Opinion Flash

August 18, 2003
Volume 9 — Number 149

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
04 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
01 New Opinion(s) from the Tennessee Court of Appeals
07 New Opinion(s) from the Tennessee Court of Criminal Appeals
04 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


JOHNNY RAY ARNOLD, SR. v. CORRECTIONS CORPORATION OF AMERICA
(WHITEVILLE FACILITY)

Court:TSC - Workers Comp Panel

Attorneys:                          

K. Michelle Booth, Jackson, Tennessee, for appellant, Corrections
Corporation of America (Whiteville Facility).

George Lee Morrison, III, Jackson Tennessee and Mary Dee Allen,
Cookeville, Tennessee, for appellee, Johnny Ray Arnold, Sr.

Judge: WALLACE

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. Section 50-6-225(e)(3) for hearing and reporting
to the Supreme Court of finding of facts and conclusion of law. The
trial court found the plaintiff suffered a 75 percent disability to
his body as a whole, and awarded permanent partial disability
benefits, the cost of medical treatment, and temporary total
disability benefits pursuant to the Workers' Compensation Act of the
State of Tennessee. As discussed below, the panel has concluded the
evidence does not preponderate against the trial court's findings and
we affirm.

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

LISA DAVID v. SOARING HIGH SALES

Court:TSC - Workers Comp Panel

Attorneys:                          

D. Scott Turner and Sean Hunt, Memphis, Tennessee, for the appellant,
Soaring High Sales.

George L. Morrison III, Jackson, Tennessee, and Mary Dee Allen,
Cookeville, Tennessee, for the appellee, Lisa David.

Judge: CHILDERS

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Panel of the Supreme Court in accordance with
Tennessee Code Annotated S 50-6-225(e)(3) for a hearing and reporting
to the Supreme Court of findings of fact and conclusions of law.  In
this appeal, the employer contends that the evidence preponderates
against the trial court's finding that (1) plaintiff was performing an
errand that benefitted the employer at the time of the accident, and
(2) that plaintiff suffered permanent partial disability to the body
as a whole in the amount of 65%.  As discussed below, the panel has
concluded the judgment should be affirmed.

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

EDWARD RING v. CHEMETALS, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

Charles L. Hicks, Camden, Tennessee, for the appellant, Edward Ring.

Sean Antone Hunt, Memphis, Tennessee, for appellee, Chemetal, Inc.

Judge: WALLACE

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance
with the Tenn. Code Ann. Section 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of  fact and conclusions of
law.  Claimant has appealed the trial court's decision awarding 15%
permanent partial disability to the body as a whole as being
inadequate.  Claimant seeks an increase award and particularly urges a
finding of total disability benefits.  Appellee (hereinafter
"Employer") filed in its brief a request for consideration of
post-judgment evidence.  Employer also requests the panel take
judicial notice of active and passive range of motion.  As discussed
below, the panel has concluded the evidence does not preponderate
against the trial court's finding and Employer's request for
consideration of post- judgment acquired evidence is denied. 
Employer's request that the panel take judicial notice of active and
passive range of motion is also denied.

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

ROSIE MAE THOMAS v. MAGNA SEATING SYSTEMS OF AMERICA, INC. a/k/a MILAN
SEATING SYSTEMS

Court:TSC - Workers Comp Panel

Attorneys:                          

P. Allen Phillips, Jackson, Tennessee, for appellant, Magna Seating
Systems of America, Inc. d/b/a Milan Seating Systems.

Jeffery A. Garrety, Jackson, Tennessee, for appellee, Rosie Mae
Thomas.

Judge: WALLACE

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. Section 50-6-225(e)(3) for hearing and reporting
to the Supreme Court of findings of fact and conclusions of law.  In
this appeal employer contends that the trial court erred in admitting
the testimony of Dr. Joseph C. Boals, III and that the evidence
preponderates against the trial court's award of 25% permanent partial
disability to the left arm.  For reasons stated in this opinion, we
affirm the judgment of the trial court.

