Opinion Flash

December 18, 2003
Volume 9 — Number 231

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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
05 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


DARRELL DWAIN BINKLEY v. TENNESSEE DIECASTING-HARVARD INDUSTRIES, ET
AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Byron K. Lindberg and Peggy Tolson, Tolson and Associates, Brentwood,
Tennessee, for the appellant, Tennessee Diecasting-Harvard Industries
and ITT Hartford Insurance Group

D. Michael Dunavant, Ripley, Tennessee, for the appellee, Darrell
Dwain Binkley

Judge: GOLDIN

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with the Tenn. Code
Ann. Section S50-6-225 (e)(3) for hearing and reporting to the Supreme
Court of findings of fact and conclusions of law. The Appellant,
employer, argues that the trial court erred in finding that the
employee sustained a herniated disc as a result of his on the job
injury; in awarding temporary total and permanent partial disability
benefits and in not applying the "Last Injurious Injury Rule" to
dismiss the employee's claim against Appellant. The Appellee,
employee, argues that the trial court erred in limiting employees
permanent award to 2.5 times the anatomical rating pursuant to T.C.A.
S50-6-241(a)(1) because employee's return to work was not
"meaningful". For the reasons discussed below, the panel has concluded
that the judgment of the trial court should be affirmed in all
respects.

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

WILLIE JEAN HEAD v. NISSAN MOTOR MANUFACTURING CORPORATION, U.S.A., ET
AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

William L. Underhill and Aubrey T. Givens, Madison, Tennessee, for the
appellant, Willie Jean Head

Kenneth M. Switzer and Kitty Boyte, Ruth, Howard, Tate & Sowell,
Nashville, Tennessee, for the appellees Nissan Motor Manufacturing
Corporation, U.S.A. and Royal and SunAlliance 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 employee insists the trial court erred in disallowing
benefits for a left shoulder injury for failure to give timely written
notice.  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/headwj.wpd

HELEN LOUISE HENSON v. FACTORY & STEEL TRANSPORTATION, INC., ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Robert O. Binkley, Jr. and Latosha Mason Dexter, Rainey, Kizer,
Reviere & Bell, Jackson, Tennessee, for the appellant, Tennessee
Insurance Guaranty Association

J. Frank Thomas and Jennifer L. Shumate, Leitner, Williams, Dooley &
Napolitan, Nashville, Tennessee, for the appellee, Commerce & Industry
Insurance Company

Charles L. Hicks, Camden, Tennessee, for the appellee, Helen Louise
Henson

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, Tennessee Insurance Guaranty Association insists the trial
court erred in determining (1) the employee was permanently and
totally disabled, (2) the last injurious injury rule did not apply and
(3) the employee's permanent and total disability benefits accrued
beginning March 14, 2001.  The employee insists the preponderance of
the evidence supports the findings of the trial court.  As discussed
below, the panel has concluded the judgment should be modified with
respect to the date of injury.

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

VICTOR SALAZAR v. CONCRETE FORM ERECTORS, INC., ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Nicholas S. Akins, Allen, Kopet & Associates, Nashville, Tennessee,
for the appellant, Concrete Form Erectors, Inc.

Brian Dunigan, Michael D. Ponce & Associates, Goodlettesville,
Tennessee, for the appellee, Victor Salazar

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 insists the trial court erred in (1) finding that
the claim is not barred by the employee's willful and intentional
failure to follow established policy requiring the use of a safety
appliance, (2) finding that the employee has a 39 percent medical
impairment and awarding permanent partial disability benefits based on
78 percent to the body as a whole.  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/salazarvictor.wpd

ROGER L. HICKMAN v. STATE OF TENNESSEE
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Douglas A. Trant, Knoxville, Tennessee, for the Appellant, Roger L.
Hickman.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Thomas E. Williams, II, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Zane M. Scarlett,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Roger L. Hickman, appeals the dismissal of his petition
for writ of habeas corpus collaterally attacking a 1986 misdemeanor
conviction.  We affirm dismissal of the petition upon grounds that (1)
there is no showing that Hickman is currently "imprisoned or
restrained of his liberty," as required by Tennessee Code Annotated
Section 29-21-101, and (2) the petition fails to comply with the
statutory requirements.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/hickmanrogerl_dis.wpd

STATE OF TENNESSEE v. HOYLE ORR

Court:TCCA

Attorneys:                          

Raymond Mack Garner, District Public Defender, and Shawn G. Graham,
Assistant District Public Defender, for the appellant, Hoyle Orr.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and Michael A. Gallegos, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Hoyle Orr, appeals as of right from his convictions
following a bench trial in the Blount County Circuit Court for driving
under the influence (DUI), third offense, a Class A misdemeanor, and
driving on a revoked license, a Class B misdemeanor.  The defendant
received concurrent sentences of eleven months, twenty-nine days for
the DUI and six months for driving on a revoked license and was
ordered to serve seven months of his sentence in the county jail, the
remainder on probation.  He was fined one thousand, one hundred
dollars and his license was revoked for three years.  The defendant
contends that (1) the evidence is insufficient to support his
conviction for DUI, and (2) the trial court erred by sentencing him to
more than the statutory minimum amounts of confinement for the
convictions.  We affirm the judgments of conviction.

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

STATE OF TENNESSEE v. CHARLES RAY SHORTT

Court:TCCA

Attorneys:                          

Robert W. White, Maryville, Tennessee, for the appellant, Charles Ray
Shortt.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; and Jack Marecic, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Charles Ray Shortt, was convicted of manufacturing
marijuana, a Class D felony, and possession of drug paraphernalia, a
Class A misdemeanor.  See Tenn. Code Ann. SS 39-17- 417(a)(1), (g)(2),
39-17-425.  The trial court sentenced the defendant to concurrent
terms of two years and eleven months, twenty-nine days, respectively. 
In this appeal as of right, the defendant asserts (1) that the trial
court erred by denying his motion to suppress evidence of the drugs
and paraphernalia; (2) that the evidence was insufficient to support
the conviction for manufacturing marijuana; and (3) 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/shorttcharlesray.wpd

STATE OF TENNESSEE v. DARRELL GLEN SMITH

Court:TCCA

Attorneys:                          

Edward C. Miller, District Public Defender, for the appellant, Darrell
Glen Smith.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney
General; and James B. Dunn, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Darrell Glen Smith, appeals as of right from his
conviction by a jury in the Cocke County Circuit Court for first
degree murder.  The defendant was sentenced to life imprisonment with
the possibility of parole.  He contends that (1) the evidence is
insufficient to support the jury's rejection of his insanity defense
and (2) the trial court erred in failing to grant a new trial due to
juror misconduct.  We affirm the trial court's judgment of conviction.

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

TERRY FRANKLIN STOGDILL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Robert W. Scott, Jacksboro, Tennessee (on appeal), and Benjamin S.
Pressnell, Tazewell, Tennessee (at trial), for the appellant, Terry
Franklin Stogdill.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William Paul Phillips, District Attorney
General; and John W. Galloway, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The petitioner, Terry Franklin Stogdill, was convicted by a jury in
the Claiborne County Criminal Court of one count of rape of a child
and one count of incest.  The trial court sentenced the petitioner to
an effective twenty year sentence to be served in the Tennessee
Department of Correction.  Following an unsuccessful appeal of his
convictions, the petitioner timely filed a petition for post-
conviction relief.  The petitioner now appeals the dismissal of his
petition.  Upon review of the record and the parties' briefs, we
affirm the judgment of the post-conviction court

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

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