Opinion Flash

August 23, 2004
Volume 10 — Number 162

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
02 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 New Opinion(s) from the Tennessee Court of Appeals
04 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. GDONGALAY P. BERRY.
WITH DISSENTING OPINION AND APPENDIX

Court:TSC

Attorneys:                          

Thomas F. Bloom and James A. Simmons, Nashville, Tennessee, for
appellant, Gdongalay P. Berry.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mark A. Fulks, Assistant Attorney General; David
Hamm and Katrin Miller, Assistant District Attorneys General, for
appellee, State of Tennessee.

Judge: BARKER

First Paragraph:

A jury convicted the defendant, Gdongalay P. Berry, of two counts of
premeditated murder, two counts of felony murder, two counts of
especially aggravated kidnapping, and two counts of especially
aggravated robbery, for the murders, kidnappings and robberies of
DeAngelo Lee and Gregory Ewing.  Following a capital sentencing
hearing, the jury found three aggravating circumstances in each
murder:  (1) that the defendant was previously convicted of one or
more felonies other than the present charge, the statutory elements of
which involve the use of violence to the person;  (2) that the murder
was committed for the purpose of avoiding, interfering with, or
preventing a lawful arrest or prosecution of the defendant or another;
and (3) that the murder was knowingly committed, solicited, directed,
or aided by the defendant while the defendant had a substantial role
in committing or attempting to commit robbery or kidnapping.  Tenn.
Code Ann. S 39-13-204(i)(2), (6), (7) (1996).  The jury also found
that these aggravating circumstances outweighed the mitigating
circumstances beyond a reasonable doubt.  Accordingly, the jury
imposed sentences of death for each of the murder convictions.  As to
the remaining felony convictions, the trial court sentenced the
defendant as a violent offender, and imposed an effective fifty-year
sentence, to run consecutively to the death penalty.   The defendant
appealed, challenging both his convictions and the sentences of death.
 After fully considering the issues raised by the defendant, the Court
of Criminal Appeals affirmed the convictions and the sentences.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TSC/berrygdonp_dis.wpd

APPENDIX
http://www.tba.org/tba_files/TSC/berrygdonp_apx.wpd

DAVID E. HUNTER v. GOODYEAR TIRE AND RUBBER COMPANY

Court:TSC - Workers Comp Panel

Attorneys:                          

Randy M. Chism and Kirk L. Moore, Elam, Glasgow & Chism, Union City,
Tennessee, for the appellant, Goodyear Tire and Rubber Co.

Jeffrey A. Garrety and Joseph R. Taggart, for the appellee, David E.
Hunter

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 award of permanent benefits based on
90 percent permanent partial disability benefits to the right leg is
excessive as being against the preponderance of the evidence.  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/hunterde.wpd

EVA MAE JEFFERIES v. MCKEE FOODS CORPORATION

Court:TSC - Workers Comp Panel

Attorneys:                          

Bruce C. Bailey, Chattanooga, Tennessee, for the appellant, McKee
Foods Corporation.

Gary W. Starnes, Chattanooga, Tennessee, for the appellee, Eva Mae
Jefferies.

Judge: BIRCH

First Paragraph:

In this workers' compensation case, the employer, McKee Foods
Corporation, has appealed the trial court's award of 50% permanent
partial disability to the body as a whole to the employee, Eva Mae
Jefferies.  The trial court's award of benefits was based on a medical
impairment rating calculated under the Fifth Edition of the American
Medical Association Guides to the Evaluation of Permanent Impairment
("AMA Guidelines"), which was in effect at the time of trial.  The
employer's appeal was transferred to the full Supreme Court prior to a
decision by the Special Workers' Compensation Appeals Panel.  The
employer contends in this Court that the trial court should have
applied a medical impairment rating calculated under the Fourth
Edition of the AMA Guidelines because the Fourth Edition was the
edition in effect when the employee reached maximum medical
improvement.  Thus, the sole question for this Court is whether the
trial court erred in awarding benefits using a medical impairment
rating calculated under the Fifth Edition of the AMA Guidelines. 
After carefully examining the record and the relevant authorities, we
find that in determining the extent of the employee's vocational
disability, the trial court should have used a medical impairment
rating calculated under the Fourth Edition of the AMA Guidelines. 
Accordingly, the judgment of the trial court is reversed.  The case is
remanded for further proceedings consistent with this opinion.

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

MARY FINCHUM, Individually and as Next of Kin to WILLIAM FINCHUM,
Deceased v. ACE, USA, individually and as successor to CIGNA INSURANCE
COMPANY, et al.
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Paul T. Gillenwater, Knoxville, Tennessee, for Appellant.

Gerald V. Weigle, Jr., Cincinnati, Ohio for Appellee, Liberty Mutual
Insurance Co.

J. Thomas Jones, Knoxville, Tennessee, and James E. Rocap, III,
Washington, DC, for Appellee, Travelers Casualty and Surety Co.

Judge: FRANKS

First Paragraph:

The Trial Court dismissed the Complaint on a Motion filed pursuant to
Tenn. R. Civ. P.        12.02(6).  We vacate and remand because the
Motion to Dismiss did not comply with the Rules of Civil Procedure.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/finchumm_dis.wpd

LARRY D. HOWARD v. LIFE CARE CENTERS OF AMERICA, INC.