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

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0818.wpd

CONSOLIDATED WASTE SYSTEMS, LLC v. SOLID WASTE REGION BOARD OF THE
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, ET AL and
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE v.
SOLID WASTE DISPOSAL CONTROL BOARD, ET AL.

Court:TCA

Attorneys:                          

Thomas G. Cross, John L. Kennedy and Daniel W. Champney, Nashville,
Tennessee, for the appellant, The Metropolitan Government of Nashville
and Davidson County.

Joe W. McCaleb, Hendersonville, Tennessee, Frank M. Fly, Murfreesboro,
Tennessee, and Thomas F. Bloom, Nashville, Tennessee, for the
intervenor/appellant, Sherard Caffey Edington.

Thomas G. Cross, Daniel W. Champney and John L. Kennedy, Nashville,
Tennessee, for the respondent/appellee, Solid Waste Region Board of
The Metropolitan Government of Nashville and Davidson County.

James L. Murphy, III, Nashville, Tennessee, for the
petitioner/appellee, Consolidated Waste Systems, LLC.

Judge: CAIN

First Paragraph:

This appeal involves two chancery court cases concerning the proper
interpretation of Tennessee Code Annotated section 68-211-814.  From a
decision dismissing their counterclaims, the Metropolitan Government
Solid Waste Region Board and Sherard Caffey Edington appeal.  From a
decision affirming the State's issuance of a Class IV landfill permit,
the Metropolitan Government appeals.  We affirm.

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

STATE OF TENNESSEE v. STEVEN PAUL DESKINS

Court:TCCA

Attorneys:                          

Jennifer Lynn Thompson, Nashville, Tennessee, for the appellant,
Steven Paul Deskins.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Bernard F. McEvoy and Angelita Blackshear Dalton,
Assistant District Attorneys General, for the appellee, State of
Tennessee.

Judge: GLENN

First Paragraph:

A Davidson County jury convicted the defendant, Steven Paul Deskins,
of seven counts of rape of a child and four counts of aggravated
sexual battery.  The trial court imposed an effective seventy- year
sentence.  In this appeal, the defendant challenges: (1) the
sufficiency of the evidence supporting his convictions; (2) the
admissibility of evidence indicating the defendant married his wife
when she was seventeen years old; (3) the admissibility of evidence
regarding statements the defendant made to his wife during sexual
intercourse which were similar to statements allegedly made to the
victim; and (4) the imposition of consecutive sentences for three of
the convictions.  We reverse one of the aggravated sexual battery
convictions as being in violation of due process and double jeopardy. 
Otherwise, we affirm the judgments of the trial court.

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

VERNON ELKINS, JR. v. STATE OF TENNESSEE  

Court:TCCA

Attorneys:                          

Dale W. Peterson, Woodbury, Tennessee, for the appellant, Vernon
Elkins, Jr.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; and William C. Whitesell, Jr., District
Attorney General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner appeals the denial of post-conviction relief after his
second degree murder conviction and argues his trial counsel (1)
deprived him of his right to testify, and (2) failed to effectively
represent him at trial.  We affirm the judgment of the post-conviction
court.

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

STATE OF TENNESSEE v. STEPHANIE C. HADLEY

Court:TCCA

Attorneys:                          

Michael J. Flanagan, Nashville, Tennessee (on appeal); William (Jake)
Bradley Lockert, III, District Public Defender; and Christopher L.
Young, Assistant District Public Defender (at trial), for the
appellant, Stephanie C. Hadley.

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: RILEY

First Paragraph:

The defendant pled guilty to felony failure to appear.  Following a
sentencing hearing, the trial court  imposed a one-year sentence with
ninety days of incarceration followed by probation.  The defendant
appeals the denial of full probation.  We affirm the judgment of the
trial court but remand for correction of a clerical error in the
judgment.

