Opinion Flash

August 19, 2004
Volume 10 — Number 160

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
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 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

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


MICHELLE SULLIVAN, by and through her Conservator, Brenda Hightower v.
EDWARDS OIL COMPANY

Court:TSC

Attorneys:                          

Patrick A. Flynn, Columbia, Tennessee, for the appellant, Michelle
Sullivan.

David T. Hooper, Brentwood, Tennessee, for the appellee, Edwards Oil
Company.

Judge: DROWOTA

First Paragraph:

We granted this appeal to define "nursing services" as used in
Tennessee Code Annotated section 50-6-204(a)(1) and to determine
whether the caretaking services that an injured employee's mother
provides are nursing services for which the Workers' Compensation Law
mandates the employer compensate her.  The trial court found that the
mother had failed to carry her burden of proof on the issue of whether
she was entitled to compensation.  The trial court concluded that the
plain meaning of Tennessee Code Annotated section 50-6-204
contemplates only professional nursing services ordered by the
attending physician, and that the mother is not a professional nurse
providing professional nursing services.  The employee appealed,
arguing that the statute provides compensation for a broader range of
caretaking services.  The appeal was argued before the Special
Workers' Compensation Appeals Panel pursuant to Tennessee Code
Annotated section 50-6- 225(e)(3), but the appeal was transferred to
the full Supreme Court prior to the Panel issuing its decision, and
oral argument was heard by the full Court.  We hold that in Tennessee
Code Annotated section 50-6-204(a)(1), "nursing services" refers to
the services of a professional nurse.  Because the mother providing
caretaking services here is not a professional nurse, the Workers'
Compensation Law does not require the employer to compensate the
mother for her services.  Therefore, we affirm the circuit court's
denial of compensation for her services.  The question of whether the
Workers' Compensation Law should provide compensation when a family
member provides care for an injured worker is an issue that must be
addressed by the Legislature.

http://www.tba.org/tba_files/TSC/sullivanmichelle.wpd

B. M. M. v. P. R. M.

Court:TCA

Attorneys:                          

Paula Ogle Blair, Nashville, for the appellant B. M. M.

Andrew M. Cate, Nashville, for the appellee P. R. M.

Judge: KIRBY

First Paragraph:

This is a child custody dispute.  The mother and father entered into a
permanent parenting plan naming the mother the primary residential
parent of their daughter.  Under the plan, the father had supervised
visitation because the mother was concerned about sexual abuse by the
father.  The father later sought to modify the parenting plan to allow
for unsupervised visitation.  The mother then filed a notice that she
intended to move to Florida with the daughter, which the father
opposed.  The trial court granted the father's petition for
unsupervised visitation and denied the mother's request to relocate to
Florida with the child.  The mother and daughter then left for a
scheduled trip to Florida, with the understanding that they would
return for the father's scheduled visitation.  The mother remained in
Florida with the daughter for six weeks, asserting that she, the
mother, was too ill to travel.  The father was granted an emergency
change of custody.  The father then retrieved the daughter through a
private investigator, coordinating with Florida officials.  Upon
return to Tennessee, the trial court found the mother in criminal
contempt for interfering with the father's visitation and for moving
to Florida.  The father was named the primary residential parent and
the mother was granted supervised visitation.  The mother was also
required to pay the father for the cost of the private investigator. 
The mother appeals the denial of her request to move to Florida with
the child, the award of unsupervised visitation to the father, the
finding of contempt, the change of custody, the requirement that her
visitation be supervised, and the requirement that she pay the private
investigator's fee.  We affirm.

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

IN RE:  C.A.H.

Court:TCA

Attorneys:                          

Terry D. Gregory, Tullahoma, Tennessee, for the appellant, mother and
unknown father of C.A.H.

Paul G. Summers, Attorney General and Reporter; and Juan G.
Villasenor, Assistant Attorney General, for the appellee, State of
Tennessee, Department of Children's Services.

Judge: CLEMENT

First Paragraph:

Mother appeals termination of her parental rights.  The juvenile court
found that Mother was in substantial noncompliance with the permanency
plan, that she failed to remedy the persistent conditions that
prevented her child's return, and that termination was in the child's
best interest.  We affirm.  The record contains numerous extraneous
documents that do not pertain to the petition to terminate parental
rights or the issues raised on appeal.  The parties and the clerk have
a responsibility to abridge the record.  Tenn. R. App. P. 8A(c). 
Failure to abridge the record may result in a reduction of the
juvenile court clerk's fee for the cost of preparing and transmitting
the record.  Tenn. R. App. P. 40(g).

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

IN RE:  T.H. AND J.H.

Court:TCA

Attorneys:                          

Angello L. Huong, Murfreesboro, Tennessee, for the appellant, S. H.,
the mother.

Paul G. Summers, Attorney General and Reporter; and Juan G.
Villasenor, Assistant Attorney General, for the appellee, State of
Tennessee, Department of Children's Services.

