers Comp Panel

Attorneys:                          

Clifton B. Sobel, Jr., Nashville, Tennessee, for the appellant,
Anthony Ray Cole

Clancy J. Covert and Frederick R. Baker, Wimberly, Lawson, Seale,
Wright & Daves, Cookeville, Tennessee, for the appellee, Romach, 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 admitting
evidence of prior criminal convictions and in dismissing his claim. 
As discussed below, the panel has concluded the trial court committed
no reversible error.

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

EARL DAVID CRAWFORD V. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Earl David Crawford, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and Joseph V. Hoffer, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Appellant, Earl David Crawford, appeals the trial court's denial of
his petition for post-conviction DNA testing.  See Tenn. Code Ann. S
40-30-403.  In his appeal, Appellant concedes that the physical
evidence taken by the State in 1986 during the investigation of his
case has been destroyed.  Appellant argues, however, that the trial
court erred in not permitting the results of the tests performed on
the physical evidence in 1986 to be compared to current DNA samples
from Appellant, the victim, and the victim's husband.  Appellant also
argues that the trial court erred in permitting the Public Defender's
Office to withdraw from representing Appellant in this matter without
appointment of new counsel to represent him in this appeal.  After a 
review of the record, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. ANTHONY NATHANIEL GUERARD

Court:TCCA

Attorneys:                          

Russel A. Church, Assistant Public Defender, Clarksville, Tennessee,
for the appellant, Anthony Nathaniel Guerard.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; John W. Carney, Jr., District Attorney
General; James B. Crenshaw and Daniel Brollier, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

In 1999, the Defendant was placed on judicial diversion for four years
after pleading guilty to aggravated assault.  In 2001, while the
Defendant was on probation for aggravated assault, the Montgomery
County Grand Jury indicted the Defendant for attempted first degree
murder, attempted robbery, and aggravated kidnapping.  In 2002,
pursuant to a plea agreement, the Defendant pled guilty to reckless
endangerment and nolo contendere to attempted robbery.  Following a
sentencing hearing, the trial court sentenced the Defendant to eleven
months and twenty-nine days incarceration for reckless endangerment
and to three years in the Tennessee Department of Correction for
attempted robbery.  The trial court also revoked the Defendant's
judicial diversion probation for the 1999 aggravated assault charge,
entered a judgment of conviction, and imposed a sentence of four years
in the Tennessee Department of Correction.  It ordered that the
sentences for reckless endangerment and attempted robbery be served
concurrently to each other but consecutive to the sentence for
aggravated assault, resulting in an effective sentence of seven years.
 In this appeal as of right, the Defendant argues that his sentences
are excessive and that the trial court erred by denying alternative
sentencing.  We conclude that the Defendant's sentences are proper and
thus affirm the judgment of the trial court.

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

GERALD W. MCCULLOUGH v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

John E. Herbison, Nashville, Tennessee, for the appellant, Gerald W.
McCullough.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; Mike McCown, District Attorney General;
and Michael Randles, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Gerald W. McCullough, was convicted of aggravated
sexual battery.  This Court affirmed the Defendant's conviction on
direct appeal.  See State v. Gerald W. McCullough, No.
M1999-01525-CCA-R3-CD, 2000 WL 1246432, at *1 (Tenn. Crim. App.,
Nashville, Aug. 18, 2000).  The Defendant was represented at trial by
the Public Defender's Office.  On direct appeal, the Defendant was
represented by Nashville attorney John E. Herbison.  After the
Defendant's conviction was affirmed on direct appeal, the Defendant
filed for post-conviction relief.  In this effort, the Defendant was
again represented by John E. Herbison.  The trial court, on its own
motion, conducted an evidentiary hearing with respect to the conflict
of interest inherent in Mr. Herbison's representation of the Defendant
on post-conviction following his representation of the Defendant on
direct appeal.  Following the hearing, the trial court ordered Mr.
Herbison removed from his representation of the Defendant on
post-conviction, and further ordered Mr. Herbison to return the entire
retainer fee he had been paid in conjunction with the post-conviction
proceeding.  The trial court's ruling is now before this Court
pursuant to an interlocutory appeal.  See Tenn. R. App. P. 9.  We
affirm the trial court's order removing Mr. Herbison from further
representation of the Defendant in this case.  We remand the trial
court's ruling regarding the refund of Mr.  Herbison's fee for further
proceedings.

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

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