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

MATTHEW BRUCE HENDERSON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Charles E. Walker, Nashville, Tennessee, for the appellant, Matthew
Bruce Henderson.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; and Roger D. Moore, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Matthew Bruce Henderson, appeals the denial of his
petition for post-conviction relief.  The petitioner originally
entered best interest guilty pleas to two counts each of rape of a
child, aggravated sexual battery, and statutory rape, and received an
effective sentence of twenty- four years.  On appeal, the petitioner
contends (1) he received ineffective assistance of counsel in entering
his pleas; (2) the trial court erred in failing to hold a competency
hearing prior to accepting his pleas; and (3) his guilty pleas were
not knowingly and voluntarily entered.  Upon review of the record and
applicable law, we affirm the judgment of the post-conviction court.

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

STATE OF TENNESSEE v. BOBBY HOLT, JR.

Court:TCCA

Attorneys:                          

Richard W. DeBerry, Camden, Tennessee, for the appellant, Bobby Holt,
Jr.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III,
Assistant Attorney General; and John W. Overton, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Bobby Holt, Jr., pled guilty to one count of aggravated
burglary, four counts of burglary, three counts of theft over $1000,
and one count of theft under $500.  The trial court imposed sentences
of five years for aggravated burglary, three years on each count of
burglary, three years on each count of theft over $1000, and eleven
months and twenty-nine days for theft under $500.  The sentences were
ordered to be served concurrently, for an effective, Range I sentence
of five years.  In this appeal, the defendant asserts that (1) the
trial court erred in the application of  enhancement and mitigating
factors and (2) that the trial court erred by denying an alternative
sentence.  The judgments of the trial court are affirmed.

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

STATE OF TENNESSEE v. KEVIN SCOTT OLMSTEAD

Court:TCCA

Attorneys:                          

David L. Raybin (on appeal) and Edward S. Ryan (at hearing),
Nashville, Tennessee, for the appellant, Kevin Scott Olmstead.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. Johnson, III,
District Attorney General; and Roger D. Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: RILEY

First Paragraph:

The defendant, Kevin Scott Olmstead, pled guilty to two counts of
aggravated assault.  Following a sentencing hearing, the trial court
imposed two consecutive five-year sentences.  On appeal, the defendant
contends his sentences are excessive.  We affirm the judgments of the
trial court.

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

BARRY WINFRED RITCHIE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Barry Winfred Ritchie, Mountain City, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; David H. Findley,
Assistant Attorney General; and William H. Cox, III, District Attorney
General, for the appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

In a series of steps designed to challenge his 1981 convictions for
armed robbery and aggravated rape, Petitioner, Barry Winfred Ritchie,
filed various pro se motions including (1) a motion for post-
conviction relief and/or writ of error coram nobis, (2) a motion for
relief of judgment pursuant to Rule 60.02 of the Tennessee Rules of
Civil Procedure, (3) a petition for common law writ of certiorari, and
(4) a motion to quash the indictments and correct an illegal sentence.
 All pleadings are predicated on the same allegation that the Hamilton
County Criminal Court lacked territorial jurisdiction to try and
convict Petitioner of the charged offenses.  Following a careful
review of the record, we affirm the judgments of the trial court.

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

2003 Tenn. Pub. Acts, Ch. 90 - Office Title - County Mayor 2003 Tenn.
Pub. Acts, Ch. 90 - Office Title - County Mayor

Date: August 13, 2003

Opinion Number: 03-096                         

http://www.tba.org/tba_files/AG/2003/op96.pdf

Applicability of Private Investigators' Licensure Requirements to
Attorneys Licensed in Other States

Date: August 13, 2003

Opinion Number: 03-097                      

http://www.tba.org/tba_files/AG/2003/op97.pdf

Brian A. Settlement Agreement Level 1 Waiver Provisions

Date: August 13, 2003

Opinion Number: 03-098                         

http://www.tba.org/tba_files/AG/2003/op98.pdf

Authority of the State Capitol Commission

Date: August 13, 2003

Opinion Number: 03-099                        

http://www.tba.org/tba_files/AG/2003/op99.pdf

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