Court:TCA

Attorneys:                          

Anita B. Hardeman and Kent T. Jones, Chattanooga, for Appellant Larry
D. Howard.

John C. Harrison, Chattanooga, for Appellee Life Care Centers of
America, Inc.

Judge: LEE

First Paragraph:

This is a retaliatory discharge action brought pursuant to Tennessee's
"whistleblower" statute, Tenn. Code Ann. S 50-1-304.  The Plaintiff
alleged that he was an employee and was wrongfully discharged because
he complained to governmental officials about alleged Medicare
violations by the Defendant.  The Defendant denied these allegations
and moved for summary judgment.  The trial court granted the
Defendant's motion for summary judgment and the Plaintiff appealed. 
We affirm the judgment of the trial court and find that although a
genuine issue of material fact exists as to whether the Plaintiff was
an independent contractor and not an employee, the Defendant did not
discharge the Plaintiff but rather chose not to renew his contract
upon its expiration.  Accordingly, the Plaintiff is not entitled to
the protection of the Tennessee whistleblower statute, and, therefore,
we affirm the trial court.

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

RAYMOND LEDOUX AND WIFE, VIRGINIA LEDOUX v. WENDALL PIERCE

Court:TCA

Attorneys:                          

Billy C. Jack, Columbia, Tennessee, for the appellant, Wendall Pierce.

Mark A. Free, Columbia, Tennessee, for the appellees, Raymond LeDoux
and wife, Virgina LeDoux.

Judge: KIRBY

First Paragraph:

This case involves a default judgment.  The plaintiffs filed a civil
warrant in general sessions court against the defendant for
intentional infliction of physical injuries.  The defendant did not
appear, and the plaintiffs obtained a judgment by default.  The
defendant appealed to the circuit court for a trial de novo.  The
circuit court set the case for trial.  On the trial date, however,
neither the defendant nor his counsel appeared, and the default
judgment was reinstated.  The defendant filed a Rule 60.02 motion to
have the default judgment set aside, based on excusable neglect.  The
defendant's lawyer attached his own affidavit, which explained that
the lawyer was in the midst of closing his law office after
thirty-eight years of practice and, in the confusion, failed to put
the hearing date on his calendar.   The motion to set aside was
denied.  The defendant now appeals.  We vacate and remand to the trial
court to consider whether the defendant has a colorable defense to the
plaintiffs' claims and to reweigh the pertinent factors in light of
that finding.

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

NORANDAL USA, INC. v. RUTH E. JOHNSON, COMMISSIONER OF REVENUE FOR THE
STATE OF TENNESSEE

Court:TCA

Attorneys:                          

Gerald B. Kirksey and Timothy H. Nichols, Brentwood, Tennessee, for
the appellant, Norandal USA, Inc.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore,
Solicitor General, and Michael W. Catalano, Associate Solicitor
General,  Nashville, Tennessee, for the appellee, Ruth E. Johnson,
Commissioner for the State of Tennessee.

Judge: KIRBY

First Paragraph:

This is a sales tax case.  The plaintiff owns an aluminum sheet and
foil manufacturing plant.  Located in the plant are two multi-ton roll
grinders.  In 1987, the defendant commissioner of revenue took the
position that the roll grinders and roll grinder supplies were exempt
from sales tax, because the roll grinders constituted "industrial
machinery," which were exempt.  In 1995, however, the department of
revenue conducted an audit of the plaintiff and changed its position,
concluding that the roll grinders were "equipment used for
maintenance," which is an exception to the industrial machinery
exemption.  Accordingly, the plaintiff was assessed for sales tax on
roll grinder supplies purchased between 1995 and 1998.  The plaintiff
paid the assessment under protest and filed the instant lawsuit,
seeking to recover the sales tax paid on roll grinder supplies for the
audit period.  The trial court upheld the decision of the department
of revenue, concluding that the roll grinders were "equipment used for
maintenance."  From that order, the plaintiff now appeals.  We affirm,
finding that the roll grinders fit within the "equipment used for
maintenance" exception and that, consequently, roll grinder supplies
are subject to sales tax.

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

MICHAEL P. RUTHERFORD, IN HIS OFFICIAL CAPACITY AS WASHINGTON COUNTY
ZONING ADMINISTRATOR v. ROBERT LEWIS MURRAY, JR.

Court:TCA

Attorneys:                          

John Rambo, Jonesborough, Tennessee, for the Appellant, Michael P.
Rutherford, in his official capacity as Washington County Zoning
Administrator.

John S. Taylor, Johnson City, Tennessee, for the Appellee, Robert
Lewis Murray, Jr.