Judge: CLEMENT

First Paragraph:

Mother appeals the termination of her parental rights to her two
children.  The circuit court found that Mother was in substantial
noncompliance with the permanency plan, that she failed to remedy the
persistent conditions that prevented her child's return, and that
termination was in the child's best interest.  We affirm.  The record
contains numerous extraneous documents that do not pertain to the
petition to terminate parental rights or the issues raised on appeal. 
The parties and the clerk have a responsibility to abridge the record.
 Tenn. R. App. P. 8A(c).  Failure to abridge the record may result in
a reduction of the circuit court clerk's fee for the cost of preparing
and transmitting the record.  Tenn. R. App. P. 40(g).

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

FLOYD CAMPBELL v. KEVIN MYERS, Warden

Court:TCCA

Attorneys:                          

Floyd Campbell, Clifton, Tennessee, Pro Se.

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

Judge: RILEY

First Paragraph:

This is a habeas corpus appeal.  A jury convicted the petitioner of
seven counts of rape of a child, one count of incest, and three counts
of aggravated sexual battery.  He received an effective sentence of
twenty-two years incarceration.  In April 2003, the petitioner
submitted a pro se petition for habeas corpus relief, alleging the
sentences for child rape committed in 1992 are illegal because the
record is unclear as to whether these offenses were committed before
or after July 1, 1992, the effective date of the child rape statute. 
The trial court dismissed the petition, and the petitioner appeals the
dismissal.  We affirm the judgment of the trial court.

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

JAMES C. MURRAY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

C. LeAnn Smith, Nashville, Tennessee, for the appellant, James C.
Murray.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Victor S. Johnson, III, District Attorney
General; Thomas B. Thurman, Deputy District Attorney General; and
Roger D. Moore, Assistant District Attorney General, for the appellee,
State of Tennessee.

Judge: RILEY

First Paragraph:

The petitioner, James C. Murray, appeals the denial of post-conviction
relief relating to his convictions for premeditated first degree
murder and conspiracy to commit first degree murder.  On appeal, the
petitioner contends: (1) he received ineffective assistance of counsel
at trial; and (2) the post-conviction court erred in refusing to admit
Leonard Rowe's testimony.  We affirm the judgment of the
post-conviction court.

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

STATE OF TENNESSEE v. WILLIAM J. PARKER, JR.
WITH DISSENTING OPINION

Court:TCCA

Attorneys:                          

Bernard K. Smith (at trial), McMinnville, Tennessee; Thomas F. Bloom
(on appeal), Nashville, Tennessee, for the appellant, William Parker,
Jr.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,
Assistant Attorney General; William M. Locke, District Attorney
General; Dale Potter, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, William J. Parker, Jr., was indicted for driving under
the influence and driving on a revoked license.  A jury acquitted him
of the DUI charge, but found him guilty of driving on a revoked
license, a Class B misdemeanor.  The trial court imposed a sentence of
six months, with sixty days to be served in confinement and the
balance to be served on probation.  In this appeal, the Defendant
raises three issues: 1) whether the State's failure to provide him
with a copy of his driving record constitutes a violation of his due
process rights; 2) whether the trial court erred by admitting into
evidence a sworn affidavit; and 3) whether the sentence imposed by the
trial court is excessive.  We conclude that the trial court erred by
admitting the affidavit into evidence.  Because we are unable to
conclude that the error was harmless, the judgment of the trial court
is reversed and the case remanded for a new trial.

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

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

STATE OF TENNESSEE v. MARTY LAVERN PYBURN

Court:TCCA

Attorneys:                          

Philip A. Condra, Jasper, Tennessee, for the appellant, Marty Lavern
Pyburn.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and Sherry Gouger, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Marty Lavern Pyburn, was convicted by a jury in the
Marion County Circuit Court of first degree murder and sentenced to
life imprisonment.  On appeal, the appellant challenges (1) the
sufficiency of the evidence; (2) the admission of his prior conviction
of aggravated robbery for impeachment purposes; (3) the admission of
photographs of the crime scene; (4) the expert testimony of Dr.
Charles Harlan; and (5) the trial court's charge to the jury.  Upon
review of the record and the parties' briefs, we affirm the judgment
of the trial court.

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

STATE OF TENNESSEE v. JOHNNIE DARRELL RICE

Court:TCCA

Attorneys:                          

Larry B. Hoover, Nashville, Tennessee, for the Appellant, Johnnie
Darrell Rice.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Richard H. Dunavant, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; and Scott
McMurtry, Assistant District Attorney General, for the Appellee, State
of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Johnnie Darrell Rice, was convicted by a Davidson
County jury of driving under the influence (DUI), first offense. 
Following a sentencing hearing, Rice was ordered to serve twenty days
in periodic confinement.  Rice appeals both his conviction and
sentence arguing that:  (1) the arresting officer had no reasonable
suspicion to stop his vehicle; (2) the trial court erred in ruling
that Sergeant Ben Cook was an "expert" witness; and (3) his twenty-day
sentence was excessive. Finding no reversible error, the judgment of
conviction and sentence are affirmed.

http://www.tba.org/tba_files/TCCA/ricejohnnied.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 2004 Tennessee Bar Association