Judge: SWINEY

First Paragraph:

Michael P. Rutherford, in his official capacity as Washington County
Zoning Administrator, ("Plaintiff") sued Robert Lewis Murray, Jr.
("Defendant") claiming Defendant was operating an automobile repair
business and a junkyard in violation of Washington County zoning
regulations.  Defendant claimed the use of his property was a
nonconforming use allowed prior to a change in the zoning regulations,
and, therefore, was entitled to protection under Tenn. Code Ann. S
13-7-208, the grandfather statute.  After a bench trial, the Trial
Court found and held that Defendant's business was grandfathered in as
a prior nonconforming use because Defendant was working substantially
on the construction of his business garage prior to the change in
zoning.  Plaintiff appeals.  We affirm, but remand for further
proceedings on the issue of whether Defendant is operating a junkyard
in addition to his automobile repair business.

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

SARA BETH STOVALL v. THE CITY OF MEMPHIS

Court:TCA

Attorneys:                          

Jack V. Delany of Memphis for Appellant, Sara Beth Stovall

Robert L. J. Spence, Jr., City Attorney; Steven D. Townsdin, Assistant
Attorney General, for Appellee, The City of Memphis

Judge: CRAWFORD

First Paragraph:

This case arises from the trial court's grant of Appellee's Motion for
Summary Judgment based on interpretation of T.C.A. S 36-3-103(a). 
Finding that T.C.A. S 36-3-103(a) requires couples to obtain a
marriage license for a valid marriage in Tennessee and that Marriage
by Estoppel does not apply, we affirm.

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

RONALD C. TEACHOUT v. CONSECO SECURITIES, INC., a/k/a CONSECO
FINANCIAL SERVICES, INC., CONSECO FINANCE SERVICING CORP., CONSECO
BANK, INC., and LISA M. BYNUM

Court:TCA

Attorneys:                          

Thomas R. Dyer and Douglas A. Black, Memphis, Tennessee, for the
appellants, Conseco Securities, Inc., Conseco Bank, Inc., and Lisa M.
Bynum.

Charles Patrick Flynn and Michael K. Radford, Brentwood, Tennessee,
for the appellee, Ronald C. Teachout.

Judge: KIRBY

First Paragraph:

This is an arbitration case.  The plaintiff borrower executed a note
in favor of the defendant bank.  The note included an arbitration
clause, requiring all disputes between the "Borrower(s)" and "Note
Holder" to be arbitrated.  The term "Note Holder" is defined in the
note as the "Lender or anyone who takes [the] Note by transfer and who
is entitled to receive payments under [the] Note."  The bank
transferred the note and the borrower began making payments to a third
party.  The borrower then filed this lawsuit against the bank and
others, alleging fraud in the inducement, negligent misrepresentation,
promissory fraud, and violation of the Consumer Protection Act.  The
defendants filed a motion to stay the proceedings and to compel
arbitration.  The trial court denied the motion.  We affirm, holding
that under the note, the bank is no longer a "Note Holder" and
therefore does not have standing to invoke the arbitration clause.

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

EDDIE DEPRIEST v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Eddie DePriest, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Tom Hoover, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The petitioner, Eddie DePriest, seeks appellate review of the Shelby
County Criminal Court's summary denial of habeas corpus relief.  We
discern no habeas corpus cause of action in the petition and affirm.

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

STATE OF TENNESSEE v. ROGER C. McANALLY

Court:TCCA

Attorneys:                          

Gary J. Swayne, Paris, Tennessee, for the appellant, Roger C.
McAnally.

Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Steven L. Garrett, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The defendant, Roger C. McAnally, appeals as of right from his
convictions by a jury in the Henry County Circuit Court for especially
aggravated kidnapping, a Class A felony; two counts of aggravated
robbery, a Class B felony; kidnapping, a Class C felony; three counts
of aggravated burglary, a Class C felony; theft of property over $500,
a Class E felony; and sexual battery, a Class E felony.  The trial
court sentenced the defendant to twenty years for the especially
aggravated kidnapping conviction, eight years for each aggravated
robbery conviction, three years for the kidnapping conviction, and
three years for each aggravated burglary conviction, to be served
concurrently but consecutively to a one-year sentence for the sexual
battery conviction, for an effective twenty-one-year sentence.  In
this appeal, he contends that his convictions for especially
aggravated kidnapping and kidnapping violate his due process rights
because his confinement of the victims was incidental to the
robberies.  We affirm the judgments of the trial court.

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

LON ADELBERT PIERCE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Guy T. Wilkinson, District Public Defender, and Vicki S. Snyder,
Assistant District Public Defender, for the appellant, Lon Adelbert
Pierce.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; G. Robert Radford, District
Attorney General; and Steven L. Garrett and Beth C. Boswell, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner appeals the dismissal of his petition for
post-conviction relief from his conviction for first degree murder,
arguing that the post-conviction court erred in finding he received
effective assistance of counsel at trial and on appeal.  Following our
review, we affirm the dismissal of the petition.

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

STATE OF TENNESSEE v. PRESTON YOUNG

Court:TCCA

Attorneys:                          

Gerald Stanley Green, Memphis, Tennessee, for the Appellant, Preston
Young.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General; William L. Gibbons, District Attorney General; and
Carmille McMullin, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Preston Young, appeals the Shelby County Criminal
Court's denial of probation and imposition of a two-year sentence for
his jury conviction of criminally negligent homicide.  Because the
record is insufficient for our statutorily mandated de novo review of
the sentence, we affirm.

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

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